COLLATERAL REVIEW

"It is not that anyone believes the law to be just.  Everyone knows that there is one law for the rich and another for the poor.  But no one accepts the implications of this, everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not.  The professed enemies of society have this feeling as strongly as anyone else.

- George Orwell

WHAT IS COLLATERAL REVIEW?

Collateral review is a category of procedures intended to address constitutional violations that cannot be raised on appeal.  The most commonly employed, and most useful, collateral remedies for Illinois defendants are the Post-Conviction Petition filed in the state courts and the Section 2254 Habeas Corpus petition filed by a state prisoner in the federal court.  The usual collateral remedy for federal prisoners is the Section 2255 Motion to Vacate or Set Aside Sentence, which is a form of habeas corpus proceeding.

An appeal is limited to issues of record.  When a defendant appeals a conviction, the state appellate court or the federal court of appeals will confine its review to claimed errors of law that can established entirely on the basis of the trial court record.  So an appeal is the right forum for addressing such issues as the sufficiency of the charge, legal errors in ruling on pre-trial motions, improper admission or exclusion of evidence at trial, or erroneous rulings on objections.  In short, any defect in the proceedings that can be demonstrated from the record can be addressed on appeal.

But what about problems that do not appear on the record?  What if the judge fell asleep during the trial?  Or the prosecutor secretly concealed exculpatory evidence? Or defendant's attorney neglected to investigate important exculpatory witnesses?  None of those things will appear in the record, and therefore they cannot be addressed on appeal.

That is what collateral review is for.  A state post-conviction  petition brings the case back before the original trial judge and calls to the judge's attention serious defects or misconduct that did not find their way into the record because they were hidden from the court at the time of the original trial.  A federal Section 2254 habeas corpus petition allows a federal judge to review rulings by the state courts that implicate the federal constitution or federal law.  A Section 2255 Motion is essentially a combined post-conviction petition and habeas corpus petition available for defendants convicted in the federal court system

There are other state and federal collateral remedies available in unusual situations, but the post-conviction petition, the Section 2254 petition and the Section 2255 Motion are normally the most appropriate and the most useful.

Where all judicial avenues of relief have failed it is sometimes possible to obtain a pardon or commutation of sentence from the Governor.  Federal prisoners must address their pardon or commutation requests to the President.

CONTACT INFORMATION

Telephone: 847.864.0400

email: jsachs@joshuasachsattorneys.com

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