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The Writ of Habeas Corpus

Posted on in Criminal Defense

Wisconsin criminal defense attorney, Wisconsin defense lawyer, constitutional rightsThe law attempts to provide a variety of protections to people who have been accused of a crime. Before and during a trial, the Constitution conveys numerous rights that are designed to prevent abuses on the part of the criminal justice system. After the trial, a losing defendant is allowed to appeal their case to a higher court if they think the trial court made a mistake. Yet sometimes even with all these protections, courts still make mistakes. When that happens, people may be eligible for a writ of habeas corpus, also known as a habeas petition or simply the Great Writ.

Understanding the Writ

Habeas corpus is an old writ that has been around since the drafting of the Constitution, but is now codified in 28 U.S.C § 2254. The idea behind the writ is that it provides a check on the government, preventing someone from being held without good cause. Essentially, it lets people being held by the government go to court to argue that they are being held illegally.

The exact standards that the courts use to determine whether someone is being held illegally depend on the circumstances under which a person is bringing the petition. One of the most common circumstances is a defendant who was convicted in state court challenging their conviction in a federal court. In order to do this, they must first have exhausted all their appeals within the state court system. Assuming that is the case, then courts may grant their release under the writ in two instances. First, courts should grant the writ in cases where the state court reached a decision that was “objectively unreasonable” in light of current federal law. Second, the law instructs courts to grant the writ in cases where the state court made a factual determination that was objectively unreasonable based on the evidence that was presented to it.

When the Writ Is Called for

Habeas writs are useful in a variety of circumstances where the government is holding a person illegally and that person has no other options to petition for their freedom. The most common use of the writ is in the case described above, where the state court has erred in convicting a person. This is especially useful in cases where new evidence has come to light that would have been unavailable at the time of the original case. Habeas petitions can also be used in a variety of other circumstances, such as if a person is being held in a psychiatric institution illegally or if the police are holding a person and failing to charge them with a crime.

Habeas petitions are an extraordinary remedy, but they can often provide hope after other options are gone. If you believe you or one of your loved ones is being held illegally, contact an experienced Milwaukee criminal defense attorney today.

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