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Appeals & Writs

I Have Been Wrongfully Convicted!
Is There Any Hope?

Post Conviction Remedies

To be falsely accused of child molestation or abuse is an excruciatingly painful experience, but it cannot compare to the devastation of having one’s life utterly destroyed by a wrongful conviction and imprisonment!

The Team Approach
Historically a person falsely accused of a crime is represented by a trial attorney in the trial court and, if convicted, the same attorney also conducts the sentencing hearing. Once the defendant is sentenced, however, another attorney specializing in appeals attempts in the court of appeals to correct any injustices that may have been committed during the trial by the lawyers, the judge or the jury. While standard in procedure, this kind of compartmentalized representation fails to provide the defendant with the full range of resources for post-trial remedies. Excellent trial lawyers are not experts in all the legal issues that qualify for appeal. Appellate attorneys are not experts in all types of highly specialized cases, such a child abuse.

Here is one example. During a trial, the prosecution may call a medical doctor to the stand to testify that an erythema was found on the alleged victim’s hymen and that this is proof of sexual abuse. While an experienced defense attorney knows that those statements are bogus and must be rebutted by scientific studies and medical witnesses, most appellate attorneys would not. Without a knowledgeable child abuse trial attorney to evaluate testimony to spot such issues, the grounds for an appeal could be easily missed.

A powerful appellate team also requires an investigator who specializes in child sexual molestation and abuse cases. If, for example, the prior defense trial attorney failed to conduct an investigation that WAS necessary to prepare the case, this failure could cause information that could have led to an acquittal or was necessary for proper rebuttal to not be presented on behalf of the client. Failure to do so is grounds for reversal based on the incompetence of counsel. In order to correct this error, an investigation must be conducted by someone who is experienced and knowledgeable in molestation cases to determine if crucial evidence was overlooked to the detriment of the client’s defense.

It is then the job of the appellate specialist to establish the legal grounds for the reversal of a case based on the information gathered by the investigator and analyzed by the trial attorney. Without all three team members, someone wrongfully convicted of child abuse or molestation could easily lose his chance for a successful appeal.

While such a strategy appears more expensive, it is actually a financially competitive alternative to the traditional appeal processes because timely and expert advice is concentrated earlier in the process for better chances of reversal.

Motion For New Trial
A Motion of New Trial is the first opportunity to overturn a conviction and have a second chance to fight the charges in front of a new judge and jury. The motion has two purposes: The first is an attempt to have the case reversed by the trial judge; and the second is to have all appealable issues raised pre-sentencing at the trial court level in order to pursue these issues later if a new trial is not ordered. It is critical that this motion is presented before sentencing if the client is to have the most convincing information before the judge. Furthermore, having an appeals attorney at this stage will ensure that all appellate issues will be raised in order to pursue them later should it be necessary.

What does a Motion for New Trial involve?
Your team must obtain and thoroughly review a transcript of your trial to determine what legal errors were made. Such errors include the wrongful admission or exclusion of evidence, jury instructional error, or jury misconduct. Your appellate team can conduct additional investigations to uncover the evidence needed to prove such errors and then will prepare a written brief in which all such issues and justifications for reversal are presented and argued, supported by legal authority and the declarations of additional witnesses. In the case of judicial error, for example, a judge will rarely grant a new trial based on only mistakes he might have made. However, building a comprehensive case of appellate issues increases the chances that a judge
might grant a new trial because the motion is based on a variety of issues and not only his own mistakes.

Finally, raising all pertinent issues at this stage assures that the client’s best defense is presented and that those points are preserved for federal court review should that be required at a later date. All too often, even if the appeals court has ruled that an error has been committed during trial, if that error was not raised before sentencing, The prosecution can say the defendant "waived" his right to an appeal because the issue was not first addressed in the appropriate court. That means that the defendant cannot use that error as a basis for an appeal.

Judgment And Sentencing
After a defendant has been convicted he/she must be sentenced.
What determines one’s sentence?

The first issue to be resolved is if the defendant is eligible for probation or if the law mandates that he serve a prison term. Even though the defendant is eligible for probation, the court is not required to grant it. The court’s decision is governed by what is called the Rules of Court that lay out the factors that a judge must consider for granting or denying probation. At this stage, your team of attorneys will gather evidence to present to the judge at the sentencing hearing to support those factors that can legally be considered in granting probation. It is also an opportunity to find and present any evidence that mitigates or rebuts evidence presented by the prosecution favoring denial of probation.

In cases where the law mandates a state prison commitment, the remaining issue for the court is to determine the length of the state prison sentence. Again, the trial court is governed in what constitutes an appropriate sentence by the Rules of Court. Once more, your attorneys will gather evidence that supports lessening the sentence (mitigation) as well as evidence to rebut the prosecution’s evidence that favors increasing the sentence (aggravation). In most cases in California a judge has three sentencing options: the mitigated sentence, the normal sentence and the aggravated sentence. If there are multiple counts, the judge must decide if the sentences will run concurrently (at the same time) or consecutively (one after the other). As before, the judge’s rulings are governed by the Rules of Court. One of the major roles your team plays during the sentencing hearing is to ensure that the court is properly advised of the options available and the circumstances that limits the court’s discretion. As the sentencing law of California is extremely complex and convoluted, it is important to have both the appellate and trial attorney’s input to ensure that the defendant spends the least amount of time required by the law. Every year saved at this stage is one year that a defendant does not have to spend in prison.