Nov 11, 2011

Habeas Corpus: a fundamental instrument in safeguarding individual freedom.

Habeas corpus is a Latin phrase meaning literally "you have the body" - historically, the concept dates back at least to the signing of the Magna Carta in England in 1215 but the actual procedure was first codified in English law in 1679. In legal terms, a writ of habeas corpus is a judicial mandate ordering that a person be brought before a judge or court so it can be determined whether or not that person has been convicted lawfully. Prior to its implementation a person could be imprisoned indefinitely without being charged with any particular crime, a practice which was often used to silence political or religious dissent; by petitioning for habeas corpus, a prisoner (or someone acting on their behalf) could request a person in authority to present charges and determine whether they have actually broken any laws.

Today habeas corpus is considered a fundamental right in many countries, including the United States: The Suspension Clause of the United States Constitution specifically includes it, stating that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In addition to Federal law, many States (including Texas) also specify provisions for habeas corpus, and it has been called "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

There are two parts to the process of habeas corpus: firstly, the person charged (or someone acting on their behalf) files a petition for habeas corpus which questions the legality of the charges. If the petition is successful, a judge will issue a writ of habeas corpus. This is an actual order for the person to be brought to court. Habeas corpus can be used in various situations, such as to challenge the amount of bond or to challenge a contempt order, but most commonly it is used to attack a final conviction after all appeals have been decided and while the person is still under restraint. While "restraint" commonly refers to imprisonment, the definition has been expanded in Texas to include some other effects of a conviction such as probation. In fact, the final conviction itself may meet the restraint requirement because it can be used to increase punishment for a subsequent offense.

It is also important to note that habeas corpus is generally limited to constitutional claims such as suppression or failure to disclose evidence, a conviction based on perjured testimony, ineffective assistance of counsel, the use of an involuntary or coerced confession or jury misconduct or bias.

Petitions for writs of habeas corpus may be filed in both state and federal court. Although federal courts may be more sympathetic to habeas corpus claims than state courts, federal writs must be filed within one year of a conviction becoming final. In Texas a state writ may be filed at any time after your conviction is final, but the court could dismiss your application under the doctrine of laches, which basically asserts that the claim has unreasonably delayed.

Petitioning for a writ of habeas corpus is often the last chance a wrongly convicted person has to overturn the charges against them. Because of this it is vital to be represented by attorneys with the skill and experience to navigate this complicated area of law. In a recent Texas case, Parnham and McWilliams have convinced a judge to vacate a first-degree felony conviction based on unfounded charges of sexual assault after petitioning for and acquiring a writ of habeas corpus in the case. 

If you have been accused of a crime, contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you, and we will work tirelessly to ensure the best possible outcome for your case.

Jun 25, 2011

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process.
  • What are my rights if I have been accused of a crime?
The US Constitution and other documents guarantee many rights to the accused. These rights include but are not limited to:
The right to remain silent in order to avoid self-incrimination
The right to competent legal representation, the right to reasonable bail,
The right to a fair and public trial,
The right to be informed of the charges against you,
The right to be confronted with the witnesses against you and to gather witnesses of your own
A criminal defendant is also presumed innocent until proven guilty. This means the prosecutor has to prove beyond a reasonable doubt that you committed the criminal act in question. This also means a defendant does not have to do anything or say anything to prove they are innocent.
There are also specific laws regarding search and seizure which -in most cases- require law enforcement to obtain a search warrant before they are allowed to search for evidence, contraband or other items.
  • What should I do if I have been arrested?
If you have been arrested, answer questions about your identification -your name, address, and birth date- truthfully. You have the right NOT TO answer any self-incriminating questions, but lying is never a good idea. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question.
  • How do I get out of jail after an arrest?
If bail has been set the only way to get the person out of jail is to pay the bond for their release. A bail bond is like insurance; it means that the suspect agrees to appear at all subsequent legal proceedings. Failure to do so can result in forfeiture of the bond, the issuance of an arrest warrant, and the loss of subsequent bail privileges.
In certain cases bail may be denied if the judge believes there is a high risk the defendant will flee, or if you have been charged with a serious crime like murder.
  • Do I need a lawyer to represent me even if I am innocent?
The importance of competent legal representation is so great that the Constitution guarantees every criminal defendant the right to an attorney. A criminal attorney who knows the laws and court customs can apply this knowledge to protect and maximize your legal interests. No matter what your legal situation, a criminal attorney will help you more than you could help yourself by going it alone. In fact, most judges won''t even consider a plea bargain from a defendant without legal representation.
Innocent defendants are perhaps in even greater need of representation throughout the criminal process to ensure that their rights are protected: you may not understand the full implications of the crime with which you are charged. Criminal defense attorneys equalize the balance of power between the defendant and the prosecution and ensure that your constitutional rights are preserved.
  • How is being tried as a juvenile different than being tried as an adult?
Many cases involving juveniles are heard informally; if a youth admits guilt the judge may issue an informal disposition requiring him or her to meet requirements set out in a consent decree. Juvenile courts provide youth with specific rights; among them are such due-process rights as the right to trial, the right against self-incrimination, and the right to call witnesses. In most states, juveniles being tried in juvenile court are not entitled to a jury. They may not avoid detention by posting bail, but they do have the right to have their parents and legal advisor present before answering questions. The privacy of juvenile offenders is strictly guarded. Most juvenile court proceedings are closed to the public, and juvenile records are highly confidential. Under certain circumstances, juvenile records may even be cleared.
  • What is the difference between probation and parole?
Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation.
Once an offender has actually been sentenced to prison and has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.
Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. If a parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.