![handle is hein.journals/lajnews1 and id is 1 raw text is:
'IEtuuitiana Th)Jicial 'cfcltter
May, 1976
Vol, 1 No. 1
COMMITTEE IMPROVES
POST-CONVICTION REMEDIES
Justice Albert Tate, Jr., Chairman of the Supreme Court
Committee on Continuous Rules Revision, has been requested by
Chief Justice Joe W Sanders to propose changes in rules governing
post-conviction remedies. Additionally, a joint committee of district
judges and district attorneys along with Professors Cheney Joseph
and Ray Lamonica of the Louisiana State Law Institute are drafting
amendments to Articles 353 and 359 of the Code of Criminal
Procedure relative to habeas corpus relief.
Proposals for improving post-conviction remedies in Louisiana go
back to 1971, when Justice John A. Dixon, Jr., recommended
amending Article 359 to conform to the ABA standards. The
objective of Dixon's proposal and the one before Justice Tate's
committee now, is the elimination of transporting a prisoner from
Angola to the district where he was sentenced, in cases where there
is actually no factual dispute and/or no merit to the prisoner's claim.
There is a growing concern in the post-conviction process about
the danger and expense of transporting prisoners from their place of
detention to court for hearings. One of the gains to the applicant in
seeking relief, even if he loses on the merits, is a day or more 'on the
outside' - a fact that has not escaped the attention of the courts.
ABA, Standards on Post-Conviction Remedies, p. 69.
To alleviate this problem, an amendment would be an essential
first step. The hurdle for Justice Tate's committee to overcome is the
statutory requirement that a writ must be granted in habeas corpus
applications, unless the application specifically shows in the petition
and attached documents that the applicant is not entitled to relief. If
the application does not clearly show that relief should be denied,
C. Cr. P. Arts. 357 through 359 require that the applicant be brought
to court.
Two acts have been drafted to eliminate these problems. Proposed
Article 353 would require applicants to allege all errors in a single
application and require a disclosure of all prior applications for writs
of habeas corpus filed by the petitioner in connection with his
present custody, which statement may be supported by affidavits
filed with the petition. A second or successive petition may be
dismissed if it fails to allege new or different grounds for relief or, if
new or different grounds are alleged, the court finds that the failure
of the petitioner to assert these grounds in a prior petition is not
excusable.
Proposed Article 359 reads:
if the person in custody cannot be brought before the court,
the reasons therefor shall be stated in the answer. If the court
is satisfied with the reasons stated, it may instanter require the
production of the person in custody. If the person in custody is
at the time of the writ imprisoned after sentence for committing
an offense, the court may not require his production, if the court
determines that the issues raised may be decided without his
presence.
At present there is no statute limiting the number of petitions that
r 15 ]
OX, J I \
I XX
1 11 XX I I , I, ay
V Y , 40 '0
(. 0
1 a II 1 lb
XXivng pA
XI . t ie a I a~eto~'ot~e
1 X 0g
peaIo , W re 1a.
JI
can be filed, nor is the court allowed to determine whether the
presence of the petitioner is vital to a decision of the issues, Adoption
of the proposed amendments would eliminate meritless petitions
and assure that only relevant legal issues are presented at hearings.
Also provided for would be some type of right to counsel for indigent
defendants prior to formal hearings. The cost of this representation
would be balanced by the amount of time and money saved in the
prevention of frivolous habeas petitions.
The sponsors view these amendments as hopefully initiating a
return to the traditional notions of habeas corpus and more in
keeping with the writ's intended purpose - vindicating the innocent
and wrongly imprisoned.
The sub-committee on drafting consists of Justice John A. Dixon,
Jr., of the Louisiana Supreme Court, Chief Judge Guy E, Humphries
and District Attorney Edwin 0. Ware of the Ninth Judicial District
(Rapides). Their task will be to fully implement the aims of the
Committee by adopting appropriate rules to govern the Court after
the legislation has passed.
(Continued on page 4)
m t
erJ s o : court I](ViewImageLocal?handle=hein.journals/lajnews1&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most