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I Have Been Wrongfully Convicted! Is There Any Hope? Post Conviction Remedies Motion for New Trial | Judgment and Sentencing | Appeal | Writ of Habeas Corpus Bail On Appeal Following the judgment and sentencing phase, your attorney will file a Notice of Appeal and can also file for an application for bail pending appeal. The standards for bail on appeal are very different from the standards for bail pending trial. An appellate attorney, who is an expert in this area of law, will know how to present evidence to make the client's case for bail as strong as possible. That way, should the trial court unjustifiably deny the bail request, it can be then renewed in the Court of Appeal. Appeal An appeal is very different from trial because there is no jury and no new evidence may be presented. The appellate court can only review errors contained in the record on appeal, which is why the Motion for New Trial is so important. It is the last chance to raise appealable issues as part of the record of the trial court. The Court of Appeal determines if a legal error was committed that caused prejudice to your case. If the finding is in your favor, a new trial is warranted. The Court of Appeals does not decide if the jury made a mistake of fact in deciding your guilt. This is a common misunderstanding by the public. Your appellate case will be decided by a three-judge panel primarily on the basis of written briefs that have been filed by your team of attorneys and the prosecutor. It is critical that the attorney handling this part of your case have excellent research and writing skills as well as the ability to carefully select and frame the issues that are the most powerful and convincing. Special rules governing appellate court procedure differ greatly from those for trial court and require expert knowledge and experience to address properly. Even though an oral argument may be presented before the decision is rendered, the judges have already come to a tentative decision based on the written briefs. This appeal may be the last opportunity to overturn a conviction and ultimately regain your freedom. The skills of your attorneys are critical for this to happen. At the time of the Appeal, the trial attorney passes over the leadership of the team to the appellate attorney. The appellate attorney continues to draw on the expertise of the other members to guide the appeals attorney in selecting appropriate appellate issues and the evidence to support these issues. The trial attorney relied on the appellate attorney's expertise in setting up the trial case for appeal by using the motion for new trial to raise the issues. It is now the appellate attorney's turn to present the issues in writing. This team approach insures that all skills necessary in post-conviction stage are available to the client at all times. What are the steps in appealing your case? 1) An appeal is a multi-step process that can take many months or even years. Your team will obtain and thoroughly review the transcripts of your trial, which is the record on appeal. The attorneys also review the Superior Court file and all relevant exhibits to determine if the record on appeal is complete or if it is necessary to ask the Court of Appeal to augment it to include missing portions. 2) Once the complete record is on file at the Court of Appeal, the Opening Brief is prepared and filed. This is the key document in an appeal and sets forth succinctly yet persuasively a procedural and factual summary of the case along with carefully selected issues developed in arguments supported by appropriate legal authority. 3) The prosecution then has an opportunity to file a Respondent's Brief that addresses the specific points made in the Opening Brief. 4) After reviewing the Respondent's Brief, your attorney has a chance to file a Reply Brief. 5) After the briefing stage is complete, the Court of Appeal reviews the record and all briefs, as well as provides the parties the opportunity to request oral argument, if necessary. The presentation of the arguments takes place in front of the three-judge panel that will decide the case. 6) Once the case is finally submitted to the Court a decision follows in 90 days. 7) Should the decision be against the defendant (adverse), a Petition for Rehearing may be filed. 8) Within a given time frame following an adverse decision, a Petition for Review may be filed with the California Supreme Court requesting the higher court to consider the case. 9) If that fails, there is still the possibility of federal court review. Writs Your case may present the potential for writ relief. Most commonly, writs are used in conjunction with an appeal as a vehicle to present to the Court of Appeal any arguments based on information outside the record on appeal. A post-conviction writ can be used to establish issues that affected the defendant's rights to be properly and fairly tried, such as: • denial of the right to counsel • lack of lower court jurisdiction to try the defendant even if such defense was not asserted in the trial court • suppression of material evidence by the prosecution resulting in the denial of a fair trial (Brady violation) • presentation of newly discovered evidence • proof of a conviction that is based on false evidence • proof of an invalid or excessive sentence or invalid probation condition The conduct of the trial counsel and its
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