The Great Writ Trivialized

            Habeas corpus is sort of like magna carta: it’s the smattering of Latin that all lawyers know. Recite these words in public, and even non-lawyers know something important is at stake. In essence, a habeas corpus petition asserts that a prisoner is being held illegally. The writ is an important tool in the arsenal of liberty.

            But the great writ has been transformed into something approaching silliness. The filing of petitions in state court is now a routine form of post-conviction relief. If a jury convicts, the next move is to attack the performance of the defense lawyer by claiming ineffective assistance of counsel.

            The courts almost never find in favor of a petitioner because the standard for proving ineffectiveness is so high. In Texas, the courts have even held that a lawyer asleep at trial is lawyer enough: some cases are so overwhelmingly bad for the defendant there was nothing a lawyer could do, even if he stayed awake.

            In Connecticut, there is no limit to the number of writs a petitioner can file, so long as he is in custody. Lose a trial, file a petition asserting trial counsel was ineffective. Lose the habeas, file a new petition claiming habeas counsel was ineffective. Ad infinitum.

            The avalanche of petitions is the despair of the habeas court. Long delays are typical.

            I testified the other day, actually it was over parts of two days, in a case involving a child abuse case I tried and lost almost six years ago. My client was convicted of the repeated rape of his three young daughters. I recall the broad contours of the case, but not many of the details.

            So there I sat on the stand being showed document after document. Do you recall this document? Er, no, I am sorry. I try ten or so cases a year, year in and year out. This case was fifty or so trials ago. Why hadn’t the lawyer calling me as a witness spent any time preparing me or reviewing the case with me?

            Habeas is an afterthought for the courts. Although it is a civil procedure, there is virtually no discovery conducted or permitted. Lawyers are tossed on to the stand with the self-indulgent expectation of all involved that the petition will fail. We mock the great writ with these parodies.

            A few lawyers in the state make good money as habeas counsel; at least one earned close to $200,000 in legal fees in a recent year churning out post-conviction claims. I do not know how many, if any, of these claims had merit.

            I say it’s time to place some limits on the silliness that now prevails in the habeas courts.

            First, all petitions should be evaluated by a three-judge panel to determine whether there is probable cause to proceed. Many writs are silly on their face. Waiting until trial to separate the wheat from the chaff means long delays for meritorious claims.

            Second, require depositions of actual trial counsel. Rather than dragging a lawyer to court to be blindsided with questions about a now forgotten file, require the petitioner to ask meaningful questions in a forum that does not cost judicial time and resources.

            Third, permit motions for summary judgment when it is obvious that the petition is a mere mid-court shot at the buzzer. Why waste court time when there is no case or controversy?

            I am not suggesting Connecticut go the draconian route the federal system has gone, where innocent men are put to death because of procedural defaults. But a habeas system without real limits is a costly farce. Every lawyer and judge involved in the system knows it.

Reprinted courtesy of the Connecticut Law Tribune.


  • No comments yet

Add a Comment

Display with comment:
Won't show with comment:
What is 3 X 3?
*Comment must be approved and then will show on page.
© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
Media & Speaker booking [hidden email]