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Post-Conviction Remedies
To be falsely accused of child molestation or abuse is an excruciatingly painful experience, but it cannot compare to the devastation of having one’s life utterly destroyed by a wrongful conviction and imprisonment.
The earlier you begin the appeals process, the better chance your have for possible reversal. Your best chance is starting before your sentencing hearing.
The Team Approach
Historically a person falsely accused of a crimeis represented by a trial attorney in the trial court and, if convicted, the same attorney conducts the sentencing hearing. Once the defendant is sentenced, however, another attorney specializing in appeals (called an appellate attorney) attempts in the court of appeals to correct any injustices that may have been committed during the trial by the lawyers, the judge or the jury.
While standard in procedure, this kind of specialized representation fails to provide the defendant with the full range of resources for post-trial remedies for several reasons. First, your attorney cannot be both an excellent trial lawyer and an expert in all the legal issues that qualify for appeal. Criminal appellate attorneys are not experts in all types of highly specialized cases, such a child abuse, and may not fully understand the issues or testimony involved.
If you have any hope of an appeal, you need a team of experts on both sides of the bench who can thoroughly review and assess your case for possible action.
Evaluation of Expert Testimony
During a trial, the prosecution may call a medical doctor to the stand to testify that an erythema was found on the alleged victim’s hymen and that this is proof of sexual abuse. While an experienced defense attorney in sex crimes knows that those statements are bogus and must be rebutted by scientific studies and medical witnesses, most criminal appellate attorneys would not know this. Without a knowledgeable child abuse trial attorney to evaluate testimony to spot such issues, the grounds for an appeal could be easily missed.
Evaluation of Information and Procedure
A powerful appellate team also requires an investigator who specializes in child sexual molestation and abuse cases. If, for example, the prior defense trial attorney failed to conduct an investigation that was necessary to prepare the case, vital information was not presented that may have led to an acquittal or was necessary for proper rebuttal. Failure to do so is grounds for reversal based on the incompetence of counsel. In order to correct this error, an investigation must be conducted by someone who is experienced and knowledgeable in molestation cases to determine if crucial evidence was overlooked to the detriment of the client’s defense.
Establishing the Grounds for Reversal
It is then the job of the appellate specialist to establish the legal grounds for the reversal of a case based on the information gathered by the investigator and analyzed by the trial attorney. Without all three team members-the criminal defense attorney, the investigator and the appellate specialist-someone wrongfully convicted of child abuse or molestation could easily lose his chance for a successful appeal.
While this team strategy sounds more expensive, it is actually a financially competitive alternative to the traditional appeal processes because expert advice is concentrated earlier in the process for better chances of reversal.
Pre-Sentencing Strategy: Motion for New Trial
A Motion of New Trial is the first opportunity to overturn a conviction and to have a second chance to fight the charges in front of a new judge and jury. The motion has two purposes: The first is an attempt to have the case reversed by the trial judge; and the second is to have all appealable issues raised at the trial court level before sentencing in order to pursue them later if a new trial is not ordered. It is critical that this motion is presented before sentencing so the client has the most convincing information before the judge. Furthermore, having an appeals attorney at this stage will ensure that all appellate issues will be raised in order to pursue them later should it be necessary.
What does a Motion for 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 wrongful admission or exclusion of evidence, jury instructional error, or jury misconduct. Your appellate team can conduct additional investigations to uncover the evidence needed to prove such errors. They will then prepare a written brief in which all such issues and justifications for reversal are presented and argued, supported by legal authority and the declarations of additional witnesses. In the case of judicial error, for example, a judge will rarely grant a new trial based on only mistakes he might have 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 only his mistakes.
Finally, raising all pertinent issues at this stage assures that the client’s best defense is presented and that those points are preserved for federal court review should that be required at a later date. All too often, even if the appeals court rules that an error was committed, the prosecution can claim that the defendant “waived” his right to an appeal because the issue was not first addressed before sentencing,. That means that the defendant cannot use that error as a basis for an appeal.
Judgment and Sentencing
After a defendant has been convicted he/she must be sentenced. What determines one’s sentence?
The first issue to be resolved is if the defendant is eligible for probation or if the law mandates that he serve a prison term. Even though the defendant is eligible for probation, the court is not required to grant it. The court’s decision is governed by what is called the Rules of Court that lay out the factors that a judge must consider for granting or denying probation. At this stage, your team of appellate attorneys will gather evidence to present to the judge at the sentencing hearing to support those factors that can legally be considered in granting probation. It is also an opportunity to find and present any evidence that mitigates or rebuts evidence presented by the prosecution favoring denial of probation.
In cases where the law mandates a state prison sentence, the court must determine the length of sentence to be served. Again, the trial court is governed by the Rules of Court. Once again, your appellate team has the opportunity to gather evidence that supports lessening the sentence (mitigation) as well as evidence to rebut the prosecution’s evidence that favors increasing the sentence (aggravation).
In California a judge has three sentencing options: the mitigated sentence (lessening time served), the normal sentence and the aggravated sentence (increasing time served). If there are multiple counts, the judge must decide if the sentences will run concurrently (at the same time) or consecutively (one after the other). As before, the judge’s rulings are governed by the Rules of Court. One of the major roles your appellate team plays during this stage is to ensure that the court is properly advised of the options available and the circumstances that limits 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 attorney’s input to ensure that the defendant spends the least amount of time required by the law. Every year saved at this stage is one year that a defendant does not have to spend in prison.
State Bar Certified Appellate Law Attorney
When you have been convicted of a felony sex crime, the highest quality State Bar of California Certified Appellate Lawyer provides you with the only hope of appealing your case. With four decades of experience handling sex case appeals for the defense, our firm knows how to fight a wrongful conviction.
The Innocence Legal Team has Appellate Law Lawyers for West Los Angeles appeals. The Innocence Legal Team only represents people accused of sex and physical abuse crimes and their appeals.
Contact us today for more information.