It is very common to have a different attorney during your appeal than you had during your original trial. It's also very common for the current attorney to point to failings on the part of the first attorney to try to vacate your conviction. Understand what this means for you and your future.
What is ineffective assistance of counsel?
Attorneys are human and prone to error, just like the everybody else. If that error is significant, however, it can result in an unjust conviction. However, exactly what equates a significant error on the part of your attorney is hard to determine.
In many jurisdictions, you have to prove both that your attorney made unreasonable mistakes and that those mistakes probably led to your conviction in order to get your sentence vacated. This is known as the Strickland Standard.
Ineffective counsel can occur through a series of cumulative events throughout your trial or because of one major event:
- failing to interview alibi witnesses
- not reporting a conflict of interest
- not conducting available DNA testing
- giving you bad advice about the terms of a plea agreement
- failing to tell you about a plea agreement
- failing to raise important objections to preserve your appeal rights
It's important to note that you can't get a ruling of ineffective counsel because your attorney refuses to raise a certain defense if the defense isn't supported by the evidence. For example, if you try to argue that you were legally insane at the time of the crime but there's no evidence that you ever suffered from a mental disorder, your attorney isn't being ineffective by refusing to offer that defense.
What happens when your conviction is vacated?
It's important to remember that when a conviction is vacated, that's the same thing as if it never happened it all. What that means in practical terms is that you can be retried for the same crime. This comes as a surprise for many people who don't realize that being tried twice for a crime is ever a possibility.
Whether or not you are retried for the crime is ultimately the prosecutor's decision. If the prosecutor thinks that he or she can secure another conviction, you'll likely be retried. If a lot of time has passed, if there is missing evidence, or if new information makes it seem unlikely that the prosecutor will win, you probably won't.
If you believe that your trial attorney was ineffective and that led to your conviction, contact a new criminal defense attorney, such as Kirsten Swanson Atty, to discuss the possibility of having the conviction vacated. Keep in mind that a claim of ineffective counsel is difficult, but not impossible to meet.