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.)There could be instances, he pointed out, where defendants may not seek relief:
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.
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.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.
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.