When Should I Call A Lawyer?
The sooner the better. Important matters must be considered at the very start of a criminal case and if left unattended, or mistakes are made, the consequences can be significant. Contacting a criminal defense lawyer as soon as you or a loved one has been arrested by the police is paramount. A person charged with a crime should NEVER agree to speak with detectives or give a statement. A defendant has a RIGHT TO REMAIN SILENT and the best advice is to do just that.
What happens next?
Within 24 to 48 hours after an arrest, a defendant is taken to court for the first time and is asked to enter a plea. The BEST decision is the plead NOT GUILTY. A defendant will be given basic paperwork giving some details about the nature of the charges and a date will be set for the defendant to appear for a pre-trial conference. Much of criminal defense lies in what happens before trial and so it is imperative that you have an experienced criminal defense lawyer by your side right from the very start of your case.
Should I Take A Plea?
Only YOU can make that call. Taking a plea can gave serious consequences and should not be decided lightly. You need to make sure you understand the agreement in full and have no questions that have not been asked and answered. You need to spend time with your lawyer to discuss your options if you don’t take a plea. Is there a defense you can raise at trial? Did your lawyer fully investigate the case and share all of the discovery with you? What are the collateral consequences of taking a plea? Before you take a plea, make sure you have an experienced criminal lawyer working for you first.
What is a Pre-Sentence Report?
Sometimes, a Defendant convicted of a crime will face a mandatory sentence and the Court is given no discretion. There are other cases where a crime will carry a mandatory minimum sentence but leave the rest to the sentencing judge. Every crime is different just as every Defendant is different. Where the Court has discretion to impose a range of sentencing options, it is imperative that the Judge hear more than just what the Defendant was convicted of doing. Sentencing, in state and federal court, is a specialized part of the criminal process and demands an advocate willing to tell the Defendant’s story in a passionate and detailed way. Telling the Defendant’s story is as much a part of sentencing as anything else.
When a Defendant is convicted of a crime or has entered a plea, often the first step before the Judge imposes sentence is the development of a Pre-Sentence Investigation Report. A Probation Officer meets with the Defendant and gathers detailed personal information about their life, their family, their finances, their education, their employment, and their past criminal history, if any. This report forms the foundation for the sentencing that will take place. It also becomes the cornerstone of the personal profile that will travel with the Defendant throughout their time in prison. It will also include certain sentencing parameters based upon the crime and the Defendant's criminal history.
Sentencing is not just about the crime and aggravating factors the State or Federal Government seeks to impose. As important in the process is the identification of mitigating factors which, when effectively articulated, are balanced against the aggravating factors. By engaging in this process, the Judge is given the benefit of the whole picture before imposing sentence. It should be noted that many times on appeal a Defendant will have the opportunity to challenge certain parts or all of the sentence received. However, just as at trial, any objections or disputes with either the Pre-Sentence Report of the Judge’s findings must be raised by the Attorney in order to properly preserve the issues for further review. Sentencing is a critical part of the process and not something to be overlooked. An effective advocate can make all the difference.
What Is The Direct Appeal Process?
After a person is sentenced by the judge, after a jury verdict or the entering of a plea, an appeal is started by filing a Notice of Appeal in the trial court and paying the filing fee. A person has 30 days from the date of the sentencing to file the notice. In Federal court, the Notice must be filed within 14 days. This lets all parties know the defendant believes there were errors made during the trial or the taking of the plea that require correction by an appellate court.
The Defendant first files an Initial or Opening Brief. A brief is a legal memorandum which informs the Appellate Court why it should review the case, identifies the relevant facts and history of the case in the trial court, sets out the issues to be reviewed, and presents a comprehensive legal memorandum telling the Appellate Court why each issue should be resolved in the defendant’s favor. The Government files an Answer Brief addressing the Initial or Opening Brief and arguing why none of the issues presented should be reviewed. The Defendant, who bears the burden of proving error on appeal, is permitted to file a Reply Brief, if necessary, to address the arguments the Government has made in its Answer Brief. If necessary, the Appellate Court may issue an Order setting the case for Oral Argument. An appellate oral argument is far different from a closing argument given to a jury at the end of trial. An appellate oral argument involves extensive, difficult questions being asked by the appellate judges concerning what happened below, and how the law applies to the facts of the case. An appellate lawyer must be able to quickly and effectively respond to any question, no matter how unanticipated, in order to assist the appellate court in resolving the issues.
Sometime after Oral Argument, or after the all the briefs have been submitted, the Appellate Court will render its decision. The defendant may win some issues and lose others. The Appellate Court may order a new trial, order the defendant be re-sentenced or, in rare cases, order the conviction be dismissed entirely. Appellate advocacy is a specialized area of the law requiring a specialized skill set. An appellate specialist can make all the difference.
What Issues Can I Appeal?
Most TV shows involving a criminal case end with the accused being convicted of the charges and being led off to jail or prison by an officer, or the person is declared to be “not guilty” and walks from the courtroom with his or her family and friends. Rarely, if ever, will the scene shift to another courtroom populated by a panel of judges hearing the appeal of a criminal conviction. Attorneys whose area of concentration is criminal appeals know that the grounds upon which a conviction may be overturned or a sentence changed vary from case to case. Common grounds for appealing a criminal conviction after sentencing include:
- Misconduct by law enforcement
- Refusal of the judge to exclude tainted or otherwise inadmissible evidence
- Mistakes or incorrect rulings by the trial judge
- Conviction not supported by the evidence
- Errors made by trial judge while instructing the jury
- Sentencing errors including sentences in excess of legal maximums
- Misconduct by jurors
- Misconduct by prosecutors
Do I Really Need An Appellate Attorney?
Trial lawyers are very good at what they do. But an appeal is very different from a trial. When a case is appealed, a client often can obtain the best possible result by retaining an appellate lawyer. First, to be effective on appeal, a lawyer needs to use very different skills from those necessary for a successful trial. On appeal, an attorney with strong skills in legal research, writing, and using logic and imagination together can make all the difference between winning and losing. Experience working with and appearing before appellate judges again and again also builds the judgment and wisdom necessary to evaluate what issues, if any, are likely to lead to success on appeal.
Second, an appeal is decided solely from what the trial lawyer has already presented. This is called the record. An independent appellate lawyer is able to limit his or her review of the case to only what is contained in the record, just as the appellate court will do. The trial lawyer who took the depositions, interviewed the witnesses, and investigated the case before trial can easily lose track of what the trial court heard on the record versus what the trial lawyer knows really happened. Finally, appellate lawyers typically have more intense experience with appellate litigation. After all, this is what we do every day. Even if a trial lawyer handles every appeal in his or her cases, the vast majority of cases are not appealed. Thus, a trial lawyer will not have nearly as many opportunities to practice before the appellate courts as an appellate lawyer who handles appeals for a number of trial lawyers.
What Will My Appeal Cost?
The short answer is, “It Depends.” In reality the cost for a direct appeal from a criminal conviction can vary based upon multiple factors. The length of the trial plays a role because the longer the trial, the more expensive the transcripts will be. The filing fee varies depending on the court and whether you are appealing in state or federal court. There are costs for preparing copies of the briefs and record that must be submitted to the appellate court. Finally, the cost to retain an experienced appellate lawyer, in some cases, can be enormous.
At MKM LAW PLLC, we charged a “flat fee” for every appeal and base that fee on several of the factors listed above. At the beginning of an appeal, part of the total fee is paid up front and the remainder is paid out over a period of months. This way the client knows the total up front and is not vulnerable to an unpleasant surprise. Every case is unique and every situation is unique. Please contact us to discuss your situation and see how we can structure a fee that will afford you experienced appellate advocacy at a reasonable price.
Remember, “A lawyer can make ALL the difference.”
How Long Will My Appeal Take?
The short answer is, “It depends.” First and foremost, it depends on the jurisdiction where the appeal is being considered. Generally, an appeal will take anywhere from eight months to a year from the time the notice of appeal is filed until the appellate court renders its decision.