The client came to us after he had already been found guilty beyond all reasonable doubt by a jury.

He had been accused of violating a no-contact order.  He wasn’t being disruptive or violent, but was simply sleeping in the same house as someone who he wasn’t permitted to be near.  The client, though he had the means to hire a private lawyer, had chosen to use a public defender for his defense.  The jury found him guilty after a short trial.  By the time he contacted us, he already had a lot of bad things that had happened to him because of the conviction.  He had spent time in jail, made to pay costly fines, and was now under the thumb of the court’s probation department for the next five years.  Wasn’t there anything that could be done about this harsh punishment?

Anyone convicted of a crime has a right to appeal the case to a higher court.  It’s not often an immediate focus of ours when a client walks through our door.  Obviously, we are trying to win the case for the client at the trial level first.  

But when you practice in trial work, as well as appeals, as our office does, you gain a bit of a different perspective.  As you prepare a case for a trial, you also need to think about what issues are likely to be the best for a chance of success on appeal.  I like to call it the process of “laying the little land mines” that aren’t needed to win at trial, but could blow the case up (in a good way) for the client on appeal, if needed.

This is one of the reasons why I always prefer to take a case before it has gone to trial, if possible.  Controlling the strategy of a case from the outset, in consultation with the client, we can plan for both a short term skirmish in court, as well as a long term war of attrition, if it comes to that.

But, sometimes it doesn’t work out that way.  Sometimes, a client comes in after they’ve already suffered a huge defeat at trial, like our client above.  Then the question becomes, what legal errors occurred at trial, and what are the strongest arguments to win the case on appeal?  Every trial has legal errors, and I mean every trial.  But some are “harmless” errors – something that was definitely done incorrectly, but that doesn’t change the outcome of the case.  An example of this might be something as simple as a typo on one of the jury’s instructions.  Or maybe a witness testified to something that was improper but not very prejudicial to the client.  In cases of harmless error, the appeals judge will acknowledge it should have been done correctly, but will also find that it doesn’t change the outcome (of a guilty verdict against the client).

So we need more than things like that.  What we need is structural error.  This means a problem that rendered the entire proceeding so unfair that the only solution is to give the client a new trial.  The best errors are constitutional in nature.  Any time a mistake is made that implicates a person’s constitutional rights, the appeals courts are much more receptive to giving that person a new trial.  

There are also times when an appeal can result in the complete dismissal of a case.  Usually these types of cases occur where the trial court made a bad ruling about admissibility of evidence, for example.

When our client came to us, the first thing we had to do was determine exactly what happened at the trial.  For that, we ordered a complete transcript of the case.  We were able to read every word that was said by every lawyer, witness, judge and juror.

The case on its face appeared rock solid.  The public defender did a competent job, with one exception.  Because the government charged our client with violating a no contact order, it had to prove who the person was that the client was supposedly contacting in violation of the order.  Normally, this is a very simple thing to do – the prosecutor will simply call the protected party to testify.  The witness will then tell the jury that they were the subject of the order, and that the client (the defendant) violated the order by being near them, or talking to them, or any number of other ways a no contact order can be violated.  Simple stuff.

But in our client’s case, the problem for the government was that the person protected by the order refused to testify in the case.  So how could the prosecutor prove that the client violated the order against a person without having that person testify?  The prosecutor tried a clever tactic – she called the investigating police officer to the witness stand, and had him tell the jury the name of the person he made contact with, who also happened to be the protected party.  The defense lawyer didn’t object to this procedure, and the jury heard the whole thing.  It only took a few minutes for them to return a verdict of guilty.

Only problem was, the procedure of the prosecutor, while clever, was totally against the law.  Calling one witness to tell the jury something another witness told them is the definition of hearsay.  And while there are lots of exceptions to the hearsay rule, this wasn’t one of them.  It was improper for the prosecutor to try that, and it was a big mistake for the client’s lawyer to fail to object.

Once we saw these problems, we were able to frame the appeal around this structural error.  The appellate court agreed, and reversed the client’s conviction, and awarded the client a new trial.  As an added bonus, because the case was both weak and old (especially now after winding its way through the appeals process) the prosecutor declined to try the case again before a new jury.  

As a result of careful and experienced lawyering on appeal, the client’s liberty was preserved, his record cleared, and his case closed once and for all.  But if we wouldn’t have kept fighting, his conviction, which was obtained by the prosecutor through improper methods, would have stood.  That would have been unjust.

The right to appeal is one of the most important rights you have.  When you’re our client, we won’t stop fighting for you.  When you bring us on board, we’ll be in it for the long haul with you.

-Derek
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