Wednesday, October 17, 2012

Hughes News: Habeas New Evidence 01

Tuesday's work on the habeas is now available at Skeptical Juror Docs. New material begins on page 18.

The Big Shock as of last night (at around 3 AM) is that I learned from Ward Larkin (also up late) that the petition is limited to 50 pages, not counting some of the front material. (Actually he informed me that the new rules limited me to 15,000 words, and I popped a cork. This morning he checked with the rules attorney and found that the new rules do not go into effect until 1 December.)

While 50 pages might seem sufficient to many or most of you, I assure you it is giving me fits. I've had to eliminate many strong claims regarding unsupported scientific evidence, false testimony uncorrected by the DA, and failure to allow effective confrontation of witnesses. I'll now focus on Brady claims (withholding evidence) and ineffective counsel issues. Even then, I will have to limit the number of specific claims in each class.

Also, I am eliminating some of the new evidence claims. There is simply insufficient room to present so many claims properly. I'd rather win a few critical ones than lose all of them.

The fifty page limit is probably adequate for many cases, but it is woefully inadequate for a case as complex as Hughes'. The problem is seriously aggravated by the requirement that I use a large font and double line spacing.

But 50 pages it is. For those of you now monitoring how I'm doing against the page count, I don't have to count the first six as written. So I've used 31 of the 50 available. That's not going to cut it. I'm nowhere near 60% done with what I have to address. Tomorrow, I'll have to gut what I worked so long on today.

I'll update again tomorrow. I didn't complete the actual innocence claims today. Hopefully tomorrow.

Always hopefully tomorrow.


Anonymous said...

At the bottom of page 14 and 15 there are some confusing sentences that need to be cleaned up. For the 50 page limit I think you need to find out from a lawyer if you are are not going until territory that should be in a different type of appeal.


Anonymous said...

This is suppose to be a petition for a writ - not a writ. Where is the new evidence that would support a successive writ? You keep hashing over evidence that was already addressed, e.g., search, consent to search, confessions, etc. None of this is new evidence.

tsj said...

Thanks for the feedback on page 14 & 15. Regarding a different type of appeal, the Schlup habeas is absolutely the right way to go.

The new evidence begins on page 18. More to be added today. You are correct though in that I'm burying the lead. I need to reorganize to make clear sooner what the new evidence is. Page 18 is perhaps 17 pages too late.

Anonymous said...

I also believe that the statement of facts should just be a summary of the agreed upon facts already, and not new conjectures. The conjectures should be put in the innocent part. For example, that Shandra was dead before the paramedics got their would be conjecture since she was never pronounced dead.

Hopefully you can get a lawyer to review the document.


Anonymous said...

If you need space the sentence at the top of page 18 is redundant. "Petitioner is innocent of the crime for which he was convicted and sentneced to die." RD.

Anonymous said...

It's the argument that there is new evidence that could not have been discovered earlier (good luck with that hurdle) that justifies a successive writ - not the other stuff.

And I agree with the other anon. Cut out the legalese and go with the plain English, e.g., "Mr. Hughes is innocent."

Anonymous said...

Since this is pro per, you may want to put it in first person, e.g., "I am innocent."

Anonymous said...

If the 50 pages is effective in December.. why are you cutting back on the pages now its October....

tsj said...

I didn't make that clear did I? I was always limited to 50 pages, I just didn't realize it until I was told of even more restrictive rules. It's the more restrictive rules that go into effect in December.

Anonymous said...

Anonymous - any evidence which was either withheld, false or contrary to the confrontation clause can come under the construction of "newly discovered evidence". All Schlup case law suggests that such withheld exculpatory evidence is often construed as "newly discovered evidence" because it [the non-disclosed Giglio or Brady material] was unknown to the petitioner at the time of trial. It is a shame that so many violations have had to be cut although perfectly understandable. I wonder whether it'd be worth putting a disclaimer in the petition to say that the list of constitutional violations is not exhaustive so that there is no bar to raising all these claims in a new hearing and/or retrial. - Maria.

tsj said...

Good point about preserving the other claims.

So that everyone knows, Maria has put lots of work into researching the law that's applicable to this case. She has been a tremendous asset.

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