The Great Writ of Habeas Corpus

What does a Writ of Habeas Corpus mean? The term literally means, “you have the body.” If a person who is being detained claims prosecutorial misconduct, that they have ineffective assistance of counsel, have newly obtained evidence, or challenges the legality of their confinement then a petition may be filed. A writ of habeas corpus would order the warden of a prison or other keeper, to bring a prisoner before a court or judge and explain why the person is being held. The person who is detained must be presented in court before a judge so they can challenge their detention.

The Sixth Amendment of the United States guarantees the assistance of counsel, and the Rhode Island Constitution Article 1 Section 10 also provides the right to have the assistance of counsel for persons how are accused. Both the State and Federal constitutions guarantee the right to a Speedy Trial, Due Process and Equal Protections under the laws. Accusations by law enforcement officers are just that “accusations”, and every person is presumed innocent, until pronounced guilty by the law; R.I. Const., Art. I Sec. 14. The habeas corpus is intended to protect your freedom, the main reason for this safeguard it to prevent the illegal detention of all citizens. The Fourteenth Amendment is clear, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizen’s of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

If the Fourteenth Amendment is clear and there is protection from unlawful incarcerations then why is Victor being deprived of the right to due process

It is no secret that inequality and systemic racism and unconscious bias in the Rhode Island judicial system has deep roots. The Rhode Island Committee on Racial and Ethnic Fairness in the Courts was created in 2020 to identify and to combat inequities and to ensure a system that is accessible to all and a system that treats all persons equally.

It is a fear of being blackballed in Rhode Island that has the power to turn an honest criminal defense attorney or public defender into a “team player”. There is a trail of breadcrumbs in the case at hand that paint a clear picture of how Victor has and continues to be victimized by a system of tightly knit individuals who cover each other’s backs at all cost. A criminal defense lawyer who willingly takes a fall as a boxer in a rigged fight would do and does not advocate for their client’s rights because that lawyer wants to assist the police and prosecutors renders the Sixth Amendment, which is applicable to the States by the Fourteenth Amendment § 1, ineffective and dishonors the vow that they took.

The official records and actions clearly show that the defense has been working hard to help the state because the remedy for an individual whose incarceration is found to be unlawful is to release the person. Shockingly it is with the assistance of the public defenders and private attorneys who have been involved that:

1. The state was able to present Victor as a bail violator on February 17, 2020 and then again on May 7, 2020 in violation of the laws; see RI Gen L § 12-10-2 (a)(2)
2. The state has never met its burden to hold without bail according to R.I. Const., Art. I § IX
3. The state has illegally detained Victor without bail or being tried beyond the expiration period mandated in RI Gen L § 12-13-7
4. The state has deprived Victor the right to a Speedy Trial
5. The state is unlawfully holding Victor without bail or a trial in violation of case law

Education is Vital – Rhode Islanders Know Your Rights and the Laws – Blindly Trusting a Criminal Defense Attorney or Public Defender May Strip You of Your Rights and May Cost You Your Freedom…

Anonymous – Freedom and Justice for All Seeker

An example, in the case at hand attorney Gary Pelletier tried mixing Rule 12(e) with Rule 12(d) of the R.I. Super. Ct. R. Crim. P. 12 in an attempt to confuse when request to File a Motion to Dismiss for Failure to Obtain a Speedy Trial were made.

Unethical tactics like the example are slight do not be fooled by your attorney.

R.I. Const., Art. I Sec. 9 Right to bail – Habeas corpus “All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use of or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.”

RI Gen L § 12-13-7 Right to prompt trial on indictment or information for serious crime. “Every person who shall be indicted for or charged by information with an offense for which bail may be denied pursuant to the provisions of R.I. Const., Art. I, Sec. IX, and shall be imprisoned under the indictment or information, shall be tried or bailed within six (6) months next after the time at which he or she shall plead to the indictment or information if he or she demands a trial, unless it shall appear to the court that some material witness in behalf of the state has been enticed away or is prevented from attending court by some unavoidable accident.” (If you are charged with a misdemeanor see RI Gen L § 12-13-6)

Why then has the defense attorneys refused to challenge the legality of Victor’s pretrial detention? Perhaps it is because the Pawtucket Police have flexed their muscles. Victor pleaded not guilty to the indictment on July 29, 2020 and demanded his right to trial and his right to a Speedy Trial; a motion was filed on August 31, 2020 and pursuant to RI Gen L § 12-13-7 the “bail or try” within six (6) months mandate expired on January 29, 2021. It has been the willful lack of legal assistance and deprivation of fundamental rights and protections that has kept Victor who has maintained his innocence illegally detained for over three years without being bailed or tried. Victor has the right to file a petition for writ of habeas corpus, but the defense attorney’s that have been involved have refused his request. Although he has the right to file Pro Se motions, and he has, he has not been transported to the Courthouse for the hearings that were set; access to the courts is being blocked, interference with the judicial process is a crime.

RI Gen L § 10-9-18 (2022) Discharge on failure to show cause for restraint “If no legal cause be shown for the imprisonment or restraint, the court shall discharge the party therefrom.”

RI Gen L § 10-9-1 General right to writ “Every person imprisoned in any correctional institution or otherwise restrained of his or her liberty, other than persons imprisoned or restrained pursuant to a final judgement entered in a criminal proceeding, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to obtain relief from the imprisonment or restraint, if it shall prove to be unlawful.”

RI Gen L § 10-9-29 Rearrest of discharged person “No person who has been discharged upon a writ of habeas corpus shall be again imprisoned or restrained for the same cause, unless he or she is indicted or charged by information therefor or convicted thereof, or committed for want of bail, by some court of record having jurisdiction of the cause, or unless, after a discharge for defect of proof or for some material in the commitment in a criminal case, he or she shall be again arrested on sufficient proof, and committed by legal process, for the same offense.”

R.I. Const. Art., I Sec. 10 Rights of accused persons in criminal proceedings “In all criminal prosecutions, accused persons shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against them, to have compulsory process for obtaining them in their favor, to have the assistance of counsel in their defense, and shall be at liberty to speak for themselves; nor shall they be deprived of life, liberty, or property, unless by the judgement of their peers, or the law of the land.”

R.I. Const., Art. I Sec. 2 Laws for the good of whole – Due Process – Equal protection. “…No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws…”

Victor has been held without bail for over three years without due process of law and he is being deprived equal protection under the laws.

The Governor of the State of Rhode Island, Honorable Daniel McKee, has the power to ensure that the laws are being faithfully executed according to RI Constitution Article 9 Sec. 2 – “The governor shall take care that the laws be faithfully executed.”