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INVOKING CRIMINAL EQUITY's ROOTS Cortney E. Lollar*

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INVOKING CRIMINAL EQUITY's ROOTS Cortney E. Lollar* COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION INVOKING CRIMINAL EQUITY’S ROOTS Cortney E. Lollar* Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically-based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article highlights the pervasiveness of equitable remedies in the criminal system and advocates for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution. * James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law. Thank you to Joshua Barnette, Valena Beety, Christopher Bradley, Erin Collins, Joshua Douglas, Ion Meyn, Anna Roberts, Caprice Roberts, Paul Salamanca, Kate Weisburd, and Ramsi Woodcock for sharing their invaluable thoughts and ideas throughout the writing of this piece. I am also grateful to the editorial staff of the Virginia Law Review, particularly Alexander Heldman, Chloe Fife, and Paige Whitaker, for their careful and thoughtful editing of this piece, and to Arjun Ogale for ensuring the editorial process ran smoothly from start to finish. 495 COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 496 Virginia Law Review [Vol. 107:495 INTRODUCTION .............................................................................. 497 I. EQUITY AND CRIMINAL LAW ..................................................... 502 A. Equity’s Roots ................................................................... 502 B. The Roots of “Special and Equitable” Legal Remedies ......................................................................... 506 C. Modern Applications of “Equitable” Legal Remedies ......................................................................... 508 1. Writs of Mandamus and Prohibition .......................... 509 a. Writ to Establish Status as Crime Victim or Rights Related Thereto ...................... 509 b. Right to Counsel of One’s Choice . if One Can Afford to Pay ...................................... 511 c. Writ to Require Production of Police Personnel Files ................................................. 514 d. Government-Requested Writs of Mandamus ......................................................... 518 2. Writs of Coram Nobis ................................................. 519 3. Writs of Audita Querela .............................................. 527 II. BARRIERS TO EQUITY’S USAGE IN CRIMINAL CASES ................ 533 A. Limitations on Protections for Criminal Defendants ....... 534 B. Fear of the “Chancellor’s Foot” Problem ....................... 540 III. EQUITABLE REMEDIES RE-ENVISIONED .................................. 550 A. Writs of Mandamus ........................................................... 551 1. Writ of Mandamus to Request Expungement of Criminal Record ................................................... 551 2. Writ of Mandamus by Private Citizens to Compel Prosecution ................................................. 555 3. Writ of Mandamus to Fund Right to Counsel ............. 560 4. Writ of Mandamus to Compel Production of Police Files ............................................................... 564 5. A Check on Government-Requested Writs of Mandamus ............................................................ 565 B. Writs of Coram Nobis ....................................................... 565 C. Writs of Audita Querela ................................................... 566 CONCLUSION ................................................................................. 569 COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 2021] Invoking Criminal Equity’s Roots 497 INTRODUCTION The one-sided retributive impulses that govern state and federal criminal legal systems have significantly expanded the substantive criminal law while curtailing the procedural Mechanisms aimed at protecting the rights of the accused. Few safety valves remain in place to keep these retributive impulses in check. Equitable remedies remain one such safety valve. Equitable remedies allow a person accused or convicted of a crime to obtain relief from the restrictive criminal procedures states and Congress have implemented over the past half century. Here are a few examples: Orville Hutton legally came to the United States as a child from his native Jamaica.1 He became a lawful permanent resident and remained in the U.S.2 At the age of forty-eight, he was accused of assaulting his live-in girlfriend.3 Hutton entered an Alford plea—a plea of guilty without an admission of guilt4—and was sentenced to a term of imprisonment of one to five years.5 Ten days before he was to be released, the Department of Homeland Security notified him that he was subject to a federal detainer, as the government had begun deportation proceedings against him.6 Hutton’s trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal.7 After he was transferred into DHS custody, Hutton filed a pro se writ of coram nobis, a little heard of equitable remedy still available in federal courts and many states.8 Hutton alleged a violation of his Sixth Amendment right to counsel based on his lawyer’s failure to inform him of the likely immigration consequences of pleading guilty.9 The West Virginia Supreme Court 1 State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). 2 Id. 3 Id. 4 Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)). 5 Id. at 624. 6 Id. 7 Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014). 8 A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2. 9 Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635. COPYRIGHT © 2021 VIRGINIA LAW REVIEW ASSOCIATION 498 Virginia Law Review [Vol. 107:495 granted the requested equitable relief, allowing him to withdraw his guilty plea and stand trial for the offenses with which he was initially charged.10 An Arkansas jury convicted Eugene Pitts of capital murder after a masked man broke into the home of a doctor and his wife. The evidence at trial consisted of the wife’s positive identification of Pitts, despite the mask covering much of the assailant’s face; FBI testimony about hair found on the decedent, purportedly belonging to Pitts; and Pitts’ inability to account for his whereabouts at the time of the murder.11 After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy.12 Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing.13 The remaining sample was later lost.14 Three years later, Pitts received a letter from the Department of Justice, informing him that the work of the FBI lab technician who did the hair analysis in his case “failed to meet professional standards,” resulting in three types of errors in the testimony at Pitts’ trial.15 Pitts asked the Supreme Court of Arkansas to reinvest jurisdiction in the trial court to consider a remedy, including a writ of coram nobis and a writ of audita querela.16 The court granted the motion.17 Maranda ODonnell joined other plaintiffs in a class action suit against Harris County, Texas, alleging that the county’s bail system for indigent misdemeanor arrestees violated both Texas statutory and constitutional law and the Fourteenth Amendment to the U.S. Constitution.18 The Texas district court granted a preliminary injunction after eight days of hearings,19 finding that “County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was 10 State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017). 11 Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)). 12 Id. at 804⁠–05. 13 Id. at 805. 14 Id. 15 Id. 16 Id. at 804. 17 Id. at
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