President's Message
| Publication year | 1993 |
| Pages | 4 |
Habeas Corpus Practice in Utah — A Franz Kafka Mind Boggier?
Randy L. Dryer, J.
Do you know how many petitions for writs of habeas corpus are filed each year in Utah's state courts? Do you know how many petitions are filed by pro se litigants? Do you know how many petitioners are represented by appointed counsel and how many of these appointed counsel are paid for their services?
As a civil litigator my entire professional life, these questions had never crossed my mind for even a nanosecond — until Ron Yengich cornered me one day to bend my ear on the subject. What I learned from Ron and my subsequent investigation into the matter is the operation of the state habeas system leaves much to be desired. I found a system which is inflexible, inefficient, expensive, wasteful, dominated by the pro se petitioner and pleases virtually no one involved.
PRO SE OR PRO BONO
According to the State Court Administrator's Office, there were over 250 petitions for writs of habeas corpus filed last year with the state's trial and appellate courts. Approximately 60% of these petitions were, pro se filings. Of the petitioners who were represented by counsel, the overwhelming majority were court appointed. Utah's statutory indigent defense scheme, unlike the federal counterpart, does not compensate appointed counsel in "discretionary writ proceedings, " such as habeas corpus petitions. The "chosen few" who are blessed with a call to serve from a judge are not only "asked" to donate their time, but are asked to absorb any out-of-pocket costs associated with the representation. And while pro bono service is laudatory, it hardly offers a reliable system for representing the incarcerated indigent, particularly one on death row. Of the 10 persons presently on death row in Utah, none has appointed compensated counsel. I fully realize that most habeas petitions are without merit and are nothing more than a rehash of the original claims which have been rejected at the trial and appellate levels. Still, meritorious petitions do exist and our system of justice is tilted in favor of innocence. Unfortunately, our system not only fails to expeditiously ferret out the unmeritorious habeas claim, but it presents the real possibility that worthy claims will be trapped in a procedural quagmire and will never be considered on the merits. The problem stems from the fact that most habeas petitions are initially filed by uncounseled litigants...
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