Introduction to Appeals Services by Todd James

No one is guaranteed a “perfect trial”, only one that is “fundamentally fair”. Errors occur before, during, and even after a 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. Only when errors 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. The critical thing is finding the proper issues/errors that could overturn a conviction and developing the issue(s) 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.

Most appeals are not based on whether you are innocent or guilty. They are not the arena to argue “actual innocence” (few states 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. Since the “system” is geared towards upholding convictions and the fact that most of the persons who make the appellate decisions have a pro-prosecution mind-set—– 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.

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. 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 its own medical experts (there are significant differences of opinions within the medical community as to the causation of injuries and illnesses).

Appeals Services

If you are looking for a competent appellate attorney in a child abuse case, we can try to help you locate such an attorney. We have dealt with competent attorneys in virtually every state.

We only work in cooperation with and under the auspices of appellate counsel, not in an adversarial or oversight role. We are not attorneys. We offer assistance, primarily in child abuse cases, based upon lay expertise.

We review all records and transcripts, including a copy of the attorney file and any other documents related to the case. We will not just review documents that support the defendant’s position. We need an entire set of documents.

After preliminary legal research, we will list viable appeals issues for and under the auspices of the attorney of record.

After the first consultation with the appellate attorney and seeing what issues he/she feels are viable, we will conduct in-depth legal research. Then, after consulting with the appellate attorney again, we will conduct further research and start developing the arguments in conjunction with the attorney of record for selected issues.

All writings pertaining to the brief will be conducted under attorney work-product. We work only in conjunction with and under the auspices of the attorney of record. We do not assist pro se litigants.

If the case is for post-conviction relief or motion for new trial, we will assist in obtaining the right experts for involvement and assist in compiling the proper attachments to any brief.

If oral arguments are later scheduled, we will assist the attorney in preparing for the oral arguments. We will even attempt to be present for the oral arguments.

You can assume that we will put-in a minimum of 100 hours for each step of any appeal. This will entail reviewing of all records/transcripts, legal research, and writing out arguments. We do not “cut and paste” legal cases or arguments. We do not plagiarize other appeals briefs and submit them as our work. Case law is constantly changing and every case has it’s unique set of facts to incorporate.

Since many of the legal issues raised on appeal transcend beyond child abuse cases, we occasionally will work on non-child abuse related appeals. To discuss whether we can help in your specific case, please call or have your attorney call Todd James or Kim Hart at (419)868-6016 or email Kim Hart at [email protected].

Basic Facts about Appeals

  • A low percentage of appeals are successfully overturned and remanded for a retrial.
  • The percentages for success decrease with each subsequent appeal.
  • State Supreme Courts hear less than 8% of all discretionary appeals.
  • Direct appeals are the first set of appeals after the trial. The direct appeal is designed to argue error(s) in court filings and transcripts. In most situations, you are guaranteed appellate counsel if you financially qualify as indigent for your direct appeals.
  • Post-conviction relief, PCR (some states use different terms and initials), is to argue error(s) that do not ‘appear on the record’. Generally, you are not guaranteed appointed counsel for a PCR. Additionally, many states have strict time-deadlines for filing this action that might necessitate this appeal being perfected while your direct appeal is still pending.
  • If you ever eventually file in Federal Court, you must exhaust all state remedies (including post-conviction relief) in order to ‘have standing’ to file an appeal. If you did not, the Federal Court will generally dismiss your appeal.
  • With some appeals, there is the additional cost of hiring an investigator and/or obtaining affidavits and/or hiring an expert or experts to review the case, possibly write a report, and testify if an evidentiary hearing is granted.
  • It is rare to find an attorney or expert willing to take a case “pro bono”. Attorneys who have been successful in reversing convictions are constantly bombarded with requests for free help.
  • Appeals properly done are very time-consuming. The amount of time an attorney is willing to put into a case is many times determinative of what they are paid. If a lawyer quotes an unusually low fee, be suspicious.
  • Many innocent people are in prison. The fact that the person is innocent should make the attorney work harder, but this fact will not make him/her work for free.
  • If you rely on the State to pay for your appeal, most likely you will receive minimal assistance.

To discuss whether we can help in your specific case, please call or have your attorney call Todd James or Kim Hart at (419) 868-6016 or email Kim Hart at [email protected].