David Brooks’ Dirty Hit On Ted Cruz: How Pundits Lose Credibility

That's some role model you've chosen there, David

That’s some role model you’ve chosen there, David

…or at least deserve to.

Here is how New York Times columnist David Brooks begins his character evisceration of Ted Cruz:

“In 1997, Michael Wayne Haley was arrested after stealing a calculator from Walmart. This was a crime that merited a maximum two-year prison term. But prosecutors incorrectly applied a habitual offender law. Neither the judge nor the defense lawyer caught the error and Haley was sentenced to 16 years.

Eventually, the mistake came to light and Haley tried to fix it. Ted Cruz was solicitor general of Texas at the time. Instead of just letting Haley go for time served, Cruz took the case to the Supreme Court to keep Haley in prison for the full 16 years.

Some justices were skeptical. “Is there some rule that you can’t confess error in your state?” Justice Anthony Kennedy asked. The court system did finally let Haley out of prison, after six years.”

From this, Brooks goes on to conclude…

…Cruz’s behavior in the Haley case is almost the dictionary definition of pharisaism: an overzealous application of the letter of the law in a way that violates the spirit of the law, as well as fairness and mercy….Cruz’s speeches are marked by what you might call pagan brutalism. There is not a hint of compassion, gentleness and mercy. Instead, his speeches are marked by a long list of enemies, and vows to crush, shred, destroy, bomb them.

Cruz’s behavior in the Haley case [Dretke v. Haley] does nothing of the sort. The columnist intentionally—I’m assuming that he read the case, now—misrepresented what the case was about, how the court reacted, and what Cruz’s ethical duties were regarding it. As it happens, I share much of Brooks’ dislike of Cruz’s rhetoric. This case, however, tells us nothing about Cruz’s character. It tells us that that as Solicitor General of Texas, Cruz did his job, which was to represent his client’s position.

James Taranto, the pretty damn brilliant Wall Street Journal blogger, wit and conservative pundit, nails Brooks to the wall. He writes in part…

The tell—what led us to think Brooks probably wasn’t shooting straight here—is his unexplained segue from the skepticism of “some justices,” including Kennedy, to Haley’s release thanks to “the court system.” We inferred that Cruz had won the case, and we inferred correctly. The vote was 6-3, with Kennedy among the dissenters. The majority opinion was written by Justice Sandra Day O’Connor and joined by, among others, Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.

If arguing against Haley’s legal position “reveals something interesting about Cruz’s character,” what does deciding against it reveal about the character of O’Connor, Ginsburg, Breyer and the others in the majority? Don’t worry, there won’t be a test. The answer is nada; the question is rhetorical and demonstrates the falsity of Brooks’s premise.

That is not the limit of Brooks’s deception, which begins in the very first paragraph with the assertion that “prosecutors incorrectly applied a habitual offender law.” We naturally read that to mean Haley was doing time for a crime he didn’t commit—that he was harshly sentenced under a “three strikes” law but had been convicted for only one or two prior felonies.

In fact, Haley did have the requisite two prior felony convictions. From the syllabus: “As it turned out, the evidence presented at the penalty phase showed that respondent [Haley] had committed his second offense three days before his first conviction became final, meaning that he was not eligible for the habitual offender enhancement.”

Thus the error here was procedural, not substantive: Haley had been duly convicted of three felonies, but because of an accident of timing, the second one should not have counted under Texas law. He was, in other words, trying to get off on a technicality.

That is not to say he should not have. The law is the law, and there was no dispute that Texas officials erred. They too were pleading a technicality: “that respondent had procedurally defaulted his sufficiency of the evidence claim.” The question before the court was whether “the actual innocence exception applies to noncapital sentencing procedures involving career offenders and habitual felony offenders.”

Well, that’s not quite right either, but it’s good enough to expose Brooks. (I have read the decision.) First, though Brooks deceitfully suggested otherwise to make Haley look like Jean Valjean, the respondent had committed three felonies…he just committed #2 so fast that it technically happened before #1 was official, so it shouldn’t have counted. When a felon is committing crimes that close together, the term “habitual offender” couldn’t be more appropriate. The question is whether this was nonetheless a technicality that made application of the third strike law impossible, and it was. But Haley’s defense attorney missed it. He didn’t raise the technicality, so one  question became whether it was waived. To appeal in trials, a lawyer has to be able to argue that the court or the prosecution did something wrong, while the defense was doing everything right. (Or that the defense was incompetent, which, we find in the opinion, was tried as an argument and failed.) That was not the case here. From the majority opinion..

If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent’s trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18, 1991, and attempted robbery on September 9, 1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991–three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State’s witness or to put on any evidence.

     The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of 16½ years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent’s conviction and sentence; the Texas Court of Criminal Appeals refused respondent’s petition for discretionary review.

     Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87-88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent’s related ineffective assistance of counsel claim, saying only that “counsel was not ineffective” for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent’s state habeas application. Id., at 109.

     In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118-119; id., at 122, 124, 126-127. The State conceded that respondent was “correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140. Rather than agree to re-sentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal.

Both sides are bound by iron-clad procedural rules so the system can be orderly. Non-lawyers, like Brooks, seem to think that it’s the state’s attorney’s duty to just be judge and jury and fix everything, but that’s not his role. Texas has an interest, and so does society, in making sure that defendants don’t get to change the rules as they go along. I’m not certain, having read all the opinions, that the Court got it right, but Cruz cannot be criticized for being an advocate (too good an advocate, I guess Brooks would say) for the position that if a defendant waives a defense in trial and on direct appeal, that defense is gone.There are many troubling “actual innocence” cases, but not this one. Haley was “actually innocent” of the three strikes law, not because he was actually innocent of any of the three felonies charged, but because a timing technicality made the felony in the middle ineligible. There were no allegations that the prosecutor hid this fact, or that the State wouldn’t have dropped the three strikes charge had it been discovered at trial. Cruz took the position since the technicality wasn’t raised, and since Haley’s conduct didn’t make applying the “habitual offender” label unjust, the jury’s verdict should stand. Of course, the legal form this position took before the Supreme Court is far more complicated than that. A sample, from the opinion..

Contrary to the dissent’s view, see post, at 2 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be “clear” or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals…

The point is that there was were legitimate procedural legal issues in dispute,  that needed to be determined, and that needed capable advocates pro and con.. Haley was a repeat felon, and Texas had a legitimate interest in keeping him locked up as long as the jury had decided was appropriate, considering all of his crimes. The procedural rules appeared to allow that, with an unsettled interpretation requiring affirmation or rejection. That Cruz, in his role as solicitor general took the position that the original sentence should stand doesn’t make him brutal, or overzealous. It makes him an ethical lawyer.

“Brooks’s treatment of this case is either deliberately deceptive or recklessly ignorant,” writes Taranto.  “It may raise questions of character, but not Ted Cruz’s.”

Bingo.

Let’s look at what Brooks did:

1. He misrepresented the facts, making Haley appear like an innocent man because he performed his second felony so fast his first one hadn’t caught up to it, the little angel.

2. He oversimplified the issues, when it was the complex nature of the issues that made the Supreme Court take the case.

3. He cherry-picked one question in oral argument that perhaps didn’t even represent the questioning justice’s opinion, and made sure it was one of the conservative justices, so Cruz’s advocacy would appear extreme.

4. He didn’t mention that the Court, and not by a slim margin, agreed with Cruz’s position, with liberal justices—you know, the nice ones—siding with him.

That’s cheating. It’s dishonest…sloppy journalism and nasty punditry. Brooks  knows that virtually none of his readers will check the case, because they trust him. More importantly, they don’t like Ted Cruz, so confirmation bias takes over. Bravo to Taranto for sniffing out the rot.

Now we know that David Brooks, once the scholarly, mild-mannered, token moderate among the Times’ op-ed stable of angry left attack dogs, has no more objectivity or integrity than the worst of his stable-mates. I don’t support Cruz, whom I regard as dangerous, any more than I support Trump, Hillary, Sanders, or Carson, all unqualified or unfit to be President, or both. When I am making that case, however, I am ethically bound to use real evidence, which with these bozos is just lying around for someone to pick up. Like the corrupt police detective in “Touch of Evil,” who frames those whom he knows are guilty, Brooks and others who manufacture proof for their uncritical fans are worse than those they try to destroy.

If Brooks doesn’t apologize for his column—an ethical newspaper would make him—then he deserves to join Brian Williams, Bill O’Reilly, Rolling Stone and others on the rapidly growing list of liars masquerading as journalists.

36 thoughts on “David Brooks’ Dirty Hit On Ted Cruz: How Pundits Lose Credibility

  1. Jack,
    In point number one, you accidentally wrote “his” as “nis.” Not being nit-picky, but I remember you saying you hated silly mistakes. Hope all is well the New Year.

    -Neil

    • See, we all make them. It should have written “Hope all is well [in] the New Year.” That said, the sentiment remains the same.

      -Neil

        • Indeed. A keyboard is a cruel mistress. I was writing a reply to a summary judgment motion. I was listing undisputed facts. In paragraph 3, I couldn’t get the sentence to read how I wanted, so I just typed, “Rush is, in fact, the greatest band on the planet”, knowing I would return to the paragraph later to fix it. Well, fate being a crueler mistress, decided that that statement should stand. I filed the response with that declaration, which clearly is incontrovertible. The judge was amused her case manager is a big Rush fan. After taking the bench, she said she had read the motion, the response and the ‘undisputed facts’ (giving me a sideways glance and a nod), and proceeded to rule against me. She even declared that she agreed with my fact paragraph 3 and left the bench. It was fun, even though I got obliterated.

          jvb

  2. I really don’t get that David Brooks is a moderate. I think crypto-progressive would be a better description. His distortion of facts re: the habitual felon Michael Wayne Haley and vitriol toward Cruz in his column: Exhibit A.

      • Apparently Kathleen Parker doesn’t understand Christianity very well in her mocking of Ted Cruz. Maybe she should have stayed with Cosmo.

        • Keeping a man in prison even though you know he hasn’t met the elements of the charge that is keeping him there, doesn’t speak very well of Ted’s grasp of Christianity either – unless of course, if HE were imprisoned, he would want the prosecution to do everything in their power to extend his time in prison.

          (do unto others…)

          • No. This has nothing to do with Cruz, or his attitudes, or desires. Why oh why do non-lawyers have such a hard time with this concept? He was correctly defending a principle on behalf of his client, the state. That’s his job. And your comment suggest you didn’t read the post. The defendant DID meet the elements completely—he just lucked out in the timing. That has no reflection on his actual guilt at all. He was, in fact, guilty as hell, and nobody disputed it.

      • Jack,
        I’ve never fully understood what you so dislike about Ms.Parker. Care to elaborate (in a sentence or two)?

        Sincerely,
        Neil

        • Sure…I’ll let her do it, in fact. Her last column was classic:

          “This is unfortunate. Clinton was brave to say those things in 1995 in Beijing and she truly has influenced and improved the lives of millions of women around the globe. For these achievements to be tarnished by Trump is unfair and, one might say, Clintonesque. If chickens really do come home to roost, the Clintons can’t pretend to be bystanders to the idiom. It is a fact of recent history that women’s rights have been selectively defended by Hillary Clinton’s vast, left-wing support group, especially when it has come to her husband’s extramarital proclivities.”

          Wait, Clinton was brave to support women’s rights, but they have been selectively defended by “Hillary Clinton’s vast, left-wing support group, which is to say, Hillary herself. So is it fair or foul to raise Bill’s predator proclivities and his wife’s enabling? Both, of course. That’s Parker. She never makes a call, just explains why all positions are not exactly right. She defines the term “equivocator.”

    • On other words, “he doesn’t agree on a few things with me, which must mean he’s a flaming liberal.”

      Like when a liberal says one thing that’s moderate, they’re suddenly a Republican to progressives.

      That’s dumb.

      • Commentators don’t merit a free pass because they are commentators. Rhetorical question: Do they live in a fantasy world?
        a free pass

        • Al Veerhoff said, “Commentators don’t merit a free pass because they are commentators.”

          I think you are doing a bit of reading that non existence stuff between the lines; there was nothing I wrote that said or implied such a thing!

          Al Veerhoff said, “Do they live in a fantasy world?”

          I’m going to answer you rhetorical question with a non-rhetorical direct question; Who the heck is the “they” you speak of?

          Al Veerhoff said, “a free pass”

          Absolutely no one get’s a free pass, not you, not Jack, not I, no one!

          Are there any more questions I can help you with Al?

  3. It’s not like Cruz got a rapist off on a technicality and then laughed about it on a radio show. That would REALLY be sinister.

      • I’m missing the reference… But I’m going to take a shot in the dark. We’re going to be talking about a lefty… Has to be a lawyer… Should be high enough of a profile that people would know… Shortlist would be Obama, Clinton or Clinton… Obama was a constitutional lawyer, so I doubt he’d be defending a criminal case… Bill would never get away with that. But Hillary has a vagina, so she could. Hillary Clinton. Final answer.

  4. Unethical political hacks from the political left will take this and run with it even if there is an apology and Trump will likely use it in some way shape or form.

    In conversations over the years with an old Army buddy, he said, (I’m paraphrasing a bunch of conversations) that the political left intentionally state accusations full lies, innuendo, and smears about Conservatives. The intellectual left knows full well that once it has been said, it can’t be unsaid and therefore it can be used as fact; previously stated lies can then be presented ad nauseam as evidence of the root evil of Conservatives. It appears that, in the minds of Liberals, facts are anything they can be reproduce by directly quoting and/or sharing a link, they know that their sheeple will swallow it whole without checking the validity of anything. The goal is to smear any and all Conservatives, truth takes a back seat to smearing, everything regardless of the whole truth is fair game.

    There is some real truth to the moral bankruptcy my friend points out, you can read more of his opinion regarding this in this thread over at madison.com.

    I’ve adopted a few of his phrases over the years, I especially like his phrase that the political left wants to “win by default and not based on their ideology”.

    • Surely you are not trying to claim that smearing, exaggerating and misrepresenting the opposition is the sole province of liberals or progressives. Surely you have noticed the same practice amongst Conservatives– in full, robust, daily use nationwide?

  5. Ugh. I am seeing Brooks’ incompetent, lazy hit piece being shared on Facebook and picked up by lefty sites like the Daily Kos. someone linked to my post, all of two DK readers have bothered to check that facts. This isn’t a matter of opinion: Brooks’ characterization of what Cruz did is biased and wrong. I’m deciding whether to annoy my facebook friends and post my own link every time one of them refers to Brooks’ article. Should I bother? I object to Cruz in many ways, but the DK titles its article “Every Voter Need To Know This About Ted Cruz”—you know, they need to know a falsity.

  6. Let me start by saying that not been admitted to the bar in Texas, I’m not an attorney at all. However, I am fairly well-versed in the law.

    In a criminal trial there are two opposing sides: the defense, who has the responsibility to defend their client by any means permitted by law; the prosecutor represent the State, they have TWO responsibilities, to present evidence and arguments designed to ensure that justice is served for both the State and the defendant. The prosecution must disclose all of the evidence which they’ve gathered tho the defense. Among other things, they are responsible for not pursuing charges which they know, or should have known, that the defendant is not guilty of because the State knows or should have known that the actions of the defendant do not fulfill the elements of the crime.

    The fact that someone who has no legal training was able to prove that all of the elements needed to justify a finding himself to be ineligible for the 3 strikes penalties, speaks loudly. If he could find this, shouldn’t a team of professionals have found it?

    Once Cruz learned that the defendant was ineligible for the 3 strikes rule, he should have dropped the case – period. Aside from keeping someone in prison as long as possible, what purpose could be served? Until someone can answer that question, the Jean Valjean label fits.

    • I’m sorry, John: which part of this section did you not comprehend?

      the respondent had committed three felonies…he just committed #2 so fast that it technically happened before #1 was official, so it shouldn’t have counted. When a felon is committing crimes that close together, the term “habitual offender” couldn’t be more appropriate. The question is whether this was nonetheless a technicality that made application of the third strike law impossible, and it was. But Haley’s defense attorney missed it. He didn’t raise the technicality, so one question became whether it was waived. To appeal in trials, a lawyer has to be able to argue that the court or the prosecution did something wrong, while the defense was doing everything right.

      There was no allegation that the prosecution knew that three strikes didn’t technically apply, or that this was withheld from the defense. If that had been the case, Cruz would have been sanctionable, but it wasn’t. The issue before SCOTUS was whether the issue was waived and lost when not brought on appeal. Cruz should not have dropped the case: I wouldn’t have. In all respects, he was a habitual offender. The State had every reason to want him put away by the same logic of the three strikes law, but more important, the state, all states, had a stake in the waiver issue.

      And keeping a habitual criminal in jail as long as possible was the decision of the legislature. Cruz was, again, just zealously representing his client.

      The Golden Rule applies in many contexts, but not in criminal law.

  7. You write:

    Let’s look at what Brooks did:
    ….
    4. He didn’t mention that the Court, and not by a slim margin, agreed with Cruz’s position, with liberal justices—you know, the nice ones—siding with him.

    Well, if the Supreme Court agreed with Cruz’s position, that’s huge. That would be vindication of Cruz by no less an authority than the U.S. Supreme Court and prove Cruz was right all along. It would also paint Brooks as misleading for failing to mention something so important. Certainly sloppy journalism, as you point out.

    But, is that what actually happened? Um, I don’t think its quite accurate to say that “the Court agreed with Cruz’s position.” It is true the Supreme Court did not rule in favor of Haley, the convicted man. In fact the Supreme Court did vacate the Fifth Circuit Court decision that had been rendered in Haley’s favor — the decision that Cruz was appealing on behalf of Texas. It is therefore tempting to conclude that the Supreme Court must have “agreed with Cruz’s position.” But that is not what happened.

    At the outset it should be pointed out that Cruz conceded the sentence Haley had received was unlawful. This is from his oral argument (page 3) at the Supreme Court:

    Justice Kennedy: Can — can you tell me — I don’t want to derail the argument — you’ve conceded that this sentence is unlawful?

    Mr. Cruz: Yes, Justice Kennedy.

    What the case boiled down to was that Haley had an argument everyone agreed was a no-question-about-it winning argument (the sentence was unlawful) but in his first appeal in Texas (the “direct” appeal) Haley had failed to raise this winning argument. He had raised other arguments about what were essentially jury instructions, but these arguments did not succeed. As a result, Haley by not raising the unlawful sentencing issue at the first appellate opportunity, had forfeited (“defaulted on”) the right to argue the unlawful sentencing issue in subsequent federal court proceedings — unless there was some exception he could fit into. The exception Haley wanted to qualify for was the “actual innocence” exception. “Actual innocence” as used here does not simply refer to whether the accused really did the crime or not. Actual innocence can also apply to the sentence imposed for the crime. So a person could be guilty of having committed the crime yet if the sentence is illegal (for example the statute says this crime can get you 5 to 10 years yet you are sentenced to 20 years) the person would be actually guilty of the crime but “actually innocent” of the sentence imposed. The Court had fashioned a rule that none could still raise an argument in federal court — an argument not timely made (therefore defaulted) in the state courts — that he had been denied his Constitutional rights if the defendant could show there was some good excuse (“cause”) why the argument had not been raised when it should have been and that this failure had injured (“prejudiced”) the defendant. Then the Supreme Court had further refined its rule in capital punishment cases where defendant could prove he was “actually innocent” of the sentence, in which case the defendant could skip the “cause” requirement and therefore not have to show a good reason for failing to raise the issue before. However, this “actually innocent” exception had been limited to capital cases. The Circuit Courts of Appeal were split on whether this “actual innocence” exception was available to defendants in non-capital cases. Haley was arguing “actual innocence” should apply in his case and so he need not show cause for failing to raise it earlier; all he needed to show was he was innocent of the imposed sentence and the federal courts should be able to correct the situation. Cruz was arguing the “actual innocence” exception should not be extended, and that Haley had lost the opportunity to complain about his sentence. This was Cruz’s position, and it is laid out in detail in his brief in the section “Summary of The Argument” at pages 9 through 11.

    To sum up, as Cruz’s brief to the Supreme Court stated, (Petitioner’s brief, page i) that the exact issue before the Court was “whether the ‘actual innocence’ exception to the procedural default rule concerning federal habeas corpus claims should apply to noncapital sentencing error.” Cruz’s “position” was that the exception should not apply, and his whole brief pressed that position. Haley’s position was that is should apply and his brief pushed for that decision.

    What the Supreme Court actually did was to decline to agree with either Cruz or Haley. The Court said that it felt no need to decide which position was correct for the reason that there was another way to resolve the case. Haley had raised a separate issue in the federal district court and at the 5th Circuit Court of appeal (and for that matter in a Texas state court habeas corpus petition) — the issue of ineffective counsel. Basically Haley argued his lawyer should have spotted the issue about the sentencing and the timing of the events and had the lawyer done that he would not have been sentenced as a habitual felony offender. But neither of those two federal courts had ruled on Haley’s ineffective counsel argument because they both decided in Haley’s favor on the “actual innocence” exception to the general rule — so they felt no need to get into the ineffective counsel issue.

    It should also be noted that Cruz agreed that Haley had preserved (not defaulted on) his “ineffective counsel” argument. Cruz seemed to go further, that not only was Haley’s “ineffective counsel” argument still “alive”, but “alive and well.” From the oral argument:

    QUESTION (from the Court): In one of the proceedings, Texas did take the position that there — this was not ineffective assistance of counsel. The reply brief I think makes it clear that you’re not disputing that the — that the ineffective assistance of counsel claim is alive and well. But there was a time you took a different view.

    MR. CRUZ: That — that is correct, and we agree at this point there is a very significant argument of ineffective assistance of counsel, and I would note that the court of criminal appeals in Texas has found ineffective assistance of counsel in almost precisely the same circumstance where a counsel failed to notice the non-sequential nature of felonies used to enhance a habitual offender in the decision of Ex parte Scott, which is found at 581 S.W.2d 181.

    So this brings us to what the Supreme Court actually held in the Haley case that Cruz argued. The Court said “We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims and comparable relief and other grounds for cause to excuse the procedural default.” [Italics added for emphasis.]

    So, the Supreme Court was refusing to decide between Cruz and Haley on their respective positions about the issue as framed by Cruz in this brief. Instead the Court was sending the case back down to see if it could be decided on the ineffective counsel argument Haley had raised, but never received an answer to, in the district court and at the 5th Circuit. If Haley were to win on ineffective counsel, there would be no need for either of those courts and (or the Supreme Court) to decide between Mr. Cruz’s position and Mr. Haley on the “actual innocence” argument.

    Now in a sense Mr. Cruz did get something he wanted. As he stated in his oral argument before the court (oral argument, page 9), his first preference was that the Court decide his position was correct, and that the Court hold the “actual innocence” exception simply does not apply in noncapital cases. Had the court done that, you would be correct that the Court “agreed with Cruz’s position.” Mr. Cruz’s second preference, as he stated in oral argument, was that the 5th Circuit’s decision be vacated so that Texas would not be saddled by this precedent. This second wish was granted because when the Supreme Court vacated the 5th Court decision and sent the case back down for the federal courts to decide the ineffective counsel issue, the 5th Circuit court’s decision was no longer precedent for the courts below it (which includes the federal district courts in Texas). So, Mr. Cruz got some of what he wanted, but not because the Court “agreed with his position.” So, it seems to me that your statement that “the Court, and not by a slim margin, agreed with Cruz’s position” is … well… misleading. You are upset with Mr. Brooks for the misleading character of his article. You leveled this charge against Mr. Brooks, “That’s cheating. It’s dishonest…sloppy journalism and nasty punditry. Brooks knows that virtually none of his readers will check the case.” But is seems to me you are guilty of exactly the same thing.

    • 1 Thanks.
      2. Well done.
      3. Points taken,

      BUT…Brooks’ argument was that Cruz’s character was impugned by him taking the position that a final conviction should not now be reversed because the defendant was not technically guilty of “three strikes.” That’s an ignorant argument. It is also a deceptive one, since Brooks implied that the Justices were hostile to Cruz’s client’s appeal, when, in fact, the appeal was successful, or successful enough. You wrote…

      “Mr. Cruz’s second preference, as he stated in oral argument, was that the 5th Circuit’s decision be vacated so that Texas would not be saddled by this precedent. This second wish was granted because when the Supreme Court vacated the 5th Court decision and sent the case back down for the federal courts to decide the ineffective counsel issue, the 5th Circuit court’s decision was no longer precedent for the courts below it (which includes the federal district courts in Texas). So, Mr. Cruz got some of what he wanted, but not because the Court “agreed with his position.”

      I guess I need to play Tom Hanks here from “Bridge of Spies.” You (and Brooks) keep saying that Cruz is the one getting his “wish.” Cruz isn’t the party, Texas is. Cruz was successful achieving one of his client’s goals, as you wrote. Drawing a distinction between a client’s objectives and the lawyer’s position is sophistry. Which of Cruz’s “positions” prevailed and which didn’t is interesting and useful on the case, but irrelevant to Brooks’ argument. He hid the ball—I didn’t the court was NOT hostile to Cruz’s suit, as Brooks wanted us to believe, it did not represent some kind of disease of the soul on the part of Texas’s lawyer, and Cruz was successful in getting SCOTUS to give Cruz ( that is, his client) got some of what he wanted, which was part of his position.

      I would still say his primary position was supported: this conviction should not be reversed NOW. It wasn’t. It was sent back to the lower court. If the case get reversed because of ineffective assistance of counsel, Cruz’s client still “wins,” because it didn’t lose on the basis that Cruz was appealing.

      If you really want to quibble about whether a lawyer who achieves one of his client’s goals in a SCOTUS case has won approval for a “position” rather than a “wish,” go crazy. I’ll concede that it would have been more accurate to write “a” position. That doesn’t exchange the fact that that the columnist misrepresented what occurred, what the underlying issues were, and what the case told us about Cruz (that he did a good job, and nothing else.)

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