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.
My wife keeps calling today to inquire whether I have voted. "No," I answer. I don't think I am going to this year. All of the candidates look like a bunch of phonies. I can't figure out what they are talking about most of the time.
"You need to consider the lesser of two evils," she counsels. She urges me to vote in the Senate race, if nowhere else. "Remember, the Senate passes on federal judges."
She is right in a way I hate to admit. I want to sit this election out as a form of protest. But what if you protest and no one listens? I may have but one vote, but surely that is worth something.
But both major parties weary me. Too much hatred, vitriole and downright silliness. Besides, all the candidates really aeem to care about is getting elected by any means possible. I've heard enough trash talking this season to fill a landfill the size of Texas. I keep wishing for a fiery brand of Roman populism, some protest from the folks at the bottom of the pecking order. I suspect I will wait in vain. Even Obama looks spent after two short years.
How much more interesting this season would have been if voters organized and decided to boyvott the polls and boycott paying their mortages. Let the parties bicker about the bailout and how much to help bankers. The rest of us ought simply to heave a collective "no" at the racketeers in suits on Wall Street and government. We are slaves in search of a Spartacus. How about a protest movement? Call it Spartacus Speaks.
The last time I voted, I could not bring myself to pull the lever for either candidate in my district's Congressional District. It is not that I have anything against Rosa DeLauro, the incumbent Democrat. But I don't warm to her either. I can't even name her opponent. She is driving a machine that virtually guarantees her seat for as long as she wants it, Tea Party of not. I don't care to grease her wheels.
So last election, I wrote in the name Clarence Darrow for Congress. The next day, when DeLauro was announced winner yet again, I scanned the local papers to see if my write-in candidate would be reported. It wasn't. I threw away my vote, yet I feel richer for the chance to vote for someone who is something more than a silhouette.
I don't know yet if I will make it to the polls this year. Odds are if I do, I will write in the names of my dogs for a spot or two. Keep your eyes peeled for a groundswell for Odysseus and Penelope. I can vouch for their honesty. And they are beholden to no special interest. What's more, they have as many instincts about what the world needs as the hacks circulating through office. They are border collies. so they work hard.
I still like the idea of a moratorium on mortgages. I wonder if others will sign on. I wonder if enough people did so whether the courts, banks and lawmakers would be forced to listen to the needs of ordinary people. I have my doubts. The rich rarely lost in Rome; they rarely lose here. Spartacus got killed.