Twenty-one years ago I got a client’s murder conviction reversed for the first time. Since then, attacking verdicts and sentences resulting from unfair trials has been a main focus of my career. Trials and appeals are very different things. Usually an appeal isn’t concerned with which witnesses told the truth; it’s about what mistakes the judge, the prosecutor, the jurors, or the defense lawyer made that caused the trial to be unfair. Representing someone on appeal requires many of the same skills that trial lawyers need, but appellate lawyers also have to stay on top of new legal developments, understand the complicated rules and procedures of the appeals courts, and figure out which arguments to make and how to present them. Many fine trial attorneys don’t handle appeals at all. But appeals are my specialty.
In many ways, Georgia is a tough state for someone accused of a crime, but the state’s appeal process does allow two bites at the apple — two chances to reverse a sentence, conviction, or both. The first “bite” is the motion for new trial. It is heard in the Superior or State Court, usually by the same judge who presided at the trial. A basic motion for new trial needs to be filed within thirty days of sentencing. Then, when the transcripts of the trial and court hearings become available, the attorney reviews the record carefully, does an investigation, and files an amended motion pointing out the specific reasons that the trial was unfair.
Putting together a successful motion for new trial can involve investigating facts and legal defenses that were never presented to the jury. Some of my most rewarding wins have been at the motion for new trial stage. Because they never reached an appeals court, these cases went “under the radar” and didn’t result in published decisions. But each victory gave my client a second chance to clear his or her name, or in some cases led the way to a much better plea bargain than the client was offered prior to trial.
If a motion for new trial is unsuccessful, most cases go on to the Court of Appeals, although murder cases, and a few others, go directly to the Georgia Supreme Court. By this time all the evidence is in, and the higher court will make its decision based on the attorneys’ arguments which are always in writing (“briefs”) and may also be presented in person. In over twenty years of practice I have lost count of the number of cases I have briefed and argued on appeal, but it’s surely in the several hundreds, in both state and federal appeals courts in Georgia, New York, and California. Among other wins, I have persuaded courts to overturn armed robbery convictions, to suppress evidence that law enforcement got and used illegally, to dismiss a murder case on speedy trial grounds, to cancel a judge’s order that my client could be tried a second time after the jury deadlocked, and to stop the State of Georgia from enforcing part of its tough sex offender law. I consult formally and informally with other attorneys about how to argue their appeals, and sometimes experienced trial lawyers bring me on to their teams to handle their work in the state’s highest courts. I enjoy the work, I do a lot of it every year, I know the right procedures to follow, and I consider every angle to defend my clients.