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I would have loved to have not taken you here, but the truth is once charges are placed against you there are only two outcomes. You take a plea bargain or you go to trial. There is no plan C. In all the cases I have studied and the people I have met there are only two people I know of who won their case on the first trial. They are Steve Karban and Tonya Craft. Just because you lost the trial doesn’t mean the war is over. When a prosecutor enters your life it's like being bitten by a Gila monster. The only way to release its jaws once it bites down on you is to cut its head off. The minute the verdict is in and you have been carted away, the judge will ask your attorney if he wants to interview the jury. You have a right to this interview, don't give it up. This interview allows your attorney to ask the jurors what part of the trial convinced them of your guilt. The answer to this question can help you immensely in trial number two. Other important questions to the jury can point out the weak spots of the presentation and areas you might try to avoid the next time around or approach differently. This is vital information that is too important to just give up. I had no idea my attorney gave this opportunity away until I read my transcripts a year later. Now that you know this walking in you can demand this from your attorney before you get there and your attorney can provide you with transcripts of what was said.
Another thing that can be done I didn't find out about till my legal research was underway is that your attorney immediately after the verdict can file a motion to vacate (remove the verdict) under rule 24.2. Other states will have a similar law. Certain conditions must be present to apply for it and you aren't always going to get it. If you get it you are out on appeal until the court of appeals makes a ruling on your appeal, at which time your appeal is considered perfected. Under the right conditions, with a good trial attorney, you can go through this entire trial including appeal without spending more than a few days behind bars. Thus giving you more time for research.
If your attorney fails to do this you'll be sent to the county jail to await sentencing. Ordinarily sentencing will occur in two weeks time. However a reduction of sentence can be had if your attorney petitions court for a psychosexual evaluation by a state psychologist. It worked for me and added only two weeks to the entire process. The reasoning behind this is that the psychosexual evaluation can make the judge feel more comfortable about giving a shorter sentence.
Approximately two weeks after sentencing you'll be sent to a classification center. In Arizona it is known as Alhambra. I've never been to a scarier looking place. It used to be a mental institution until a new facility was built and the buildings were given over to the department of corrections. During your stay there you will be placed with general population. Your best option is to lie convincingly about your crime and lay low. Do not ask for protective custody there. Protective custody does not exist there in the same sense as it does at the jail. Asking for protective custody in prison is asking to be placed on a DIC 67 list. By asking for protective custody you will increase your time in Alhambra by up to a month. Definitely not something you want to do. I know, because it happened to me. DIC 67 is for gang members who are not to be housed with rival gang members or for a person who is not to be housed with other individuals, generally speaking for informants. I can just about guarantee you it's not going to help you at all.
By the time you arrive on the sex offender yard your application for rule 31 or rule 32 will have been filed by you or your trial attorney, along with an application for indigency. Indigency means you don't have the money to hire an attorney so the state must provide one. If you had a paid trial attorney an indigency hearing must take place.
A rule 32 is an application for post-conviction relief. Although the writ of habeas corpus is still on the law books, if you file one it will get converted into a rule 32 and you will remain in prison till the rule 32 is decided. The writ of habeas corpus can’t be removed from the law books because it is a right guaranteed by the U.S. Constitution. To sidestep the Constitution they supersede the writ of habeas corpus with rule 32 and leave habeas corpus as a powerless, hollow shell because it can't be removed from law without writing a new U.S. Constitution. Some people might argue this point, but until you have had to file one you don't know what you are talking about. A rule 32 can shorten your sentence by getting you resentenced where sentencing errors exist. It can get you a new trial where there was a major error in trial, new evidence that didn't show up at the first trial, or when there has been a major court ruling or change in the law that directly affects your trial. In some cases a rule 32 can be converted into a rule 31 which is a direct appeal. Generally speaking this happens when a rule 32 has been decided improperly. All rule 32's are decided by the trial judge you had in trial and the trial judge is not likely to admit that he made a mistake. Therefore he is not likely to rule in favor of your rule 32. When this happens you can file a rule 31 with the court of appeals contesting the judge's decision. In a rule 31 you can't raise the claim of ineffective assistance of counsel. Ineffective assistance of counsel is a claim that your trial attorney's performance failed to meet criteria set for effectiveness. This is the most frequent claim on rule 32's. The point to remember with retrials is that it does you no good to go through a retrial without a significant change in strategy and or evidence. A rule 31 deals only with testimony and evidence presented to the jury. It deals primarily with errors made by the court or wrongs done by the prosecutor. New evidence cannot be presented in a rule 31. A rule 31 at its best can get you released. Usually you get a reversal with a remand for new trial.
In my case I created a short list of things the prosecutor did that I felt were wrong and prejudiced the jury against me. One of the items on my list was the introduction of the presence of adult pornography and testimony. I claimed this introduction should not have been allowed and prejudiced the jury against me. In my rule 31 appeal I had an excellent public defender, Michael Miller. The first day we talked on the phone he asked me what I thought might claims were. He took almost every suggestion I had and worked them into the appeal. You need an attorney like this who is willing to work with your ideas. But before this, you have to have ideas and that means that you have to think like a lawyer and a court combined. The appellate court unanimously (all three judges) agreed I was right about the adult pornography issue and granted me a reversal with a remand for retrial. Remember, all arguments or claims must be supported by case law wherever possible. You don’t have to include the entire case law, just citations of the relevant parts.
During the post-trial phase you'll also undergo a pre-sentencing interview with a probation officer. The presentencing report contains recommendations to the court for your terms of release. All of the presentece reports I've read including mine are a scandalous distortion of the facts or outright lies. What most probation officers don't tell you when they begin the pre-sentencing interview is that you have a right to have an attorney present at this interview. I highly recommended you do this and that you ask him to appear with a tape recorder. You also have the right to remain silent during all of this, which is probably the best thing you could possibly do. The adult probation officer's job is to lie and they're pretty good at. After all they can’t have adult probation saying you're a nice person can they?
During the time between conviction and sentencing the judge is supposed to review the letters sent by people on your behalf begging for mercy on you. The more letters you get sent the better. However, in reality these letters will never amount to more than the band on the Titanic did. Letters on your behalf from friends, employers and relatives become a part of your case file and can be looked at later as well. They should be sent the minute action is taken against you and a docket number is assigned to you.
At sentencing immediate family members get to speak on your behalf to plead for mercy from court and to speak their mind. Things said by your family become part of the record, but because they don't occur in front of the jury, they too become like the band on the Titanic.
Sentencing, especially for sex crimes at least in Arizona, has become the most convoluted, confusing subject in the entire code of laws. For example just selecting a case at random I find three sentencing statutes selected for one count and the sentence imposed for each statute is different. The question is which one applies? Most attorneys can't figure it out. If you pick one sentencing statute and read it, you'll be referred to another sentencing statute you aren't even charged with, which then refers you to another statute you were charged with, which then refers you to another statute. The purpose of this is pure deception and slight of hand. If I am to believe this is the only way the law could be written, then I’m being asked to believe that it was impossible for our lawmakers to attach one sentencing statute to one kind of crime which is utterly absurd.
Sentencing involving aggravating factors requires the jury to hear those aggravating factors and vote on them. (see case law on Aprendhi) the situation is that sentencing takes place about two weeks after the trial. Long after the jury has been released. The state doesn't want to call them back because of the expense, as well as the irritation factor. So they just aggravate your sentence without a jury. No big deal right? I mean it's not like the convict is going to know it's against the law. Right? Well you do now!
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