Everyone makes mistakes, even judges. If a trial court makes an error related to fact so substantial and critical that the outcome of the case would have been different, a party may seek a writ of error coram nobis. The kind of error which might result in such a writ is if the court made a mistake as to a victim’s age and imposed a conviction and judgment dependent upon that mistake (say, for example, if the court thought the victim was a minor and she was not).
A writ of error coram nobis is an extraordinary remedy of very limited scope. Jessen v. State, 95 Wis.2d 207, 213, 290 N.W.2d 685 (1980). It is addressed to the trial court, and provides the trial court the opportunity to correct its own record. In Wisconsin, a party seeking a writ of error coram nobis must establish three factors:
(1) that no other remedy is available,
(2) that the factual error he wishes to correct is crucial to the ultimate judgment, and
(3) the factual finding to which the alleged factual error is directed must not have been previously visited or passed on by the trial court.
See State v. Heimermann, 205 Wis. 2d 376, 384, 556 N.W.2d 756 (Ct. App. 1996). The Wisconsin Court of Appeals has interpreted the first factor to mean that people in custody cannot seek a writ of error coram nobis because, if they are, Wis. Stat. § 974.06 provides them a remedy. Id. Additionally, the requirement that the error has not previously been visited precludes most errors because attorneys are quick to bring important errors to the court’s attention through various avenues such as objections and post-conviction motions.
In Colorado, the writ of error coram nobis is perhaps even more rare. The Colorado Supreme Court once described this writ as “ancient . . . almost obsolete.” Hackett v. People, 406 P.2d 331, 158 Colo. 304 (Colo., 1965). The Hackett court explained that litigants should instead seek relief through a motion to set aside judgment.
Due to the limited scope of a writ of error coram nobis, this remedy is extremely rare. In most cases, an alternative post-conviction remedy will better serve a persons needs. To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).