Texas has been holding this man hostage for 12,600 days

Andrew Cohen
Jerry Hartfield's case represents neither law nor justice.

Last week, in a decision that contorted both law and fact, a state judge ruled against an illiterate, intellectually disabled black man named Jerry Hartfield.

Hartfield has been imprisoned for more than 33 years — without a valid conviction or sentence authorizing his confinement. In the latest decision, the judge ruled that even though state and local officials clearly were negligent in letting Hartfield slip through the cracks all these decades, there is nothing in the Constitution that provides him with any protection from being retried. Not the Sixth Amendment's guarantee of a speedy trial. Not the undisputed fact that key evidence in that long-ago trial — like the alleged murder weapon, for example — has disappeared. Not the fact that there is no proof that Hartfied, with an IQ testing far below standards for mental retardation, strategized to keep himself in prison for 30 years as a way of avoiding a retrial.

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It's not just the third of a century of unlawful confinement that is egregious here. It's the fact that 10 months have passed since the state courts in Texas (after many years of prodding) first acknowledged the terrible mistake that was made in this case. Even this lesser period of delay is unconscionable. Jerry Hartfield, who first would have been eligible for parole in 2003 had Texas followed the law, should be free.


On June 30, 1977, Hartfield was convicted of capital murder and sentenced to death for killing a woman named Eunice Lowe. This verdict and death sentence were overturned on Sept. 17, 1980, because prosecutors had unconstitutionally precluded from the jury a woman who had reservations about the death penalty.

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The typical remedy for such a violation would have been to grant the defendant a new trial. But Texas instead sought to defend the conviction and transform Hartfield's sentence from one of death to one of life. On March 4, 1983, the Texas Court of Criminal Appeals formally vacated Hartfield's conviction. Eleven days later, on March 15, 1983, Gov. Mark White moved to commute Hartfield's sentence.

But then came a series of terrible, unforgivable miscommunications. The courts did not notify the governor's office or the members of the Board of Pardons and Parole that Hartfield's conviction and sentence had been vacated. Executive branch officials did not follow up on the purported commutation. Instead, public officials in the county where Hartfield had been tried notified the Court of Criminal Appeals that its mandate — to give him a new trial — had been carried out when in fact it had not. Hartfield was not told about this at the time. If his lawyer knew he certainly didn't raise any immediate flags. There was no cross-check. The justice system simply broke.

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From 1983 until 2008, Hartfield had no lawyer.

In 2006, Hartfield, with the help of other inmates, began to inquire into his legal status. It took him seven years from that point, and round upon round of legal wrangling by his new lawyers, to gain a measure of relief. Last June, the Texas Court of Criminal Appeals, the same one that had vacated his conviction and sentence in 1983, the same one that consistently rules against criminal defendants, acknowledged that he was wrongfully imprisoned and granted him the right to pursue his claim that his constitutional right to a speedy trial had been violated by Texas' failure to re-try him after his initial conviction was overturned. This Hartfield promptly did.

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Between that June ruling and last week, prosecutors and defense attorneys sparred over the meaning of the Sixth Amendment's right to counsel. Prosecutors immediately moved to retry Hartfield — even without the murder weapon and eyewitnesses — so they could use an old confession they coerced out of him. There was no evidence that the incarcerated man with an IQ of 51 actually wanted a new trial, prosecutors argued in their briefs. Worse, Texas argues, Hartfield committed a fraud on the court, deliberately keeping himself imprisoned so that one day, decades later, he could spring a speedy-trial argument upon an unsuspecting court. The argument isn't just facile. It's insulting.

But the judge bought it. Nevermind the commutation of Hartfield's death sentence from Gov. White way back when. The decades-long delay in a retrial actually benefited Hartfield, Judge Estlinbaum concluded last week, because it is far less likely today that he will be sentenced to death than it would have been had he been retried in the 1980s. The judge reached this conclusion in the same ruling in which he acknowledged that Hartfield's ability to mount an effective defense has been diminished by the passage of time and the loss of witnesses and evidence. It's either one or the other — it cannot be both.

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The Constitution did not require Jerry Hartfield, mentally retarded and unable to read, to jump up and down all those years and beg the state to retry him. There was no lawyer in his corner during the vast majority of that time to look after his rights. And Judge Estlinbaum acknowledged that Texas had been negligent in its handling of this case. But you know what else this judge found? That "there is no evidence that Hartfield has suffered any anxiety relating to his pretrial detention." Now, tell me please, if you were locked in prison for 33 years without being convicted of a crime would you suffer any anxiety?

This is yet another reminder of how thoroughly "the law" can create barriers to prevent constitutional rights from being enforced in a way that gives real meaning to their text. In Texas especially, judges have been allowed, encouraged even, to pile up one procedural technical hurdle after another, limiting the rights of criminal defendants. As Hartfield's lawyers repeatedly have said, if this intellectually disabled man who lingered so long under an unlawful detention cannot establish a viable speedy-trial-right claim under the Constitution, then who can?

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Mistakes happen in our legal system. Judges make them and pardons officials make them and court clerks make them. Lawyers make them and prison officials make them and witnesses make them. But in this case, only one man has suffered as a result of all of the mistakes Texas made. We teach our children to take responsibility for their mistakes. But Judge Estlinbaum's deplorable ruling is another sign that Texas still is unwilling to accept responsibility for its mistake here, even if by doing so it means a man once convicted of murder spends only half his life in prison.

This is neither law nor justice. Either we have a right to a speedy trial or we don't. And if we do, surely it applies even if it means this man accused of murder goes free after 36 years of confinement. Enough is enough.

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