Jemadari Williams won his own appeal to the San Antonio Court of Appeals, but then the State filed a petition for discretionary review, and the Court of Criminal Appeals granted review.

I came in to help Jemadari in the Court of Criminal Appeals. The San Antonio Court had made the right ruling (the indictment was defective) but for the wrong reason. In the CCA we (Jemadari is a smart guy, and we bounced drafts of his brief back and forth) argued right-ruling-wrong-reason (which works for the party that won in the trial court, but not generally for the defense) and also that the indictment was defective because it charged multiple distinct offenses in one paragraph.

This is my manners-vs.-elements argument: Texas courts of appeals confuse elements of distinct offenses with manners of committing a single offense. It makes a difference because the jury has to be unanimous on all elements of a distinct offense, but does not have to be unanimous on the manner of committing an offense.

So, for example, a person commits a crime if he manages, promotes, or finances a prostitution enterprise.

If the three verbs are manners then the jury does not have to be unanimous on which applies. Four jurors can believe that the defendant managed but did not promote or finance; four that he promoted but did not manage or finance; four that he financed but did not promote or manage. As long as every juror believes beyond a reasonable doubt that one or the other of the manners applies, a guilty verdict is appropriate.

If the three verbs are elements of distinct offenses (managing a prostitution enterprise; promoting a prostitution enterprise; financing a prostitution enterprise) then all twelve jurors have to agree on at least one of the verbs—twelve have to believe that he managed, or twelve have to believe that he promoted, or twelve have to believe that he financed.

Jury unanimity is really important. The Sixth Amendment requires it. So while jurors don’t have to tell us which they agree on, they have to agree on at least one.

But the Sixth Amendment has only required it in state cases since 2020. Before that the U.S. Constitution didn’t care what the elements of a state offense were. A state legislature could define the elements of an offense almost without constitutional limitation.

In 2020 the rules changed, so my manners-vs.-elements argument is new. Nobody had the chance to argue before that the Sixth Amendment limits what state legislatures can call “manners” (instead of elements) of committing an offense.

But I digress. Much more on the manners-vs.-elements argument in coming months, I promise. Back to Jemadari’s case.

Because Jemadari hadn’t made the manners-vs.-elements argument in the Court of Appeals (everyone before me had thought that the various ways to commit the crime were manners, on which the jury didn’t have to be unanimous) the Court of Criminal Appeals didn’t consider it.

And so the Court of Criminal Appeals reversed the San Antonio Court of Appeals. This was the State’s petition for discretionary review, remember, so that meant we lost in the Court of Criminal Appeals, and were to go back to the San Antonio court for consideration of Jemadari’s other points of error.

Back in the San Antonio Court of Appeals, we were able to file a new brief. In that brief I argued the grounds that Jemadari should have argued in the beginning—the right reason for the court’s previous decision; and the manners-vs.-elements argument.

After the briefs were filed, the court wanted to hear oral argument. It’s here:

https://www.youtube.com/watch?v=03ysOH490U8

My adversary in the argument is David Schulman. David does a lot of work on the defense side; I’m disappointed in his contract work for the State. What we do in appellate court matters to more than just the defendant. Appellate lawyers advocate for positions that can make the system better or worse for everyone, and not just the defendant. With his contract work for the State, David is making things worse. (Fortunately, he’s just phoning it in.)

That was May 15th, and last week we got an opinion in the case. We won. Jemadari gets a new trial. And David is talking about filing another petition for discretionary review, but his client (the State) has already spent more than $40,000 defending this appeal—the elected DA, Stephen Harpold, had to go back to commissioners court for a budget increase—and at some point they’re going to stop throwing money at this losing proposition.