Santa Clara Law Review Volume 30 | Number 1 Article 1 1-1-1990 The rW it of Error Coram Nobis in California Morgan Prickett Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Morgan Prickett, The Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1 (1990). Available at: http://digitalcommons.law.scu.edu/lawreview/vol30/iss1/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. ARTICLES THE WRIT OF ERROR CORAM NOBIS IN CALIFORNIA Morgan Prickett* John Lawrence Welch killed two persons after he had con- sumed a substantial quantity of alcohol. At the commencement of his trial for murder, he withdrew his initial pleas of not guilty by reason of insanity and entered new pleas of guilty to two counts of murder stipulated to have been of the first degree. He was sentenced to death. The conviction was affirmed by the California Supreme Court. Medical tests conducted while Welch was on Death Row dis- closed that he had suffered severe organic brain damage as the result of a childhood illness. It was also determined that the consumption of alcohol aggravated Welch's physical brain damage, thereby pre- cipitating episodes of violent conduct during which he was unable to recognize or understand the nature and consequences of his acts. If this information had been known at the time of trial, Welch would not have pleaded guilty to two counts of first degree murder. The problem was how to bring the discovery of this new evi- dence to the attention of the courts. The obvious and ordinary meth- ods were not available. The time within which a motion for a new trial could be made had elapsed. The remedy of a direct appeal from the judgment had been exhausted. But by petitioning for an esoteric extraordinary writ, Welch succeeded in having the judgment of con- viction vacated and his pleas of not guilty by reason of insanity o 1990 by Morgan Prickett. • B.A., 1976, M.A., 1977, University of Southern California; J.D., 1980, Hastings Col- lege of the Law. The author wishes to express his gratitude to Aileen Bunney, Melissa Crow- ell, Jake Dear, Margot Plant, Hon. Marcel B. Poche, and Hon. Joseph A. Rattigan, for their helpful comments on earlier drafts of this article. SANTA CLARA LAW REVIEW [Vol. 30 reinstated.' The formal designation of the remedy used by Welch is the writ of error quae coram nobis resident, more simply known as coram nobis. The name itself evokes common law antecedents dating back to the days of Norman feudalism and royal prerogative. Developed at a time when appeal was unknown, the writ provided a means whereby a judgment erroneous as to a vital issue of fact could be set aside. As adopted and employed by the courts of California, the com- mon law features of the writ have been substantially modified in light of such statutory remedies as the motion for a new trial and the right to appeal. Before and after enjoying a sustained vogue during the 1940's and 1950's, primarily among criminal defendants seeking to have their convictions overturned, coram nobis has remained en- sconced in a comfortable obscurity. It is at present largely ignored in law schools and treatises. 2 Insofar as it is at all familiar to attorneys and judges, their acquaintance with the writ is most likely derived from either a dim and distant recollection of a droning professor's lecture or a casual glance at a long-forgotten text. Coram nobis remains one of the stranger creatures of the law.' Yet as Welch's example demonstrates, its antiquarian nomenclature should not cloud the fact that coram nobis retains a vital, albeit very closely confined, utility as the twentieth century draws to a close. Although hedged about with a daunting array of substantive and procedural restrictions, coram nobis is the only means available in a limited category of situations for mounting a collateral attack on a final judgment. For a party who discovers new evidence concerning a faet that existed at the time of trial which-without any sloth or negligence by the party-could not have been brought to the court's attention at any earlier time and that completely undermines the op- 1. People v. Welch, 61 Cal. 2d 786, 394 P.2d 926, 40 Cal. Rptr. 238 (1964). For the opinion on Welch's initial appeal, see People v. Welch, 58 Cal. 2d 271, 373 P.2d 427, 23 Cal. Rptr. 363 (1962). 2. With regard to some of the perfunctory references in some of the standard texts, see, e.g., J. HALL, B. GEORGE & R. FORCE, CASES AND READINGS ON CRIMINAL LAW AND PROCEDURE 1205 (3d ed. 1976); F. JAMES & G. HAZARD, CIVIL PROCEDURE 674 (3d ed. 1985); Y. KAMISAR, W. LAFAVE & J. ISRAEL, MODERN CRIMINAL PROCEDURE 1577-78 n.h, 1634-35 pt. 3 (5th ed. 1980); 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCE- DURE § 2867 (1973). 3. The animalistic motif is a recurrent theme in treatments of corain nobis. With more wit than accuracy, one commentator compared it to the coelacanth in that "its origin is ancient and uncertain, and not many people seem to recognize it when they see it." Anderson, Corain Nobis, 4 IDAHO L. REV. 89, 89 (1967). A Kentucky judge once called coram nobis "the wild ass of the law." Anderson v. Buchanan, 292 Ky. 810, 822, 168 S.W.2d 48, 55 (1943) (Sims, J., dissenting). Surprisingly, no one has likened the writ to the extinct dodo. 1990] CORAM NOBIS ponent's case without contradicting any factual issue adjudicated at trial, coram nobis may be the remedy of last resort and the only way to spell relief. Part I of this Article discusses the common law origins of coram nobis, its transition to this country, and its early usage in California. Part II examines the nature of the writ once that usage had become settled, with particular attention to the reductions of the common law scope of coram nobis effected by the emergence of statutory rem- edies for correcting errors of fact. Part III analyzes the formidable prerequisites that a petitioner" for the writ must satisfy before relief may be granted. Part IV details the procedures for obtaining the writ from either a trial or an appellate court. Finally, Part V in- cludes some observations as to the present utility of coram nobis. I. HISTORY A. Common -Law Origins of Coram Nobis As may be gathered from its antiquated appellation, the writ of error coram nobis is not indigenous to American shores. It is a crea- ture of the common law of England, with ancestry reaching back to the sixteenth century.' The right to move for a new trial or to appeal being unknown at common law, the writ of error evolved as a method for reviewing a judgment." The writ had two forms. The function of the ordinary writ of error was substantially analogous to that of the modern appeal: it brought up the record of a case in order 4. A word as to terminology. As will appear, a simple motion to vacate a judgment is nowadays treated as the functional equivalent of a petition for a writ of error coram nobis. See infra notes 78-79 and accompanying text. Less formal still, relief by coram nobis has also been described as being available upon mere application. See, e.g., In re Watkins, 64 Cal. 2d 866, 870, 415 P.2d 805, 808, 51 Cal. Rptr. 917, 920 (1966); People v. Kraus, 47 Cal. App. 3d 568, 573, 121 Cal. Rptr. 11, 15 (1975). For purposes of simplicity, the term "petition" will be used to designate the means by which the setting aside of a judgment is sought, and the person seeking such relief will be described as a "petitioner." 5. E. FRANK, CORAM NOBIS 1-2 (1953); L. YACKLE, POSTCONVICTION REMEDIES 36 (1981). 6. E. FRANK, supra note 5, at 1; People v. Reid, 195 Cal. 249, 254, 232 P. 457, 459 (1924); People v. Lempia, 144 Cal. App. 2d 393, 396, 301 P.2d 40, 42 (1956) cert. denied, 353 U.S. 916 (1957); People v. Sica, 116 Cal. App. 2d 59, 62, 253 P.2d 75, 77 (1953), cert. denied, 346 U.S. 831 (1953); People v. Coyle, 88 Cal. App. 2d 967, 971, 200 P.2d 546, 549 (1948), cert. denied, 337 U.S. 909 (1949), reh'g denied, 337 U.S. 934 (1949); see I W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 213-15 (7th ed. 1956); 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 664-68 (2d ed. 1899); cf 1.J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 308 (1883) ("It is a characteristic feature in English criminal procedure that it admits of no appeal properly so called .... "). SANTA CLARA LAW REVIEW [Vol. 30 that a higher court could review it for errors of law.' The English historian Holdsworth stated that this form of the writ was "little used because the procedure upon it was cumbersome, and gave no useful result." 8 Errors of fact were another matter. For them, the writs of error coram nobis and coram vobis9 became the remedy. A separate cor- 7. Jaques v. Cesar, 85 Eng.