Criminal Appeals / Post-Conviction Cases
Paul Kish is an accomplished and highly-experienced criminal defense lawyer who over the 36 years of his career has regularly handled many criminal appeals and post-conviction matters. These matters should only be taken by criminal defense lawyers who are specialists. As described below, criminal appeals and post-conviction cases require an attorney who has significant experience with this subset of criminal defense.
First, an appeal is when the lawyer takes the client’s case from the “trial court” up to a higher “court of appeals.” This process is sometimes referred to as a “direct appeal.” The whole idea is to get a different court to look at what happened in the client’s case to see if there were any “errors” that require that the higher court “reverse” or “remand” the client’s case for additional proceedings. A post-conviction matter almost always comes after an appeal. In the post-conviction context, the client asserts that there were some additional errors that could not have been raised during the trial or in the direct appeal. Many times, the post-conviction matter focuses on whether the client’s first attorney did his or her job correctly. This is an argument in which the client claims that the lawyer provided “ineffective assistance of counsel.” None of us is perfect, and even the best criminal defense attorneys make a mistake. However, not every mistake results in having a case reversed, for the United States Supreme Court has ruled that only those mistakes resulting in “prejudice” to the client are the sort that result in post-conviction relief for ineffective assistance of counsel.
There are a wide variety of issues that an accomplished criminal defense lawyer might raise, whether in a direct appeal or in a post-conviction matter. Depending on the circumstances, some criminal appeals involve a challenge to how the trial judge handled a certain pretrial motion. The pretrial motions that many people have heard about are “motions to dismiss” or a “motion to suppress evidence.” Other challenges can focus on the trial itself and can include claims such as whether the judge made a mistake when ruling about whether certain evidence should or should not be allowed. Other kinds of appeal issues in a criminal case focus on whether the prosecutor did something unfairly, such as not providing evidence to the defense or making an inappropriate argument to the jury. Other times, an appeal can arise from a claim that the judge made a mistake at the Sentencing Hearing. For the most part, all of these appellate issues focus on the process and whether some person within that process made a mistake that harmed the Defendant. Notice that none of these potential appellate issues is a claim that the Defendant was not guilty. The decision of whether the Defendant was or was not guilty is usually reserved for the jury, and that decision cannot be appealed. However, there is a narrow class of cases in which the challenge is to whether the Judge made a mistake in even allowing the jury to decide on the Defendant’s guilt or innocence. We call these a challenge to the “sufficiency of the evidence.” In these types of appeals, the rules say that we have to essentially agree that all of the prosecutor’s evidence was true, but that even accepting all the evidence, there still was not enough facts to support a conviction.
The process of handling a criminal appeal or post-conviction matter is very time-consuming and detail oriented. The appellate attorney needs to review just about everything that happened in the trial court, from the evidence up through all of the hearings and other proceedings in court. The lawyer usually needs to pay for the “transcripts”, which are the written record of the proceedings that are taken down by the court reporter. After reviewing all the relevant material, the appeals lawyer then needs to write the oddly-named “Brief”, which is often a document that runs to 80 pages or more. The truly accomplished appellate attorneys then need to prepare for the “oral argument.” This is where the lawyer presents his or her points to a three-judge “Panel”. Paul still remembers his first win on appeal which came about when the oral argument convinced one of the Judges that the Defendant’s position was correct.
Paul Kish has handled appeals in courts throughout the United States. He has convinced many courts to reverse his client’s convictions and or sentences. While these earlier cases are no guarantee that he can achieve the same result in future matters, these rulings teach that anyone with a criminal appeal or post-conviction matter should consider working with only the most accomplished lawyers in this area of criminal defense work. Call Paul if you have an appellate or post-conviction case you’d like to discuss.