The Task Force for Justice in the name of Dror Goldberg

Update: April, 2004

Legal Update
(Written by Dror April 2004)

Here is a brief summary of the post-conviction legal process in the State of Texas and an explanation of where in the process my case is as of April 2004.

When an individual is convicted of a non-capital crime in the State of Texas, this individual is granted the option of filing an appeal to a court with a higher jurisdiction than the trial court that convicted him or her. So a person, if s/he chooses to do so, can file an appeal to a Court of Appeals.

What is in this Appeal?

During the trial proceedings, the defense counsel (the individual’s defense attorney) may object to any improprieties that are committed by the Judge or Prosecutor in the case. These objections are recorded and entered in to the trial record. These objections are basically complaints made against the Judge or Prosecutor for State rules or laws that they may have broken during the legal proceedings. These objections range from inadmissible evidence being presented to the jury, to the prosecutor making a false statement. But, unless the defense attorney objects to these errors, the "error" will not be preserved on the record.

What is the Direct-Appeal Process?

After a person is convicted of a criminal or civil crime, he will review the court’s record of the trial proceedings, and will then use the recorded errors that were preserved. He will then file a motion that asks that his conviction be overturned or dismissed, due to the fact that a specific number of errors occurred at his trial, and that these errors deprived him of his rights. This person is then known as the appellant.

This individual will then file this motion, known as an Appellant’s Brief, to a Court of Appeals. This is the beginning of the Direct-Appeal Process.

There are 14 Appeals Courts in Texas, with two situated in Houston – the 1st Appeals Court and the 14th Appeals Court. Each court consists of nine judges, who specialize in appellate law. The judges may review an appeal in panels of three, or as an entire group of nine, and these courts will preside over both civil and criminal appeals.

In this appeal, a person will state his grounds for relief from his conviction, and he will also state the recorded errors, the laws that he is basing his claims on, and the former, ruled-on case, or case laws that will help him to make a convincing argument. After the Appellant has filed his brief, the State of Texas will most likely respond, and file a reply brief with the court. The State is then known as the Appellee.

In their reply brief, the State will try to counter the Appellant’s claims, state that there were no errors at trial, and if there were, these errors were harmless. The State, in its Reply-Brief to the Appellant’s appeal, will usually also state that the crime committed far outweighs the harm caused by the supposed error committed at trial. The State will use laws, and case law to base its argument.

The Appellant can then reply to the State’s brief, and the State can respond to that.

The Courts of Appeals are generally under no strict time limit in coming to a decision on an appeal. Although there are specific time-limits for the Appellant and Appellee to file their briefs, the Courts of Appeal may take their time in coming to a decision – even up to two years!

The Decisions of the Courts

The Courts of Appeals may issue several answers to an appeal. They may Affirm the decision of the trial court, thus finding no real issues or merit in the Appellant’s claims.

The Courts may Reverse and Remand the trial court’s decision, and send the convicted individual back to his trial court to reinitiate the trial proceedings, either from the beginning or from a specific junction.

Or the Courts of Appeals may Reverse and Vacate the entire conviction and indictment, in which case, the convicted person’s entire indictment and conviction are thrown out, and he is free to go. However, this rarely happens. There are many aspects to the Court’s decision that are too lengthy to list here. However, if the Court does affirm an Appellant’s conviction, he then has other options.

The PDR

A Petition for Discretionary Review (PDR) is a petition that the Appellant may file with the Court of Criminal Appeals of Texas (CCA) which is the highest court of appeals, for criminal cases, in the State of Texas.

The PDR is a petition for the Court of Criminal Appeals to review the lower Court of Appeals decision, and the Trial Court’s decision, on a specific matter of law, concerning the issues raised on appeal. The Appellant may use case law or regular law in the petition.

The State may file their own reply brief to the PDR, or they may file their own PDR.

The Court of Criminal Appeals may then Affirm the lower court’s decisions, or the Court of Criminal Appeals may Reverse the lower court’s decisions, and order that certain issues be addressed in the lower courts.

Again, the Court of Criminal Appeals may take its time in answering the Petition, as there are no time restraints on the Court.

If the Court of Criminal Appeals then does Affirm the lower court’s decision, then the Appellant has the choice to file a Writ of Certiorari to the Supreme Court of the United States. The Write of Certiorari is the very last step in the direct-appeals process.

The Writ of Certiorari

If an Appellant’s Direct-Appeal to the Court of Appeals fails, and then his Petition for Discretionary Review to the Court of Criminal Appeals fails, this individual has one more step he may take in the Direct-Appeals process. This individual, the Appellant, may file a Writ (a legal paper ordering someone to or not to do something) asking that the Supreme Court of the United States review one or more of the issues raised on the direct appeal to the lower courts. The reason for filing this Writ is that the Appellant may have a legal issue that has been raised by the Supreme Court before, and the Appellant believes that the Supreme Court should address the issue again. Usually, it is one particular issue concerning Constitutional law.

The Supreme Court receives around 2000 of these types of Writs every year, but it will only review around 2% OF THESE Writs!

If the Supreme Court does not review the Writ, or Denies the Writ, then the Appellant’s Direct-Appeals process is over.

As of March, 2004, this is the State of the legal process where my case is. It has taken four years to go through the Direct-Appeals process, and unfortunately, the Courts have denied me any relief. It is now time for me to proceed with the next step in the legal process that is available to me, the Writ of Habeas Corpus.

The Writ of Habeas Corpus

The term "Habeas Corpus" is Latin for the "the production of the Body," and the Writ is perhaps one of the most fundamental and powerful legal tools available to a person convicted of a civil or criminal offense. The Writ has been used by the English government since the Twelfth century, and is deemed a vital part of our legal system.

When a person files his Writ of Habeas Corpus, he is in essence stating to the courts, "Please Look! There has been a fundamental abuse of justice, and I am being incarcerated against my will, and contrary to the law!"
While this powerful tool is available to every citizen, there are some important rules and guidelines one must follow to present the Writ properly.

There are two steps in the process of the Habeas Corpus Writ. The first Writ is presented to the State’s Court of Criminal Appeals, and is therefore known as the "State Writ," while the second Writ is presented to the Fifth Circuit Federal Court, which presides over the States of Texas, Louisiana, and Oklahoma.

So, the process of the State Writ looks like this:

The Writ of Habeas Corpus is submitted in progression to:

The Trial Court _Court of Criminal Appeals _Fifth Circuit Court _The Supreme Court of the United States.

The process of the second Writ, the Federal Writ, looks like this:

The Writ of Habeas Corpus is submitted in progression to:

The Trial Court _The Fifth Circuit Court _ The Supreme Court of the United States.

What May be Submitted in the Writ of Habeas Corpus

This is the tricky part. The law states that the only grounds that may be presented and raised in the Writ of Habeas Corpus are grounds that were not raised on the Direct-Appeal. In other words, this is the opportunity to present to the courts any new evidence that may exonerate a person, or any evidence that should have been presented to the courts; but due to the ineffectiveness of the trial attorney, it was not.

The Writ of Habeas Corpus is an incredibly powerful legal tool, and it is very important that an Appellant take the time to research and present the Writ to the courts in a well-written manner. It is also best that an experienced, respected attorney write and present the Writ to the courts, so that the Writ will be taken more seriously, and not dismissed as the work of a layman.

Is There a Time Limit on the Writ Being Presented to the Courts?

Yes. In order to clear the Federal courts’ dockets of frivolous lawsuits and appeals, and to help hasten the Federal Writ procedure, the Government signed into effect on April 24, 1996 Article 2255 of the Federal Civil Procedure Rule. Article 2255 states that from the date when one’s conviction becomes final, a convicted individual has exactly one year in which to file his Federal Writ. So in essence, when a person’s direct appeal process is over and the judgment becomes final, then the one- year clock begins to tick.

This also affects the State Writ. A person now has to file his State Writ within the one-year period, and this person now has to leave himself enough time within that first year to research and file the Federal Writ as well. So, if it takes me six months to research and file my State Writ, then I will have the remaining six months to file my Federal Writ.

As of April 2004, I have exactly 11 months on my "clock," and Mr. Stanley Schneider and I are hard at work, researching my Writ. This is a very time-consuming and costly process. Any and all help that you may be able to provide will be so helpful. My family and I appreciate any donations that you may be able to give. Thank you for everything.

Sincerely,

Dror Goldberg

References
1. "An Introduction to Texas Post-Conviction Habeas Corpus Pursuant to Article 11.07, C.C.P., for Lay people and Others who Never Thought They’d Care.", G. Jasuta, Joh, 2004, Attorney at Law, 1709 San Antonio, Suite 1, Austin, Texas, 78701, jjasuta@texindbar.org.

2. Article 2255, Federal Civil Judicial Procedure and Rules, 2004, West and Thomson Publishing.

Update: April 5, 2003

We have updated the look of Dror's site to show we are still strong and dedicated to both his innocence and his appeal. We will be updating much of the content in the coming week, including new case facts and ways for you to help.

We will soon have a way to send online donations so that the many of you who see this plight for help can help us with the costly appealate process. Please check back soon and thank you so much for your continued support.

Update from Dror: Oct. 16, 2002

To All My Friends and Family,
I hope that this letter finds all of you in great health and even better spirits. Its been over two years since I was incarcerated for a crime that I did not commit. And although many of you do not know me or my character you have given me incredible support. Some of you are friends of friends and yet you support me because of your beliefs in what is right and wrong. Either way thank you so much for this incredible support and love that all of you have shown my family and me. If it were not for all of you I would be a much different person. I'm not sure if all of you are aware that the court of appeals in Houston has affirmed my conviction, which basically means that they want me to stay in prison. This came as quite a blow but we have to move on. The next step is to appeal to the full court of Criminal Appeals. I believe that we may have lost this battle but we have not lost the war. In the meantime I plan on finishing college and receiving my degree and to make the most of my time. I urge each and every one of you to take care of yourselves and to become more involved with your communities and local government administrations. I do not mean to preach to anyone but if this could happen to me G-d forbid that it should happen to anyone else.

Again I thank each and everyone of you for the incredible support and love that you have poured on my family and I pray that I have the chance to meet all of you one day soon. Have a superb new year and a great holiday season and Please take care of yourselves and your loved ones With much love and respect
-Dror H Goldberg