March-April 2013

Writ-ing a wrong

Justin Weiner

Assistant ­District ­Attorney in Henderson County

Honoring our oath and obligation to seek justice rather than convictions sometimes takes strange turns and a lot of time. Here is the story of how one prosecutor’s office corrected an illegal sentence 20 years after the fact.

By his own admission, Gerald Lee McMorris was not a good person. His extensive criminal history demonstrates a routine disregard for social norms, morality, and the law as a whole. When he was only a bit over 30, McMorris was sent to his third trip to the penitentiary. He had been sentenced to serve a total of 52 years for various offenses including sexual assault, burglary of a habitation, and aggravated robbery.
    On March 20, 1992, McMorris, on the advice of his attorney, waived his right to indictments and entered into a plea bargain for a robbery charge (for robbing a gas station) in which he agreed to a 35-year sentence—an illegal sentence, it turns out.
    Taking advice over the years from various jailhouse lawyers, McMorris continuously sought review of his plea-bargain agreement. More than half a dozen attempts over the years, including letters and an 11.07 petition, ultimately fell on deaf ears. In fairness, we have all been there, reading what seems to be an incoherent letter from an inmate complaining about his trial and sentence. Courts and prosecutor offices receive hundreds and sometimes thousands of these letters every year.
    But this one was different. I will never forget how I felt when I first read McMorris’s letter and thought, “Well, this is a great legal argument that is probably 100-percent misguided.” A short stint of due diligence later, and I felt an immense burden placed on my shoulders when I realized that he was actually 100-percent dead accurate.

When I first became aware of McMorris’s situation, I had been working for the district attorney’s office for about six months. It was my first job with my shiny new bar card. I was fortunate to land a job prosecuting felonies right out of law school. Our office is what we call “semi-rural” and at the time consisted of our boss, the elected district attorney; five assistants; and a CPS attorney. There was no appellate attorney, grand jury attorney, or any other specialized attorney other than for CPS, which presented a tremendous wealth of opportunity and experience for a new prosecutor. It allowed me to play a role in every stage of the prosecution of an offense: writing warrants; assisting officers in the field; meeting with victims; presenting cases to a grand jury; conducting pre-trial hearings, jury trials, and bench trials; and filing appeals and writs. Our county has three district courts with felony jurisdiction. I was assigned to the 173rd Judicial District Court and managed the docket with my seasoned trial partner, Nancy Rumar.

The wrong charge
McMorris had written multiple letters to the previous district attorney and former judge who had presided over his plea bargain. The former DA and former judge responded to nearly all of the letters and motions McMorris filed; these response letters read like polite rejections that sweepingly disregarded the issue of an illegal sentence.
    The letters and ultimately an 11.07 habeas petition clearly articulated that the information to which McMorris had pled alleged only a straight robbery charge; then, as now, it was a second-degree felony carrying a maximum sentence of 20 years. McMorris had pled to 35. After pulling the file from storage, I unearthed McMorris’s letters, which were very well-written. Clearly he had received help from someone in prison who knew what he was doing.
    The information alleged the offense of robbery and tracks the language of the robbery statute by claiming that McMorris did “threaten and place L.W. in fear of imminent bodily injury, by actions and words.” This clearly alleges that the fear of imminent bodily injury was caused by “actions and words,” not by the use or display of a deadly weapon.
    To complain about a substantive defect in an indictment or information, a defendant must make a timely objection prior to trial or it is otherwise waived. This includes the State’s failure to allege an essential element of an offense.1 This applies, however, only when the charging instrument fails to allege a complete offense.2 In this case a complete offense was charged: robbery. Logically a charging instrument that facially charges a complete offense cannot be substantively defective, but the line between robbery and aggravated robbery had not been crossed. I felt like I had discovered a flat-out illegal sentence.
    I reviewed all of the potential ways that the robbery could or should have been an aggravated charge. I looked up the age of the clerk who was working at the gas station to see if she were elderly (she was not). I checked whether a deadly weapon was referenced in any way (it was not). I checked whether serious bodily injury was alleged (it was not). And finally I looked for an enhancement paragraph (there was none). I came up short on the justification department and began to question whether robbery was same thing statutorily back in 1992. I pulled up the older version of the statute and of course it was practically the same.
    Still hoping that I was incorrect in some way, I buried myself in the file, but the more I read the more uncomfortable I felt. I found letter after letter sent from McMorris, or at least on his behalf, detailing the exact malfeasance. And I noted that it was coming up on the 20th anniversary of the plea bargain.

Taking it to the higher-ups
I am very blessed to work with people I trust—especially coming right out of law school and prosecuting felonies. I never had to worry about being embarrassed or ridiculed for uttering the words that every young prosecutor loathes: “I don’t know.” My boss, Scott McKee, and his first assistant, Mark Hall, are always willing to let me bounce ideas and run trial strategy by them. I vividly recall sitting in Mark’s office that day detailing my thoughts and explaining my findings on the McMorris case. The surprise and concern both Scott and Mark expressed justified and echoed the feelings that I had harbored since reading McMorris’s letter.
    The shock the three of us felt was not simply that a mistake had been made. Everyone makes mistakes, and they happen in every field. But McMorris had gone to great lengths to signal for help from anyone who would listen. Our file alone documented seven occasions that he had reached out.
    The next step was to alert the judge to what I had found. The judge’s reaction was consistent with everyone else up to that point, and he understood the urgency of the matter. He appointed local Athens attorney Brian Schmidt to represent McMorris in our efforts. We all knew that the Court of Criminal Appeals rarely hears a petition for a subsequent 11.07 petition for claims already raised.3 And that was the biggest problem in McMorris’ case: His previous writ was nearly flawless. The legal argument and rationale could not have been more accurate.

No quick fix
Brian and I put our heads together and began discussing various methods to fix this problem. We shared the same desire to right this wrong in the most legitimate and procedurally sound way possible, which was somewhat difficult considering that this mistake involved a former district attorney, former district judge, and deceased local defense attorney. We were not looking to blame anyone or point a finger; we just wanted to do the right thing. I guess I just assumed if there were a prosecutor, defense attorney, and judge all on board to correct something, there would be some magical and easy process to do it. It turns out that getting someone out of prison is much more difficult than putting someone into prison. After hours of discussion and polling a half a dozen other attorneys, we agreed on a plan and were ready to execute it. It would take 10 months to achieve our goal.
    After filing a carefully crafted second 11.07 petition and agreed State’s reply, the district court signed an order that tracked the proper 11.07 language that there were “controverted, previously unresolved facts material to the legality of the applicant’s confinement.” In an abundance of caution, we then decided to have McMorris brought up on a bench warrant for a hearing so he could testify about the facts surrounding his plea. The plan was for this testimony, along with jointly proposed findings of fact, conclusions of law, and the judge’s order, to be sent to the Court of Criminal Appeals for its consideration.
    However, after the order was signed—but before the hearing at which McMorris testified—the clerk sent the order and the petition to the Court of Criminal Appeals prematurely. We had to ask for everything to be sent back to the district court so we could go through with the hearing. Several letters, orders, dozens of phone calls, and a few anxiety attacks later, we were able to continue on with our original plan and conduct the hearing.
    At the hearing, McMorris testified that not only could he not read or write at the time the plea was executed, he also didn’t have a clue what he was pleading to back in 1992. McMorris discussed how he had come to accept his fate. Though he had taken a few years to settle in and decide that what he had done with his life was wrong, he eventually began to fight to get out of prison. But after multiple failed attempts to get some help from an outside source, he came to accept that he would probably serve the entirety of his sentence. The court signed our proposed findings and conclusions, which were shipped off with the hearing’s transcript. From that point on, we did the only thing we could do at that point. We waited.

Relief finally granted
The next few months were difficult while awaiting a decision from the Texas Court of Criminal Appeals. I anxiously anticipated 9 o’clock each Wednesday morning when the court publishes its hand-down list of orders, opinions, and statements in hopes that all of this madness would be corrected by a higher authority. Brian and I coordinated checking the CCA website when the other was in court. I lost a lot sleep while waiting and I am sure Brian did as well. But at the end of the day, I had faith that even if we had made any minor technical mistake, the court would overlook it and do the right thing.
    A few months passed, and McMorris was still in prison serving a sentence that, at the very most, should have already been completed. With the hopes that we wouldn’t annoy the court, Brian and I filed a “Joint Motion for Expedited Consideration of Application for Writ of Habeas Corpus.” It was a short motion, signed by the two of us, which simply pointed out that the maximum legal length of McMorris’s incarceration had been exceeded. The court received the motion on May 3, 2012, and our wait from that point was less than a week.
    On May 9, the Court of Criminal Appeals issued an opinion that granted the relief I had hoped for since I first became aware of the situation nearly a year earlier. Remember all that talk about subsequent writs not holding any water? Well, it turns out that the Court of Criminal Appeals is about as dedicated to procedure as one would expect. Though the court followed our logic precisely, its means to an end was pretty clever. Realistically, what I agreed to was a subsequent writ, which should have been kicked back or denied. The court clearly addressed the situation and responded by withdrawing its disposition in the original 2004 writ and on the court’s own motion granted the relief we requested in the 2012 writ.4 It was an interesting “I see what you did there” moment that truly highlights the importance of procedure to the court, as well as its commitment to justice.

Closure for everyone
With the backing of the Court of Criminal Appeals, this long journey was finally coming to an end. The very next afternoon we scheduled a re-sentencing for McMorris where he agreed to serve 20 years for the offense of robbery. He was awarded 7,371 days of credit toward his sentence, essentially sentencing him to time served. During the plea, I put on the record my gratitude to the judge, my boss Scott, and to defense counsel Brian. I expressed how proud I was of all of the parts of the system coming together to correct this massive error. It was good to know that the system that had failed McMorris is the same one that would right the wrong. Without this correction, McMorris’s expected release date was 15 years later. (We were told by TDCJ that he would have likely served the entire 35-year sentence. And up until that point he hadn’t taken a single class or received an ounce of instruction in preparation for his eventual release back into the general public.)
    Because he had spent the last 20 years in prison, I was surprised to see that he had nearly a dozen family members from the area in attendance to support him. McMorris was fortunate: He had a place to stay and family to help him get on his feet.
    One of my favorite moments of this process was seeing McMorris’s face when he saw Brian use his iPhone. It sent him reeling like a child in a magic show. Despite his criminal history leading up to this sentence, McMorris had no discipline record in prison, he had been the prison choir director for over 15 years, he had become an ordained minister, and he gained some vocational skills as well. Brian keeps in regular contact with McMorris and I check up on him through Brian occasionally. McMorris now lives with a family member, has joined a church, and maintains steady employment.

Where are we now?
This was not an actual innocence issue, thank God. But it was a justice issue, one that we as prosecutors hang our white hats on.
    A local paper covered the whole thing with a four-article spread that ran over the course a week. The reporter characterized the fiasco in a way that put a nice bow on top of the whole situation. The stories explained that there was a good, a bad, and an ugly aspect to the circumstances. The ugly, obviously, was McMorris’s criminal past—there is no way to minimize it, and it will always be there regardless of what he does the rest of his life. The bad? The polite rejections to McMorris’s pleas that resulted in a severe injustice. But it is the good that really carries the day throughout this entire story. The good was the concerted effort by a handful of people and ethical lawyers to do the just and right thing.
    I have a copy of the original information hanging on a board in my office. It serves as a reminder of many things to me on many levels: While there will always be a share of ugly and bad in our line of work, it is the good that is the lifeblood of being a prosecutor. We simply can’t go wrong with doing the right thing. Regardless of his past, McMorris’s rights are our rights. As tedious and difficult as the path may be, seeing that justice is done is not only our duty, but it is also what distinguishes our profession from others. And that is something that we should always be proud to hang our white hats on.
    If you find yourself in a similar situation and need help, feel free to email me at [email protected] or call 903/675-6100. i


1 See Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990);  see also Tex. Code Crim. Proc. art. 1.14(b).
2 Thomason v. State, 892 S.W.2d 8-11 (Tex. Crim. App. 1994).
3 See generally Tex. Code Crim. Proc. art. 11.07 §4(a).
4 No. AP-76,790 (Tex. Crim. App. May 9, 2012).