If you’re looking to hire a lawyer to file an 11.07 writ of habeas corpus for an incarcerated person in Texas, there’s a few things you need to understand about writ investigations.
First, keep in mind that the whole point of an 11.07 writ is to find things that did not make into the record during the trial or plea proceedings. If your loved one had a jury trial, the events recorded in the trial transcript cannot be a basis for relief by themselves. This is because “record based” claims must be raised on direct appeal (ineffective assistance of counsel claims can be raised in a writ. Technically these aren’t “record based” claims because to succeed you need new evidence from the trial attorneys themselves in the form of an explanation of their trial strategy).
Attorneys attempting to develop evidence outside the record have 3 main sources of information:
- The State’s file
- The trial attorney’s file
- New witness or expert evidence
Access to the State’s file requires either a public information request or a discovery order authorizing release of the file. In most circumstances, a public information request is required because an attorney doesn’t have a right to discovery post-conviction.
So here’s what it looks like to get a State’s file. I’ll find a good contact in the District Attorney’s Office and then submit a request in writing. Attorney’s can’t just ask for “the State’s file on client ‘X'” because the Attorney General’s Office has ruled such requests are over broad and too burdensome on the State. Instead, I have to list particular documents that I want, such as witness statements, offense reports, media, etc. Once I’ve submitted a proper request, the DA Office has a “reasonable” amount of time to comply with my request.
The second source of information is the trial attorney’s file. Prior attorneys are required to turn over client files upon request. Normally, I’ll get my client to sign an authorization of release. A defense attorney’s file isn’t necessarily a good source of information. Many attorneys are not good record keepers, and much of what they’ve retained is either redundant with documents in the State’s file or boilerplate correspondence. Still, it’s important under most circumstances to get the client file as part of the writ investigation.
Finally, a habeas attorney can conduct his or or own investigation. This usually entails seeking out witnesses who you suspect had made misrepresentations in court or witnesses who weren’t called to testify but could have offered material evidence favorable to your client. Additionally, habeas attorneys can pursue new experts to review DNA, fingerprint, blood spatter, or other scientific or pseudo-scientific evidence.
This process can take awhile, so clients and their families need to be patient with habeas counsel as the evidence is developed.
Just remember, the goal is to find things that were not part of the record previously. Whatever evidence is brought forward, it needs to put the evidence that the jury heard in a new light. Merely corroborating evidence already heard by the jury is less helpful than finding a witness who wasn’t called to testify who can add details that the jury never heard (of course those details need to advance a defensive theory or provide mitigating evidence).
When filing an 11.07 writ, the point is not to re-litigate the trial. Instead, habeas counsel’s goal is call the verdict into question and point out things that previous counsel might have missed. That goal should be kept in mind when assisting counsel with the investigation or when deciding if to retain habeas counsel.