Michigan Criminal Lawyers Blog

Many people are not aware that if they are convicted of a misdemeanor or felony offense, they have the right to appeal their conviction. A conviction is not “the end of the road.” However, it’s also important to note that winning an appeal is not easy, and in fact rare without the guidance of a highly skilled Michigan criminal appeals attorney.

First of all, an appeal is not a “second trial.” Appeals court judges will not review the evidence in an effort to determine whether the jury or judge was right or wrong. An appeal is a process in which a panel of judges determine whether legal errors were made, evidence prohibited should have been allowed at trial, the jury was not properly instructed, or other “errors of law” were made.

There are two types of appellate rights, an automatic right to appeal, and leave to appeal. What is the difference?

Those who have not pleaded guilty or no contest to a crime but who have gone through trial and been found guilty have an automatic right to appeal. Essentially, the Michigan Court of Appeals must consider your arguments, whether improper evidence was admitted, a judge erred in instructing the jury, or due to ineffective counsel, etc.

Those who pleaded guilty to a crime may request a leave to appeal. With a leave to appeal, the court is not required to hear your case. A leave to appeal may be requested when you feel a legal error was made. Unlike with a trial in which a defendant was convicted by a jury or judge, the appeals court does not have to consider your claim.

A unique type of appellate motion is a 6.500 motion, which may be filed only one time and is a motion which allows a defendant to challenge a conviction based on reasons such as newly discovered evidence, ineffective assistance of counsel, or other arguments which have not already been used in an appeal. Because a 6.500 motion can only be filed once, it is critical to have a lawyer who is familiar with the process and understands the importance of a well researched and written brief, and the arguments which will or will not be effective before a panel of judges.

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Winning an appeal from a criminal conviction is a rarity; in fact, reversal rates (meaning the court of appeals reverses a conviction) fall between approximately 5% and 15% of all criminal appeals across the nation, according to studies that have been conducted in some of the largest U.S. cities. Does this mean you hardly stand a chance if you have been convicted of a crime in Michigan, and appeal your conviction? It all depends on the skill and experience of your Michigan criminal appeals attorney.

Unfortunately, there are many people who remain behind bars today simply because their defense attorney was not effective, or did not properly advocate on behalf of the client. There have been countless defendants who have appealed their conviction, only to have the Michigan Court of Appeals uphold it. Essentially, this means the defendant goes back to prison and finishes serving out his or her term, even if it means life behind bars. What may have prevented this?

A criminal defense lawyer who is thoroughly involved and attentive to the client’s case. There is more to it than having charges dismissed, or winning at trial. For instance, may a defendant have faced greatly reduced penalties had he or she negotiated a plea bargain with prosecutors? Possibly. In many cases, defendants are poorly educated or may not even be able to read well. When handed copies of court documents, the defendant still has no clue what is going on. This is why it is critical defendants have a good criminal defense attorney, one who is dedicated to informing the client throughout every stage and who will advocate for an agreeable plea bargain when the situation warrants it.

The fact of the matter is that defendants deserve an attorney who will enlighten them regarding every option, because it is the defendant’s future and freedom which is at stake. All too often, a defendant goes to trial never aware that there may be a plea agreement which would substantially reduce penalties. The defendant ends up being found guilty, sentenced to decades or even life in prison. At this point, if a defendant decides to appeal the conviction, he or she had better have a thoroughly experienced and qualified Michigan criminal appeals lawyer given the odds of winning mentioned above.

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Winning on appeal of a criminal conviction or sentencing with the Michigan Court of Appeals is never easy, and truthfully, rare. This is particularly true when defendants argue ineffective assistance of counsel in appealing a conviction. On December 12, Rosa Sharie Watson’s conviction of arson of a dwelling and arson of insured property was overturned after a divided panel of the appeals court found Watson’s defense attorney ineffective due to the fact he failed to retain an independent fire expert.

The defendant had allegedly told her defense lawyer about a fire expert who would testify on her behalf, demonstrating that positive evidence of an intentional fire was lacking, and that the incident should have been classified as outcome undetermined. However, Watson’s lawyer did not contact this expert fire witness. At trial, an expert fire witness for the prosecution testified that evidence concluding that the fire was accidental was non-existent, and because other witnesses contradicted the defendant the fire must have been started intentionally.

Watson’s attorney also failed to challenge the admission of other criminal offenses she had been accused of, which had nothing to do with committing arson or the destruction of a dwelling. These events included uttering and publishing, embezzlement, and attempt to commit insurance fraud, which Watson was never charged with. The appeals court found that the trial court should and would have denied admission of this evidence had her defense lawyer challenged its admission.

In the end, two of the three appeals court panel judges sided with Watson. Judges Douglas Shapiro and Jane Beckering concluded that the defendant deserves a new trial. Had the Michigan Court of Appeals not reversed Watson’s conviction, she would continue to serve 7 to 30 years in prison.

Appealing a conviction with the Michigan Court of Appeals is a complex process. While it is a second chance for a defendant to obtain a better outcome, judges rarely side with a defendant who claims ineffective assistance of counsel. This is a huge win for Ms. Watson at this time, although there is no way to determine whether the new trial will end in a conviction or acquittal.

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