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The Innocence Legal Team Presents: Hope After Conviction/post Trial Remedies

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If you have just been convicted, is there any hope? The answer is yes. There are a number of potential post-conviction remedies. One is a New Trial Motion, a second is an Appeal, and the third is a Writ.


Hello, I’m Innocence Legal Team Founder and Chief Strategist. Patrick Clancy.

What is a motion for new trial?

A motion for new trial is the first opportunity to overturn a conviction and have a second chance to fight the charges in front of a new jury.


This motion is made before the trial judge before sentencing and therefore is much faster than the appeal process.


The motion has two purposes: The first is to have the case reversed by the trial judge.


The second is to raise all appealable issues at the trial court level so that they may be pursued on appeal, if necessary. The golden rule of appeals is that no issues can be raised or evidence presented in an appeal unless it was raised or presented at the trial level.


What does a motion for a 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 failure to present evidence of innocence, improper admission or exclusion of evidence, jury instruction error and jury misconduct.


Your team can conduct additional investigations to uncover evidence needed to prove such errors. They will prepare and submit a written brief of these issues and justifications for reversal along with supporting affidavits and legal authority.


A judge will rarely grant a new trial based only on mistakes he or she 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 just his or her own mistakes.


Here are three examples of errors that a trial attorney could present to the Court in a motion for new trial:


During the trial, the prosecution may call a medical doctor to the stand to testify that erythema (redness) and urethra rings were found on the alleged victim’s vaginal area, proving sexual abuse.


While an experienced defense attorney knows such testimony is bogus and must be rebutted by scientific studies and medical witnesses, most appellate attorneys might not know.


Without a knowledgeable child abuse trial attorney to evaluate testimony to spot such issues, important grounds for an appeal can easily be missed, and precluded, if not brought up in a motion for new trial.


Here’s another example: If the prior trial attorney failed to conduct a necessary investigation, information that could have led to an acquittal, or was necessary for rebuttal, may not have been presented. Such a failure could lead to a reversal based on ineffective assistance of counsel.


To correct this error, an investigation must be conducted at the trial level by someone experienced in molestation cases. If critical evidence was in fact overlooked to the detriment of the client’s defense, the new investigation can be presented in a Motion for New Trial.


A third example is a trial judge improperly instructing the jury. A judge has the duty to give necessary jury instructions sua sponte. That means, without a request by either party. Failure to give a sua sponta instruction can lead to a dismissal immediately at the trial level.


I had a case dismissed for just this reason because the judge failed to give to an instruction on the defense of mistake of fact.

What about sentencing?

After a defendant has been convicted, sentencing follows. What determines one’s sentence?


The first issue to be resolved is whether or not the defendant is eligible for probation, or if the law requires a prison term. Even if a defendant is eligible for probation, the court is not required to give it and may not grant it.


The court’s decision is governed by a set of rules that lay out the factors a judge must consider in 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 the factors that can lead to a granting of probation.


In cases where the law requires a state prison commitment, the trial court must determine the length of the state prison sentence.


Once more, your attorney will gather evidence in favor of the shortest possible sentence or what is called “mitigation” as well as evidence to rebut the prosecution’s arguments for a longer sentence known as “aggravation.”


In most cases, the judge has three sentencing options: Mitigated; Normal and Aggravated.


If there are multiple counts, the judge must decide if the sentences will run concurrently, meaning at the same time, or consecutively, meaning one followed by the other.


One of the major roles your trial team plays during the sentencing hearing, is to ensure that the court is properly advised of the options available and the circumstances that limit 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 attorneys’ input to ensure that the client receives the shortest possible sentence.


Following sentencing, your attorney will file a notice of appeal.


If a prison sentence has been imposed, your attorney can also file an application for bail pending appeal. The standards for bail on appeal are very different from the standards for bail pending trial. An expert appellate attorney will present the strongest possible evidence to make the client’s case for bail.


If the trial court unjustly denies the bail request, it can be reviewed in the court of appeal.


As previously discussed, if the evidence was not presented to the trial court, it cannot be presented on appeal. Similarly, no new issues can be raised on appeal which were not first raised in the trial court.


An appeal is very different from a trial because there is no jury and there is no new evidence presented. As previously noted, the appellate court can only review errors contained in the record on appeal which is one reason a motion for new trial is so important.


The Court of Appeal determines if a legal error was committed that caused prejudice to your case. If the finding is in your favor, a new trial is granted. The Court of Appeal does not decide if the jury made a mistake of fact in deciding your guilt. This is a common misunderstanding by the public.


The appellate case will be decided by a three judge panel, primarily on the basis of written documents called briefs that have been filed by your team of attorneys as well as the prosecutors.


It is critical that the attorney handling this part of your case have excellent research and writing skills as well as the ability to carefully select and frame the issues that are the most powerful and convincing.


Special rules governing appellate court procedures differ greatly from those of the trial court and require expert knowledge and experience to address properly.


Even though an oral argument may be presented before the decision is rendered, the appellate judges often have already come to a tentative decision based upon the written briefs. This is why it’s so important that the briefs be of top quality.


This appeal may be the last opportunity to overturn a conviction and ultimately regain your freedom. The skill of your team is critical for this to happen.


At the time of the appeal, the trial attorney passes over leadership of the case to an appellate attorney.


What are the steps in appealing your case? An appeal is a multi-step process that can take several months or even years. Your team will obtain and thoroughly review the transcript of your trial which is your record on appeal.


The attorney will also review the trial court’s files and all relevant exhibits that were introduced at trial to determine if the record on appeal is complete.


This ensures the Court of Appeal have everything it needs.


If anything is missing, the appellate attorney will move to augment the record on appeal and make sure that the missing material is sent up from the Trial Court to the Court of Appeal.


Once the complete record is on file with the Court of Appeal, the opening brief is prepared and filed.


This is the key document in an appeal. It persuasively sets forth the issues on appeal supported by arguments and legal authority along with succinct factual and procedural summaries of the case.


The prosecution then has an opportunity to file a respondent’s brief that addresses the issues raised in defendant’s opening brief. After reviewing the respondent’s brief, your attorney can file a reply brief to rebut the prosecution’s arguments.


After the briefing stage is completed, the Court of Appeal reviews the briefs along with the record on appeal. The parties may then request oral argument. The presentation of the argument takes place in front of the three judge panel that will decide the case.


Once the case is finally submitted to the Court of Appeal the decision usually follows within 90 days, but it can take longer. Should the decision be against the defendant, a petition for a rehearing may be filed to address errors of logic or law.


If rehearing is denied, a petition for review can be filed with the California Supreme Court within a given timeframe. If that fails, there is still the possibility of federal court review if there are federal or constitutional issues.

What is a Writ?

As noted earlier, no additional evidence can be added to the record on appeal. There is however, an extraordinary method of getting evidence added after the trial known as “writ relief.”


Most commonly, writs are used in conjunction with an appeal as a vehicle to present to the Court of Appeal any facts or arguments based on information that is outside of the record.


A post-conviction writ can only be used to establish issues that affect the defendant’s right to a fair trial such as: The denial of the right to effective assistance of counsel; Lack of lower court jurisdiction to try the defendant and; Suppression of material evidence by the prosecution resulting in the denial of a fair trial.


Thus, if after the case is over, it is discovered that the district attorney withheld evidence, the issue may be presented to the court of appeal in a writ.


Proof may also be introduced through a writ if an invalid or excessive sentence or probation condition was imposed.


The conduct of trial counsel and its impact on a fair trial are related to ineffective assistance of counsel claims.


The issues most commonly addressed in this kind of writ are failure to conduct a proper investigation, failure to present known and helpful witnesses, failure to make proper objections, and the failure to disclose a conflict of interest which is later discovered.

The Innocence Legal Team Provides both Trail and Appellate Counsel

The Innocence Legal Team uses both a trial attorney and an appellate attorney starting immediately after conviction. Why have two attorneys immediately?


Historically, a person charged with a crime is represented by a trial attorney in the trial and, if convicted, for the sentencing hearing. Once the defendant is sentenced, however another attorney specializing in appeals attempts to correct any injustices that may have been committed during the trial by the lawyers, the judge or the jury.


This is done in the Court of Appeal.


While one attorney for trial and sentencing and another for the appeal is typical, this practice fails to provide the client with the best chance for a successful post-trial remedy.


The Innocence Legal Team provides an experienced criminal investigator, trial attorney and appellate attorney working together as a team for the optimal chance of success.


Remember only issues and evidence presented in the trial court can be raised in the court of appeal.


Without all three members, someone wrongfully convicted of a felony could easily fail to place all issues and all evidence, especially newly discovered evidence, before the trial court. As noted above, this is done in a motion for new trial.


The use of a trial attorney ensures that all factual issues are preserved for appeal. Having an appellate attorney involved in the motion for new trial ensures that all legal issues are preserved for appeal.


If the motion for new trial is denied, the appellate attorney takes the lead in developing the opening brief. During this process, the appellate attorney can draw on the expertise of the other members in selecting appropriate appellate issues and identifying supporting evidence.


This team approach ensures the availability of all necessary skills and talents at every post-conviction stage.


Although this strategy may seem more costly, it is in fact, financially competitive with the traditional appellate process, but better because timely and expert advice is concentrated earlier in the process for a better chance of reversal.


One reason is efficiency, as the appellate attorney has already read the transcript and briefed the legal issues during the motion for new trial.


Contact us if you need an appellate attorney on a criminal case You will have both Innocence Legal Team Appellate and Trial Teams on your side.


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