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Criminal Appeals-Handling High Profile Cases in the Post-Conviction Context

Kish Law LLC

I am handling a criminal appeal that arose out of a high-profile murder prosecution here in beautiful Atlanta, Georgia.  The case was brought to me long after the trial and “direct appeal”, at a point when the client was down to his last “post-conviction” effort, which in some jurisdictions is called a “habeas corpus petition.”  I took over the case, convinced the Judge to let us re-work the issues, and then appealed the revised claims up to the United States Court of Appeals, whose main office is a few blocks from where I sit at my desk most days, also in Atlanta. The Court of Appeals just announced that they granted my request for “oral argument”, which they grant in very few cases nowadays.  The underlying murder was a very high-profile matter handled in the Fulton County court system many years ago.  After the direct appeals, the case worked itself in the federal court systems for a final effort to obtain post-conviction relief for my client.  I want to talk for a little bit about handling these high-profile matters on appeal or in the post-conviction arena many years after the crime took place.

I get calls and messages on a regular basis from family members who, years later, want me to challenge the conviction or sentence imposed on a person serving a lengthy prison sentence.  This is often very difficult, because the court systems have erected rules over the years that make it increasingly difficult to bring such challenges.  First, most courts now have time limits that severely limit when such challenges can be raised.  Furthermore, even if we get the challenge into court within these timelines, we then have the problem that previous lawyers on the case might not have raised or preserved the best issues.  If the better claims were not properly preserved by the earlier lawyers on the case, the prosecutors will respond to my efforts with all kinds of rules for kicking such issues out, rules called “waiver”, “default” and the always-difficult “harmless error” principle.

Handling an appeal or post-conviction matter can get even more complex when the underlying crime or trial got some publicity.  In my experience, most judges who are reviewing such appellate or post-conviction matters do not really care all that much if the crime got a lot of press coverage.  Nevertheless, prosecutors often argue that it will be a “travesty of justice” if this highly publicized conviction is overturned.  This dynamic is an extra hurdle I need to confront when someone asks me to take on a case that got lots of publicity in the early stages.

I will likely post more on this particular federal appellate case in the upcoming weeks, for it contains many of the recurring issues that come up in criminal appeals and post-conviction matters.  This particular appeal was a real challenge, with lots of the usual procedural bars and hurdles raised by prosecutors.  It also was a challenge because earlier lawyers kind of limited my arguments by virtue of the issues they raised earlier in the appellate process.  The case is also a good example of how difficult it is to reduce and simplify a case for the judges who must make a decision many years after a crime and a trial.   And, finally, the court granted oral argument, and I want to talk a bit about this aspect of lawyering, which is often the career highlight for many lawyers.

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