Due Process

Texas Court Recommends a New Trial for a Man on Death Row, Saying the Trial Judge's Anti-Jewish Bias Violated Due Process

A district court judge found "overwhelming evidence" of Vickers Cunningham's bigotry.

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Randy Halprin was one of seven inmates who escaped from a maximum-security Texas prison in December 2000 and then robbed an Oshman's sporting goods store in Irving. The robbers fatally shot Irving police officer Aubrey Hawkins shortly after he arrived at the store. Halprin was sentenced to death in 2003 because of his involvement in the robbery, although he testified that he played a minor role in the crime, did not carry a gun, and fled when the shooting started.

Halprin was scheduled to be executed on October 10, 2019, but the Texas Court of Criminal Appeals granted him a stay after he claimed that the trial judge, Vickers Cunningham, was biased against him. Halprin is Jewish, and he alleged that Cunningham was anti-Semitic. While that might sound like a desperate last-ditch attempt to avoid execution, a Texas judge this week recommended that the appeals court order a new trial for Halprin based on "overwhelming evidence" of Cunningham's bigotry. Dallas County District Court Judge Lela Lawrence Mays concluded that Cunningham's failure to recuse himself, despite his longstanding animus against Jews, violated Halprin's right to due process.

"The facts now before us are extreme by any measure," Mays writes. "On these extreme facts the probability of actual bias rises to an unconstitutional level." Given Cunningham's "extensive history of prejudice and bias," she says, "a new, fair trial is the only remedy."

The evidence cited by Mays comes mainly from testimony by Cunningham's friends and relatives, none of which the state challenged. It paints a picture of a man who was driven by hatred of racial, ethnic, and religious minorities throughout his life. Mays found that the testimony from multiple sources, who corroborated each other on key points, was much more credible than the former judge's denials. "Before, during, and after Halprin's capital murder trial," Mays says, Cunningham, who left the bench in 2005 to run for Dallas district attorney, "harbored deep-seated animus towards non-white and non-Christian people and deep-seated racial, ethnic, and religious prejudices."

Tammy McKinney, a longtime friend who grew up with Cunningham, testified that he referred to Halprin as a "fucking Jew" and a "goddamn kike." Regarding the death sentences imposed on Halprin and the other escaped convicts, she recalled, he said, "From the wetback to the Jew, they knew they were going to die."

The state argued that such epithets were understandable in light of Halprin's crimes. But Cunningham's outrage at Halprin's role in Hawkins' death does not explain a remark about defense attorney Barry Scheck, director of the Innocence Project, that was reported by Amanda Tackett, a friend who worked on Cunningham's unsuccessful district attorney campaign. According to Tackett, Cunningham complained that the "'filthy Jew'…was going to come in and free all these 'niggers.'"

Nor does righteous indignation explain why, again according to Tackett, Cunningham said Jews "needed to be shut down because they controlled all the money and all the power." Or why he demanded that his daughter break up with her Jewish boyfriend, whom he called "that Jew boy," and threatened to stop paying her law school tuition if she failed to do so (according to Tackett and the former boyfriend). Or why Cunningham donned suspenders and a green visor before telling Tackett that he would be her "Jew banker" at a casino-themed party. Or why, according to McKinney, Cunningham said "he wanted to run for office so that he could save Dallas from 'niggers,' 'wetbacks,' Jews, and dirty Catholics."

As some of those examples suggest, the bigotry described by Cunningham's friends and relatives extended beyond Jews. McKinney said Cunningham had been calling his brother "nigger Bill" for as long as she could remember—a detail confirmed by Bill, who said Cunningham had mocked him with that sobriquet "his entire life." On his way to "a campaign event at a charitable foundation run by African Americans," Tackett said, Cunningham joked that he was wearing his "nigger tie." McKinney recalled that Cunningham "said any 'nigger' or 'wetback' walking into his courtroom knew they were going to go down."

As a Dallas prosecutor, Mays notes, "Cunningham intentionally removed all black prospective jurors during jury selection for a 1992 murder trial. [He] acknowledged what he had done, but he defended his strikes by claiming the prospective jurors' Democratic party affiliation, not their race, triggered [his] actions."

In a 2018 interview with The Dallas Morning News, Tackett said Cunningham had complained a few years before about then–Dallas District Attorney Craig Watkins' efforts to exonerate people who were wrongly convicted. "Did you see what nigger Watkins is doing, setting all those niggers free?" she recalled Cunningham saying. "He'll never lose an election because all the niggers want their baby daddy out of jail."

As Mays notes, the Morning News "reported that people close to Cunningham—including his mother, brother, and a former political aide—knew him to be 'a longtime bigot.'" The paper said "the former judge repeatedly use[d] the N-word to insult black people behind their backs" and "described criminal cases involving black people as T.N.D.s," meaning "typical nigger deals."

Cunningham admitted that he had created a living trust for his children that would deny them money if they married anyone who wasn't white or wasn't Christian. But when the Morning News asked him, during a video interview, whether he had ever used the word nigger, "Cunningham paused for nine seconds" and "asked if the question referred to using the word in court." When he was told that the question referred to using the word in any context, he said he had never done so. "This Court, having viewed Cunningham's delay and demeanor, and having considered the uncontested statements of [three witnesses], finds Cunningham's denial is not credible," Mays says.

In defending Halprin's conviction and sentence, the state did not deny any of these allegations against Cunningham. Instead it argued that his anti-Semitism and racism did not amount to a bias that denied Halprin his right to a fair trial.

It is not hard to see how Cunningham's hatred of Jews could have affected the outcome of the trial. Under the Texas "law of parties," the prosecution did not have to prove that Halprin killed Hawkins or intended to do so. But he was eligible for a death sentence only if he "actually caused the death of the deceased," "intended to kill the deceased or another," or "anticipated that a human life would be taken." Halprin's defense hinged on minimizing his role in the robbery.

Halprin wanted to introduce a Texas Department of Criminal Justice "ranking document" that said he "never exhibited leadership qualities," was "very submissive," and was the "weakest" of the escapees. Mays notes that Cunningham "repeatedly rejected Halprin's attempts to introduce the ranking document." She adds that "Judge Cunningham relied on his discretion to deny Halprin's repeated attempts to have his expert witness testify concerning the facts underlying her opinions" and "denied Halprin's requested charge concerning the law of parties."

Mays thinks "one or more of these rulings could have made a difference in the
jury's deliberations." She notes that "jurors deliberated over Halprin's punishment for more than six hours." During the deliberations, they sent a note asking about "the difference between whether Halprin 'anticipated that a human life would be taken' and 'should have anticipated.'"

Mays notes that a judge's bias also can be manifested in more subtle ways that may not be reflected in the official record. She quotes the 5th Circuit's observation that "the record does not reflect the tone of voice of the judge, his facial expressions, or his unspoken attitudes and mannerisms, all of which, as well as his statements and rulings of record, might have adversely influenced the jury and affected its verdict."

While Halprin might have been sentenced to death even with a different judge, Mays says, the Constitution "forbids the participation of a judge in a criminal trial who harbors an actual bias" or presents "an objectively intolerable risk of bias." The Supreme Court's decisions in this area do not hinge on whether a judge's bias actually affected a trial's outcome. "Even if there is no showing of actual bias in the tribunal," Mays writes, "due process is denied by circumstances that create the likelihood or the appearance of bias."

The state argued that Cunningham's privately expressed views about Jews and other minorities were not sufficient to establish unconstitutional bias. "If this Court were to accept the State's argument," Mays says, "it would find that the Constitution forbids a judge from presiding over a case in which he could receive $12.00 if he convicts the defendant"—an example drawn from a 1927 Supreme Court decision—"but permits a judge to preside over a capital case despite the judge thinking of the defendant as a 'goddamn [kike].'"

Halprin is hardly a sympathetic figure. In addition to the crime for which he received a death sentence, he brutally assaulted a toddler in 1996, breaking his arms and legs, fracturing his skull, and beating his face. He was serving a 30-year sentence for that horrifying crime when he escaped from prison. But even the most despicable defendant is entitled to a fair trial, especially in a case where his level of culpability is the difference between life and death.

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  2. “Dallas County District Court Judge Lela Lawrence Mays concluded that Cunningham’s failure to recuse himself, despite his longstanding animus against Jews, violated Halprin’s right to due process.”

    How is this going to affect supreme court justices who have shown animus against baby humans?

    1. Your comment shows you do not understand how the pro-abortion crowd thinks. They do not consider fetuses as baby humans until they have reached a certain stage.

      Your strawbaby mostly shows your willful ignorance.

      1. More like strawclump.

      2. Not to mention the pro murder advocates actual ignorance.

      3. I have had several self avowed leftist democrats insist that at no point is a baby a legitimate human until it’s outside the uterus. And for many democrats, that doesn’t even count. Given that three states now literally allow retroactive abortion of healthy newborns by law.

        As usual, democrats ‘follow the science’.

        1. Zeke Emmanuel, medical “ethics” advisor to D’rat Presidents Clinton, Obama& Biden wrote in one of his books that creatures do not become human until they can communicate, therefore what happens to those clumps of cells does not matter until that time. That is the “reasoning” at the top of the Democrat Party.

  3. Let me guess, he’s a Trump loving Republican. Every fucking case that pos ruled on should be suspect.

    1. Every fucking case article that plos ruled on writes should be suspect.

    2. Wasn’t it Democrats demanding that more Jews be killed earlier this year?

      1. Fortunately the squad’s comments weren’t kosher.

      2. The PLO rallies were attended by progressive types.

    3. Seems unlikely, given that Trump’s daughter not only married a Jew, but converted herself. That would probably put this jackhole off his feed regarding Trump. But good try at frotting your TDS on this story.

      But yes, every case he presided over is suspect.

  4. The only good thing to come out of this is that hopefully this judge’s views will be public and prominent enough that we can vote him out next month.

    However, I have to question certain things about this ruling. The law of parties isn’t exactly controversial in this case. If you have seven escaped convicts, in the middle of robbing guns from a store, and one man signals the others that security is coming, the coming murder isn’t unanticipated by any means. Trying to say otherwise borders on madness.

    The facts in this case are so overwhelming, to the action movie or comic book level, that I question if anything would have changed had Satan himself been on the bench.

    I hope that they just take a plea bargain for life imprisonment and stop wasting everyone’s time.

    1. This came out a few years ago and he lost a republican primary.

      Looks like he is now a private attorney.

      1. Working as a partner in Goldman, Finch and Jewison?

      2. Add him to your “get me that guy” list should you ever need an attorney who won’t deliberately ruin your defense.

    2. What if he argues that it’s impossible to imagine a Jew conspiring with wetbacks? Therefore he’s innocent?

      1. It’s better to let ten guilty Jews go free than to wrongly convict an innocent one.

  5. Holy shit. That’s the testimony from HIS FRIENDS.

  6. You know who else had a long-standing animus against Jews?

    1. Dave Chappelle?

    2. Rob Misek?

    3. Martin Luther?

    4. Sean Young

      Marlon Brando

      Roald Dhal

  7. I’ll bet you could find myriad “judges” with similarly extreme beliefs about conservatives but who would never consider that they should recuse themselves or that an appeals court would overturn their rulings.
    There is no level playing field in the “legal system” for a conservative.
    Ask the January 6 defendants.

    1. You mean those unarmed insurrectionist grandmothers that terrorized the nation?

    2. You mean the traitors?

      1. Protesting isn’t treason. Violent, illegal protests also aren’t treason.

        1. A slaveholding southerner like you would say that.

          They were trying to overturn the election. They shouldn’t receive harsh punishments, but fuck those Trump worshipping traitors.

        2. There is this:

          The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

          The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

          That is what was going on in that building at the time.

          Nobody is being charged with treason which has a specific definition. Those beautiful people are being charged with things like:

          Civil disorder; obstruction of an official proceeding; assaulting, resisting or impeding certain officers; entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; engaging in physical violence in a restricted building or grounds; disorderly conduct in a Capitol building; act of physical violence in the Capitol grounds or building.

  8. I have a compromise: execute both Cunningham and Halperin.

  9. A Jewish man in a maximum security prison, then robs an Oshman’s sporting goods where a cop gets killed? This just doesn’t feel Jewish to me.

    1. Does it feel Christian?

    2. I mean, there’s at least one everywhere, if even it’s usually only one. As over-represented in white-collar crime as they may be, they also do scrub, prole crime.

      The antifa terrorist who attacked Kyle Rittenhouse, Joseph Rosenbaum, was a six-time convicted child rapist who looked like a carny security guy.

  10. Just curious, who are all these “friends” who worked on Cunningham’s campaign, who knew he was this much of an bigoted anti-semite?

    I’m trying to imagine me working diligently to get a friend or associate elected who uses the type of epithets that Cunningham has allegedly used. What would that say about me?

    1. To be fair, scuttlebutt is that Cunningham gives *amazing* blow jobs. So that’s probably how he got so many campaign volunteers. They were in it for his filthy mouth in other aspects.

    2. There are many more people who will tolerate racism than there are actual racists. So long as they are not in the threatened group they look the other way. That is what happened in Europe under the Nazis. With some exceptions the majority just pretended it was not happening. There was also a lot more collaboration than they still will not admit to.

  11. Halprin is hardly a sympathetic figure. In addition to the crime for which he received a death sentence, he brutally assaulted a toddler in 1996, breaking his arms and legs, fracturing his skull, and beating his face. He was serving a 30-year sentence for that horrifying crime when he escaped from prison. But even the most despicable defendant is entitled to a fair trial,

    I agree. Halprin is entitled to a fair trial… and then a fair hangin’.

    1. Why in the Hell can’t Reason</i* and it's writers pick better victims of judicial injustice than this? Judge Vickers Cunningham and Randy Halprin both would never be missed.

      1. Forgot to close my code right:

        Why in the Hell can’t Reason and it’s writers pick better victims of judicial injustice than this? Judge Vickers Cunningham and Randy Halprin both would never be missed.

  12. Just a little hypocritical considering jury selection is essentially the selection of prejudice and bias by each legal team and the jury themselves are only asked if they think they can be unbiased.

  13. ‘The Supreme Court’s decisions in this area do not hinge on whether a judge’s bias actually affected a trial’s outcome. “Even if there is no showing of actual bias in the tribunal,” Mays writes, “due process is denied by circumstances that create the likelihood or the appearance of bias.”‘

    So rationality goes out the window. Apparently, the object of the trial is not to get a rational, correct outcome. So why waste the money?

    1. “due process is denied by circumstances that create the likelihood or the appearance of bias.”

      This is just wrong.

      “due process is denied by” ALLOWING “circumstances that create the likelihood or the appearance of bias” TO INFLUENCE ANY DECISION

      Justice is supposed to be blind.

    2. I an not a lawyer but I believe the argument is that a person has a right to a trial before an impartial officer of the court. This is why judges sometimes recuse themselves if there is a conflict of interest.

  14. Hi, just wanted to explain something to stupid people, who are apparently the only folks left writing at Reason.

    In the US, we have these things called ‘jury trials’. In these trials the juries decide what happens, not the judge. The judge is there to make sure the information is presented in compliance with law. The jury decides the sentence, not the judge.

    The murdering escaped felons got sentenced to death. What’s the issue here? That the judge might have hated one murdering escaped felon more because of his personal bigotries? So? How does a bit of extra hate for a murdering felon hurt anything?

    1. A judge can influence the outcome of a trial in many ways. Which evidence is admissible, rulings on objections, statements made to the jury, jury selection.

      The jury has no say in the proceedings. They just vote on the outcome. Juries are easily misled.

      In this case it could be considered a mistrial.

    2. Calling people idiots while believing that our legal system is fair and just because it was a jury trial is, interesting.

    3. I hope you’re not on the receiving end of a woke judge someday.

      1. Doesn’t matter which bias they have. I hope I am not on the receiving end of any of them. Especially a jury trial.

  15. Holy crap. How many people must he have victimized over the years?

  16. I confess that I’m unfamiliar with Texas appellate procedure, but I think the usual question before an appellate court is whether the trial judge committed reversible error in conducting the trial or instructing the jury.

    I don’t know what role a District Court Judge is supposed to play in that process.

    1. That is weird. Fifth Court of Appeals (as distinct from the Federal Fifth Circuit Court of Appeals) should have appellate jurisdiction over this case, and then the CCA. (Highest court in Texas that deals with criminal cases; the Supreme Court of Texas takes civil cases.) Some District Court Judge shouldn’t be getting a say, normally.

      Oh well, the death penalty appellate folks earned their money: they forced a delay for a guy who was guilty as fuck. Great job.

      1. I can see a Federal District court judge getting a crack at it, on a habeas, or some civil rights claim, although ADEPA was supposed to cut down on that sort of thing. But not a State District Court Judge.

        PITA, all the way around. My fiancee managed to get initially on the jury for a retried sentencing phase for a cop-killer who had his original death sentence tossed for some bullshit procedural hook. The guy had literally ten witnesses watch the guy execute a cop with, IIRC, the cop’s own service revolver. Went to prison, filed a string of Hail Mary appeals, and one of them landed. She eventually got to skate out, after the second or third winnowing of the jury pool, but not until after a few days of, “How many fucking weeks is this going to take?!”

        This is likely going to be similar.

      2. Gray_Jay:

        Your reply inspired me to do a little rudimentary research.

        It appears that appeals in death-penalty cases bypass the intermediate appellate courts and go directly to the Court of Criminal Appeals.

        See:
        http://www.txcourts.gov/cca/about-the-court/

  17. Four of the other Texas Seven have already been executed — including at least one tried under Cunningham.

    So we have two death sentences under this Judge and zero evidence the law was not followed in either case; nor is there any evidence that the Judge exhibited actual bias against either defendant in any decision, ruling or statements made by him.

    If you read the Court’s decision you will vomit. To give you a taste of her stupidity, she uses the following in support of her decision: ‘..Television personalities Archie Bunker and Fred Sanford were explicit in their racist, homophobic and paternalistic views…’ She also concludes that Judge Cunningham making this statement, ‘I strongly support traditional family values’, proves ‘explicit bias’, but she gets even dumber: ‘…even the SLIGHTEST influence of racial and religious stereotypes…will render a trial unfair…’ The Judge also rants on and on about ‘implicit bias’ (arguing this psycho babble bull shit is justification to overturn a jury verdict, i.e. you can read someone’s mind and find bias without having to produce any real evidence it actually exists).

    Not putting this cretin to death is a travesty against humanity and to the family, relatives and friends of Officer Hawkins.

    1. “To give you a taste of her stupidity, she uses the following in support of her decision: ‘..Television personalities Archie Bunker and Fred Sanford were explicit in their racist, homophobic and paternalistic views…’ She also concludes that Judge Cunningham making this statement, ‘I strongly support traditional family values’, proves ‘explicit bias’, but she gets even dumber: ‘…even the SLIGHTEST influence of racial and religious stereotypes…will render a trial unfair…’ The Judge also rants on and on about ‘implicit bias’ (arguing this psycho babble bull shit is justification to overturn a jury verdict, i.e. you can read someone’s mind and find bias without having to produce any real evidence it actually exists).”

      Blue Wave Judge, yo. More of that, as it was called by the winners in Harris County. “Black Girl Magic. https://www.washingtonpost.com/nation/2019/01/02/texas-new-judges-bring-black-girl-magic-courthouses/

      Absolutely fucking hilarious to think of the shitstorm that’ve erupted if their opponents had referred to their incumbency as White Guy Magic… Anyway, she got elected in the 2018 Elections that swept out a bunch of Judges and DAs in Dallas, Houston, and other large cities in Texas. [Stolen] Elections have consequences…

    2. So, what are the odds that white convicts whose cases were presided over by judges who privately evinced “Fred Sanford” sentiments can have their convictions overturned?

  18. A corrupt judge? No way!

  19. Can we do this too? Can we cite judges’ expressed antiwhite animus outside of the courtroom to overturn convictions of white defendants?

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