LOUISIANA APPEALS AND POST-CONVICTION REPRESENTATION
The first phase of the criminal case is completed at sentencing. Either you have gone to trial and been convicted and sentenced, or you have pled guilty and been sentenced. There are complicated and unforgiving timetables, established by law, as to what must happen next.
In Louisiana, criminal cases have what is known as a “record appeal.” This means that a court reviewing what has happened, either before or during trial or a plea of guilty, can only look to events that are actually part of the record. If a motion was filed and a hearing was held resulting in an adverse ruling made by the judge, you can appeal it to a higher court but may only urge, as grounds for relief, things that are actually contained in the record.
If your trial lawyer did not object to something that occurred at trial that should have been objected to, you may have lost the right to raise that issue on appeal (more on that, later).
If you are in state court and you are convicted or plead guilty, your first appeal is to one of five courts of appeal in Louisiana depending upon what region of the state your trial court is located. If you lose or the state loses in the court of appeal, a writ of certiorari may be taken to the Louisiana Supreme Court. The Louisiana Supreme Court may, but is not required to, hear your case. They can simply refuse to accept and hear the case and that exhausts your remedies in the Louisiana appellate court system.
Essentially, the same process exists for federal courts in Louisiana — there are three districts: Western, Middle and Eastern, and all of them have appeals heard in the same court, the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit also only hears “record appeals.”
Courts are reluctant to reverse criminal convictions or reduce sentences imposed by district court judges. Your lawyer must first obtain the record of the case and then carefully review it. Hearings held on motions that were filed, such as motions for discovery or to suppress a confession or challenge the search of a house or a car, are all things that could be taken up on appeal if the trial judge rules against you.
Our office employs carefully selected law clerks and co-counsel to assist with the research to find precedents from previous cases that will help the appeal. Often times, we are presented with unique cases in which there are few precedents or if the precedents exist, they are averse to our client. Appellate advocacy involves convincing appellate court judges that previous rulings support the defendant or that previous rulings that are not favorable to the defendant are either different than your case or should be overruled as improperly decided.
Some appeals are extremely complicated and involve numerous issues. Other appeals might be very simple involving one or two issues.
I began my career as a lawyer in the then newly created appellate section for the District Attorney’s Office of East Baton Rouge Parish. From October, 1975, until May, 1976, I argued nearly a hundred cases in front of the Louisiana Supreme Court and obtained a very good working knowledge and working relationship with that court. Since then, intermediate appellate courts have been given criminal jurisdiction, and I have handled many appeals.
It is not necessary that the lawyer who handled your trial also handles your appeal. It is sometimes difficult for a trial lawyer to act as an appeal lawyer in the same case they handled, and often times, I am asked to take an appeal for a case that another lawyer has handled.
Post-conviction relief (PCR) is an entirely different animal. If you have been convicted at trial or if you pled guilty, and then you appealed your conviction or sentence and lost, the next step is what is called post-conviction relief; some people refer to it as habeas corpus. It is not “another appeal” in which the same issues that you argued in your appeals are repeated.
There are strict time limits on post-conviction relief. The process basically is that in Louisiana you have two years from the date your conviction becomes final within which to seek post-conviction relief from the same state district court judge who originally heard your case. Your conviction becomes final at the conclusion of your “records appeal.” The issues raised in post-conviction are limited to newly discovered evidence, errors not previously known to the defense, changing laws, ineffective assistance of counsel and other issues in the interest of justice.
Typically, a PCR is granted when evidence indicates due process was compromised as a result of the following:
- Prosecutor failed to hand over exculpatory evidence
- Evidence or testimony is allowed in at trial that should have been excluded
- Defense attorney was grossly incompetent
- The existence of new DNA samples or other forensic evidence not introduced at trial; or
- Evidence of witness tampering or perjury
Often times, we are engaged by people who have been to trial and lost, taken an appeal and lost and still believe there are grounds that should result in a reduced sentence or reversal of their conviction. We take post-conviction cases as though we are starting from scratch. We file public records requests with the prosecution and investigative agency and often times obtain information that was not available to your trial counsel because of the very limited and restrictive discovery rules under which we operate in Louisiana. Sometimes prosecutors and police officers do not like to give that information, and we have to file a suit in order to obtain the public records. We also review the transcript of the trial.
Most of the time we hire an investigator to “reinvestigate” the case to determine if witnesses’ stories have changed, to see if there are witnesses that were not located by the state or the defense at the time of the trial, and to see if there are witnesses or evidence that contradict trial testimony that was not previously known. It is a labor-intensive and often times expensive proposition.
Once the initial investigation is complete, we may also engage the services of mental health professionals or other experts in the field of ballistics, blood spatter, finger prints or DNA. Once the entire investigation is complete, we file a petition for post-conviction relief with the district court judge, laying out the grounds we believe justify a new trial and seek a hearing. The prosecution invariably raises procedural objections saying that none of our claims should be heard in the first place because they are too late, repetitive or have already been heard. We must convince the court that the procedural objections of the state be overruled so that we have a hearing on the merits to determine whether, for example, your trial lawyer was ineffective, your trial prosecutor withheld favorable information, witnesses lied, new evidence was found or whatever other grounds we might have discovered.
If the judge grants a hearing, whichever side prevails, the other is entitled to seek appellate review from the same appellate court that initially reviewed the appeal. After that, a writ is available to the Louisiana Supreme Court.
Finally, there begins the last phase, which is federal post-conviction relief. You have one year from the date of your state conviction within which to bring a federal claim. That time is interrupted if you filed a state post-conviction petition but, as you can see, if you waited a year and a half to file a state post-conviction, by the time that’s completed, you have lost your right to bring a federal action so we always encourage our clients to begin the process of post-conviction relief as promptly as possible after an appeal has been lost.
Federal post-conviction is similar to state post-conviction except that it can only involve issues of federal constitutional law.
Why Experience Matters In Appeals And Post-Conviction Representation
The appeals process has its own set of procedural rules, deadlines and requirements regarding evidence and testimony. A trial, especially one involving capital crimes, is a very complex machine, whose purpose is to ensure justice is done; sometimes it breaks down. Understanding how to operate within the expectations and limitations of appellate procedure is important for leveraging your case and avoiding delays or denials. As an appeals lawyer, James Boren has represented numerous clients in criminal appeals at both the state and federal level.
He has also worked with the Innocence Project, a legal defense organization begun by Barry Scheck and Peter Neufeld. Using modern DNA testing techniques and forensic analysis, the Innocence Project is dedicated to exonerating people wrongly convicted for crimes they did not commit. Their work has helped free people on death row, as well as numerous people wrongly convicted for rape.
Contact Appeals Lawyer James Boren Today
The actions of police, prosecutors and judges deserve greater scrutiny in serious criminal cases where lengthy prison sentences or the death penalty is involved. We have the resources and experience needed to expose violations of due process and serious mistakes and errors that lead to innocent people getting convicted for crimes they did not commit.
To schedule an appointment and discuss your case, contact appeals lawyer James Boren today. If your case is strong, he is willing to travel and meet with you, including people incarcerated in Angola State prison and the Louisiana federal prison.