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Attorney Advertising: Website content for informational and educational purposes only and should not be substituted for speaking with an attorney.  All cases are different, and past results do not guarantee future outcomes. All fees must be finalized in writing and may vary based on the circumstances of a case.

Appeals


Preservation and Harmless Error
Statute of Limitations
Ineffective Assistance of Counsel
Collateral Attack

Appellate courts overturn wrongful convictions. Sometimes, juries make mistakes and convict people of crimes that they did not commit, and judges make mistakes and apply the wrong laws. Sometimes, a conviction gets overturned because the previous lawyer failed to defend the client properly.

Usually, an appeal deals with technical legal issues. A lawyer must find mistakes from the trial or the guilty plea and write a “brief” about narrow legal issues, using previous court rulings to persuade a panel of judges. If the appeals court picks the case for oral arguments, the appellate lawyer will present the case and the judges will ask questions and decide on whether to grant a new trial. These judges carefully review the facts of a case because each decision sets a legal precedent.

The appellate process—in rare circumstances—can continue for many years through a series of state and federal courts. The higher courts choose to review a case that will clarify an area of the law and will provide guidance to lower courts. Because the higher courts handpick the cases for review, they reject thousands. Only cases with unique circumstances or unresolved legal issues continue to move upward through the court system.

To survive the selection process, a lawyer must write with expert clarity and precise detail. In two cases with almost identical sets of facts, each client's lawyer will write a brief about the same issues, yet the judges may choose one for a ruling and pass over the other. The substance and style of an appellate argument—both written and oral—influences whether the judges will hear the case and rule in the appellant’s favor.   For example, a recent successful appellate argument focused on the incorrect wording of the trial judge’s final instructions to the jury. In the brief, we clearly identified the specific mistakes in the jury instructions and compared them to defective jury instructions in other cases reviewed by the higher courts, persuading them to grant a new trial.

It takes a particular set of skills to write an appellate brief that the higher court will notice.  Poorly written, boring, and routine appeals get thrown into the slush pile.

Preservation and Harmless Error

In our system, a lawyer must “preserve” an issue to raise it during an appeal. To preserve an issue, the lawyer must object to a mistake during the trial, otherwise the appellate court cannot consider the issue—the objection is forfeited! Unless the appellate lawyer can prove that the trial lawyer was incompetent, the failure to “preserve the error” means that the client may never raise it during an appeal!

In the best-case scenario, the defendant will have the same lawyer during the trial and the appeal. Otherwise, a case will travel through different departments in the public defenders offices with different lawyers putting the pieces together. Generally, the appellate lawyers will never meet the trial lawyer or the client. A defendant should keep this in mind when deciding on both trial and appellate counsel.

A defendant also should consider that a poorly argued appeal might result in a finding of “harmless error.”  In a successful brief, a lawyer cannot just point out a mistake.  He also must convince the court that the mistake has caused a serious injustice and will set a bad precedent. Otherwise, the judges will recognize that the mistake happened but may decide to ignore it.

The appellate laws favor the government because judges and politicians want finality. Only carefully argued appeals based on clear facts and legal precedent will lead to oral arguments. Only effective oral arguments will lead to new trials or dismissals. A defendant only receives one legally required appeal.  That appeal must stand out from the thousands of others.

Statute of Limitations

In most cases, an appeal must be submitted before a deadline unless special circumstances exist. The Law Office of Adam Bevelacqua will fight an appeal at any point in either state or federal court (if possible), but a client must act within the time limits.

Ineffective Assistance of Counsel

If a previous lawyer failed to provide a basic level of competence, the guilty verdict or plea bargain may be reversed, but an appellate lawyer must present this issue to the court.  

Because the courts want finality, an ineffective assistance of counsel claim must meet a tough standard by proving that the trial lawyer made serious mistakes and that the mistakes caused harm or “prejudice” to the defendant, such as an unjust guilty verdict, a bad plea bargain, or a longer sentence. An appeal on these grounds can be difficult if the trial lawyer kept poor records or fails to cooperate with the appeal.

Depending on the case, a public defender may not present the claim of ineffective assistance of counsel, perhaps out of the fear of offending a coworker or friend sitting a few desks away.  If there is proof of ineffective counsel, the Law Office of Adam Bevelacqua will raise the issue before the appellate judges and argue for a new trial.

Bottom line: If the previous lawyer performed poorly at trial and caused the guilty verdict, the defendant may have grounds for an appeal. If the previous lawyer advised the defendant not to take a plea bargain, causing the defendant to lose a trial and receive a higher sentence, the defendant may have grounds for an appeal. The Law Office of Adam Bevelacqua will investigate and argue these claims to the appellate court.

Collateral Attack

If new evidence comes to light or a witness changes her testimony, a lawyer can present a collateral attack to the trial judge. If this new evidence meets a high standard, the judge will allow a retrial so that the defendant can introduce the new evidence to the jury. A lawyer must carefully investigate a collateral attack because many judges will resist this process, not wanting to admit that the trial might have failed, resulting in a wrongful conviction. Likewise, prosecutors hate to admit to a mistake.  Most prosecutors will try to uphold a wrongful conviction regardless of strong new evidence.  In fact, The New York Times recently reported on a series of cases where DNA conclusively proved innocence but prosecutors still argued against the evidence and kept wrongfully convicted inmates in prison for years.

Therefore, the defense lawyer and client must work together carefully to build a strong case for a new trial and to overcome the presumption of guilt.  Strategy is just as important as the new evidence.

After an unjust conviction, do not trust an impersonal lawyer or second-rate defense!  In post-conviction matters, the Law Office of Adam Bevelacqua will investigate all of the facts, follow new leads, conduct thorough legal research, and develop the best strategy for overturning a wrongful conviction.  In appeals, petitions, collateral proceedings, and other post-conviction matters, reasonable flat fees are available.

Contact the Law Office of Adam Bevelacqua at (917) 656 - 7076 or bevelacqualaw@gmail.com and speak to an appellate lawyer immediately.