Habeas Corpus: a Remedy when an Appeal Is Insufficient or Unavailable

A state is not required by the federal constitution to provide a right to appellate review at all, but where a state does not provide a right to appeal and imprisons a person, a writ of habeas corpus is practically always available in a higher court to give relief against an unjust incarceration. Now the theory and practice of writs gets complicated in a hurry. Suffice it to say that the great majority of  judicial proceedings in America today are under streamlined, simplified procedures that were introduced in the early twentieth century to replace a congery of nonstandard writ practices. In a few areas, the old forms still raise their generally ugly heads. One of these is habeas corpus writ procedure. If one person holds another, and the prisoner claims to be held contrary to law, the prisoner may apply to a court for a writ of habeas corpus ("Habeas corpus" means "you have the body of another person[, a prisoner]."). If the court finds that the writ application makes out a proper prima facie case that the prisoner is being held illegally, the court will issue the writ, which summons the person who holds the prisoner and the prisoner to court to determine whether the prisoner is in fact being held contrary to law, and issuing whatever orders are necessary to conform the imprisonment to law up to and including, in a proper case, an order to release the prisoner.
Habeas corpus offers relief for people being held for trial illegally before the trial. It offers relief for convicts who no longer have a right to appeal or in addition to appellate rights they have. It offers relief for people who are held in contempt of court, for which there is generally no right to appeal, and it offers a practical solution for plain old false imprisonment under color of law or not under color of law.
This post talks about the basic theory of habeas corpus. Next week we'll talk about rules that determine when, and in which courts, habeas corpus relief can be sought.

Fifth Circuit: It Wasn't the Sheriff's or the Jailer's Fault that the Defendants Went through Hell on Earth

Did a sheriff falsely imprison two people accused of public intoxication by failing to release them when a hearing to determine whether or not there was probable cause to hold them was not held because a hurricane hit? Did a jailer deny the people access to counsel by not allowing them to use their cell phones to call for legal help? A New Orleans federal jury said "yes." Fifth Circuit Judge Jacques L. Wiener, Jr, writing for a panel including judges Carolyn Dineen King and  E. Grady Jolly, held in Waganfeald v. Gusman  that the answer to each question is "no." Louisiana Code of Criminal Procedure article 230.2(B)(1) says that a defendant shall be released if probable cause to hold a defendant is not found by a magistrate in 48 hours. It does not have an exception for emergencies in its text. The leading Louisiana case interpreting this statute, State v. Wallace, 2009-KK-1621, (11/09/09); 25 So.3d 720, includes an exception for emergencies and extreme circumstances in its decree. This was brought out in oral argument in Waganfeald. The statute codified County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which, in its dicta, includes an exception for emergencies. the Fifth Circuit ended up deciding that there was an emergency exception, and that Hurricane Katrina was an emergency. The Fifth Circuit decided that the jailer had not deprived the defendants of counsel first, because these probable cause hearings were not a "critical stage" of the criminal proceedings, that is, a stage of the proceedings at which the right to counsel had attached and second, because the jailer didn't keep the defendants from accessing the phones, it was just that the phone equipment outside of the jail that the phones were attached to was down, which wasn't the jailer's fault.
In essence, what happened to the defendants was horrific, but being in New Orleans during Katrina was horrific. The Fifth Circuit decided that the horror wasn't because of the sheriff or the jailer.
The complaint in the trial court for this case is here.
The defendants were arrested in August 26, 2005. One was released October 3, 2005, the other October 5, 2005. With the benefit of hindsight, instead of complaining about staying one second after 48 hours, it might have been well-advised to argue in the alternative that the emergency that required their overlong hold did not go on for 37 or 39 days. The plaintiffs' strategy of arguing that the statute admitted of no exception ended up working against them in the appeals court (One of the male appeals court judges appeared hostile to the statute itself as it might be applied to a serial killer.).

A Phone Call from a Southern Gentleman

Ninth Court of Appeals Justice Hollis Horton called today. In our wide-ranging conversation, he was curious about some of the background of the sexually-violent-predator civil-commitment system that he didn't have interaction with in his part of the process. He was surprised by the relative inexperience of lawyers working on both sides of the SVP docket. He said that he had not seen the 48 Hours piece on the best known SVP trial, that of Wesley Miller (I was Miller's trial counsel.). Justice Horton said that he had visited this blog, looking at the post about Judge Seiler's reversals (It's the second one below here.), and he and I agreed that we valued the work of Nancy Flake, Managing Editor of the Montgomery County Courier. His undergraduate degree, he told me, was in economics. He said he had to get off the phone because of the Beaumont courthouse shooting.

County Court as a Appellate Court

The Texas Constitution provides that every county in Texas shall have a county court. In rural counties, the county court is a real court presided over by the elected county judge. Such a county judge need not be a lawyer, and is not only the chief judicial officer in the county, but is also the chief executive of the county (though with less hands-on power than any of the county commissioners, since the judge does not have a precinct to have power over and responsibility for) and the chief legislator of the county presiding over commissioners' court, which is the county legislature. (Technically district court judges, who, as judges, outrank county judges are not judges of the county, but are independent of the county. In rural areas, it is common for a district court to encompass more than one county, and the district judge to ride a circuit among a number of counties). One of the jobs of the county judge's judicial county court is that it is the appellate court for justice courts and small claims courts in the county. These appeals are trials de novo.
Larger Texas counties have one or more county court at law which are established by the legislature. Such counties don't have judicial county courts, the county court at law performs all the judicial functions of the judicial county court. In such counties, the county judge is not really a judge; the title is a courtesy since such a person's most important role is to preside over commissioners' court. County courts at law generally must be presided over by a lawyer. Such county-courts-at-law take the appeals of the justice and small claims courts of the county, generally by trials de novo. Municipal courts that are designated by the legislature as municipal courts of record have appeals by reporter's record and clerk's record like a district court, and the county court at law sits and rules as an appeals court justice does.
Appeals by writ of certiorari is sometimes possible from a justice or small claims court to a judicial county court or a county court at law.
Except for constitutional violations, there is no appeal from a judicial county court or a county court at law sitting as an appellate court over a lower court.

On the Reversals of Sexual Violent Predator Commitments

In In re Commitment of David Dodson, the 435^th District Court of Montgomery County, Texas struck the testimony of Dr. Anna Shursen, Dodson’s only witness, after she had begun to testify. In only the second reversal I am familiar with of a sexually-violent-predator trial on the merits by  the Ninth Appeals Court of Beaumont, it overturned Dodson’s commitment. It appears from the filing number of the case of the commitment of Michael Bohannon that Bohannon’s case was likely tried later than Dodson’s. The district court in that case also struck Dr. Shursen’s testimony—again she was the defense’s only witness—but it struck her this time after a pretrial hearing, before the beginning of the trial. Nine days after Beaumont had reversed Dodson, Beaumont reversed Bohannon. The State appealed, and Bohannon is currently pending before the Texas Supreme Court. The Texas Supremes heard oral argument in Bohannon November 8, 2011.

 

In re Commitment of Raymond Scott Hinkle appears to have been tried after Bohannon. The State called Hinkle's designated expert psychiatrist Dr. Charles Tennison as a hostile witness in its case-in-chief. Hinkle reserved his questions of his expert for his case-in-chief. The trial court struck Tennison as a expert after his adverse questioning by the State. Beaumont reversed and remanded the commitment.

In re Commitment of Larry White looks like it was next in line, but it's not a reversal. His appellate lawyer told Beaumont that there weren't any grounds for reversal. The trial court struck Tennison here, too.

Yesterday, In re Commitment of Lester Winkle came down. The trial court had stricken Tennison—again, the defense’s sole expert—in a pretrial hearing. The appellate court panel in the case was made up of Justices David Gaultney, Charles Kreger, and Hollis Horton. Gaultney dissented on the ground, basically, that the defense had not preserved the error in the trial court by not requesting a continuance or asking for another expert evaluation, after the trial court had stricken the expert’s testimony there.

Observations:

1. Four reversals out of 103 trials is not a lot. The newspaper story about Judge Seiler's record would make an uninformed person think that he's reversed a lot, which is not the case.
2. I'm not aware of the trial court ever striking a State's expert witness in an SVP case. I'm not aware that Beaumont has ever overruled a trial court for admitting a State's expert's testimony over objection in an SVP case, even though, I don't believe that the State's expert witnesses in SVP cases are any better than plaintiff's expert witnesses in personal injury cases who are routinely struck by trial and appellate courts (SVP case are civil cases, as personal injury cases are.).
3. Beaumont appears to me to be signalling Judge Seiler that he should be slower to strike defense witnesses in SVP cases, and it is not clear to me that Judge Seiler is listening to them.
4. State Counsel for Offenders, the agency of the Texas Criminal Justice board that is the public defender office for SVP cases, does not have as much money for expert witnesses as the prosecutors do. The State always has at least one psychiatrist expert, but because SCFO does have as much money, respondents are much less likely to have a psychiatrist in the battle of the experts.
5. Larry White needs to file an application for a writ of habeas corpus directly.
6. Trial lawyers: if your only expert witness gets struck, ask for a continuance, and ask for leave to seek another expert.
7. Notwithstanding my observation number number one above, Nancy Flake's article in the Montgomery County Courier was a fine piece of journalism. The subject was recondite and the deadline came quickly, but she appears to have gotten the facts right.

Texas Supreme Court Electronic Filing Rules

Attorneys must electronically file all documents in cases with the Texas Supreme Court. All persons filing electronically must also file printed paper versions of the file-stamped e-filed document within three business days: one for the record of an original proceeding, two of petitions, responses, replies and amicus briefs, four of any brief on the merits. SCOTX has some helpful resources on its website for new to electronic document production and practice.
Now you have to pay an e-services provider to file any paper.  That fee is larger than mailing fees, but probably saves money overall and in the long run because of reduced costs related to producing more paper copies, but in the short run you have to pay the provider and prep up some copies for mailing, and mail them. Large corporations can probably deal with the electronicnization  of document production OK, but my family law and probate clients can't deal with it so well (My criminal law clients don't have business with the Austin Supremes.).
Some good news is that if your back is absolutely against the wall on a filing deadline, you can now file late at night the night the document is due (But don't do it, always leave time for someone's computer to crash, for you or a courier to have a flat tire or other car trouble, etc.).

All Parties to a Mineral Lease Must Generally Be Parties to Litigation about the Lease

Texas Ninth Court of Appeals Justice Hollis Horton , writing for a panel including David Gaultney and Charles Kreger, reverses and remands a decision of state district court 1-A in which a mineral lease was declared terminated on the ground that the trial court had not forced the plaintiffs to join all the other lessors before summarily declaring that the lease had terminated. The style of the case is Kodiak Resources v. Smith. Some mineral interest lessors asked the trial court to find that the lease did not continue because it was not producing and because "operations" as defined by the lease were not ongoing. The Ninth Court, which sits in Beaumont, distinguished this case from Sabre Oil and Gas Corp. v. Gibson, 72 S.W.3d 812 (Tex. App.--Eastland 2002, pet. denied). The Gibsons sued Sabre complaining that Sabre forced the Gibsons into a pool in bad faith. The Eastland Court of Appeals held that though holding for Gibsons would have an effect on the other members of the pool who were not parties to the suit, the other parties were not necessary to determine whether Sabre's acted wrongfully as to the Gibsons. In Kodiak Resources, the nonparty lessors might have evidence of production or "operations" as to the single lease each of them entered into and as to which each of them was bound by.

Help for Those Studying the Bluebook

North Carolina Central University School of Law has materials to help you study how to use the Harvard Bluebook when writing your briefs, etc.