          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                              NOS. AP-76,594 & AP-76,595



              STATE OF TEXAS EX REL. CRAIG WATKINS, Relator

                                              v.

                 THE HONORABLE JOHN CREUZOT, Respondent



        ON MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF
      PROHIBITION AND MANDAMUS FROM CAUSE NO. F81-01988-FK
               IN THE CRIMINAL DISTRICT COURT NO. 4
                         DALLAS COUNTY

      C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON and A LCALA, JJ., joined. K EASLER, J., filed a concurring
opinion in which M EYERS and H ERVEY, JJ., joined. P RICE, J., filed a dissenting
opinion.

                                       OPINION

       The State of Texas, acting through Craig Watkins, the elected District Attorney of

Dallas County, filed a petition for a writ of mandamus and prohibition to require the trial

judge in this pending retrial of a capital murder to vacate his order precluding the State from

seeking the death penalty. Jonathan Bruce Reed, the defendant and real party in interest,
                                                      State of Texas Ex Rel. Craig Watkins Page 2

filed a “Motion to Preclude the Death Penalty Because the Delay Caused by the State’s

Misconduct has Made a Constitutionally Adequate Sentencing Investigation Impossible.”

After several evidentiary hearings, the trial judge–the Respondent–granted that motion.

Because we conclude that the trial judge does not have the legal authority to preclude the

State from seeking the statutorily authorized punishment of death set out in Article 37.071 1

under these circumstances, we conditionally grant mandamus relief.

                                                 I.

A.     The Trial

1.     Facts

       In 1979, a jury convicted Reed of capital murder by intentionally killing Wanda Wadle

during a robbery or aggravated rape. The trial judge sentenced him to death, but then granted

Reed’s motion for new trial without explanation. A second jury convicted him of capital

murder in 1983, and once again he was sentenced to death.

       The evidence from that second trial2 showed that Wanda Wadle shared a Dallas

apartment with her sister and a friend, Kimberly Pursley. All three were flight attendants for

Braniff. On November 1, 1978, Kimberly came home from a lunch with her father and

noticed Wanda’s suitcase near the front door and her purse lying on the sofa with its contents

scattered about. She concluded that Wanda had returned home sooner than expected from


       1
           TEX . CODE CRIM . PROC. art. 37.071, § 2(a)(1); TEX . PENAL CODE § 12.31.
       2
        These facts are taken from this Court’s opinion on direct appeal. Reed v. State, No.
69,292 (Tex. Crim. App. March 29, 1995) (not designated for publication).
                                                State of Texas Ex Rel. Craig Watkins Page 3

her last flight. Kimberly then heard a male voice coming from behind a closed bedroom

door: “Don’t come in here. Stay out there.” Thinking that the man was a friend of Wanda’s,

she said, “Don’t worry, I won’t come in.”

       Soon Reed opened the bedroom door. Kimberly saw him leaning through the

doorway with one hand on the molding and snapping a knife sheath closed with the other.

He said, “I’m with maintenance; I came to check and change the air conditioner filters,” and

he pointed toward the bedroom ceiling. Kimberly looked into the bedroom and saw Wanda’s

nude body protruding spread-eagle from beneath the bed. As she turned toward Reed, he

grabbed her by the throat with both hands and threw her to the living room floor on her

stomach, saying “Don’t move or I’ll break your f. . .ing neck.”

       Kimberly heard Reed rummaging through the bedroom and then he returned and

gagged her with a Braniff uniform sash, tied her hands with a leather belt, and covered her

head with an apron. He then asked her, “Do you have any money?” She indicated that she

did, so he took $20 from her purse and rummaged through the apartment some more. Reed

then returned to Kimberly, straddled her with his legs, and began choking her with both his

hands. She feigned unconsciousness. He finally stopped choking her and left.

       Kimberly then ran screaming out of the apartment to find help. One neighbor found

Wanda lying naked on her back with her legs spread apart. The neighbor pulled Wanda out

from under the bed, removed a plastic bag and belt from around her neck, and began CPR,

but Wanda died nine days later without regaining consciousness. Two neighbors had seen
                                                  State of Texas Ex Rel. Craig Watkins Page 4

Reed in the complex shortly before the attack, and a maintenance man, who had seen him

after the attack, identified Reed, as did Kimberly.

       Reed testified at trial and presented an alibi defense. At the punishment phase, Reed

presented four types of mitigating evidence: (1) his prior good conduct in prison in which he

had earned a G.E.D. and completed twenty-two hours of college credits; (2) evidence of a

history of non-violent prior crimes (including evidence that Reed was the leader and director

of a “pack of juveniles” who committed a string of fifteen to twenty home burglaries in 1978)

which, it was argued, demonstrated that he was unlikely to be violent in the future; (3) his

turbulent family background (including evidence that he did not finish high school, that he

went to the penitentiary at age nineteen, that his step-mother married his father when Reed

was twenty-four, and that he had no permanent home at the time of the murder); and (4)

psychiatric experts who said that, even if Reed had a “sexually deviant, anti-social

personality disorder,” he would experience a violence “burnout” between the ages of thirty

and forty.

2.     Jury Selection

       During the 1983 trial, Reed’s counsel objected to the prosecutor exercising

peremptory challenges against five African-Americans.3 When the prosecutor struck the very

first venireperson, Ms. Osby, the defense wanted the prosecutor to state his reason for doing

so, because he “believe[d] it was done strictly for discriminatory and racial reasons.” The

       3
         These facts are taken from this Court’s 1992 abatement order for a Batson hearing.
Reed v. State, No. 69,292 (Tex. Crim. App. Nov. 18, 1992) (not designated for publication).
                                                    State of Texas Ex Rel. Craig Watkins Page 5

trial judge told counsel that, in light of his understanding of the law, he could not order the

State to do that because they were free to exercise their challenge for “any reason whatever.” 4

The prosecutor then responded, saying (1) the law did not require him to give any reason for

exercising a peremptory challenge; (2) he “did not exercise a peremptory because of her

being a black female”; and (3) the defendant was not black. The trial judge then asked

defense counsel to provide him with caselaw from “Texas or some federal jurisdiction” that

supported his position. Defense counsel did not provide any authority then or later during

the trial. He objected to the State’s peremptory challenges to four other black venirepersons

as well.

B.     The Appeals: 1983-2009

       After Reed was convicted and sentenced to death, he appealed to this Court. During

the pendency of that appeal, the United States Supreme Court decided Batson v. Kentucky,5

in which the Court held that the State may not use peremptory challenges solely on account

of the juror’s race or on the assumption that black jurors as a group will be unable to

impartially consider the State’s case against a black defendant.6 Thus, once the defendant

made a prima facie showing of racial discrimination, the State was required to come forward


       4
           This trial was in 1983, three years before the Supreme Court’s seminal Batson decision.
       5
           476 U.S. 79 (1986).
       6
         Id. at 86 (“The Equal Protection Clause guarantees the defendant that the State will not
exclude members of his race from the jury venire on account of race, or on the false assumption
that members of his race as a group are not qualified to serve as jurors.”) (internal citation
omitted).
                                                   State of Texas Ex Rel. Craig Watkins Page 6

with a race-neutral reason for that challenge.7 But Batson did not deal with Reed’s situation

because he was white and Batson, on its face, applied only to the exclusion of black jurors

in a case against a black defendant. This Court did not address Reed’s Batson claim until

after the 1991 Supreme Court decision, Powers v. Ohio,8 ruling that a defendant had standing

to object to raced-based peremptory challenges even when he was not of the same race as

those jurors.9 Thus, white defendants could object to the discriminatory exclusion of black

jurors, and black defendants could object to the discriminatory exclusion of white jurors.10

       Based on these two new decisions, this Court abated Reed’s appeal in late 1992 and

remanded it to the trial court to conduct a retroactive Batson hearing. By then–ten years after

the trial–neither the prosecutor nor the trial judge had any independent memory of the voir

dire or jury selection.11 Both the trial judge and the prosecutor read and referred to the voir-




       7
          Id. at 97-98 (“Once the defendant makes a prima facie showing, the burden shifts to the
State to come forward with a neutral explanation for challenging black jurors. . . . [T]he
prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely
that he challenged jurors of the defendant’s race on the assumption-or his intuitive judgment-that
they would be partial to the defendant because of their shared race. . . . Nor may the prosecutor
rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirm[ing]
[his] good faith in making individual selections.’”) (quoting Alexander v. Louisiana, 405 U.S.
625, 632 (1972)).
       8
           499 U.S. 400 (1991).
       9
           Id. at 408-12.
       10
            See id.
       11
         These facts are taken from this Court’s direct appeal opinion. Reed v. State, No. 69,292
(Tex. Crim. App. March 29, 1995) (not designated for publication).
                                                    State of Texas Ex Rel. Craig Watkins Page 7

dire transcript for the five challenged venire persons.12 For each of the five, the State gave

race-neutral reasons for striking that juror, and the trial judge accepted those reasons as being

both credible and racially neutral. When the case returned to this Court, we upheld the trial

judge’s ruling and rejected Reed’s Batson claims, along with his other points of error.

       After this Court affirmed Reed’s conviction and sentence in 1995, the Supreme Court

denied certiorari in 1996.13 Reed then filed an application for a post-conviction writ of

habeas corpus in the convicting court, and we adopted the judge’s findings of fact and denied

relief in 1998.14 In 1999, the United States Supreme Court again denied certiorari.15

       Later in 1999, Reed filed a petition for writ of habeas corpus in the federal district

court. He included his Batson claim that the trial judge and this Court had previously

rejected on direct appeal. The magistrate judge recommended that relief be denied and, on


       12
          In our direct appeal opinion, we stated: “When appellant called the trial court to the
stand, the trial court admitted it did not read the entire record of the voir dire, that it had only
reviewed the transcript of the voir dire of the five veniremembers in question.” Slip op. at 24.
The defense did not ask the trial judge to read the rest of the voir dire record and did not ask him
to make any comparative analysis of the reasons proffered by the prosecution. The defense did,
however, make a supplemental post-abatement claim that the trial judge erred in failing to make
a comparable analysis which this Court rejected as it was not preserved in the trial court. Id. at
26-27. However, this Court did note that the prosecutor “indicated that there were not single
factors that stood alone in his, or [his fellow prosecutor’s], decisions to exercise peremptory
strikes on the five veniremembers. He explained it was the combination of beliefs and answers,
including how far along he was in voir dire, that led him to exercise peremptory strikes. This
mix of factors does not lend itself to simplistic disparate treatment analysis.” Id. at 29 n.8.
       13
            Reed v. Texas, 516 U.S. 1050 (1996).
       14
          Ex parte Reed, No. 38,174-01 (Tex. Crim. App. Sept. 16, 1998) (not designated for
publication).
       15
            Reed v. Texas, 526 U.S. 1021 (1999).
                                                      State of Texas Ex Rel. Craig Watkins Page 8

February 19, 2003, the district judge agreed.            Reed filed a motion to disqualify the

magistrate, which was granted, and the Fifth Circuit later abated the case for a new federal

district judge to reconsider Reed’s claims. That judge denied all of Reed’s claims on July

26, 2005, but he granted a Certificate of Appealability on the Batson claim.

       Three years later, the Fifth Circuit concluded that, based upon Miller-El v. Dretke,16

an intervening 2005 decision by the Supreme Court, Reed was entitled to relief on his Batson

claim.17 Miller-El allowed the federal reviewing courts to use a comparative analysis of the

voir dire of all of the prospective jurors in analyzing a state-court Batson claim even though

the state trial judge had never been requested to do so and the state court had not done so on

direct appeal.18 The Fifth Circuit noted that although “we do not relish adding a new chapter

to this unfortunate story more than thirty years after the crime took place, we conclude that

the Constitution affords Reed a right to relief.”19 On January 12, 2009, the Fifth Circuit

ordered that Reed be released or retried on the 1978 capital murder charges.

                                                II.

       In his pretrial motion, Reed complains that the State should not be allowed to seek the

death penalty in the retrial because it was the State’s fault that it took thirty years for the




       16
            545 U.S. 231 (2005).
       17
            Reed v. Quarterman, 555 F.3d 364, 370-82 (5th Cir. 2009).
       18
            Miller-El, 545 U.S. at 241 & n.2.
       19
            Reed, 555 F.3d at 382.
                                                     State of Texas Ex Rel. Craig Watkins Page 9

appellate orbit to play itself out in his favor and, in the meantime, some potentially mitigating

evidence has become unavailable. Some witnesses have died and some records from his

childhood have been destroyed or lost.             Reed argues that, “in the unique factual

circumstances of this case, no verdict imposing a death sentence could satisfy the exacting

standard of reliability imposed by the federal constitution.”20 His due process rights were

violated because he could no longer mount a full defense and his attorneys could not provide

effective assistance of counsel because, even with a diligent investigation, they could not

bring forward mitigating evidence that no longer exists.

       After several evidentiary hearings about the unavailability of certain witnesses and

records, the trial judge granted Reed’s motion. He signed a fifty-two page order that

concluded:

       Applying all of the facts found by the Court to the legal conclusions above, the
       Court concludes that the Defendant’s defense team cannot conduct a
       constitutionally adequate mitigation investigation and that the State must
       therefore be precluded from seeking death in his trial.21

       For legal authority, Reed relied upon a purported unpublished ruling by a Philadelphia

trial court in Commonwealth of Pennsylvania v. Wilson. But Reed attached only the

Pennsylvania defendant’s motion for reconsideration, which was apparently filed after the

trial judge had originally denied the defense motion to preclude a capital-murder retrial. We



       20
            Response in Opposition by Real Party in Interest at 20.
       21
         Trial Court’s Findings of Fact and Conclusions of Law Regarding the Defendant’s
Motions to Preclude the Death Penalty at 51.
                                                  State of Texas Ex Rel. Craig Watkins   Page 10

are unable to find any further rulings or appellate decisions in that case, but an unpublished

Pennsylvania trial court ruling is not precedential authority in any event.

       The State argues that the trial judge lacked any legal authority to grant Reed’s motion

to preclude the State from exercising its discretionary right to seek the death penalty in this

retrial. The State also argues that this very same due-process claim was rejected in 2007 by

the Fifth Circuit in one of Reed’s previous federal appeals.22 The State further argues that

the trial judge has, under State of Texas ex rel. Lykos v. Fine,23 unlawfully ruled upon the

adequacy of Reed’s mitigation case before he has been tried, convicted, or sentenced.

       Based upon the filings that are before us, we conditionally grant the State mandamus

and prohibition relief because it has established both that (1) it has no other adequate legal

remedy; and (2) it has a “clear right to the relief sought” and the merits of its legal position

are “beyond dispute.” 24

A.     No Adequate Remedy at Law

       Here, as in Lykos v. Fine, the State argues that it has no adequate remedy at law to

correct what it contends is a legally erroneous and unauthorized pretrial advisory ruling

precluding the State from seeking the death penalty in this case.25 As we have explained, the




       22
            See Reed v. Quarterman, 504 F.3d 465, 484-88 (5th Cir. 2007).
       23
            330 S.W.3d 904 (Tex. Crim. App. 2011).
       24
            Lykos v. Fine, 330 S.W.3d at 907.
       25
            See id. at 913.
                                                 State of Texas Ex Rel. Craig Watkins   Page 11

State “cannot appeal such a ruling because there is no statutory provision to allow the State

to appeal such a pretrial advisory ruling.”26 Article 44.01 simply “does not authorize the

State to appeal from a pretrial ruling on a possible punishment issue that fails to dismiss any

part of the actual indictment,”27 and the judge’s order in this case does not purport to dismiss

any portion of the indictment. Thus, here, as in Lykos v. Fine, we conclude that a writ of

mandamus or prohibition is an appropriate vehicle to review the propriety of Reed’s pretrial

motion and the trial judge’s order.28

B.     A Clear Right to Relief

       As in Lykos v. Fine, the defendant in a pending capital-murder prosecution is

attempting to prevent the State from seeking the death penalty via a pretrial evidentiary

hearing and ruling.29 As in Lykos v. Fine, Reed is seeking a declaratory judgment that if he

goes to trial, and if he is found guilty, then it would violate his constitutional rights for the

State to even seek the death penalty as a sentence. Unlike the situation in Lykos v. Fine,

however, Reed is not attacking the constitutionality of the Texas death-penalty statute, either

facially or as applied. His claim is based solely upon specific historical facts unique to him

unrelated to Article 37.071: He did not obtain relief in the appellate courts for thirty years,




       26
            Id.
       27
            Id. at 914.
       28
            Id. at 916.
       29
            Id.
                                                   State of Texas Ex Rel. Craig Watkins   Page 12

and, because of this lengthy delay, he has lost access to certain witnesses and documents that

might have assisted him in a punishment mitigation case.

1.     The Due-Process Claim

       The problem with Reed’s legal position is that the United States Supreme Court has

not recognized a due-process claim that would preclude a retrial (or preclude the availability

of a particular punishment) after a lengthy delay on appeal. The Fifth Circuit noted this lack

of constitutional authority when it rejected Reed’s same claim in 2007. There, Reed claimed

that “he was denied due process by the extended delay in the Texas Court of Criminal

Appeals’ resolution of his direct appeal.” 30

       Of course, if this Court had resolved his direct appeal earlier (say in 1985 before

Batson was decided), then his Batson claim would have been rejected out of hand because

that Supreme Court ruling had not yet made new constitutional law. And, if Reed’s direct

appeal were not still pending at the time Batson was decided, he also could not have obtained

relief via a later writ of habeas corpus.31

       Similarly, if this Court had resolved his direct appeal before the 1991 Supreme Court

decision in Powers, which changed the underlying Batson rationale and focus from the

defendant to the prospective jurors and allowed white defendants to assert a Batson claim


       30
            Reed v. Quarterman, 504 F.3d at 484.
       31
          See Teague v. Lane, 489 U.S. 288, 311-16 (1989) (defendant whose conviction became
final prior to Batson decision could not obtain relief on habeas corpus; the “new” constitutional
rule set out in Batson is not to be applied retroactively on habeas corpus collateral attacks
because it is not a “bedrock procedural element”).
                                                  State of Texas Ex Rel. Craig Watkins    Page 13

when members of any distinct racial group are struck on the basis of race, Reed would not

have been able to take advantage of that new aspect of Batson.

       And finally, if Mr. Reed’s appeals had been completed before the Supreme Court

decision in Miller-El in 2005, allowing federal reviewing courts to make a “comparative

analysis” of all jurors even though the state trial judge was never asked to do so, he could not

have ultimately obtained relief under that 2005 decision.

       Mr. Reed’s trial and appellate attorneys should be commended for both their

prescience and diligence over the long haul, but it is only because the United States Supreme

Court changed the constitutional landscape over the almost thirty years that his conviction

was on appeal that Mr. Reed ultimately obtained a new trial. Had the appellate process

worked without delay, Mr. Reed would not be getting a second bite of the apple. In sum, this

is not an instance in which the State intentionally ignored or flouted established law to obtain

a conviction. This is not a case in which the trial judge ignored then-existing law. Indeed,

the trial judge said that he did not have the legal authority to ask the prosecutor to explain the

basis for his peremptory challenges (and he was legally correct in making that statement in

1983), but invited defense counsel to show him a case that gave him such authority.32 The



       32
          The experienced trial judge told defense counsel: “I’m not aware of any Texas law or
even Fifth Circuit law that permits me to make the State state its reasons for exercising a
peremptory challenge. . . There are Texas cases which indicate that the Defense can establish
that the State is exercising its challenges in a discriminatory manner and it may be error—I didn’t
read all of those cases but I did read a couple of them and, for whatever value it is, those
appeared to involve a black defendant and excluding black jurors. If the record doesn’t show it, I
think the evidence is that Mr. Reed is, of course, a white male.”
                                                   State of Texas Ex Rel. Craig Watkins     Page 14

present situation exemplifies the problems when the parties and judge try a case under then-

existing law only to see that law undergo dramatic changes in the fullness of time. But,

fortunately for Mr. Reed, he doggedly persevered with his various state and federal appeals

until the law changed sufficiently that he was entitled to a new trial.33

       But he is not entitled to more relief than a new trial. As the Fifth Circuit noted in

rejecting Mr. Reed’s due-process claim, “there is no Supreme Court decision holding that

excessive delay in a direct appeal is a violation of the Due Process Clause of the United

States Constitution.”34 In his motion and briefs to both the trial court and to this Court, Mr.

Reed has not cited a single Texas or federal case in which the State has been precluded from

seeking the death penalty (or any other specific punishment) based on delay in obtaining an




       33
          The federal district judge, in rejecting Mr. Reed’s due process claim based on appellate
delay, also noted that the delay had helped, not hindered, him in his Batson claims. See 504 F.3d
at 485.
       34
          Id. The Fifth Circuit did note that several federal circuits have opined that “excessive
appellate delay” could violate the Due Process Clause. Id. at 486. For example, in Cody v.
Henderson, 936 F.2d 715, 718 (2d Cir. 1991), the Second Circuit stated,
        The Supreme Court has not yet directly addressed the issue of whether the
        Constitution guarantees a speedy criminal appeal, once an opportunity for an
        appeal is provided. The lower federal courts, however, have grappled with the
        question, and it is now clear in this circuit that substantial delay in the state
        criminal appeal process is a sufficient ground to justify the exercise of federal
        habeas jurisdiction.
In Cody, the court found that the nine-year delay in the resolution of the state appeal (primarily
because the court reporter failed to create a transcript of the trial) raised a cognizable claim in a
federal habeas corpus proceeding. However, the normal remedy for such a due-process violation
is an order requiring the state court to resolve the appeal expeditiously. Id. at 721.
                                                  State of Texas Ex Rel. Craig Watkins     Page 15

ultimately successful appeal.35 Indeed, the Supreme Court, in the context of a speedy trial

claim, has stated that “[a] defendant with a meritorious appeal would bear the heavy burden

of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly

unjustifiable delay by the appellate court.”36 Reed has not shown that the delay occasioned

by his ultimately successful appeal was unjustifiable. He prevailed precisely because of that

delay.37

2.     Unavailable Evidence Claim

       Reed argues that (1) he has suffered a Sixth Amendment violation of his counsel’s

investigative function because, despite their remarkable diligence, they have determined that

some possibly mitigating evidence is no longer available; (2) his counsel’s inability to mount


       35
          See Bell v. State, 938 S.W.2d 35, 53 (Tex. Crim. App. 1996) (capital murderer’s retrial
and re-sentencing after twenty years on death row did not violate Eighth Amendment; “any
delays have resulted from appellant’s legitimate entitlement to the benefits of appellate review of
his death sentence. The existence of delays in appellant's case have arguably been necessary to
ensure that his conviction and sentence are proper and not inhumane. Although the federal
constitution protects citizens against State abuses, it does not and cannot protect them against
those costs which are necessary and inherent in the exercise of the rights it guarantees.”). Justice
Thomas has stated, “I am unaware of any support in the American constitutional tradition or in
[the Supreme Court’s] precedent for the proposition that a defendant can avail himself of the
panoply of appellate and collateral procedures and then complain when his execution is delayed.”
Knight v. Florida, 528 U.S. 990, 990 (1999) (Thomas, J., concurring).
       36
          United States v. Loud Hawk, 474 U.S. 302, 316-17 (1986) (“‘Having sought the aid of
the judicial process and realizing the deliberateness that a court employs in reaching a decision,
the defendants are not now able to criticize the very process which they so frequently called
upon.’”) (quoting United States v. Auerbach, 420 F.2d 921, 924 (5th Cir. 1969)).
       37
         Courts that have considered a “speedy appeal” issue on a writ of habeas corpus have
focused on whether the delay rendered the convicted person’s appeal nothing “more than a
meaningless ritual.” See, e.g., Chatman v. Mancill, 626 S.E.2d 102, 111 (Ga. 2006). The delay
in Reed’s case did not render his appeal a “meaningless ritual” because he prevailed.
                                                   State of Texas Ex Rel. Craig Watkins     Page 16

a complete defense based upon the present availability of all potential mitigating evidence

violates the Eighth Amendment; and (3) the federal constitution demands consideration of

mitigating evidence and without evidence of Reed’s childhood and youth no reliable

sentencing verdict is possible.

       The State argues that its writ petition “is not about Reed’s case in mitigation. It is

about whether a trial court may preclude the death penalty for a death-eligible offense based

upon a contingency.” That contingency is the assumption that Reed would be found guilty

of capital murder, that a jury would find, beyond a reasonable doubt, that he would still be

a future danger, and that, because some witnesses and records from his childhood and youth

are unavailable, a hypothetical jury would not answer the mitigation question in his favor.

       Both the State and Reed rely upon State v. Azania,38 a decision by the Indiana

Supreme Court that is analogous to the present case. In Azania, the defendant was convicted

of a 1981 capital murder. The state supreme court set aside the recommendations of two

juries that Azania should receive the death penalty. The trial court then ruled that, given the

twenty-five year appellate delay in the case, Azania’s constitutional rights to a speedy trial

and due process would be violated if the State continued to seek a death sentence.39 The

Indiana Supreme Court, in an interlocutory appeal by the State,40 disagreed and found that


       38
            865 N.E.2d 994 (Ind. 2007).
       39
            Id. at 996.
       40
          Indiana law apparently permits such an interlocutory appeal by the State as the court
simply stated that the case was before it “on the State’s appeal” without further discussion of its
                                                   State of Texas Ex Rel. Craig Watkins      Page 17

“neither the delay nor any prejudice that Azania may suffer from it violates his constitutional

rights.”41 Thus, the State could continue to seek the death penalty.

       The Court noted that Azania’s claim appeared to be a “novel” one in capital litigation,

but it noted that two other state courts had rejected similar claims with little discussion.42

The Indiana Supreme Court noted that delay “‘may work to the accused’s advantage,’”

especially in capital litigation.43     The court held that, because most of the delay was

occasioned by Azania’s appeals (which he bore the burden of going forward with) and he

made no showing that the State affirmatively “hampered his ability” to prosecute those

appeals, it would not attribute any delay in the appellate process to the State.44

       Azania, like Reed, claimed that the twenty-five-year delay had resulted in the




jurisdiction. Id. at 997. See also State v. Lewis, 883 N.E.2d 847, 851 (Ind. Ct. App. 2008)
(State’s interlocutory appeal permitted by IND . R. APP . P. 14).
       41
            Id.
       42
          Id. at 999 (citing Hitchcock v. State, 673 So.2d 859, 863 (Fla. 1996), and Moore v.
State, 436 S.E.2d 201, 202 (Ga. 1993)); see also Rose v. State, 787 So.2d 786, 805 (Fla. 2001)
(rejecting capital-murder defendant’s claim that his death sentence on a retrial was cruel and
unusual punishment because of the lengthy delay between his first death sentence and the retrial
some 20 years later).
       43
          Id. (quoting Barker v. Wingo, 407 U.S. 514, 521 (1972)). The court explained that the
appellate process in capital litigation “‘takes so long because there is a concerted effort afoot to
slow it down, and because our legal system requires scrupulous review before a death sentence
can be carried out.’” Id. at 999-1000 (quoting Alex Kozinski & Sean Gallagher, Death: The
Ultimate Run-On Sentence, 46 CASE W. RES. L. REV . 1, 25 (1995)).
       44
            Id. at 1003.
                                                   State of Texas Ex Rel. Craig Watkins   Page 18

unavailability of important mitigation witnesses.45 But, as the court noted, many of the

State’s witnesses were also now unavailable, and the State bears the burden of proof at the

guilt stage, and it must also prove, beyond a reasonable doubt, the aggravating circumstances

during the punishment phase. While the unavailability of the defense witnesses and evidence

“may make it more difficult for Azania to defend against the State’s case, we find that it

creates far greater difficulty for the State to meets its burden of proof.”46 The Azania court

noted that the Supreme Court has said that “‘delay is a two-edged sword.                  It is the

Government that bears the burden of proving its case beyond a reasonable doubt. The

passage of time may make it difficult or impossible for the Government to carry out this

burden.’”47 The same is true in the present case.

       Reed offered significant mitigation evidence in the 1983 trial and, if the witnesses

who testified at that trial are presently unavailable, he may offer their former testimony.48

Reed argues that many of his school records, psychiatric records, and TYC records are no




       45
          Id. at 1006. Azania’s counsel noted that Azania’s mother and his aunt had both died, as
well as his prior spiritual advisor. “[M]any people with whom Mr. Anzania worked in the
community around public interest issues prior to his arrest cannot be found. Even if they could,
the value of their testimony concerning Mr. Azania’s achievements will be substantially reduced
because of the passage of time.” Id. at 1008.
       46
            Id. at 1009.
       47
            Id. at 1010 (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)).
       48
            TEX . R. EVID . 804(b)(1).
                                                   State of Texas Ex Rel. Craig Watkins    Page 19

longer available simply because of the passage of so much time.49 But that would likely be

true for any sixty-year-old defendant in a capital-murder trial. The fact that Reed might not

be able to present his mitigation case (if he is found guilty in the retrial) in precisely the form

he would prefer does not violate his constitutional rights.50

       The evidentiary hearings on Reed’s motion focused solely on evidence that Reed says

he cannot now present, not on what evidence was still available or what evidence is now

available that did not exist at the time of the 1983 trial. Nor did those hearings develop how

certain “missing” primary evidence could be presented in another form or through other

witnesses. To the extent that the trial judge’s factual findings are based on those evidentiary

hearings, they are incomplete and largely hypothetical.

       Furthermore, not all mitigation evidence is created equal.             While evidence of

childhood difficulties, a turbulent upbringing, youthful crimes and psychiatric diagnoses are

certainly relevant and admissible in the punishment phase of a sixty-year-old man (should

there be a verdict of guilty), that evidence might pale in significance to the evidence of more

recent behavior, beliefs, and attitudes. A young man with a long record of adolescent crime




       49
          There is no evidence in this case that the State intentionally destroyed these records in
bad faith so that they would not be available to Reed. See Arizona v. Youngblood, 488 U.S. 51,
57-58 (1988) (holding that the destruction of “potentially useful” evidence does not amount to a
due process violation without a showing that the State acted in “bad faith”).
       50
          See Valle v. State, 109 S.W.3d 500, 507 (Tex. Crim. App. 2003) (“The fact that [the
capital-murder defendant] was not able to present his [mitigation] case in the form he desired
does not amount to constitutional error when he was not prevented from presenting the substance
of his defense to the jury.”).
                                                  State of Texas Ex Rel. Craig Watkins   Page 20

(such as Reed had) may have to rely upon explaining the genesis and rationale for that

conduct and hope that the jury may sympathize with his incorrigibility. An older man may

show that he has changed his spots and is no longer a danger to others. For example, the

psychiatrists testified in the 1983 trial, that even a “sexually deviant” man with “anti-

personality disorder” would experience a violence “burnout” between the ages of thirty and

forty. Reed now has available evidence of the past thirty years in which his character may

have altered dramatically for the better. Evidence of present rehabilitation, redemption, and

remorse may be significantly more powerful mitigation evidence than tales of a troubled

childhood some forty to fifty years ago. Reed now has the opportunity to persuade the jury

that he has risen, like Phoenix from the ashes, and become a wholly different person than the

man he was in 1978.

       It is the State’s burden to prove that Reed would still constitute a future danger to

society, and that would be a heavy burden under these circumstances. Neither Reed nor the

State bear an evidentiary burden on the mitigation issue, and Reed may mount a most

compelling case for mitigation as a sixty-year-old man who has overcome his prior problems

and made some contribution to his society in the intervening years of reflection.51 Given the

diligence of his resourceful counsel, we do not doubt that he would be able, if necessary, to



       51
          Reed seems to assume that all of the presently unavailable evidence from his childhood
and youth would be mitigating, but that is not necessarily so. Indeed, given his extensive
criminal activities during his youth, it is quite possible that the unavailable evidence would, on
balance, be aggravating rather than mitigating. Sometimes remembrance of things past is not all
tea and madeleines.
                                                  State of Texas Ex Rel. Craig Watkins       Page 21

mount an effective mitigation case, and that a jury would make appropriate allowance for

records and witnesses that are no longer available.52

        More importantly, the issue of the adequacy of Reed’s mitigation case is not ripe for

review. The Supreme Court has held that the ripeness doctrine protects against “judicial

interference until a[ ] . . . decision has been formalized and its effects felt in a concrete way

by the challenging parties.”53 To decide whether an issue is ripe for adjudication, we must

“evaluate both the fitness of the issues for judicial decision and the hardship to the parties

of withholding court consideration.” 54

        The issue of the adequacy of Reed’s mitigation case is not “fit” for judicial decision

before it is presented. Here, a capital-murder defendant is seeking a pretrial declaratory

judgment that any mitigation case that he might mount would necessarily be inadequate and

therefore any prospective death sentence would, if it occurred, violate the Eighth


        52
             See Azania, 865 N.E.2d at 1009.

        At a new penalty phase trial, we are confident, Azania will be able to assemble a
        highly credible presentation of those aspects of his upbringing and community
        involvement that are entitled to mitigating weight. If he elects to present this
        evidence, we believe that the jury will make an appropriate allowance for the fact
        that his mother, aunt, and prior spiritual advisor are no longer living. And, of
        course, Azania will have the opportunity of presenting evidence of remorse, and
        the testimony of any current spiritual advisor and others as to his
        accomplishments and contributions while incarcerated.

Id. (internal citations omitted).
        53
         Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977).
        54
             Id. at 149.
                                                    State of Texas Ex Rel. Craig Watkins   Page 22

Amendment, the Sixth Amendment, and the Due Process Clause. “These assumptions are

simply not warranted before a jury has considered the evidence in the present case and

rendered a verdict.”55 We do not put the cart before the horse: “a defendant has no claim of

wrongful conviction or wrongful sentencing before he has even gone to trial.” 56 The

adequacy and efficacy of Reed’s mitigation case cannot be judged unless he has actually been

convicted of capital murder and sentenced to death.57 Any pretrial determination of that

mitigation case is necessarily hypothetical and unlikely to fairly reflect reality as it plays out

in an actual trial. As we explained in Lykos v. Fine,

       A trial on the merits is “the main event” in our American system of justice in
       which the prosecution and defense present evidence and do battle to reach a
       presumptively accurate and reliable result in each particular case. At that trial
       on the merits “[i]f a criminal defendant thinks that an action of the state trial
       court is about to deprive him of a federal constitutional right there is every
       reason for his following state procedure in making known his objection.” 58

       Finally, the dissent argues that Reed’s due-process claim is analogous to that

involving a pretrial challenge to an indictment based on a speedy-indictment claim. As Judge

Keasler aptly points out in his concurring opinion, this situation is not analogous to that




       55
            See Lykos v. Fine, 330 S.W.3d at 916.
       56
            Id. at 917.
       57
         See id. at 918-19 (noting that “[n]either trial judges nor judges on this Court sit as a
moral authority over the appropriateness of the death penalty. We can determine only whether it
has been constitutionally imposed by a jury after a specific conviction and sentence.”).
       58
            Id. at 919 (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).
                                                  State of Texas Ex Rel. Craig Watkins    Page 23

situation. In United States v. Marion,59 the Supreme Court noted that

       [T]he Government concede[d] that the Due Process Clause of the Fifth
       Amendment would require dismissal of the indictment if it were shown at trial
       that the pre-indictment delay in this case caused substantial prejudice to
       appellees’ rights to a fair trial and that the delay was an intentional device to
       gain tactical advantage over the accused.60

That is a two-pronged test: First, the defense must show at trial that the delay did, in fact,

cause substantial prejudice to his right to a fair trial;61 and second, the defense must show that

the government intentionally delayed its indictment for the purpose of gaining a tactical

advantage over the defendant.62 It is only after the defendant has shown actual–not possible

or potential–prejudice that adversely affected his defense, that the due process issue is ripe

for adjudication.63 As discussed above, Reed has not shown any actual and substantive

prejudice to his mitigation case because he has not yet presented it. Second, as a matter of



       59
            404 U.S. 307 (1971).
       60
            Id. at 324.
       61
           In Marion, the Supreme Court denied relief in the pretrial setting, but noted that the
defendants were not precluded from raising that claim post-trial. Id. at 326 (“Events of the trial
may demonstrate actual prejudice, but at the present time appellees’ due-process claims are
speculative and premature.”); see also United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977)
(“the District Court should have deferred action on the [defendant’s] motion to dismiss [for pre-
indictment delay] until after trial, at which time it could have assessed any prejudice to the
[defendant] in light of events at trial.”); United States v. Crouch, 84 F.3d 1497, 1516 (5th Cir.
1996) (en banc) (rejecting due-process claim of pre-indictment delay brought before trial on the
merits; “We are aware of no reported federal appellate decision since Lovasco that has sustained
a pretrial dismissal for preindictment delay where the statute of limitations had not run.”).
       62
            Marion, 404 U.S. at 324.
       63
         Lovasco, 431 U.S. at 789 (explaining Marion and stating that “proof of actual prejudice
makes a due process claim concrete and ripe for adjudication”).
                                                  State of Texas Ex Rel. Craig Watkins     Page 24

law, Reed cannot demonstrate that the State intentionally or purposely delayed the appellate

process in this case for the purpose of gaining a tactical advantage over him in a retrial.64 It

was Reed, not the State, who invoked those appellate procedures, and there has been no

showing that the State acted in bad faith in its appellate duties.65 It cannot be persuasively

argued that the State could have, or should have, predicted the dramatic changes in the law

concerning peremptory challenges between 1983 and 2005. The pre-indictment delay cases

provide no support for addressing or ruling on Reed’s due-process claim in a pretrial setting.

       In sum, Reed has failed to offer any legal precedent or lawful authority which would

support a pretrial declaratory judgment that the State should be forbidden from seeking the

death penalty in a capital-murder trial when some potentially useful records and witnesses

are no longer available.66 Because there is no basis under Texas law to conduct a pretrial


       64
           See id. (“proof of prejudice is generally a necessary but not sufficient element of a due
process claim, and . . . the due process inquiry must consider the reasons for the delay as well as
the prejudice to the accused.”); see also Crouch, 84 F.3d at 1514 (“[F]or preindictment delay to
violate the due process clause it must not only cause the accused substantial, actual prejudice, but
the delay must also have been intentionally undertaken by the government for the purpose of
gaining some tactical advantage over the accused in the contemplated prosecution or for some
other impermissible, bad faith purpose.”); Spence v. State, 795 S.W.2d 743, 749-50 (Tex. Crim.
App. 1990) (rejecting, after trial and sentencing, capital-murder defendant’s claim of pre-
indictment delay; defendant failed to prove “intentional delay that was designed to give the State
a tactical advantage over him” and failed to show what harm he suffered as a result).
       65
          See Crouch, 84 F.3d at 1514 & n.23 (noting that it need not attempt to catalogue all
possible “impermissible, bad faith purposes of intentional delay,” but suggesting a purpose to
“harass” or render evidence favorable to the defense unavailable would be included, while delay
to affirmatively strengthen the government’s case would not be).
       66
          Reed also cites United States v. Quinones, 131 F.3d 49 (2d Cir. 2002), for the
proposition that a trial court may determine, in the pretrial setting, whether the government could
seek the death penalty. But in that case, the defendant mounted a facial attack upon the federal
                                                   State of Texas Ex Rel. Craig Watkins    Page 25

evidentiary hearing to determine the adequacy of a mitigation case in a capital-murder

proceeding, we conclude that the trial judge does not have legal authority to conduct such a

hearing or make such a declaratory judgment. As in Lykos v. Fine, “[h]e is acting beyond the

scope of his lawful authority.” 67

       Therefore, the State has demonstrated a clear right to relief. We conditionally grant

a writ of mandamus68 and direct the Respondent, the Honorable John Creuzot, to vacate and

withdraw his order of April 20, 2011 precluding the State from seeking the death penalty in

this case. The writ of mandamus from this Court will issue only if the Respondent fails to

comply with this Court's directive.

Delivered: July 27, 2011
Publish




death penalty statute, obviating reliance upon any pretrial evidentiary factfinding. Id. at 58. The
Second Circuit decided that this pure legal question was ripe for review precisely because it did
not depend upon any facts that might be introduced at trial. Then, reviewing the legal issue de
novo, it reversed the trial court and held that the government was entitled to seek the death
penalty. Id. at 70.
       67
            330 S.W.3d at 919.
       68
          Because we conditionally grant a writ of mandamus, we dismiss the State’s petition for
a writ of prohibition.
