The Old and the Cold: Subsequent 11.07 writs and old convictions

 Posted on April 29, 2022 in Uncategorized

Is there anything you can do for a friend or family member who has been serving a prison sentence on an old case in Texas?

I often get calls about old cases — I’m talking convictions from the nineties. There’s many reasons why a family or inmate would reach out after so much time has passed. One is financial. Sometimes families reconcile with inmates and bring to bear new financial resources that weren’t available previously to assist the inmate in fighting his conviction. A second reason is new relationships. I’ve know many convicts who make connections in the outside world and form relationships with new people, gaining a new support network. These new friends and spouses will often reach out to my law firm to take a fresh look at their loved one’s case.

I ask the same questions every time:

1. Has your loved one filed an 11.07 writ before?
2. What’s the news since your loved one was convicted or last filed a writ?

I ask the first question to figure out what options are on the table. If the inmate has already filed one or more writs, then I am (VERY) procedurally limited on what I can file in a subsequent writ. Basically, there needs to be (1) some new piece of evidence that wasn’t known or reasonably discoverable before the last writ was filed, (2) new case law addressing a constitutional right relevant to the inmate has come down since the last writ was filed, OR (3) a forensic science method used in the inmate’s case has been debunked or updated.

Absent one of those three conditions, I probably won’t take the case.

I ask the second question — “what’s the news?” — because I want to know from the inmate and his family’s perspective what has changed since the conviction. Trust me, this question is really useful. Inevitably there is news — otherwise they wouldn’t be calling me. Sometimes they’ve heard rumors that a complaining witness has admitted that she lied. Or a co-defendant has told a mutual friend that he’s ready to be honest about really happened. Or a cop involved in the investigation just got fired.

There’s always something!

I use that initial answer to my “news” question to hone in what, if anything, I can do to help this potential client continue to fight his case.

If there’s some interesting “news” to follow up on, or one of the three conditions describes above exists, or potentially exists, then I might have some work to do. I can dig into the recent case law relevant to the inmates conviction or read up on the latest “junk science” cases related to victim identification testimony, or DNA evidence, or the latest study on blood spatter analysis.

When it comes to new evidence, the work is always the same: (1) familiarize myself with the State’s evidence at the time of the plea or trial, (2) assess the new evidence in light of the original evidence, (3) determine whether this new evidence, viewed alongside the original evidence, has a reasonable chance of undermining confidence in the conviction. After making that assessment, then the real lawyering begins, i.e., trying to convince the trial court and by extension the Court of Criminal Appeals that this new evidence is credible and strong enough to justify a new trial in spite of all the time that has passed.

Suffice it to say, you need super strong new evidence to reverse an “Old and Cold” conviction.

So, is there anything to be done on an old case? You should start by asking yourself my favorite question . . . what’s the news on the case? If the answer to that question is interesting to you, maybe it’s worth getting a new habeas lawyer on board.