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Important Notes...

Introduction to Appeals by Todd James:  

There is no such thing as a “perfect” trial

No one is guaranteed a “perfect” trial, only one that is “fundamentally fair”.  Errors occur before, during and even after trial in every legal case.  The fact that errors occurred or that your attorney did not do certain things will not necessarily reverse a conviction.  Many times, the Appellate Courts will determine the errors were “harmless” or attorney action/non-action was “trial strategy” which will not be second-guessed by the Appellate Court.  It is only when error or actions of the trial counsel were “prejudicial” to the Defendant to a degree that would undermine the verdict will the Appellate Court reverse a conviction.  It is a high hurdle to jump for any Defendant. The critical thing is finding the proper issues/errors that could overturn a conviction and developing the issue or issues into a legal argument that will show your trial was fundamentally unfair or that you were prejudiced by the error to such a degree that your conviction is not trustworthy.

It is important to note that most appeals are not based on whether you are innocent or guilty.  Most appeals are not the arena to argue “actual innocence” (there are a few states which allow that argument in post-conviction relief petitions).   The issue in most appeals is whether you had a constitutionally “fair” trial according to the standards of the appellate judges (most of whom are former prosecutors).  Since the “system” is geared towards upholding convictions (“finality”) and the fact that most of the persons who make the appellate decisions have a pro-prosecution mind-set-----it is no wonder that only a small percentage of convictions are overturned and remanded for a new trial.  That does not mean it is impossible, rather it is difficult and the odds are against you.  Anyone who tells you otherwise or who tells you that they get “most” convictions overturned are lying to you.

If you have exhausted your direct appeals and post-conviction relief avenues, your only recourse may be in a “Motion for New Trial Based Upon Newly Discovered Evidence”.  This newly discovered evidence must have not been discoverable before by “due diligence” and must be of such a nature that a “reasonable” jury would not have convicted you.  This is a very high hurdle to overcome, especially when there is no set definition of “due diligence” or a “reasonable” jury.  In most situations, a newly discovered evidence motion would be based upon one of the following:

1. DNA that was/is available that excludes you as the perpetrator.  Since most child sex abuse cases do not involve DNA evidence, DNA testing probably will not be of any benefit in most child sex cases.

2. A recantation by the alleged victim(s) with supporting evidence to show why the recantation should be believed (is the truth) as opposed to what the alleged victim(s) testified to at trial (which the Prosecutor will argue is the “real truth”).  Appellate Courts view recantations with the ‘utmost suspicion’.

3. New medical/scientific testing or research that provides a medical explanation for injuries a child received or provides an explanation for the child’s illness.  Understand, of course, that the prosecution may still fight the new explanation with it’s own medical experts (there are significant differences of opinions within the medical community as to causation of injuries and sicknesses).

Over the past 14 years, I have reviewed hundreds of appeals cases and, in the process, have been able to digest the various approaches and legal arguments that have been utilized by hundreds of different lawyers.  It is my opinion that most appeals overlook viable issues and have a tendency to raise issues that have virtually no chance of being successful.  For example, “manifest weight of the evidence” and “sufficiency of the evidence” arguments have virtually no chance of overturning the conviction.  If those are the main issues in an appeal, the chances of winning are “slim to none”.  If those issues are raised in a collateral role of trying to help frame the mind-set of the appellate judges for a viable issue, then there may be a place in your appeal for them.  Remember, an alleged victim’s testimony if believed by the trier of fact is sufficient to convict someone (irregardless if the alleged victim’s pre-trial statements and trial testimony are contradictory).

Many appellate attorneys who are doing a direct appeal will often tell you that they are only interested in reading the transcripts of the trial (some may also include the ‘hearing transcripts’).  Many of them will not want to obtain and review the original attorney file since it is not ‘part of the record’.    Keeping in mind that in virtually every case, Prosecutors fail to provide the defendant with all favorable or exculpatory evidence (evidence of innocence) that they have, for an appeals attorney not to review the original attorney file is plainly wrong.  Brady material (favorable and/or exculpatory evidence) can many times be gleened from materials that were in the original case file.  For example, the original trial attorney may have been provided statements or reports that could indicate that prior interviews were conducted with an alleged victim or important witness.  The Prosecution did not provide the prior interviews because he/she did not feel or believe that the prior interviews were “favorable” to the defendant.  Yet, those prior interviews could have been the evidence to show changes in the alleged victims story, contradictions with a witness’ trial testimony, and so on.  Since the majority of sexual abuse convictions hinge on the credibility of the accuser, any evidence that discredits the accusers credibility could have impacted the verdict.  While many appellate attorneys would argue that these are “post-conviction issues”, we would submit that they could provide support, for example, of ineffective assistance of counsel on the direct appeal.

A couple of years ago, I had a lawyer who specializes in appeals (and who was working on a direct appeal) indignantly tell me that the failure to call an expert for the defense was not an issue for direct appeal and could only be raised  during post-conviction proceedings.  After I had sent him my written input on  potential issues, he stopped taking my phone calls and would not return my messages.  His client’s conviction was not overturned.  His client has 20+ years to go on his sentence.

At the same time, another attorney on a different case took the suggestion and raised the issue on a direct appeal (State v. Henderson 2002 WL 31744702, Ohio App. 11 Dist.).  Mr. Henderson’s conviction was overturned for ineffective counsel due to the failure of the trial attorney to call an expert to testify in that case.

You will hear contradictory advice when it comes to any legal matter.  People, quite simply, look at things differently based upon their belief systems, education and life experiences.  Doctors disagree with one another.  Lawyers disagree with one another.  ….and lawyers have a tendency to especially disagree with non-lawyers.  Some call it “lawyer ego”.   Some call it a “cover-up of in-competency”.  Others call it “other things”.  The smartest and most successful lawyers are the ones who remain open-minded, are willing to consider input from other sources, and willing to incorporate those suggestions that have merit.  Lawyers who want to play “lone ranger” and won’t listen to a different perspective normally are not very successful.