Practical Blawgosphere: Picking Your Battles
Simple Justice: A call came in the other day from a young man who needed a lawyer to handle his appeal. After telling his story, which included a part about his dissatisfaction with his trial lawyer because of his inability to achieve the result that the young man desperately sought, my caller told me about a defect in the conduct of his trial. It was a very real defect, but it offered no solution. I tried to explain a problem so that the caller would have a clearer understanding of what he was seeking.
The problem is one that I, and every other lawyer who handles appeals, faces regularly. Different errors result in different outcomes. Some, such as failure to prove guilty beyond a reasonable doubt, will result in a reversal and dismissal on appeal. Others, such as a mistaken jury charge, result in a new trial. Still others, such as admission of improper evidence, could go either way, according to whether the error undermined the evidence to such an extent that guilt was unproven, or the evidence was bad but inconsequential.
This distinction is lost on many defendants. It’s also lost on many judges, who have never had the experience of being responsible for the life of a living, breathing person. Defendants do not appeal because they want to correct injustice or error. Defendant appeal because they want to be free, or at least freer then they would be otherwise.
For some defendants, there is a hidden burden in retaining a private lawyer to prosecute an appeal. It’s an expensive proposition, regardless of the seriousness of the crime. Most of the time, the defendant is incarcerated, and has left a family behind. Regardless of what underlying crime is involved, most haven’t managed to amass a vast fortune that will leave their children in comfort. …