You’ve Been Convicted of a Crime. Now What?
Direct Appeals and Post-Conviction Relief
A good defense requires a good trial lawyer. But a good trial lawyer is not just someone who looks the part, but also delivers a substantively vigorous defense. This requires preparation at several levels. Trial counsel must know the facts of the case, and know the rules of evidence. It also requires that trial counsel preserve error when necessary so that in case of a conviction a defendant may live to fight another day.
While the objective of every trial attorney and their client is to obtain an acquittal, or at least, the lowest acceptable form of punishment after a conviction, often times a defendant ends up convicted and sentenced to long prison sentences. When this happens, whether, and to what degree a defendant will have a chance to continue to fight their case on appeal will depend on two critical inquiries: 1. Did trial counsel preserve error, and 2. Did the defendant retain a good appellate lawyer. The chances of success on appeal require both.
If you don’t preserve error at trial, you cannot raise it on appeal, even if the error was devastating to your defense, and you were unfairly convicted. Like a football game, error preservation involves defense and offense. It entails objecting to prevent a prosecutor from introducing certain evidence. This requires trail counsel to file motions to suppress tangible evidence, and statements from being introduced at trial. It also involves objecting to all or parts of a witness’s testimony at trial, and seal the preservation by to which trial counsel must say “objection,” argue the law in support of the objection, and “seal the deal,” as it were, by ensuring that the judge say either “sustained,” or “overruled.” Improper testimony or argument at trial may prompt counsel to request a mistrial as well. While the goal of objecting is to have the judge sustain your objection, even if your objection is specifically overruled, the ruling preserves your issue for appeal. Conversely, a good defense also sometimes requires a good offense, that is, that defense counsel present evidence that questions the credibility of the State’s witnesses, or submit his/her own lay or expert witnesses to prove a defense, and prevent the state from meeting its burden. Sometimes the judge denies a request to present this evidence, which then requires trial counsel to make a proper “offer of proof” to argue on appeal that the failure to introduce the evidence unfairly damaged your defense. Defense counsel simply introduces the prohibited testimony or other evidence into the record and outside of the presence of the jury, and can later complain of its absence at your trial when appealing your case. While some trial lawyers are proficient in error preservation, many are not. You would be wise to hire an appellate lawyer to assist your trial lawyer, in ensuring that if convicted, you can later challenge your conviction or sentence.
Post-Conviction Challenges and Habeas
Sometimes it is not possible to raise an issue on appeal because either trial counsel failed to properly present it, or if presented, counsel still improperly preserved it for appeal. When this happens, if the evidence was material to your defense, and trial counsel had no justifiable strategy when committing this error, then it becomes necessary to raise what is known as an ineffective assistance of counsel challenge. Many convicts, particularly those without resources to hire counsel while they languish in prison, file their own writs, often with disastrous consequences, because they are simply not trained in this area of the law. A critical thing about writs is that in Texas as well as in federal cases, the general rule is that you only get one chance to raise all your issues on habeas, and leaving any issue out will forever bar it from consideration at a later time.
But, sometimes the evidence than can give you a new trial, or actually exonerate you, is not known until after your trial has ended. This evidence is usually in the form of favorable and exculpatory evidence that was undisclosed by the State (Brady / Giglio violations) and later discovered, a witness who was not available to testify at your trial despite diligent investigative efforts by trail counsel before trial, or a recent scientific development that likewise questions your guilt, or proves your innocence.