What is a Writ of Habeas Corpus?
Here is an article I wrote for the Ellis County Press.
What is habeas corpus?
“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.” – United State Constitution Art. 1, Sec. 9
A Writ of Habeas Corpus (Writ or WOHC) is one of your most basic and fundamental protections against tyranny. Habeas corpus is a Latin phrase that roughly translates to “show me the body.” WOHC originated in England as a check on the king’s power.
If the king locked you up you would file a writ of habeas corpus and ask the king to “show you the body,” or tell you why you are incarcerated. Today writs of habeas corpus are commonly used in Texas criminal cases.
Writs are filed to challenge the state’s restraint on your liberty (incarceration, probation etc). Without writs the State could throw you in the county jail for no reason forever. Writs prevent such fundamental abuses of the criminal justice system.
Here is a quick overview on how writs protect your rights. You are driving home from work and the police pull you over for speeding. You have a marijuana joint in your pocket. Overcome with guilt you confess to the police and ask for forgiveness. The cops arrests you and take you to the Ellis County Detention Center. Bail is set at $50,000,000.
Writs are commonly used to get bail lowered, or get bail set if bail has been denied.
Any criminal defense lawyer who takes court appointments (indigent defense) will spend a lot of time on bail writs.
A bail writ states that a defendant is being held in the county jail, convicted of nothing, yet is denied the ability to leave the jail. A writ challenge this restraint on liberty.
Challenging A Prosecution
After getting bail lowered to $500 you are released. Three weeks later the State files a marijuana case against you. You have a jury trial and your brilliant defense lawyer helps win an acquittal (not guilty).
Ten years later the State files another misdemeanor case against you for the same marijuana charge. Again, WOHC to the rescue. Writs are also used to challenge a fundamentally flawed prosecution. For example, cases barred by limitations (too old) or double jeopardy.
If you are found guilty in a case and wish to challenge the conviction the usual route is an appeal. However, some constitutional and jurisdictional issues can be raised with a WOHC. Any error raised in an appeal cannot be later raised in a writ. One common claim in post trial writs- “ineffective assistance of counsel.”