Thursday, October 31, 2013

What happens to people convicted under now-unconstitutional online solicitation statute?

In the wake of the Court of Criminal Appeals' ruling yesterday that portions of Texas' online solicitation of a minor statute are unconstitutional, the question arises, what happens to people who've already been convicted under that now-nullified criminal law? In a blog post on that topic, Mark Bennett, who argued the case before the high court, noted that:
Alan Curry, Chief of the Har­ris County Dis­trict Attorney’s Office’s Appel­late Divi­sion, “said pend­ing cases would likely be dis­missed and the office will have to review what to do about any­one con­victed under the voided law.” (Chron.)

I don’t know what the DA’s Office will wind up doing, but it doesn’t seem like a dif­fi­cult call: the right thing to do (once the deci­sion is final) is to give every­one con­victed or placed on deferred-adjudication pro­ba­tion for vio­lat­ing Sec­tion 33.021(b) the option of reopen­ing their cases.
There could be instances, he pointed out, where defendants may not seek relief:
Why give [defendants] the option, instead of just reopen­ing the cases? Because some of them may have pled more seri­ous charges (with longer max­i­mum sen­tences or life­time sex-offender reg­is­tra­tion require­ments) down to 33.021(b) vio­la­tions, and they should have the ben­e­fit of their bar­gain if they still want it.
But most would likely not choose to remain in prison or on pro­ba­tion, and reg­is­ter as sex offend­ers for ten years after they have done their time, for some­thing that is not a crime.
Grits followed up in the comments to ask, "pro­ce­du­rally what would 'reopen­ing the case' look like? Do you envi­sion the DA dis­miss­ing old charges on their own (and poten­tially refil­ing under some other statute)? Would the [defendants] have to file habeas writs? What would that look like on the ground?" Mark helpfully responded:
The DA’s Office should notify con­victed defen­dants and their trial lawyers, and be will­ing to agree to relief. But I think defen­dants are going to have to do some­thing to get relief—file a motion for new trial, or file a writ of habeas corpus.

How they best get the appro­pri­ate relief is some­thing I’m work­ing on—there are pro­ce­dural hur­dles, but pro­ce­dural hur­dles can be over­come by agree­ment; there may be sub­stan­tive hur­dles (was each lawyer who forewent a First-Amendment chal­lenge to 33.021(b) with­out get­ting her client some­thing in return inef­fec­tive? My opin­ion is that she was) as well.

If a defen­dant chooses to reopen a case, the State may refile under some other statute for which the statute of lim­i­ta­tions has not passed (though the pen­dency of a pros­e­cu­tion under an invalid statute doesn’t toll the run­ning of lim­i­ta­tions), but if they could file more seri­ous charges now, they prob­a­bly could have (and prob­a­bly did) back then. That’s some­thing that the defen­dant and his lawyer ought to care­fully con­sider before decid­ing whether there’s a fire wait­ing out­side the fry­ing pan.
My takeaway from this exchange is that District Attorneys around the state now should be obligated to go back and re-examine their old cases to identify all defendants who've been convicted of this non-crime and notify them. Perhaps it should even be incumbent on judges to appoint counsel for indigents among them  to represent them in habeas proceedings or in seeking a new trial. There are more than a few folks locked up today based on this statute, which has been in place since 2005 - how many, who can tell? But the high court's ruling isn't the end of the process. For folks already convicted of this non-offense, it's only the beginning.


Anonymous said...

My takeaway from this exchange is that District Attorneys around the state now should be obligated to go back and re-examine their old cases to identify all defendants who've been convicted of...

Grits, I wish someone like you or Mr. Bennett would say this in a future Posting regarding the folks not only *claiming but *having verifiable proof / evidence they were arrested for a Fake Outstanding Traffic Warrant. Doing so, without waiting on the CCA or anyone else to agree that it's unconstituional to fake police incident reports. In the words of the great Prof. Protess, Thanks in advance.

Until then,
I couldn't locate the Post regarding emails being searched without warrants so please allow this. If the authorities can legally shift through regular ol citizens emails along side of actual bad guys, then it also must be legal to knock (down) on doors and go through the file cabinets full of regular U.S. Mail: telephone, utility bills, birthday cards and letters from grandma. Sounds stupid and all but I've put it out there just the same.

Anonymous said...

Here's a question for you, these people are able to file a habeas corpus because of the fact that the law was unconstitutional than their arrest, conviction and confinement was also illegal under the law that they were imprisoned. That means that they should be able to file a title 42 USC 1983 action for false imprisonment of this could run into millions of dollars Per individual depending on the length of confinement

It would appear that it would be in the state's best interest to automatically go back and release these people. And offer some type of compensation with the guarantee of not and a new charges being filed. Because even if new charges Were filed. The 1983 action would still go forward costing the state millions.

Anonymous said...

Regrettably, Conradt is still dead, so no reprieve for all that were screwed over.

Steven Arnold said...

How can this ruling be ignored? I was convicted under this statute in 2011. 5 months after the ruling I am still a registered sex offender with no prior criminal history. I maintained that I had no criminal intent all along. I just want to get what's left of my life back and rejoin my family in New Mexico.

Anonymous said...

The Texas Court of Criminal Appeals Denied the States motion for rehearing and Greg Abbotts power hungry move to intervene today. This statute is done.