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A defendant’s guilty plea does not preclude him from claiming in a post-conviction writ application that new evidence establishes his innocence, a sharply divided Texas Court of Criminal Appeals recently held. But prosecutors contend that the ruling will lead to a wave of habeas applications from convicts who pleaded guilty but now claim they have new evidence of their innocence. In a case of first impression, the Court of Criminal Appeals ruled 5-4 that there is nothing explicit in its 1996 ruling in Ex Parte Elizondo that prohibits or limits a court’s analysis of an actual innocence claim to jury or bench trials. The Court of Criminal Appeals held in Elizondo that a “bare innocence” claim is within a court’s jurisdiction on a habeas corpus writ application. “The policy supporting our holding in Elizondo, that the punishment of an innocent person violates federal due process, is the same for an applicant regardless of whether his case was heard by a judge or jury or whether he pleaded guilty or not guilty,” Judge Tom Price wrote for the majority in the Dec. 18 ruling in Ex Parte Tuley. The Court of Criminal Appeals remanded the case to the trial court for a possible retrial of Wesley Ronald Tuley on an aggravated sexual assault charge. Tuley’s habeas attorney, Michael P. Levine, applauds the majority’s opinion. “It reaffirms the significant basic principle that the continued incarceration of someone who has shown himself to be innocent is offensive,” says Levine, who agreed to represent Tuley in the habeas application shortly after graduating from Southern Methodist University Dedman School of Law in 2000. Lori Ordiway, appellate chief of the Dallas County district attorney’s office, isn’t ruling out the possibility that the office will file a motion for rehearing. Judge Barbara Hervey said in the dissenting opinion that the Court of Criminal Appeals’ holding in Elizondo should not be extended to an individual whose conviction rests on a legally valid and voluntary guilty plea that years later he “claims was a lie and wants to take back.” Presiding Judge Sharon Keller and judges Mike Keasler and Paul Womack joined Hervey in the dissent. According to the majority opinion, Tuley pleaded guilty to aggravated sexual assault after the jury for his 1997 trial reported it was hopelessly deadlocked, with 10 jurors voting to acquit and two to convict. According to the opinion, Tuley received deferred adjudication and was placed on community supervision for 10 years. When his probation was revoked more than two years later, Tuley was sentenced to prison for the remainder of his 10-year term, according to the opinion. According to the opinion, Tuley filed the writ application about two years later, alleging that he had learned the victim, the daughter of his former girlfriend, consistently had recanted her allegations since before his trial. Tuley provided affidavits of the recantations from the victim and from her best friend and boyfriend at the time the allegations were made, Price said in the opinion. Tuley also gave several reasons for pleading guilty, including the fact he already had spent 10 months in jail and was unable to afford to keep paying his attorney for a second trial, according to the opinion. Dallas’ 282nd District Judge Karen Greene, after weighing the evidence she heard at trial against Tuley’s stated reasons for pleading guilty and the affidavits regarding the recantations, found that the new evidence “unquestionably established” his innocence. The Court of Criminal Appeals majority agreed. “We are convinced by clear and convincing evidence that no rational juror would convict the applicant in light of the new evidence,” Price said in the opinion. The dissenting opinion said Tuley’s new evidence raises some doubt about his guilt but doesn’t unquestionably establish his innocence. In the majority opinion, Price cited two statutes that contemplate a defendant who pleaded guilty to an offense being able to seek relief based on innocence. Under Code of Criminal Procedure Article 64.03(b), a person convicted because he pleaded guilty or nolo contendere can submit a motion for DNA testing, and the trial court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea. Dallas solo Lee Bright, who also represents Tuley in the habeas application, says he considers it important to show in the decision that the Legislature contemplated that innocent individuals at times, through a multitude of circumstances, plead guilty. Because of an amendment passed by the Legislature in 2001, individuals wrongfully imprisoned are eligible for compensation from the state under Civil Practices and Remedies Code � 103.001(a) even if they pleaded guilty, Price said in the opinion. The state had argued that, since many convictions result from guilty pleas, the courts could be clogged with meritless actual innocence claims from defendants who pleaded guilty. “We are concerned about that,” Ordiway says. ‘A HARD TASK’ George Dix, a University of Texas School of Law professor, says the Tuley case has an unusual background in that the evidence shows the jury at his trial had favored acquittal by 10-to-2. Other defendants who pleaded guilty may have a much more difficult time in making an actual innocence claim, he says. Dix says a defendant will have to show what the state’s evidence was and that his new evidence is so overwhelmingly convincing that no reasonable juror would have convicted him. “That’s a hard task,” he says. State Prosecuting Attorney Matthew Paul says no one is interested in innocent people being convicted and punished. “But we don’t want to put a premium reward on the harassment of victims,” Paul says. Williamson County District Attorney John Bradley says victims, who are often children, often are pressured to recant their allegations. Some recant their recantations, suggesting that they “had been influenced to change their story,” he says. The dissent says that if Tuley is to be believed now, he committed perjury by falsely pleading guilty. Bradley says the majority’s ruling “seems inconsistent” with regard to the perjury issue. On Dec. 11, the Court of Criminal Appeals ruled unanimously in Martinez v. State that a deputy police chief who allegedly lied in a statement could not suppress that statement because he was not properly warned that it would be presented to a grand jury. Writing for the court, Judge Cathy Cochran said in Martinez: “No matter how cruel the dilemma or trilemma, the commission of the crime of perjury is not an acceptable response.” Paul says a defendant has other options available if he wants a plea bargain. Those include offering stipulations regarding the commission of the offense, pleading nolo contendere or entering a guilty plea without making a judicial confession of guilt, he says. “No one forces you to commit perjury,” Paul says. The dissent said the remedy for Tuley is to seek executive clemency. Under that process, the Texas Board of Pardons and Paroles would have to recommend clemency and the governor would have to approve it. Austin criminal defense lawyer Keith Hampton, who also argued on Tuley’s behalf before the Court of Criminal Appeals, says the clemency process is not the answer. The trial judge, prosecutor and sheriff of the county in which the offense was committed have to agree before a petition for clemency is considered, he says. Notes Hampton, “That’s a really lousy substitute for a judicial determination of actual innocence.”

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