What is a writ of Habeas Corpus? A writ of habeas corpus is a court order to a warden or jailer to bring a prisoner to court. An attorney may file a petition for a writ of habeas corpus on behalf of his client in prison. The purpose of the writ is to challenge a conviction often for reasons that might not be apparent on the record. These might include ineffective assistance of counsel (the most common issue) or other issues such as undue pressure to plead guilty, jury misconduct, prosecutorial misconduct, newly discovered evidence or use of false evidence by the state. This procedure is intricate and requires the services of an attorney experienced in this field.
How is the process started? The process is most often started by an inmate filing a pro se petition for a writ of habeas corpus. This is a form that is available to any incarcerated person in Connecticut simply by contacting his or her counselor. The form is completed and sent to the court where it is processed and assigned a docket number. The incarcerated person, known as the “petitioner” will receive notice from the court and an application to apply for the services of a public defender. If the petitioner meets the financial eligibility requirements, he or she will be appointed a public defender. It is not uncommon for this process to take more than one year. The appointed attorney will then assume responsibility for the case.
Once counsel is appointed, he or she will endeavor to obtain the petitioner’s entire file from trial counsel, appellate counsel and any other attorneys that were involved with the case. This process can take several months or more. Once habeas counsel obtains the entire file, he or she is obligated to review the complete contents of the file, including trial court transcripts and appellate briefs. Counsel will then identify potential issues that should be raised in the habeas and communicate them to the petitioner. After identifying potential issues, counsel may retain an investigator to locate missing witnesses or evidence that was not properly investigated at the trial level. Additionally, counsel may seek to employ experts in such areas as eyewitness identification, standard of care of counsel or for review of medical or psychological records or any other area where expert testimony may be needed. Once this process is complete, counsel will file an Amended Habeas Corpus Petition with the habeas court. Often the Amended Petition is not filed until two or more years have passed since the pro se petition was filed. This delay is partly occasioned by the backlog with the court docket and the large number of cases handled by court appointed counsel.
The state’s attorney handling the case will then file a Return to the petition. Counsel may also file special defenses to the petition, such as procedural default. Petitioner’s counsel will then file a reply to the state’s Return, if necessary. This concludes the pleading portion of a habeas case. Once this is done, the court will schedule the case for trial. Unfortunately there are a large number of habeas cases pending in Connecticut and they are all heard in the same judicial courthouse in Rockville, Connecticut. Therefore cases often do not get scheduled for trial for three or four years after filing. This delay does not benefit the petitioner, who is usually incarcerated during this entire process.
The habeas trial will take place in Rockville before a judge without a jury. The petitioner in this case is the moving party and so the burden is on him or her to prove their case, and because of the conviction, the presumption of innocence does not apply. The typical habeas trial will require the testimony of the petitioner, as well as any of his or her attorneys whose conduct has been questioned. Other witnesses may be called as necessary to prove the petitioner’s case, and of course the state’s attorney has the opportunity to cross-examine all of the petitioner’s witnesses. The state’s attorney can then call witnesses on the state’s behalf to counter the petitioner’s case. Once the trial is complete, the judge will take the case under advisement and issue a decision in writing.
If the court rules against the petitioner, he or she has a limited time to file a petition for certification to appeal with the habeas court. This petition will go to the judge who heard the case. If he or she believes that the case is worthy of further review, the petition will be granted. If not, the petition will be denied. Either way, the petitioner will have the right to appeal this decision to the Appellate Court. Again, this process takes some time.