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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Tag: appellate law

You’ve been found guilty – now what?

Chris Perri

Photograph by  Stefan Kalweit

Photograph by Stefan Kalweit

Being convicted of a crime can have devastating consequences, including incarceration, loss of civil liberties, and difficulty finding a job. Yet the unfortunate truth is that people are wrongfully convicted all the time. That said, a guilty sentence doesn’t mean the fight is over. A major part of my practice focuses on post-conviction remedies, which can be categorized into two types: Appeals and Writs. Here, I’m going to explain the differences between these two procedures.

APPEALS:

Following a judgment of conviction, defendants have 30 days to alert the trial court that they want to appeal, so it’s important to quickly find a post-conviction criminal defense attorney. On appeal, the defense must argue that the trial judge erred in ruling on some issue in the case. For example, many defendants unsuccessfully argue to the trial judge that their vehicle was illegally searched during a traffic stop. If the trial judge rules that the search was legal, defendants can appeal this ruling to the Court of Appeals. The appeal proceeds “on the record,” meaning that no additional evidence can be presented in the appellate proceedings (the “record” is the transcript of the proceedings at the trial). A defendant cannot raise an issue for the first time on appeal, as there can be no error by the trial judge if the issue was never brought before that judge for a ruling. In other words, the error must be “preserved” in order for it to be considered on appeal.

Normally, an appeal is only available if the defendant lost at a trial or evidentiary hearing. When a defendant pleads guilty and the judge sentences that defendant according to a negotiated plea bargain, there’s nothing to appeal, even if the defendant is unhappy about the result of the case. In such a situation, a defendant should consider filing a writ, which is discussed below.

WRITS:

Sometimes, new evidence arises after a conviction becomes final. In order to present this evidence to the court, a defendant must file an application for writ of habeas corpus. In Latin, “habeas corpus” means “produce the person,”, and if the court issues the writ, it is directing the prison warden to release the defendant, usually for a new trial.

Writs are different from appeals because new evidence can be presented to prove the claim the defendant is making. For example, if the defendant believes there is new scientific evidence that proves their innocence, this evidence can be introduced through a writ. The most common claim on writs is “ineffective assistance of counsel,” meaning that the trial attorney committed some type of error or omission that deprived the defendant of their constitutional right to effective assistance of counsel and a fair trial.

The defendant carries the burden of proving any writ claim. “Innocent until proven guilty” no longer applies once a defendant is convicted, so the attorney handling the writ must use investigative tools to develop the claim. Writs are commonly used when a defendant pleads guilty based on bad advice from their lawyer, such as incorrect advice about the immigration consequences of a conviction. As explained above, an appeal is not available in those situations because the trial court never ruled adversely on an issue; however, a writ allows the defendant to develop a record regarding the trial counsel’s alleged ineffective assistance.

One of the most famous writs in Texas criminal law history involved Michael Morton, who was wrongfully convicted of murdering his wife in Williamson County and spent nearly 25 years in prison. Morton’s writ lawyers proved that the prosecutor hid evidence that a third party committed the murder, and Morton was ultimately set free.

If you or a loved one has been wrongfully convicted of a crime, contact an experienced post-conviction attorney for a consultation. Chris Perri Law has experience successfully overturning wrongful convictions and helping people get back their lives and liberties. Call Chris at (512)917-4378.

The Leading Causes of Wrongful Convictions

Chris Perri

Photograph by  James Faulkner

Photograph by James Faulkner

No country locks up more people than the United States of America. Even worse, many of those in prison are innocent. According to The Innocence Project, an important criminal justice advocacy group, below are the four leading causes of wrongful convictions.

1. Eye Witness Misidentification is the single greatest cause of wrongful convictions. We know this because later found DNA evidence often proves a witness’s testimony to be inaccurate. Usually, eye witnesses are not trying to lie, but perhaps after viewing a lineup of suspects, they feel pressured to make a choice and then stick to it. Or sometimes, a case is very old, and it’s difficult for a witness to remember exactly how the defendant appeared and to know how they’d appear now. Still, confident eye witness testimony can be very convincing to jurors even though we all know memory is flawed.

2. Improper Forensics is another contributing factor. If a seemingly credible expert gets on the stand and spouts out questionable science, juries are likely to trust them. Further, the mishandling of scientific evidence can lead to major problems. Take for instance when mistakes at the DNA Lab in Austin put the credibility of nearly 5,000 convictions in question. Though forensic science has come a long way, it’s still administered and analyzed by people. Therefore, there is room for major error.

3. False confessions are another huge problem. It can be hard to believe, but many innocent people confess to crimes they did not commit. This is especially true with children, adolescents, and those with mental disabilities. Why do innocent people admit guilt? The reasons vary, but duress, coercion, confusion, or fear of a harsher sentence if they don’t plea are some of the most common reasons.

4. Incentivized Informants/Snitches is the fourth leading cause of wrongful convictions, and it’s easy to understand why. If a witness is paid to testify or is offered something in exchange, such as release from prison or a reduced sentence, their information is less credible. The informant is motivated to say what the prosecution wants to hear.  

Many other factors contribute to wrongful convictions, such as ineffective legal assistance, false reporting, and withheld evidence. The best way to avoid a wrongful conviction is to have a zealous criminal defense attorney by your side from the beginning. That said, if you do find yourself or a loved one wrongfully convicted, don’t lose hope. An experienced post-conviction appellate lawyer can still help. Though overturning a conviction is an uphill battle, it does happen. Chris Perri Law has successfully reversed convictions through both Appeals and Writs.

Whether you’ve just been arrested or just been sentenced, call Chris Perri Law at (512) 917-4378 to discuss your legal options.

Finality Over Accuracy: America's Flawed Jury System Exposed in "Making a Murderer"

Chris Perri

Spoiler Alert: You do not need any knowledge of the Netflix documentary series, Making a Murderer, in order to read the following blog post, which contains details about the 2007 Steven Avery murder trial. However, if you’d like to watch the documentary without any knowledge of the events that unfold, then you should wait to read this post.

After watching Making a Murderer, Netflix’ ten-part documentary series about Steven Avery’s 2007 trial for the murder of Teresa Halbach, many viewers were understandably perplexed by the jury’s guilty verdict. Avery had previously been exonerated from a wrongful conviction for a 1985 sexual assault, and due to a pending multi-million dollar lawsuit against the county sheriff for its role in his wrongful imprisonment, the sheriff appeared to have a motive to frame Avery for the Halbach murder. Armed with evidence that strongly suggested such a framing, along with the apparent weakness of the State’s circumstantial case, Avery’s excellent defense attorneys cast considerable doubt on whether Avery murdered Halbach. At the very least, there appeared to be reasonable doubt. Yet, twelve people decided that Avery was guilty, and under our law, that verdict means that Avery was the killer.

To me, that’s the most difficult part of the law to grasp. Life is shrouded by nuance and uncertainty; in a close case, it’s hard to know exactly what happened. But as a society, we have decided that justice must prevail, so we assign the task of judgment to a jury of twelve random people. We tell ourselves that as long as each juror believes beyond a reasonable doubt that a defendant committed a crime, wrongful convictions won’t happen.

But they do happen. I’m not arguing in this blog post that Steven Avery was wrongfully convicted of murder. I don’t think that’s appropriate when my knowledge of the case is limited to a ten-hour series created by people with an obvious agenda to entertain by casting doubt on the Avery conviction (click here to view an article about the inculpatory evidence that the producers of Making a Murderer left out of their documentary). Instead, I’m using this case as a backdrop for questioning the fundamental tenets of our justice system.

As a society, we are comfortable locking people away because we tell ourselves that they were convicted of a crime beyond a reasonable doubt. This premise is upended if reasonable doubt is merely theoretical, a grouping of words that functionally is no different than a jury awarding money damages to a plaintiff under the civil standard of “preponderance of the evidence” (i.e., more likely than not). Disturbingly, the prosecutor in the Avery case stated to the jurors in closing argument: “Reasonable doubt is for innocent people.” Despite this statement’s obvious impropriety, it’s instructive because that’s how most jurors treat the reasonable-doubt standard. It’s mere fantasy to assume that jurors objectively consider all of the evidence through the lens of reasonable doubt. Instead, they usually vote with their gut, meaning that we cannot be certain whether juries convict the correct person.

The most haunting aspect of the criminal justice system is that twelve jurors, who deliberate in secret with no accountability regarding whether they actually follow the trial judge’s instructions, create the ultimate “fact.” Before the case goes to the jury, a defendant is presumed innocent. However, when the jury unanimously votes for guilt, the defendant is now a criminal, and our history books record as “fact” that this defendant committed the alleged crime. I recall stirring video footage of the 1995 Chyann Bratcher murder trial in federal court in the Texas Panhandle. It was a close case, built on the strength of a co-defendant’s dubious testimony. After the jury returned its guilty verdict, Ms. Bratcher screamed out that she was innocent. The federal judge immediately silenced her, stating something to the effect of: “Ma’am, that jury of twelve just said you were guilty, and that means you did it. You are not innocent.” But what if a different jury had found her not guilty? Would that change the facts? Of course, it wouldn’t change what actually occurred in the past, but it would alter how we perceive and judge the past from our vantage point in the present.      

How does this blind veneration of jury verdicts mesh with another fact – that humans are fallible? A by-product of our innate fallibility is that twelve people can, and sometimes do, get it wrong. Think about it. These juries usually consist of twelve very different people with a range of IQ’s, along with varying degrees of self-confidence in the serious task of judging another person’s fate. It’s easy for the more uncertain jurors to defer to the more vocal jurors who seem to grasp the intricacies of the case. Psychological group dynamics can create a demand to choose sides. Moreover, most jurors aren’t able to synthesize the mounds of information that are piled on them during a long trial, so they often make decisions on the basis of emotion rather than cognition. (Click here for an article teaching lawyers to use these jury traits to their advantage). 

The Avery trial provides a great example of how a jury might reach the wrong decision. The case was highly publicized, with Avery being vilified in the media due to the State’s frequent press conferences during the investigation of the case. Many of these jurors might have had problems going home to their families and explaining that they let a murderer off the hook. Equally compelling is the fact that when the jurors took their initial straw poll at the opening of deliberations, seven voted for not-guilty, two were undecided, and three were staunchly convinced of Avery’s guilt. These three guilty jurors ultimately convinced the rest of the group to convict Avery of murder. Considering that there was a seemingly inconsistent verdict of “not guilty” on the charge of Mutilation of a Corpse, it’s not far-fetched to speculate that some type of compromise or deal occurred in the jury room (such trading of votes is a flagrant violation of the law).

In the last few years, there has been a movement in the United States to hold public servants accountable by increasing the transparency of their duties. Civil rights groups have called for all police officers to wear body cameras that are automatically activated upon interaction with a subject. But aren’t jurors practicing the ultimate public service when they pronounce judgment on another human being? Why, then, are their deliberations secret, with zero accountability if they refuse to follow the judge’s instructions to consider only the evidence in resolving whether a defendant committed a crime beyond a reasonable doubt? Cameras in the jury room could potentially resolve questions about whether jurors engaged in misconduct, and they might prevent the type of bullying that often occurs during deliberations. I want my jurors to be on their best behavior, and the only way to ensure that they are fairly considering the evidence is to increase the transparency of their decisional process.

The takeaway from Making a Murderer is not that one individual might have been wrongly convicted. Rather, the import is that the jury system is flawed. Such a flaw might be less worrisome if we had an appellate system that could catch these human errors. However, our appellate system is a joke when it comes to considering a claim that the jury messed up. This type of claim is called “evidentiary insufficiency,” but it’s an impossible claim to win because the appellate standard of review requires judges to resolve all factual disputes in favor of the jury’s verdict – in other words, they review the case with a bias against the defendant. Thus, in the case of Steven Avery, he doesn’t get the benefit of any judge neutrally evaluating the strength of the evidence.

This appellate process perpetuates the criminal justice system’s goal of finality over accuracy. An inherent tension exists between the goal of justice and the goal of avoiding wrongful convictions. If it’s too hard to convict a defendant, then criminals will never be brought to justice. On the other hand, if a conviction is too easy to obtain, then our prisons will be populated by numerous innocent people. Either choice should be intolerable. But by instituting a criminal justice system that sends millions of people to prison, we have made a choice, and inherent within that choice is a margin of error because the juries who administer this justice consist of fallible humans who are prone to mistakes. No matter how hard we strive to reduce this margin of error to as low a level as possible, human fallibility remains. Instead of responsibly acknowledging this fallibility through an appellate process that operates as a check-and-balance on the jury process, we indulge in an irresponsible fantasy of certitude in order to sleep at night: the jury of twelve must have gotten it right, thereby delivering justice to the victim and convicting the correct person.  

Once the jury returns its verdict, the justice system doesn’t like the case to linger, as such would frustrate the goals of “justice” and finality for society. In service of these goals, the appellate system sets up such a gauntlet of procedural and substantive pitfalls that even meritorious claims often fail due to the alleged trial error being declared “harmless.” For example, if the appellate court found that the trial court erred in admitting certain evidence at a defendant’s trial, then the defendant doesn’t automatically obtain a new trial (such would frustrate the system’s ultimate goal of finality). Instead, the appellate judges reweigh the evidence, supposedly putting themselves in the shoes of jurors in order to determine whether a reasonable jury would have still found that person guilty beyond a reasonable doubt. Far too often, courts affirm convictions under this “harmless” error rule.

Turning back to the claim of insufficiency of the evidence (i.e., “How the heck did that jury convict that guy?”), appellate judges should ask whether a reasonable person could find that the prosecution proved its case beyond a reasonable doubt, just as they do when reweighing the evidence to decide whether an evidentiary error was “harmful” enough to merit a new trial. Instead, the prevailing standard directs the appellate judges to indulge all factual disputes in favor of the State before determining whether any reasonable person could have found that the State proved its case beyond a reasonable doubt.

This standard precluded Avery from receiving any kind of “fair” evaluation of his trial: if you resolve all factual disputes against him, then it logically follows that the State sufficiently proved its case. The primary controversy with respect to his trial is whether a reasonable juror could have found him guilty beyond a reasonable doubt. Besides the State’s overall case being fuzzy and circumstantial, there were substantial questions surrounding the acquisition (planting?) of key items connecting Avery to the murder. However, after resolving all the factual disputes in favor of the State, along with indulging all logical inferences in the prosecution’s favor, the evidence becomes sufficient. In a way, the appellate court’s standard of review creates this “sufficiency” as a result of the appellate mandate to review the evidence through a distorted lens.

Certain cogs in the criminal justice machine might respond that it’s inefficient and cumbersome for appellate judges to reweigh the evidence from a neutral perspective, as such a procedure invades the province of the jury. “We don’t want to sit as the 13th juror,” an appellate judge once told me in oral argument. This logic fails because, as explained above, judges already sit as the 13th juror when they reach to affirm convictions under the “harmless error” standard. Furthermore, given the tremendous importance of jury deliberations and their lack of transparency, a fair justice system has a duty to institute an appellate process that reweighs the evidence in order to determine whether the jury reached a just result. The situation might be different if jury deliberations were recorded, as a court could simply watch these recordings to determine whether any misconduct occurred. Until that happens, the only way to improve the accuracy of our criminal justice system is to audit the jury’s verdict through a revamped appellate process.

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The 5th Circuit Invites Chris Perri Law to Present Oral Arguments Once Again

Chris Perri

It looks like I’ll be heading to New Orleans early next year! I just received word that the 5th United States Circuit Court of Appeals has granted me the opportunity to present Oral Arguments on a federal felony appellate case.

This will be my second time to argue in front of the Fifth Circuit. To read more about my previous 5th Circuit Oral Arguments, click here.

I’m looking forward to the chance to fight in court, and I’m grateful to the 5th Circuit for finding the appeal worthy of their time.