PART 3 - CHAPTER 15 Related Proceedings

• Jurisdiction: United States

Chapter 15 Related Proceedings

CHAPTER OBJECTIVES

After reading this chapter, you should be able to:

■ Explain the two types of collateral remedies available to convicted defendants.
■ Discuss the different types of clemency and the process that someone must use to request clemency.
■ Explain the steps that must be taken to expunge or seal a criminal record.
■ Prepare a petition to discontinue sex offender registration.
■ Discuss the police seizure of a person's assets that were allegedly connected to criminal activity and the process that can be used to recover those assets.
■ Discuss the process for challenging the summary suspension of the driver's license of a motorist arrested for driving under the influence (DUI).

INTRODUCTION

While the appeals process ends what is technically considered criminal law, there are several related administrative and civil legal actions that are used to assist clients who either have participated in or have been affected by the criminal justice system. Paralegals employed by attorneys in a general criminal practice may work on habeas corpus actions and post-conviction relief petitions, requests for clemency, expungement and sealing of criminal records, and civil suits to recover seized assets. Paralegals working on DUI cases may assist attorneys handling civil and administrative proceedings involving the suspension of driving privileges.

A. COLLATERAL REMEDIES

As we have seen, direct appeals must take place within specific, often very limited time periods after the completion of the trial. But what about situations in which new evidence of the defendant's innocence, such as deoxyribonucleic acid (DNA) test results that weren't available at the time of the trial or a confession from the real killer, doesn't come to light until after this limited time frame has expired? Actions such as petitioning for a writ of habeas corpus or post-conviction relief petitions can be used to gain justice for people who have been wrongly convicted are examples of collateral remedies.

1. POST-CONVICTION RELIEF

Many states allow a defendant to file a motion for post-conviction relief after a direct appeal. In most cases, this remedy is open only to claims that the trial court had no jurisdiction to convict the defendant, that the sentence exceeds the maximum possible for the crime, or that the conviction or sentence violates constitutional or state law.

2. HABEAS CORPUS ACTIONS

One of the most commonly used collateral remedies is the writ of habeas corpus. This writ is a court document ordering public officials (usually a state correctional agency) to produce the person (named in the writ) in court so that a neutral judge can determine if there is a lawful basis for detaining that person. These writs of habeas corpus date back to the English common law.

Article I, Section 9, Clause 2 of the U.S. Constitution declares: "The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it."¹ In modern times, most petitions for collateral remedies are filed by prisoners incarcerated after they were convicted of committing a state crime, such as murder. Typically, their petitions argue that the state deprived them of a fundamentally fair trial by violating their constitutional rights. For example, a defendant could argue that his trial lacked fundamental fairness because the judge was biased or the attorney was incompetent.

Because a petition for a writ of habeas corpus is a new civil action by the incarcerated individual, it can indirectly result in the overturning of an existing criminal conviction. Petitioners who are in state custody must first file for the writ in the state trial court. If the petitioner is unsuccessful at the trial level, the individual may appeal the rejection through the state appellate system. After exhausting all appeals in the state system, the inmate can seek a writ in the federal system.

DISCUSSION QUESTIONS

1. What factors do you think can explain why the Supreme Court would have allowed the writ of habeas corpus to be suspended during the Civil War, and for people of Japanese descent during World War II, but not for terrorist suspects following the attack on the World Trade Center in 2001? Do you agree with any of these decisions? Why?

2. How should appellate judges go about determining if an attorney failed to provide a competent defense or just chose a reasonable legal strategy that just didn't work?

3. Do you think it would make a difference if the defense attorney at the trial or sentencing level had had an ethics complaint filed against him or her for misuse of a different client's funds? Should it make a difference?

4. What do you think the standard of review should be when judges are considering appeals based on claims of new evidence? Why?

B. CLEMENCY

Whereas a successful petition for a collateral remedy provides the defendant with another trial, the grant of clemency concludes the case more favorably than the original outcome. While this authority is sparingly used, the president and the states (usually the governor) have the power to grant pardons (which cancel a conviction for a crime and the penalty that was associated with it), commutations (which reduce the penalty imposed by the court), and reprieves (which temporarily postpone the imposition of the punishment).

It is important to note, however, that governors may use this authority only in connection with violations of the laws of their own state. Because the United States and the states are "separate sovereigns,"² the president can exercise this power for persons convicted of federal crimes, but not for state convictions.³ The Attorney General provides advice on federal pardon policy and makes recommendations to the president on all applications for pardon and commutations.⁴ Offenders seeking presidential pardons apply to the Office of the Pardon Attorney (OPA) in the U.S. Department of Justice using an approved form. After the OPA investigates the application, it makes a recommendation.⁵ There is no hearing.

One of the best-known and most controversial instances of federal clemency was President Gerald Ford's pardon of his predecessor, Richard Nixon, in 1974. Within hours of Nixon's resignation from the presidency to avoid being impeached for crimes related to the Watergate scandal, Ford (who had been the vice president prior to Nixon's resignation) pardoned Nixon for any crimes he may have committed while he had been president.

At one time, federal commutations and pardons were rare. However, in his second term, President Barack Obama commuted the sentences of hundreds of non-violent drug offenders to reduce the impact of harsh federal sentencing laws. In 2022, President Joe Biden pardoned thousands who had been convicted of marijuana possession under federal law.

Parallel to the federal process, the states typically maintain an administrative office that receives and reviews applications for clemency. Most of these entities make recommendations to the governor, who then decides whether to pardon or commute a sentence. However, there are exceptions. For instance, the Alabama constitution grants its legislature pardon power, which it carries out through an independent board.

Although clemency policy and application processes differ from state to state, you can use the same general approach on behalf of clients who are seeking either a pardon or commutation. First, verify whether the client's offense is eligible under your state's law, because there is no national uniformity. For instance, New Mexico does not permit its governor to pardon persons convicted of committing violent crimes against children. In many states, the governor may not be authorized to pardon a defendant convicted of violating a municipal ordinance.

Some states require a waiting period to apply for a pardon. For example, the governor in California will not consider pardon requests until the offender has been discharged from the parole or probation system for at least ten years.

The number of pardons granted widely varies from jurisdiction to jurisdiction. Figure 15.1 displays pardoning frequencies.

Once you determine that the client and the offense qualify for clemency, you can complete the application. In most states, the governor's office can provide you with the pardon application, which is usually a fill-in-the-blank form. An example of the face sheet of a pardon petition appears in Exhibit 15.1. If permitted, you should include information listing the client's educational, employment, and civic accomplishments following the conviction.

DISCUSSION QUESTIONS

5. In 1991, Troy Davis was convicted of murder and sentenced to death for killing a police officer. At the trial, several witnesses stated they saw Davis shoot the officer. No gun or other physical evidence tied Davis to the murder. Davis then began a series of appeals and habeas corpus actions based on affidavits from ten witnesses in the case in which they recanted their testimony and claimed that police had coerced them into falsely implicating him. The Georgia Board of Pardons and Paroles received more than 663,000 signatures on petitions to spare his life, and such prominent people as Jimmy Carter, Pope Benedict XVI, and Desmond Tutu publicly supported his appeals. After a last-minute appeal to the U.S. Supreme Court was denied, he was executed by lethal injection in 2011.

Frequent and Regular (grants a significant percentage of applications)
Alabama	Arkansas	California*	Connecticut	Delaware	Georgia	Idaho
Illinois	Louisiana	Nebraska	Nevada	Oklahoma	Pennsylvania	South Carolina
South Dakota	Virginia	Utah
Sparing (process regular, grants a small percentage of applications)
Florida	Iowa	Minnesota	Ohio	Texas	Washington
Infrequent/Uneven (pardoning depends on incumbent governor)
Colorado	Hawa...