A Dropped Ball

ex parte lo, seven years on

Today I realized that there are still, seven years after the Texas Court of Criminal Appeals held unconstitutional Texas’s “dirty talk to minors” statute, people registering as sex offenders for violating that statute.

If you’ve followed me for a while, you may know that my first big free-speech win was in Ex parte Lo, where I convinced a unanimous CCA that section 33.021(b) of the Texas Penal Code was facially overbroad under the First Amendment.

After Lo, I sent letters to many of the people who had been convicted or put on probation for violating the void statute, offering my services to reopen their cases with writs of habeas corpus and then seek dismissal, removal from the sex-offender registry, and expunction. I got this relief for several dozen people before winding up in the Texas Supreme Court arguing, against the Attorney General’s Office, that a person who had been put on probation for violating a void statute was entitled to expunction when the case was eventually dismissed:

I won that one. I was even able to get some of these clients substantial checks from the State, returned fines and probation fees.

My theory, when I was soliciting these cases, was that I would handle the ones where people had substantial resources, and leave the less affluent clients to the lawyers who would inevitably follow after me, doing approximately the same job for less money.

I say approximately because I doubt that many people would have fought the expunction appeals all the way to eventual victory in the Supreme Court of Texas, and I know of a couple of people who have clear records now thanks to me after some of the best-reputed postconviction lawyers in Texas told them they were out of luck. But in most cases, the lawyer playing off my work would have been perfectly adequate.

So yay me! That’s some consolation for what comes next:

I dropped the ball.

My theory—that others would come along behind me and do a volume business of clearing up this mess—was, as it turns out, wrong. Nobody else, as far as I know, made any special effort to take on these cases.

Most of these cases were obvious easy money, gold coins lying on the ground, and nobody else could be bothered to scoop them up by sending out letters to the people in their counties who needed the relief. So a bunch of people (numbers shortly to be determined, but apparently in the low three figures) have remained convicted of felonies, on probation or in prison, registering as sex offenders, for seven years after the statute under which they were prosecuted was held unconstitutional.

I’m going to go back and fix that now, as well as I can, but imagine the human toll of a hundred people living for seven years in an illegal state-built box. Felony convictions and sex-offender registration make it difficult to get a job, to find a home, to find a mate, to raise children.

All of those difficulties, for these people, were founded on a lie.

Some people think that when the state screws up—as Texas has repeatedly screwed up by prosecuting people for constitutionally protected speech—its errors are self-correcting: that the state has a mechanism for ensuring that the people it harms are made whole. And it probably should, but it does not.

Instead it leaves that task to people like me, motivated by profit and with other irons in the fire. And people like me drop the ball, so people stew for seven years, and even when we are firing on all cylinders, we cannot ensure that the people the state has harmed are made whole—there is no compensation for those people’s time in prison.

I’m usually most critical of myself, because I’m the only one whose self-improvement I know how to direct. And yes, I’m pretty critical of myself here, and I’ll get over my slackness when I’ve fixed as much of this problem as it is possible to fix.

But the incompetence of the great body of Texas’s lawyers and judges, I hope never to get over.

In 2018 the Court of Criminal Appeals granted post-conviction relief to an applicant who had been charged in 2014 under section 33.021(b). With the aid of counsel, that applicant—Colton Lester—had pleaded guilty and received five years deferred-adjudication probation. On September 14, 2016, his probation had been revoked and he had been sentenced to three years in the Institutional Division of the Texas Department of Criminal Justice. For Mr. Lester to have been sent to prison, defense counsel, the prosecutor, and the judge had to have been ignorant of (or had to ignore) Ex parte Lo two years after that case was decided.

Mr. Lester got compensation for his time in prison, because the statute had already been held unconstitutional before he was sentenced, so he was (according to the Texas Supreme Court) actually innocent, but for the crime of putting him there, someone should hang.

But next time—if the Court of Criminal Appeals agrees with me on the unconstitutionality of the harassment statute, or the revenge-porn statute, or the online impersonation statute—I’ll know. There’s nobody else lurking out there to fight for these people, so everyone pays what they can, and everyone gets my help.