I wanted to follow-up on the habeas corpus grant in Brown v. Ercole. But come at it from a criminal defense practitioner’s view.
It is always exciting to win a case, particularly a habeas case in the district court, which is exceedingly rare. Outside of the relief that you are getting the client, there are other exciting aspects to the win for the attorney.
First, unlike when a habeas petition is denied, the State does not need to seek a COA (see FAQ 9) in order to bring the case to the Second Circuit. They have an automatic right to an appeal. That means that when you win a habeas case in the district court, you are now automatically going to be arguing before the Second Circuit. To me, that is one of the most exciting things to do as an attorney.
Even better, you don’t need to put together the Record on Appeal. Whenever a litigant wants to bring an appeal in a civil case (and a habeas petition is considered a civil, not a criminal, case – I’ll explain that a later time), the party bringing the appeal has to go through the laborious task of putting together the record on appeal. This encompasses heading to the court, waiting in line to get the record, putting all of the documents in order, filling out several forms, waiting in line to use the barely working, hard-to-figure-out photocopier, and then waiting in line again to get everything stamped. It’s a full two-hour waste of time. And the 20-odd lawyers in my indigent defense office have to do it since we have a total of one paralegal and two mail room people, who have enough to worry about. In addition to that, you have a very short period of time to do that and to fill out a bunch of forms for the Second Circuit. It’s a real hassle.
But when you win in the district court, it’s the other side that has to do all of that. I know I shouldn’t say it, but it’s a nice bonus.