> I see I do need to fill in. I'll do it now.  With so little to go
> on, your grasp of the case, and subsequent input, is valued: If
> you'll kindly favor us with reading more, we would welcome your
> further insights. We took steps immediately, as you urged, to seek
> a new attorney now: below is more on that.
I'd be more than happy to continue to share my observations. I have
been giving quite some consideration to your case, since I received
your reply.
One point I would like to emphasize, at this juncture, is that any
opinions I may render are best used as springboards for thoughtful
discussion between yourself and your daughter. These decisions, as
you well know, are not to be taken lightly.  I would *not* presume
to urge you toward any action based solely upon my suggestions.  My
name is not Alan Dershowitz.
Read that again, please.
I didn't realize that you were at the stage of giving oral argument
on appeal.  This indicates that the (written) appellate briefs have
already been submitted.  It is important that you review these with
your new attorney.  It is also very important that you review and
understand the points of law addressed therein.
What troubles me is that you found yourselves wondering why certain
aspects of the case were not argued, that is, those ancillary neglect
charges.  I gather from this the inference that there may be other
significant points of law that ought have been addressed, and that you
may not be entirely aware of them.  From this, I similarly draw the
inference that your coordination with the attorney was not as complete
as it could have been.
Consider that an appellate Justice had rendered an observation along
the lines of asking if your daughter ought have been acquitted as a
matter of law.  This suggests that the Justice may be aware of some
point of law that ought have been clearly set forth in the appellate
briefs.
What was this particular point of law, and why was it not clearly set
forth in the appellate briefs?  Would it truly have served to entitle
your daughter to acquittal as a matter of law?  What other such points
of law may have been similarly overlooked?  These are among the first
questions you should be reviewing at this stage.
Upon determining that significant points had been overlooked, if
indeed they had, the question becomes one of how to properly modify
the appellate briefs, or, how to properly introduce these additional
points of law into the appellate process already in progress.  The
court may, or may not, incline toward a motion for continuance in
light of the appearance of new counsel.
Consider carefully the role of the appellate court.  The appellate
court does not review the evidence.  It does not hear testimony from
witnesses under cross-examination, and it does not determine guilt or
innocence.  The appellate court merely reviews the procedural aspects
of the trial.  These would include, in and among other things, the
introduction (or withholding) of exculpatory evidence during trial,
whether the trial court erred in allowing, or in disallowing, certain
testimony, and whether the jury was properly instructed.
In the event that the appellate court determines that an error had
occurred, it considers whether the trial courts error was significant
or merely "harmless error."  If the former, it may remand for a new
trial, often with instructions that a particular procedure is to be
followed, or that particular evidence be admitted, or that the jury be
differently instructed; else it may overturn or vacate the judgement,
in which case the prosecutor often has the option of instituting new
proceedings.  The appellate court may also vacate part of a judgement,
leaving in place another.
While there have been a few cases in which public defenders have
passed a case on to the appellate court for review to see if there are
any valid issues to be raised on appeal, such microscopic scrutiny of
a case by an appellate court is rare.  When a case is submitted by
counsel with briefs and oral arguments to the appellate court, its
role is to properly consider only those issues raised on appeal.  It
passes on all other issues, without regard as to their validity.
This is why it is absolutely critical that counsel thoroughly prepare
these appellate briefs, clearly identifying each and every procedural
error the trial court may have made.
To move toward some specifics, you had mentioned that the judge had
"misheard" the testimony of one of the witnesses.  The question is one
of what effect this may have had on the proceedings, and of whether or
not this error was harmless.  Whatever the exact circumstances of this
mishearing of testimony, this possible error is one which must be
clearly articulated in the appealate briefs, or otherwise raised by
counsel during appeal, else it is an error that may be passed over.
It sounds to me as if you have some understanding of the process, and
of the issues addressed on appeal.  What I would suggest is that, if
you have not already done so, write them down on a notepad.  Try to
gauge the importance of each one, and compare them to the appellate
briefs and oral arguments to ensure that they have been presented. If
not, find a way to politely call them to the attention of new counsel,
such that they may be introduced in a timely manner, to the extent
that such is possible at this stage of the process.
I understand, and appreciate, your continued interest in pursuing
justice for others.  Often, one needs to be closely affected by a
particular variety of injustice in order to be called to such an
active role.  Consider the otherwise ordinary people who became
environmental activists after having lost their homes and community
to the Love Canal.
I also respect your genuine concerns for your daughter, given her
plight, and understand how difficult this must be for the both of you
emotionally.  What I suggest, and this is easy to say from where I am
sitting, is that you must focus all of your energies and activities
on the short term goal of setting her free. Once this is accomplished,
you may then turn toward the longer term goals you seek.  As for the
emotional manifestations, the must be reigned in for the moment, such
that they do not cloud your judgement.
Right now, it is your task to work with clarity and focus toward
successfully meeting the short term goal.  There are bound to be many
tears shed when the verdict is finally rendered, and you have our
help, for whatever it may be worth, and our sincere hopes and prayers
that these are to be tears of joy.
--- FMail/386 1.0g
(1:2629/124)
---------------