Check out Ex parte Tulley: "The decision to [falsely] plead guilty, as we have seen in this case, may be influenced by factors that have nothing to do with the defendant's guilt. The inability to disprove the State's case, the inability to afford counsel, the inability to afford bail, family obligations, the need to return to work, and other considerations may influence a defendant's choice to [falsely] plead guilty or go to trial"

Why are they willing to encourage people to lie? Why are they condoning pleading innocent people guilty for reasons that NEVER can justify such an action? Why does the court not recognize overriding law saying that persons who cannot afford counsel are entilted to appointed counsel? Why does the court not recognize that defendants are entitled to reasonable bail? There are some serious defects here.

[This message was edited by John Rolater on 12-18-02 at .]

Didn't Judge Cochran, just the other day, author an opinion that was joined by the Court, saying that there is NEVER an excuse for lying under oath. Isn't that what happens when a defendant pleads guilty and judicially confesses, only to change his story years later when he makes a claim of innocence? Shouldn't the defendant be prosecuted for aggravated perjury?

So, now we need to ask during a guilty plea, "Mr. Defendant, do you understand that years from now the victim, after hearing that you have served some time in prison, could decide to recant? And do you agree that the victim would be incorrect, because today you are swearing that you did, in fact, commit this crime?

This last year, I had a lawyer file a writ based on a recantation. We met with the victims (two girls) and took their recantation to the recantation. I contacted the lawyer and advised that I would be demanding a full evidentiary hearing and seeking a perjury indictment against the defendant. The defendant withdrew his application.

A guilty plea, if done correctly, should be given greater deference than recognized by the Court of Criminal Appeals today. And prosecutors should be willing to take two inconsistent sworn statements and prosecute the defendant for aggravated perjury.

Not to completely change the subject but occasionally I've had defendants that, for whatever reason, want to plead no contest and modify the stipulation, so that instead of directly admitting that they committed the elements of the offense, to something to the effect that "the State's evidence would show..." or "witnesses would testify that I intentionally and knowingly, etc..." I've never seen one of these types of stipulations addressed by an appellate court. What, if any, concerns does anyone have about this type of plea and stipulation? Personally, I don't really like this type of plea, and view it as something of a cop out, but sometimes, particularly where the victim's were reluctant to testify, I've felt that I've had little choice but to go along with it in order to get the conviction.

Don't Do It.

You will eternally regret it, particularly if it is a sex offense. The defendant will resist treatment, appeal his case, bother his probation officer, and continue to be a big pain in the bohunkus.

John, don't you cover this in The Perfect Plea?

I do not suppose anyone would quarrel with the idea that we should not continue to punish someone whose innocence has now been established. But if the Governor is not willing to issue a full pardon, why should the courts be involved in re-determining the truth? Use of recantations as evidence of innocence is bewildering to me. A witness who only proves herself capable of lying and guilty of aggravated perjury is instead trusted as capable of proving a negative. Is it not still possible to say the witness lied at trial or the witness is lying now, and only she knows for sure? I just do not think there is such a thing as a "really credible" recantation, no matter how weak the initial claim was. I'm ok with impeaching the weight of the testimony by DNA or some other means that can be pretty well verified. But self-impeachment seems fundamentally different to me especially when considered in the light of a confession by the accused. I have to agree that two lies do not make a truth, but they probably ought to at least make it impossible to know the truth. This decision may not cause any problems for the habeas courts, but I think more victims/witnesses will now be pressured more often.

The Defendant in Tulley decided, after a hung jury, to plead guilty. He removed the opportunity to have someone decide his guilt in the course of an adversarial process. If that decision was voluntary, how in the world can anyone say it should be altered by a court on a theory that some constitutional error took place?

If Tulley is, in fact, innocent, a decision that is not certain when there is a recantation, then the removal of a verdict of guilty should occur through the clemency process, not the judicial process. The judiciary is designed to examine whether there has been a fair trial.

By continuing to use the judicial process to decide innocence, our judiciary shows little respect for the jury system. Now, a single trial judge can overturn a decision made by 12 jurors, on the basis of that single trial judge's factual opinion.

Isn't it interesting that the alleged innocence/recantation cases have largely involved child victims who are subject to being influenced by the defendant and his family?

[This message was edited by John Bradley on 12-19-02 at .]

quote:

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By continuing to use the judicial process to decide innocence, our judiciary shows little respect for the jury system. Now, a single trial judge can overturn a decision made by 12 jurors, on the basis of that single trial judge's factual opinion.

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Just to clarify for the viewing public, John, you mean the post-conviction judicial process, right?

My two Tulley questions are:

(1) When this is all said and done, if/when he walks, does Dallas County go after Mr. Tulley for perjury? and
(2) How long before Mr. Tulley files his suit to recover damages from the state under CPRC Ch. 103? As J. Price points out, there's no bar to him doing so -- there isn't even a provision that would allow the judge to reduce the award based upon Tulley's self-inflicted damages. Personally, I hope he goes for it, just to point out the absurdity of this whole thing.

I'm hoping for a perjury indictment and a change of venue to Williamson County, but I'm not the one in charge.

The issue here in not so much whether someone can ever legally challenge a guilty plea with a claim of actual innocence. The issue is the absurdity of the factual finding of the convicting court and the support of that finding by the CCA.
The standard is clearly whether, after considering the evidence of guilt, "the applicant has proven by clear and convincing evidence that no reasonable juror would have convicted the applicant in light of the new evidence." The opinion states that 2 reasonable jurors would have convicted the perv based on the evidence at trial. So it boils down to the recantation vs. the judicial confession.
How can anyone claim that no reasonable juror would take a defendant's word for it? Anyone who has ever handled child sexual assault cases can tell you that a recantation does not establish, as a matter of "fact," that the crime did not occur. A defendant's confession should clearly hold enough weight to overcome a finding that the recantation must be believed by any reasonable juror.
What's even more absurd is that the convicting court claims to have not been convinced, at the time of the plea, that the plea was voluntary or that the judicial confession was true. Yet she took the plea anyway! Thanks to her, we all have bad law on the books for other bad judges to misinterpret.
For the record, I had a case very similar recently. The perv pled guilty and got probation (no jury trial). His probation was latter revoked. Several years latter he filed a writ claiming actual innocence with a recantation attached. We had a hearing, the judge found the recantation to not be credible, and denied the writ. The CCA accepted that finding.

Shannon, you are correct that I mean to say that the judicial system is poorly designed to address issues of innocence AFTER THE NORMAL PROCESS OF APPEAL HAS TAKEN PLACE.

Years after a conviction and sentence and appeal are completed, courts are very poor places to examine whether a defendant is innocent. Historically, such decisions were made by people who were in a position to consider whether mercy was appropriate.

The common criticism to that type of decision-making has been that governors don't grant pardons. I'm not sure that wrongly granting new trials in the name of innocence is any better.

Aggravated perjury is probably not available. The defendant conveniently waited until the statute of limitations expired on his false judicial confession. (How can a claim of innocence, made at a time that the defendant is not exposed to prosecution for aggravated perjury even be considered credible?)

The common factor in all of these cases is a trial judge who is willing to make findings of fact favorable to the defendant. But, to say as a matter of law that a trial judge can place a delayed recantation above a voluntary judicial confession is just ridiculous.

We will now be asking the defendant, in addition to his judicial confession, "If the victim was to testify, would her testimony that you committed this crime be true or not true?"

Obviously a case does not go to Grand Jury without some reasonable belief by the prosecutor that the evidence will sustain the charge.

I just think of the 5 men in prison in New York for Rape. They confessed. They confessed to the whole crime. Later, we learned that they weren't even at the crime scene. The DNA PLUS a confession pointed to another man. These 5 men were innocent, yet they CONFESSED!

Well, I hope New York has a law like the Texas law that allows perjury charges if the men lied to a police officer during an official investigation. Then, they can all be tried for the offense that they are truly guilty of, LYING.

Would Justice be served? That is what we are here for, isn't it?

Happy Holidays