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Seeking Injustice Appeallate Style

One of the biggest problems with prosecutors I have seen in the various counties & cities I practice in is what I dub the difference in "doing what is right," and "doing what the law allows." I detailed a prime example in my past article "A Prosecutors Job Should Be To Seek Justice."no-justice-480

Some liken this to the prosecutors duty which is supposed to be about seeking justice, not convictions.  In the appellate world, I believe that this often gets lost. Most larger District Attorney’s office have separate prosecutors that handle appeals of cases as opposed to the original trials.  Often it seems that these departments are more focused on what the law says, instead of seeking justice.

The Collin County Observer just published an article entitled Is Innocence Innocence?.  In the article, it details a man that was charged with aggravated child sexual assault.  He presumably was arrested, posted bond, and humiliated throughout the process.  He went to trial, and the jury voted — 10 Not Guilty, 2 Guilty.  Because they could not all agree, a mistrial was declared. 

At this point, the DA’s office could either retry the case, or dismiss it.  They decided to dismiss the case.   

Unfortunately for the citizen accused, this means that all the records of the trial, arrest, mugshots, etc are all still available.  He reported that he WAS a "highly paid professional, but since the 2007 charges, he has been unable to find employment in his field after any potential employer obtains a background check."  Sounds accurate to me — who wants to hire a child molester?

Basically, the law states that as long as you are within the statute of limitations, you cannot expunge the case.  This is because in theory, the state could refile the charges. But in this case, all indications show that this is not their desire.  The statute of limitations of felonies is a long time, especially those dealing with child sex crimes. 

So whats a prosecutor to do?  They could agree to the expunction he filed, or oppose it.  The state opposed his expunction but the judge granted it.  Kudos to the judge for doing what he thought was right (and allowing the law to be tested by the appellate court).  

But the State wasnt done fighting yet.  They then appealed the case.  The Court of Appeals agreed with the state that they were correct on the law.

In this case, I too believe the prosecutors were correct on the law — he probably wasn’t entitled to an expunction.  But now it comes down to "doing what is right," and "doing what the law allows."

Previous Example:

This situation comes up time and time again, and too often by appellate prosecutors.  A previous example was the fight that prosecuting appellate lawyers had with class C cases (the lowest level crime – tickets, <$50 thefts, etc.).  If someone gets a deferred probation on a class C case, once they complete it, the citation is dismissed and no conviction is reported.

For a time it was thought they were entitled to an expunction because, as the law states:

the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor

However, the state grasped on to the part that states:

the limitations period expired before the date on which a petition for expunction was filed

Instead of allowing for the immediate expunction, appellate prosecutors argued that someone must wait until the statute of limitations has run before getting their expunction.  Why?  "Because the law says so" was the State’s battle cry. The debate was a heated one at the time.

Think about it — The reason for not allowing the early expunction is because the case could be refiled. . . But with a class C, no case can be refiled.

Regardless of the meaning and point to the law, the State’s appellate attorneys fought to make someone wait 2 years before clearing their name.  And that is the way things are today.

Collin County’s new District Attorney Greg Willis took over January 1, 2011 and has made some very positive changes in the office.  He spoke recently at the Collin County Bench / Bar about the mission statement he encorporated into his office — "Fighting and prosecuting crime in a fearless, just, and ethical manner."  I can say with personal experience that I have seen changes in the office that reflect this mission.  Hopefully we can start seeing it in the appellate department as well.

Note: The hearing for the citizen accused the Observer discussed took place in February 2010, and the fight over expunction rights in class C cases was quite some time ago as well.

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County.  He publishes his blog ( which focuses on the Collin County and Texas legal system.  He can be reached at or (469) 252-4018.

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