Wednesday, May 29, 2013

I Fought the Law and the Law Won...

Have you or a loved one already been convicted?   Do you believe the conviction was wrongful, but you are unsure what you can do?  An attorney may be able to assist you in reviewing your case.  You may appeal the conviction within a certain time, and you may also file for post-conviction relief, under certain circumstances. There are other avenues for review, including writs of habeas corpus, which are beyond the scope of this blog post.

In an appeal, an attorney may bring up certain errors in your trial that bear upon your constitutional rights.  The attorney reviewing your case should review the trial transcript and the discovery your attorney had prior to the trial, in addition to all objections and claims of error your trial attorney made on your behalf at trial.  Further, the appellate attorney should review the trial transcript and case handling for plain error.  The appellate process begins with the Indiana Court of Appeals, in state cases, and may proceed to the United States Supreme Court in rare cases.

If you have already appealed, or are outside of the time limits for appeal, you may be eligible to file a motion for post-conviction relief.  Post-conviction relief is a form of relief wherein a convicted person may challenge his or her conviction, generally, based upon Constitutional or Jurisdictional problems with the conviction; allegations the sentence levied exceeds that constitutionally allowable, is subject to attack, or has expired; or that there is new, material evidence, that was not available at the time of trial.  Post-conviction motions are also used to request DNA testing in cases where DNA evidence existed but was unable to be tested, or was not tested, at the time of trial.

One very specific ground found in many post-conviction relief motions is ineffective assistance of counsel.  This ground is based upon Article 1 Section 13 of the Indiana Constitution and the Sixth Amendment of the U.S. Constitution, guaranteeing the right to counsel in criminal proceedings.  The  standard for ineffective assistance is extremely hard to prove and requires, pursuant to a test developed in a United States Supreme Court case, Strickland v. Washington, that the attorney acted deficiently, and that said deficiency led to error.  The burden rests with the person who was convicted to show both that his counsel did not meet reasonable professional standards,  and that there is a reasonable probability that a different outcome would have resulted, had his attorney met said professional standards.  Thus, the bottom line is; it is an uphill battle to prove ineffective assistance of counsel.  However, with the right attorney, you will receive a comprehensive review of your case and forthright advice regarding what can and cannot be done, realistically, on your behalf.

Another ground frequently referred to in post-conviction cases is that of newly discovered evidence.  The ground for new evidence is rooted in the rights to Notice and Due Process pursuant to Article 1 Section 13 of the Indiana Constitution and the Fourteenth Amendment of the U.S. Constitution.   The standard for new evidence is not self explanatory.  Just because you discover something, after trial, that you did not know before, does not make it newly discovered evidence, pursuant to the standard in post-conviction relief actions. Rather, a person asserting the same must show the evidence is newly discovered and material.  The evidence must also raise a strong presumption that it would probably change the result of the trial.  Additionally, you must show the evidence could not or would not have been discovered before trial if you exercised due diligence.

I've provided an overview of some remedies you may have if you, or a loved one, fought the law, and the law won.  I then provided the harsh truth about the intricate proof problems associated with those remedies. Now, it's time for you to explore your options and contact an experienced criminal defense attorney to review your case and assist you in determining what, if any remedy you may have.  Whether you're reading this for yourself, a family member, or friend, ensure you find an attorney who will talk straight, give you the information you need, and be blunt with you regarding the available  remedies. 

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

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