Interviewer: In terms of post-conviction relief, what are the different forms of post-conviction relief you can have? Is probation one of them? Is sentence modification one of them? What are they?
Randy Berman: Once you’re convicted of a crime there are avenues that you can avail yourself of to try to undo that conviction or that sentence after that conviction. The first one would be a direct appeal of the judgment against you. That’s generally taken after you’re found guilty by a jury. You have a right to a direct appeal and that process has to be undertaken within 30 days of pronouncement of sentence. Briefs are written on the points or issues where error is claimed to have been committed by the trial judge. Ultimately the appellate court rules on the appeal, granting or denying the appeal.
Interviewer: What are reasons you can make an appeal and what are the reasons you can’t?
Randy Berman: Generally you can only appeal errors of law that occurred during your trial. For instance, if your lawyer filed a motion to suppress the evidence because of an illegal search pretrial and the judge denied that motion, you can appeal the denial of that pretrial motion to suppress evidence. I would argue to the appellate court that the trial judge made an error when he denied this motion and that it should have been granted and the evidence should have been suppressed. If that argument is successful then the Appellate Court would reverse that conviction and in most instances the case would ultimately be dismissed, for without evidence to present at trial, the State would have no case.
Errors occurring During a Trial are a Reason to Appeal.
Errors that occurred during the trial are another reason to appeal. Suppose there is an objection to hearsay or an objection to other inadmissible evidence that the judge overrules, allowing that evidence in. Those are issues you can bring to the appellate court’s attention and say that the judge committed reversible error by allowing that evidence in over my objection. There are issues about how the prosecutor conducts himself during the trial and what they argue in closing arguments. There are limitations on what they say to a jury and if they cross the line and do something egregious, you can appeal for prosecutorial misconduct and get relief that way.
There’s a whole host of different scenarios that can be appealed but they have to be based on a legal mistake, not a factual mistake. In other words, if a witness testifies and says he saw you do it and you disagree and testify that you didn’t do it, you can’t appeal the fact that he lied unless you later uncover proof that the witness perjured himself or herself. That’s not typical. So generally, factual issues can’t be appealed, only legal issues can be appealed.
Interviewer: It sounds like the better your attorney or the more thorough they are in looking under every stone and bringing every motion possible the more fodder there may be later on in case you lose.
Randy Berman: Not only that, but it’s crucial to have an experienced attorney at trial because even if an error is committed during trial, if the attorney does not object to the error when it happens then he may waive it, unless the error is determined to be fundamental. Fundamental error cannot be waived. When you read through a trial transcript as an appellate attorney trying to see what issues you might raise on the appeal, you might see glaring problems that occurred at the trial, but if there was no objection then it may be considered waived, preventing the appellate attorney from arguing a legitimate issue.
The exception that I previously mentioned is fundamental error. You can still bring claims of fundamental error to the appellate court in spite of your trial attorney’s failure to object and preserve that error during trial. Fundamental errors are usually considered constitutional rights that are violated and can’t be waived. Generally you waive an issue that you might have if you fail to object, so if the trial attorney is not experienced and doesn’t know that something’s wrong when he or she is trying the case and they fail to object, the client is losing his potential ability to get that case reversed on that error.
There Are Numerous Factors that Cause Cases to be Appealable
Interviewer: What are the most common things that you see that cause cases to be appealable?
Randy Berman: There are just so many things that can go wrong in a trial, and so many errors that can be committed. The more experienced the attorney is, the better he or she is positioned to object to trial errors and to perfect a record for the appeal in an adverse ruling or conviction at the trial level. There’s no one specific type of error that makes a case appealable. It can be any number of errors or combination of errors.
Interviewer: Have you found that certain kind of crimes tend to want to be appealed more or are difficult to appeal or easier to appeal?
Randy Berman: No. The crime itself really doesn’t matter. It’s about the legal mistakes that were made by the court in the course of the trial. It can be first-degree murder or it can be petty theft or DUI. It doesn’t matter. An appeal is trying to get relief from errors that were done by the judge at the trial. Certainly the consequences for a more serious crime make a client and a client’s family a lot more motivated to get good post-conviction lawyers on their side because if they’re serving a life sentence or a long term of years, these appeals or post-conviction motions are their last chance for relief. There’s more than just the appeal. There are other avenues of relief after you lose at trial and lose an appeal that you can undertake as well.