Postconviction Relief: Direct Appeals and Habeas Corpus

 Posted on January 27, 2023 in Uncategorized

Some lawyers try cases.

Some lawyers handle appeals.

We do both.

Trial practice makes a lawyer better at appeals (because he sees what's really happening in a trial court that the "cold record"-the transcript and the documents-doesn't reveal). Appellate practice makes a lawyer better at trials (because he learns more law, and sees, from reading cold records, how trial lawyers screw up at trial).

When a lawyer who handles trial cases says to me, "I'm not really a 'law lawyer,' I'm more of a trial lawyer," I think, what are you doing in trial, if not law?

After a defendant has been convicted at the hands of one of these more-of-a-trial-lawyers, he might go to a postconviction lawyer. "My lawyer didn't do a very good job," he might say, "he didn't object to anything!"

Sometimes nothing happens to object to. Sometimes something happens, and the not-really-a-law-lawyer does not object, either because he doesn't know to object or because he "doesn't want to piss the jury off." (Juries don't get pissed off at lawyers objecting. Juries expect lawyers to object!)

So now the defendant has been convicted and sentenced, and he comes to us for his direct appeal. And we have to tell him, "the fact that your lawyer didn't do a good job at trial is actually not helpful." One part of being a good trial lawyer is preserving error-making the objections that will allow an appeal lawyer to make the argument on appeal, "the judge made a mistake, trial counsel told her at the time it was a mistake, and it was harmful to defendant." There are not many arguments we can make on appeal that don't require an objection at trial. On direct appeal, ineffective assistance of counsel is almost never going to be a winning argument.

If the direct appeal fails, though, a defendant has a right to file an application for writ of habeas corpus. Basically you get one shot at habeas, so it's important to do it right. In a writ of habeas corpus proceeding, we can get other facts before the court than the cold record-we can include affidavits of witnesses to the lawyer's deficient performance, and the court may require the lawyer to respond.

So those-direct appeal and habeas corpus-are the two ways to get relief from an unlawful conviction-two forms of "postconviction relief."