Articles Posted in Appeals

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Patrick Megaro, Esquire

Sometimes in life, you have to speak up.  Yes, that’s what you pay an attorney for.  But no, it doesn’t always work the way it should.  And unfortunately, if your attorney doesn’t object when he/she should have–this will create all sorts of problems later.

The good news is, we have appellate attorneys like Patrick Megaro.  He solves the problems created by all the things that go wrong during a criminal trial.  And yes, lots can go wrong.

Enjoy Part 2 of Patrick Megaro’s warning to we defense attorneys, he’s going to remind us how to keep a criminal jury trial clean enough to reverse the conviction on appeal–should things come to that.   I published Part 1 of his article a few weeks ago, it deals with pretrial motion issues and voir dire.

Look, I know that you attorneys out there think you know everything–but you don’t.  Quit being so cocky.  You can’t learn anything if you think you know everything.

Read this.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

Opening Arguments and Summation

To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection.  If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.

If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review. The motion for mistrial must be made before the jury retires to deliberate. Continue Reading

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Patrick Megaro, Esquire

Howdy Peeps.

Do you know how many requests I get for folks to “guest write” an article?  Tons.  And, I’ve never taken anyone up on this, ever.  I have lots of criminal defense buddies, but I’ve declined their offers.

That being said, my friend Patrick made two good points to me the other day while having lunch at Beth’s Burger Bar.  First, the Peanut Butter Burger will change your life.  Yes, it was almost that good.

Second, I should warn my defense attorney friends about all the problems Patrick sees on the appellate level.  He’s right about this.  Thus, the article below, written by an expert criminal appellate attorney.

That being said, this is an episode of Inside Baseball.  Its for defense attorneys, or those curious souls wishing to peek behind the curtain.

Enjoy Patrick Megaro’s two part warning to we defense attorneys, Part 1 is listed below, I’ll have Part 2 out shortly.

Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts.  A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice.  As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions.  He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.

“This issue before us was not properly preserved for appellate review and is therefore not now cognizable.  Affirmed.”

We appellate lawyers cringe when we see these words written, especially in our own case decisions.  This means that no matter how brilliant the trial attorney was, they did not make a specific, timely objection at the trial level, which has effectively waived their client’s right to appeal that issue.

First, let us start with something we have all (should have) learned in law school:  general, non-specific objections are insufficient to preserve an issue for appeal.

While we all know this, but MANY times we see trial lawyers simple say “objection” or “We object to ____” without going further.

“Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error.”  State v. Garza, 118 So.3d 856 (Fla. 5th DCA 2013).

This means you have to spell out WHY you object – be it in a motion, a post-hearing memorandum of law, a written notice of objection, or an argument on the record at the appropriate time why something is legally erroneous.  The objection must be SPECIFIC.

Second, the objection must be TIMELY and CONTEMPORANEOUS.  This means that you have to immediately object when something is coming into evidence – sometimes before and after.

The law requires certain objections to made at certain times in order to properly preserve them.  Here are some practice tips for the most common issues that arise during the course of a trial: Continue Reading

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