# Reply Brief — Carmell v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0295%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 513

## Text

Supreme Court, U.S.
g FIteED
| NOV 15 1999
No. 98-7540
_CLERK
In The

Supreme Court of the United States

¢

SCOTT LESLIE CARMELL,

Petitioner,

STATE OF TEXAS,

Respondent.
¢

On Writ Of Certiorari
To The Texas Court Of Appeals

S

REPLY BRIEF OF PETITIONER
¢

RicHarp D. BernsteIn*
Carter G. PHILLIPs
KATHERINE L. ADAMS
Paut A. HEMMERSBAUGH
Brian C. Katt

Siptey & AusTIN

1722 Eye Street, N.W.
Washington, D.C. 20006
(202) 736-8000

Counsel for Petitioner

"Counsel of Record

November 15, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page
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1.

Il.

Ill.

IV.

RETROACTIVE APPLICATION OF THE 1993
AMENDMENT OF ARTICLE 38.07 FALLS
SQUARELY WITH THE CONSTITUTIONAL
PROHIBITION ON EX POST FACTO LAWS
ENUNCIATED IN CALDER V. BULL..........

THE COURT HAS CONSISTENTLY AFFIRMED
THE FOUR CALDER CATEGORIES AS THE
TOUCHSTONE FORMULATION OF THE
PROHIBITIONS OF THE EX POST FACTO
Eh ak AT A bd.Ceus bie banda rh kbd eucabo due as

CALDER’S FOURTH CATEGORY IS CONSIS-
TENT WITH THE HISTORY AND PURPOSES
ANIMATING THE EX POST FACTO CLAUSE,
AND THE COURT SHOULD NOT OVERRULE
THIS IMPORTANT RULE..................55:

RETROACTIVE REPEAL OF THE CORROBO-
RATION REQUIREMENT IS ALSO UNCON-
STITUTIONAL UNDER THE BEAZELL
FORMULATION, BECAUSE IT DEPRIVED
PETITIONER OF AN ABSOLUTE DEFENSE TO
Ay FEU OF GOUT ii cc cc cdcsccccccsnecs

Se a6 0s o Sue deeee teed oaysedebensaiwe

10

TABLE OF AUTHORITIES

Page
Cases
Baptist Hosp. of Southeast Texas, Inc. v. Barber, 714

S.W.2d 310 (Tex. 196)... cccrcvvcccsaccccesivevedne 4
Beazell v. Ohio, 269 U.S. 167 (1925).............. passim
Beltran v. State, 728 S.W.2d 382 (Tex. Crim. App.

19G7) .. 00 cnvcnnsnsseecbudeenéu dies eher tener sana 19
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ passim
California Dep't of Corrections v. Morales, 514 U.S.

GD (19GB). occ iccccpecctceseseketeneevebtavenees 8, 14
Carter v. Kentucky, 450 U.S. 288 (1981)................ 4
City of Canton v. Harris, 489 U.S. 378 (1989).......... 4
Collins v. Youngblood, 497 U.S. 37 (1990)......... passim
Coy v. Iowa, 487 U.S. 1012 (1988)..... 2.6.66. e ee eees 18
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) ........ 11
Frank v. Mangum, 237 U.S. 309 (1915) ............ 14, 15
Friedel v. Texas, 832 S.W.2d 420 (Tex. App. 1992, no

POR.) ..ccccncccvanesdsadencspectsecneenndheathners 19
Gasperini v. Center for Humanities, Inc., 518 U.S. 415

(29D) «nc cncdéucevsbsenbuadeted ne spehesteeeageuue 13
Heckathorne v. Texas, 697 S.W.2d 8 (Tex. App. 1985,

pet. ref’)... ccccccscsvccccccrccssctesetesousuens 4
Hopt v. Utah, 110 U.S. 574 (1884). ..... 2.6... 08. 7, 8,9
James v. United States, 366 U.S. 213 (1961) ........... 14

Jones v. Texas, 789 S.W.2d 330 (Tex. App. 1990, pet.
SOSA 5 civsandtanns das hocvaniotwtheunsbenbustewes 19

iii

TABLE OF AUTHORITIES

Page

Lynce v. Mathis, 519 U.S. 433 (1997) ................ 6, 8
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .... 11
Miller v. Florida, 482 U.S. 423 (1987).......... 11, 14, 16
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)......... +
Riggins v. Nevada, 504 U.S. 127 (1992)................ 4
Scoggan v. Texas, 799 S.W.2d 679 (Tex. Crim. App.

Ps eeaAetaiuS Ha cWntidhensctckes inte dhsccs ss 19
Shelby v. Texas, 800 S.W.2d 584 (Tex. App. 1990),

rev'd on other grounds, 819 S.W.2d 544 (Tex.

SE EE Sc ebdys We ra Naabstbecedasevacecs: 4

}

Weaver v. Graham, 450 U.S. 24 (1981)............. 11, 12
Zule v. Texas, 802 S.W.2d 28 (Tex. App. 1990, pet.

Nee wees 4
State STATUTE
Tex. Code Crim. Proc. art. 38.07 (1983)............... 3
Court Rute
TEEN MEE Seiiedacas ind cea tdpedescuseviccecsns 4
OrHer AUTHORITIES
Zechariah Chafee, Jr., Three Human Rights in the

Cemeeetiee GF I7E7 (ISS) «oon. c sc ccceccccccccccess 17
Joseph

3
ARGUMENT

I. RETROACTIVE APPLICATION OF THE 1993
AMENDMENT OF ARTICLE 38.07 FALLS
SQUARELY WITH THE CONSTITUTIONAL PRO-
HIBITION ON EX POST FACTO LAWS ENUNCI-
ATED IN CALDER V. BULL.

Retroactive application of the 1993 Amendment falls
squarely within Calder’s fourth category, which proscribes
“le]very law that alters the legal rules of evidence, and
receives less, or different, testimony, than the law required at
the time of the commission of the offence, in order to
convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390
(1798) (emphases added). Retroactive application of the
1993 Amendment to Petitioner did precisely that. Under
the law in effect at the time of Petitioner’s alleged con-
duct, the absence of corroborating testimony meant that,
as a matter of law, KM’s testimony was insufficient evi-
dence “to convict the offender.” See Tex. Code Crim.
Proc. art. 38.07 (1983); Pet. Br. 4-7, 12-13.)

' Respondent argues for the very first time in its merits
brief before this Court that the 1983 version of Article 38.07 did
not require eyewitness corroboration, and that the evidence
adduced at Petitioner's trial was somehow sufficient to satisfy
the corroboration requirement of the pre-amendment version of
Article 38.07. See Resp. Br. 4 n.2, 17 n.9. Respondent never
previously argued — in its opposition to certiorari or in any of its
state court appellate briefs — that there was sufficient evidence
of corroboration under the prior statute. See, ¢.g., Resp. Br. in
Opp. to Cert. at 4-8 (Apr. 26, 1999); id. at 5 (arguing that, because
1993 Amendment applied retroactively, “corroboration of a
fourteen year-old victim's testimony was no longer required at
the time of . . . trial, even when the victim had not made an
outcry for several years.”); id. at 6 n.5 (citing without contesting
Petitioner's assertion that “there was no corroborating
evidence” at trial); Appellee’s Brief at 46-49 (Oct. 31, 1997);

4

Petitioner’s conviction was made possible solely by
the retroactive application of the 1993 Amendment -

Appellee’s Supplemental Brief at 1-2 (Feb. 12, 1998).
(Respondent's two state court appellate briefs have been lodged
with the Clerk.) For several reasons, this newfound argument is
unavailing. First, Respondent's failure to raise the argument
before the Texas appellate courts constitutes a waiver of the
argument before this Court. See, e.g., Riggins v. Nevada, 504 U.S.
127, 133 (1992); Carter v. Kentucky, 450 U.S. 288, 304 (1981)
(refusing to consider argument advanced by state in United
States Supreme Court, because government failed to present the
argument to the Kentucky Supreme Court). Second, in any event,
the Court should deem the issue waived because it was not
raised in Respondent's opposition to the petition for certiorari.
Sup. Ct. R. 15.2; City of Canton v. Harris, 489 U.S. 378, 383-85
(1989). Third, if the corroboration issue had been raised below,
the fact that the Texas Court of Appeals decided the
constitutional question would indicate that the court concluded
the evidence at trial was insufficient to satisfy the corroboration
requirement of the pre-amendment statute. Like federal courts,
Texas state courts do not address the constitutionality of a
statute if a case may be decided without reaching the
constitutional question. See, e.g., Baptist Hosp. of Southeast Texas,
Inc. v. Barber, 714 S.W.2d 310 (Tex. 1986). Fourth, because Texas
courts appear divided on the question of whether Article 38.07
requires eyewitness corroboration, compare Shelby v. Texas, 800
S.W.2d 584, 586 (Tex. App. 1990), rev'd on other grounds, 819
S.W.2d 544 (Tex Crim. App. 1991), and Heckathorne v. Texas, 697
S.W.2d 8, 12 (Tex. App. 1985, pet. ref’d), with Zule v. Texas, 802
S.W.2d 28, 32 (Tex. App. 1990, pet. ref’d), Respondent is
effectively asking this Court to act as the final arbiter of Texas
law, a function properly reserved to the Texas Supreme Court.
See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992). Finally,
contrary to the implication at Resp. Br. 4 n.2, no witness, other
than KM, testified to the jury that he or she saw any indication
of any illegal contact between KM and petitioner. See, e.g., Trial
Tr. 305-06 (testimony of mother Eleanor that she never saw
Petitioner do anything sexual with KM); id. at 310 (mother’s
testimony that she had “absolutely” no inkling about alleged

——

5

which, as Respondent concedes, “abrogatied] . . . the
corroboration requirement” of the prior law. Resp. Br. 16.
The 1993 repeal of the corroboration requirement was
thus a substantive change in Texas criminal law which
allowed the prosecution to convict Petitioner based on
“less or different testimony” (KM’s testimony alone) than
the minimum required (KM’s testimony plus corrobora-
tion or outcry) at the time of the alleged conduct. See
Calder, 3 U.S. at 390.

Respondent’s argument that category four prohibits
only retroactive changes in “the definition of crimes” or
“increases [in] punishment,” Resp. Br. 7, 23, makes no
linguistic or logical sense. If this were true, there would
be no category four, because it would be entirely redun-
dant of categories one and three.

Il. THE COURT HAS CONSISTENTLY AFFIRMED
THE FOUR CALDER CATEGORIES AS THE
TOUCHSTONE FORMULATION OF THE PROHI-
BITIONS OF THE EX POST FACTO CLAUSE.

Contrary to Respondent's argument, the Court has
consistently affirmed that the laws prohibited by the Ex
Post Facto Clause are those set forth in the four Calder
categories, including the fourth category. See, e.g., Collins
v. Youngblood, 497 U.S. 37, 46 (1990) (“the prohibition
which may not be evaded is the one defined by the Calder
categories”). From 1798 to the present, the Court has cited
Calder's four categories, including the fourth category's
core prohibition of laws retroactively changing the

(sex) crimes at the time). Evidence that petitioner sent his
stepdaughter cards and gifts, or that KM identified a massage
vibrator, Resp. Br. 4 n.2, is not evidence corroborating alleged
sexual contact between KM and Petitioner.

6

amount of proof required for conviction, as defining the
scope of the prohibition against ex post facto laws. See,
e.g., Lynce v. Mathis, 519 U.S. 433, 441 n.13 (1997) (quoting
with approval all four Calder factors).

Respondent does not argue — because it cannot - that
the Court has expressly overruled the fourth category.
Indeed, if this Court had already expressly overruled
Calder’s fourth category, it is doubtful that the Court
would have granted Petitioner's pro se certiorari petition.
Instead, Respondent and amici rely upon strained con-
structions of a few of this Court’s subsequent cases to
argue that the category has been “implicitly” overruled.
Resp. Br. 23. In fact, the very cases upon which Respon-
dent relies demonstrate the continuing vitality of the
fourth category.

Respondent relies heavily on Collins for its argument
that the Court has rejected the four Calder categories in
favor of a narrower two-part test. Resp. Br. 15-18. Far
from limiting Calder, however, Collins expressly and
unequivocally reaffirmed the Calder categories. Collins,
497 U.S. at 46. What Collins rejected was expansion of the
Ex Post Facto Clause beyond the four Calder categories.
Id. at 46-51. Collins overruled two late nineteenth century
decisions precisely because they exceeded Calder’s scope.
Id.; see id. at 49 (rejecting a “more expansive definition of
ex post facto laws” adopted by Kring v. Missouri and
Thompson v. Utah, because “(t]he Court’s departure from
Calder’s explanation of the original understanding of the
Ex Post Facto Clause was . . . unjustified”).

The United States rests its argument that Collins over-
ruled Calder’s two-hundred-year-old rule on a footnote.
See U.S. Br. 10-12 (citing Collins, 497 U.S. at 43 n.3). This is
more than this footnote can bear. First, contrary to the

7

United States’ contention, the Collins footnote did not
conclude that Calder category four was “overbroad.”
Rather, it rejected any interpretation of Calder’s fourth
category that would cover all alterations in the “ ‘legal
rules of evidence.’ ” 497 U.S. at 43 n.3. This is correct, as
Petitioner has emphasized. Pet. Br. 20. Calder’s fourth
category contains the conjunctive requirement that the
new law permit conviction on “less, or different, testimony
than the law required at the time of the commission of the
offense, in order to convict the offender.” 3 U.S. at 390
(emphases added). The United States’ discussion also
omits the approving citation, in the very same Collins
footnote, to the statement in Hopt v. Utah, 110 U.S. 574,
590 (1884) that “approv[ed] procedural changes [that]
‘leav[e] untouched the . . . amount or degree of proof essential
to conviction.’” Collins, 497 U.S. at 43 n.3 (emphasis
added).

Second, contrary to Respondent's suggestion, the text
in Collins to which footnote three is appended makes
clear that the Court understands Beazell to be an affirma-
tion of the four Calder categories. See id. at 42. In that
discussion, the Court first quotes the four Calder catego-
ries, cites cases affirming Calder’s formulation, and con-
cludes that Beazell was simply summarizing the “well-
accepted” “principles” enunciated in Calder. Id. Thus, far
from overruling Calder’s fourth category, footnote three
provides further support for the Collins’ holding that “the
prohibition which may not be evaded is . . . defined by
the Calder categories.” Id. at 46.2

2 Contrary to the further contention of the United States,
U.S. Br. 12-13, this Court’s two Ex Post Facto Clause decisions
rendered after Collins do not, in any way, undercut Calder’s

8

Respondent and its amici similarly misapprehend the
two other cases upon which they rely to argue that Calder
category four has been overruled, Hopt v. Utah, 110 U.S.
574 (1884) and Beazell v. Ohio, 269 U.S. 167 (1925). In Hopt,
the Court held that retroactive application of a pro-
cedural rule “enlarg[ing] the class of persons who may be
competent to testify” did not violate the Ex Post Facto
Clause, because it did not reduce the “quantity or the
degree of proof necessary” to convict the accused. 110
U.S. at 589. The Court expressly distinguished the facially
neutral evidentiary change at issue in that case from a
change which, like the retroactive elimination of the cor-
roboration requirement here, allows conviction on less
evidence than required by the law in effect at the time of
the conduct, explaining: “[a]ny statutory alteration of the
legal rules of evidence which would authorize conviction
upon less proof, in amount or degree, than was required
when the offence was committed, might, in respect of that
offence, be obnoxious to the constitutional inhibition upon ex
post facto laws.” Id. at 590 (emphasis added).

Respondent asserts that “less proof” in Hopt refers
only to a change in a generalized burden of proof - e.g.,
absolute certainty - not a specific burden of proof — e.g.,

fourth category. Neither of those cases involved retroactive
changes affecting the requirements for conviction or
determination of guilt. Rather, the issue in both of those cases
was the question of post-conviction changes in the law that
might enlarge punishment, specifically whether a retroactive
change in the law impermissibly increased the punishment for
persons who had already been convicted and were serving
prison sentences. See Lynce v. Mathis, 519 U.S. 433 (1997);
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995).
Moreover, Lynce quoted Calder’s fourth category with approval.
519 U.S. at 441 n.13.

9

the requirement of a corroborating witness. “Less” means
“less.” As Respondent concedes, the prior Texas statute
set a minimum “sufficiency of evidence.” Resp. Br. 18.
The new statute enabled petitioner’s conviction on “less”
evidence, i.e., without corroboration or outcry.’ In all
events, Hopt simply cannot be read to overrule Calder’s
fourth category.* Beazell is also fully consistent with the
core prohibition of Calder’s fourth category. Beazell held
that changes in “the manner in which the trial of those
... accused shall be conducted” do not offend the Ex Post
Facto Clause. 269 U.S. at 170. The next three sentences
distinguish categories of laws that were not at issue in
Beazell but would violate the Ex Post Facto Clause. The
first two of these three sentences mirror the first three
Calder categories, i.e., they describe laws that change the
“legal definition of the offense” (i.e., Calder category one),
increase the “criminal quality of the act charged” (i.e.,
category two), and increase “punishment” (category
three). 269 U.S. at 170. The third sentence certainly

3 Moreover, respondent's argument is based on an elliptical
quotation of a single sentence that leaves out the very language
quoted by Collins. Resp. Br. 23. The omitted language reiterates
that the Court was approving only retroactive changes that
“leav[e] untouched the nature of the crime and the amount or
degree of proof essential to conviction,” Hopt, 110 U.S. at 590
(emphasis added). See Collins, 497 U.S. at 43 n.3.

* Contrary to Respondent’s suggestion, and unlike the
change in the law at issue in Hopt, Article 38.07’s corroboration
requirement was not a witness competency rule. See Resp. Br.
25-27. Both before and after the 1993 Amendment, KM waz .ully
competent to testify. However, only after the statutory change
was her testimony sufficient by itself to sustain a conviction.
Hopt expressly distinguished such a statutory change from a
change in witness competency rules. Hopt, 110 U.S. at 590.

10

includes Calder’s fourth category: “The quantum and kind
of proof required to establish guilt, and all questions which
may be considered by the court and jury in determining
guilt or innocence,. .. .” 269 U.S. at 170 (emphases added).
Indeed, this Court has recognized that Beazell simply
summarized the “well-accepted . . . principles” enunci-
ated in Calder. Collins, 497 U.S. at 42.

Ill. CALDER’S FOURTH CATEGORY IS CONSIS-
TENT WITH THE HISTORY AND PURPOSES
ANIMATING THE EX POST FACTO CLAUSE,
AND THE COURT SHOULD NOT OVERRULE
THIS IMPORTANT RULE.

Calder’s formulation of the four categories of laws
prohibited by the Ex Post Facto Clause should carry with
it a strong presumption of validity. The formulation,
announced by Justice Chase shortly after the ratification
of the Constitution, “ ‘has never been denied’” by any
decision of this Court. Collins, 497 U.S. at 42 (quoting
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 391 (Miller, J.,
dissenting) (1867)); see Pet. Br. 23 n.13. For more than two
hundred years, this Court has repeatedly and consistently
cited the four Calder categories as definitive.

A. Stability in ex post facto law is at least as impor-
tant as in any other context. In order for the Court to
provide clear guidance to both the federal and state legis-
latures, and for the Ex Post Facto Clause to perform its
essential functions, it is critical that the Court maintain
clear and unshifting rules regarding what legislative acts
are and are not unconstitutional, retroactive criminal
laws. Overruling, after 201 years, one of Calder’s bedrock

a.
ea

——f=

11

four categories would surely undermine that essential
stability.®

B. Calder’s fourth category is necessary to fulfill a
basic purpose of the Ex Post Facto Clause: to protect
individuals or groups from being singled out for retroac-
tive criminal legislation. See, e.g., Miller v. Florida, 482 U.S.
423, 429-30 (1987); Weaver v. Graham, 450 U.S. 24, 29
(1981); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38
(1810); Pet Br. 14-19. The Ex Post Facto Clause is a

5 The United States argues that category four may be readily
overruled because it was dicta. See U.S. Br. 13-14. This argument,
if it were accepted, would apply equally to all four of the Calder
categories. Moreover, the potential implications of this argument
are broad and unsettling. The argument would call into question
fundamental precepts enunciated in dicta by the Supreme Court
in other important foundational cases in the early years of this
nation. For example, if Marbury v. Madison were confined to its
narrow holding that this Court lacked original jurisdiction over
that case, see 5 U.S. (1 Cranch) 137, 170-77 (1803), then the
foundations of the legitimacy and scope of judicial review -
established in an extensive discussion that was dicta — could be
open to question. See Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803). To the knowledge of Petitioner’s counsel, this Court has
never called into question any of the foundational principles of
early landmark decisions such as Marbury, or Calder v. Bull, on the
ground that they were (often) dicta.

© Contrary to Respondent's suggestion, Resp. Br. 2, 7, 40-42,
the Court has never held that a showing of reliance by the
accused is necessary to demonstrate that a retroactive statutory
change violates the Ex Post Facto Clause. Rather, the Court has
simply noted that, in addition to prevention of retroactive
criminal legislation that singles out disfavored groups, a “second
concern” underlying the Clause is to “ ‘give fair warning’ ” and
allow reliance on existing laws “until [they are] explicitly
changed.” Miller v. Florida, 482 U.S. 423, 430 (1987) (emphasis
added). For example, if reliance were required, Calder’s second
and third categories would be in doubt. If a state changed the

12

constitutional bulwar.. against such acts of the legisla-
ture, which, by its nature, may respond to popular pas-
sions to the detriment of Cisfavored groups. As this Court
has explained, the Clause serves to enforce structural
limitations on the legislative branch established by the
Constitution, “uphold[ing] the separation of powers by
confining the legislature to penal decisions with prospec-
tive effect and the judiciary and executive to applications
of existing penal law.” Weaver, 450 U.S. at 29 n.10 (citing
Ogden v. Blackledge, 6 U.S. (2 Cranch) 272, 277 (1804)).
Simply put, it is improper for legislatures to place their
thumb on the judicial scale in order to ensure convictions
for past conduct. That is indisputably what the retroactive
application of the new Texas statute was designed to do
and in fact does. See Pet. Br. 17-18.

Moreover, as Petitioner has demonstrated, the retroac-
tive repeal of the corroboration requirement was plainly
targeted at an unpopular group. See Pet. Br. 17-19.
Respondent misapprehends the nature of the constitu-
tional violation when it contends that the 1993 amend-
ment merely “put [petitioner] on a level playing field
with other criminal defendants.” Resp. Br. 40. As Peti-
tioner has emphasized, it is entirely constitutional for the
Texas legislature to change the corroboration require-
ment, so long as it makes the change prospective. The
vindictive aspect of the 1993 repeal of the corroboration
requirement that singled out a disfavored group - and
thus the source of its constitutional infirmity — was its

punishment for a particular kind of murder from life
imprisonment to eligibility for capital punishment, it is doubtful
that a murderer could show reliance on the prior limitation to
life imprisonment in committing his or her crime.

13

retroactive application. Respondent points to no act of the
Texas legislature in modern history making a retroactive
change in the substantive criminal law applicable to ll
defendants, or even one singling out a group other than
accused sex offenders.

In addition, other than perhaps a law that defines an
element of the crime, it is difficult to imagine a law more
inextricably intertwined with the question of a defen-
dant’s guilt or innocence than a law that establishes the
minimum evidence necessary for conviction. Indeed, it is
indisputable that th. aim of the prior Texas statute was
designed to protect the innocent, Pet. Br. 30 & 25 n.14; see
Resp. Br. 26, and that the new statute is designed to make
conviction easier and thus protect victims of sexual
offenses, Pet. Br. 17-18. As Calder and Beazell, 269 U.S. 167,
170 (1925), indicate, legislative changes in rules govern-
ing the ultimate question of determining guilt or inno-
cence may not be made retroactive.”

”? As Petitioner demonstrated in his opening brief, the law
at issue was enacted for substantive reasons and plainly affects
substance, not procedure. See Pet. Br. 32-34. Beyond mere
conclusory statements that Article 38.07 is a “procedural” law,
neither Respondent nor its amici contest that an analogous law
in a civil case - where a defendant's liberty is not at stake -
would be considered substantive. See id. at 33-34. Indeed,
Respondent's statement that “[t]he Texas Legislature
acted . . . out of concern for the[ | victims,” Resp. Br. 39, makes
clear that the purpose of the statutory change was substantive,
not procedural. Indeed, Respondent (unintentionally)
understates the importance of the public policy of protecting the
victims of sexual offenses by any assertion that a law designed
to implement that policy is merely procedural. Cf. Gasperini v.
Center for Humanities, Inc., 518 U.S. 415, 429-30 (1996) (for Erie,
state rule is substantive where the rule is phased as “a
procedural instruction, but the State’s objective is manifestly
substantive”) (citation omitted).

14

At times, Respondent's argument might be read to
suggest there should be some sort of a “bad person,”
“bad crime,” or “unwise prior law” exception to the
protections of the Ex Post Facto Clause. See Resp. Br. 1-2,
11, 17, 39-40. Any such exception would effectively ren-
der the Clause a nullity. The legislature always believes
that the changes it enacts to the criminal law are wise,
and render “bad” people subject to criminal punishment.
This Court would not second-guess such legislative pol-
icy choices. Rather, as Justice Harlan explained, the Ex
Post Facto Clauses “rest on the apprehension that the
legislature, in imposing penalties on past conduct, even
though the conduct could properly have been made criminal
and even though the defendant who engaged in that conduct in
the past believed he was doing wrong . . . may be acting with
a purpose . . . to impose by legislation a penalty against
specific . . . classes of persons.” James v. United States, 366
U.S. 213, 247 n.3 (1961) (Harlan, J., separate opinion)
(emphasis added).

Thus, although this particular case involves convic-
tion for a sexual offense and the prior Texas statute could
readily be characterized as outmoded and unwise, those
factors are irrelevant. If Calder’s fourth category were
overruled, it would be overruled for all cases for all
time.®

® This Court has wisely declined to dilute the protections of
the Ex Post Facto Clause just because the particular case
involved convicted sex offenders. See, e.g., Miller, 482 U.S. at
433-34 (refusing to allow retroactive increase in punishment for
convicted sex offender, stating that “the sole reason for the
increase was to punish sex offenders more heavily”); accord,
California Dep't of Corrections v. Morales, 514 U.S. 499, 510-11 &
n.7 (1995). But see generally Frank v. Mangum, 237 U.S. 309 (1915)

15

C. Contrary to the contentions of the United States,
U.S. Br. 13-18, the historical groundings of the Ex Post
Facto Clause support Calder’s fourth category and Peti-
tioner’s position. See Pet. Br. 14-19. The United States
attempts to narrow the fourth Calder category through a
selective, wooden interpretation of constitutional history.

First, the United States cites the “narrow interpreta-
tion of the scope of the Clause” expressed in some of the
debates at the Constitutional Convention, and in some of
the Federalist Papers. U.S. Br. 17-18. Each of the citations
the United States relies upon, however, mention only the
first Calder category: “ ‘caus[ing] that to be a crime which
is no crime’ ” (as one delegate said at the Convention) or
“ ‘the subjecting of men to punishment for things which,
when they were done, were breaches of no law’” (as
stated in Federalist No. 84). Id. This is because none of the
sources the United States cites is purporting to catalog all
laws prohibited by the Ex Post Facto Clause. Rather, each
source is a general discussion of the virtues of the Consti-
tution, and is citing one example of those virtues from the
Ex Post Facto Clause. If these “narrow” statements were
viewed as definitive legal definitions, they would read
out of the law not only the fourth Calder category, but the
second and third - concerning retroactive aggravation of
the crime and retroactive increases in punishment - as
well.

In contrast to the contextually limited sources cited
by the United States, Justice Chase analyzed the full
scope of the Ex Post Facto Clause and offered a complete

(Court rejected habeas .laims of Leo Frank, who had been
convicted of molesting and murdering a female child); id. at 345

(Holmes and Hughes, JJ., dissenting).

16

taxonomy of its prohibitions. Thus, Justice Chase’s enu-
meration of Calder’s fourth category, prohibiting laws
“receiv[ing] less, or different, testimony, than the law
required at the time of the commission of the offence, in
order to convict the offender,” is entitled to great weight,
both for its closeness in time to the Constitution and for
its place as an integral part of the first complete descrip-
tion of the scope of the Ex Post Facto Clause. Accordingly,
this Court has emphasized the primacy of Justice Chase's
four categories in Calder. E.g., Miller, 482 U.S. at 429.
Moreover, Respondent and its amici ignore the second
source to give a complete description of the Ex Post Facto
Clause: Justice Story. See Pet. Br. 21-23. He too stated that
the Ex Post Facto Clause bars retroactive changes in
criminal law “whereby different, or less evidence, is
required to convict an offender, than was required, when
the act was committed.” Joseph Story, Commentaries on the
Constitution of the United States § 1339 (1833).

Second, examining the case of Sir John Fenwick,
which informed Calder’s fourth category, the United
States notes that the ex post facto law in Fenwick’s case
was inflicted via a bill of attainder. See U.S. Br. 15; see
also Resp. Br. 36-37 & n.18. From this, the United States
concludes that the fourth Calder category “appears to
have been intended to apply only to laws that alter the
rules of evidence to convict a particular, named
offender.” U.S. Br. 15. Of course, that is not what Calder
says.

Calder itself illustrates the error and illogic of this
argument. Just as Justice Chase supported the fourth
category with a citation to Fenwick, he supported the first
category — laws criminalizing actions that were “innocent
when done” - with a citation to the 1641 case of the Earl

17

of Strafford. See Calder, 3 U.S. (3 Dall.) at 390 (Chase, J.);
id. at 389 note a. In Strafford’s case, Parliament “dec-
lar[ed] acts to be treason, which were not treason, when
committed.” Id. at 389. As in Fenwick’s case, Strafford
was convicted via a bill of attainder. See Zechariah
Chafee, Jr., Three Human Rights in the Constitution of 1787,
at 109-13 (1956) (describing Strafford’s case). The United
States’ argument thus proves too much. Under the logic
of the United States’ position, the Ex Post Facto Clause
would not prohibit a state from retroactively criminaliz-
ing innocent conduct, so long as the state applied the law
to an entire class of offenders and did not single out a
“particular, named offender.” The fourth Calder category,
like the first, is not redundant with the Attainder Clause,
and is not limited to cases that single out individuals.

Finally, the United States contends that Calder did not
mean what it said. Justice Chase, the United States,
argues, expressed agreement with Blackstone’s Commen-
taries, which mention only the first Calder category. See
U.S. Br. 16. But Chase mentions Blackstone immediately
after defining ex post facto laws as “those that create, or
aggravate, the crime; or increase the punishment, or
change the rules of evidence, for the purpose of conviction.”
Calder v. Bull, 3 U.S. at 391 (emphasis added). The United
States’ suggestion — that Justice Chase by his citation to
Blackstone intended to flatly contradict the express lan-
guage of his opinion — is thus unavailing.’

*° The United States’ contention that Justice Paterson “relied
on Blackstone's definition,” U.S. Br. 16, also must be placed in
context. Justice Paterson relied on Blackstone only to support his
argument that the Ex Post Facto Clause should not apply to civil
laws - in the sentence immediately following his quotation of
Blackstone, Paterson concludes that Blackstone “unquestionably

18

* * *

It remains, and always will remain, “a truism that
constitutional protections have costs.” Coy v. lowa, 487
U.S. 1012, 1020 (1988). Calder’s fourth category of prohib-
ited ex post facto laws provides a necessary, though at
times unpopular, limit on the reach of legislatures with
respect to obtaining convictions for conduct that has
already occurred. It properly protects against legislation
that retroactively permits less or different proof for ¢on-
viction of a past crime, especially when the law is retroac-
tively directed at a disfavored group.

IV. RETROACTIVE KEPEAL OF THE CORROBORA-
TION REQUIREMENT IS ALSO UNCONSTITU-
TIONAL UNDER THE BEAZELL FORMULATION,
BECAUSE IT DEPRIVED PETITIONER OF AN
ABSOLUTE DEFENSE TO A FINDING OF
“GUILT.”

Retroactive application of the 1993 Amendment to
convict Petitioner also violates Beazell v. Ohio, 269 U.S.
167 (1925). Beazell’s formulation, which the United States
characterizes as “the definitive modern summary of the
scope of the Ex Post Facto Clause,” U.S. Br. 9, indicates
that the Clause prohibits retroactive repeal of any defense
“considered by the court . . . in determining guilt or
innocence.” Beazell, 269 U.S. at 170. The single example
given for such a defense is a law establishing “[t]he

refers to crimes, and nothing else.” Calder, 3 U.S. at 396 (Paterson,
J.). Thus, Paterson relied on Blackstone solely for the limited
proposition that the Ex Post Facto Clause does not cover civil
cases. The same is true of the citation to Blackstone at the
Constitutional Convention noted by the United States. See U.S.
Br. 17.

_

19

quantum and kind of proof required to establish guilt.”
Id. Collins expressly declined to limit Beazell, stating that
“(t]he Beazell formulation is faithful to our best knowl-
edge of the original understanding of the Ex Post Facto
Clause.” Collins, 497 U.S. at 42-43.

There is no basis in logic or the policies animating the
Ex Post Facto Clause for elevating “affirmative defenses”
above defenses that establish that, as a matter of law, the
defendant is not guilty. The pre-amendment version of
Article 38.07 was designed to protect the potentially inno-
cent from false accusations, and thus the State’s failure to
satisfy its terms required a judgment of acquittal. Pet. Br.
30, 25 n.14.!° It thus provided a defense on the merits, or,
in the language of Beazell, a defense “considered by the
court .. . in determining guilt or innocence.” Beazell, 269
U.S. at 170. Affirmative defenses, such as justification or
excuse, apply when the government has carried its bur-
den of introducing evidence necessary to establish a

10 The State of Texas thus imposed a necessary pre-
condition for it to obtain a conviction of the offenses at issue -
proof of corroboration or outcry. Under the prior law, the
government's failure to satisfy that condition compelled
acquittal, not remand for a new trial. See, e.g., Scoggan v. Texas,
799 S.W.2d 679, 683 (Tex. Crim. App. 1990) (applying 1983
version of Article 38.07, holding that absence of corroboration
or timely outcry compelled acquittal, remanding for entry of
judgment of “acquittal”); Friedel v. Texas, 832 S.W.2d 420, 422
(Tex. App. 1992, no pet.) (same); Jones v. Texas, 789 S.W.2d 330,
333 (Tex. App. 1992, pet. ref’d) (same); see also Pet. Br. at 30. The
requirement of a judgment of acquittal further distinguishes the
condition imposed by Article 38.07 from mere evidentiary rules.
When an appellate court finds rules of evidence were violated at
trial, the normal course is to remand the case for a new trial, not
to enter a judgment of acquittal. See, ¢.g., Beltran v. State, 728
S.W.2d 382, 389 (Tex. Crim. App. 1987).

20

prima facie case that the defendant committed an other-
wise criminal act, but additional circumstances, such as
justification or insanity, nonetheless allow a verdict of not
guilty. There is no principled basis to argue that such
affirmative defenses are somehow more significant for Ex
Post Facto Clause purposes than defenses - like Peti-
tioner’s defense in this case - that require a determina-
tion that the defendant is not guilty in the first instance.

+

CONCLUSION

Petitioner's convictions on Counts 7-10 should be
reversed and the remainder of the case remanded for
further proceedings consistent with this Court’s opinion.

Respectfully submitted,

RicHarp D. BerNsTEIN*
Carter G. PHILuPs
KATHERINE L. ADAMS
Pau. A. HEMMERSBAUGH
Brian C. Katt

Siptey & AUSTIN

1722 Eye Street, N.W.
Washington, D.C. 20006
(202) 736-8000

Counsel for Petitioner

*Counsel of Record
November 15, 1999

(ie

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0295%3A08. Public record. Not legal advice.