Post Conviction Relief is an entirely different animal. If you have been convicted at trial or if you pled guilty, and then you appealed your conviction or sentence and lost, the next step is what is called post conviction relief; some people refer to it as habeas corpus. It is not "another appeal" in which the same issues that you argued in your appeals are repeated.
There are strict time limits on post conviction relief. The process basically is that in Louisiana you have two (2) years from the date your conviction becomes final within which to seek post conviction relief from the same state district court judge who originally heard your case. Your conviction becomes final at the conclusion of your "records appeal." The issues raised in post conviction are limited to newly discovered evidence, errors not previously known to the defense, changing laws, ineffective assistance of counsel, and other issues in the interest of justice.
Typically, a PCR is granted when evidence indicates due process was compromised as a result of the following:
- Prosecutor failed to hand over exculpatory evidence
- Evidence or testimony is allowed in at trial that should have been excluded
- Defense attorney was grossly incompetent
- The existence of new DNA samples or other forensic evidence not introduced at trial
- Evidence of witness tampering or perjury
Most of the time we hire an investigator to "reinvestigate" the case to determine if witnesses' stories have changed, to see if there are witnesses that were not located by the state or the defense at the time of the trial, and to see if there are witnesses or evidence which contradict trial testimony that was not previously known. It is a labor intensive and often times expensive proposition.
Once the initial investigation is complete, we may also engage the services of mental health professionals or other experts in the field of ballistics, blood spatter, finger prints or DNA. Once the entire investigation is complete, we file a petition for post conviction relief with the district court judge, laying out the grounds we believe justify a new trial and seek a hearing. The prosecution invariably raises procedural objections saying that none of our claims should be heard in the first place because they are too late, repetitive, or have already been heard. We must convince the court that the procedural objections of the state be overruled so that we have a hearing on the merits to determine whether, for example, your trial lawyer was ineffective, your trial prosecutor withheld favorable information, witnesses lied, new evidence was found, or whatever other grounds we might have discovered.
If the judge grants a hearing, whichever side prevails, the other is entitled to seek appellate review from the same appellate court that initially reviewed the appeal. After that, a writ is available to the Louisiana Supreme Court.
Finally, there begins the last phase, which is federal post conviction relief. You have one (1) year from the date of your state conviction within which to bring a federal claim. That time is interrupted if you filed a post conviction petition but, as you can see, if you waited a year and a half to file a state post conviction, by the time that's completed, you have lost your right to bring a federal action so we always encourage our clients to begin the process of post conviction relief as promptly as possible after an appeal has been lost.
Federal post conviction is similar to state post conviction except that it can only involve issues of federal constitutional law.
When should you hire a criminal defense attorney?Anyone who has been arrested or charged with committing a crime will undoubtedly need the help of a New Orleans Criminal Defense Attorney. Many individuals facing criminal charges delay finding a qualified attorney until there is no other option, which can be a big mistake. There are undoubtedly many important things happening at once when charges are made that must be handled; however, the first thing that should be done is to find legal counsel. Most criminal defense attorneys would stress that the outcome of the case may very well depend on early attorney representation.
Researching and finding a good New Orleans Criminal Defense Lawyer as early in the process as possible is recommended when someone has been arrested and is facing possible criminal charges. This is especially true immediately after being arrested but before formal charges have been filed as many times attorneys can negotiate a dismissal before any charges are actually made. The key to taking advantage of such an opportune time is getting legal representation immediately after the arrest.
If charges have been made, it is still vital to find legal representation right away to improve having a more positive outcome. Any negotiating prior to authorization of charges, plea bargaining, or other discussion about dropping or lessening charges is more likely to happen in the early stages of a case rather than after charges have been finalized. A criminal defense attorney will know if there may be bargaining room with the prosecutor after hearing an account of the arrest as well as know how to proceed from that point.
Hire a New Orleans Criminal Defense Attorney Today!!!