Articles Posted in Appeals

sky-night-300x212Let’s say a child is on his death bed.  He needs some encouragement before he passes on.  If you’re an atheist, are you tempted to comfort him with a tale of a beautiful afterlife, even if you don’t believe one exists?  An atheist friend of mine suggested that this very conversation is what gave rise to our modern notions of a deity and an afterlife (I think there’s a movie with this premise as well).  As a Christian, I’m a skeptic when it comes to the “bedside comfort” origins of belief.  But, if I get off track on religion this early in the article, my web optimizer people will dis-own me. Their little badge at the bottom of the page will vanish and you’ll stop reading.

Yet the question remains, what do we tell people who are about to encounter some horrible fate?  Should we tell them truth?  Can we be honest, yet compassionate?

We defense attorneys sometimes have to tell our clients that they’re not going to make it.  Literally, they may not live through their sentence.  This truth can be hard to swallow.  In Florida, losing a trial may mean a death sentence.  It may mean a life sentence.  Or, it may mean so much prison time that it may as well be a life sentence.

What happens if you don’t tell your client what a crappy case he has, and he loses at trial? Continue Reading

Is there any value in holding onto a particular point of view?  fish

Children seem free to change their mind, but adults face a bit more peer pressure to remain consistent.  I think children have this issue right; we should feel a bit more freedom to change our position if need be.  Often, we don’t give our positions any sort of deep analysis, and once we’re confronted with a situation that requires some bit of thought, we end up changing our mind anyway.

Nothing wrong with changing your mind, unless you’re in politics.  A change of heart will open the flood gates of “flip-flop” negative campaign ads.   In reality, we’d probably be far better off with politicians that don’t have their mind made up about every single topic on Earth (but, they wouldn’t sound very smart, would they?  The Katie Couric’s of the world would have a field day with such intellectual thoughtfulness, editing the interview to look like a series of “gotcha” moments–it would get ugly).

Also, I can see “changing one’s position” as being a problem for professors and researchers.  These folks may be funded to do research consistent with their previously published works.  Imagine the disappointment of the folks funding the research when they discover a “change in position”.   If you’re going to change your mind, you better have tenure (possibly one of the benefits of tenure?).   Tom Petty once quipped that the music industry is never satisfied, because when he releases a new album the world says “Oh, this is the same old Tom Petty stuff he’s been churning out for decades”.  And, if Petty does something completely different, they’ll say “This artist has Jumped the Shark, abandoned the rock that made him successful.”  Basically, you can’t win.  Continue Reading

We expect our experience with American court systems to be fair, in the same way that we expect our experience with the Chinese court system to be unfair.

GnR, final song Friday night, Paradise City

GnR, final song Friday night, Paradise City

To that end, it is the appeal process that can transform an unfair outcome into something more reasonable.  There are many ways to appeal, and there are many different things that can be appealed in a criminal case.  Today, were going to take a look at how to approach a harsh sentence after a guilty verdict.

Every defense attorney who has conducted a jury trial understands the risks involved.   Many defendants do not understand the risks, even though we do our best to explain such.  Let’s face it, nothing can truly prepare a client for a sentence that, say, will last for the rest of their life.  The problem is that plea offers can be very enticing, especially to the innocent.  That being said, what innocent person wants to cop a plea?  Or, what innocent person wants to spend the rest of their life in jail?

I was introduced to this concept very early in my defense career.  Back in the mid 1990’s,  my friend was defending a man that had, supposedly, pistol whipped his (now) ex-wife.  He insisted that he didn’t do it.  The most serious charge arising out of these accusations was aggravated battery with a firearm.  It carries a maximum of 30 years in prison, and that’s with no bullets ever leaving the chamber.   My friend got him an excellent plea offer–one month of probation, on a misdemeanor battery.  Wow.  Do you think this guy took the offer?  (Of course not, that’s why I’m telling you this story) Continue Reading