"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."
HC 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 WOCH the State could throw you in the county jail for no reason forever.
Writs prevent 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.
Bail
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.
After all, indigent defendant who cannot afford a lawyer and they usually cannot afford bail.
A bail Writ basically states that you are being held in the county jail, convicted of nothing, yet you are denied the ability to leave the jail. Ergo, a Writ is used to challenge this restraint.
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 State files a misdemeanor case against you for the same marijuana charge. Again, WOHC to the rescue. Writs are also used to challenge a fundamentally flawed prosecution.
Cases barred by limitations (too old) or double jeopardy can also be attacked with a Writ of Habeas Corpus.
Post Trial
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. A common claim in post trial writs is "ineffective of counsel."
Robert Guest is a defense attorney from Ennis. He can be reached at Robert@robertguest.com.
