The Reformer

When Cathy Cochran joined Texas’s highest criminal court, in 2001,  she had little idea the state was about to radically reform its approach to crime and punishment.

Up to that point, Texas owned a well-deserved reputation for strict law and order. It housed the nation’s second-largest prison population, and when the state wasn’t locking up criminals for lengthy sentences, it was executing them. The year before Cochran joined the court, Texas had put to death forty men and women, the most of any state in a single year in modern times. Few in law enforcement, the Legislature, or the judiciary doubted the criminal justice system or its methods.

But that began to change not long after Cochran was appointed to the Texas Court of Criminal Appeals. DNA testing across the country had already begun exonerating men who had spent decades in prison for crimes they hadn’t committed, and soon the number of exonerations began escalating dramatically. Many of these cases came from Dallas, and they led Cochran and others on the court and in the Legislature to rethink their notions of the criminal justice system’s fallibility and to seriously consider reforms. What legislators did over the next fourteen years—sometimes encouraged by court opinions and often led by state senator Rodney Ellis, of Houston—was remarkable. They passed a law that allowed convicts to seek DNA testing. They established one of the nation’s first state forensic science commissions and the Office of Capital Writs to help death row inmates file appeals. They passed “smart on crime” sentencing reforms to create alternatives to prison for low-risk offenders. They passed the Tim Cole Act, which upped compensation for the wrongly convicted to $80,000 for every year of imprisonment, far more than any other state. They reformed the way police conduct lineups to reduce the likelihood of an eyewitness identifying the wrong person. They passed the Michael Morton Act, which forces prosecutors to open their files to defense attorneys. And they passed the “junk science writ,” which grants inmates the right to appeal a conviction based on outmoded forensic science—the first state to do so.

The moderate Cochran was deeply involved in many of these reforms, writing key opinions. She became the court’s de facto leader and the state’s most respected criminal law judge. Yet she discovered her affinity for the law relatively late in life. Born in Los Angeles in 1944, she earned her BA in English from Stanford University in 1966, married David Herasimchuk, and raised their two daughters while he served in Vietnam and worked in the oil business, which took the family to various parts of the world. In 1980 the family moved to Houston, and the following year, at age 37, she decided to attend law school, enrolling at the University of Houston Law Center. After graduation, she worked as a prosecutor for the Harris County district attorney’s office and taught trial advocacy at UH while dreaming of being a judge on the state’s highest criminal court. She then switched sides and spent most of the next decade working as a defense lawyer. In 1994 she ran unsuccessfully for the CCA. During the campaign, she met George W. Bush, and when he became governor, in 1995, he asked her to be his director of criminal justice policy. Finally, in 2001, Cochran realized her dream of serving on the CCA when Governor Rick Perry appointed her to fill a vacated position.

Fourteen years later, Texas remains a tough-on-crime state with a conservative high court. But it has also led the nation in progressive criminal justice reforms, in large part because of the work of Cochran. She decided not to seek another term in 2014 and retired in December at age seventy. The CCA won’t be the same without the hardworking judge once described by attorney Brian Wice as “the intellectual heart and soul of the court.”

Michael Hall: Why did you decide to go to law school in your late thirties?

Cathy Cochran: When we were living in Peru, there was a revolution—tanks in the street—and most of the American oil companies were kicked out. There were checkpoints everywhere—they would just stop you, and I had two little girls. They would take our passports and hold us, these eighteen-year-olds with AK-47s, and you just had to hope that you would get everything back again, and it really brought home the importance of the rule of law. That’s what got me thinking that I wanted to have something to do with the law. So when we moved to Houston, in 1980, I went to law school.

MH: Was it difficult being older than most of the other students?

CC: Not really, except in terms of getting work done, because I had been out in the real world for a while and had a notion of what real-world existence was like. After all, the law is or should be common sense writ large. You have kids and you have to sort out those issues and concerns—how do you deal with conflict in family and neighborhoods and so forth—and that’s really what law is.

MH: After graduation, you went straight to the Harris County DA’s office. What was your most memorable case there?

CC: I did the direct appeal on Karla Faye Tucker, the murderer who buried a pickax in a woman’s chest. And I looked at the pictures, and I remember I couldn’t sleep for weeks after that. My friend Rusty Hardin was trying the co-defendant [Tucker’s accomplice]. He was using Karla Faye as a witness. She had by then found religion—changed her ways. She was willing to testify against her former boyfriend for no guarantee, because it was the right thing to do. So on the one hand I was having these nightmares about Karla Faye and the pickax in the woman’s chest, and on the other hand Rusty was telling me he thought she had found religion and redemption. He wasn’t at all convinced that she should be executed. And at the time of the execution, he stood up and said he thought she should get executive clemency.

MH: What did you think? 

CC: I think if there ever was a good case for executive clemency, Karla Faye was a great example of it.

MH: Yet you were an advocate for the state.

CC: At that time, yes. But by the time she was set for execution, in 1998, I wasn’t. I had left the DA’s office in 1989 and begun working with my friend Mac Secrest, who had been her appellate lawyer. The day I left the DA’s office, I walked into his office to try a capital murder with him. I thought five years at the DA’s office was enough, that I had learned all I could learn, accomplished all I could accomplish. Now I wanted to see what it was like on the other side. Our defendant, Roosevelt Jones, had nothing good to say about him, except he was seventeen. And that was the one thing we pressed to the jury: “We just don’t know how he’ll turn out. Do you really want to say there’s no possibility of redemption for him?” Sure enough, they sentenced him to life.

MH: What made you run for the CCA in 1994?

CC: I had thought about being on the court ever since I was a newbie prosecutor in the DA’s office. A group of us would get together in a breakfast club and read opinions from the CCA and report on them. I thought I could do a better job of explaining than [the justices] were doing, plus they took forever and the opinions were really dull—and a lot of times I didn’t think they were right. I lost in the primary but got to know George Bush on the campaign trail, so when he became governor, he asked me to be director of criminal justice policy. I left the firm and got an apartment in Austin, while David stayed in Houston. My job was to help modernize the criminal code, simplify it. We redid the Code of Criminal Procedure entirely. I also helped draft the Habeas Corpus Reform Act, in 1995, which granted death row inmates lawyers for their writs of habeas corpus. The system wasn’t working—cases were lingering for fifteen to twenty years. You finished one round, the case fell through the cracks for five years, then you started another round. We thought this new procedure would speed things up and be effective: those with meritorious claims would get a habeas lawyer paid for and get relief, and those who didn’t have meritorious claims, who were the vast majority, would move through the system much faster.

MH: How long were you with Governor Bush?

CC: Just a year, because I couldn’t take the commute anymore. So I went back to working with Rusty [Hardin], but in 2001 Judge Sue Holland left the court. I filled out an application, did an interview, and got the job.

MH: Back in the eighties and nineties, the court had a reputation for being a pro-defense court that decided cases based on technicalities. In the Tracy Gee case, the CCA famously overturned a murder conviction because the jury had been shuffled [changing the order of potential jurors] a second time. 

CC: Right. It’s important to be able to shuffle a jury, but just because you’ve had two shuffles instead of one doesn’t mean you haven’t had a fair trial. Two things the criminal justice system ought to do are reach an accurate result and do it fairly so that each side gets an even shot. Everything we do should be targeted toward those two interconnected objectives, and every time we stray from them we get in trouble.

MH: By the time you got on the court, it had the opposite reputation. A few years later, this magazine called the CCA “the worst court in Texas” for siding with the state no matter what. You took us to task, saying the court was much more moderate than we gave it credit for.

CC: In terms of the day-in, day-out job, we did—and do—a pretty darn moderate job with pretty darn close to unanimous decision-making. We agree a whole lot more than other courts do, period. And most of our opinions are down the middle. The reason that we get a bad rap is because some opinions get in the press but not all, and sometimes the reporting isn’t always entirely correct on the facts or on the laws. And I like the media. I think media attention keeps courts honest, but it would be nice if people did some reporting of positive things the court does as well as negative.

MH: Most of the CCA judges have been on the court since the nineties. Has the consistency in membership helped in day to day matters?

CC: Yes. It’s like having a very large dysfunctional family and you may fight amongst yourselves and have arguments, but to the outside world you project that you’re a family. You get to know each other quite well and you get to know what’s going to go over with someone and what won’t. So you try to fashion your opinions with the concerns and issues of other people in mind to make sure you could get the majority. And so how do you go about making sure you put things in there that would satisfy one judge and not upset another judge? And those judges are doing the same with you. There’s a lot of chess playing that goes on here.

MH: What are the best qualities of a judge?

CC: Open-mindedness. The ability and willingness to see issues from every side. Common sense about what makes people tick. A sense of humor. A lot of patience. [Laughs.]

MH: How important is it to be a good writer in your opinions?

CC: Oh, very important—if you want to motivate people, if you want to make people pay attention, if you want people to do something, you need to say it well. A good politician rouses the crowd with language that people can understand and appreciate. If you want to be a good writer, you need to read good writers. I love reading Churchill, love reading Shakespeare. You need to make simple analogies that make sense to people who aren’t lawyers. When I started, I had my twelve-year-old grandson read some of my opinions.

MH: How does the court deal with being overruled by a higher court?

CC: I was—twice in the same case!

MH: The LaRoyce Smith case. It was a convoluted case, between two Supreme Court decisions on mental retardation as a mitigating circumstance in death penalty cases—Penry I and Penry —and you said the error was harmless, and the court sent it back and said, you “misunderstood the interplay of Penry I and Penry II.” How does an experienced judge deal with that?

CC: They were the ones changing the law all the time. We ended up giving in gracefully on that case.

MH: What else could you have done?

CC: Nothing really. All you could say is, it’s harmful error, go back and try again. We could have written a longer opinion. We didn’t. There’s absolutely nothing wrong with the court changing the rule, looking at things differently than we had looked at them before. But I do think it’s just a little bit disingenuous to say, “Oh, this is the way we’ve always thought about it.”

MH: Is there a better way to get our judges than electing them? The court is mostly former prosecutors and all Republicans—

CC: No, Larry Myers is now a Democrat! [Laughs]. He ran as a Democrat for the state Supreme Court last year. But, yes, there should be an appointment system with the potential to be elected if the electorate thinks you’ve done a good job. On the whole, people get elected based on their names, whether they’re Democrat or Republican, and their place on the ballot. The main thing I’m concerned about—the court is just not very diverse. We’re middle-aged, from middle-class backgrounds, white, with the same types of experiences. Judge Elsa Alcala is the one exception. Criminal law is the story of human beings and the frailties of human beings and the hurts and outrages that happen to them, and we need to have people who think about that as well as the abstract law.

Electing judges made sense back in 1875 when it was written into the state constitution, because back then everybody knew the judges, they knew who they wanted to have in their county courthouse. Here in Texas, we built all of our courthouses in the square in the center of the town because the single most important object of the government was the county courthouse. People went down and actually watched the trials, they knew what was going on in their community. Nowadays people, regular people, are not aware anymore who their judges are or what’s going on in their criminal justice system. I bet there isn’t one percent of the population that could name a judge on the Criminal Court of Appeals! And that’s not good.

MH: How is it that Texas, a conservative law-and-order state, has enacted all these groundbreaking reforms?

CC: I think that when you come right down to it, Texas is a pretty open-minded place. People listen and pay attention and acknowledge issues if you bring them to their attention in an appropriate sort of way. And all those DNA exonerations woke a lot of people up. I was as surprised as anybody.

MH: They were a big moment for you and others?

CC: Yes. I think that we knew there were mistakes, but we thought it was maybe a one-in-fifty-million kind of thing. Clearly, it was much worse, and if we can’t be accurate in the results in the criminal justice system, we will lose the respect of the people on the street. And the second big thing was in 2009, when the National Academy of Sciences came out with the report “Strengthening Forensic Science in the United States,” and that really was an eye-opener. It basically said that most of the forensic sciences being used in criminal cases were not very valid, or not validated, except for DNA.

Perhaps the single most important development was the Innocence Project’s survey of the various reasons for wrongful convictions, giving some coherence to when and how mistakes are made. We rely heavily on eyewitness testimony, and it turns out that eyewitness testimony is the number one reason for wrongful convictions. We had no idea it was so unreliable. And number two is forensic science. And then false confessions, and then Brady issues—prosecutors not turning over information that would have been helpful to the defense. We wrote several opinions dealing with these issues. In 2008 Judge [Barbara] Hervey started the Criminal Justice Integrity Unit, and eyewitness identification was an early focus, bringing together players from every area of the law, including the police officers, because if the police officers aren’t on board, no reform is going to take place. Along the way we also saw the Forensic Science Commission, the Timothy Cole Advisory Panel, and the Michael Morton Act.

MH: These reforms involved the courts, the Legislature, and the governor.

CC: It’s all three branches of government. It’s a nice interplay, and it’s a good thing when the courts, the Legislature, and the executive branch are all doing their own job, but they’re looking at what the other ones are doing and getting ideas. And I think that will continue. You know, success breeds success, and so when you’ve got legislators who are thinking in terms of “Okay, here’s a problem, here’s how we do something about it,” and the courts are like, “Oh, we know what you meant, you meant this,” and implement it in line with the legislative intent—that’s people working together.

MH: You’ve had a big part to play in this, especially with regard to forensic science. In 2011 the court denied relief to Neal Robbins, who’d been convicted in 1999 of killing a toddler based on the words of a medical examiner who said the manner of death was homicide; in 2007 she changed her mind and said it was “undetermined.” You wrote a dissent to the 2011 decision, saying the courts needed a mechanism to deal with outmoded science in writs of habeas corpus. The next year you wrote an opinion ordering an evidentiary hearing for Hannah Overton, who was imprisoned in 2007 for poisoning her foster son with salt; you said “the disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years.” Also that year the CCA ordered a new trial for Cathy Lynn Henderson, who had been found guilty of killing a baby; you wrote in the opinion that “changing science has cast doubt on the accuracy of the original jury verdict.” In 2013, after these opinions, the Legislature passed a law establishing outmoded science as a cause of action for a writ of habeas corpus. Robbins’s lawyers filed a subsequent writ, and in November [2014] the CCA overturned his conviction based on the new law. Did you have any idea, as you were writing these opinions, that your words would actually change the law?

CC: No, but we are in the business of planting the seeds for change. One of the jobs as a judge on the CCA is to be a teacher and to support positive changes in the rule of law without knocking on someone’s door and specifically saying, “Hey, do this.” And as we start seeing problems recur multiple times—such as changes in scientific knowledge that affect the validity of verdicts—we recognize that the present law just isn’t capable of adequately addressing them. So what we can do is write an opinion—and very frequently they’re concurring or dissenting—about the problems of the present law. You hope people will read that opinion—and it doesn’t matter whether it’s a defense lawyer or a prosecutor or somebody at the governor’s office or somebody in the Legislature—and suddenly have a eureka moment and think, “Yes, that really is a good idea. Let’s take the ball and run with it.” I’ve seen that happen a number of times.

MH: Let’s talk about the death penalty. In 2008 you wrote, “Some societies may judge our death penalty barbaric. Most Texans, however, consider death a just penalty in certain rare circumstances. Many Europeans disagree. So be it.” Has your attitude toward the death penalty changed in your time on the court? 

CC: I’ve always been able to see both sides of the death penalty argument. Now that juries can sentence the guilty to life without parole, victims are more confident that this person will never get out and do something to somebody else, and I think that actually helps prosecutors very much in terms of being able to find a just and appropriate solution to a majority of these capital murder cases. Do I think that there is a place for the death penalty for those truly worthy of it? We’ve seen absolutely god-awful cases of torture and just sheer cussedness—I mean, people that you would just say, “This is not really a human being.” Can I see that kind of moral revulsion and think that this person does not belong in the community of man? Yeah, I can. But many of the cases are merely upsetting. And we could have done something. I don’t want to sound like a liberal or anything, but we could have done something earlier on. My mother was a schoolteacher. She taught second and third grade, and she said she could spot the crooks in second and third grade. You can spot people even at a very early age that you had better do something about or society itself is going to be in trouble. That said, it wouldn’t bother me at all if the death penalty went away. But it will not go away by critics’ being holier than thou.

MH: What will make it go away?

CC: One thing is the slow accretion of feeling that it’s just not worthwhile. The average time between sentence and execution is about nine years, and when you separate the crime and the punishment that much, what good is it doing the victim? What good is it doing anybody? Sometimes the expression of moral outrage dissipates over time. The other thing is the extravagant cost. It now costs a minimum of $1 million to prosecute and defend a death penalty case from beginning to end. Most local Texas jurisdictions can’t afford it, especially when life without parole is a reasonable alternative that also leaves open the possibility of redemption and rehabilitation of the defendant or, in an unusual case, the possibility of reopening the case if new evidence or new law should cast a shadow on the reliability of the original verdict.

MH: What’s the opinion you cherish the most? You’ve written a bunch.

CC: Yeah, they’re sort of all your children, even the ones that are kind of ugly. They’re still just your children, you know. I can’t think of one that stands out as my most cherished child. Different opinions just do different things and you have different objectives for different opinions.

MH: It must make you feel good to see the Overton case referred to by so many lawyers, judges, and legislators.

CC: It does. But when you’re writing things you have no idea. You’re just tossing things out in the wind. What matters is you feel proud of what you have done when it leaves your desk. And on the whole I have. I mean, I’ve made some mistakes. Everybody does, and I’m just human and so you acknowledge those mistakes.

MH: Let me ask you about the Anthony Graves case. In retrospect, given that he was exonerated in 2011, is there anything you would or could have done differently in your opinion back in 2002, when the court denied his writ of habeas corpus? His habeas attorney failed to subpoena the actual killer, who had initially inculpated Graves but then recanted, but since the attorney didn’t call him for the hearing, the judge refused to allow the recantation. You wrote, “Competent counsel concerns habeas counsel’s qualifications, experience, and abilities at the time of his appointment.” To a certain extent, I can see how your hands were tied by the literal language of the law—

CC: I wrote that statute!

MH: Exactly. But on the other hand, as Judge Tom Price said in his dissent, competence “ought to require more than a human being with a law license and a pulse.” Looking back on it now, would you have done anything differently? Could you have?

CC: Given what the legal issue was before us, I would never change my mind on that. That’s what we wrote the Habeas Corpus Reform Act in 1995 to do. That issue of competence came up time and time again as we wrote the law. We knew there would be problems, because we never had enough money to attract the kind of top-notch people we needed. But we had to draw a line on “competence.” Otherwise what happens is, the state pays for the first round of lawyers, but now, if the defendant doesn’t win, inevitably here comes the second round. Is the state going to pay for the second round too? And the third? Because inevitably if the defendant doesn’t prevail, he’ll say it was his attorney’s fault. Understandably.

But with Graves, we were not focused on the Brady issue as much as we should have been—the fact that prosecutor Charles Sebesta told [television reporter] Geraldo Rivera that the co-defendant had told him the night before he testified that it was him and him alone. I just didn’t pay any attention and that wasn’t the legal issue before us, and so we missed it. Thank God that somebody on the Fifth Circuit perked up and said, “Well, you know, who cares about that legal issue? The legal issue we care about is this trial—Sebesta telling people that he knew all along.” That just boggles my mind.

I felt terrible, because I didn’t focus in. It was there, but I didn’t see it. It just goes to show the frailty of human beings. Now, that is a good argument for getting rid of the death penalty, because human beings are going to make mistakes. And I’m sure innocent people have been executed. That’s the price you pay for being a human being in any kind of system. It’s not going to be infallible. So do you not execute people at all because the system is not infallible? No!

MH: Why not? 

CC: Well, because that would be an equally valid argument for saying, “Well, you can’t punish anybody, because you might be punishing someone who’s actually innocent.”

MH: Except that those people are still alive after the mistake is made.

CC: Well, yes. But, as with all kinds of medical operations, the chances of success are very small and lots of people die under the knife. Nothing we do is absolutely perfect, but I just don’t think that’s a compelling enough argument: that because in some cases there might be innocent people, therefore we shouldn’t have the death penalty. But I can understand how other people feel differently, and I don’t say that’s wrong.

MH: A few years after the Graves decision, you and Judge Johnson wrote efficiency standards for habeas lawyers.

CC: Like I said, we knew there would be problems. We knew that some of these people simply are not qualified. And really what we were always trying to do was get an Office of Capital Writs, get some organization that was going to take care of these writs statewide. It was certainly more cost effective, certainly better, and with Brad Levenson we got somebody who was a real, honest-to-god advocate who would provide good representation, so we were tickled pink when Senator Ellis got that legislation passed.

MH: Is there a case that keeps you up at night?

CC: Napoleon Beazley is probably the one that bothers me the most. He was seventeen when he killed the father of a federal judge. He was executed in 2002, and in 2005 the Supreme Court held that inmates who were juveniles at the time of the crime could not be executed. It was such a peculiar case. He came from a middle-class family, and he was the senior class president. I remember the evening of the execution, they had filed some last something or other, and I had gone home early that day. Everybody else was in the conference room, all eight of them. It was four-four for them to stay or not give a stay, and they read everything to me over the phone. Basically, there just wasn’t anything new, and legally there just wasn’t anything to do. It would not be legally appropriate to have taken that case and stayed it. So we didn’t stay it. If we had, would he have made it another three years until the Supreme Court changed the law?

MH: But at a point like that, if there are all kinds of gray areas, why can’t a judge find a way to justify a decision like that?

CC: You do the best you can within the parameters of the law. You just can’t bend the law. There’s that wonderful quote from A Man for All Seasons, how if you cut down laws because you think it’s the right thing to do, then when the devil comes up behind you, where will you hide—because you’ve cut down all the laws? Well, that’s exactly right. You want to do the best you can as a human being, but you’ve got to stick within the law. Sometimes it’s very hard. In that case, it was very hard.

MH: The CCA has three new judges coming in—do you see the court going down the same path?

CC: I think we are still a moderate court. The three in the middle are leaving, we don’t know what the new guys will be like. But I’m confident, I think they’re all pretty motivated to go down the middle road. We’ve got Bert Richardson who’s a former senior judge, who’s used to being in a non-advocate role. Kevin Yeary has been both a defense attorney and is now a prosecutor. David Newell is a prosecutor but you know he’s always struck everyone as being extremely fair, very open-minded.

MH: What are some issues the court and the Legislature will be dealing with?

CC: I think there’s going to be a much greater emphasis on not going to prison. The jury ought to know just exactly how much it costs to send somebody to prison for a year. I think that the evidence-based studies these days show that criminal justice reinvestment and putting money into the community and having people on a short leash and keeping them out of jail—with jobs, with families—does a whole lot better job not just for that person, but for all of society in general. And speaking of keeping people out of jail, I really think the law needs some help with pre-trial bail, letting people out before the case is sentenced. We’ve had a lot of cases recently where we’ve granted relief because here’s somebody arrested for possession of cocaine or meth or whatever and they plead guilty because they’ve got a job or a family or they just can’t stay in jail for the next six months before trial; they don’t have enough money to make bail, but they plead guilty. Then sure enough six months later the analysis on the drugs comes back and guess what? It’s not a drug.

MH: You’ve been working with the law for thirty years now. Has it changed?

CC: I’m not sure the basic criminal law has changed very much. That’s a good thing. It’s kind of built on the Ten Commandments: “Thou shalt not . . .”

MH: How about you? How has this whole experience changed you?

CC: I feel so lucky that I have gotten to exactly where I wanted to get to under the circumstances I wanted to get to. I hope that I’ve done some good for the Texas criminal justice system. I feel that’s important. And you do want to make a difference in life, and I do think—I hope—I have made some difference.