Post-Conviction Primer

Usually, before I put these entries together I wonder if there is a right or wrong way of writing a blog.  I imagine they are diverse.  I’m just not in a situation where I can look for myself. So with this in mind, I will always invite suggestions and try to answer questions that come my way.

Today’s Entry Covers

  • Post-Conviction in a nutshell and status
  • Something to look back on
  • Developments

Post-Conviction: Nutshell Primer & Status

 

I believe it would be beneficial for everyone reading to have some semblance of the post-conviction process and landscape for inmates.  This includes proceedings and factors controlling the how, who, and what you can and can’t do.  There are several reasons why law books are dauntingly thick, one of them is that they use a lot of words in order to narrowly define pretty much everything.  Going forward, this is the everyday English version as it applies to me.

In New York, if you are convicted of a felony at trial you have the right to appeal your conviction to the Appellate Division.  When appealing your conviction, you are limited to arguing only the issues which were objected to and present on the record (e.g. motions, exhibits, and trial transcripts). These parameters stay in effect throughout the layers of the appeals process unless you file a motion to expand the record.  We will come back to this and other controlling factors, but for the moment let’s continue along the court roadmap.

If you are shot down at the Appellate Division you can request permission to enter the Court of Appeals.  Entry is discretionary and not a right.  The Court of Appeals is the highest court in the state of New York. From this point, we move into the federal system which consists of District Court, Circuit Court, and the highest court in the country, the United States Supreme Court.

Along the way there are strict timelines and rules you must adhere to.  At present my deadline for submission to the Federal District Court was March 4, 2016. Which I barely made due to some issues with the mail here.

Back to expanding the record. This is done in order to present new issues such as new evidence, challenges to the truthfulness of testimony you must first raise it in a motion which gets submitted to the trial court and that court can decide if it would have effected the jury’s finding of guilty.

Since my trial lasted a mere three days there isn’t much of a record to appeal.  The court appointed counsel not having prepared any defense does not help. So a lot of my focus is on collecting evidence to demonstrate my innocence.  This takes on many forms, some is analysis of physical evidence, and some is providing records to refute statements made by prosecution witnesses.  Ultimately, all of this will get folded into a motion and submitted to the trial court.

It is worth noting, how difficult this is to do from a prison cell.  As this blog and site evolves you will come to learn some of the reasons why. For an authoritative view read Laurie L. Levenson’s article, Searching for Injustice: The Challenge of Post- conviction Discovery, Investigation and Litigation (S. Cal. Law Review, 2014).  This article provides of picture of what I am faced with.

Something to Look Back On

Immediately after this conviction was a very difficult period for me.  One of the few things I drew strength from was the actions of an anonymous source – unless I learn otherwise, a complete stranger – I Had been informed about comments being made on a local newspaper’s website.  The comments were mostly negative with few exceptions.  One person, who seemed to have more than a cursory knowledge of legal proceedings went to bat for me at length.  The person used the screen name js4480.

While something such as this is seemingly inconsequential, it helped me at that time.  I plan on providing credence to these comments.

Developments

Sometimes even small victories deserve mention.  A couple of weeks ago, I received some records I had been trying to get for nearly three years.  Had I been wiser to the law this time could have been cut down significantly.

These records merely identify who the investigator was that the court appointed counsel hired to assist in the preparation of my defense.  I had never met him not knew his name and there exists no record of his work in the case file my former attorney turned over. I Have since written him request the records of his investigation.  I will keep everyone posted as to what comes of this.

 

 

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