Seeking Post-Conviction Relief

A mother leaves her seat in the courtroom and approaches the podium. The judge sits back and waits for her statement. As she is about to begin, tears drop from her eyes. “My son is innocent,” she says. “Please show him mercy.”

When a defendant is convicted and then sentenced, after a sentencing hearing, where family members may give statements, it is not the end of the case. Our judicial system provides a right to an appeal. The statutory right to an appeal also includes a right to appointed counsel, if the defendant cannot afford to retain one.

An appeal is limited to the “record.” The record is everything that happened before and after the trial – preliminary, trial, and sentencing hearings. Everything that is said by the prosecution, defense attorney, defendant, and witnesses are recorded. Materials submitted for evidence is also preserved for the record. Indeed, an individual unrelated to the case should be able to see “everything” that happened with a particular criminal case after it has concluded.

A defendant is referred to as the “appellant,” when he or she appeals. The first document submitted is the appellant’s opening brief. The opening brief is the opportunity for the appellant to make his or her arguments about why the conviction should be overturned.

Since arguments are limited to the record, the appellant cannot submit additional evidence nor have new witnesses testify. Put simply, the appellant can only raise legal issues related to the proceedings. Typically, appellants will argue that certain evidence should have been excluded during the trial. Or appellants may argue that there was a constitutional violation committed during the criminal proceedings – the trial judge made an erroneous ruling.

The opening brief will contain case law, statute, and argument. After it has been submitted, the state will have an opportunity to submit an opposition brief. The opposition brief will contain counter arguments about why the trial was fair, and why the conviction should stand. The appellant will get the last word, however. The appellant may file a reply brief.

If the appeal is denied, the appellant may petition for the California Supreme Court to review the court of appeal decision. Most often, the California Supreme Court will deny review unless the legal issues involve split decisions between the appellate courts, or the legal issue is novel and has not been heard before (which is rare).

An appellant, and his family, need not despair should the appellant lose his or her appeal. There exists post-conviction relief outside of an appeal. For centuries, a petition for writ of habeas corpus has existed. Writ of habeas corpus translates roughly to “why are you holding the body?”

A petition for writ of habeas corpus is a petition that allows a defendant to challenge his or her incarceration. Since it is not a direct appeal, new evidence is allowed. More often than not, new evidence will be submitted at the habeas level, like: DNA evidence, new witness statements or recants, and other exculpatory information. Habeas cases have been covered by the media. When an individual is exonerated because of DNA testing, for example, the proceedings are usually habeas related. A petition gives a chance to the defendant to right any wrongs that may have been done.

The same mother who cried now sits down in a more comfortable setting. Although her son is confined in a prison hundreds of miles away, she has some hope, even if small. An attorney approaches her and extends his hand. “How can we help you today?”

Our office welcomes your inquiries about post-conviction relief. Please remember that this blog contains no guarantees, assurances, or legal advice. If you have any questions, it is best to contact an attorney by phone. After a conviction , the burden shifts to the convicted.

Will the Natural and Probable Consequences Doctine be Rejected in California?

A majority of murder, and other violent crimes, in California are gang related. Indeed, most of the post-conviction work that I have taken part in involves allegations of gang affiliation. Due to the nature of such crimes -- multiple individuals and lack of physical or testimonial evidence, the prosecution necessarily relies upon aider and abettor theories of criminal liability.

Under an aider and abettor theory, defendants can be convicted if they merely assist, encourage, or facilitate a crime. More specifically, they do not have to be the actual perpetrator of the physical crime against the victim.

Moreover, a defendant can be convicted if he or she aided a "target" crime, which naturally and foreseeably could have led to a more violent crime -- like murder.

In June of this year, however, the California Supreme Court curbed the "natural and probable consequences" doctrine. The criminal doctrine allows for the prosecution of aiders and abettors when they participate in a crime that was "reasonably foreseeable" to the target crime. In sum, an individual can be guilty of murder, if he assisted in a crime, which murder was a "natural and probable consequence." The rationale of the doctrine is deterring accomplices from partaking in criminal acts that may foreseeably lead to other more violent crimes.

But in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant can never be convicted of first degree premeditated murder on a natural and probable consequence theory. In Chiu, the defendant engaged in a street brawl involving 25 youths. The high school students fought one another indiscriminately until one of them shot and killed another young man. The defendant was charged with first-degree murder under the theory that he aided and abetted an "assault," which premeditated murder of the perpetrator was a natural and probable consequence. Defendant was sentenced to 25 years to life after he was found guilty of first-degree murder. The California Supreme Court reversed because they did not think that the defendant could have had the mental intent necessary for first degree murder.

Now prosecutors must rely on evidence to show that defendants had the specific intent to aid a premeditated murder. It is insufficient to argue the natural and probable consequence doctrine, as Chiu negated its application to first-degree murder cases. This decision implies that the California Supreme Court wants to depart from the wide application of the natural and probable consequence doctrine. Chiu stated, in part:

"[T]he connection between the defendant's culpability and the perpetrators premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and … the public policy concern of deterrence."

It appears that Justice Chin opens up to the possibility that there may be other instances where an element of the non-target crime is so detached that the natural and probable consequence theory would not serve public policy. Other states do not even apply the natural and probable consequences theory, so it's possible that the California Supreme Court would withdrawal, or at least curb, its unjust application. 

In fact, California may reject the entire doctrine. The California Supreme Court has granted review of a separate natural and probable consequence doctrine case in People v. Smith (Vince Bryan), S210898, D060317 Fourth Appellate District, Division 1.

Violent crimes, instigated by gang rivalries, are senseless and destructive to the community. But, when individuals are convicted of crimes that they did not intend or anticipate in directly, it also hurts the community. Many young men are duped into following irresponsible older gang members, who have no regard for societal mores. Lawbreakers should, and need, to be punished. Let's just make sure that the punishment is just and follows the rule of law. 

Criminal Appeals

Have you or a loved one already been convicted of a crime? We can still help!

We have experience in all aspects of post-conviction criminal law including Expungements, Certificates of Rehabilitation, Habeas Corpus Petitions, Parole Hearings, and Prisoner's Rights defense.

Filing a Petition for a Writ of Habeas Corpus

The California Constitution gives citizens the right to file a petition for a writ of habeas corpus in extraordinary and unusual circumstances. The habeas petition allows a detainee to challenge his or her confinement. The most common ways to effectively challenge your conviction is through new evidence.

Appealing a Felony or Misdemeanor

When a person is convicted, it does not necessarily mean the case ends there. If the defendant feels as if there has been a legal error, the defendant may file an appeal. An appeal is a challenge of the record and it is limited in scope.

California Board of Parole Hearing (Lifers Hearing)

An inmate serving a life sentence, or “lifer,” in California may have an opportunity to be released on parole. Before the inmate is released, however, he or she must first appear before the Parole Board at a hearing. Attorney Chris Blaylock has helped prepare inmates for parole and has been three for three (3/3) on getting a parole date.

Expungement in California

A person who has committed a felony or misdemeanor in the past may have the possibility of removing from his or her record. In California, this process is called an expungement. While it does not completely eliminate your criminal record, it does give you certain protections against discrimination on the basis of the conviction.

Certification of Rehabilitation

Like an expungement, a California Certificate of Rehabilitation is a way to put a person’s conviction behind them. Although it will not erase a person’s conviction, it will be a declaration from California that the person is a law abiding citizen. It is difficult to pursue this without an attorney.

Prisoner’s Rights

An inmate has certain constitutional rights like all other citizens who live in a civilized society. This means that there must be some standard of decency at the prison where the inmates are detained. Criminal defense lawyer Attorney Chris Blaylock believes that inmates should be treated with dignity.

Criminal DNA Testing

DNA testing under the microscope

With the proliferation of CSI type crime dramas over the last few years, many people from Juries to the lay public have come to assume that DNA testing is a quick and foolproof way of proving the guilt or innocence of a criminal suspect. In fact, some experts even worry that this “CSI culture” is invading the purview of the courts; leading juries to expect and even demand DNA evidence from the prosecution even in cases where such evidence would add little of substance to the analysis. Adding to the confusion are the range of media reports, some of which warn about the possible inaccuracies of DNA testing procedures and others which hail the ways in which the technology has been used to absolve and free convicted criminals.

However, despite the media hype and many public misconceptions to the contrary, DNA testing is a highly reliable and accurate method of matching a sample with a donor, or of proving that no match exists. But, this accuracy depends entirely on the methods used, the care and skill of investigators and lab specialists, and the presentation of the resulting evidence by lawyers during trial.

What is DNA testing?

DNA testing is the process of comparing a sample of DNA, such as from a crime scene, to a potential suspect; a match implying the suspect’s presence at the scene. This is possible because every person’s DNA is unique, distinct in some way from every other person who has ever lived or who will live – with the exception of identical twins who share exact DNA. However, while each individual’s DNA is unique to that person, current testing methods do not allow for a complete DNA profile.

Methods are improving however. First developed in 1985 by British scientist Alec Jefferys and colleagues, DNA testing has come a long way from the early days, both in quality and cost. Analyses that once required a fresh tissue sample the size of a quarter can now be completed with just a few partially degraded cells from a cold case file. Tests which were once impossible, such as distinguishing individual DNA profiles from the mixed semen of multiple rapists, have now become common place and DNA testing has even been used to compare non-human samples, such as the seeds of a tree which were used to tie a suspect to a crime scene in one recent Arizona case.

How accurate is a match?

The entirety of a DNA sample is not currently tested. Instead, sections known to vary substantially among humans are sampled and compared. While any single sample site has about a 7.5% chance of matching another random human, insufficient for criminal identification, the odds increase exponentially with every additional sample site considered. At about 4 to 6 sample sites – called markers – identification becomes reasonably possible. For good measure, the standard FBI test compares 13 markers, leading to greater than 1 in 1 billion certainty that a suspect is in fact the person who left the sample. In other words, by comparing 13 quality (which means highly variable) markers, less than 7 people in the entire population will be statistically probable matches. Given that the pool of suspects cannot ever include the entire population of the planet, this level of certainty can provide the evidence necessary for conviction beyond a reasonable doubt.

(For more details on these numbers please visit here)

What’s the catch?

Naturally, there are some caveats about the numbers listed above. While the statistics are solid, they have been tested repeatedly by many different mathematicians and scientists the world over, the accuracy of any purported match comes down to process; and here is where CSI type shows drive unreasonable expectations about DNA results. As with much of the criminal justice system, human error is a major factor. Collecting DNA samples from a crime scene often requires expert training and professional equipment. Samples must then be transferred and stored in approved ways to avoid degradation. A qualified lab must properly utilize expensive edge equipment to analyze the sample to produce a DNA profile. That profile is then compared against either a sample taken from a suspect or against one of the many available databases of DNA profiles, which imply a number of privacy and security concerns, and a match determined.

Every step of this process is fraught with potential error. Crime scenes can be contaminated or evidence planted, samples can become contaminated or degrade, labs might employ outdated techniques or scientists might not have the requisite training, computer error could be introduced, jurors might give too much weight to DNA evidence; and all along the way, human malfeasance might undermine the validity of a match. And all this stems from but a single situation; a single trial.

Institutionalization

While for individuals the results of a single DNA match are of the utmost importance, whether the evidence is being used to convict or exonerate, for the criminal justice system – and its promise of fairness and justice for the public as a whole – systemic problems become the more critical consideration. On this level, a number of issues must be dealt with if DNA testing is to remain a viable tool in criminal prosecutions.

Evidence from analysis of the UKs national DNA database shows that a disproportionate number of the DNA profiles in the system come from minorities. While it can be argued that this represents the increased prevalence of minority convictions, the increasing use of so called “cold matches” wherein DNA from every arrested person is periodically checked against the database, leads to possibilities of institutionalized racism and prejudice. Additionally, the increasingly popular practice of collecting samples from arrestees prior to any conviction is leading to a number of very serious privacy and security considerations. DNA samples can, in addition to providing material for a possible match to a criminal investigation, also reveal family connections, expose health conditions, and even predict sexual orientation or inclinations.

Protecting the future

DNA profiling has become an increasingly important feature of our criminal justice system, both exonerating the innocent and convicting previously unreachable suspects; however its future use is imperiled by a growing number of developing problems with the practice. More must be done to protect this valuable criminal justice resource from corruption, error, and prejudice.  The worrisome backlog of untested samples should be cut down, and the public at large – many of whom ultimately become jurors – must be better informed about the accuracy, and potential shortfalls, of the science.

California Prison Reform

Governor Brown challenges California prison reform

For decades, California’s prison system has been out of compliance with basic human rights requirements. Over the last 10 years, the system has been operating near 200% of its design capacity. This severe overcrowding has led to a litany of abuses from grossly inadequate healthcare, to the virulent spread of infectious disease, to a stunningly high suicide rate among inmates. Long under Federal receivership, California’s inmate mental health system is an abject failure. Combined with the rampant use of constitutionally questionable variations on solitary confinement, these failures have played a significant role in California’s inmate suicide rate. With an average of 24 suicides per 100,000 prisoners, the State sits well ahead of the national average of 16 suicides per 100,000 prisoners.

Solitary confinement

Amnesty international released a report in September of 2012 describing California’s practice of caging inmates in solitary housing units (SHUs) as a blatant violation of both the 8^th Amendment’s prohibition against cruel and unusual punishment and international laws on the treatment of humanity. Mental health experts warn that SHUs should be an option only of last resort because even a few days under such conditions cause severe trauma. In 2011, California was host to over 500 inmates housed in solitary confinement for over 10 years; some of them only children when first incarcerated others with significant and well known mental health problems.

Slow legal response

In response to these, and many other issues, a number of human rights organizations filed suit on behalf of prisoners seeking federal intervention. In 2011, after a tortuous legal battle spanning many years, the Supreme Court upheld a lower court decision requiring California to reduce its prison population to 137% of capacity by June 2013. This ruling lead to the current realignment crisis under which the state has been shifting prisoners from state facilities to county jails and borrowing from county funds to cover state prison costs. Political backlash last year stalled this effort and put pressure on Governor Brown to challenge the court order. In March, a Federal judge denied the Governor’s petition to have the prison order terminated; leading Brown to publicly state that he would again take the case all the way to the Supreme Court rather than continue to comply with the 2011 order.

What you can do now

In the meantime, California’s prison population continues to suffer under difficult conditions, sometimes in violation of the Constitution, international law, and a direct Supreme Court order. While the legal wrangling continues at the state and national level, I am working hard to secure remedies for individuals. By filing Petitions for Writ of Habeas Corpus, I can sometimes challenge an inmate’s confinement in state or federal prison.

If you or a loved one is currently incarcerated in California’s broken system, do not wait on a political solution for reform. While I remain optimistic that reform will be implemented, legal rights should not be kept on hold in the meantime. Please, contact my office immediately to determine whether you can seek post-conviction relief. As Justice Kennedy stated in his 2011 opinion, even convicted criminals have basic rights to their humanity. I can help fight for yours.