By Rehana Vohra
Assistant District Attorney in Harris County
There is nothing more upsetting than telling a victim or next of kin who thought they had closure with a defendant’s guilty plea or conviction, “I’m sorry, but the Court of Criminal Appeals granted habeas relief and he received a new trial.” And sometimes, “a new trial” actually ends up in a dismissal of the case because the evidence or witnesses are no longer available.
With the hope that this article can protect a righteous conviction from that fate, I’m here to offer a few practical tips I have learned along the way. I am a post-conviction writ prosecutor in Harris County handling ineffective assistance of counsel, prosecutorial misconduct, actual innocence, and “new science” claims since 2016. Before that, I was your typical line prosecutor handling felony cases in a district court. Here, I hope to share some practical lessons I wish I had learned before I started trying cases myself.
Document, document, document
This is an obvious but important first tip: document your file. It’s best not to rely solely on your personal recollection when it comes to what happened with a case you handled, especially if that case resulted in a lengthy prison sentence. You may have forgotten the details of that case, but the defendant sure hasn’t stopped thinking about them.
Document any disclosures to the defense. Document plea offers and the defendant’s rejections of those offers. Document any counteroffers by the defense that the State rejected. If a plea is not on the record, document any judicial admonishments or agreements of the parties that were not reduced to writing and filed. Document what the defense shared with you about the client’s mindset about the case (e.g., he wants some type of community supervision, he won’t take anything above a five-year sentence, or he’s not taking anything and insists on his right to a jury trial, etc.) We hope that the defense attorney is also documenting his or her file accordingly and that the file is still available, but sometimes that doesn’t happen for any number of reasons. A prosecutor’s contemporaneous note-taking during a discussion with a defense attorney can shed light on an issue many years later. If your notes are handwritten, make sure they are readable and that they would make sense to a third party. It is also helpful to write the date of the conversation, any additional people present, and the context in which the conversation occurred.
Document events that happened during trial that you did not get a chance to put on the record or were prevented from putting on the record—especially if something weird happened. A silent record might be OK on direct appeal, but it is not helpful on a post-conviction writ of habeas corpus 10 years later when you cannot remember what happened and someone like me is now asking you questions. If there isn’t any documentation to refute a post-conviction claim, a writ lawyer on the defense side can twist what was a non-issue into one of the worst acts of lawyering or misconduct you’ve ever heard. The lesson is that right after a trial or plea is over and before you close that file, document it while everything is still fresh.
I handled a post-conviction writ in which the habeas attorney claimed that the State failed to disclose exculpatory, material evidence under Brady v. Maryland and the defendant would not have pleaded guilty had he known about this information. It dealt with whether the State’s experts were in agreement that the victim’s injuries were consistent with sexual assault. After I spoke with the trial prosecutor, it was clear to me that the defense attorney knew the information, but the disclosure was not explicitly documented in the State’s file or on the record. Providentially, the defense attorney had mentioned this controversy between the State’s experts in one of his unsealed vouchers. I was able to rely upon this public document to demonstrate that the defense attorney knew about the Brady material, contrary to what habeas counsel represented.
While we are on the topic of documentation, remember that notes, emails, and memos might sometimes be produced, with or without redaction, to a writ lawyer through a public information request. Be mindful of the future readers of the file. Nothing compares to the shock of seeing a real live email you sent, no matter how innocuous or irrelevant it was, attached as an exhibit in a post-conviction writ application. While your office’s in-house lawyers should claim any work-product privileges on your behalf, they will probably still err on the side of disclosure when it comes to information in the file or elsewhere, especially if it could be considered exculpatory or responsive to an outside request. Strive to be professional in your note-taking and communications.
Exercise a bit of restraint during trial
It’s very exciting when the defense attorney opens the door to an avalanche of extraneous offenses that the State can now introduce to the jury, but think about the post-verdict impact of the admission of that evidence. It’s difficult for a defendant to win an ineffective assistance of counsel (IAC) claim on direct appeal unless the deficient performance and prejudice is firmly rooted in the record.[1] IAC claims will generally lose on direct appeal because the defense attorney gets the legal equivalent of the benefit of the doubt.
However, in a post-conviction writ when IAC is alleged, the trial court gets to learn outside-the-record information about the defense attorney’s strategy through an affidavit or live testimony, and that can become a problem for the conviction. If the defense attorney gives credible testimony that it was error on his part when he opened the door, that righteous conviction is now hanging in the balance if the defendant can also demonstrate that the error harmed him during trial.[2] Don’t get me wrong, I will still argue how strong the evidence was on its own (if it was) or how no amount of excellent lawyering by the defense would have helped (if that’s true), but consider all of that first before walking the evidence through the open door.
Understand the limitations of the applicable scientific field
There have been an influx of post-conviction writ claims having to do with new scientific evidence or the evolving standards of forensic science. Article 11.073 of the Texas Code of Criminal Procedure went into effect on September 1, 2013, and it provided an avenue for relief involving new scientific evidence. Article 11.073 covers everything from new DNA evidence to a recanting scientist.[3] Given that this type of post-conviction relief has a lower standard of proof (a preponderance of the evidence) than an actual innocence claim (clear and convincing evidence), trial prosecutors should be aware. In fact, the Court of Criminal Appeals recently granted Art. 11.073 relief in a case[4] involving “shaken baby syndrome,” which is now more commonly referred to as “abusive head trauma,” as it is the more inclusive term.[5] While that decision contains a fact-specific analysis and the State joined in on relief, it is worth mentioning that the Court of Criminal Appeals has been generally more receptive to these “new science” claims filed under Article 11.073.
As a practical tip, a forensic scientist or other expert at trial should be conveying the parameters and limits of his or her testimony and the science itself, and prosecutors should make sure to properly vet that testimony or evidence before presenting it to a jury. At the end of the day, a State’s expert can sway a jury in deciding a contested factual issue in the case. That expert testimony can add credibility to the case theory or corroborate another witness’s testimony through forensic evidence. Consequently, it is best not to push questions into territories that aren’t appropriate for that particular scientific field or for that particular type of expert.
Communicate with the victim and next of kin
Victims and their family members need to know about the entirety of the legal process when it comes to a criminal conviction. Articles 56A.051(a)(3)(A) and (a)(4)(B) and 56A.051(b) of the Texas Code of Criminal Procedure require this. If a righteous conviction ends in a righteously long sentence, you can bet that the newly convicted defendant probably will not stop at a direct appeal. He might represent himself on a post-conviction writ or hire a writ lawyer to represent him. As a general practice, I will inform the victim and/or next of kin about the existence of a post-conviction writ, particularly when the judge orders a live evidentiary hearing. They might already have received a notification through the VINE system[6] when the defendant is moved from the prison unit to county jail. It’s really hard to explain to victims, when they were told by a previous prosecutor that their ordeal was finally over, that it’s not quite finished with a pending writ. It’s disorienting and overwhelming. It’s important to be up-front with victim-witnesses that there will be a direct appeal and possibly a post-conviction writ after that. They deserve our transparency. Ideally, the trial prosecutor should set aside time after trial to debrief the victim and family and explain the post-conviction process, which includes the direct appeal and a possible writ. The prosecutor handling the direct appeal should remind the victim and family once again after the direct appeal is affirmed that there is a potential for a post-conviction writ.
Trial prosecutors should be aware that there is no statutory limitation on when a defendant can file a post-conviction writ. He can file it as soon as the mandate issues on the direct appeal, or he can file it 20 years later. Nothing can stop a post-conviction writ from being filed in the first place. However, the State can rely on a doctrine known as laches to respond to claims made on cases that are old when we can demonstrate we are prejudiced by the delay.
In 2012, the Court of Criminal Appeals expanded the definition of prejudice under the existing laches doctrine to include “all forms of prejudice” and “anything that places the State in a less favorable position.”[7] There is also a general but loose rule that waiting longer than five years after a defendant’s conviction is final to raise a claim is unreasonable.[8] Previously, the Court of Criminal Appeals considered prejudice to the State only insofar as the State was prejudiced in its ability to respond to the allegations in a post-conviction petition.[9] But in deciding Ex parte Perez, the Court of Criminal Appeals allowed the State to show it would be prejudiced in its ability to retry a defendant if he were granted a new trial through habeas relief. Again, the State can and should raise laches if a defendant has slept on his rights to the extent that memories have faded and evidence has been lost.
That being said, laches is an equitable balancing test, and the Court of Criminal Appeals has still granted habeas relief in cases where the State raised laches.[10] It is best for prosecutors to not solely rely on laches to shelter a righteous conviction.
Conclusion
I hope this article can serve as a reminder that years after prosecutors, the defense attorney, and the judge have forgotten about the case, the person serving the sentence—as well as the victim and family—have not. Every trial prosecutor should be aware that a convicted individual may file a post-conviction writ with the hopes of selling a different story to a new audience. But it is our duty as prosecutors to see that justice is done all the way through to the end and to utilize the tools we already have at our disposal to do so.
Endnotes
[1] See, e.g., Andrews v. State, 159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005).
[2] See Strickland v. Washington, 466 U.S. 668, 686 (1984) (to prove that trial counsel failed to render the effective assistance of counsel, the defendant must show by a preponderance of the evidence that the performance was deficient in that it was beyond the bounds of prevailing, objective professional standards, and then show the deficient performance was prejudicial).
[3] See, e.g., Ex Parte Kussmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018) (had the post-conviction Y–STR DNA testing results been presented at trial, defendants would not have pled guilty or been convicted at trial); Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014) (medical examiner’s revised opinion was new scientific evidence based on change in her own scientific knowledge).
[4] Ex Parte Roark, —- S.W.3d ——, 2024 WL 4446858 (Tex. Crim. App. Oct. 9, 2024).
[5] A. Choudhary, et al, “Consensus statement on abusive head trauma in infants and young children,” Pediatric Radiology (2018).
[6] https://vinelink.vineapps.com/state/TX/ENGLISH.
[7] Ex parte Perez, 398 S.W.3d 206, 208, 215-16 (Tex. Crim. App. 2012).
[8] Id. at 216.
[9] See Ex parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999).
[10] See, e.g., Ex parte Saenz, 491 S.W.3d 819, 825-826 (Tex. Crim. App. 2016).