Chapter 7 Appeal / Retrial
The appeal process is pretty much a waiting game on your part. Hopefully you've completed your transcript analysis before your appellate attorney has filed his brief. If such is the case then you're in a good position to be in. I wasn't that fortunate and my attorney's brief was submitted long before my transcript analysis was completed. Consequently there were quite a few arguments that could have been included that got missed, but it didn't matter because I had most of the good arguments in my head when my attorney called on the first day to ask me what I thought my issues were. If I hadn't had that much together in my mind when he called I would have been in a far worse situation than I was. This is what I think happens to a lot of people when they reach this point. They don't know how to think like an attorney and as a result they are unable to recognize a valid argument to use on appeal. All they know is that they're angry and because of that anger they are inclined to use those events that angered them most. Unfortunately the events in trial that angered them most aren't always the ones that make the best arguments on appeal. This is where I think a lot of people go wrong in the appeal process, especially those individuals who decide to file their appeal on their own. This is also why it is best to have a jailhouse attorney review your transcript's. Having your case examined by someone who isn't so personally involved, who has some knowledge of the law, will allow you to see where your most valid claims for appeal are. I personally took advantage of this and recommend it highly.
After you win on appeal, things become very confused. Inmates will be coming at you out of the woodwork that you have never knew before, all wanting to give you their advice. 99.9 percent of it will be crap. One of the biggest areas of confusion concerns the retrial itself. There are those who will tell you that you can’t be retried after a reversal with a remand for new trial. There are those who will tell you that you can’t be retried after a reversal with a remand for new trial without new evidence. Both of these positions are 100 percent wrong. The reason why this confusion exists is because so many people never get to this position. Consequently there's nobody who has any direct and accurate knowledge about it. The truth is that when you file your rule 31 direct appeal you are in effect waving your double jeopardy rights. You are in effect saying, ", If the Court of Appeals will review my case and if they find cause to grant a retrial I give up my constitutional right to not be tried a second time." That's how things really work. This is why after appeal with a reversal and remand for new trial the only way to stop the second trial is through a claim of prosecutorial misconduct and in order to make that work you must have objected to the actions of the prosecutor in the first trial.
Proving prosecutorial misconduct is a very difficult situation. There are some interesting technicalities that are not readily known in regard to prosecutorial misconduct. For example, if the prosecutor commits an action that could be construed as prosecutorial misconduct, if your attorney fails to object to the prosecutor's actions, there is no foul. Your attorney has in effect given license to the prosecutor's actions. In addition to this, if the judge takes no action against the prosecutor by telling him to stop doing what he's doing, there is no foul. If both your attorney in the judge fails to object to the prosecutor's actions then you have no legal recourse at a later date. You are just screwed. Even if the prosecutor were to violate a statute in your trial, as long as the judge and your attorney remain silent about it, there's nothing you can do about it at a later date. You even lose your ability to use it as an argument on appeal. Now to those who have an inner sensibility of fairness this is going to seem outrageous. However the truth is, this is the way the game is played and these are the rules that decide the fate of men's lives in this country. If this isn't right, then only WE can do something about it and we have a moral responsibility to our fellow men to change it.
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