11-18-2006, 05:06 PM
My B/F has aquired an appeal lawyer, when the lawyer visitied everything that we thought would help us to get an appeal the lawyer said it wouldn't. He was told that we have to find something that either the prosecuter did wrong in presenting or something that his attorney did wrong in representing him, does anyone have any suggestions of what I would even look for?
We are hoping for an appeal, its sad even his appeal lawyer said just by reading the transcripts he can tell that he was set up.
It has to be something that is a violation of his rights or of "proper" proceedure.. In appeals it's no longer about guilt or innocence unless you can come up with evidence that wasn't presented as it wasn't allowed or evidence you didn't know about at the time... Good luck..
11-21-2006, 06:09 PM
Deb has you pointed in the right direction. I don't know if you have an appointed appellate attorney, or one that you have retained. In general, I would be a bit concerned by an appellate attorney who said that it was your job to find the issues - because basically it's their job. Perhaps he was looking for something that you might know, that wouldn't show up in court transcripts. In general, criminal appeals usually fall into one of a few "buckets:"
1. The prosecutor acted improperly during the conduct of the trial, or suppressed evidence that might have led to an acquittal.
2. Your attorney made a pretty serious mistake - by not presenting the case the right way or not holding the prosecutor to the rules. (Note that this is a common ground for an appeal, but a tough one to win - because you not only have to show that your attorney screwed up, but that basically if he HADN'T, then you wouldn't have been convicted. This is a tough thing to prove to an appellate court.)
3. Structural trial errors, including the defendant not being allowed to be present, the court room being closed to spectators when it is supposed to be open, or members of the defendant's racial group being apparently kept from being on the jury.
4. Errors in the evidence that was allowed in, although again the burden of proof ("Hey, if that didn't happen I never would have been convicted.") is high.
5. Improper police procedures during arrest, identification, or withholding access to an attorney after one has been requested. Miranda violations, etc.
The above list is over-simplified, but contains most of the things that form the grounds for an appeal. My suggestion would be to have your boyfriend start signing up for the Law Library, and start learning the basics for himself. There are plenty of folks who have a good working knowledge of Criminal Appellate Law in prisons - just watch out for the ones who want to charge.
It isn't easy to win on appeal - but it does happen. My thoughts were always to pray for the best but be prepared for the worst....