Herewith a quiz: If you were the Solicitor General for the State of Texas and it came to your attention that someone had been sentenced to prison for 16 1/2 years for (i)committing an offense for which the maximum sentence was only 2 years, (ii)) and was now in his seventh year of incarceration, which of the following things would you do: (a) immediately take all available steps to make sure that the sentence was corrected and the prisoner immediately released, (b) do everything possible to make sure that the prisoner served the full 16 ½ years even though that was 12 more years than the maximum amount the court could have imposed had the defendant’s lawyer, the judge and the prosecutor not all made mistakes.? If you selected (a) you should support someone other than Ted Cruz. If you selected (b) you may want to send Mr. Cruz some money. Michael Wayne Haley was the man who served 5 more years than the maximum permitted under state law.
Michael stole a calculator from a Wal-Mart store and was caught and convicted. After he was convicted of the theft everyone thought it was his third conviction and he was tried and convicted as an habitual offender and sentenced to 16 ½ years in prison. There was just one problem. His conviction on stealing the calculator was only his second conviction and he wasn’t eligible to be convicted as an habitual offender. The judge, the prosecutor and the defense counsel all had made a bad mistake. The maximum sentence to which Michael was entitled was 2 years in prison, 14 ½ years fewer than the number of years to which he was sentenced.
After Michael had served 7 years, someone discovered the mistake that had been made and Michael sought post-conviction relief arguing that the evidence presented at the penalty hearing was insufficient to support the habitual offender conviction. A sensible person might conclude that was the end of the matter. Texas did not. The state court rejected his petition on procedural grounds because he had not pointed out the mistake earlier. In other words, it was OK for him to stay in prison for a total of 16 ½ years because, as people are wont to say, mistakes happen.
Those of my readers who are not schooled in the law may think it odd that a court would say a procedural error would make it OK to keep someone in prison 8 times longer than the law allows. That would appear to a layperson to be a horrible miscarriage of justice for the victim. After the state court refused to give Michael relief from the excessive sentence, Michael went to Federal Court to seek relief. When the District Court heard his case it concluded in more formal language than this, that Michael should not have to serve more time in prison. Texas disagreed and went to the 5th Circuit Court of Appeals in an effort to permit Michael to complete his 16-½ year sentence. The Court of Appeals refused to permit Texas to continue to incarcerate Michael on the basis of a mistake. It said: “If we were to condemn Haley to suffer the consequences of an affirmative finding . . . he would continue serving a sentence as an habitual offender of which he is in fact innocent. This is a classic example of a ‘fundamental miscarriage of justice,’ precisely what the actual innocence exception was created to prevent.”
Texas found the court’s reasoning offensive and appealed to the U.S. Supreme Court. It hoped that that Court would enable Texas to keep poor Michael in jail for the entire 16 ½ years. By the time the case arrived at the United States Supreme Court, Ted Cruz was the Solicitor General for the State of Texas. It was he who argued in the United States Supreme Court that Michael’s conviction as an habitual criminal should stand even though he wasn’t one. He had his reasons and they were the kinds of tortured legal obfuscatory reasons that would only appeal to a man of Ted Cruz’s towering intellect. They must have been good ones since he was arguing that an innocent man should continue to be punished by the state of Texas for a crime of which everyone agrees he was not guilty.
During the course of arguing before the United States Supreme Court and urging the Court to rule that Michael should remain in prison, Justice Anthony Kennedy asked Mr. Cruz: “Is there some rule that you can’t confess error in your state?” That would be a nice question for the moderator in the next Republican debate to ask Mr. Cruz. He almost certainly has a ready answer for that question.