How I Do Post-Conviction Relief
There are a number of differences between an appeal and a petition for post-conviction relief. The major one is that in an appeal, you’re limited to the record – what’s in the transcript and the court pleadings. In a post-conviction relief proceeding, you can present anything “outside the record”: testimony, documents that weren’t introduced in trial, affidavits, and the like.
For example, I had a case where my client had been convicted of murdering his wife and served twenty-three years of a life sentence. He insisted to me that the shooting had been accidental; the gun went off when the wife grabbed it after he had taken it away from her. She’d been in the hospital for almost three hours before she died, and I got the medical records from that hospitalization. There were seven separate instances where she told medical staff that the wound had been self-inflicted. I managed to get a copy of the medical records that the prosecutor had submitted to the jury at trial, and found that he’d removed every one of the pages which mentioned that. The client was released. The actual medical records couldn’t have been introduced at trial or on appeal; they weren’t part of the “record.”
Post-conviction relief is based on a violation of constitutional rights, and the vast majority of petitions argue one of two things: that the defense lawyer was ineffective, or that the prosecutor hid evidence. In handling these cases, I’ll look at the whole record. And not just the transcript and the pleadings; I’ll do a public records request for the police file. I can compare the reports to the testimony of witnesses. In one case I found that the State’s key witness, who had identified my client in court, had told the police when he was interviewed after the crime that he couldn’t identify anyone.
You need a lawyer who fully understands how to navigate the procedural maze of post-conviction relief, who will investigate your case to make sure that all of the evidence that wasn’t presented at trial is presented here, and who can craft the legal arguments which give you the best chance of winning. I’m that lawyer.
How Does Post-Conviction Relief Work?
Post-conviction relief works differently than an appeal – you can go “outside the record” – but offers a more limited set of issues you can raise. And they have to be issues that you couldn’t raise on appeal. You can’t argue that the evidence wasn’t sufficient to convict you, or that the judge let in evidence that he should have kept out, because those are issues that you should’ve appealed. In post-conviction relief, you’ve also got to show that your constitutional rights were violated; a claim that your conviction violated a rule or a statute isn’t enough.
The timing is also different. You have one year to file a post-conviction relief petition, with the time starting to run from the date the transcript in your appeal is filed with the appellate court, or, if you don’t appeal, from thirty days after you’re sentenced. If you file the petition after that, you have to show that you were “unavoidably prevented” from discovering the information the petition is based on. The petition is filed in the trial court. Unlike motions for new trial and other post-conviction remedies, the filing of an appeal doesn’t divest the trial court of jurisdiction to hear the petition; you can file for both.
Also, unlike an appeal, the trial court can conduct an evidentiary hearing and hear witness testimony. There may even be circumstances where you can issue subpoenas for documents.