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    Appeals and Writs

    Defendants who think they’ve been wrongfully convicted of a crime have a number of options. What’s Below:

    A “not guilty” verdict on all charges normally ends a criminal case. The prosecution cannot appeal once a defendant has been acquitted of the originally charged offenses and any additional offenses the judge may allow the jury to consider.

    A “guilty” verdict, however, on some or all the charges, does not necessarily mean the case is over. Defendants who think they’ve been wrongfully convicted have a number of options.

    1. The defendant can make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not guilty.
    2. A defendant can move for a new trial — that is, ask the judge to set aside the jury’s verdict, declare a mistrial and start over.
    3. Defendants can appeal (ask a higher court to reverse the conviction because the jurors made a mistake).

    What are the chances that my conviction will be reversed?

    Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed “perfect” trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed “harmless,” and consequently few convictions are reversed. However, some types of errors are so grievous that they are presumed harmful, such as the use of a coerced confession in violation of the 14th Amendment.

    Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.

    What is a writ?

    The word “writ” traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions — writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today.

    In another sense, the word writ meant, and still means, an order. For example, an “original writ” in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our “summons” ordering a party to appear in court.

    In most modern American jurisdictions, a “writ” is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts — an intermediate appellate court and the state Supreme Court.) This section merely outlines common writs. Writs, like appeals, are complex and involve picky details. Defendants facing situations where they may be entitled to take a writ should consult counsel.

    What’s the difference between a writ and an appeal?

    Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to raise on appeal. As a general rule, this applies to issues that are not apparent in the record of the case itself (such as when an attorney fails to investigate a possible defense).

    Any one of the following reasons, for example, may prohibit an appeal (and justify a writ):

    • The defense did not lodge a timely objection at the time of the alleged injustice (but should have).
    • A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense.
    • The matter is urgent. (Writs are heard more quickly than appeals, so defendants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court.)
    • The defendant has already lodged an unsuccessful appeal (defendants may file multiple writs but the right to appeal is limited to one). But filing a writ that simply mimics an unsuccessful appeal is a frivolous writ and will be dismissed immediately.

    What is a writ of habeas corpus?

    Defendants who want to challenge the legality of their imprisonment — or the conditions in which they are being imprisoned — may seek help from a court by filing an application for what is known as a “writ of habeas corpus.

    A writ of habeas corpus (literally to “produce the body”) is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution that specifically forbids the government from suspending writ proceedings except in extraordinary times — such as war.

    Known as “the Great Writ,” habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months — even years — without charging them, and those imprisoned have no avenue, no legal channel, by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy with their writs.

    Potential Post-conviction Remedies

    As discussed in this article, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list up the legal chain) in a process that can take many years — especially for serious felonies such as death penalty cases.

    This list is merely an illustration of possible post-conviction proceedings — some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.

    • Motion for Acquittal. A request that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented.

    • Motion for a New Trial. Request that trial judge declare a mistrial and grant a new trial.

    • Appeal to State Appellate Court. Contends that trial judge made some legal error.

    • Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision.

    • State Supreme Court Appeal. Requests that highest court in the state review and overturn the decision of the mid-level appeals court.

    • U.S. Supreme Court Appeal. Requests that highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution.

    • State Court Habeas Corpus Petitions. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that the defendant is being held in violation of some state law or constitutional right.

    • Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release the defendant because the defendant is being held in violation of the U.S. Constitution.

    • Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the mid-level federal court to review the federal trial court’s decision denying the writ.

    • Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the mid-level federal court’s decision denying the writ.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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