Hired Guns and Heroes

A reader suggested that I was a hero. I’m no hero. I’m more Kid Shilleen than Superman:

More Winston Wolf than Batman:

I’m the hired gun, the guy you call when you need a problem solved. It doesn’t matter to me whether you are good or evil, right or wrong, a sinner or an angel. None of that affects how I defend you. You should be glad of that.

I know “cause” lawyers. They often do more harm than good to their clients. I can’t fault their principles, except when those principles get in the way of the job. A jury trial might seem like more fun than a dismissal to the 18-year-old Occupier, but lose that trial and twenty years from now that soapbox is going to seem awfully small, and not worth passing on the dismissal.

Principles? Sure, I’ve got ‘em: freedom is better than safety; knowledge is better than ignorance; love is better than fear.1 If they’re trying to put you in a box and you have the coin to hire me, I’ll try to keep you out. If you don’t have the coin, I might do it anyway. I take a lot cases for free. But not because I have to. I take cases for free when doing so amuses me.

I didn’t take the case that got 33.021(b) tossed out for free.

I’m sure that the guy whose online-solicitation-of-a-minor case I won in the Court of Criminal Appeals last month would rather, all things considered, not have had his name attached to a free-speech case. He’d rather not have been charged in the first place.

He benefited from our fight—mostly Grant Scheiner’s and mine, with help from Sarah Wood, Brian Wice, and a formicating army of unpaid others. But he didn’t know when we began that it would help him (and neither did we lawyers).

He didn’t know, when we filed a notice of appeal, that it would help him (and neither did we).

He didn’t know, when we filed a petition for discretionary review with the Texas Court of Criminal Appeals, that it would help him (and we still didn’t either, though I was pretty sure).

Yet he stuck in there, never saying “make me a deal.” He let us do what we needed to do, and all along he paid the bills. As is true of many stories, the hero was not the guy out front but rather the guy in the background making it possible for the hero to do his job.

The real hero of the fight for free speech and against the Texas Online Solicitation of a Minor statute, then, is him, the guy who funded the effort and allowed the lawyers to fight for the First Amendment in his name. He didn’t set out to be a hero, but his actions may in the end free hundreds from prison and relieve more of the burdens of probation and of registering as sex offenders.

I say “may,” because there are significant hurdles to be overcome.

I see seven general categories of people who will be seeking relief:

  1. People in jail with cases pending: I expect that these will be dismissed promptly. In Harris County, at least, they already have been.
  2. People on bail with cases pending: I expect that these will be dismissed as they come up on the docket.
  3. People convicted at trial, with direct appeals pending: their appellate lawyers should be asking courts to permit additional briefing to address the unconstitutionality of 33.021(b). If their lawyers don’t do that, the Courts of Appeals should be asking for more briefing sua sponte. Karenev says that a defendant can’t raise a challenge to the constitutionality of a statute for the first time on direct appeal; the solution (without overruling Karenev) is to hold that when a statute has already been declared unconstitutional the defendant is not “raising a facial challenge” to the statute. The challenge has been made elsewhere and decided; the defendant is just seeking to implement it.
  4. People in prison or on parole within a year of sentencing, within a year of the judgment becoming final: these defendants have a timing issue. The right to file a federal writ of habeas corpus expires one year after the conviction becomes final, but time when a state writ is pending does not count. So these defendants should consider getting counsel on their cases to file 11.07 writs as soon as possible, in order to preserve their rights to challenge their convictions in federal court. Since the Court of Criminal Appeals decides 11.07 writs, Karenev may be an obstacle to relief: if “a defen­dant may not raise for the first time on appeal a facial chal­lenge to the con­sti­tu­tion­al­ity of a statute,” also bars raising for the first time on habeas the already-decided unconstitutionality of a statute, we will have the nightmare situation I wrote about here.
  5. People in prison or on parole, more than a year after the judgment became final: These defendants will need 11.07 writs, but are not facing the same time pressure as those whose convictions became final within the last year. These 11.07 writs face the same obstacles as those for people whose federal writ clock has not run out.
  6. People on probation or already off probation, within a year after the judgment became final: like those with prison sentences and not-yet-final (for purposes of federal writ filing) sentences may want to file writs as soon as possible to preserve the possibility of the federal courts taking a second look. These writs, though, are 11.072 writs rather than 11.07. They are decided by the trial courts (and can be appealed to the intermediate courts and then to the Court of Criminal Appeals). They face the same Karenev issue as the 11.07 writs, but they will work their way through the lower courts before the Texas Court of Criminal Appeals decides the issue (most likely in an 11.07 case).
  7. On probation or already off probation, more than a year after the judgment became final: These defendants will also need 11.072 writs, but they don’t face the same time pressure as those whose convictions have been final for less than a year.

If the Court of Criminal Appeals rules in favor of someone on a writ of habeas corpus, everyone else will win. But if the Court of Criminal Appeals rules that Karenev requires people to stay in prison for something that isn’t a crime, though, only categories 3, 4, and 6 have the possibility of federal review. I am moderately confident that the federal courts, given a chance, will overrule Karenev. Getting there, if the Court of Criminal Appeals bites its thumb at people doing time for a non-crime, is the problem.

For that, we’re gonna need another hero.


  1. I think I just said the same thing three different ways. 

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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5 Responses to Hired Guns and Heroes

  1. Brian Drake says:

    Having applied for and received a number of grants in the academic world, I wonder if there are similar funding opportunities for these kinds of efforts. A cursory Google search did not reveal anything on point, but when I reflect on the breadth of foundations out there, and the depth of their collective pockets, I’m left thinking that this might be a fruitful avenue.

    The Institute for Justice comes to mind, but my understanding is that they provide the hired guns, not the funding.

    Are you aware of any organizations that provide the funding for external hired guns? If so, I would be honored to contribute to a grant-writing effort to secure the funds necessary to continue this fight.

  2. Nalora says:

    I have often in my life felt like Priscilla Tirado, waiting on Lenny Skutnik and Don Usher.

    I would say that the hero that paid the bills was Lenny, jumping in because sometimes you have to jump first and ask questions later. You my friend, are Don Usher–the man with the expertise to fly this sucker out of here.

    I pray for another Lenny Skutnik.

    (I can so see you as Winston Wolf)

  3. Kid Shilleen? Winston Wolf?

    Dude, I thought you were going for Paladin.

    • Mark Bennett says:

      Paladin works too.

  4. Pingback: Freedom Is Not Free | Simple Justice

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