Articles Posted in Criminal Appeals

Folks are focused on the federal criminal appeal of Dzhokhar Tsarnaev (hereinafter, the “Defendant”). While his appeals will be automatic because of his unusual penalty, all criminal defendants, especially if convicted after a trial, have the right to appeal their conviction.

The appeal, however, may not be what you think it is.

Let’s look at the Defendant’s appeal, for example. Most analysts opine that one of the primary grounds for appeal will be the court’s refusal to move the site of the trial. In fact, a number of articles, one of them being “Marathon bomber likely to appeal over Boston trial site” the experts forcast that the appeal will focus on the judge’s refusal to move the trial out of Boston and the prosecution’s barrage of emotional testimony from more than a dozen victims of the attack.

Clearly, nobody expects the basis of an appeal to be that the juror’s verdict of guilt was not based on the evidence. Yet, most people believe that a criminal appeal is really a chance to second-guess the jury.

It really isn’t.

Actually, it is to second-guess the judge.
Continue reading

Sometimes, you just can’t win at trial. Sometimes, the true battle is going to be fought during a Massachusetts appeal. Sometimes the law under which you are being prosecuted is what has to be addressed…not the facts of the case.

This was one of those cases.

Last week saw a battle over what most would assume was fairly obvious.

The James “Whitey” Bulger trial is a lesson on the importance of criminal appeal lawyers. They had better be experienced and talented to wade through the legal issues in this case. I believe it is in the Massachusetts appeals courts that the real legal battle will take place.

Not since former prosecutor Christopher Darden cried on camera complaining that the trial of O.J. Simpson was not going well has this Boston criminal lawyer seen such absolute absurdity by folks who are supposed to be grown up professionals used to handling matters of great import. You think I am raving? Let’s look at this story…because you should be angry too. After all, it puts you at risk in two different ways.

You are no doubt aware of the Bulger trial which has been going on for weeks at Boston’s federal court. Bulger is on trial for several murder as well as racketeering during the days during which he was the reputed “mob boss” in South Boston. From the time the government finally brought Bulger to “Justice”, it has seemed to me that the laws of criminal and court procedure have been up for debate at almost every turn. They have been attacked to a ridiculous extent by none other than the prosecution. Perhaps more shockingly, many of these prosecutorial requests have been granted by the judges who have touched this high profile potato.

The criminal justice fate of former Massachusetts Treasurer Tim Cahill apparently remains undecided. In Boston’s Suffolk County Superior Court last Friday, a hearing took place regarding the matter. Until then, at least publically, both sides had declined to say whether Cahill will be tried for a second time on corruption charges.

It would appear that the hearing did not change that very much.

The hearing was apparently one of the “closed door” variety. Judge Christine Roach spoke to the lawyers up at sidebar, so spectators in the courtroom could not hear what was said. Likely, however, a record was kept of the discussion.

Friday’s hearing marked three weeks after the jurors in the first trial failed to reach a verdict on charges accusing him of scheming to run $1.5 million in taxpayer-funded lottery ads to help his unsuccessful 2010 gubernatorial campaign. The co-defendant, Cahill’s former campaign manager, was found “not guilty” by the same jury.

Word has it that Attorney General Martha Coakley has not yet decided to retry Cahill. At least, this is what her spokeswoman said on Friday. However, word also has it that the attorneys for the prosecution and the defense have been negotiating a civil resolution to the unprecedented criminal case.

The court has scheduled another status conference for January 25th.

Attorney Sam’s Take On Considerations For Retrying A Criminal Case:

“Sam, under what circumstances would there be a retrial?”

Continue reading

The short answer, as any daily reader of Attorney Sam’s Take knows, is “of course he can”. All he has to do is be found guilty after a trial. He has accomplished that task.

The next question, of course, is what the basis of the appeal will be. That is when it becomes alittle trickier.

As you may recall, the appeal of a criminal conviction cannot simply be “the jury got it wrong”. The issue must be an issue of law, not simply fact. The jury was the judge of the facts and the appeals courts give great deference to trial juries. This makes sense, of course, because the jury saw, as well as heard, the evidence. The jurors were in the best position to judge things like credibility. The closest a defendant can come to claiming that the verdict was wrong as a basis of an appeal is to say that there was no way, as a matter of law, that a reasonable jury could have found the defendant guilty.

This, of course, is a very high standard and so is not generally a chosen issue for appeal.

“Sam, you say “a chosen issue” as opposed to “the chosen issue”. Can there be more than one issue raised on one appeal?

Yes. You can basically raise as many issues as you want. However, there are tactical decisions in choosing which issues and how many. For example, there is a limit in the length of the brief. This, of course, can be changed in a given case by submitting a motion for permission to hand in a longer brief. In doing so, of course, the court, when reading the brief, is likely to wonder if all this extra length was necessary.

“Why should I care if the court is second-guessing my attorney’s need to hand in a longer brief?”
Continue reading

Boston’s Supreme Judicial Court has released a ruling in the case of a woman who had been convicted of murder.

The case dates back to 2003. Solange Anestal (hereinafter, the “Defendant”) was accused of plunging a 16-inch piece of glass into her boyfriend’s chest, causing his death. It happened in their Brockton apartment.

The defense was not that the Defendant did not do the stabbing but that she was temporarily insane when she did it. The jury rejected the defense and found her guilty. Accordingly, the court, the Honorable Superior Court Justice Richard Chin sentenced her to life in prison without the possibility of parole in 2007. That is the sentence in cases of Murder in the First Degree.

The Defendant appealed the conviction. Finally, today, the SJC has reversed the conviction and sent the case back to Superior Court for a new trial.

The basis for the reversal was that the court had improperly allowed the prosecution to introduce “highly prejudicial evidence” against the Defendant, including that the state had taken away her two children – a 6-year-old boy and an infant daughter – days before the killing.

The court also ruled that the judge made a mistake by not instructing jurors “as to the excessive use of force in self-defense that was supported by the evidence.”

Attorney Sam’s Take On Appeals And Reversals In Criminal Cases

Unlike in the case of civil trials, criminal trials can only be appealed by one side…the defense. There is no right of appeal given to the prosecution should the jury return a verdict of “Not Guilty”.
Continue reading

When we left off on Friday, we were discussing the recent Supreme Judicial Court ruling regarding investigations into judicial contemplation in certain cases.

How does such an investigation get started?

How do you think it gets started?

Attorney Sam’s Take On How Judicial Investigations Get Started

You know, it is a funny coincidence. These public pronouncements always seem to come from one side and one side only.

You see, judges handle a great many civil matters. One side wins and one side loses every day. In fact, there are many entities which either sue or are sued on a regular basis, simply by the nature of what they do. Do you remember the last public spectacle of a judicial inquiry?

Neither do I.

Defense attorneys and prosecutors go at it every day. Every day there are winners and losers. Do you recall there being such a public outcry for either disciplining or removing a judge because he or she was too pro-prosecution? Gee, I have heard many defense attorneys complain about certain results, but the closest I have seen them go after the judges is to file a criminal appeal.
Continue reading