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Matthew77istheway

how to get back into court once appeal is denied

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Six Years ago my husband was arrested and convicted of sex offenses against his daughter. He had a public defender. He lost the first appeal

however we have new information that I found (we married last September) that was not introduced in court.

For example I have his attorney's file.

It was in a small town. The Prosecutor and District Attorney knew each other. There was an issue with the instructions to the jury.

My husband asked his mother and son be either allowed to testify or be deposed and his attorney said it was not allowed.

There was information that would show he could not have been in the same place one of the incidents occurred.

There was no physical evidence of any kind.

There were text messages taken out of context and not all of the conversation was introduced.

There were things the jury heard that the judge did not allow but once they heard them the damage was done.

There were things that proved the testimony was false but the judge would not allow them to be introduced.

There was a detective that was investigating the case that found questionable evidence.

The officer who interviewed the "victim" was actually not supposed to be working due to some inappropriate activity.

Once the victim advised her mother of the activity there was no mention of her father for the first four days. Her story changed several times, Each time she was caught with false information the story took another turn.

On the text messages one showed my husband (who was a truck driver) to be in a different time zone and not even in the area but this was not introduced into court.

There were other individuals who had opportunity that were not questioned in court nor was any effort to identify some individuals who had been texting her

 

The list could go on and on.  He received a life sentence or 25 to life.  What is the best way to get him back into court?

 

 

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If your state court appeals are exhausted, then you have your attorney file for a writ of habeas corpus in federal court. Rarely works, but may be your only avenue. Discuss this with his attorney, as this is not a do it yourself project, if you want to succeed.

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3 hours ago, Matthew77istheway said:

The Prosecutor and District Attorney knew each other.

The prosecutor and the district attorney are the same person.  If you mean that the defense attorney and prosecutor knew each other, that's no unusual or a basis to undo the conviction.

 

3 hours ago, Matthew77istheway said:

There was no physical evidence of any kind.

Physical evidence isn't required in order to get a conviction.  If the victim testified and the jury believed the victim, that is enough to convict.

 

3 hours ago, Matthew77istheway said:

There were things the jury heard that the judge did not allow but once they heard them the damage was done.

That happens all the time in trial and the jury is instructed not to consider those things. 

 

3 hours ago, Matthew77istheway said:

The officer who interviewed the "victim" was actually not supposed to be working due to some inappropriate activity.

That's not relevant.  The victim had to testify so it's what she told the jury that matters, not who interviewed her.

 

3 hours ago, Matthew77istheway said:

nor was any effort to identify some individuals who had been texting her

The victim other sexual conduct is not admissible. 

 

If he has exhausted all avenues of appeal at the state level and exhausted all issues at that level, your husband can try to file a federal habeas petition.  Take what you have and consult an appellate attorney. 

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On 2/24/2017 at 6:04 PM, Matthew77istheway said:

we have new information that I found (we married last September) that was not introduced in court.

For example I have his attorney's file.

 

How is you having the attorney's file an example of new information?

 

 

On 2/24/2017 at 6:04 PM, Matthew77istheway said:

It was in a small town. The Prosecutor and District Attorney knew each other.

 

First of all, the district attorney and the prosecutor are the same person.  Perhaps you meant to say the DA and your husband's public defender knew each other.  Even if that's true, so what?  Most DAs know the public defenders simply because they regularly litigate against each other.

 

 

On 2/24/2017 at 6:04 PM, Matthew77istheway said:

What is the best way to get him back into court?

 

Take whatever information you have to a criminal defense attorney and ask him or her to review it and provide advice about the possibility of any sort of post-conviction relief.  Keep in mind that the various things you mentioned are either inconsequential or are nothing but conclusory allegations by a person who apparently wasn't involved in the situation at the time (or both), so don't get your hopes up.

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Guess I am confused,  If there was testimony that his attorney failed to dispute if it was incorrect and testimony by the victim who was involved or his mother and son who were at the place where the crime  occurred why is that in consequential or a conclusory accusation?  I don't understand if there is testimony by the prosecution and the person who made a statement in the courtroom, does the defendant not have a right to dispute especially if that information would show guilt or innocence? A witness for the prosecution said that his mother made a statement she did not make, She said she did not say that and she was told to be quiet. His defense attorney ignored that

and never allowed her to speak up.

Also during the sentencing portion the jury came back and had a question about the instructions that they did not understand, They were told they had their instructions and to go back and figure it out for themselves.

If there was information that the prosecution presented that the defense could have shown was incorrect did the defendant not have a right to dispute that?   He sent his case to the Innocence Project as they requested but due to their case load it was returned with a letter telling him the reason.  Then his Father said he would help him and get someone to look at it but he in fact did not ever do that and he would not send it back so he could get something done prior to his time limit.  I ended up with the case but it was after the time limit had passed. .  I lived in the same place as  his father during this time and he just did not get it back to him. His father chose to ignore his requests and  so my husband being in prison could only wait; 

His father was arrested and I ended up having a power of attorney to sell the home and moved to Kansas.  I now have in my possession his entire case. After reading the portions I have and seeing the attorney's file we believe had she objected or addressed some of the facts that were incorrect and could have certainly made a difference in a guilty or innocent verdict or even in the sentencing phase as to the severity of the sentence, did she as his attorney not have a duty to do so regardless of her relationship with the Prosecuting attorney?  Is that not a conflict of interests?

I guess the you are innocent until proven guilty is a joke then. If the prosecution can present evidence that is false and the defendant wants to dispute that do they not have a right to defend themselves? and if the attorney ignores

their requests to dispute the things which were not true. has the defendant had a fair trial?

 

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1 hour ago, Matthew77istheway said:

why is that in consequential or a conclusory accusation?

 

We have no context and, accordingly are in no position to evaluate what happened beyond what you've written.  Perhaps it is consequential but it appears not to be so because how you described it.

 

 

1 hour ago, Matthew77istheway said:

if there is testimony by the prosecution and the person who made a statement in the courtroom, does the defendant not have a right to dispute especially if that information would show guilt or innocence?

 

Of course.  The defendant can cross-examine any witness and/or offer other witnesses and evidence to contradict a witness's testimony, but there must be evidence.  Simply saying, "I dispute XY&Z," without evidence, isn't meaningful.

 

 

1 hour ago, Matthew77istheway said:

His defense attorney ignored that

and never allowed her to speak up.

 

No one on an internet message board is in any position to evaluate the attorney's conduct.  However, formulating trial strategy -- both before the trial starts and on the fly during the trial -- is part of a defense attorney's job.  Lots of convicted criminals claim their attorneys failed to provide constitutionally adequate representation, but when pressed for specifics, can't offer anything meaningful.  Rather, they simply want to nit pick that the defense attorney did not pursue every conceivable, far-fetched angle.  If your husband believes he didn't receive constitutionally adequate representation, then he needs to have another lawyer review the trial transcript and advise him.

 

 

1 hour ago, Matthew77istheway said:

If there was information that the prosecution presented that the defense could have shown was incorrect did the defendant not have a right to dispute that?

 

Of course he did, and I'm sure he had an opportunity to do so.

 

 

1 hour ago, Matthew77istheway said:

did she as his attorney not have a duty to do so regardless of her relationship with the Prosecuting attorney?

 

Your husband's attorney had an obligation to represent him as the law and facts permitted.  Again, no one on a message board -- and, indeed, no one who hasn't read the trial transcript and all other relevant documents -- is in any position to second guess the attorney.

 

 

1 hour ago, Matthew77istheway said:

Is that not a conflict of interests?

 

Is what a conflict of interest?  As we already explained that the prosecutor and defense attorney "knew each other" is, without more, inconsequential.  Now you have referred to a "relationship with the [p]rosecuting attorney."  Was their "relationship" anything other than that of two opposing lawyers who happened to be acquainted?  Our analysis will be no better than the facts you provide.

 

 

1 hour ago, Matthew77istheway said:

I guess the you are innocent until proven guilty is a joke then.

 

Not at all.  A criminal trial begins with a presumption of innocence.  However, if the prosecution proves the defendant guilty, then the presumption no longer exists.

 

Again, your husband needs to find a lawyer to review everything and advise him.  And maybe you need to start coming to terms with the fact that the convicted criminal you married was actually guilty.

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Thank you, I think it is time to have another attorney review his transcript and client file. I am not an attorney but have worked for large insurance company for over 43 years. In reading, I found many questions and do not understand why those were not followed up on. I saw where there are notes that he did ask many times to his attorney in her file notes but things drop off there. Since I am not an attorney - It is time to bring one in.

We don't have a lot of money as I had a stroke and can't work any longer but my mind still works. Thank you for your advice.  The Facility he is in is undergoing many changes. There is a new warden and while 99 percent of the inmates hate this, we feel he is making changes to make things consistent, and rules clear and the same for everyone. No One likes changes but inmates who want to change and work on release the right way

know that their behavior while incarcerated is imperative to getting help. Respect for authority is something we all have to deal with so a release does not mean an escape from that. We ALL have laws we must follow. My husband is not guilty of all the charges and I believe in him so time to move forward and find an attorney who will right for the truth to come out. I was only asking how you do that one you are time barred.  You have given me some good advice and shown me we need to forget about some of the items that would not have changed the verdict anyway and concentrate on the things that would have that were not done. 

 

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The conviction and appeal were six years ago or the abuse happened 6 years ago (meaning the trial/appeal was much more recent)? How old was/is the daughter? Is she proclaiming him innocent now? An abuse victim changing her story is not at all unusual, especially if the perpetrator is someone close to them like a parent who has control over them.

 

My husband is not guilty of all the charges

 

Meaning he is guilty, just not of all the exact things he was convicted of or his conduct was not as severe as you feel the sentence applied?

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