Court of Criminal Appeals Grants New Trial to Randy Halprin, Finding Trial Judge Was Actually Biased Against Him Because He Is Jewish

The decision

On November 6, 2024, the Court of Criminal Appeals of Texas granted a new trial to Randy Ethan Halprin, who was sentenced to death in 2003 for capital murder. In an opinion by Judge Hervey, the court found that “Halprin has shown by the preponderance of the evidence that his trial judge was actually biased against him at the time of trial because Halprin is Jewish.” The court held that actual judicial bias is a structural due process violation entitling a defendant to a new trial without a showing of harm, and it remanded the case to the trial court. A second claim, challenging the future-dangerousness special issue as void for vagueness, was dismissed as an abuse of the writ.

Four judges joined Judge Hervey’s opinion. Judge Yeary concurred in the result only. Presiding Judge Keller dissented, joined by Judges Keel and Slaughter.

Background

According to the opinion, Halprin and six other inmates, known as the “Texas Seven,” escaped from prison in December 2000 and murdered an Irving police officer during a robbery at a sporting goods store on Christmas Eve 2000. In 2003 a jury convicted Halprin of capital murder, and the trial court, with Judge Vickers Cunningham presiding, sentenced him to death based on the jury’s answers to the punishment special issues. The Court of Criminal Appeals affirmed on direct appeal in 2005, denied Halprin’s initial habeas application under Article 11.071 of the Code of Criminal Procedure, and dismissed three later pleadings as subsequent applications.

After the federal courts rejected Halprin’s attempt to obtain federal habeas relief, the trial court set an execution date for October 2019. Halprin then filed the present subsequent application. Claim 1 alleged that Judge Cunningham’s bias against him because he is Jewish violated his right to the free exercise of religion and his Fourteenth Amendment right to due process. The court found that Claim 1 met the requirements of Article 11.071, Section 5(a), remanded it to the convicting court, and stayed the execution.

On the first remand, the habeas court recommended relief based on written declarations. The Court of Criminal Appeals determined that a live hearing was needed and remanded again. The habeas court adopted Halprin’s proposed findings and conclusions “virtually verbatim” and again recommended relief.

The court’s reasoning

The habeas court’s findings

The court declined to adopt any of the habeas court’s findings and conclusions, stating that they “exclusively reflect Halprin’s interpretation of the evidence, are often unsupported, and exceed the scope of our remand orders.” Citing Ex parte Reed, the court acted as the ultimate factfinder and decided the claim on its own review of the record.

Due process and structural error

Quoting Williams v. Pennsylvania and Bracy v. Gramley, the court stated that due process guarantees an absence of actual bias on the part of a judge. Relying on Arizona v. Fulminante, it stated that where the judge is not impartial, the error is structural and immune to harmless-error analysis, so a defendant who establishes a judge’s actual subjective bias is entitled to a new trial without showing harm.

Extending Liteky to out-of-court speech

The court noted that the evidence consisted primarily of anti-Semitic statements attributed to Cunningham in private or semi-private settings rather than from the bench. It found instructive Liteky v. United States, in which the Supreme Court said that judicial remarks during trial ordinarily do not support a bias challenge but may do so if they “reveal an opinion that derives from an extrajudicial source,” and will do so if they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” The court wrote: “We discern no reason that Liteky’s basic reasoning about actual judicial bias (evidenced by in-court speech and behavior) should not also apply to a judge’s pervasive patterns of speech and behavior outside of the courtroom.” In a footnote, it added: “Our opinion should not be read to apply to one-off, ill-considered comments made in a judge’s private life.”

The evidence

The court said some testimony from Halprin’s witnesses warranted “a healthy dose of skepticism,” but it listed what it described as uncontradicted evidence. Among the items: Cunningham used derogatory language about Jews from adolescence onward, the language became more offensive after he entered the legal system, and it continued outside the courtroom after he became a judge. About a month after learning in October 2001 that he would preside over the trials of five Texas Seven members, Cunningham said the appointment was significant because he was “going to get them all the death penalty, even the driver because he’s guilty.” Cunningham knew Halprin was Jewish, and during and after the trial he made anti-Semitic remarks about Halprin in particular.

The court concluded that Cunningham had formed an opinion about Halprin derived from an extrajudicial factor. Distinguishing references that might derive from the trial evidence, it wrote: “Cunningham’s derogatory references to Halprin are expressly tied to Halprin’s Jewish identity.” It also found that the remarks revealed antagonism making fair judgment impossible and said it could not discern a principled difference between them and the comments found to establish bias in Berger v. United States, the 1921 case discussed in Liteky.

What the court did not decide

Because it treated actual bias as structural error, the court stated: “we need not and we do not determine whether the actual bias demonstrated in this case manifested itself in Judge Cunningham’s rulings during Halprin’s trial.” The court granted relief on due process grounds and did not separately address the free-exercise theory pleaded in Claim 1.

Separate opinions

Judge Richardson, concurring

Judge Richardson, joined by Judges Newell and Walker, joined the court’s opinion and wrote separately. His concurrence catalogued statements attributed to Cunningham at the habeas hearing and noted that the applicant, the habeas judge and the State—represented by the Tarrant County District Attorney’s Office after the Dallas County District Attorney was recused—all agreed a new trial was warranted. Describing due process as a flexible guarantee of fundamental fairness, he wrote that requiring bias to be shown within the trial record would amount to a harm analysis for an error that defies one. He concluded: “This is a case where a person’s lifelong hatred and prejudice against Jews made him unfit to preside over this case.”

Judge Yeary, concurring

Judge Yeary agreed that relief was required but wrote that the court applied the wrong standard. He agreed with the dissent that Liteky and Berger do not control: “Applicant alleges a violation of due process, and due process is never mentioned in Liteky or Berger.” In his view the controlling standard comes from Caperton v. A.T. Massey Coal Co., Williams and Rippo v. Baker: whether, considering all the circumstances alleged, the risk of bias was “too high to be constitutionally tolerable.” Applying that objective test, he pointed to Cunningham’s statement about securing the death penalty and to remarks directed at Halprin specifically. He wrote: “It matters not whether the statements were made inside or outside of the courtroom.” He suggested that the targeting of Halprin as a party could serve as a limiting principle, and he stated: “I concur only with the Court’s decision to grant relief.”

Presiding Judge Keller, dissenting

Presiding Judge Keller, joined by Judges Keel and Slaughter, wrote that the court “misunderstands the law regarding disqualification of a judge for bias.” She wrote: “What a judge does can violate the Constitution. What he thinks cannot.” In her view, Supreme Court precedent recognizes due process violations only for actual bias—which she described as a judge in fact acting in a non-neutral way—and for bias inferred from a financial interest or conflict of interest; a judge’s personal views alone do not suffice. She read Pena-Rodriguez v. Colorado and Buck v. Davis as consistent with that position and wrote that Liteky and Berger were federal statutory recusal cases with no bearing on a due process claim.

Reviewing the trial-court actions Halprin identified as questionable, along with jury selection, she concluded that nothing suggested the judge tilted the trial against Halprin. She wrote: “The Supreme Court, even after Caperton, has never held that a judge’s personal opinions that are expressed only outside the courtroom can violate due process.”

Status

The court granted Halprin a new trial and remanded the case to the trial court for further proceedings consistent with its opinion. The decision was reported the day it issued by The Texas Tribune, the Associated Press, Texas Public Radio, The Dallas Morning News and NBC 5 Dallas-Fort Worth, and in the following days by the ABA Journal and The Jerusalem Post.