Steve Palmer [00:00:00]:

Alright. Steve Palmer here with another episode of Lawyer Talk, What's The Appeal? What's the appeal? Well, here we're talking about all things in the appellate process. If you've been convicted of a crime, recently or maybe not so recently, sometimes it gets a little bit harder. You're in the appellate ladder, and there as I've explained, there's a couple different ladders. Last week, we talked about post conviction petitions and what that's all about. We basically, discussed that look. Post conviction is we're raising issues that we can't read in the record that are not in the transcript, that aren't in some court filing before trial or during trial.

Steve Palmer [00:00:31]:

So we've gotta go outside the record to look for problems, look for mistakes, look for things that maybe we can raise and make legal issues out of on post conviction. The reason I'm talking about post conviction again twice in a row is because just two weeks ago or last two weeks ago, I had a week long hearing on a post conviction petition. And I'm gonna sort of explain how I got there because it's a pretty rare burden in Ohio these days. For years and years and years in Ohio, and that's where I am in Ohio, post conviction work was known sort of as, like, the red headed stepchild of the appellate process. Like, you rarely got hearings. They were almost always rubber stamped denied. They would go up and down the court of appeals ladders and and deny, deny, deny, deny. But in recent years, the Ohio Supreme Court has sort of opened the door again for hearings, and I had one.

Steve Palmer [00:01:15]:

And I wanted to sort of explain what happened at that hearing. We had to establish we were making an allegation that the trial counsel, the guy who tried the case, was ineffective for various reasons. And, look, this can get personal, but it's really a legal argument. We're not saying, look, you're a bad guy or you're a bad lawyer or you're whatever. We're just saying that the client received ineffective assistance of counsel under the sixth amendment. That's a very precise and, exacting standard. Meaning, we have to prove that counsel did things or didn't do things that he should have that fell below sort of a reasonable standard of practice. And as a result of that, the outcome of the trial was impacted such that, quote, it undermines confidence in the outcome of the case.

Steve Palmer [00:01:56]:

And in a at a hearing, we have to establish that in Ohio by a preponderance of the evidence. And this is important if to put it in perspective, the prosecutor has to prove the case at trial, so go back to trial, beyond a reasonable doubt. Like and when I talk to juries, I'd be like, this is, like, all the way beyond a reasonable doubt. And then you have some sort of a a lesser than beyond reasonable doubt, which is a standard called clear and convincing evidence. And by the way, this is just lawyer mumbo jumbo, so I'm giving you the hand gestures. So beyond reasonable doubt that scales are tipped over, you can use a football analogy, all the way to the one yard line. Clear and convincing evidence, maybe about half that, and maybe to the 25 yard line. Preponderance of the evidence is fifty fifty yard line plus one inch or a half an inch or whatever, a quarter inch.

Steve Palmer [00:02:43]:

You just have to get below half or get above half. So once you get a hearing in post conviction, if you've got a viable claim, in theory anyway, you've got, your your burden of proof is really only preponderance of the evidence. So I had to establish by preponderance of the evidence that my client that my client's trial counsel was ineffective. And it was sort of fascinating because there's not many of these, post conviction hearings happening these days, and, everybody didn't nobody really knew what to do. You know, we were calling witnesses. We were taking testimony. Money. Felt like a trial.

Steve Palmer [00:03:12]:

It looked like a trial, but there wasn't a jury. We had four different experts testify, actually, maybe five. And they all provided opinions on the case. And and the allegation was that if they would have been consulted and or called to testify at trial, they could have helped trial counsel defend the case and maybe even move the needle towards innocence in the case. And it was, we went back and forth. The state called their experts. We called our experts. And at the end of the day, the judge takes it under advisement.

Steve Palmer [00:03:40]:

So these hearings, folks, are gonna start happening. We're gonna start getting more of these, I predict. And the reason is, again, the highest supreme court has given us a crack, given us a little seam in the doorway to get hearings. And if it's important to understand because I had to have this conversation with my client, his family. We can win this hearing, because I think we did establish by preponderance the evidence that these experts would have helped. They would have helped move the needle at trial such that confidence in the outcome is is compromised. But what happens next? What happens next is if we win, the prosecutor is going to appeal. So remember, we've got the direct appellate ladder.

Steve Palmer [00:04:16]:

Now, we've got the post conviction appellate ladder, and we're on, like, the bottom rung. If we win, the prosecutor's gonna appeal. Now we gotta go to the direct appellate court, and that's the court of appeals and brief it there. If the court of appeals decides in our favor, the prosecutor can then ask the Ohio Supreme Court to review it. And if the Ohio Supreme Court doesn't review it, or if the Ohio Supreme Court upholds the the Court of Appeals, then it sort of dies up there. Now we're ready to go to federal court on a whole separate ladder. Now if the Court of Appeals, reverses it and says, no. The trial court shouldn't have had a hearing.

Steve Palmer [00:04:52]:

We get to go to court. We get to go to the highest supreme court. So we're up and down the appellate ladder again. So winning this hearing while a certain positive for sure, is not necessarily the end of it. So it look, I guess my point of explaining all this is don't forget about post conviction workups when you're hiring a lawyer to do your appeal. And if you're talking to an attorney who says don't worry about post conviction, you're probably talking to the wrong person because you have to worry about post conviction. These deadlines come and go, and once they're gone, they're gone. It's very difficult to fix it.

Steve Palmer [00:05:23]:

So, look, if you've got post conviction I get it. This may be not as exciting as some of the others we've done, but it it's important. If you've got your own case post conviction or, otherwise, you want me to look at it or take a peek and give you some consultation or my thoughts on it, I'm happy to do it. Check out, Palmer Legal Defense. That's my real world practice. Or if you got a question you want me to talk about here on What's the Appeal or any other part of, the Lawyer Talk podcast series, just go to lawyertalkpodcast.com. Leave us a comment in the socials. Do whatever makes you feel comfortable, but until then, we are off the record.

Steve Palmer [00:05:56]:

Lawyertalkpodcast.com.