"In all criminal prosecutions, the accused shall...have the assistance of counsel for his defense so long as he isn't about to be executed in Georgia"
To think, we make people with IQs of 81 defend themselves and we're suppoused to bring fair governments to other parts of the world... Posts: 187 | Registered: Jan 2005
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posted
Let me start by saying I think the state should provide lawyers.
The reason this is not a violation of the Constitution is because the 6th amendment guarantees counsel only in criminal prosecutions. This is not a case of criminal prosecution, but of a convicted prisoner, having exhausted all appeals, filing an action for a writ of habeas corpus.
In essence, the prisoner is suing the warden of his prison.
Just FYI for those wondering why Georgia can get away with this.
posted
On a side note, Dag, could you explain just what a writ of habeas corpus does? I know it's an important legal protection against being held arbitrarily at the whim of the government, but I'm a bit vague on how it does this.
Posts: 10645 | Registered: Jul 2004
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Let me start by saying I'm no lawyer (I'm still in high school), so I can't speak to the accuracy of this, but accoring to some site that google churned up (see link below): "HABEAS CORPUS - Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her."
so basically, as far as I can tell, it has to do with a prisoner being brought to court to reasses his imprisonment (maybe just an appeal?). It sounds to me like you file a "petition for a writ of habeus corpus" to a judge/court, and then if accepted, they bring you from the prison to the court for you to make your case about why you shouldn't be imprisoned. The actual writ is the order from the court for the prisoner to be brought to the court.
I could be horribly horribly wrong though Posts: 187 | Registered: Jan 2005
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posted
Basically that's correct, especially the derivation of the term, although the writ encompasses more than that these days. It's basically the mechanism for filing collateral attacks on a final criminal conviction. Unless there are extraordinary circumstances, they can only be filed after all appeals are exhausted.
Collateral attacks are more difficult than a normal appeal, because generally the burden is shifted against the convicted person.
In general, death row inmates receive a fairly automatic habeas corpus review, although this is not quite as true as it used to be. Here's a list of possible avenues of relief after someone is convicted from nolo.com.
quote:# Motion for Acquittal. A request that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented.
# Motion for a New Trial. Request that trial judge declare a mistrial and grant a new trial.
# Appeal to State Appellate Court. Contends that trial judge made some legal error.
# Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision.
# State Supreme Court Appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.
# U.S. Supreme Court Appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.
# State Court Habeas Corpus Petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.
# Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.
# Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the mid-level federal court to review the federal trial court's decision denying the writ.
# Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the mid-level federal court's decision denying the writ.
I know I haven't totally clarified the difference. The key facts are that habeas corpus almost always happens only after all appeals of the conviction are finished, places a heavier burden on the convicted person for relief, and is not part of a proceeding against the convicted person - the convicted person is the plaintiff in the proceeding.
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