We The People Legal Primer - Prison Book Program

First Edition Condensed May 2004
• Legal encyclopedias contain topics that are arranged Appeal of Federal Habeas Corpus Petition to Circuit administrative rules, and so on. Generally, a rule pertains to a
alphabetically and are substantiated by supporting
Court. Requests the mid-level federal court to review the standard of what people ought to do or ought not to do.
authorities.
federal trial court’s decision denying the writ.
A rule may state: “One who kills another without excuse or
• Treatises are texts written about a certain topic of law by an Appeal of Federal Habeas Corpus Petition to U.S.
justification shall be punished...” The part “One who kills
expert in the field.
Supreme Court. Requests the highest court in the land to another” implies a description of facts which a jury should
• Law review articles are published by most accredited law review the mid-level federal court’s decision denying the writ. determine objectively. The part “without excuse or justification”
schools and are sometimes a broad diagnosis of a
––––––––––––––––––––––––––––––––––––––––––––––––– describes facts that the jury almost always must determine
particular area.
CLEANING UP A CRIMINAL RECORD
subjectively. The part “shall be punished...” states the legal
consequences. The entire rule implies an obligation for all
• The Index to Legal Periodicals provides the only book Basic information about erasing a criminal conviction from your persons not to kill another wrongfully; however, this rule says
reviews in the law and also provides case comments, record.
very little about what constitutes a wrongful killing — or a
which cases are listed in the “Table of Cases.”
When a court seals or expunges records of an arrest or rightful killing.
• American Law Reports Annotated (A.L.R.) is a collection of conviction (and a notation made in the file that only law Conclusion. Thus, a case amounts to a short story of an
cases on single narrow issues. You must be aware that enforcement personnel may view the records), defendants incident and the reaction to it by the state; a rule represents an
A.L.R. must be constantly updated.
can, for some purposes, treat the arrests or convictions as abstract or general statement of what, in criminal justice, the
• Restatements are publications compiled from statutes and though they had never happened. For example, say that a legislature prohibits of a class of persons in a class of
decisions that tell what the law is in a particular field. court expunges a defendant’s conviction for misdemeanor circumstances.
possession of an illegal drug. On applications for school, a job
• Shepard’s Citations is a large set of law books which or a professional license, the defendant may state that the Legal studies. As legal students and attorneys study cases
provide a means by which any reported case (cited
defendant has no arrests or convictions (if no others exist). and rules, they look to see why the courts acted in the ways
decision) may be checked to see when and how another However, the rules about eligibility for expungement, and the that they did, they analyze the implications of the cases for
court (the citing decision) has cited the first decision. All effect of expungement, vary from state to state, and people possible future disputes, and they combine their separate
cases must be checked to make sure another court has not interested in expungement should seek the advice of an understandings into general comprehensions of individual
reversed or overruled your cited decision.
experienced attorney or the staff of a community-based topics of law.
Some basic rules of legal research are as follows:
rehabilitation project that includes expungement as part of its Thus, legal professionals gain a capacity to predict what the
everyday services. These general guidelines apply to many courts will do, and they seek to persuade the courts to rule one
• Give priority to cases from your own jurisdiction.
expungement programs:
way or the other in future cases. This really amounts to
• Search for the most recent ruling on a subject matter. • People must apply (in writing) for expungement. Courts do studying what judges ought to do or will probably do – a study
• Check the pocket part in the back of almost all law books. not automatically expunge or seal arrest and conviction of judicial reasoning and of the pursuit of justice. Although
The pocket part is the most frequently used device for
records after a certain number of years.
rules play a significant role in the study of law, the primary
updating law books.
focus normally falls onto decided cases — the examples of the
• Even though a court has expunged a conviction, in some law in action — and their possible implications for future cases.
• Pay attention to dates on books, i.e., copyright date and circumstances, a court can use it to increase the severity of
date of pocket parts.
a sentence should a defendant receive another conviction. Expressing law. Expressions of the law involves both rules
• Be aware of “2d” and “3d” in citations. They distinguish one For example, an expunged conviction may subject a (generalizations) and cases (experiences). Rules appear
series of reporter from another.
defendant to a “three strikes” sentencing law.
deceptively simple in appearance. Cases involve complexities
and richness in variety. Predictions based on rules often fail in
• All legal citations are written with the volume number first, • Usually, a court will not expunge a conviction until about a a world so complex and varied.
an abbreviation of the title, and the page number, e.g., 152 year after it occurs, and then only if the defendant has
P.2d 967 or 144 A.L.R. 422.
served the sentence and does not face new charges. Consider a simple rule, such as: “No person shall sleep in a
city park.” Imagine two cases. In one, the police find a welldressed
man sitting upright on a park bench at noon, his chin
• Shepardizing your citations can save a lot of
• A court cannot expunge every kind of conviction. For
embarrassment and failure later on.
example, many states will not expunge convictions
resting on his shoulder, his eyes closed, and him snoring
involving felonies or sex offenses. Courts mostly expunge loudly, obviously asleep. In the other case, the police found a
As state above, do not accept the above information as a
juvenile and misdemeanor convictions.
disheveled man, who suffers from insomnia, lying on the same
complete or comprehensive guide. You must always consult
your Local Rules for your federal district court.
• A court can immediately seal the arrest and charge if it park bench at midnight, his head on a small bundle of clothes,
acquitted the defendant of the criminal charge.
and newspapers spread over his body like a blanket, obviously
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asleep. How would you predict the outcome of the cases?
POST-CONVICTION REMEDIES
––––––––––––––––––––––––––––––––––––––––––––––––– Does your answer follow only from the language of the rule?
THINKING AND LOGIC IN THE PRACTICE OF LAW
As discussed in this article, convicted defendants can take a
What logic and reasoning do you use to come to your
number of steps to challenge guilty verdicts and/or to correct Introduction. The logic of the practice of law backs every conclusions?
violations of constitutional rights, including motions, appeals critical facet of a case. Confusion about this logic leads to Rules. Virtually every rule leaves more intellectual work
and writs. The following list illustrates these steps. A defendant confusion about all facets in the case and, ultimately, failure because rule-making authorities, by necessity, create rules
who loses at one may go on to the next step, all the way down and loss.
imperfectly and projected into an uncertain future. The rule’s
the list (up the legal chain) in a process that can take many Attorneys gain critical knowledge by simply practicing law — language alone does not determine that many or most cases
years -- especially for serious felonies such as death penalty often together in shared law offices. Yet, for the incarcerated fall within the class of cases intended by the rule-makers.
cases.
pro se defendant, this standard method has serious problems. Rule-makers cannot realistically anticipate unintended cases
This list is merely an illustration of possible post-conviction On the job training without the benefit of teamwork would that the language of the rule may plausibly describe as falling
proceedings -- some of which may only be used in certain quickly ruin a prisoner’s pro se case. Pro se defendants would within its class of cases. Likewise, rule-makers cannot
cases. Also, defendants usually must first have unsuccessfully do well to understand the logic used by lawyers and judges realistically anticipate intended cases that the language of the
sought relief through the available state remedies before they and to understand how to communicate with them through that rule does not plausibly describe.
will be allowed to seek relief in federal courts. For these logic.
Cases. Cases provide the substance, the living instance, of
reasons and because of the complexities of these proceedings A traditional and formal view of law would involve an
rules. But studying and using cases, for making predictions
and what is at stake (liberty or life), defendants should consult explanation of the specific legal decisions that the law requires and as a basis for forming persuasions in other cases, involves
counsel to determine which remedies are available to them. using objective facts, intelligible statutes, and clear-and-cut a less familiar intellectual process than the process which
Motion for Acquittal. A request that the judge decide that logic. Yet personal experiences illustrate to us that this view studying rules seems to require. Learning through the study of
there is not enough evidence to convict the defendant.
often fails to show itself in real life. Law, as practiced, often cases often requires practice and effort; however, it continues
Depending on whether the trial is before a judge or jury and rests on questionable facts, vague or ambiguous statutes, or as the only way to success.
depending on court rules, this motion may be made either after incomplete logic. Furthermore, personalities, prejudices, and To persuade a court of what it should do in the case at bar, an
the prosecution presents its evidence or after all the evidence personal values often gain an important place in the logic of attorney must argue what courts have done in other, similar
is presented.
law. As a result, attorneys and judges often confront legal cases. Comparing and contrasting cases has its advantages
issues with conflicting interests. Subjective human illogic
Motion for a New Trial. Request that trial judge declare a
because cases supply particularities grossly lacking in bare
mixes with objective formal logic.
mistrial and grant a new trial.
rules. Where the language of a rule gives no precise
Cases versus Rules. The average citizen probably sees law guidance, judges and attorneys must look elsewhere — to
Appeal to State Appellate Court. Contends that trial judge as the system of statutes. However, law students normally case law.
made some legal error.
spend more time studying cases. Studying, analyzing, and Justice. Legal experts have described “law” as the human
Petition for Rehearing to State Appeals Court. Requests thinking about cases continues as an integral part of an striving toward the ideal of “justice.” The studying and use of
that appeals court judges change their own decision.
attorney’s career. Clearly, a pro se defendant would do well to cases forces judges and attorneys to contemplate and strive
understand cases, rules, and the importance of each.
State Supreme Court Appeal. Requests that highest court in
toward justice in our society. American jurisprudence bases its
the state review and overturn the decision of the mid-level Cases. Appellate courts hear appeals and write and publish perfection on the idea that justice will emerge through the
appeals court.
their opinions, known as cases. Cases consist of three arguments of adversaries before a judge. Attorneys, although
important parts: the very brief facts of the matter leading up to engaged to protect a client’s interests, also participate in
U.S. Supreme Court Appeal. Requests that highest court in the charge, the legal events leading up to the trial court striving toward justice. Lawyers persuade judges by appealing
the nation intervene to correct an error on the part of the state
judgment, and the issues raised on appeal and the appellate to the justice in the case.
courts that violated the U.S. Constitution.
court’s reasonings leading up to that court’s judgment.
Cases display the complexities with which the law must deal.
State Court Habeas Corpus Petitions. Requests that the Unfortunately, the court reporters who authors cases do not Comparing and contrasting cases supplies the particularities
state appeals courts order the jail or prison holding the
obtain any knowledge from the juries as to what facts the juries that attorneys need to predict intelligently what a court will do
defendant to release the defendant upon a showing that the believed. Keep in mind that juries act as triers of facts. Herein or to persuade a court of what it should do in a particular case,
defendant is being held in violation of some state law or perhaps lies a serious gap in the worth of case law.
and for judges to make reasoned decisions on cases.
constitutional right.
Rules. Rules as viewed by appellate courts consist of general Comparing and contrasting cases requires hard, rigorous
Federal Habeas Corpus Petition to District Court.
statements of what the government, as the representation of thinking about justice and the proper role of government in a
Requests the federal trial court to order the jail or prison the people’s desires, either permit or require of a certain class free and democratic society.
holding the defendant to release the defendant because the
of people under a certain set of circumstances. Here, the word ·····················································································
defendant is being held in violation of the U.S. Constitution. “rule” means statutes as well as court rules, rules of evidence,
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