Integrity, To A Point

What if there were a bunch of people sitting in a cell unaware of a court ruling that the law under which they were convicted had been held unconstitutional? What if they were sitting at home, having served their sentence, believing themselves to be branded as convicted criminals in perpetuity for a crime that was no longer a crime?

The system isn’t really built to address its own failings. That’s left to the players.

When the Texas Tornado, Mark Bennett, prevailed in Ex Parte Lo, holding part of Texas’ online solicitation of a minor statute, Texas Penal Code Section 33.021(b), unconstitutional, his client  was obviously thrilled. Yet, Lo wasn’t the only person involved. What of others convicted for the same offense, now not an offense?

One might believe that there is a mechanism for spreading the word, undoing the damage, correcting the system’s mistake. One would be wrong, so Bennett undertook the burden as a matter of integrity.

After notifying defendants convicted in Tarrant County that the crime for which they stood convicted was held unconstitutional, and receiving no reply, he wrote to the District Attorney* to seek their assistance in having the court appoint indigent counsel to alert and advise them that they could seek habeas relief to shed their conviction. The response was curious.

We make a big deal of prosecutors who have established “conviction integrity units.” They care. They’re doing the right thing. Are they? Are they doing the best they can or the least they can? In this instance, there are people, whether in prison or post-sentence, who stand convicted of an offense held unconstitutional. Is this good enough?

To their credit, they didn’t do nothing. But is it enough? Satisfying obligations in a system ill-designed to correct its failings is a very low bar, much like complying with the Code of Professional Responsibility. It’s the least one can do.

Article 11.074 of the Texas Code of Criminal Procedure obviously doesn’t require the DA to ask the court to appoint counsel to people whom the DA knows to have been convicted under unconstitutional statutes.

And as Bennett notes, the language of the statute offers various interpretations that are readily available to relieve the prosecution from a claim that it failed to comport with statutory requirements.

And if you wanted to argue that the DA couldn’t ask the court to appoint counsel to people whom the DA knows to have been convicted under unconstitutional statutes, you could take Ms. Boswell’s position:

11.074(a) recites that it applies only to cases “in which the applicant seeks relief” [on a writ from a judgment of conviction other than death or community supervision]. This would appear to require at least some affirmative action on the part of affected defendants in seeking help.

But then, this wasn’t about what the statute demands of the prosecution. This was about the Tarrant County District Attorney’s Conviction integrity Unit. If you want to use the word, bask in the applause and enjoy the appreciation of a grateful community, then you need to produce.

Integrity (N)

  1. The quality of being honest and having strong moral principles.
  2. The state of being whole and undivided.

Bennett raises the question of whether Boswell’s rationalization for the limits of responsibility suffice to enjoy the word “integrity.”

How do you make sure the people who need to seek habeas relief seek habeas relief? You get them lawyers.

But the first type of integrity—the quality of being honest—is for people. The second type of integrity—the quality of being whole—is for things.

Integrity is a nice word, generally considered a positive trait in people, but here’s an idea for Dawn and her Conviction “Integrity” Unit:

Convictions are things, not people. The state of being whole or undivided, in a false conviction? Not a positive trait.

And lawyers who defend the integrity of convictions they know not to have integrity? No integrity.

A wee bit pedantic? Well, sure, but it’s that trait that enabled Bennett to successfully argue the unconstitutionality of the law. And it’s not merely a matter of undoing the damage in Tarrant County of defendants unaware that they were convicted under a law subsequently held unconstitutional. Think a bad detective in Brooklyn who framed defendants. Think a lab tech in Massachusetts who faked results.

To possess integrity is to not merely do the right thing in the first place, but undo the wrong thing when you become aware of it. It can be unpleasant, doing a lot of work that one could avoid by arguing one’s way around it, the limitations of what the law specifically demands of you. There are excuses available. There are explanations upon which you can seize.

But there is a difference between doing one’s job, the least amount one can do while fulfilling the technical expectations and demands, and having integrity.

As prosecutorial “Conviction Integrity Units” have become fashionable, to the applause and adoration of the crowd when they produce the occasional exoneration of an innocent person who spent decades wrongfully imprisoned, there remains a question floating below the surface, just out of sight of their fans. Are they doing all they should, they could, be doing?

Integrity rarely comes cheap and easy. While Dawn Boswell, chief of the Tarrant County District Attorney’s Conviction Integrity Unit may be right in her assertion that her “actions would satisfy any obligation” she has under the statute, that may be sufficient for a system that wasn’t designed to fix its mistakes, but it’s not integrity.

*The exemplar was the letter sent to the district attorney of Bexar County.

23 thoughts on “Integrity, To A Point

  1. Richard Kopf


    “Hook’em Horns?”

    While not entirely analogous, when a major amendment to the Guidelines regarding drug quantities was made retroactive a similar problem took place all over fed-dom. There was a concerted effort by each federal district court, the local FPD, the local USA and the local USPO and the Bureau of Prisons to determine what offender might be eligible.

    In the District of Nebraska alone, we had over 700 such cases as a result of one Guideline Amendment. A process was set in place for the FPDs to bring actions for those offenders who were truly eligible and because of cooperation from the USAs and USPOs most of the cases were resolved by short hearings based upon stipulations after short form investigations of the prison records of the offenders had been completed.

    Since the Texas DA has apparently filed notices with the Texas court system regarding who might be eligible for relief, it would seem to me that the ball is now in the courts’ court. I don’t know anything about Texas law or its judiciary, but one would think that the Texas court system possesses sufficient integrity (to use the word you and MB emphasize) that it would take the bull by the horns, so to speak.

    All the best.


    1. SHG Post author

      It may well be an exercise of integrity on the part of the courts to clean up the mess, but does that absolve the DA from doing everything it can as well? The judges didn’t demand that the DAs prosecute defendants under an unconstitutional law, not that they helped by their complicity.

      Is there not enough integrity to go around to expect everyone in the system to do all they can to correct their failures?

    2. David

      “one would think that the Texas court system possesses sufficient integrity”

      Judge, you are hilarious. When you retire I see a bright future on the comedy club circuit.

        1. Billy Bob

          And the less he knows, the better off he and the rest of us,… Just saying’. I don’t think Texas is known for its great legal minds? Anecdotally, justice there comes at the end of a *long gun*. That is what its reputation is, worldwide. However, it is a large, diverse place with a great deal of natural resources (oil), sunshine (solar energy), wind enerrgy and *human potential*. We’re not giving it back to the Spaniards, no way, Jose. Plus, Bush #43 lives there. Why, only God knows. Their *arts* are nothing to sneeze at either. You just have to learn how to talk slowww, with a “twang”.

    3. Mark Bennett

      Filing notices with the court system regarding who might be eligible for relief is the obvious step that I’m suggesting and Ms. Boswell is rejecting.

      1. SHG Post author

        Are you and Judge Kopf talking about the same thing when you say “filing notices”? Boswell says she filed letters providing notice of impacted defendants. Is that all you’re asking for? Are you not seeking Boswell to ask the court to assign counsel for the affected?

        1. Gretz

          Filed where? On display in the bottom of a locked filing cabinet in the cellar of the records department stuck in an disused lavatory with a sign on the door saying “Beware of the Leopard”?

          (With apologies to Douglas Adams)

        2. Mark Bennett

          The TCDAO sent letters to defendants. Without counsel to explain their rights, most of those defendants have no idea what to do with the letters. I’m asking that the office bring these defendants to the attention of the courts (*that* court system).

          1. SHG Post author

            Your first two sentences are what I understood you to mean in your original post. The third sentence lacks clarity: “to the attention”?

            1. Mark Bennett

              I apologize for the unwonted lack of clarity. There’s an argument that Texas judges don’t have any power to appoint habeas counsel in this situation, absent a request from the DAO.

              So notification, in my mind, would be “Dear Judge: This person has been convicted under an unconstitutional statute. If they are otherwise qualified, please appoint them counsel.”

              Rather than “Here, clerk, are copies of letters we sent to defendants.”

            2. Nemo

              Between Mr. Bennett’s comments and the letter in his post, the defendants, the district clerk, and the Chief Judicial Counsel have been notified.

              IANAL, of course, but seems pretty clear to me that, while those people have been notified, the situation has not been brought to the official notice of the court. Rather, DA gave “enough” notification (in her opinion) by notifying people who cannot give official court notice, and may or may not forward it to the court for official notice. In short, she passed the buck to (presumably) dead ends, and declared her office had done all that needs doing.

              Bureaucrats always find it easiest to say “no” and shuffle nuisances away to places where they can be ignored until they are moot, so action arising from these notifications is unlikely.

              Of course, if I am incorrect, perhaps he will further clarify, but seems pretty clear to me as to what’s going on down there.

  2. Rojas

    About Fort Worth society it was once observed, the only unforgivable social crime was to overdress.
    All hat and no cattle comes to mind.

      1. Rojas

        I was referring to DA Sharen Wilson who obviously views her Conviction integrity unit as a fashion statement. The objective test being they are ignoring their mission statement.

  3. B. McLeod

    The second meaning of the term “integrity” (that notion of being “whole and undivided”) is for people as well as things, and more importantly, for institutions (things made up of people). For people (and institutions), it denotes directional consistency, and the notion that a person or institution of “integrity” does not take one action or decision in one moment and a diametrically opposite action or decision in the next.

    In many of Ronald Dworkin’s writings on jurisprudence and institutional “integrity” the term is used in this sense and not in the sense of honesty or moral principles. When one person is freed for an offense because it is unconstitutionally infirm, and others are held in prison for the same offense, the courts and the law as institutions are acting inconsistently, and so the approach in internally conflicting rather than whole and undivided, and lacks “integrity” for that reason.

    1. SHG Post author

      The legal system isn’t a thing, much as it mostly acts as if it is, but just people hiding or exercising their personal integrity within the institution.

      1. Billy Bob

        What a pity! It’s a pitiful thing to behold. Lack of integrity within the instituition is like,… let me think, a house of cards on a three-legged card table in a hurricane. “The legal system is not a thing,…” Tell that to the judge!

      2. B. McLeod

        It’s alright for you to tell yourself that at trial, where you have human jurors deciding facts and a judge ruling on legal issues. But post-conviction, the system is a thing. Jurors have forgotten their deliberations, and judges have passed on. The conviction continues to speak, like a standing order, until living, breathing people, through available procedures, do something to make it not. So it is a thing. It is a thing that can be interfered with and changed, or it can be not. If no people take actions to secure a change, the thing, and its default principles, will simply keep on keeping on.

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