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A courtroom in Texas.
Case in Point

Unchecked and Unbalanced

The case of Clifton Harvin pits judges against judges.

Clifton Dewayne Harvin is serving a 60-year sentence in a Texas prison even though the “victim” in his long-ago sex assault conviction — his daughter — insists under oath that he is innocent. He is serving hard time after a contested guilty plea despite passing three polygraph tests and seeing his first defense attorney promptly take a new job as his prosecutor. But the main reason why his case is extraordinary is the way in which it has caused Texas judges to argue among themselves about the meaning of appellate review itself.

Harvin’s struggle, and the struggle of the state’s judicial system to evaluate it, likely would have escaped national notice had it not been laid bare in a lacerating dissent written in September by Justice Lawrence Meyers, of the Texas Court of Criminal Appeals. Lillian Hardwick, co-author of the “Handbook of Texas Lawyer and Judicial Ethics,” says that the case goes beyond the typical story of injustice.

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“What happened with Harvin,” she told me, is that “the checks and balances designed to redress system failures themselves failed.”

The story begins in 1994. Harvin and his wife, Barbara, had three children, including a 6-year-old daughter. In April of that year, Child Protective Service (CPS) officials came to the Harvin home in Montague County to investigate allegations that the little girl, known in court records only as “A.H.,” had been sexually abused. No charges were filed, no sexual abuse was discovered, but A.H. told officials that her babysitter, a woman named Reisa Ford, had slapped her in the face.

Later that year, Harvin and his wife began divorce proceedings. Barbara and the children moved in with Ford. Not long afterwards, the babysitter called a sheriff’s deputy and said A.H. had told her that her daddy had sexually assaulted her with his fingers. The deputy interviewed A.H, who repeated her allegation against her father. CPS investigators interviewed the little girl on videotape and again, she said her father, and no one else, had molested her.

Investigators then talked to Barbara, who said she never suspected that Harvin was capable of doing such things to their daughter. When Harvin was asked about the allegations, he denied them, cooperated with officials, and suggested that whatever abuse was occurring to A.H was occurring at Ford’s home. It didn’t matter. Harvin was arrested for aggravated sexual assault on a child. Shortly after he was released on bail he took A.H. to a church and, in the presence of a minister, recorded a conversation with her in which she denied that he had abused her.

The case

Recognizing they had a shaky case — a small child who had given inconsistent statements at different times to different people — prosecutors arranged for Harvin to take a polygraph test in March of 1995, a few months after he was charged. He hired lawyer Jack McGaughey, or at least tried to do so. McGaughey did not show up for the test, which then was never administered. McGaughey did show up later in the case, however, as Harvin’s prosecutor.

Harvin was indicted by a grand jury. He then asked to have a lawyer appointed for him. His judge refused. So Harvin hired lawyer Pat Morris, who had approached him in a hallway of the courthouse and offered to take the case for $800. Lawyer and client met for only an hour outside the courtroom, Harvin alleges, before Morris told prosecutors that the defense was interested in making a plea deal. Morris later was disbarred for lying to clients, failing to work on their cases, and failing to refund money his clients had paid for work that never was completed.

Now it was 1996. In January, prosecutors conceded in a letter to Barbara that grand jurors who heard the evidence had been troubled by A.H’s inconsistent statements and that a deal would spare her child of the “trauma of a public trial.” In March 1996, there was a new allegation that A.H. was sexually abused, but the court record does not say it was directed toward Harvin (which means, almost certainly, since he had no custody of A.H. at this time, that it was not). No one ever was charged.

Shortly after that episode, Barbara endorsed a plea deal for Harvin that spared him a prison sentence. On April 16, 1996, Harvin pleaded* *no contest. He says he did this only because Morris never told him that a “no contest” plea was the equivalent of a guilty plea and because Morris *did *tell him that he, Harvin, could prove his innocence while he was on “deferred adjudication.” Harvin was given 10 years of community supervision. The court record shows the typical plea colloquy between a judge and defendant, an exchange in which Harvin expressed satisfaction with his deal.

The deal unravels

Immediately after that hearing, Harvin began to work on proving his innocence. Over the next few years, Harvin filed several motions to terminate the “deferred adjudication.” His trial judge held several hearings on the matter and admitted into evidence the results of three polygraph tests that Harvin took, and passed. Prosecutors did not object to the results of those tests or to Harvin’s request to be granted the relief he was requesting. But the trial judge never ruled on those motions.

Here the case took a twist straight out of a Kafka novel. Neither the trial judge nor prosecutors (nor Harvin’s new attorney, his third of the case) ever told Harvin during all these “termination” proceedings that Harvin’s effort was futile; that Texas law precluded him from seeking an “early termination” of his punishment so soon after he had taken the deal. It is unclear, still, whether this was an intentional omission by the judge and the lawyers or merely irresponsible on their part.

If nothing else had happened, Harvin would be free today. But in 2003, seven years after he took the deal, prosecutors asked the court to revoke his probation and sentence him for the underlying crime. This the court did quickly, sentencing Harvin to 60 years in prison. What had Harvin done to warrant the revocation of his deal? He was in possession of a controlled substance, was “associating with a person involved with drugs,” and had refused to submit a urine sample. His transgressions had nothing to do with sexual abuse.

In his first round of appeals, Harvin argued that he had received ineffective assistance of counsel at every stage of the case and had been unfairly prejudiced by his judge’s refusal to act on the polygraph evidence. This appeal was rejected. And Harvin remained behind bars, professing his innocence.

A recantation, under oath

Now we move ahead to 2010, to a round of new hearings in the case. By this time, A.H. was an adult and swore under oath that her father had “never sexually molested her or been sexually inappropriate with her.” She testified that in 1994 she had told “her father, a preacher, and the preacher’s wife that her father did not molest her” and that Reisa Ford “had told her to make the sexual-abuse allegations.” It is unclear how much of this information prosecutors knew at the time of the grand jury inquiry and plea deal.

A.H. also testified in 2010 and 2011 that she had been molested by her step-brother but that she had been afraid to incriminate him, fearing that if she got him in trouble her mother would kick her out of the house. Other witnesses also came forward to say that A.H. had told them in 1994 that Harvin had not abused her. Harvin himself testified during this round of hearings. He said Morris, the disbarred lawyer, had threatened to quit if forced to take Harvin’s case to trial. Despite A.H.’s recantation, the judge who presided over this hearing rejected Harvin’s request for relief.

The first time Harvin appealed this ruling the Texas Court of Criminal Appeals, the highest court of criminal jurisdiction in the state, was so underwhelmed by the judge’s justification that the justices sent the case back for more information about whether Harvin had received ineffective assistance of counsel. The judge responded by affirming his initial ruling. But that still wasn’t enough to satisfy the TCCA, which ordered the judge to hold a live hearing to supplement the record in the case.

The judge did this and again submitted an order defending the work of Harvin’s lawyers and rejecting Harvin’s claim. And again the TCCA rejected the findings as inadequate. The court wanted answers to basic questions: whether A.H’s recantations were credible, whether they constituted “newly-discovered evidence,” and whether Harvin had established “that he was actually innocent.” A.H’s recantation was not credible, the lower court judge reiterated. And this time, in September 2016, the TCCA at last acquiesced, endorsing Harvin’s sentence, and rejected his appeal.

The dissent

At the end, Justice Lawrence Meyers was the lone justice on the TCCA who thought that Harvin got a raw deal from just about everyone; from his lawyers, the trial judge, and the judge who had evaluated the subsequent claims. In his view, not only had Harvin’s rights been repeatedly violated, but his own court had countenanced a sort of judicial cover-up by the lower court judges who had evaluated Harvin’s claims. As Justice Meyers began his dissent he noted the irony in the way his colleagues rushed to overturn adverse rulings of two popular Texas politicians, former Gov. Rick Perry and former House Majority Leader Tom Delay, both of whom got in big legal trouble in the state until they were bailed out by the TCCA. From Meyers’ dissent:

“If you are the former governor of the State of Texas or the former Republican Texas Representative who was the house majority leader in the United States Congress, we have seen that this majority will not hesitate to invent new remedies to prevent affirming a jury conviction or to prevent prosecution altogether...But the Applicant here does not bring the same pedigree that the former governor and congressman bring to their appeals, so the mandatory 40-page opinion is now being used to prevent the Applicant from the new trial to which he is so clearly entitled.

“In my Perry dissent, I indicated that the tragedy in that case was not just in granting relief to Perry, but in preventing legitimate appeals by other defendants who do not share his political power or charm…. the Applicant here had almost no representation and… numerous errors by the attorneys and judges in this case plagued the entire process. It is sad that the majority does not give Applicant the relief he deserves, but I guess it is not the politically expedient thing to do.”

What did Justice Meyers get for his candor? After switching his party affiliation from Republican to Democrat a few years ago he lost his reelection bid last month to Mary Lou Keel, a longtime former prosecutor and lower-court judge. He won’t be around for any more appeals from Harvin, the father who’ll likely spend the rest of his life in prison for a crime the victim swears he did not commit. And Jack McGaughey, the man who briefly served both as Harvin’s lawyer and then as his prosecutor? He himself became a judge in Texas in 2012, replacing Judge Towery, the judge who sent Harvin to prison for 60 years in the first place.