Hughes News: Habeas Brady

The latest version of the draft habeas is available here. The most noticeable change is that I have completed the section on Brady violations. A Brady violation is where the prosecution withholds exculpatory evidence from the defense. That has long been deemed, ever since Brady v. Maryland (1963) to constitute a constitutional violation of a defendant's right to due process. There were several egregious Brady violations in Preston's case. They can now be argued even though they might otherwised be barred because Preston is claiming his actual innocence as part of a Schlup-type habeas claim.

The Brady discussion begins at page 37.

In addition to the Brady section, I have added a summary of claims at the beginning of the petition, and I have more clearly identified the claims of actual innocence. Those changes were prompted by feedback from someone with trained eyes on the petition.

I have also improved the (by both additions and deletions) the Statement of Facts and the claims of actual innocence.

The most recent draft has just the very beginning of the ineffective assistance of counsel claim. I plan on completing that section today, or very early tomorrow morning. I will still need to complete the closing arguments and the appendices.

I'm limited to 50 pages. That count does not include the first six pages of standardized material, and it does not include the appendices.  By continually working and reworking the document, I'm in a position where I can soon finish it within the page limit.

I continue to welcome comments and criticisms, even of grammar, spelling, and typos. The comments so far, both in this blog and via email, has been of substantial value.

Substantial.

I'll update again once I have completed the section on ineffective counsel.

Hughes News: Habeas New Evidence 02

The most recent version of my working draft habeas for Preston Hughes is now available at Skeptical Juror Docs.

In my last post, I whined, complained, bitched, lamented, grumbled, grieved, whimpered and kvetched about the newly discovered 50 page limit with which I found myself to be so harshly and unjustly burdened. I was tired, as I am now. However ... ...

[double ellipses for dramatic impact]

The 50 page limit has turned out to be a godsend. It forced me to once again consider the organization of the entire petition, to focus on the most critical issues (rather than on all cognizable claims), and to remember that  the petition must, at its heart, tell a story that will capture and compel the reader.

I spent most of the last 28 hours putting the draft petition on a low-carb diet, leaving behind only the bacon and the cheese dip.The intro is one page. The table of contents is one page and will remain one page. The table of authorities is one page and will remain one page. The procedural history is one page and will remain one page. The statement of facts has been slimmed way down. The new evidence items have been reduced from 10 items to 5. The due process items have been reduced from more than 10 to 5.

All decisions regarding what stayed and what went were made in light of the parallel case Allen, since that case is so similar and since that case was decided favorably by the Texas Court of Criminal Appeals. That's the story I want to tell.

The most recent working draft reflects many of the changes and completes the discussion of the 5 new evidence issues. The most recent of the new evidence items begins on page 23 of the current draft.

Also, I have received a number of comments and criticisms regarding the draft petition. I cannot respond to each, due to time constraints, so I will respond to all here. Each comment causes me to think about what I am trying to accomplish and about how I might best accomplish it. Most comments cause me to adjust my thinking, if only a wee bit. All comments are sincerely appreciated.

In the next 24 hours or so, I hope to complete the due process portion. In the 24 hours after that, I hope to complete the ineffective counsel portion. Over the weekend, I hope to complete the draft. It's a challenging schedule demanding more efficiency that I have yet been able to muster, but it's my intent nonetheless.

I'll update again tomorrow.

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.

Hughes News: Habeas Intro

Not only have I ceased writing of subjects other than Preston Hughes, I have ceased writing of Preston Hughes on this august blog other than to provide brief updates, as in this post.

I am drafting a petition for writ of habeas corpus based on Preston's actual innocence. The petition may serve any one of three purposes.

First, it will provide Preston's attorneys with my insight into Preston's innocence. It is my strong preference that his attorneys and I work closely together on this petition. They understand the law and I understand the evidence of innocence. They have, however, not responded to my overtures. I am therefore using the draft habeas as a means of making available the evidence of actual innocence in a form that will be easy to incorporate into any habeas they may elect to prepare.

Second, the draft petition will provide a public example of an aggressive, thorough, and compelling petition that can be assembled for Preston Hughes. If Preston's attorneys fail to submit a petition, or submit one that is inadequate, then the public will be able to pass judgement on their performance.

Third, if the attorneys fail to prepare a petition, or prepare one that is inadequate, then Preston Hughes will have the option to submit pro se the petition that I prepared. It will be his choice.

He knows it's coming before long.

I placed the working draft of the petition on Skeptical Juror Docs. I'm further along than it may seem by what is available in the working draft. Given that I needed to begin by educating myself on the law, and given that I now believe I have the law and the evidence working hand-in-hand, I am pleased with the progress. That which is already available online gives a detailed overview of how the petition will soon unfold.

Hopefully on Tuesday night I will amend the working draft to include the portion on actual innocence, and on Wednesday night the portion on due process.

Time is very short, and I'm running on limited sleep.

If there are any death penalty attorneys out there willing to review my work, please contact me.

Hughes News: Motion to Replace Denied

Judge Hoyt has denied Preston's motion to replace Patrick McCann as his attorney. The Court's ruling is available at Skeptical Juror Docs.

We have reason to believe that the motion, though denied, will result in a petition for writ of habeas corpus based on actual innocence.

I have been absent from this blog for several days, working behind the scenes. I will be absent for several more. I anticipate I will be dark until Monday, 15 October. There will be, on that day, only one month before the wrongful execution of Preston Hughes.

There is much work to be done.