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.
- The quality of being honest and having strong moral principles.
- 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.