Just heard about a person pleaded down from various charges resulting from shooting at a cop (or cops) to illegal possession of a gun.
What happens if the SCOTUS finds that any restriction of the people to keep and bear arms is unconstitutional in this case - Does he go free?
Not automatically, but if the Supreme Court invalidates a law under which you are convicted, yes, you can be set free.
Please note that it’s extremely unlikely, even under a permissive reading of the Second Amendment, that the Court would find the government has absolutely no power to regulate guns. But if they did, then yes, anyone serving time for illegal possession of a gun could be set free.
So when the Judge(s) bang the gavell the cell door doesn’t pop open automatically, I can understand this, but if this happens how would this person be free’d, and would he have his criminal record wiped?
The person, or his lawyer, would file a writ of habeas corpus with the local court of record. A hearing date would be set. The prisoner, called the petitioner for the purposes of the proceeding, would show that his conviction was for illegal possession of a weapon, and would ask the court to take notice of the recent Supreme Court ruling that held that the Second Amendment prohibits such laws. The government would then have to respond, saying either, “Yes, we agree,” or “No, we don’t, because …”
The judge then hears arguments, if the government disagrees, and decides which argument is persuasive. In your example, it’s hard to imagine any argument that the government would offer that would succeed.
If the judge finds for the petitioner, he’ll order him released. The petitioner is then out-processed through the local jail and is free to go.
His criminal record would show that his conviction was overturned.
What if, as a desperate last-ditch tactic, they tried honesty?
"Yes, Your Honour, this person was technically convicted of weapon possesion. But actually, he robbed a bank, killed all the hostages, shot several police officers and finally drove his burning getaway car into an orphanage. We told him that we could have proved all this, and he agreed, but we eventually allowed him to plead down to illegal posession of a gun.
Let’s face it, Your Honour: you know, we know and the defendant knows that he was jailed for those other crimes, and the actual offense under which he was convicted is just a formality. So we’d like him to either stay in jail according to the terms of the original plea-bargain, or else we’d like to prosecute him again for the actual crimes he committed."
Would that last part count as double jeopardy? After all, he was never actually put on trial for the bank robbery and the murders.
Jeopardy attaches at a jury trial when the jury is sworn in, or at a bench trial when the judge begins hearing evidence. If the plea agreement was reached before that, then double jeopardy concerns would not bar a retrial.
A plea agreement is essentially a contract between the accused and the state, and disputes about the meaning of a plea agreement are resolved in the same way that a contractual dispute would be resolved.
If his plea agreement forbade his challenging his conviction or sentence, then he has arguably breached that agreement. Normally, a guilty plea waives all non-jurisdictional defects and claims of error; sometimes plea agreements permit the accused to appeal a specific finding or ruling.
In this case, however, some other person challenged the constitutionality of the law and received a favorable ruling; our subject merely wishes to benefit from that event.
I’m not aware of any case on point. But it might get resolved on the basis of equity. If the guy didn’t serve anywhere near the sentence the original plea proposed, I don’t see a problem with vacating the plea and trying him again. The closer he gets to completing his sentence, though, the less ground the state has to claim that their end of the agreement wasn’t met.
And I can see the argument being made that no matter HOW much time he served, he fulfilled his end of the plea bargain, and the state is not entitled to breach its side and retry him.
I simply don’t know what would happen, but I suspect it would be highly fact-dependent.
You can say anything you want, but saying “Your honor, this man was ACTUALLY jailed for ___ while the conviction was ___ just a formality” is borderline contempt and is a highly immoral thing to say. If the judge lets it slide, it might be a legal statement, I don’t know, I’m not a lawyer. However, you can always say “Your honor, this man was ACTUALLY jailed for eating the entire population of Romania, while the convictionw as __ just a formality” and it will hold about as much water. Allegations not brought up in indictment or conviction are not really legal facts, just speculative rambling.