Archive for the ‘legal definitions and issues’ Category

US Supreme Court
by dbking/flickr

The Supreme Court Of the United States (SCOTUS) has virtually unlimited power that is difficult to quantify. This has been true since the fourth Chief Justice, Justice Marshall. Even though landmark decisions from the United States Supreme Court shape and radically transform our lives, we may not know much about their or path to the Supreme Court in the first place. These decisions often trace back to individual citizens. Miranda, written by Chief Justice Earl Warren in 1966, for example, essentially addressed detainment and torture. Dred Scott, which prevented blacks from citizenship and access to the courts, was voided after the Civil War with the Thirteenth and Fourteenth Amendments.

The Supreme Court

The Supreme Court of the United States is a discretionary court with ultimate appellate jurisdiction, and it has nine Justices: Chief Justice Roberts (hence the name “The Roberts Court”), and Associate Justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. SCOTUS Justices serve on the high Court for life and there are currently three living retired Justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.

The Roberts Court is a conservative Court: Justices Roberts, Scalia, Thomas and Alito are conservative; Ginsberg, Breyer, Sotomayor and Kagan are liberal; Kennedy is considered to be the conservative swing vote.

The Cert Pool and the September 24, 2012 Conference

On September 24, a conference is scheduled in the United States Supreme Court, where a miniscule handful of legal cases on appeal will be chosen from many hundreds for a review. Being in the group (called the “cert pool”) can lead to weeks of insomnia and hopelessness even given the academic awareness of long odds. One is far more likely to be struck by lightning. Out of 8000 or so yearly cases, there may be decisions in only 150 cases, with full written opinions in 60-70, give or take. Statistics on 2011 opinions and dissents are here.


How cases get to the United States Supreme Court

(more…)

Written by Frederick Leatherman (Masoninblue) and reblogged here with permission.

Can You Direct Me To The House Of The Reasonable Man?

Many of our civil and criminal laws are based on the theoretical concept of the reasonable person and what he or she would do in any given situation. We establish standards of conduct based on this theoretical reasonable man or woman and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

This concept of reasonableness can change over time as people’s concepts of what constitutes reasonable behavior in any given situation change.

For example, our common law comes from Great Britain and the Brits are not as violent and gun-loving as Americans. According to their cultural concepts, a reasonable person would attempt to retreat from a volatile situation before using force in self-defense. Hence, the duty to retreat at common law that we kept after we won the war for independence.

Conditions in the western frontier of our country were not as civilized and sedate as back east. Out west the thinking was real men stand their ground and shoot your ass, if you mess with them, so the western states eliminated the duty to retreat. Their concept regarding what a reasonable man would do when threatened with violence was significantly more aggressive than back east.

As our society has become more suspicious and fearful of strangers, more and more people now appear to believe that a reasonable person would stand their ground meeting violence with equal or greater violence. The NRA and many people now think that the solution to our violent society is more people armed with guns.

Recently, in a blog within these hallowed halls, a person said we should require all teachers to carry guns in order to stop violence in schools. I think that idea is absolutely crazy and about as unreasonable as unreasonable can get, but there is no denying that a lot of people believe it’s reasonable. Fortunately, I think I am still on the majority side of this issue.

Whenever you see the word “reasonable” in a law, it means an objective, as opposed to a subjective standard. In other words, reasonableness is not based on the perception of any specific identified person, which is a subjective standard. It’s based on the actual facts and circumstances of a given situation and what a hypothetical reasonable person would do in that situation.

As I have said, Florida’s SYG law is not a license to kill. Yes, a person can stand their ground. Yes, they have no duty to retreat, Yes they can use force, including deadly force in self-defense, but only if a reasonable person in the same situation (i.e., the objective reality out “there,” as opposed to a particular person’s perception of it) would do so, AND they cannot use more force than is reasonably (i.e., there’s that damn word again) necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation they are in, as opposed to their perception of it, are such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffering serious bodily injury.

Trayvon Martin was unarmed. That is an objective fact and circumstance. George Zimmerman was armed with a gun and following him. That is an objective fact and circumstance. They had a physical confrontation. That is another objective fact and circumstance. These are undisputed facts.

One of them started the fight. That is another objective fact and circumstance, but we do not know for certain who did. The identity of that person is a disputed fact and there have been many arguments about it.

I believe Zimmerman did because he followed Trayvon against the police dispatcher’s request. He thought Trayvon was a burglar casing the neighborhood and he was frustrated because he thought Trayvon was going to get away before the cops arrived. We know that is what he was thinking (i.e., his subjective state of mind) because he said so. As I recall, his specific words were, “These assholes always get away.”

He also got out of his SUV and started following Trayvon and, after being pressed by the dispatcher to provide an address or location where the police officer could meet him, he said, “I’ve to get out of here,” and told the dispatcher to tell the officer to call his cell phone when he arrived in the neighborhood, instead of agreeing to meet the officer at the mailboxes as he had previously suggested. The mailboxes are located close to the clubhouse near the entrance to the neighborhood and would have been easy for the officer to find. The only problem with meeting the officer at the mailboxes was that he had lost sight of Trayvon, who ran behind some houses and he did not want him to get away. He then terminated the conversation.

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 711. Therefore, Zimmerman was mistaken.

Would a reasonable person have made that mistake? Would you or anyone you know have made that mistake?

Having made that mistake, what, if anything, would you have done upon encountering Trayvon?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was George Zimmerman a reasonable person that night?

A casual perusal of the 47 pages of his 911 calls to report suspicious activity strongly suggests that he was anything but a reasonable person. Those 47 pages are a damning indictment of a deeply paranoid person and I challenge everyone to read every freaking entry on every freaking page and then construct an argument that he was not a ticking time bomb waiting for the right stressor to set him off.

Why did George Zimmerman call the police that night? He saw an older teenage Black male wearing a hoodie type sweatshirt, jeans, and white tennis shoes walking around in the rain looking around at houses. I am surprised he even noticed him. Why call the cops? Why not ask him, if he needs help or directions? Don’t the police have better things to do than to respond to calls about supposedly suspicious people doing ordinary things?

A police officer cannot detain someone to investigate a possible crime, unless they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. A hunch is not enough. There must be sufficient objective facts and circumstances that would cause a reasonable person to suspect that the person was committing a crime. I do not see that here and I see no reason to summon police to investigate.

George Zimmerman likely knew all about the reasonable suspicion test since he is a student in a criminal justice program. That is one of the key concepts that is taught in those programs.

Nevertheless, George Zimmerman was certain that Trayvon was “up to no good” and, we know that because that is exactly what he told the dispatcher.

Knowing his state of mind when he ignored the dispatcher’s advice and he set off in search of Trayvon, which is something that no reasonable person would have done, what do believe he was prepared to do, if he found Trayvon and Trayvon was not cooperative?

What would a reasonable person have done in Trayvon’s situation? We know he knew he was being followed because that is what he told his girlfriend, when she called him moments before he was shot. We know he was afraid because he ran away from George Zimmerman.

Even if George Zimmerman did not start the physical confrontation, which I suspect he did, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

Perhaps George Zimmerman should have asked someone that night for directions to the house of the reasonable man.

I do not see a reasonable person doing anything George Zimmerman did that night up to and including his effort to find Trayvon. Nevertheless, this is not my judgment to make.

We have a legal system to decide what happened and what to do about it. We have due process of law with an adversarial system presided over by judges and we have juries to decide what happened. We will have to be patient and wait and see what happens.

In the meantime, we can wonder and while we wonder, we can conduct a diligent search for the reasonable man.

As an aside, why does our president believe he has and should exercise the power to unilaterally decide to kill someone just because he believes that person is a terrorist.

What is reasonable about that?

Cross posted from my law blog

Written by Frederick Leatherman (Masoninblue) and reblogged here with permission. The article is also on Firedoglake.com/MyFDL, where editors assisted to provide the justice scales image/graphic, from Wikipedia commons.

Scale of Justice (Wikipedia)

Florida self-defense law is a bit unusual, so I am going to explain how it works.

First, as I have stated in several posts here, here, and in comments to other posts, a person had a duty to retreat under the common law before he or she would be justified in using deadly force in self-defense. The SCOTUS abolished common law crimes in the mid sixties because they were a mish-mash of confusing and in some instances unintelligible definitions.

All crimes and their defenses are now defined by statute, or municipal ordinance and many of them are based on the Model Penal Code, which was put together by a panel of lawyers, judges and law professors. Most state legislatures adopted the Model Penal Code entirely, with some exceptions in areas where, for one reason or another, they wanted to retain a former law or procedure.

Second, most of the western states rejected the duty to retreat and you will find no mention of it in their self-defense or justifiable homicide statutes. Stand your ground, or SYG statutes merely abolish the duty to retreat. So, jurisdictions that have adopted SYG have merely joined the western states that long ago eliminated the duty to retreat.

Third, SYG is not a license to kill. Although a person may stand their ground without first retreating or attempting to retreat, they cannot use more force than is reasonably necessary to defend themselves. In other words, they may use such force as is reasonably necessary to prevent being assaulted.

The word “reasonable” means the test is objective, not subjective. That is, it’s based on the objective set of facts and circumstances, as opposed to a person’s perception of the facts and circumstances. In other words, a person may use such force as a reasonable person in the same situation would perceive as reasonably necessary to use in preventing an assault.

If they use excessive force, they become an aggressor and no longer are acting in self-defense. At this point, the original aggressor becomes the defender and now can use reasonably necessary force to defend against the use of excessive force.

Therefore, by definition, an aggressor cannot act in self-defense.

The use of deadly force is limited to those situations where, based on the objective set of facts and circumstances, a reasonable person would believe it was reasonably necessary to use deadly force to prevent being killed or suffering “great bodily harm.”

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

Fourth, there are no clear lines of demarcation during a battle between two people that separate the use of reasonably necessary force from the use of excessive force. At some point the line is crossed, for example, if A slaps B in the face and is about to slap B again, B cannot strike A with a baseball bat over the head to prevent another slap. Judges and juries do not like aggressors and when their victims get the upper hand and resort to excessive force, they are inclined to believe that the aggressor deserves it. In practice, therefore, an aggressor takes his victim as he finds him and if he loses the fight, no one is going to be sympathetic, and the person who whupped him will not be charged, unless his response was so extremely over the top that he basically used the initial assault as an excuse to kill or severely injure the person.

Fifth, is the concept of burden of proof and this is where Florida practice may differ from the law of self-defense in your state.

Under Florida law, a defendant can file a pretrial motion in a murder case under the SYG law asking the judge to dismiss the murder charge asserting that he stood his ground and his use of deadly force in self-defense was reasonably necessary to prevent being killed or suffering serious bodily injury. The court must then hold an evidentiary hearing.

This is how it will happen in the Zimmerman case:  [cont’d] (more…)

Written by Masoninblue and reblogged here with permission.

Ahem, and now back to our regularly scheduled program. That would be the law, in case you are keeping score. This article should be read in conjunction with my earlier article, Does A Seven-Year-Wait-Behind-Bars Violate The Sixth-Amendment Right To A Speedy Trial?

I practiced law in the State of Washington where a judge imposes the sentence in all criminal cases, except death penalty cases. In most cases, the sentencing occurs approximately 6 weeks after the defendant pleads guilty or is found guilty by a jury. During the 6-week period, the Probation Office prepares a presentence report for the sentencing judge and the defense prepares for the sentencing by conducting a mini-mitigation investigation and arranging to have a defense expert evaluate the client, if there is a possible mental illness or impaired functioning issue due to an underlying alcohol, drug, or sexual deviance problem.

Federal court works the same way.

Death penalty cases are different because the jury that heard the evidence and convicted the defendant also sentences the defendant. Jury sentencing, in other words.

In death penalty cases, the courts proceed to sentencing within a day or two after receiving the guilty verdict, rather than recess the trial for six weeks pending the sentencing hearing. Therefore, the mitigation investigation must take place before the trial starts, which is putting the cart before the horse since a mitigation investigation must necessarily proceed from the assumption that the client is guilty.

Picture this: Very few people can afford to retain counsel in a death penalty case. Therefore, almost all death penalty lawyers are private counsel appointed by the court and paid at public expense, or they are public defenders. With few exceptions, clients charged with a death penalty offense figure that a court appointed lawyer or public defender is not a ‘real’ lawyer. Clients typically presume the lawyer is really working for the prosecutor and does not give a damn about them or their case.

Okay, let me now introduce you to Mr. Hyde. He is charged with 5 rape-murders and the prosecution is seeking the death penalty. He claims he is innocent and he is convinced that you are lower than pond-scum, unfit to sleep with the dogs, and you are going to sell him out. Greet him with your brightest smile and explain that you need some information from him to get your mitigation investigator started.

And, for God’s sake, don’t forget to duck.

Now that you understand the importance of delay . . .

Judges are concerned that it would be practically impossible to reassemble the jury following a long break after it returns a guilty verdict in a death case and they are not going to sequester jurors for six weeks with nothing to do in order to prevent them from seeing or reading anything about the case and to assure that they show-up for the sentencing hearing. That would be too expensive and impossible to police. They know that most jurors want to get on with their lives and would resent and be distracted while facing a decision to sentence a defendant to death or life without parole. Some jurors might even run away to avoid making the decision or sicken and die from stress-related causes. Sending the police out to find missing jurors would waste time and divert overstretched resources. In addition, judges know that proceeding with less than 12 jurors would raise issues about whether the defendant’s right to trial by jury was compromised. Meanwhile, retaining alternate jurors for the duration of the trial and a 6-week continuance for a sentencing hearing is impractical.

Prosecutors like to shorten the break ‘to strike while the iron is hot,’ so to speak. That is, while the jurors are still emotionally affected by the horror of the crime and more likely to vote for the death penalty. Theoretically, however, death-penalty verdicts should not be vengeance based, right? How is that for an understatement?

Defense counsel always want to lengthen the break as much as possible hoping that the delay will cool tempers and increase the possibility that the jury will return a verdict of life without parole. The more extreme members of our select fraternity and sorority of life savers, would prefer the sentencing hearing be continued for ten or more years, if not indefinitely. I include myself in that select category, just so you know where I am coming from.

In reality, we are lucky if we get more than 48 hours before we have to face a stern and hostile jury. You do not know what constitutes a tough sell until you try to convince a jury to spare your client’s life.

Death penalty trials take a long time. In the cases that I tried, for example, jury selection averaged 3 weeks (attorney conducted voir dire of prospective jurors individually out of the presence of the other prospective jurors) and the evidentiary portion of the guilt phase lasted from 6 weeks (my shortest) to 9 months (my longest).

In practice, because the client’s life is at stake, the mitigation investigation in a death-penalty case is far more extensive and intensive compared to the ordinary case.

I say ‘ordinary’ because there is no comparison to the intensity of a death penalty trial.

Mitigation investigation begins with collecting all available documents concerning your client, starting with medical reports regarding the mother’s pregnancy and your client’s birth. Then we want all medical, school, military, employment, and institutional records concerning the client.

After assembling all available records, we identify, locate, and interview every living person who had a significant relationship with the client and every person for whom he performed a favor or did something nice that he did not have to do.

We are looking for evidence of what we call “a hole in the head.” That is, evidence of an organic brain disorder or injury that impaired functioning and might have caused or contributed to the commission of the crime or crimes with which the client is charged.

We are also looking for evidence that the client might have been abused sexually, psychologically, or physically as a child. As you might well imagine, clients and families often would rather die than open up and talk about that sort of deeply personal, embarrassing, and humiliating information to strangers. We often find that they so deeply suppress or spin memories of abuse to excuse the abuser that it practically takes a miracle to break through the denial and get at the truth. And we have to dig for that information without planting false memories.

We search until we find something.

Why?

Because we honor and never judge our clients, no matter what they have done in their lives, and we do everything possible within the boundaries of the law to save their lives.

We call it God’s work.

And most of the time the money we are paid for doing this work does not even cover our expenses.

Cross posted at my law blog.

Written by Masoninblue and reblogged with permission.

President Obama’s assassination doctrine is a blatant violation of the Fifth Amendment and an insult to everyone who believes in due process of law, the rule of law, and the Constitution. No one is above the law, especially the President. That he would think and proclaim otherwise, says volumes about his arrogance and ignorance.

Attorney General Eric Holder delivered a speech at the Northwestern University School of Law purporting to justify the assassination doctrine as an acceptable form of non-judicial process that has never been reviewed, much less approved, by a court of law. Worse, the administration refuses to share and discuss the legal memorandum upon which Mr. Holder and Mr. Obama rely in claiming the assassination power.

As with everything else in this secretive administration, we are supposed to shut-up and trust them. I refuse to do so.

Support for the death penalty in this country has declined substantially due to the hundreds of innocent people wrongfully convicted and sentenced to death. Why would anyone think that the President should be trusted to get it right when he targets someone for assassination, if our criminal justice system and its vaunted trial by jury so often gets it wrong? What is to stop a president from targeting a political rival or a Reverend Martin Luther King, Jr. for assassination?

Nothing. The person is assassinated and we the people are never provided with an explanation. Absent a whistleblower, and we all know how much this president loves and welcomes whistleblowers, we would never know the president ordered the hit, much less why. Indeed, one might reasonably suppose that he or she would be next, if they asked too many questions.

I am truly disgusted and alarmed beyond words by this development. Under no circumstances will I vote for Barack Obama or any other candidate who supports his assassination doctrine.

Cross posted from my law blog.

written by Masoninblue and reblogged here with permission from frederickleatherman.wordpress.com.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.

The writ of habeas corpus, also known as the Ancient Writ because it originated in England during the Middle Ages, literally means an order to produce the body.

In modern practice, the writ of habeas corpus is an order issued by a judge in the legal district where a prisoner is incarcerated and it is served on the person in charge of the facility in which the prisoner is serving the sentence, typically a warden. The order directs the warden to produce the prisoner in court at a specific date and time for a hearing regarding whether there is a proper legal basis for the prisoner’s incarceration.

The prisoner, or someone acting on the prisoner’s behalf (i.e., typically a jail-house lawyer or a lawyer), prepares a petition (i.e., a request) for a writ of habeas corpus alleging facts by sworn affidavit and making legal arguments that, if true, would constitute a confinement in violation of a constitutional right requiring the court to issue an order releasing the prisoner or granting a new trial.

Every person in this country has a Fifth and Fourteenth Amendment constitutional right to due process of law with the odious exception of the recently enacted National Defense Authorization Act, or NDAA, which authorizes the military to seize and indefinitely detain any individual in the world no matter where situated — including citizens of the United States — pursuant to an order issued by the president. The president also claims to have the power to order people assassinated and has exercised that power at least twice that we know about. The constitutionality, legitimacy, and morality of those claims are beyond the scope of this article.

The Due Process Clause, as it is called, of the Fifth Amendment applies to people prosecuted by federal officials (i.e., United States Attorneys or Department of Justice lawyers) for violating federal crimes while the Due Process Clause of the Fourteenth Amendment makes the Due Process Clause of the Fifth Amendment applicable to people prosecuted by state officials (i.e., a state prosecutor) for violating state laws.

Due process of law generally means people have a constitutional right to a speedy and public trial before an impartial jury in the jurisdiction where the crime was allegedly committed. Due process also includes the Sixth Amendment right to be represented by a lawyer and, if the person cannot afford a lawyer, the court must appoint a lawyer to represent the person at public expense. The accused has the right to confront accusers through cross examination and the jury must presume the accused to be innocent unless the prosecution unanimously convinces the jury beyond a reasonable doubt that the accused committed the crime or crimes charged. The accused cannot be required to testify and may remain silent during the trial. The accused is entitled to have the court instruct the jury that it may not consider silence as evidence of guilt.

If the jury finds the accused guilty, he or she has the right to appeal the conviction. This is called the right to a direct appeal, which is an appeal based on all matters of record (i.e., official transcripts of all proceedings in court prepared by court reporters, or videos of those proceedings). The right to a direct appeal also includes the right to be represented by counsel.

The federal judiciary has a court of last resort called the Supreme Court and intermediate appellate courts called circuit courts of appeal. Similarly, all states have a court of last resort, or Supreme Court (except New York which inexplicably calls its trial courts supreme courts and its court of last resort the Court of Appeals). With the possible exception of a few sparsely populated states, the states have intermediate appellate courts called courts of appeal.

In practice the right to a direct appeal means the right to appeal to an intermediate appellate court and, if the conviction is affirmed, to seek discretionary review of the decision by the Supreme Court.

Discretionary review means the Supreme Court has the power to decide whether to review a decision by the intermediate appellate court.

And now back to habeas corpus. Because of all the rights that I have briefly mentioned and explained, the writ of habeas corpus does not generally come into play until after the right to a direct appeal has been exercised and exhausted leaving the prisoner without a further legal remedy. Practically speaking, this means that a prisoner would not file a petition for a writ of habeas corpus until after he or she lost the direct appeal and the Supreme Court denied review, or affirmed the Court of Appeals, assuming it granted discretionary review.

By the way, the Supreme Court of the United States, or SCOTUS, calls the application for discretionary review a petition for a writ of certiorari.

Notice that I have referred to direct appeals as a method of appealing decisions by the trial court, including jury verdicts, based on appellate court review of matters for which there is an official transcript or video to review. What about matters or issues for which there is no official transcript or video to review?

That is where habeas corpus comes into the picture in modern day legal practice. Briefly, the petition for a writ of habeas corpus is a formal legal request asking a judge to review issues or matters for which there is no official record available to review.

What sort of issue might that be?

As I said earlier, due process of law includes the Sixth Amendment right to be represented by counsel. That means “effective assistance of counsel” and the SCOTUS in Strickland v. Washington, 466 U.S. 668 (1984), defined that term as competent representation according to the standards of legal practice in the jurisdiction at the time and the failure to provide such representation must have been a “material” defect (i.e., it affected the outcome).

Why would an ineffective-assistance claim not be a matter of record?

Let us take a look at the infamous death penalty case of the sleeping lawyer. In Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001), the federal Court of Appeals for the Fifth Circuit held that Mr. Burdine was denied effective assistance of counsel because his court appointed lawyer slept through much of his death penalty trial. Mr. Burdine could not support his claim against his lawyer by relying on the official court record because, not surprisingly, it did not state when the lawyer was asleep. Mr. Burdine had to rely on affidavits (i.e., sworn written statements) of people, including himself, who witnessed the lawyer sleeping during the trial.

Ineffective-assistance claims are allegations that the lawyer did or failed to do something that the applicable professional standards prohibited or required the lawyer to do. In Mr. Burdine’s case, that was the basic obligation to be awake, paying attention, and participating in the proceedings. The vast majority of these claims can only be established by affidavits from witnesses and experts (e.g., other lawyers) that, if true, would constitute an actionable claim for ineffective assistance of counsel.

In the typical case, the prisoner or his representative files the petition with supporting affidavits and legal argument. The opposing party, be it the state or federal prosecution, usually responds with a motion to dismiss the claim on the ground that, even if the court assumes for the sake of argument that the factual allegations in the petitioner’s affidavits are true, they do not state a claim for which relief can be granted.

Judges dismiss many habeas claims on this ground. This is not surprising since most petitioners are representing themselves because they cannot afford to pay a lawyer.

The only exception is death penalty cases. Due to the finality of the penalty, courts will appoint counsel in habeas cases and this is why most successful habeas claims occur in death penalty cases. Errors in other cases are just as egregious, if not more so, but the claims are not adequately presented to survive a motion to dismiss.

If the court denies the motion to dismiss, it will appoint counsel for an unrepresented petitioner and the prosecution will answer the petition with its affidavits and supporting legal argument. If the prosecution disputes the factual claims presented by the petitioner, the court will issue the writ and order the warden to produce the petitioner at an evidentiary hearing at which the court will decide the disputed facts.

If the court decides for the petitioner, it usually orders a new trial. If it decides for the prosecution, it will issue an order denying the claim.

The petitioner can appeal a decision denying the petition.

The most common successful habeas claim in death penalty cases is an allegation that defense counsel failed to adequately investigate the petitioner’s past history to discover mitigating evidence that should have been presented for the jury to consider during the sentencing phase of the trial. Mitigating evidence is any evidence about the petitioner or the crime he committed that in fairness or mercy warrants a sentence of less than death.

Another basis for a habeas claim would be newly discovered evidence, such as a DNA post-conviction exoneration.

Finally, a person is limited to only one habeas corpus petition in state and federal court. Successive petitions are generally prohibited and a failure to assert a particular claim in a state habeas petition constitutes a waiver of that claim in a federal petition. A person also must exhaust habeas claims in state court before filing for the writ in federal court.

DISCLAIMER: I have presented a general overview of habeas corpus for lay persons interested in knowing more about it. Habeas corpus is a complicated area of the law and my summary only scratches the surface, so to speak. I have provided background information, not legal advice. Readers should consult with an experienced habeas lawyer, if they require further information or assistance.

Cross posted from my law blog.

written by Masoninblue and reblogged here with permission. Graphic provided by editors at Firedoglake.com

Gavel Sculpture at  Ohio Judicial Center by Andrew F. Scott (photo: afsart, flickr)

Gavel Sculpture at Ohio Judicial Center by Andrew F. Scott (photo: afsart, flickr)

(h/t to Liz Berry at Firedoglake for alerting me to Chris Hedges’s lawsuit in her post yesterday)

Chris Hedges recently filed a lawsuit against President Barack Obama and Secretary of Defense Leon Panetta in the United States District Court for the Southern District of New York, which is located in New York City. He is challenging the constitutionality of the National Defense Authorization Act that the president signed into law on December 31, 2011. The law will go into effect on March 3, 2012.

This is the controversial law that authorizes the military to arrest and indefinitely detain anyone without a trial, including U.S. citizens within the territorial boundaries of our nation, if they are deemed to be a terrorist or an accessory to terrorism. He calls this law “a catastrophic blow to civil liberties.” I agree.

He alleges in his complaint that he is at risk to be detained under this law because, in practicing his profession as a journalist, he already has engaged in activities by spending time with and developing long-term relationships with individuals actively involved in activities to overthrow authoritarian governments that are allied with the United States. He contends that hose activities could arguably constitute a violation of this statute, given its vague and undefined terms like “substantially supported” terrorism, “directly supported” terrorism, and “associated forces” with Al Qaeda.

The Government will no doubt move to dismiss his complaint on the ground that he lacks standing to challenge the constitutionality of the statute because he has not been detained under its provisions. This argument has been successful in the past in other cases.

Hedges hopes to satisfy the standing requirement, since he intends to continue to develop relationships with and interview people who are actively involved in challenging authoritarian governments and U.S. corporate power. Given the government’s past behavior targeting and harassing peace, antiwar, and environmental groups for non-violently opposing government and corporate activity, he believes that the government will regard him as a person who supports terrorism, if he should write reports from the field that criticize the U.S. and its military. This would place him at risk to be disappeared into a U.S. gulag by the U.S. military, if the court does not act. (more…)