Reversing Wrongful Convictions
Our Step-by-Step Procedures
Provided by Allen N. Cowling
In order to fully understand exactly what we do when
retained to assist someone who is attempting to reverse a conviction, you must first have some
knowledge of overall post-conviction relief, how it works and what is available. This information is
detailed below, as is a small section devoted to a plea agreement. Although anyone who does accept a
plea automatically voids all of their rights to post-conviction relief, I am covering that issue simply
because, on rare occasions, a plea agreement can be set aside.
Post Conviction Issues
Plea Agreements
- Why would anyone, who is innocent of a crime, be willing to accept
a plea agreement where they freely admit that they are guilty when they are not? Boggles the mind,
but unfortunately, it happens very frequently. Although the reasons for this are numerous, they may
include not being in a financial position to fight the charges or they may have been pressured by
the threat of a long prison sentence if convicted. Many times, a plea becomes an issue and a
reality when a court-appointed attorney is involved. They usually do not have the time nor
resources available for such an involved and intense criminal defense. The prosecutor knows this,
so the State makes what appears to be an attractive offer. The fact is, a plea is a win for
everyone, except the accused. For the prosecutor, they get a conviction, it is off their calendar
and they can move on to other cases. The same holds true for many defense attorneys as well. There
is a minimum amount of effort involved and, obviously, there is far less work involved than
preparing for or going through a trial.
- One real danger to watch for and carefully consider is, some
defense attorneys become obsessed with their client accepting a plea. When that does happen, and
since the attorney honestly believes the plea will be taken, rarely do they ever have any defense
prepared. Think about it. Why go to the trouble to prepare a defense when you know your client will
take a plea? The problem is, on occasion, the client will wait until the last possible minute and
decide to fight the charges. When they make that decision, look for pressure from every angle. The
State may threaten to bring more charges or the defense attorney may do everything in their power
to make the plea appear to be no big deal. Defense attorneys may attempt to tell their client that,
under the agreement, they are not admitting guilt. They are simply acknowledging that the State
does have a case and they are choosing not to fight it but, regardless of how a plea agreement is
named, styled or structured, the accused is admitting guilt and, most probably, they were never
really warned about the overall consequences. Usually, they are not told that they must register as
a sex offender, that they will not be allowed around children, that, more than likely, they will be
required to successfully complete a sexual abuse treatment program, that they are opening
themselves up to civil suits by the "victim," or that it will affect the rest of their
life.
- Most plea bargains that I have seen were accepted when an accused
was told that they could not successfully defend the charges against them at trial, that they
probably would be convicted and that they could easily go to prison for years and, in some cases,
life. When they are presented with an opportunity of no prison time, or far less than they would
have gotten if found guilty, that easily pressures many of them into accepting the "easy"
way out.
- In one of our prior cases, my client was "accused" of
showering with his step-daughter. He retained a very expensive, high profile criminal defense firm
and they patiently waited for the State to complete their work so they would know what they were
facing. One month later, my client was hit with 14 separate indictments; 2 for rape and 12 for GSI
(gross sexual imposition). At that time, the advice from my client's "high profile"
law firm was to accept an 8-year plea agreement. If he refused, he would be convicted and spend the
rest of his life in prison, with no possibility of parole. In that case, the client refused to
accept a plea, retained new counsel and, following a three-week trial, was acquitted on all
charges. That, in itself, was a miracle because most juries will convict on multiple indictments.
Their reasoning is, "We really don't believe that he really did this, but there are so
many charges, he must have done something wrong," so they find them guilty on a minor issue.
In this case, the man simply refused to accept the 8 years being offered. Yes, he gambled with his
life, but the fact is, he won and his nightmare ended.
- As another example of someone who did accept a plea, a man was told
that he would face 20 years if convicted and that he would serve no time under his plea agreement.
He accepted it and, immediately upon doing so, was ordered out of his own home. He was not allowed
around any children, his own included. He was never told that prior to accepting his
plea.
- In another case, a man accepted the "easy" plea and found
that, as part of the agreement, he had to successfully complete a sexual abuse treatment program.
As a part of that program, he was required to admit wrong doing. In that he had done nothing wrong,
he refused to admit that he had. At that point, he was told that he was in "denial," told
that he had violated the terms of his plea agreement by failing to successfully complete the
program and then incarcerated.
- In still another case, shortly after accepting his plea, the
accused had several civil lawsuits filed against him. In each case, their was no question of
"wrong doing," That issue was resolved when he accepted a plea. The only issue for a jury
was to decide the amount of the award the "victim" was entitled to.
- In every case where I have seen a plea bargain, the accused was
scared, believed that they were doing the right thing when they accepted it but, shortly
thereafter, determined that it was a fatal mistake and they begin to look for ways to have their
plea set aside.
- Setting aside a plea, in most cases, is far more difficult than
reversing a conviction, for the simple reason that the accused, most probably, stood before a
judge, was carefully questioned as to the fact that they knew exactly what they were doing and that
they were not accepting a plea because of any threats or coercion. They were even asked if they
understood that the judge did not have to follow the guidelines set out by the prosecutor as to
sentencing. Although most judges do follow a prosecutor's recommendations, there is no
guarantee and there have been cases where an accused thought they would receive a light sentence,
or even probation, yet the judge sentenced them to as much as 25 years. In some jurisdictions, if
that happened, the accused would be entitled to withdraw their plea, but that is not always the
case.
- Even in some cases where an accused accepted a plea, steps can be
taken to have it set aside. In United States v. Timmins, 9th Cir. No. 00-30224 (7/17/02) the court
remanded a case for a hearing on whether the defendant could have rationally decided to reject a
plea offer in light of overwhelming evidence of guilt and still be competent to stand trial. The
Court held that a defendant, who is unable to give rational consideration to a plea bargain offered
by the government, is unable to assist his attorneys at trial and is, therefore, presumed
incompetent to stand trial. A psychiatrist and a psychologist testified that the defendant's
refusal to accept the plea deal was a result of his psychosis and delusional paranoia. Even though
the defendant understood the nature of the charges and understood the trial process, he was unable
to assist counsel because of his mental illness. The Court noted that "inability to accept a
favorable plea agreement, in rational terms, fundamentally impairs the ability to assist properly
in one's defense." That could also be true in individuals who did accept a plea. Was the
accused emotionally and psychologically able to make the decision they did when they accepted the
plea? If a plea is set aside, as with any conviction that is reversed, the accused will normally
find themselves right back at square one; facing trial and a possible conviction. Unless the
accused is properly prepared to successfully defend and prove innocence, they may be jumping from
the frying pan directly into the fire, so consider all options carefully.
Motion for New Trial
- When anyone is convicted, shortly thereafter, it is normal practice
for the defense attorney to file a motion for a new trial. Obviously the person who was convicted
and their family are very happy, not knowing that this is usually standard practice and rarely does
this motion carry any weight whatsoever.
Notice of Appeal
- In order for anyone to file an appeal, they must first file a
"Notice of Appeal," and this is usually done within so many days, (normally 30), after
sentencing and not after conviction. This "Notice" is "not" the appeal, but
simply a notice to the Court that you intend on filing an appeal. The "Notice of Appeal"
actually begins what is called post-conviction relief.
- If someone "forgets," or simply fails to file the
"Notice of Appeal," the person who was convicted will then be barred from filing an
Appeal Brief. They will also have voided most of their post-conviction relief, so it is vital to
assure that the notice was filed. To determine this, anyone can call the local Court Clerk and ask
whether or not it was done. In some cases, after sentencing, the defendant has no attorney. In some
states, an appeal is a guaranteed right and the Court assigns an attorney, however, in other
states, it is not a right and everything will depend on filing notices and petitions in a timely
manner. In some cases, when a defendant has no attorney, they may file the "Notice of
Appeal" themselves, Pro Se, so at least it does get filed.
- In some cases, where a "Notice of Appeal" is filed and
the defendant is being properly represented, the attorney may file a motion to allow the defendant
to remain free on bond pending the outcome of the appeal. It is rare, but it does happen and it is
certainly worth asking for. If it is granted, the defendant does remain free during the appeal
process, but surrenders and begins their sentence if their conviction is affirmed.
Appeal Attorney
- Following a conviction, normally everyone wants to file an appeal
and many elect to have the attorney who defended them at trial prepare the brief. That is a serious
mistake. In most cases of wrongful conviction where a false allegation of child sexual abuse was
made, the real problem rested with the defense attorney. If that is true, there is a
"Constitutional" issue, "ineffective assistance of counsel." It is almost
impossible to imagine that the defense attorney, who then prepares an Appeal Brief, will admit that
they were ineffective. The problem is, if ineffective assistance does exist and it is not addressed
in the direct appeal, you will be barred from raising that same issue in later petitions, should
the appeal fail. The Courts will usually state, "Since the issue of ineffective assistance was
not raised at trial level, or in direct appeal, we will not consider it now, except for plain
error." The point is, do not have the trial attorney prepare the appeal brief, nor should you
have someone in their firm, or who is a friend of theirs do it. Find an unbiased attorney who is
not afraid to properly address ineffective assistance. In one case, in a state where an appeal was
a guaranteed right, the Court appointed an attorney to prepare and file the brief. Although there
were numerous ineffective assistance issues, that attorney absolutely refused to address any of
them because he "knew" the defense attorney who had handled the case.
Appeal Brief
- Most people automatically rely on an appeal, mainly because that is
all they have ever heard about, but they really have no idea what it is or how it actually works.
An appeal is nothing more than the higher court analyzing the trial transcript to determine if
there were significant errors made during trial that would have prevented the Appellant from
receiving a fair trial. In simple terms, the Supreme Court or the Court of Appeals gets only the
transcript of the trial itself. They are not concerned with any issue, regardless of what it is,
that took place pre-trial, or even during trial, unless that issue is a part of the record. An
error would amount to the trial Court overruling an "objection" to some issue, made by
the defense during trial, where that ruling was improper and resulted in the Appellant's
inability to receive a fair trial. For example, in a child sex abuse case, if an "expert"
psychologist testified that the accusing child matched the profile of a molested child, the defense
objected to that testimony and the Court overruled that objection, that, in itself, would probably
constitute "reversible error." There is no recognized "profile" of a molested
child in the scientific community. It does not exist and for the psychologist to make that
statement serves only to "bolster" the credibility of the child accuser's testimony
and it actually amounts to giving false and misleading information to the jury. Since that
psychologist was probably admitted as an expert, that testimony would weigh heavily on any opinion
the jury may reach, especially since the "expert" just told them the child was a molested
child. That was improper and, without question, in most cases, the high Court would reverse in
favor of a new trial. In realty, that testimony prevented the Appellant from receiving a fair
trial.
- Now, the tricky part. In the above example, let's say the
psychologist gave the same testimony, but the defense did not make any objection. Because there was
no objection, the high Court had nothing to rule on and the testimony stood. It was still improper,
it would have been reversible error had the defense made an objection, but since the attorney did
not object, for the purpose of the appeal, it would not be an issue. For the high Court to find
fault, the defense must have objected, in a timely manner, the trial Court must have overruled that
objection and the issue itself would have prevented the accused from receiving a fair trial. In
short, if the trial attorney was ineffective and made no objections, the high Court has nothing to
rule on, the conviction is affirmed and the appeal accomplished nothing.
- As to procedure, once the "Notice of Appeal" is filed,
the appeal attorney waits for the trial transcript and, depending on the length of the trial, that
could be weeks or months. Once the attorney has the transcript, they prepare the Appeal Brief and
that can easily take months. Once prepared, the brief is filed and it can easily be a year or more
before the higher Court makes their decision. In reality, 2 years can actually pass before an
appeal decision is received.
Conviction Affirmed
- If the Appeals Court or the Supreme Court does affirm the
conviction, in many cases, that ends all attempts for a reversal because most people are unaware
that there are other avenues available. If the appeal was strong, a Petition for Writ of Certiorari
can be filed, asking another Court, State or Federal, to review the opinion of the Court that
affirmed the conviction. If you are asking the Federal Court to review, you must have addressed
issues that would be a violation of the Appellant's Constitutional Rights. Constitutional
Rights could be ineffective assistance of counsel or prosecutorial misconduct. The fact is, a State
Court can hear all issues raised, including constitutional, but the Federal Courts hear only
constitutional matters.
Conviction Reversed
- If the Appeals Court or Supreme Court does reverse the conviction,
the Appellant will get a new trial and they actually go right back to square one as if nothing had
ever happened. They must defend themselves at a new trial and face the possibility of a second
conviction.
Petition for Writ of Habeas Corpus
- Without question, this is the "great" writ. It can be
filed with any Court and it simply says that, "I am being held unconstitutionally."
"Bring me before you, allow me to present my case, reverse my conviction and grant me a new
trial."
- Unlike an Appeal Brief, you are not restricted to anything when
filing a Habeas Petition, "with the exception of ineffective assistance of counsel or
prosecutorial misconduct, unless those issues were raised at the trial level or in the Direct
Appeal." Basically, you can address any other issue, pre-trial or other wise.
- A Habeas is the perfect vehicle to raise ineffective assistance of
counsel and it provides an excellent method of identifying the totality of what was wrong, but
again, it can be used only when the issue was raised on Direct Appeal. Again, this is the reason
that I tell people to assure that at least the issue was raised on Direct Appeal. It may amount to
nothing at all in that particular petition, but since it was raised, you will not be barred from
raising it in a Habeas or any other petition at a later time. Also, as I have stated, ineffective
assistance is a violation of one's Constitutional Rights. It is a constitutional issue and,
therefore, allows you to appeal a denied Habeas to the Federal Courts.
- Never lose sight of the fact that, although the Habeas is an
excellent tool, it is only a request to have a conviction set aside. It does not and will not
destroy the charges, nor the desire for the State to convict.
- Two excellent examples of successful Habeas Petitions are seen in
the New Jersey case, Margaret Kelly Michaels and in a Bakersfield, California case, the Niffins. In
both of these cases, the people who were convicted went through an unsuccessful appeal process, but
both cases were reversed on Petition for Writ of Habeas Corpus. Also, in both of those cases,
nothing was ever accomplished until two attorneys decided enough was enough, went to work, prepared
and then presented petitions that were nothing short of perfection. In both cases, those attorneys
refused to listen to "What cannot be done." Their dedication, caring and desire are
unsurpassed.
Our Step-by-Step Procedure
Most unfortunately, when a family member, or even a
friend of someone who has been convicted, is attempting to assist them in getting the conviction
reversed, they have no real understanding that they are facing a monumental task. Usually, they are
operating on emotion and look for instant solutions and shortcuts. Simply put, they want them
"out" now. It just does not work that way. The sad part is, that type of assistance will
normally accomplish nothing other than giving the prisoner a false hope.
The reality is, before anything can be done, certain
steps must be taken. First, you must identify the specific reasons for the conviction and that is
accomplished only after a careful and thorough analysis of the entire case history. Once an analysis is
complete, only then are you in a position to develop a strategy as to what can be accomplished and, to
do that, you must have some knowledge of overall post conviction relief, as I outlined
above.
The following identifies the specific steps I take when
approaching any case of this nature. I fully explain this, mainly so there will be absolutely no
misunderstanding and also, so that no client will ever believe that the first step will accomplish
anything more than possibly "identifying" the problem. Unfortunately, some people honestly
believe that an initial analysis will actually reverse the conviction and immediately bring their loved
one home. Nothing could be further from the truth.
Phase One
- In phase one, after I discuss the case with the client and assure
that all trial transcripts, records, reports, interview transcripts, motions and discovery from the
original defense attorney are available, I schedule an initial trip to the location where the
conviction took place. The initial trip normally averages between 7 and 9 days and depends entirely
on the amount of material that I have to cover. You must be realistic about the number of days
involved. I have had clients who stated they had only a few documents, did not need more than 5
days, but when I arrived, they presented me with boxes of material. In those cases, I spent the
available time that I had going through as much material as I possibly could, but it was far less
that what I was presented with. As a result, the report they were given fell far short of a total
analysis . In several of those cases, the client wanted me to return and complete the task. I did,
but it was several months later, because of my schedule and the cost of the two trips was far more
expensive than the initial trip would have been using an adequate number of days.
- Obtaining the records may not be an easy task, especially if the
defense attorney is concerned about legal malpractice issues. In some cases, the attorney may
provide the family with the case file and, in other cases, the attorney may tell the family they
were not the client and they are not entitled to the file. The client, however, is entitled to
their file and it may be necessary for them to write a letter to their attorney, requesting it. If
that does not work, the person who was convicted may consider filing a bar complaint, asking for
assistance in obtaining the file.
- During my initial trip, I meet with the client, or their family and
obtain all the case history documentation they have. If necessary, I will also have access to the
local court files as well.
- I begin by making a careful, thorough and detailed analysis of the
case by reviewing all hearing and trial transcripts, any appeals or other post conviction petitions
and all discovery that was obtained by the defense. Following that analysis, I attempt to identify
the specific reasons for the conviction. This can include ineffective assistance of counsel,
judicial misconduct, prosecutorial misconduct or even pre-trial issues, such as the manner in which
the accused was interviewed by police. I look carefully at what the defense did do, what they did
not do and what they should have done. The fact is, when someone was wrongfully convicted,
obviously, there was a problem somewhere and that problem must be identified.
- In looking at the case, I want to know exactly what discovery the
defense was entitled to but never got, or what they got that no one paid attention to. As a perfect
example, say I am examining a Department of Children and Family Services' document and it
refers to an interview that the department conducted with a child accuser that was videotaped, yet
the defense never received the tape. Here, failure to acquire that tape may be a defense or a
prosecution error. The prosecution may claim that they did not have the DCFS tape and that the
defense should have subpoenaed it directly from the department. The prosecution could also use an
excuse that the defense is not entitled to confidential DCFS records. The defense error may result
from the fact that the attorney did not read or pay attention to the other discovery they did have
and never realized that the tape even existed. I have seen that happen more than once. Now, if the
defense is aware of the tape, and it is not provided by the State, they should file a Motion to
Compel to force the State to comply with all discovery the defense is entitled to. If DCFS or the
State's position is that the records are confidential and the defense is not entitled to them,
the defense should file a Motion for In-camera Inspection. This motion asks the Court to review the
file and turn over to the defense any and all evidence they are entitled to.
- One thing I am very interested in is the history of any involvement
on the part of the Department of Social Services. Although it has many names, DFS, DYFS or DCFS, it
is still the same group that you are dealing with and, in most cases, where allegations of sexual
abuse have been made and a family member is the suspected perpetrator, they were
involved.
- The problem is, most of the individuals within these agencies are
usually arrogant, egotistical and non-educated, on a power trip and could care less about what is
really in the best interest of any child. If a DFS investigator, assigned to a case of suspected
child abuse, does just enough background to establish a preconceived idea of guilt on the part of
the accused, they suddenly become "validators" and look for nothing that could even
remotely suggest the possibility that the allegation is false and the accused is actually innocent.
So what issue, or issues, does the investigator normally address that convinces them that the
alleged perpetrator is guilty? Usually nothing more than a statement from the child and it never
seems to occur to anyone that the child could be lying. Why? Because everyone knows that no child
would ever lie about anything that serious. Sure, they may tell other lies, but not when it comes
to personally being sexually molested. So, the child said it happened, the investigator knows it
happened and from that point on, only evidence that supports the allegation is entertained. The
child is the "victim," the accused is the perpetrator and the words suspected and/or
alleged are never an issue at all. Many times, involvement by this department has resulted in a
wrongful conviction, so everything they have done, specific to the case, must be carefully
reviewed.
- I also look at everything that took place, prior to trial. We all
know what Miranda Rights are. We see it on television daily. "You have the right to remain
silent and, if you give up that right, everything you say can and will be used against you."
"You have the right to have an attorney present during questioning." These rights were
made to protect us but, as with most things, there are those individuals who try to "get
around it." As a perfect example, in one conviction, the accused "confessed" and
that confession was used against them at trial. Amazingly, there was not even an objection from the
defense attorney and, further more, the defense attorney had actually "praised" the
investigator's efforts during opening statements. The fact is, that confession was improper,
should never have been allowed and certainly prevented my client from receiving a fair trial. How?
The investigator used a little-known trick that appears to be surfacing around the country. He
asked my client to come in for an interview. He told my client it was voluntary and that he was
free to leave. The investigator then proceeded to tell my client he had done what the child claimed
and that it would go better on him if he admitted the truth. My client denied any wrong doing, but
that was immediately shot down by the investigator. After approximately 4 hours of intensive
"interrogation" my client told the investigator what he wanted to hear. It was then audio
taped and my client was allowed to leave. The following day, the investigator called the client
back in, read him his Miranda Rights, told him he was being charged and arrested and then asked my
client if he would like to write a "letter of apology" for his actions. The investigator
was smart enough to know that if the defense attorney objected to the initial interview, without
Miranda, that the "letter of apology" written on the second day, after Miranda Rights
were given, should stand. Unfortunately, since the defense attorney failed to object to anything,
it all went in. In that case, there were two issues; ineffective assistance for failing to object
to an improper interview and confession and, an improper confession that resulted in a conviction.
You have to look carefully at everything.
- I want to carefully review all medical records. There are cases
where a young girl has alleged repeated penile penetration, yet medical records identified that her
hymen is fully intact. There are cases where colposcopic photographs were taken of a child's
hymen, a "notch" was identified that "verified" abuse, yet the defense failed
to call any expert who could have clearly testified that the "notch" was perfectly
normal. In addition, I have seen so many medical reports that state, "No sign of trauma, but
consistent with abuse." The fact is, in most cases of alleged child sexual abuse there is no
corroborating medical evidence whatsoever, so the question should be, "Isn't it ALSO
consistent with non-abuse?"
-
In addition to the above, I want to identify, review and/or
analyze:
- The amount of time between the arrest and the time the defense
attorney was retained and exactly what transpired during that period.
- Exactly when was a Motion for Discovery, or a Brady Motion
filed by the defense and the date that the State complied.
- The defense's actions if the State failed to provide proper
discovery.
- The amount of time between the time that the defense attorney
was retained and the preliminary hearing, if there was one and, if so, then the amount of time
between the preliminary and trial and identify exactly what the defense did and was doing
during that period.
- If there was no preliminary hearing, why, and then what was the
amount of time between the time the defense attorney was retained and the trial date and what
exactly transpired during that time period.
- The extent of any plea discussions that were conducted between
the accused and the defense attorney.
- All motions that were filed by the defense and then determine
what motions could have or should have been filed.
- Any and all experts the defense used, either at trial or during
trial preparation.
- All police, psychological, medical, DNA, social service reports
or any other documents that might identify the existence of evidence, interview notes,
transcripts and audio or video tapes that the defense failed to obtain in discovery and were
entitled to.
- The number of interviews that the child accuser was exposed to,
the specific allegations they made in each and the interview procedure that was
used.
- All hearing and/or trial witnesses and breakdown the testimony
of each.
- Witness that were called by the defense at trial, those that
should have been called and were not and the total preparation involved for those that did
testify.
- Whether or not the defendant did or did not testify and, if
they did, how exactly were they prepared.
- The jury voir dire questions that were used, written or oral,
during jury selection.
- All motions, written or oral, that were made during trial by
the defense and the prosecution.
- All objections made by the defense and the prosecution at trial
and attempt to identify those that should have been made by the defense and were
not.
- The total defense strategy to prove that the allegation was a
lie.
- The defense handling of the child accuser when they
testified.
- The total involvement on the part of the accused in their
overall defense.
- All evaluations the accused submitted to, prior to trial, and
the results of each.
- Any and all post-conviction petitions, such as the appeal
brief, motion for a new trial or a failed Petition for Writ of Habeas Corpus.
- All attorneys that were involved in the case since it began and
what each did or did not accomplish.
- Attempt and identify the motive behind the allegations in order
to begin preparing a future defense.
- As I have said throughout our website, defending a false allegation
of child sexual abuse is far different than any other criminal case and it is not uncommon to find
numerous issues of ineffective assistance of counsel, simply because the attorney was not familiar
with these cases and they never attempted to educate themselves or associate themselves with
someone who did have expertise.
- As a perfect example, in Michaels, a 1995 New Jersey Petition for
Writ of Habeas Corpus, the Court reversed on a child sexual abuse case citing many issues,
including multiple interviews of the accusing child, failure to videotape interviews, a
preconceived idea of guilt on the part of the child's interviewers and the use of leading and
suggestive questioning. The Michaels case was a landmark decision, but local attorneys, with little
or no experience defending false allegation cases, may never have heard of the Michaels
decision.
- Are leading and suggestive questions proper? Absolutely not and one
of the worst possible examples was noted in a Montana case I was involved in. The accused had been
indicted on two separate counts, fondling and digitally penetrating a young girl's vagina. He
was actually scheduled for trial two weeks from the date that I could get there and review the
case. In that case, there were several audio and videotapes where the child accuser had been
interviewed. In the initial interview, the interviewer asked the child, "Did he touch you down
there?" to which the child replied, "Yes." That was immediately followed up by,
"He didn't stick his finger in you, did he?" to which the child responded, "Yes,
he did." That was the basis for the two counts yet, amazingly, the child never made the
allegation, the interviewer did and the child simply agreed that it happened. The attorney in that
case, with absolutely no experience defending sexual allegations, had seen the tapes himself, yet
attached no importance to the issue.
- There are several avenues of Post Conviction Relief including, but
not just limited to, a Direct Appeal, but regardless of what avenue is used, if successful and the
conviction is reversed, the Appellant will be faced with a new trial and possibly a second
conviction that could result in a more rigid sentence than they received at their first trial. This
seems to amaze many people. They tend to believe that, if the conviction is reversed, the case will
simply go away. Not true.
- Again, most people are looking for shortcuts and their main concern
is to file whatever is available to get their case back into court as fast as possible. What they
do not consider is, "Okay, we got the conviction reversed, now what?" The "now
what" is the fact that they have to properly prepare their case for trial, which means having
a far better defense than they did during their first trial.
- I have heard the argument, even from attorneys, "Let's get
them out first and then worry about the defense." The fact is, a perfect defense must be
prepared or there would be no reason to believe that the outcome of the second trial would be any
different than the initial guilty verdict. What people do not understand, especially in a false
allegation of child abuse case is, when the accused is in prison, the accuser "won", and
many times they will actually gloat or brag about what they did. If the accuser learns that the
conviction was reversed and they have to go back to trial, more often than not, they become more
guarded and careful about what they say and who they say it to. A good defense is best built when
there is no "pressure," whatsoever, on the individuals who made the false allegations.
For that reason alone, and since a defense must be prepared anyway, I strongly recommend preparing
that defense quietly and prior to actually filing any petition asking for a reversal.
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A post-conviction writ can be used to establish issues that affected
the defendant's right to a fair and proper trial, conducted before a fair and impartial jury,
but it is the "Appellant's" responsibility to offer the "proof" that
would establish their claim. The argument, "My attorney was no good," simply won't
make it. Some of the issues that may be addressed include, but are not limited to:
- Presentation of newly discovered evidence.
- Proof that a conviction was based on false
evidence.
- Lack of lower court jurisdiction to try the defendant even if
such defense was not asserted in the trial court.
- Prosecutorial misconduct, a Brady Violation, which can include
suppression of material evidence by the prosecution or, on occasion, improper statements made
by the prosecutor to the jury that resulted in the denial of a fair trial.
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The conduct of trial counsel and the impact it had on a fair and
proper trial are related to ineffective assistance and the issues most commonly addressed
here are:
- Failure to conduct a proper pre-trial
investigation.
- Failure to present known witnesses.
- Failure to make proper objections and requests at
trial.
- Failure to disclose a conflict of interest.
- All of the aforementioned issues could be addressed in a Habeas
Petition, but not in an appeal brief. Before doing anything, consider this. An accused was charged,
had no defense, was convicted and ended up sitting in prison for some 3 years, only to have their
appeal denied. They filed a Habeas Petition, had their conviction reversed, got a new trial and was
convicted a second time, getting a more rigid sentence than they did at their first trial. Now,
they are back in prison. What was accomplished through all of that? In reality, what was actually
won? Absolutely nothing short of spending a small fortune so, considering that scenario, again I
say, do it properly and "prepare" a defense prior to filing the petition. In order to
properly prepare that defense, first consider what should be done initially and then compare that
to what was actually done.
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A word of caution. When an appeal brief is actually filed, most
Courts will not review any other petition until the disposition of the appeal has been
determined. Basically, "When you actually have an appeal pending, nothing else will even be
considered until that issue has been resolved, one way or the other." As I said previously,
Post Conviction Relief basically begins when the "Notice of Appeal" has been filed. The
"notice" is not the appeal, but simply a notice to the Court that you intend filing an
appeal. Again, as stated above, there could be months between the time that the "Notice of
Appeal" and the actual appeal brief is filed, and that window of time could present an
opportunity for the defendant. For example, let's say you determine that, without question,
the conviction was based solely on ineffective assistance of counsel. Simply put, there was
absolutely no defense and, without question, a proper defense would have resulted in an acquittal
for the accused. Let's further say that all the evidence that you plan to use in support of
your claim was actually based on pre-trial issues. That means that none of those issues could be
raised on direct appeal because they were not identified in the trial transcript. If the evidence
that you have is strong enough, there is a chance that some Courts will review a Habeas Petition
that was filed before the appeal brief was actually filed. Why is this important? Examine a
conviction, specific to that scenario, where the conviction was based on ineffective assistance
of counsel, in two ways:
- In the first example, a "Notice of Appeal" was filed
and then some four months later, the trial transcript was available and three months later, the
appeal brief was prepared and filed. The Court took a year to review the petition and then
affirmed the conviction because the real proof you have was not identified in the trial
transcript. After the conviction was affirmed, a Habeas was prepared, proving that the trial
outcome would probably have been different had a proper defense been prepared. Based on the
Habeas, the conviction was reversed and a new trial was ordered. In this example, it probably
took between two and three years to get a reversal.
- Now as to the second, consider that, after the "Notice of
Appeal" is filed, but before the appeal brief is actually filed, realizing that your best
argument is outside the scope of the trial transcript, a Habeas, or even a motion for a new
trial was properly prepared and filed. If any Court accepts the Habeas or motion and reverses,
you have just cut the time you spent in prison from years to months. Simply put, this is all
about strategy, but in reality, rarely done.
Phase Two
- Once the initial portion is complete, I meet with the client or
their family again to discuss my findings and recommendations. At that point, they determine if we
should go forward or if it would be in their best interest to simply retain an attorney and file a
petition.
- If my involvement does continue past the initial analysis, then I
"quietly" attempt to prepare a new defense, one that not only reverses the conviction,
but hopefully destroys the State's case at the same time. Sometimes, this is far from an easy
task, but you cannot lose sight of the fact that again, if the conviction is reversed, the accused
will face trial once again.
- Once a defense and a solid reason is identified for reversal, I
strongly recommend preparing and filing a proper petition "prior" to the time that an
appeal brief is actually filed. Keep in mind that your arguments must be precise, compelling and
each issue you address must be supported by absolute proof and evidence. Overturning any conviction
is not an easy task and the burden rests solely with the defendant.
Synopsis
- Reversing any conviction is not easy and it is an uphill battle.
The best possible advice I can give is, do it properly or do not do it at all. So many people get
involved in these cases to ease their own conscience. They cannot tell a loved one they are not
going to do something, so they do little things that amount to nothing and change nothing. I recall
one case where I made an initial three day trip to meet with the clients. They had a massive amount
of material that it would have taken weeks to properly go through. I explained our procedure
carefully and, they decided to schedule a second trip where I would actually have time to properly
go through all the material. Once I did, what I found was far from flattering to my client, but it
was the truth and it was what had happened. When it was written up in a report, the client got
furious, stated I was wasting my time and further, then claimed that the trial transcripts had been
altered. The fact was, the non-flattering material had nothing to do with the fact that he had been
falsely convicted, but when he told me I was wasting time, I refused further
involvement.
- One of the most important issues in these matters is patience,
"not" looking for shortcuts and an understanding that no "initial analysis"
will reverse any conviction. I actually had a client who believed that my initial trip and my
analysis of their material would immediately resolve their problem and bring their loved on home.
As previously stated, that just does not happen. There should be absolutely no misunderstanding.
The initial phase only deals with an attempt to identify the specific reasons for the conviction
and to develop a strategy aimed at correcting the problem.
- As to patience, I have had a case where I refused to continue. In
that case, I had a client who was attempting to get her husband released from prison. He had been
convicted of sexual abuse to a minor eight years earlier. After reviewing the trial transcripts,
his appeal brief, a miserable attempt at a Petition for Writ of Habeas Corpus along with other
documents, it became clear that proof of this man's innocense rested with two witnesses; one
adult male and one adult female. Both witnesses has been badly discredited at trial and, after 8
years, neither had much memory of the events that resulted in the conviction. Rather than taking
the time to cultivate these witnesses, the client wanted affidavits prepared immediately and a
petition filed. I refused to continue. As stated, the man already had one failed Habeas Petition
and, doing as the client requested, based on what we knew at the time, would most certainly have
resulted in a failed hearing. The sad part is, the man in prison will hang his hopes of freedom on
his wife's efforts and will most probably wind up staying exactly where he is. The fact is, I
will not shortcut when it comes to someone's freedom, especially when I know that what is
planned will not be successful.
- Normally, these cases are a jumbled mess when I walk into them.
Again, as I have repeatedly stated, the first order of business is a thorough analysis that shows,
in simple terms, what happened and only then are you in a position to determine what can be done
about it.
- In short, when I am retained to assist in a conviction reversal, I
go to the location where the conviction took place. I meet with the client or their family. I
review all material and prepare a written report of my findings and then make whatever
recommendations are necessary. After a final meeting with the client and/or their family, only then
do we determine whether my continued involvement is necessary or not. If I do continue, I do not
"shortcut," nor do I allow anything to be filed prior to assuring that it does not put
the person in prison at risk. I have a very simple outlook in these cases. When an innocent person
was wrongfully convicted, something went wrong. Determine what that was and correct it, never
losing sight of the fact that you must also plan and prepare for a future defense if the conviction
is reversed. Nothing could be worse for the accused than spending years in prison for a crime they
are not guilty of, having their conviction reversed, going through another trial, being convicted a
second time and then being sent right back to prison.
For issues concerning the sentencing hearing, the
attorney's client file and the Court's file, see Post Conviction Issues to Consider.
You have accessed one of the many pages here at the
Cowling Investigations, Inc., a False Allegation Defense Website. For an explanation of how we assist
our clients who have been falsely accused, see How I Assist the Falsely Accused. If you have
been falsely accused, see What to Do - What Not to Do When Falsely Accused.
Let me make one thing perfectly clear. I am not an
attorney and I cannot file any legal documents on anyone's behalf. My job is to attempt and
determine the reason for the conviction, look for a strategy that could result in reversing it, then
referring my findings to an attorney to complete the process.
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