We have all heard of criminal appeals, but they aren’t a guaranteed route to a second trial. Just going to trial and loosing is not enough reason for an appeal to be granted.
In today’s episode Chuck explains the criminal appeals procedures in Arizona.
Last time I told you that I was going to talk about appeals in criminal matters, and that is what I am going to talk about.
It seems a majority of my clients believe that if they go to trial and lose, they can appeal. That is true, you can file your notice of appeal, but you need to have a basis for it and 99% of the time it has to be a legal error that was made by the court. An example would be this: I file a motion on your behalf to preclude certain evidence, the judge denies it. That evidence comes in, and it is pretty apparent that the jury hung their hat on that when they made a decision. They made a decision because of evidence that I tried to preclude and they found you guilty. If in fact the judge made an error and the court of appeals in Arizona, or the US Court of Appeals if you are in Federal court, determines the Judge did in fact make a legal mistake, then you probably get a new trial. They could also find that the Judge made a legal mistake, but that it would have no bearing one way or another on the Jury’s decision. Sometimes that is a little bit difficult to understand, they say it was a harmless error.
The point of me telling you this is that you don’t get two bites out of the apple typically. The other way (and I’m using this term loosely) in terms of an appeal. If you loose, you have 90 days from the day in which the verdict comes in and you are sentenced, to file what is called a Rule 32 Motion under the rules of Arizona Criminal Procedure. There are two parts to that that allow you to do this with a basis; One of those would be ineffective assistance of council. In other words, your lawyer slept through the whole trial, or you had an alibi. “Hey, I wasn’t there at the time” and it could be easily proven and your lawyer decided not to bring forward that evidence in front of a Jury. That may be considered ineffective assistance of council.
Another basis for a Rule 32 Motion is newly discovered evidence. There was something out there that you never got your hands on that would show that you were in another place. That means maybe some physical evidence or maybe a plane ticket or something and you finally found it. Then you would introduce it after you have been sentenced and the court will decide whether or not they should give you an evidence hearing to find out about the new evidence that was newly discovered. When they do, they can give you another trial. A lot of times when that happens, honestly you’ve been in prison for a couple of years, or if you’ve been in jail, you’ve served your time and you may end up getting vindicated in the long run, but you still missed a significant part of your life while this thing was all pending.
Appeals on criminal matters seem to take two years. Rule 32 petitions usually resolve within a year or two. Excuse me, within a year if it is ineffective council, if it is newly discovered evidence, it is when the newly discovered evidence was found, and then a year from then to run through your hearings and things. If that is denied then you can appeal that decision too. So you really don’t get a second bite of the apple in as much as a lot of people think “Well gee, if I loose I will just appeal it and get another trial.” It doesn’t work like that.
It is rare that a rule 32 petition is granted, and it is rare that an appeal is granted. So the odds are totally against you, in that if you loose you’ll get a second bite of the apple. That’s my point in explaining this to you. These are general terms. But I have seen very few criminal appeals granted.