In response to the horrific miscarriage of justice which occurred on 05/26/2011, in the Jerome Ersland trial, I decided to start work on a rough draft of a bill which could right this terrible wrong. It is my hope to get it sponsored and passed in the 2012 session of the Oklahoma legislature. ALL CONSTRUCTIVE suggestions are welcome! In your comments, please specify whether it should be a new note, a wording correction, something that's been overlooked, etc. I'd like to have this as close to being a workable finished product as I can before I start soliciting sponsors.
WORKING TITLE: JUDICIAL EQUITY ACT
FIRST DRAFT:
The purpose of this act is as follows:
To restore equity under the law to persons who are now considered to be convicted felons; but, who would not hold that standing under current laws.
Persons who would be eligible for relief under this act are as follows:
1) Persons who were convicted under a law which has since been recinded, overturned, or modified to such an extent that it would no longer apply to that person.
2) Persons who were convicted under circumstances which would have qualified them for a legislatively enacted affirmative defense, if that affirmative defense had been available to them at the time of their trial.
Methods of implementation:
1) When the facts of the case are undisputed and self-evident of qualification under this act, the remedy would be a full pardon; and, full restoration to the legal status which that person would have held if the conviction had not occurred. (Method of determination?)
2) When the facts of the case require further investigation to determine if the person qualifies for relief under this act, an initial review shall be conducted by (???)
A favorable ruling at this stage shall be binding.
An unfavorable ruling at this stage would qualify the person seeking relief to a new trial which is limited to the facts as they pertain to the relevant affirmative defense, inclusive of any facts, expert witnesses, and/or testimony which would have been relevant had the cited affirmative defense been available at the time of the original trial.
Any judge, prosecutor, or juror who was involved in the original trial shall be ineligable to serve in any capacity beyond that of a witness in this new trial.
A favorable ruling at any step shall result in the following:
1) If that person is currently incarcerated solely for the crime in question, an order for the release of that person shall be issued immediately.
2) If that person is currently incarcerated for some other crime, that person shall remain in custody pending a review (by?) to determine what, if any, adjustment of that person's sentence might be justified.
3) The relevant conviction shall be renderd null and void; and the person shall be restored to the same legal status which that person would have held had the relevant conviction not occurred. Further, that person shall immediately become eligible for expungement of the relevant conviction from that person's record.
4) Any further remedies available to that person are outside the scope of this act; and, are neither expanded nor reduced by this act.
If the person originally entered a plea of guilty based solely upon the law of the time; and, would otherwise qualify for relief, had they been convicted instead, they would qualify to petition for relief under under this act just as if they had been convicted by a jury.
NOTES:
1) If anyone spots any loose wording, please point it out to me and suggest corrections to it. I'm sure there's plenty of it. By "loose wording," I'm referring phrasing which someone could twist to allow someone to use the bills for purposes other than it's intended target - vindicating people who would not be incarcerated and/or saddled with the limitations of being a convicted felon were it not for "poor timing." Also, I'd like to make sure that no one who really deserves relief can be barred because of a slip up in wording. LOL, It's unfortunate; but, lawyers and courts can sometimes twist things that seem perfectly clear cut to the average person into something totally different...
2) The way I understand it, in order to be Constitutional, it has to include everyone in that class. While I don't have any objections to that, it DOES require a streamlined review process for the bill to not be defeated on economic feasibility grounds. I can almost hear someone saying, "Yeah, it IS the right thing to do; but, we just can't afford to do it right now..." Meanwhile, people who shouldn't be in prison ARE; and, people who are wrongfully suffering from all the baggage that the label "convicted felon" carries with it.
3) If we waste time putting things into it such as: "This shall only apply to persons with no other felony convictions..." or "in cases of self-defense," the law wouldn't survive its first court challenge.
4...)?????
WORKING TITLE: JUDICIAL EQUITY ACT
FIRST DRAFT:
The purpose of this act is as follows:
To restore equity under the law to persons who are now considered to be convicted felons; but, who would not hold that standing under current laws.
Persons who would be eligible for relief under this act are as follows:
1) Persons who were convicted under a law which has since been recinded, overturned, or modified to such an extent that it would no longer apply to that person.
2) Persons who were convicted under circumstances which would have qualified them for a legislatively enacted affirmative defense, if that affirmative defense had been available to them at the time of their trial.
Methods of implementation:
1) When the facts of the case are undisputed and self-evident of qualification under this act, the remedy would be a full pardon; and, full restoration to the legal status which that person would have held if the conviction had not occurred. (Method of determination?)
2) When the facts of the case require further investigation to determine if the person qualifies for relief under this act, an initial review shall be conducted by (???)
A favorable ruling at this stage shall be binding.
An unfavorable ruling at this stage would qualify the person seeking relief to a new trial which is limited to the facts as they pertain to the relevant affirmative defense, inclusive of any facts, expert witnesses, and/or testimony which would have been relevant had the cited affirmative defense been available at the time of the original trial.
Any judge, prosecutor, or juror who was involved in the original trial shall be ineligable to serve in any capacity beyond that of a witness in this new trial.
A favorable ruling at any step shall result in the following:
1) If that person is currently incarcerated solely for the crime in question, an order for the release of that person shall be issued immediately.
2) If that person is currently incarcerated for some other crime, that person shall remain in custody pending a review (by?) to determine what, if any, adjustment of that person's sentence might be justified.
3) The relevant conviction shall be renderd null and void; and the person shall be restored to the same legal status which that person would have held had the relevant conviction not occurred. Further, that person shall immediately become eligible for expungement of the relevant conviction from that person's record.
4) Any further remedies available to that person are outside the scope of this act; and, are neither expanded nor reduced by this act.
If the person originally entered a plea of guilty based solely upon the law of the time; and, would otherwise qualify for relief, had they been convicted instead, they would qualify to petition for relief under under this act just as if they had been convicted by a jury.
NOTES:
1) If anyone spots any loose wording, please point it out to me and suggest corrections to it. I'm sure there's plenty of it. By "loose wording," I'm referring phrasing which someone could twist to allow someone to use the bills for purposes other than it's intended target - vindicating people who would not be incarcerated and/or saddled with the limitations of being a convicted felon were it not for "poor timing." Also, I'd like to make sure that no one who really deserves relief can be barred because of a slip up in wording. LOL, It's unfortunate; but, lawyers and courts can sometimes twist things that seem perfectly clear cut to the average person into something totally different...
2) The way I understand it, in order to be Constitutional, it has to include everyone in that class. While I don't have any objections to that, it DOES require a streamlined review process for the bill to not be defeated on economic feasibility grounds. I can almost hear someone saying, "Yeah, it IS the right thing to do; but, we just can't afford to do it right now..." Meanwhile, people who shouldn't be in prison ARE; and, people who are wrongfully suffering from all the baggage that the label "convicted felon" carries with it.
3) If we waste time putting things into it such as: "This shall only apply to persons with no other felony convictions..." or "in cases of self-defense," the law wouldn't survive its first court challenge.
4...)?????