Judge Don Willett Stands Out on Criminal Justice Reform

The 5th Circuit judge weighs in on qualified immunity, criminal sentencing, and false imprisonment.


Texas Supreme Court

Don Willett first rose to fame in conservative legal circles as a Texas Supreme Court justice with a penchant for penning spirited constitutional defenses of economic liberty. Since joining the U.S. Court of Appeals for the 5th Circuit late last year, Willett has been making a name for himself in another significant area of the law: criminal justice reform.

Indeed, in the past three months alone, Willett has written three different opinions that are likely to please civil libertarians of every stripe.

First, in August, Willett took aim at the U.S. Supreme Court's controversial doctrine of qualified immunity, which shields police officers and other government officials from being sued over violations of constitutional rights. "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior," Willett wrote in Zadeh v. Robinson. "I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence."

Second, in October, Willett wrote a unanimous 5th Circuit ruling that voided three "special conditions" for supervised release imposed upon a criminal defendant at sentencing. The problem here was that the district court failed to "orally enumerate each condition," thus preventing the defendant from having a "meaningful opportunity to object" at his sentencing, and thereby running afoul of both due process and the Confrontation Clause of the Sixth Amendment. As Willett explained in United States v. Rivas-Estrada, "the 'opportunity to object' requirement isn't formalistic. It's practical…. The point is to give fair notice."

Finally, also in October, Willett wrote a unanimous 5th Circuit opinion allowing an innocent man to sue for damages for false imprisonment. Brandon Lee Moon spent 17 years behind bars for a crime he did not commit. He was finally set free in 2004 after being exonerated by DNA evidence. In 2006, he sued the city of El Paso, Texas, and several government officials. But the U.S. District Court for the Western District of Texas ruled against him, arguing that his suit was time-barred because it exceeded the two year statute of limitations set by Texas law. "But when did the clock start running," Willett asked in Moon v. City of El Paso. "When Moon was imprisoned in 1988 or when he was released in 2004?" The district court said 1988; Willett concluded otherwise. "Every day behind bars is irreplaceable, with the final day as wrongful as the first," he wrote. "False imprisonment is a continuing tort in Texas—the injury persists until the imprisonment ends—meaning Moon's claim accrued upon his release in December 2004."

It would appear that advocates of criminal justice reform may have a new hero emerging on the federal bench.

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  1. I wonder what he’ll be “credibly” accused of.

  2. Dems would still oppose him.

    1. They did. They asked him about a joke he made regarding marrying bacon.

      1. http://www.mashable.com/2017/11/15/tr…..2Syy0QyPqr

        “Gross bacon tweet comes back to haunt this Trump nominee” is the actual title of this article

        1. Be better to socialists, though

          1. Never forget, that we should not remember old shit they did.

        2. is the actual title of this article

          But only for about half a second, then it changes to “Trump nominee’s dumb bacon tweet just came back to haunt him”.

          It’s like the author has never heard of the internet before. Dumb jokes about how much you love bacon is a long-standing popular meme.

          1. It’s like the author either has no sense of humor, or is pretending that this isn’t a “If you don’t like bacon, you’re wrong” ode to that delicious foods and is instead some snide remark about gay marriage.

  3. The question isn’t did he rape anyone, but how many did he rape?

    1. Sounds like you have a credible allegation

    2. I’m pretty sure that it’s easier to just count the number of women he DIDN’T rape. Which is probably zero, according to Democrats. HE RAPED ALL TEH WIMMINS!

  4. Wish he had been nominated for the SC, I’m generally very satisfied with what I’ve seen from him.

    1. Agreed. I’m really hoping that when/ if RBG finally bites the dust sometime in the next 6 years or so that he gets nominated to replace her. At the very least the rending of garments, gnashing of teeth, and sweet tears of unfathomable sadness over another conservative SCOTUS justice should provide quite the spectacle. At this point, I’m just in it for the schadenfreude.

      Not to mention the spectacle of the Democrats whinging and moaning will make clear to everyone just how little they really care about criminal justice reform.

      1. At this point, I’m just in it for the schadenfreude.

        I’m a bit more burned out on this at this point. I would like a good SC. Here’s hoping with Kavanaugh. Gorsuch has seemed good. And Willett would be solid I think.

        1. Kavanaugh was a Catch-22. If he was rejected than spurious allegations judged by campus kangaroo standards would have been mainstreamed in the US Senate. But, since he did get accepted, we now have a justice who is no better on the 4th Amendment than most of his colleagues.

          I would have figured you for an Amy Coney Barrett man, BUCS, considering you love for Catholics and women who have multiple children (which is usually related to one another)

          1. I’m just less familiar with her in general. Definitely Judges are not a topic I follow to any real degree. I only know Willett through relatively secondary reasons. It’s why you might not I never have much to say about judges.

          2. Worse on the 4th, and absolute shit on the 8th. Scumbag helped write and defend the Bush torture memo.

      2. I am definitely in favour of some good old fashioned rending of garments and gnashing of teeth.

  5. And, more importantly*, he’s hilarious on Twitter.

    *Note: May not be important at all

    1. It is related to the most important thing though, which is he hangs out with Iowahawk.

    2. It shouldn’t be important, but this is 2018, when “Twitter personality” is apparently a real thing.

      1. Twitter personality?

        Military intelligence, jumbo shrimp, honest politician

    3. Beginning in 2019, all judicial decisions will be issued by tweet. If your legal reasoning takes more than 140 characters, we ain’t got time for that shit. The only acceptable alternative would be links to videos of John Oliver LITERALLY DECAPITATING opposing counsel’s argument.

    4. ackshully, I’ve gained a new respect for Twitter as a thing now I’ve seen how Trump uses it to poke sticks into hornets’ nests, goad the bears, steal the cupcakes from the loonies, and generally “make nice” with the platform.

      He IS rather hilarious in many of his tweets, too… so if this judge is starting out as being hilarious there, he may well be building a strong following without even trying…. so, when its time to turn it loose on the dweebs, he’ll have lots of followers. COuld be an asset a bit down the road.

  6. happy Willett made it to the 5th where he can make noise.

  7. “In 2006, he sued the city of El Paso, Texas, and several government officials. But the U.S. District Court for the Western District of Texas ruled against him, arguing that his suit was time-barred because it exceeded the two year statute of limitations set by Texas law. “But when did the clock start running,” Willett asked in Moon v. City of El Paso. “When Moon was imprisoned in 1988 or when he was released in 2004?” The district court said 1988; Willett concluded otherwise.”

    ^^^ This district judge is a piece of shit. So, by his dumbass logic, you have to file a wrongful imprisonment lawsuit BEFORE you’ve been released from prison? So this guy should have filed a wrongful imprisonment lawsuit in 1988 or 1989, a lawsuit he would have been guaranteed to lose because he wouldn’t have been exonerated yet.

    Also, love this logic because apparently if I kidnap someone and hold them longer than the statute of limitations for kidnapping, that means I should get off Scot free.

    1. Hey, the guy had all that free time on his hands!

    2. Agreed.

      Did you read Willet’s concurrence in Zadeh? I learned me a couple of things.

      1. A concurrence dubitante. Three years of law school and 28 years of being a lawyer and I had never heard or remember having read that in any case.

      2. Escherian Stairwell.

      1. I had not read it before, but I was just reading it now in the link. It’s pretty much totally on point and it’s nice to see someone talking about how absurd it is that courts can find that you’ve been clearly wronged and yet somehow there is no redress for the wrong that’s been done to you

      2. love Escher

        1. His stairs don’t work for me though.

          1. Now picturing in my mind an Escher stairmaster.

            1. yes to *that* stairmaster the others are boring

      3. So what is a concurrence dubitante?

        How can you drop that bomb and then not say what it is. Come on Mike.

        1. Sorry, it means concurring, but with doubt.

          1. I thought it was a debutante who gave dubious consent.

            So she could decide later whether or not she wished to claim victimhood.

          2. Indubitably so, auld chap…..

    3. My business is 100% legitimate. My Ponzi scheme capital funding opportunity pays off just after the statute of limitations expires 6 yrs.

    4. In fairness, the district judge didn’t invent the rule. He was trying to figure out what the Legislature meant with their poorly-written and ambiguous law about the statute of limitations. Trial judges don’t generally have the authority to say that the Legislature got it so screwed up that a different interpretation must be required, especially when there is prior precedent going the other way. In this case, only the Appeals Court had the authority to change the rule.

      Well, the Legislature could also step forward to make the rule more rational. But expecting congress-critters to do their jobs might be a step too far into fantasy.

      1. As I understand iit, and IANAL, a trial judge is supposed to construe the statute and the facts in such a way as to find the statute to be constitutional, if at all possible. Actually, I think that all judges are supposed to do this, hence Roberts roll over on Obama-care.

  8. Now the war on cops is being waged by judges. What is this world coming to?

    1. Cats and dogs. Absolute madness. Next thing you know people are going to say police probably shouldn’t dogs as target practice.

      Doesn’t anyone back the badge?

    2. Sorry, but qualified immunity is a judicially created shield abused by police, prosecutors, petty government officials, etc., to ruin lives on a whim with impunity.

      Example – 4 cops severly beat handcuffed and ankle cuffed person who is on the ground and completely defenseless, causing brain damage. Qualified immunity rule the courts, because there was not established case law that such actions were unconstitutional at the time of the incident.

      1. As long as you’re the first, you can do anything you want!

  9. “False imprisonment is a continuing tort in Texas?the injury persists until the imprisonment ends?meaning Moon’s claim accrued upon his release in December 2004.”

    Now that’s a judicial pimp slap.

  10. If Trump had nominated him instead of Kavanaugh, I would have donned a MAGA hat.

    1. Second.

    2. Either him or that chick are likely to be his next pick. They’re certainly at the top of the list.

      So once RBG croaks, which could be any minute now, and another one dies or retires, we’ll probably have both!

      As I frequently have said, I think the perfect range of political debate should fall entirely within the spectrum of paleo-con to purist libertarian, with no leftists or neocons in site. If we end up with some semi law and order, but still good on 1A/2A etc conservatives, and some libertarian leaning conservatives all packing the Supreme Court… We’ll probably be in pretty good shape overall.

  11. Glad to see someone standing up for the people’s rights. It’s going to be a long time before the pendulum starts to really swing, but this is a good start.

  12. Stumbled across this piece from earlier in the year. Explains that for the last 27 years, Supreme Court confirmations have coincided with the popular vote.

    Therefore hatred for the Senate is misguided. By the left. If anything, the Republicans would have come out ahead if the advice and consent role were left to the House. And not because of gerrymandering.


    1. Without bothering to read the linked article, I’m going to speculate that it’s all David Souter’s fault.

      1. Lol, no. Just that Obama had a Dem Senate and Rep House for a few years. Would have made his nominations more challenging to confirm.

  13. I am not encouraged that he apparently entertains no doubt about “absolute” immunity.

    A physician is not given immunity when he is forced to decide between being sued for providing narcotics to a patient and them dying of an overdose, or not giving them and being sued for failing to treat a patient’s pain. Or an obstetrician who is forced to chose between saving the life of the mother or the baby and being sued in either case.

    If physicians – and every other profession – are able to function without absolute immunity, I see no reason why it needs to exist for prosecutors or judges. It is very simple: don’t screw up and you have nothing to worry about. It works for the rest of us.

    1. First, you don’t understand how medical malpractice suits work. In order to win, the plaintiff MUST prove beyond a reasonable doubt (high bar of proof) that any other physician, given the same presenting situation, WOULD have done differently, and thus the one being sued was blatantly wrong.

      we talk some about the “thin blue line” where coppers cover one for another. There exists a far stronger and wider “thin WHITE line” amongst docs. In either of the scenaria you proffer, the likelihood of finding even ONE doc to aver that it is plain, per standard practice and long use, that the doc being sued erred radically. Maybe the testifying doc might say “well, I might not have gone quite that far in limiting the dose but then I’ve never seen this patient so I cannnot say with any level of certainty this doc was wrong”.

      as to mother/baby choice.. almost never happens. Its a figment of the sick imaginations of the crowd that loves to have babies killed before they are born. Go find Ron Paul’s testimony on this subject before a Senate committee hearing argumants on abortion.

      1. The fact that you do not know the law indicates that your other statements do not have much credibility. In a civil suit, the requirement is a “preponderance of the evidence” to win. That means for the plaintiff in a malpractice case to win they must show that their case is only very slightly more believable than that of the defense. 50.1% to 49.9% wins.

        “Beyond a reasonable doubt” is not the standard in any civil case. That is the standard only in criminal trials.

  14. Someone’s vying for RBG SCOTUS’ seat!

  15. Hmmm.. late last year must have been a Trump appointment.

    NEED MORE. Lots more, like thus guy. How’s about splitting the Ninth Circus into two, and filling the “missing half” of each new one with the likes of this chap.
    Then continue the “trend” across the land. Get rid of the “judges” who have been taking up cases prohibited them and trying to play Chief Executive.

    1. That would actually be an interesting idea. Instead of expanding SCOTUS, which really isn’t needed, adding another circuit or three. Some states have become far more populous, so it wouldn’t be unreasonable to have more circuit courts put in. That they could be packed right from the get go to be AWESOME would be kinda nice too!

  16. This is the guy I was hoping would get the nod for the Kennedy vacancy.

  17. When, pray tell, will this shield of Qualified Immunity be scrapped, as should long since have been done. Oh by the way, I wonder as to exactly what sort of Controled Substances members of The Court might have ingested when they dreamed up this dodge.

  18. This guy will make a nice SCOUTS judge when RBG dies or the next person dies/retires. I just hope it’s two lefty judges that bite the dust… The prog tears will be PRICELESS!

  19. That it has taken almost as long to determine Moon has a genuine tort against Texas as Texas originally falsely imprisoned him, is a crime almost as big as that false-imprisonment.

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