CCA Finds Constitutional Ex Post Facto Violation That Was Completely Missed at the Trial Level

Here's an excerpt from the Texas Court of Criminal Appeals' majority (5-3) opinion in Phillips v. State, which dealt with the Ex Post Facto application of a statute of limitations law for sexual offenses:

"Appellant was convicted of twelve counts of sexual offenses against his daughter that occurred in 1982 and 1983. But prosecution under the 2007 indictment charging appellant was absolutely barred by the statute of limitations in 1993. These charges could not be resurrected by a 1997 statute extending the statute of limitations for sexual offenses. No one–not the trial judge, the prosecutor, the defense, or the court of appeals–recognized this constitutional ex post facto violation. Because this is an important constitutional issue that will undoubtedly recur given the even more recent statutory elimination of the statute of limitations for some sexual offenses, we granted appellant’s petition for discretionary review. Although the State Prosecuting Attorney (SPA) agrees that the statute of limitations had run before appellant’s indictment, she argues that appellant failed to preserve this issue for appeal because he did not object in the trial court. We reaffirm our prior opinions that have stated that an absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. We reverse the court of appeals, which held that appellant’s prosecution was not barred."

Presiding Judge Keller dissented, joined by Judges Keasler and Hervey.  They would hold that the trial judge's ex post facto application of the law may violate due process, but that the majority got it wrong because the prohibition on ex post facto laws only applies to the legislature.

Substantive Defects in Indictment Must Undergo a Harm Analysis

Does a substantive defect in an indictment require a harm analysis, or is it per se harmful, thus requiring that the indictment be quashed?  (Appellate law nerd alert – nothing sexy in this post!)

Although the CCA recently remanded a case (Smith v. State) to the 1^st District Court of Appeals (Houston) to determine whether defects of substance in an indictment are subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b), the CCA just couldn’t wait to answer the question itself.  It took the opportunity in Mercier v. State.

In Mercier, the State reindicted a defendant after having dismissed a previous indictment.  However, the new indictment was outside the 3 year statute of limitations and the State did not include any tolling language therein.   The trial court dismissed the defendant’s motion to quash and allowed the case to proceed.  The defendant was convicted.  He challenged the indictment again on appeal.  The 13^th District Court of Appeals (Corpus Christie) reversed the trial court’s ruling that the indictment did not require tolling language and dismissed the prosecution as being time-barred, holding that:

a defect of substance is harmful per se.

The CCA then granted the State’s petition for discretionary review to determine whether the Court of Appeals erred in disregarding CCA precedent, Tita v. State, by holding that the case need not proceed to a harm analysis.

Outlining the history of TRAP 44.2(b) and the relevant cases dealing with substantive defects in an indictment, the CCA concluded that

unless proceeding under the indictment violated the defendant’s substantial rights, the trial court does not err by allowing the trial to go on.  The purpose of Rule 44.2(b) is for appellate courts to determine whether a non-constitutional error that occurred at the trial affected the defendant’s substantial rights, and if it did, then the error is reversible.  Rule 44.2 does not consider whether the error is a defect of form or a defect of substance; rather is differentiates between constitutional error and other errors.

With that, the CCA remanded the case back to the 13th Court to conduct a harm analysis.  This case clarifies the CCA's stance on procdural/substantive/constitutional defects.  The former 2 will be subject to a harm analysis, while the latter will require automatic reversal.

Note:  If the alleged criminal act is actually outside the statute of limitations and there is no basis for tolling, there should obviously be harm to a defendant/appellant. 

Tolling the Statute of Limitations for a Separate Offense

A period of limitations may be tolled for 2 reasons:

1) the time that a defendant is absent from the state; or
2) the time that another indictment is pending.

Accordingly, if the state dismisses an indictment and then reissues the indictment, charging the same offense, the statute of limitations for that offense would be tolled for the entire period that the previous indictment was pending.  But what if the new indictment alleges a different offense than the first indictment?  Is the limitation period still tolled?

This was the issue presented to the Texas Court of Criminal Appeals in Ex Parte Brooks.  In that case, the State originally charged the defendant with theft that was alleged to have occurred "between 7-1-98 through 4-1-2000."  Prior to trial, however, and over the defendant's objection, the trial court allowed the State to dismiss the indictment.  The State then re-indicted the defendant and included specific language alleging aggregated theft under Texas Penal Code Section 31.09.

Via a pretrial application for a Writ of Habeas Corpus, the defendant claimed that prosecution on the new indictment was barred by the statute of limitations.  His reasoning was that the statute of limitations was not tolled by the previous indictment because the previous indictment alleged a separate offense (felony theft versus aggregated felony theft).  The trial court, along with the 12th District Court of Appeals denied relief, never actually considering whether the limitations period was tolled by the previous indictment.

The CCA, noting that its discretionary power permits review only of decisions by the lower court, reversed the judgment of the 12th Court of Appeals and remanded the case back to that court to consider the tolling issue.

Judge Meyers concurred.

So the real precedential value of this case is the holding that a pretrial application for writ of habeas corpus is a proper means to challenge this limitations issue.  We will have to wait for the more substantive and interesting issue as the 12th Court takes a second look.

No Prejudice When Government Delays Indictment for Over 40 Years

U.S. Court of Appeals for the Fifth Circuit - U.S. v. Seale, No. 07-60732

A kidnapping was committed in 1964, back when death was an authorized punishment for kidnapping and there was no statute of limitations (SOL). Having insufficient evidence to seek an indictment the State decided to wait on it. Over 43 years later, in 2007, a co-conspirator came forward and the Government secured an indictment (the Feds this time) against Appellant for kidnapping and conspiracy. In 2007, however, death was no longer an authorized punishment and kidnapping falls under the 5-year SOL for offenses not capital.

During trial, Appellant moved to dismiss the case under 18 U.S.C. 3282, which states "[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed." The judge denied the motion, holding that the new 5-year SOL did not apply retroactively and the unlimited SOL which was in place at the time of the offense should govern. Appellant was subsequently convicted in federal district court of 2 counts of kidnapping and one count of conspiracy to commit kidnapping under federal law and sentenced to life in prison.

In his first appeal, the 5th Circuit held that the 5-year SOL applied retroactively and dismissed the case for violation of the SOL. See 542 F.3d 1033 (5th Cir. 2008). The 5th Circuit, however, later decided to hear the case en banc, thus vacating the holding of the first panel. The en banc hearing resulted in a split court, which is, by default, an affirmance of the trial court's holding. See 570 F.3d 650 (5th Cir. 2008). The 5th Circuit certified the issue to the Supreme Court, but cert was denied (although Justices Scalia and Stevens would have granted). See 130 S.Ct. 12 (2009).

Having conclusively (although not convincingly) settled the SOL issue, the 5th Circuit now considered other issues raised, chief among them being that the 43-year pre-indictment delay prejudiced the appellant and/or was a tactical or bad faith delay by the Government.

Highlighting Appellant's inability to establish a due process violation, the 5th Circuit affirmed the conviction and sentence. Notable portions of the opinion are provided below:

Although more than forty years elapsed from the date of the alleged crime to Seale's indictment, this fact alone does not establish a due process violation. The mere passage of time is insufficient to support a due process claim, even if the time lapse prejudiced the defense. Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991). To show an unconstitutional pre-indictment delay, a party must establish two elements: 1) the Government intended to delay obtaining an indictment for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose, and 2) that the improper delay caused actual, substantial prejudice to his defense. United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc). The burden is on the defendant to establish both prongs. United States v. Jimenez, 256 F.3d 330, 345 (5th Cir. 2001).

In United States v. Lovasco, 431 U.S. 783 (1977), the Supreme Court distinguished between investigative delay and tactical or bad faith delay. In distinguishing between the two, the Court stated: Investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused" precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Id. at 795 (internal citations and quotations omitted). Applying the Court's analysis in Lovasco to this case, we are satisfied that the district court did not err in concluding that the delay preceding Seale's indictment was investigative rather than tactical.

Since the defendant bears the burden to show both the Government's bad faith and prejudice to the defendant in order to establish a due process violation based on undue delay, it is not necessary to inquire whether the prosecution's delay caused actual, substantial prejudice to Seale's defense.

My thoughts: While the Government may not have intended a "tactical" delay, the delay certainly worked to a considerable advantage. Back when the State was considering seeking the original indictment, a note was placed in the file instructing them to wait for better timing. What time could be better than 43 years later when a co-conspirator decides to come forward and implicate the Appellant and ample amounts of evidence favorable to the defense are long gone? The country we live in and the sentiments of the potential jurors are substantially different. Heck, even the jury pool from which the potential jurors will be selected must be substantially different from what it would have been in 1964. This delay certainly prejudiced the Appellant and was advantageous to the Government.