Wednesday, September 26, 2012

Hughes News: Motion to Replace

Last Tuesday, Preston Hughes mailed a motion to federal court requesting that his current attorney, Patrick McCann, be replaced. Preston filed the motion pro se, meaning he did so on his own, without an attorney.

On Friday, the court filed the motion, officially making it part of Preston's legal case. The basis for motion is that McCann has failed to submit any appeal based on Preston's actual innocence. The motion is available at my new SkepticalJurorDocs site. The first page is included below. Click on that page to see the entire document.

On Monday, 24 September, the court ordered Patrick McCann to file a brief responding to Preston's motion that McCann be replaced. The court ordered McCann to respond by 5 October. The court gave him the option of filing his reply under seal. I presume that option is generally made available to allow the attorney to respond without violating attorney-client privilege.

The order to respond is short, less than a page. I've included an image below. Click on the image for a pdf copy of the document.

In considering Preston's motion, Judge Hoyt is required by the Supreme Court, as of March 2012, to base his decision on an "interests of justice" standard. The Supreme Court set that standard in Martel v. Clair. The opinion was delivered by Justice Kagan.

It's difficult for me to understand how it is not in the "interests of justice" to have a substantial claim of actual innocence be heard by a court heard at least once prior to executing a person for a crime he may not have committed.

The standard vehicle for such an appeal based on actual innocence is a petition for habeas corpus. From Wikipedia:
Habeas corpus ["you must present the person in court"] is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention, in other words, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid. The legal right to apply for a habeas corpus is also called by the same name. This right originated in the English legal system, and is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action.
Since the Constitution grants the people (in their role as jurors) the right and obligation to determine guilt or innocence, courts can overturn jury verdicts only under limited and specific conditions. One of those conditions is that new evidence has been discovered since the trial that if known during the trial would have resulted in a new trial. While there is considerable dispute over what constitutes new evidence, and over the standard of determining how a jury might have responded to the "new" evidence, no one disputes the fundamental principle.

We'll be discussing such issues before long, particularly since we do not have long before Preston Hughes is scheduled to die. Patrick McCann has until 5 October to explain himself to the court. On 5 October, Preston Hughes will have but 41 days to live.