Coram nobis

Coram nobis or coram vobis also known as error coram nobis or error coram vobis (from Latin quae coram nobis resident, or quae coram vobis resident, "which [things] remain in our presence", or "in your presence", respectively: the "things" referred to are the records of the original case.[1]) is a legal writ issued by a court to correct a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available.[2] A petition for writ of error coram nobis is generally brought before the trial court, while a petition for writ of error coram vobis is brought before an appellate court. Both coram nobis and coram vobis differ from habeas corpus in that they do not have a custody requirement.

Purpose

United States

A coram nobis petition applies to persons who have already been convicted of a crime and have served their sentence. It may seek to remove probation requirements or restrictions, eliminate payment or obtain refund of court imposed fines, restore voting rights and gun ownership, improve employment and credit potential, remove a public stigma, and so forth, in order to restore, so far as possible, the erroneously convicted party to a pre-conviction state. Motions may be filed by heirs at law even after the convicted person is deceased.

In a case from 2007 (Gary Earl Neighbors v. Commonwealth of Virginia), the Supreme Court of Virginia explained in great detail the purpose of a writ of error coram nobis, quoting from a 1957 decision from the same court (Dobie v. Commonwealth):

The writ of error coram vobis, or coram nobis, is an ancient writ of the English common law. It was called coram nobis (before us) in King’s Bench because the king was supposed to preside in person in that court. It was called coram vobis (before you — the king’s justices) in Common Pleas, where the king was not supposed to preside. The difference related only to the form appropriate to each court and the distinction disappeared in this country when the need for it ended. 49 C.J.S., Judgments, § 311, p. 561, n. 28. Mr. Minor says the proper designation here is coram vobis. IV Minor's Inst., 3 ed., Part I, pp. 1052-3.
The principal function of the writ is to afford to the court in which an action was tried in an opportunity to correct its own record with reference to a vital fact not known when the judgment was rendered, and which could not have been presented by a motion for a new trial, appeal or other existing statutory proceeding. Black's Law Dict., 3 ed., p. 1861; 24 C.J.S., Criminal Law, § 1606 b., p. 145; Ford v. Commonwealth, 312 Ky. 718, 229 S.W.2d 470. It lies for an error of fact not apparent on the record, not attributable to the applicant’s negligence, and which if known by the court would have prevented rendition of the judgment. It does not lie for newly-discovered evidence or newly-arising facts, or facts adjudicated on the trial. It is not available where advantage could have been taken of the alleged error at the trial, as where the facts complained of were known before or at the trial, or where at the trial the accused or his attorney knew of the existence of such facts but failed to present them. 24 C.J.S., Criminal Law, § 1606 at p. 148; 49 C.J.S., Judgments, § 312 c., pp. 563, 567.[3]

State courts may treat the writ very differently from their federal counterparts. The Supreme Court of California ruled in 2009 that the state petition for writ of error coram nobis cannot be used to challenge an old conviction that later forms the basis for deportation. For challenges to convictions, either at trial or in a plea bargain, that have deportation as a collateral consequence, California courts require a petition for Writ of Habeas Corpus.[4] The Court observed that "The writ of error coram nobis is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown."[5] The Court noted how limited the writ is in California, and expressly declared federal coram nobis law to be inapplicable.[6] In California, coram nobis essentially requires a fact, not going to the facts of the case (e.g. guilt or innocence) that would have prevented the rendition of the judgment.

Limits

Writs of coram nobis cannot be used to address issues of law previously ruled upon by the court but only to address errors of fact that were not known by the defendant at time of trial or plea bargain, and were knowingly withheld during and after trial or plea agreement from judges and defendants by prosecutors; and which might have altered the verdict were they presented at the trial; or in the case of a plea agreement, where the defendant would not have agreed to the plea had he been made aware of the unknown fact.

An example would be a circumstance such as a defendant agrees to a plea agreement but the fact that the resulting conviction will have a direct consequence, such as lifetime registration as a sex offender, has been withheld from the defendant. Obviously, the prosecutor is aware of such a thing, and defendant's attorney should certainly also be aware. Where this fact is withheld from the defendant, he is now prejudiced in that had he known the fact of lifetime registration he would not have pleaded guilty. The writ of coram nobis can be used to overturn such a plea agreement. If the defendant is still in custody however, he would petition for relief under habeas corpus.

Writ abolished in civil cases

In United States federal courts, the Federal Rules of Civil Procedure, under Rule 60 (e) abolished the writ of coram nobis in civil cases.[7] However, in United States v. Morgan,[8] the Supreme Court held that coram nobis was still available in federal court for criminal cases.[9] The explanation of this provision is speculative.

Examples

One relatively well-known example was in regard to the Supreme Court case Korematsu v. United States (1944), which upheld a conviction pertaining to the World War II Japanese American internment. In 1984, a federal district court judge granted a writ of coram nobis, overturning the conviction.[10]

In December 2014, coram nobis was used by a South Carolina judge to vacate the conviction of George Stinney, a 14-year-old African-American boy who was convicted of murder and executed in June 1944.[11]

United Kingdom

The common law Writ of Error contra nobis and its equitable equivalent, the supplemental Bill of Review,[12] do not appear to have survived the reforms to English law made in the last quarter of the 19th Century.

Writs of error as a separate proceeding were abolished by section 148 of the Common Law Procedure Act 1852 (15 & 16 Vict., c.76), which instead provided that "the Proceeding to Error Shall be a Step in the Cause." Error was finally abolished 23 years later in 1875, when Schedule I, Order 58, rule 1 of the Supreme Court of Judicature Act 1873 was brought into force and the Court of Appeal was created.

Fresh evidence

The modern practice at English law where a litigant seeks to rely upon evidence not known at trial is to bring an appeal.

In civil proceedings, CPR 52.11(1)(b) contains a presumption that civil appeals shall be limited to a review of a decision of the lower court, and CPR 52.11(2)(b) contains a presumption that the Court of Appeal shall not receive fresh evidence. The Court of Appeal will exercise its discretion to hear fresh evidence according to the over-riding objective in civil cases to deal with cases justly: however, three key criteria laid down by the Court of Appeal in Ladd v Marshall[13] continue to be of relevance:

Moreover, where it is "necessary to do so in order to avoid real injustice," in "exceptional" circumstances, and where "there is no alternative effective remedy," CPR 52.17(1) permits both the High Court and the Court of Appeal to re-open a final determination of an appeal.

In criminal proceedings, the Court of Appeal also has a discretion to admit fresh evidence on appeal. If it does so, the Court must ask itself whether, in light of the fresh evidence, the conviction is unsafe.[15]

The special case of fraud

Soon after the passage of the Judicature Acts, it was thought that, when a judgment had been obtained by wilful fraud of the victorious party, the aggrieved party's proper recourse was to bring a new action for fraud, because to try the alleged fraud required original jurisdiction, which the Court of Appeal did not have.[16]

In so ruling, Jessell MR made specific references to the supplemental bill of review, the equitable equivalent of the writ of error contra nobis. However, the Court drew an analogy with the old law, rather than preserving it: in agreeing with Jessell MR, James LJ observed, "...if it is true that there was a fraud practised upon the Court, by which the Court was induced to make a wrong decree, the way to obtain relief will be to bring a fresh action to set aside the decree on the ground of fraud," (emphasis supplied).

Since the coming into force of the Civil Procedure Rules, the law has evolved further. In Noble v Owens,[17] the Court of Appeal held that the modern position is that it is now not necessary to commence a fresh action to cure a judgment fraudulently obtained. Instead, the powers of the Court of Appeal under CPR 52.10 are sufficiently broad to permit the Court of Appeal to refer the determination of the issue of fraud to a Judge of the High Court as part of the appeal proceedings, with a consequent saving of costs.[18]

In criminal cases, the Court of Appeal has allowed appeals and quashed convictions on the basis of misconduct by Crown witnesses analogous to fraud, e.g.: where prosecution witnesses had subsequently been convicted for giving perjured evidence during the original trial;[19] or, where police officers who took confessions from the appellants had subsequently been discredited in later proceedings.[20]

Recent attempts to resurrect the procedure

In Cinpres Gas Injection Ltd v Melea Ltd,[21] an unsuccessful attempt was made to resurrect the supplemental bill of review. Jacob LJ, giving the judgement of the Court of Appeal, held that an attempt to invoke the old bill of review could not succeed because, for generations, applications for rehearing on the basis of fresh evidence had been made to the Court of Appeal and, if the Bill of Review procedure had survived the Judicature Acts, it had long since lapsed. His Lordship observed that "it would make for better justice in principle for a prior decision to be impugnable on the grounds for which a bill of review once lay, namely that there was fresh evidence not discoverable by reasonable diligence, which 'entirely changes the aspect of the case,'" (para. [100]). However, he also observed that the Court of Appeal had not been asked to consider its powers under CPR 52.17 to re-open a final appeal in "exceptional circumstances" and therefore could not say whether such an application would have succeeded.

Moreover, in an Northern Irish case, Walsh's Application,[22] an application for a writ of error coram nobis following an unsuccessful judicial review, Weatherup J followed the Court of Appeal in Cinpres by observing, "While the Writ developed at Common Law, I doubt if the procedure survived the appeals process introduced by the Judicature (Ireland) Act 1875," before referring to the provision of that Act dealing with the abolition of proceedings in Error. The learned judge concluded that he did not have the jurisdiction to alter the decision made on judicial review.

It can therefore be seen that the Judicature Acts and the Civil Procedure Rules provide for a comprehensive system of appeals which effectively oust the function served by the former Bill of Review and Writ of Error coram nobis, which may safely be regarded as extinct in England, Wales and Northern Ireland.

See also

References

  1. ↑ Blackstone, Commentaries, New York, 1827, vol. ii, p. 314
  2. ↑ Bonadonna v. Unknown Defendant, 181 Fed. Appx. 819 (C.A. 11 (Ga.), 2006).
  3. ↑ Neighbors v. Commonwealth, 274 Va. 503. , citing Dobie v. Commonwealth, 198 Va. 762, 768-69 (1957).
  4. ↑ PEOPLE v. HYUNG JOON KIM, 45 Cal.4th 1078 (16 March, 2009).
  5. ↑ PEOPLE v. HYUNG JOON KIM, 45 Cal.4th 1078, p. 11 (16 March, 2009).
  6. ↑ PEOPLE v. HYUNG JOON KIM, 45 Cal.4th 1078, p. 22, fn 12 (16 March, 2009).
  7. ↑ Cornell Law School website
  8. ↑ United States v. Morgan, 346 US 502 (U.S. Sup. Ct. 1954)
  9. ↑ US legal definitions website
  10. ↑ Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1983).
  11. ↑ Robertson, Campbell (18 December 2014). "South Carolina Judge Vacates Conviction of George Stinney in 1944 Execution". New York Times. Retrieved 18 December 2014.
  12. ↑ https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2012/%5B2012%5D%20NIQB%2082/j_j_WEA8630Final.htm
  13. ↑ Ladd v Marshall, [1954] 1 WLR 1489
  14. ↑ Terluk v Berezovsky [2011] EWCA Civ 1534
  15. ↑ See, generally, s.2(1) Criminal Appeal Act 1968; R. v. Pendleton [2002] 1 WLR 72
  16. ↑ Flower v. Lloyd (1877) 6 Ch D 297, per Jessell MR at 300, and approved by the House of Lords in Jonesco v Beard [1930] AC 298
  17. ↑ Noble v Owens [2010] 1 WLR 2491
  18. ↑ per Smith LJ, para. [29]
  19. ↑ R. v. Cummins and Perks (1987) 84 Cr App R 71
  20. ↑ R. v. Williams and Smith [1995] 1 Cr App R 74
  21. ↑ "Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9". Bailii. Paras. 78–104. Retrieved March 3, 2016.
  22. ↑ Walsh's Application [2012] NIQB 82
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