17 Comments

  1. Mike Paar
    November 4, 2013 @ 10:30 pm

    “Then the statute will be tossed out, along with the con­vic­tions of every­one pros­e­cuted”

    What is the name of this you allude to that sees to it that the convictions of everyone will be tossed? Or are we relying on prosecutors to dig through their files and voluntarily file the motions to vacate?

    Reply

  2. Josh C
    November 5, 2013 @ 8:44 am

    But Mark, what about the supposed “wrongdoers” who will be caught up in expensive, years-long court battles because no-one pushed to avoid facially unconstitutional laws?

    Reply

    • Mark Bennett
      November 5, 2013 @ 8:54 am

      It’s a fair question.

      I’ve written enough on the topic already, preaching to the choir. I’m not going to keep banging my head against the wall when the people arguing for the statute are intellectually dishonest and nasty.

      Reply

  3. Josh C
    November 5, 2013 @ 9:39 am

    No-one has a right to demand that you work for the public good, and you have plenty of laurels to rest on. I do hope mere intellectual dishonesty and nastiness aren’t enough to silence you though.

    Your cost/benefit calculus is your own, as it should be. As encouragement though, are causes worth supporting because they are easy and pleasant, or because they are just and worthy?

    Reply

    • Mark Bennett
      November 5, 2013 @ 10:31 am

      Please use the threaded reply button.

      I’m good at lawyering, but not at politicking. When you make bacon, you don’t waste your energy wrestling with the pigs.

      Reply

  4. Josh C
    November 5, 2013 @ 12:24 pm

    I’m sorry; mobile edition doesn’t show anything that looks like a threaded reply. Also, the link to leave mobile edition just reloads the page (in mobile edition).

    Reply

  5. Fred
    November 5, 2013 @ 8:43 pm

    Question: Regarding people who get convicted and punished under a statute that is later declared unconstitutional, do they have any remedies available (other than the usual expungement)?

    Can they seek compensation under Texas’ wrongful conviction system?

    Can they sue under Section 1983 for civil rights violations?

    Reply

    • Mark Bennett
      November 6, 2013 @ 8:23 pm

      Probably neither.

      Take a look at Section 103.011 here for the first. I don’t think the courts will interpret “actual innocence” as “not a crime.”

      Under Section 1983, the people depriving the defendant of his rights had no reason to know that they were doing so unlawfully; I think this would protect them.

      It’s questions like this that make me realize how extraordinary a result I got last week.

      Reply

      • Fred
        November 6, 2013 @ 9:28 pm

        I disagree with your first point. In my opinion the guy would be ‘actually innocent’ because he was not convicted of something. Isn’t the standard ‘innocent until proven guilty’? So if his conviction was reversed, then he was never convicted. It was an illegal law. And to me that would be a nullity, like it never happened, right?

        This is not something that was revered on a technicality like a bad search or a Brady or Miranda violation. Thus, I think it is distinguishable from your run-of-the-mill reversals.

        Plus, you cannot be convicted of something that is not a crime. It’s not the guy’s fault that the Leg wrote an unconstitutional statute. If the statute is declared to be null & void, then the guy is Actually Innocent, in my opinion.

        If it was me, I think you ought to go ahead and file a claim for compensation. If you get denied, sue, and then see how it all plays out. If you win, it would sure serve as a disincentive for the state to not write unconstitutional laws. Plus, it would seem that public policy would dictate that these people – who were wrongfully convicted under an unconstitutional statute through no fault of their own (‘cuz they did not do anything illegal after all!), should get some form of compensation.

        Many people have served time in prison over this, as you know. So what do you do? Rob Kepple on the TDCAA website has already stated that he was responsible for the language of this statute. He said “it seemed like a good idea at the time.” http://tdcaa.infopop.net/eve/forums/a/tpc/f/157098965/m/9667033216 Well WTF dude?!? I’m supposed to do 10 yrs in prison on YOUR bogus statute because it “seemed like a good idea at the time” to violate my fundamental constitutional rights? A guy loses his job, his money, his family, his reputation, – and his liberty – all because “it seemed like a good idea at the time” and the state gets to walk away from it all and pretend it never even happened.

        Does that seem right to you, Mark?

      • Mark Bennett
        November 6, 2013 @ 9:52 pm

        “I don’t think the courts will inter­pret ‘actual inno­cence’ as not a crime'” is not a point to which your disagreement is relevant unless you have lots of experience practicing in Texas courts.

        You have to actually read the statute. You might think that “actually innocent” includes “convicted under a void statute,” but the only subsection that might arguably apply is (B): “based on a court finding or determination that the person is actually innocent”; the question is not merely whether he is innocent, but whether a court has found him actually innocent. I don’t think Texas courts will interpret a finding that the statute is void as an implicit finding that the person is actually innocent. I could be wrong, I’ve been surprised before, but your anonymous opinion is worthless.

      • Fred
        November 7, 2013 @ 1:43 pm

        So how about this, when you go into court with your guy, and you ask for your dismissal, you argue that the court needs to include language that your client is actually innocent. You argue that the statute was a void statute and every conviction is a nullity. If the DA argues the opposite, you make him look like a fool and a person more interested in violating peoples’ rights than in seeing justice done.

        Use that time when you are getting the dismissal paperwork to make your argument for language that would allow your guy – and other guys – to make a claim for compensation. Even if your guy doesn’t quality for compensation, since he never was convicted or went to jail, you still argue for the language anyways so that it will be easier for other guys who have gone to jail to get the language included in their orders.

        The last time that I can think of something like this happening was when Texas’s sodomy law was declared unconstitutional by SCOTUS. Lots of people all over the U.S. were effected.

      • Mark Bennett
        November 7, 2013 @ 1:49 pm

        The last time that I can think of something like this happening was when Texas’s sodomy law was declared unconstitutional by SCOTUS. Lots of people all over the U.S. were effected.

        Really?

        Were there people in prison for sodomy? People registering as sex offenders for sodomy? Had anyone even been convicted of sodomy in the last 30 years?

      • Fred
        November 7, 2013 @ 10:10 pm

        To answer your question, “Were there peo­ple in prison for sodomy? Peo­ple reg­is­ter­ing as sex offend­ers for sodomy?” I would respectfully point out that at the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years imprisonment while repeat offenders got life.

      • Mark Bennett
        November 7, 2013 @ 10:15 pm

        Yes, Fred, I read Wikipedia too, and no, that doesn’t answer my question.

        That Idaho could put someone in prison for life for sodomy doesn’t mean it had enforced the statute at all in 30 years.

        Please try harder. I’d really like an answer.

      • Mark Bennett
        November 7, 2013 @ 10:19 pm

        Hardwick, of Bowers v. Hardwick, was arrested in ’82—21 years before Lawrence—but he was not prosecuted; he had to sue for declaratory judgment. That appears to have been a setup, as does Lawrence v. Texas.

  6. Michael Geiser
    November 7, 2013 @ 7:35 am

    I have one small problem with the post:

    “until at some point some­one points out to the courts that the statutes are uncon­sti­tu­tional. Then the statute will be tossed out, along with the con­vic­tions of every­one pros­e­cuted”

    I just don’t one to be one of the people waiting years in prision for the statute to be deemed uncon­sti­tu­tional. No one shoud be “one of the people waiting years in prision”

    I understand the need for limited immunity for prosecutors doing their job, but it is not limited enough IMHO. Prosecutors are professionals and experts and as such have an obligation to do more than “see if the jury will convict”. In a very real sense they have denied the person on trial their freedom before and during the trial. Professionals are held to a higher standard of conduct than non-professionals; Prosecutors for the most part do not have this check/balance.

    Admittedly, few abuse their position and you hear about the few unjust extreme instances and not the vast majority of instances where people do the rigt thing

    Reply

    • Mark Bennett
      November 7, 2013 @ 10:08 am

      I will spread the word among criminal-defense lawyers that the statute is unconstitutional, so that all defendants have a fair shot at getting a lawyer who will challenge the statute. If criminal-defense lawyers aren’t asleep at the switch there will be no reason for a single person to go to prison for a facially unconstitutional statute.

      Reply

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