Virginia Appeals Attorney
A good Virginia appeals attorney will have certain identifiable characteristics: A passion for the law; a keen eye for detail; an understanding of the vast differences between trial and appellate courts; and the ability to write a brief which won’t put the appellate judges to sleep. While persuasive oral argument is also important, as explained in the video below, most judges make their decisions based on the written briefs alone – long before your Virginia appeals attorney even appears for oral arguments. Additionally, a good Virginia appeals lawyer will possess a critical eye, discerning intellect, and an ability to quickly recognize the essential facts of even the most complex and challenging issues so that they are able to not only represent clients previously represented at the trial level, but to also represent clients who were represented at trial by an entirely different firm or attorney.
While the Law Offices of Randall Sousa primarily handles criminal matters, we are also highly capable of handling ALL forms of appellate matters including civil, probate, and family law-related matters. Likewise, we not only handle post-judgment appellate matters, but mandamus and interlocutory matters as well. By precisely and persuasively framing even the most complexed and nuanced issues, we possess the knowledge, skill, and expereince necessary to provide clients the best possible chance to prevail on appeal.
If you are seeking a knowledgeable, experienced, and affordable appellate attorney, contact us so that we can set up a consultation and provide you with an explanation of how best to proceed on appeal.
The Differences Between Trial and Appellate Matters
It is important to understand that appeals are entirely different from trials. At trial, the most important factor is whether there is enough evidence to convince the jury your guilt or innocence. Appeals, on the other hand, are solely focused on whether the trial court followed standard procedures or whether an error was made which undermines the integrity of the trial court’s decision.
On appeal, the court will not reconsider evidence or second-guess a jury’s decision. For example, even if there is a boatload of evidence which suggests that a witness may have lied, the appellate court will not reconsider whether the jury was correct in believing that witness. Instead, an appellate court is focused on errors which made the trial unfair to the defendant. The types of errors which can form the basis for your Virginia appeals attorney to argue for reversal are explained in greater detail below.
The Grounds Upon Which Your Virginia Appeals Attorney Can Argue for Reversal
As explained below, errors which provide the grounds for a successful appeal can include judicial or discretionary error by the trial judge, errors or misconduct by the Commonwealth’s attorney, errors or misconduct by your previous criminal defense lawyer, as well as misconduct by the jury.
In order to sustain a jury’s verdict, the evidence supporting the verdict must be sufficient. At first blush, you may be wondering how insufficient evidence can form the basis for an appeal when, directly above, we discussed how appeals courts do not reconsider evidence. But a great Virginia appeals attorney understands that legally insufficient evidence is a form of legal error. You see, your Virginia appeals lawyer will be able to use insufficient evidence as a basis for appeal by showing the appellate court that when the trial record is reviewed in its entirety, there is simply no way to support a guilty verdict – even when the appellate court, as it must, views the record in a light most favorable to the jury’s decision,
By way of example, let us assume that Jim is accused of murdering Mary. Jim is convicted of murdering Mary. The trial record, however, shows that Mary testified that Jim punched her in the face and hit her with a pool cue. But if Mary is alive, then there simply is no way Jim can be found guilty of murder because murder requires Jim to have actually killed Mary. Thus, even when viewing all the facts and evidence in a light most favorable to the jury’s decision, Mary is still alive and therefore, the evidence to support a Jim’s murder conviction is legally insufficient.
While this example is very straightforward, in practice, insufficient evidence is a very complicated appellate argument which requires a highly skilled and knowledgeable Virginia appeals attorney to frame the argument properly.
Your Virginia appeals attorney can help discover whether the prosecutor in your criminal case acted improperly. While prosecutors are duty-bound to aggressively prosecute criminal charges, they are also obligated to seek justice and to not bury exculpatory evidence which could actually prove that you were not guilty of the crime charged. When prosecutors fail to honor this duty, they can be found to have committed prosecutorial misconduct. If you believe a prosecutor engaged in some manner of misconduct in your criminal case or in a case involving a loved one, contact the Law Offices of Randall Sousa for a free consultation with a Virginia appeals lawyer. A few examples of misconduct are explained in greater detail below.
Prejudicial Reference to Inadmissible Evidence
Your Virginia appeals attorney can base your appeal on the improper reference to inadmissible evidence. For example, if a judge finds that you were not properly Mirandized, and excludes any possible confession you may have given, then no one – including the prosecutor, a witness, or the judge – can make reference to that confession in front of a jury. Thus, if a prosecutor is examining the arresting officer, and the officer tells the jury that you provided a confession, then that can form the basis for a mistrial, and a judge’s failure to declare a mistrial could very well form the basis for overturning your conviction.
Mentioning Items Which Are Not Entered as Evidence
The steps for admitting items into evidence are complicated. First, the item must be submitted to both the court and opposing counsel. Second, the party admitting the evidence must be able to explain how the evidence is relevant. Evidence is considered relevant if it has a tendency to prove or disprove an essential element of the case. Third, the item must be authenticated. Fourth, the evidence must satisfy the “best evidence rule.” The best evidence rule holds that, if the evidence is a document, it must be an original unless it can be proven that the original has been destroyed or, after a diligent search, cannot be located.
If certain evidence is not admitted into evidence, and opposing counsel mentions the existence of such evidence, it can serve as the basis for an appeal or mistrial.
It is well-settled that prosecutors may not intimidate defense witnesses as doing so violates a defendant’s right to due process.
Expressing an Opinion About Witness Credibility
Lawyers are prohibited from asserting personal knowledge or opinion regarding facts except when testifying as a witness. Prosecutors must refrain from interjecting personal beliefs and facts outside the record into argument before a jury. If a prosecutor improperly states an opinion concerning a witness’s credibility, it can form the basis for a mistrial.
Griffin error occurs when a prosecutor improperly comments or casts aspersions of guilt on the defendant merely because the defendant invokes their constitutional right to not testify at trial.
Brady Evidence Rule
The Brady rule requires that the prosecution must disclose any and all exculpatory evidence to the defendant in a criminal case. Exculpatory evidence is evidence which might exonerate the defendant. Your Virginia appeals attorney will only be able to determine whether a Brady rule violation has occurred after discussing the circumstances of your case, reviewing the trial record, and conducting an investigation.
Additionally, grounds for appeal can exist if the prosecutor fails to turn over evidence which can be used to impeach their own witness. Examples of such evidence include prior felony convictions of witnesses who testified against you at trial. Again, in order to know whether the prosecutor failed to turn over impeachment evidence, your Virginia appeals lawyer will have to review the trial record and the witnesses called by the Commonwealth.
Improperly Commenting on the Defendant Invoking Their Right to an Attorney
Prosecutors are forbidden from commenting on the fact that a defendant invoked their right to an attorney. In other words, a prosecutor cannot insult your criminal defense attorney or allude to your guilt merely because you chose to hire a lawyer. Likewise, the prosecutor may not allude to impropriety by your trial attorney merely because he or she questioned the victim’s credibility or stated that the “victim” made a false accusation against you.
Appealing to the Prejudices of the Jury
Prosecutors are duty-bound to zealously argue their case, but they cannot appeal to a jury’s sympathies. In other words, they cannot tell the jury that they should convict you in order to show sympathy to the victim. While it is okay to feel sorry for a victim, simply feeling sorry for a victim does not mean the defendant is guilty. The jury’s job is to determine who is responsible for the crime and the prosecutor’s job is to convict that person – not to try and obtain the conviction of a person who had nothing to do with the commission of the crime.
Misrepresenting the Law
It is misconduct for a prosecutor to misrepresent the law to the court or the jury.
Dismissing Jurors on the Basis of Race or Gender
If a defendant is Latino, it is misconduct for the prosecutor to dismiss all jurors who are Latino unless it is evident that these potential jurors are unqualified. Stated another way, it is blatantly improper and illegal for a prosecutor to dismiss Latino jurors merely because they believe these jurors might be inclined to acquit a defendant who is also of Latino origin.
While jurors generally obey their oath to carry out their duties in good faith, sometimes, jurors engage in misconduct and violate this oath and/or a judge’s orders. When this occurs, it is juror misconduct, and if your Virginia appeals attorney can show that such misconduct caused any prejudice to your case, it can result in your Virginia appeals lawyer having your conviction overturned. A few examples of juror misconduct are discussed in greater detail below.
- Speaking to Other People About the Case: Jurors are strictly forbidden from speaking about the case with their spouse, psychologist, or even their rabbi/priest. In fact, they are not even allowed to discuss the matter with fellow jurors until they are in deliberation. If there is evidence of the jury
- Jurors considering evidence from sources outside of trial
- Lying during jury selection
- Juror conducting unauthorized research about the facts or law of the case.
To be sure, juror misconduct is rare, and it will therefore require a careful evaluation by a Virginia appeals lawyer to determine whether your appeal could viably be predicated on such argument.
Judicial error is a fancy legal way of saying that the judge made a mistake. These mistakes usually involve an improper action or ruling by the judge. These types of errors include
- Refusing to exclude irrelevant or improper evidence
- Bias for the prosecution, their witnesses, or against the defendant
- Erroneously denying a motion to suppress evidence for illegal search and seizure.
Improper Jury Instructions
Improper jury instructions are actually one of the best ways for your Virginia appeals lawyer to find error. If the judge provides improper or erroneous instructions to the jury, they have committed legal error. Importantly, even if your trial lawyer failed to make a timely objection to this error, you Virginia appeals attorney may still be able to have your conviction overturned.
Ineffective Assistance of Counsel
If your trial lawyer did a poor job or was ineffective, your Virginia appeals attorney can have your conviction reversed. A lot of confusion exists concerning what “ineffective assistance of counsel” actually means. To be clear, in legal parlance, the term “ineffective” means that your trial attorney had a duty to do something, but failed to do that thing, and no reasonable criminal defense attorney would have acted in such a manner. However, courts across the country, including the United States Supreme Court, have ruled that what some may consider “ineffective assistance of counsel” is instead merely a tactical decision your attorney made, and if this choice could be logical or valid, then an appellate court will not second-guess your attorney’s choice.
A good example would be if a prosecutor tries to have irrelevant and prejudicial evidence admitted and your trial lawyer fails to make a timely objection. While this could be viewed as “ineffective,” if the lawyer can explain that the reason for failing to object was because it may have led to the prosecutor to seek additional evidence which may have been even more harmful than the current evidence, and this evidence would be relevant and properly admitted, then this could be a legitimate tactical decision. Thus, it would not be considered ineffective. The reality is that trials are a war, and as we all know, sometimes, in order to win the war, you must make certain concessions and lose certain battles. Not every fight is worth fighting.
Examples of situations where your Virginia appeals attorney can argue that you received ineffective assistance of counsel include:
- Failing to investigate a case when such failure causes the attorney to not locate or speak with a key witness for the defense
- Failing to move to suppress evidence when the law and facts support that the evidence had been wrongfully or illegally obtained
- Failing to call a key witness
- Failing to subpoena items or documents which could have resulted in acquittal
- Failing to advice the defendant of the consequences should they plead guilty – including that a guilty plea may result in deportation
- Failing to communicate offers for a plea bargain
- Failing to explain the applicable law in the defendant’s case
- Advising the defendant to plead guilty even when there is no evidence supporting guilt
As I’ve discussed before, many attorneys – including the public defender’s offers – are often overwhelmed with their case load and simply spread too thin to provide the representation you truly deserve. That is why, if you feel that your attorney may have failed to provide you effective assistance, that you contact a Virginia appeals lawyer to discuss whether you can have your conviction overturned on this basis.
Forms of Error
There are two types of error – plain error or harmless error. Each of these types of error are subject to a different analysis.
The plain error rule applies to errors which are so serious and prejudicial that they require the conviction to be overturned irrespective of how compelling the evidence against the defendant may have been. According to the Supreme Court, the following types of errors will result in automatic reversal of a criminal conviction
- Depriving a defendant of legal counsel
- A biased judge
- Excluding jurors on the basis of race
- Refusing to allow the defendant to engage in self-representation
- Denying the right to a public trial
- Failing to instruct the jury of the reasonable doubt requirement
If any of the foregoing happened to you during your criminal trial, you will want to speak with a Virginia appeals lawyer as soon as possible as these sorts of incidents are per se harmful.
While all defendants are entitled to a fair trial, they are not entitled to a perfect trial. That means that although there may have been error or misconduct, this alone does not require that your conviction be overturned. Generally, there must be a showing of harm. In other words, your Virginia appeals attorney must be able to show that, absent the error or misconduct, you would have obtained a more favorable result. Consequently, the more serious or numerous the errors, the more likely it is that your Virginia appeals lawyer will be able to have your conviction reversed.
If the error is found to be a violation of your constitutional rights, then the prosecution must show that the error did not contribute to the jury’s finding of guilt. Thus, the Commonwealth would need to convince the appellate court, beyond a reasonable doubt, that the error did not contribute to you being found guilty. If the prosecution cannot satisfy this burden, then your conviction will be overturned.
Contact a Virginia Appeals Lawyer Today
If you wish to appeal a ruling or sentence, contact the Law Offices of Randall Sousa for a free consultation with a Virginia appeals attorney for a free consultation and we will then be able to determine whether we can help you. 571-354-6164
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Randall Sousa, Esq.
Fairfax Criminal Defense Attorney
Telephone: 571-354-6164 | Mobile: 571-328-6825
Toll Free: 800-875-6022
2920 District Ave. Suite 524
Fairfax, VA | 22031
By: Randall Sousa
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The Law Offices of Randall Sousa provides clients throughout Virginia with affordable, professional, and aggressive criminal defense legal services. If you have been arrested, charged with a crime, or are under investigation, call us now for a Free Consultation.
Fairfax Criminal Defense Attorney Randall Sousa possesses a deep commitment and passion for criminal defense, and he is relentless when it comes to fighting for his clients in each and every case.
Law Offices of Randall Sousa
2920 District Avenue Suite 524 Fairfax, VA 22031