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Capital Writs

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Explanation of post-conviction habeas corpus proceedings under Texas and federal law.

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Capital Writs

  1. 1. CAPITAL WRITS: Protect The Conviction Joshua Reiss, Chief, Post-Conviction Writs Division Harris County District Attorney’s Office Capital & Non-Capital Training For The Prosecution Center for American and International Law August 24, 2017 Plano, Texas
  2. 2. WHAT THE HECK IS A WRIT?  “The underlying purpose of The Great Writ is to provide a swift and effective remedy for unconstitutional confinement. The procedures under which writs are considered by either state or federal courts are intended to provide expeditious consideration and resolution of these claims. If the claims are meritorious, relief should be speedy; if they are not meritorious, society's interest in finality dictate that they be denied with reasonable dispatch.” Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004)
  3. 3. A WRIT IS NOT AN APPEAL  “The Great Writ should not be used to litigate matters which should have been raised on appeal.” Ex parte Banks, 769 S.W.2d 539 (Tex. Crim. App. 1989)
  4. 4. DUE PROCESS TATTOO REMOVAL
  5. 5. WELCOME TO THE MATRIX
  6. 6. COMMON CLAIMS  Ineffective assistance of counsel  Brady v. Maryland  Prosecutorial or police misconduct  False evidence or testimony  Juror misconduct  Actual innocence  Intellectual disability
  7. 7. WRIT PROCEDURES  “Applicant” not a “defendant”  Applicant must prove claims by preponderance of the evidence  State files an answer to the writ application  State can support its answer with exhibits not presented at trial, e.g.: ◦ Affidavits ◦ Recorded interviews and phone calls ◦ Jail mail ◦ Classification records
  8. 8. NO ALTERNATIVE FACTS
  9. 9. WRIT PROCEDURES  The convicting court can reference the following as findings of fact: ◦ Trial record ◦ Appellate record ◦ Affidavits ◦ Evidentiary hearing record(s) ◦ Exhibits attached to the writ application and State’s answer  Conclusions of law ◦ Can have alternative conclusions of law
  10. 10. WRIT PROCEDURES  Convicting court is the original fact finder  Convicting court makes recommendation to the Texas Court of Criminal Appeals  Texas Court of Criminal Appeals gives deference to findings of fact supported by the record ◦ Evaluation of credibility and demeanor  Texas Court of Criminal Appeals reviews legal conclusions de novo
  11. 11. EXHAUSTION OF REMEDIES
  12. 12. Texas State District Court Texas Court of Criminal Appeals Texas Court of Criminal Appeals SCOTUS Federal District Court Fifth Circuit SCOTUS
  13. 13. EXHAUSTION OF REMEDIES  Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2254) ◦ An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim  resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or  resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
  14. 14. EXHAUSTION OF REMEDIES  Subsequent writ (Tex. Crim. Proc. Code art. 11.071 §5) ◦ Factual or legal basis for claim not previously available; ◦ By preponderance of the evidence, no rational juror could have found the applicant guilty beyond a reasonable doubt (i.e., actually innocent); or, ◦ By clear and convincing evidence, no rational juror would have answered in the State’s favor one or more of the special issues (i.e., actually innocent of the death penalty)
  15. 15. WHAT DOES THIS MEAN TO ME?
  16. 16. BEFORE TRIAL  Record discovery ◦ Who ◦ Saw ◦ What ◦ When  Separate items ◦ Seen ◦ Not seen  E-mail
  17. 17. DURING TRIAL  Document ◦ Unusual events ◦ Further discovery  Remember to take a long range view
  18. 18. DON’T WIN THE BATTLE TO LOSE THE WAR
  19. 19. AFTER TRIAL  Organize the file ◦ Sub-files ◦ Separate not seen ◦ Remove non-case items ◦ Separate co-defendants’ materials ◦ Do not keep souvenirs ◦ If you brought work home put it back in the file  Educate families  Make introductions to appellate and writs prosecutors
  20. 20. PROTECT THE CONVICTION
  21. 21. CONTACT INFOMATION  Reiss_josh@dao.hctx.net  713-274-5990  www.linkedin.com/in/joshua-reiss  Download this presentation: http://bit.ly/capitalwrits

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