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Innocence Is Irrelevant: 20th Anniversary Edition

It was such a straightforward and simple case. Everyone agreed about the mistake. In 1997, Michael Wayne Haley stole a calculator from a Walmart in Texas and tried to exchange it for other merchandise. This would-be petty theft became a “state jail felony” under Texas law because Mr. Haley had two prior convictions. Under this enhancement, Mr. Haley faced a maximum of two years in state prison. That would be bad enough under ordinary circumstances.

But, there’s more. Texas also has a habitual offender statute. To be guilty as a habitual offender, the government must prove that the defendant, “has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, ... shall be punished for a second-degree felony.” § 12.42(a)(2) (emphasis added). A second-degree felony carries a minimum sentence of 2 and a maximum sentence of 20 years in prison. § 12.33(a) (2003).

A jury found Mr. Haley guilty as a habitual offender and recommended a 16 and a half year carceral term which the judge adopted and Mr. Haley began to serve…for stealing a calculator from a Walmart and seeking to exchange that item for other merchandise. His prior offenses were a 1991 conviction for delivery of amphetamines (no information was provided for the amount of this delivery) and a 1992 robbery (again, no information was provided as to the details of the robbery). Sixteen and a half years. For a calculator. This is why habitual offender statutes are brutal and unjust.


Here's the rub. Mr. Haley was not guilty of being a habitual offender under Texas law. His second felony occurred 3 days prior to the first one becoming final. Not a single person disagreed about this fact. Mr. Haley was serving more than sixteen years in prison for a crime he literally did not commit. So, what the heck are we doing in the Supreme Court? Just fix the problem, resentence the man, and move along, right? Not exactly.


Let’s take a time machine back to 2004. The governor of Texas was Rick Perry – maybe you’ve heard of him? He had a lot of nice things to say about people who do not share his particular brand of religion. The Attorney General of Texas, the person who insisted on taking the case to the Supreme Court after Mr. Haley won in the lower federal courts, was a guy by the name of Greg Abbott. He's also very kind. And, the Solicitor General - the guy who argued this case in the Supreme Court - was Ted Cruz. All of these men agreed that Mr. Haley was factually innocent of being a habitual offender.

They all agreed that everybody screwed up - the prosecutor was wrong to charge him, the defense attorney was ineffective for failing to recognize that Mr. Haley could not be convicted of this crime, and the judge had no jurisdiction to sentence him and send him to prison for any time exceeding 2 years. At the time the case was argued to the Supreme Court, Mr. Haley - who everyone agreed was not guilty - had already served seven years in prison; five years more than the law allowed. Perry, Abbott, and Cruz all had the power to release Mr. Haley from prison and none of them did so.

What makes Dretke v. Haley, 541 U.S. 386 (2004) even more repulsive is that the majority of the Court - who also agreed that Mr. Haley was not guilty - decided that actual innocence was nice, but not enough. Let's walk it through. Mr. Haley was charged by a (let's be charitable) neglectful and overworked (or possibly just horrendous - charity only goes so far) prosecutor who did not review the defendant's prior crimes sufficiently. He had a constitutionally ineffective attorney at the trial phase who failed to raise a motion to dismiss pursuant to In Re Winship, 397 U.S. 358 (1970)(Fifth and Fourteenth Amendment Due Process clauses require that all elements of a criminal offense must be proven beyond a reasonable doubt). He had a careless judge who did not realize that the case before him was one of actual innocence.

However, his appellate counsel did see the due process issue and raised it "for the first time" on appeal. Even though it was raised in conjunction with a claim for ineffective assistance of counsel, the state courts refused to consider it. Further, without any analysis of the ineffective assistance argument, the appellate court simply declared that trial counsel - who was definitely ineffective - was somehow not ineffective (even though both ineffective assistance of counsel and due process are constitutional issues generally meriting a higher level of scrutiny than an ordinary evidentiary issue). The state's highest court denied review. That brought the case into federal court via habeas corpus (because we cannot state it enough, the purpose of habeas corpus review was to act as a bulwark against fundamentally unfair convictions, a point corrupted and destroyed by the horrible AEDPA which really should be repealed).

Here is what happened in habeas: the state conceded that Mr. Haley was not guilty. However, rather than right the wrong and resentence him, the state argued that the sufficiency of the evidence claim was procedurally defaulted by failing to raise it prior to appeal. Just so we are clear - the prosecutor had no business charging the defendant with being a habitual offender because he was factually not a habitual offender under the law (and was a petty thief, not a violent guy) and Mr. Haley's trial lawyer dropped the ball. The state courts were just factually and procedurally wrong in their ruling because trial counsel was ineffective and Mr. Haley was factually innocent as pointed out by his appellate attorney. But, Mr. Haley should stay in prison for their mistakes due to a "procedural default" which, because it was raised with a claim for ineffective assistance, was not, even technically, defaulted? The hearing judge, a magistrate, and the District Court judge must have been flabbergasted. The state was ordered to resentence Mr. Haley.

Not so fast. Texas appealed. But, the Court of Appeals for the Fifth Circuit (not, by any stretch of the most expansive imagination, a compassionate court for criminal defendants) upheld the District Court decision and ordered Mr. Haley to be resentenced. So, the state - a really big state with myriad issues - asked the Supreme Court of the United States to hear the case (why? just why??) Worse - the Court agreed. It just loves procedural default.

At oral argument, the state agreed that Mr. Haley was factually innocent and that he had a really great claim of ineffective assistance of counsel, but that it would set a terrible precedent to just allow actually innocent people to roam the streets if their utterly ineffective trial counsel did not move to dismiss a claim that the government never should have brought (so, if you did not already have enough reasons to despise Ted Cruz, here is just one more). Of course, the only person who should suffer in this entire catastrophe is the innocent man behind bars! Well, there is no better argument for the majority than a procedural nightmare for criminal defendants - so they agreed.

For anyone thinking the Court recently got awful and was really very good before Trump (who, in 2004, was this guy who was not registered to vote or just did not know how to vote, and also this guy who did not quite understand the physics of a concrete wall, but also this guy who somehow was able to convince nearly everyone of anything even when he was blustering all the time). In 2004, Justice O'Connor wrote the Dretke v. Haley opinion in which Justices Rehnquist, Scalia, Thomas, Ginsberg (yes, that Ginsberg), and Breyer joined. Justice Stevens thoughtfully dissented joined by Justices Souter and Kennedy. It is a terrible, horrible, callous opinion that the Court never even would have addressed had it not been for the actors in Texas who insisted on bringing it to the Court's attention. However, that does not excuse the Court for being absolutely dreadful - even way back then when no one but lawyers were paying attention.

Twenty years is a long time. The Court has not reversed itself on this issue, even though it should. Don't hold your breath - it won't. It's not clear what happened to Michael Wayne Haley other than that he served significantly more carceral time than he should have. But, Rick Perry went on to run (okay, more like a jog) for president. Twice. In a debate, he said as president he would abolish the Department of Commerce, the Department of Education, and the Department of Energy. But, when the position was offered to him, he served as the Secretary of Energy anyway. Oops. Greg Abbott became the Governor of Texas. Ted Cruz became a United States Senator. Texas is still incarcerating the wrong people for long periods of time. The more things change, the more they stay the same.

This is not a happy anniversary. 20 years ago this week, a majority of the Supreme Court of the United States said the quiet parts out loud. It does not care about innocence in criminal cases. It does not care about due process as anything more than a procedural exercise. It applies a skewed and distorted interpretation of fundamental fairness, particularly when it comes to criminal defendants. It will not protect the rights and liberties of criminal defendants in the face of harsh prosecutors who serve only themselves and their own warped and twisted aims rather than the interests of justice. The Court will not defend the people against an authoritarian executive branch. Since then, with a new cast of characters, they have only doubled down.

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