I recently prevailed on an 11.07 writ of habeas corpus for a client who had been convicted of one of the most serious allegations in the Texas Penal Code — Continuous Sexual Abuse of a Child.
Of course I was elated on the night that the Court of Criminal Appeals issued the opinion agreeing with the trial court’s findings. My client would get a new trial. He would get to bond out like any other defendant and return to his family. We had done what had seemed nearly impossible — convince the Court of Criminal Appeals to give my client another opportunity to fight for his freedom even after a Texas jury had convicted him of a terrible crime (in the face of my client’s continued and unwavering claims of innocence).
But, speaking generally now, it is hard not to feel a ceaseless sense of struggle, even when we win the post-conviction legal battles.
Part of the reason is obvious. If a client gets a new trial, he still faces conviction. Although many successful 11.07 writ cases end of pleading on more favorable terms for the defendant on remand (for reasons that can only be addressed in a separate blog post), the prospect of fighting the case again is always stressful, even when the client “has the wind at his sails” with a recent victory.
But there is a subtler force at work: the relentless grind of time.
11.07 writs take a long time to prepare, draft, and litigate. The writ litigation can bounce back and forth between the court of conviction and the Court of Criminal Appeals. Even when the State admits a mistake was made and the trial court agrees (a small miracle), I must all still to fight for my client in the Court of Criminal Appeals. And then we must all wait while the Court of Criminal Appeals “grades our homework” (at least that’s what it feels like) and makes an independent review of the record before deciding whether to agree with the trial court – and that can take anywhere from 3 months to more than a year.
Additionally, even when relief is granted, there is no instant satisfaction, aside from the initial adrenaline rush of reading the court’s opinion. Procedural hurdles remain. First, nothing happens after a Court of Criminal Appeals Opinion until mandate issues. So everyone just has to sit around waiting for the magical power of mandate. Will it take 10 days? 30? No one knows. Second, even after mandate issues, the court of conviction has to issue an order returning the client to the county, set bond, and figure out either the next court date or issue a scheduling order. That means transport vans, administrative paperwork, and cooperation between county sheriff offices and TDCJ.
Meanwhile, the client is still sitting in prison and the family, which has been patiently waiting for years, has to endure more stress and concern for their loved one.
What’s the point of writing about all this? I want to emphasize that the road to legal victory after conviction is long. It requires patience, probably a little luck, and decision makers (judges and yes sometimes even prosecutors) willing to see the new facts we bring to light with an open and fair mind.
There is no “get out of jail fast” card in this game!
But just remember, there can still be a light at the end of the tunnel. For those of you still fighting, don’t quit just because the road is long.