Legal Blog

What Does Ineffective Assistance of Counsel Mean?

Published on October 31, 2019

If your criminal defense lawyer is in over their head or incompetent, you could be convicted where an acquittal or dismissal was possible or even likely. That’s why courts in the United States allow criminal defendants to claim ineffective assistance of counsel–either during or after their trial. When an appeal is made based on the ineffective assistance of counsel, you may be eligible for a retrial. When you make a motion for ineffective assistance of counsel during a trial, the court may allow you to hire a new attorney.

At Spolin Law, P.C., we can help undo the damage done by a subpar criminal defense lawyer. Our California criminal appeals lawyers will review what happened at your trial and determine if an ineffective assistance of counsel claim is possible.

For more information about appealing a criminal conviction for ineffective assistance of counsel, call us today at (310) 424-5816 for a consultation.

The Sixth Amendment Guarantees Your Right to Effective Counsel

The right to legal counsel originates in the sixth amendment to the United States Constitution. The constitution only says you have the right to a lawyer, but the United States Supreme Court has ruled that the right to a lawyer during a trial would be useless if that lawyer were ineffective. In other words, having an incompetent lawyer is a deprivation of your right to due process comparable to having no lawyer at all.

But lawyers — even the best ones — sometimes make mistakes. And since many of these mistakes are harmless, it wouldn’t make sense for a court to grant a new trial every time a defendant’s lawyer made a bad call. For this reason, the Supreme Court has developed a test for determining if a defendant has been the victim of ineffective assistance of counsel. Specifically, the test requires two elements.

First, the defendant must show that their lawyer’s representation fell below an objective standard of reasonableness. If your lawyer commits an obvious lack of discretion or performs an act or omission that they cannot adequately explain, then they may have fallen beneath this standard. But if your lawyer can reasonably explain that what they did was part of their strategy, then the court will generally not second guess them — even if their strategy was flawed.

Second, you need to show that your attorney’s failures caused significant prejudice to you. This requirement is met only when the court finds that there is a reasonable probability that, if your lawyer hadn’t made the mistake, the case outcome would have been different. This means that you need to show that your lawyer’s incompetence was the primary reason why you were convicted — as opposed to the strength of the prosecution’s evidence against you.

You Need to Show That Your Lawyer’s Mistakes Caused a Bad Outcome

There could be several instances where your lawyer might have made a mistake, but it still wouldn’t count as ineffective assistance of counsel. For you claim to succeed, you need to demonstrate that your lawyer did something that no reasonable lawyer would do, such as:

  • Failing to challenge unlawfully obtained evidence
  • Failing to object to inadmissible evidence or testimony
  • Missing deadlines for motions
  • Failing to motion for the dismissal of a proceeding when the prosecution is clearly lacking enough evidence to convict you

You can make a motion for ineffective assistance of counsel during your trial if you feel that your lawyer is not performing their duties. Alternatively, after your trial and conviction, you can file an appeal on this basis. Usually, you only have 30 days to appeal a misdemeanor conviction and 60 days to appeal a felony. But there are other appeal options with longer deadlines, and if you had ineffective counsel at trial, a court might be willing to accept a late notice of appeal. For instance, if your trial lawyer did not tell you about the possibility of appealing, or told you they were appealing but then didn’t follow through, the appeals court may be willing to accept a late notice of appeal.

If the court grants your ineffective counsel motion during the trial, the court may appoint — or you may choose — a new lawyer, who may then request a new trial depending on how much damage to your case was done. If the court of appeals grants an appeal based on ineffective assistance of counsel, the court may vacate your conviction and grant a new trial. If the ineffective assistance of counsel occurred during sentencing, they may grant a new sentencing hearing.

A Los Angeles Criminal Appeals Lawyer Can Help

Many defendants fail to take advantage of the many rights afforded by the criminal justice process. If you feel that your lawyer has been falling short of their duties, or that for any other reason your trial did not unfold fairly, you may have a basis for filing an appeal. Even if you are no longer in a position to file an appeal, you may be able to take alternative post-conviction action such as filing a writ of habeas corpus.

To learn more about your options for overturning a California criminal conviction, call Spolin Law P.C. today at (310) 424-5816.

Categories: Appeals

Jury Instruction Errors & When to Appeal

Published on October 25, 2019

Jury deliberations are meant to be private, but if the jurors are given improper instructions, they won’t be able to reach a fair verdict. If the judge tells the jury the wrong legal standards to apply or to consider inappropriate evidence, they may find someone guilty when they should have reached the opposite conclusion. As a result, jury instruction errors are a common reason for appealing criminal convictions.

A criminal conviction is not necessarily final. You can appeal a conviction, but the clock starts ticking as soon as your sentence is issued. In most cases, you have only 30 to 60 days to file an appeal, but as we’ll discuss, there are some exceptions. If you or a loved one has recently been convicted of a crime, an appeal may be the only way to avoid devastating criminal penalties.

For a consultation with a Los Angeles criminal appeals lawyer, call Spolin Law, P.C. at (310) 424-5816 today.

Bad Jury Instructions Can Ruin Your Chance at a Fair Trial

When a jury decides criminal cases, the judge’s role is essentially to control what happens in the courtroom. This means ensuring that the jury understands the legal standards, hears only admissible evidence, and prevents improper arguments from the prosecution or defense. When a judge fails in this role, you may file an appeal if you can show that the judge’s failures negatively affected the outcome of your case.

The most common reasons for appealing a criminal conviction are:

  • improper introduction of evidence or testimony,
  • insufficient evidence to support a conviction, and
  • improper jury instructions.

The judge issues their jury instructions at the end of a trial, once the prosecution and defense have presented all of their evidence and arguments. The judge instructs the jury about the factual elements of each offense, what evidence they should consider for each issue, and how much evidence is needed to prove the elements.

If the jury receives improper instructions, it’s likely they will not reach the correct verdict. In this case, you can and should appeal. If you get convicted of a felony, you have 60 days to appeal. If the conviction was for a misdemeanor, you have only 30 days. But if you miss these deadlines, you may still be able to appeal if you can show that the trial attorney failed to perform their duties relating to the appeal, or that you constructively filed your appeal within the time limits.

California Makes Some Exceptions to the Appeal Deadline

California Penal Code section 1240.1 requires your defense lawyer to give you “advice as to whether arguably meritorious grounds exist for reversal or modification of the judgment on appeal.” This means that if your lawyer failed to tell you about the possibility of an appeal, you may still be able to file after the deadline. What‘s important is that you file as soon as possible after learning about your right to appeal.

Similarly, if you ask your lawyer to file an appeal, and they fail to do so in time, your right to file an appeal is generally preserved. Finally, in felony cases and contested probation revocation hearings, the judge is required by Rule 4.470 of the California Rules of Court to notify the defendant of the possibility of filing an appeal. The bottom line is that if you were never informed of your right to appeal, an appeals court will probably let you file late.

Another way to file an appeal after the deadline is to show a constructive filing. This usually happens if you try to file an appeal from prison by mail, and your appeal doesn’t make it to the court on time. But as long as you can show that you asked the jail or prison to mail your notice of appeal before the deadline, the court will consider that you constructively filed on time–even if your notice arrives late.

You may also benefit from the doctrine of constructive filing if you are representing yourself. The court will generally be more lenient in such cases. For example, if you send a notice of appeal on time, but to the wrong court, you may get extra time to send it to the correct court. Also, if a court officer or administrator gives you misleading information about your right to appeal and how to file, the court will take this into account and could grant you an extension.

If You Miss the Deadline, There May Be Appeal Alternatives

The appeals process is not the only way to overturn a criminal conviction. If you miss the appeals deadline, you can look into filing a writ of habeas corpus, which is a formal challenge to illegal detention. If successful, this legal action will have a similar effect to an appeal. But the difference is that there is a different and vague time limit on filing, and you can present new evidence when prosecuting your writ of habeas corpus.

Contact Spolin Law P.C.

Remember that your fight is not over when the judge hands down your sentence. At Spolin Law P.C., we will review the trial judge’s jury instructions for errors and be by your side at every step of the appeals process. Alternatively, if new evidence comes to light regarding your case, we may be able to file a habeas corpus writ on your behalf.

Call Spolin Law, P.C. today at (310) 424-5816 for more information about your options for overturning a California criminal conviction.

Categories: Appeals

The Essentials of the Appellant’s Brief

Published on October 18, 2019

After a criminal conviction, you don’t have to give up. You have the right to appeal the judgment, and if successful, you may get your conviction overturned. But, keep in mind that the appeals process is difficult, and many who attempt it on their own fail–or miss critical deadlines. An appeal is not a new trial. You don’t present new evidence, the judges don’t hear testimony, and they don’t retry the case. Instead, the judges are there only to decide if some legal error occurred and if that legal error resulted in your unjust conviction or sentence.

For these reasons, you should seek the assistance of an experienced appellate lawyer. Reviewing trial transcripts, searching for potential errors, researching legal technicalities, and writing a convincing brief are skills best gained through consistent appeals experience. At Spolin Law P.C., our track record of success in the appeals process speaks for itself.

Call us today at (310) 424-5816 to schedule your consultation.

An Appellant’s Brief Must Show Harm by Error

At your trial, you were the defendant. But when you appeal your case, you become the appellant. The state becomes the respondent.

As the appellant, you are responsible for showing that your conviction or sentencing was negatively affected by a legal error, either during or before your trial. Your appeals lawyer will write a brief on your behalf to convince the appeals court that your trial was unfair.

The appellant’s brief must be thoroughly researched, clearly written, and meticulously presented. It should give the appellate court an overview of the case, single out the issues that harmed you, and provide reasons why these issues amounted to legal error.

Common grounds for appealing a criminal conviction include:

  • The judge allowed the jury to hear evidence that it should not have
  • The judge wrongly denied a pretrial motion to suppress evidence or to dismiss the charges
  • The judge did not follow the sentencing guidelines or abused their discretion
  • The jury considered factors other than those presented in reaching their verdict
  • The jury convicted you even though the prosecution did not meet its burden of proving beyond a reasonable doubt that you committed the crime
  • The jury engaged in misconduct during the trial or its deliberations
  • The defense lawyer provided ineffective counsel
  • The prosecutor acted unethically, such as hiding exculpatory evidence from the defense

If one of these errors applies to your case, but you can’t prove that it was prejudicial to you, the court will consider it a harmless error and deny your appeal. For example, you can’t get your conviction overturned just because the judge wrongly allowed one small piece of evidence into the case. You would need to show that this evidence was crucial to the jury’s decision to find you guilty.

The state, or respondent, will file their own brief to attack the arguments your lawyer raised in the appellant brief. Your lawyer has the option of filing a reply brief to address the respondent’s arguments. After an oral argument, where your lawyer and a lawyer for the state will answer questions from the appeals judges, the court will hand down a decision.

If the court grants your appeal, they may reverse the conviction, order a new trial, or schedule a new sentencing hearing. If the appeals court decides against you, you may still appeal to the California Supreme Court. But only cases that present novel or significant issues of law generally make it onto the Supreme Court’s docket.

A Southern California Appeals Lawyer Can Help

If you or a loved one have been unfairly convicted of a crime, it is time to consult with an appeals lawyer. But time is of the essence because you generally cannot file an appeal more than 60 days after the judgment.

At Spolin Law P.C., we will swiftly review your case file to determine if your conviction should be appealed. To schedule your consultation, call us today at (310) 424-5816.

Categories: Appeals Criminal Law Defenses

Steps to Filing an Appeal on Someone’s Behalf

Published on October 8, 2019

When someone is convicted of a crime, it’s not necessarily the end of the road. You can file an appeal on their behalf. This is essentially asking a higher court to review the trial to ensure that no legal errors occurred. Although the process can take a long time–up to two years in some cases–you only have a short window to file a notice of appeal. For this reason, you should consult an appeals lawyer immediately after the trial court’s judgment is handed down.

At Spolin Law, P.C., we have helped many Californians challenge court rulings that would have resulted in lengthy prison sentences and crippling fines. Our experienced appeal lawyers know how to write effective appellate briefs and what it takes to advocate for the desired case outcome. If you or a loved one has been unfairly convicted of a crime, consider filing an appeal before it’s too late.

Call our California appeals attorneys today at (310) 424-5816 for a consultation.

How to Succeed in the Appeals Process

The hard truth is that few people succeed in having convictions or sentences overturned through the appeals process. Those who do succeed put every factor in their favor by hiring an experienced legal team and starting the process on time.

You will need a skilled attorney on your side to ensure that you properly navigate all of the following:

  • Filing a notice of appeal — For misdemeanors, the appeal must be filed with the Appellate Division of the Superior Court no more than 30 days after the final judgment is entered–which is the sentencing hearing in a criminal case. For felonies, you have up to 60 days to file a notice of appeal with the California Court of Appeal. If you are appealing a federal conviction, you have 14 days to file the notice with the United States Court of Appeal for the Ninth Circuit.
  • Request release on bail – Since the appeals process is so long; most appellants try to get released on bail while awaiting the end of the process. The court may decide to release you on your own recognizance or make you pay a bond. In either case, your ability to travel will be limited while out on bail. If the court considers you to be a threat to public safety, or if they think you might run away, they will not allow your release on bail.
  • Get the trial record — A strong appeal argument doesn’t present new evidence or a new angle on the case. It’s about showing that a legal error committed during the trial resulted in an unjust outcome. Your appeals lawyer must make all of their arguments based on the trial record, which includes all transcripts and motions from the trial proceedings. It’s also helpful to meet with the lawyer who represented the defendant at trial because they will have insight into the proceedings.
  • Isolate and research the appealable issues — Based on the review of the case record and discussions with the trial defense team, your appeals lawyer will determine which issues to raise on appeal. Once the issues are isolated, they will need to conduct thorough legal research to get the strongest authority behind their argument. They will also need to anticipate what arguments the state will make and figure out ways to counter them.
  • Write the appellate brief — Writing a strong appellate brief is as much a skill as it is an art. It must be clear and concise yet thorough enough to make a compelling and airtight argument. It should also anticipate and discredit the arguments the state might make in their brief. In addition to these substantial issues, the appellate brief must follow strict formatting requirements that cover everything from paper color to font size. After the state files the respondent brief, the appellate side has the option of filing a reply brief to rebut the state’s arguments.
  • Prepare for and attend the oral argument — Most judges make up their mind on the case when they read the briefs. So by the time the oral argument comes around, they already know how they are going to vote. But the appellant must use this opportunity to convince any potentially undecided judges to vote in their favor. The things that may sway a jury at trial do not work at oral argument, where the advocate must carefully present and answer questions from the judges about legal theory.

After the oral arguments, the judges will write an opinion that contains their ruling on the appeal and the reasoning behind it. If the appeal is granted, they may vacate your conviction, or order a new trial or sentencing hearing. If they decide against you, you can still file another appeal to a higher court of review–either the California or United States Supreme Court–but these courts only take on cases that present new or significant problems of law.

Get Help with the Appeals Process Today

For many people, filing an appeal is their last chance to avoid years or even life behind bars. At Spolin law, P.C., we don’t take this responsibility lightly. We do everything in our power to successfully lead our cases through the appeals process. If you or a loved one has been convicted of a crime, time is running out to file an appeal.

Call us today at (310) 424-5816 for your consultation.

Categories: Appeals Criminal Law


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