WHEN AN APPEAL GOES WRONG: A 'CRIMINAL JUSTICE NIGHTMARE'.

Author:Dow, David R.
 
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  1. INTRODUCTION

    When American civilization finally crumbles, and future historians download the wreckage, it is conceivable that they will cite the case of Jerry Hartfield to explain to their curious audience how law and justice in our time could be so bluntly subverted by the very men and women whose job it was to administer it. Look how these public officials elevated form over substance, our descendants will say; look how hard they defended such manifest injustice. Look how long it took for the justice system to do justice, even after it became clear to the world that a man was imprisoned for decades without a viable judgment against him. (1) June 12, 2017, was Jerry Hartfield's first day of freedom in almost forty-one years, even though he had prevailed in the 1980 appeal of his death sentence. (2) The Texas Court of Criminal Appeals (CCA) ordered a new trial in that proceeding, but years, and then decades, went by and no new trial was held. Hartfield spent more than thirty years in a Texas state prison before he finally saw the inside of a courtroom. In this article, we tell his story.

    In Part II we provide an overview of Hartfield's federal and state appeals. In Part III, we discuss the procedural history in greater detail. In Part IV, we discuss the central legal issue presented by Hartfield's case--the right to a speedy trial. In Part V, we touch on an ancillary matter and reflect on the perverse incentive created by the Fifth Circuit's disposition of Hartfield's pre-trial habeas application. Finally, in Part VI, we offer some concluding thoughts.

  2. OVERVIEW

    Incarcerated since being arrested in September 1976 for the murder of Eunice Lowe, Hartfield had always insisted on his innocence. (3) But he was nonetheless convicted after his 1977 trial and sentenced to death. (4)

    In 1980, the CCA vacated Hartfield's conviction and ordered a new trial because a potential juror was wrongfully excused for cause. (5) That new-trial order was not carried out. Instead, the Governor purported to commute Hartfield's sentence to life in prison. (6) But because the CCA's order had become final before the State sought a commutation, (7) the Governor lacked the power to commute the sentence, and his action had no legal effect.

    Hartfield, whose IQ places him in the category of mild-to-moderate intellectual disability, (8) is barely literate and could not engage the courts on his own. But a fellow inmate realized in 2006 that Hartfield was more than two decades overdue for his new trial and filed multiple post-conviction applications for writs of habeas corpus and petitions for writs of mandamus in the CCA seeking one. (9) In response, the CCA issued a series of boilerplate denials. (10)

    In 2007, Hartfield's inmate adviser finally resorted to filing in federal court. That court realized something unusual was going on in Hartfield's case and appointed the federal public defender's office to represent him. Thus began an almost decade-long period during which the State argued repeatedly that Hartfield was not entitled to the new trial that its highest criminal court had ordered.

    This initial round of federal proceedings culminated in the Fifth Circuit's certifying a question to the CCA, asking whether the Governor's commutation had been effective, and if not, whether Hartfield's confinement was justifiable on some other basis. (11) We took over Hartfield's representation at that point, and our first action was to ask the CCA not only to answer the Fifth Circuit's question, but to find Hartfield's confinement unlawful, open one of the dismissed habeas applications, and order Hartfield released.

    The CCA did not take that bold step. Nevertheless, six months after agreeing to answer the certified question, the CCA issued an opinion explaining that because Hartfield's conviction and sentence were vacated upon its earlier order's becoming final in 1983, the subsequent attempt to commute the sentence was ineffective and invalid. The CCA also confirmed--as the federal courts had speculated--that Hartfield had failed to exhaust his speedy-trial claim in state court and that it had denied relief on the pleadings filed in 2006 and 2007 because Hartfield had failed to raise his claim in a procedurally correct vehicle. The CCA then noted that Hartfield could exhaust the speedy-trial claim in either of two ways: through a pre-trial application for a writ of habeas corpus (which would be immediately appealable), or by a motion to set aside the indictment (which could be appealed only after a subsequent trial). (12)

    A week later, we heeded the CCA's advice and filed a pretrial habeas application in the state trial court raising Hartfield's speedy-trial claim. The trial court viewed the application as a demand for new trial as well, and so, while proceedings on the speedy-trial claim were pending, proceedings toward giving Hartfield the new trial that the CCA had ordered thirty years earlier were at long last initiated.

    The proceedings in the trial court revealed the first hint of the State's strategy of resistance: the district attorney took the position that the CCA had been wrong when it held that Hartfield could raise the speedy-trial claim in a pre-trial writ. The trial court, however, was not inclined to take up the prosecutor's suggestion that it effectively overrule the State's highest criminal court, and so it addressed the merits of the claim.

    As was appropriate, the trial court used the four-factor test announced in Barker v. Wingo (13) as the framework for its speedy-trial analysis. Concluding that three of the four factors weighed in favor of Hartfield, it also found that the third factor--Hartfield's delayed assertion of the right--weighed against him so heavily that he was not entitled to relief. As we later argued on appeal, the trial court failed in analyzing the third factor to consider at least three salient matters:

    * The CCA had ordered a new trial, but the trial court had neither initiated new proceedings nor taken any steps to have Hartfield returned to county custody from State custody in preparation for a trial;

    * Because Hartfield was in State custody throughout the delay, his case was fundamentally unlike those in which an individual who is entitled to a new trial but living in freedom is found to have an affirmative obligation to act; and

    * Hartfield is intellectually disabled.

    All these factors should have been considered in the court's analysis because any one of them might have made a difference in the outcome.

    Once we appealed the trial court's decision to the Texas Thirteenth Court of Appeals, the district attorney's office re-urged the position it had taken in the trial court: that the CCA had been wrong when it identified the pre-trial writ of habeas corpus as an appropriate vehicle by which to raise the speedy-trial claim. This time, however, the court took up the district attorney's invitation and ruled--in a stark repudiation of the CCA's order--that Hartfield's claim was not cognizable in a pre-trial writ. (14) We immediately asked the CCA to grant discretionary review to enforce its earlier decision. Without explanation, the CCA refused.

    Having failed when using a procedural vehicle identified by the state's highest criminal court as an appropriate way in which to raise the speedy-trial claim, we resorted to a pre-trial habeas petition in federal court. (15) When the district court denied habeas relief, we appealed to the Fifth Circuit, which set the case for argument. Before the argument could occur, however, the State began an accelerated push to commence trial proceedings in state court and Hartfield was quickly convicted. (16) The Fifth Circuit then dismissed the habeas petition as moot, holding that in order to proceed on a pre-trial habeas petition in federal court, a petitioner must be under no conviction when the habeas court issues its opinion.

    Hartfield returned again to the state courts. His second trial had been the quintessence of a perfunctory procedure given the three-decade delay. Many important witnesses had died; those still alive possessed only faded memories; and most critically, much of the physical evidence--including the murder weapon and the victim's car--had been lost, making it impossible to test Hartfield's claim of innocence with scientific analysis that might have shown whether Hartfield actually came into contact with either. Despite this prejudice to Hartfield, the jury did not find Hartfield guilty of capital murder, as the State had hoped. Instead, Hartfield's jury found him guilty of simple murder and sentenced him to life in prison.

    Hartfield then appealed a second time to the Texas Thirteenth Court of Appeals, which on this occasion addressed the merits of the speedy-trial claim. It found that Hartfield's right to a speedy trial had been violated, ordering that the indictment against him be dismissed with prejudice. But the government was not through resisting. It asked the CCA to grant discretionary review, and after the CCA declined to do so, the attorney general's office asked the United States Supreme Court to grant certiorari. On November 27, 2017, the Court denied the petition. In the meantime, Hartfield had been released.

  3. A CLOSER LOOK

    On September 17, 1976, somebody murdered Eunice Lowe, who worked at the Continental Trailways bus station in Bay City, Texas. Her car and the money from the cash drawer at the ticket counter were both taken from the bus station, and there was evidence that she had been sexually assaulted after her death. (17)

    1. The Criminal Investigation

      The first lead in the case came from Deputy Sheriff Dennis Brooks, who told Texas Ranger Carl Weathers, head of the investigation, that he had been called to the residence of an older woman the day before the murder about a black man who had come into her house saying he needed to use the phone. The man had given Brooks a false name, (18) and it is not clear from the record how...

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