Do we have a lawyer that would answer a question for my WIP?

Carrie in PA · Oct 14, 2006

One of my major characters is in prison for a murder he didn't commit. He escaped from prison, and was recaptured. He now has an attorney representing him. She is convinced of his innocence and is going back through the old evidence. (Trial was almost 7 years ago.)

I don't need detailed information, because my MC is very much a legal layman. She's getting brief, periodic updates on the case, so that's what I need the info for. So my question:

What are the steps they would be going through to have his name cleared?

ETA: Is the escape a separate crime he'll be charged for, or can I kind of ignore that?

I'm assuming it has to go back in front of a judge, but does it go back through a whole trial?? And after he is ruled innocent, how long until he is released from prison?

My 72 hour Law & Order marathon hasn't helped. :ROFL:

The legal aspect is very minor to my story, but I don't want to just make stuff up. LOL!

Thanks!

LeeFlower · Oct 14, 2006

you might try asking this over in the 'experts and advice needed' board. I seem to recall some legal eagles hanging around there.

Carrie in PA · Oct 14, 2006

Why didn't I think of that? :Shrug:

Thanks!

icerose · Oct 14, 2006

From what I understand from my criminal law school days, and I could be wrong it's been a while, then:

He would first be sent back to prison, he would have an added sentence for escaping tacked onto the end.

His lawyer would have to file an appeal and convince a judge of new evidence. They can't do it merely on a whim and a judge wouldn't be in much of a listening mood after his escape so the evidence would have to be pretty compelling.

Then there would be a new trial, he would remain in prison, apearing at the court during his court days then right back.

Then if he was innocent and it was proven innocent, he would be released, and he would recieve a pardon from the state governor so his record would be exponged of the murder and he wouldn't have it hanging over his head when he went for jobs and such.

Again, the evidence would have to be pretty outstanding and it would be one heck of a battle.

This happened not too long ago, a man was sent to prison for twenty years, he was proven innocent when the real bad guy got caught and his semen was compared and wow, it matched, but you know back in the day DNA testing wasn't really used. So he was released from prison, sued the state, got ran over by a car in a hit and run before the lawsuit could make it to court and died. Now if that isn't fodder for conspiracy theorists, I don't know what is!

jbal · Oct 14, 2006

I've heard of a case where a man wrongly imprisoned escaped and was captured. Though he was officially exonerated, he was still sent back to prison for his escape. It seems to me that it may depend on the state in which this takes place, so that may be useful info.
There would be an appeals process set in motion if new evidence came to light, but it would be up to a judge to order a new trial if I'm not mistaken.

icerose · Oct 14, 2006

jbal said:
I've heard of a case where a man wrongly imprisoned escaped and was captured. Though he was officially exonerated, he was still sent back to prison for his escape. It seems to me that it may depend on the state in which this takes place, so that may be useful info.
There would be an appeals process set in motion if new evidence came to light, but it would be up to a judge to order a new trial if I'm not mistaken.

Wouldn't that just suck? Get imprisioned for something you weren't guilty for, escaping, then getting caught, being exonerated, and then having to serve for escaping from a place you never should have been in?

But yeah, he's right, it really depends on the state and how much of a point they want to prove.

Begbie · Oct 14, 2006

If he is granted a new trial, it doesn't necessarily mean there will be one. If the prosecutor is convinced (with the new evidence) that the man is innocent of the charges, he will decline to prosecute him. They may also decline to prosecute him for the escape, as long as he didn't harm anyone.

Carrie in PA · Oct 14, 2006

Thanks for all the info!

icerose ~ Egads, that WOULD suck, wouldn't it??

ChaosTitan · Oct 14, 2006

icerose said:
Wouldn't that just suck? Get imprisioned for something you weren't guilty for, escaping, then getting caught, being exonerated, and then having to serve for escaping from a place you never should have been in?

I can see it now... The Shawshank Redepmtion 2: Andy Gets Caught. :ROFL:

Carrie in PA · Oct 14, 2006

Got the answers I need, thanks!!!!!!!

Rabe · Oct 14, 2006

Carrie in PA said:
One of my major characters is in prison for a murder he didn't commit. He escaped from prison, and was recaptured. He now has an attorney representing him. She is convinced of his innocence and is going back through the old evidence. (Trial was almost 7 years ago.)

Okay, I'm NOT a lawyer so take this how you will.

However, there ARE times when it IS legal to escape from prison. However, to prove that the escape was justifiable he would have to establish certain facts:

1> he was in such severe danger that it would be life threatening and the prison system was unable to protect him at all;

2> he tried to go through the prison system for relief from the situation that threatened his life;

3> he turned himself in at the nearest police agency.

Failure of any one of these (and I'm sure there's a fourth but I'm forgetting it at this time) would pretty much screw his chances of being exonerated for the new felony of escape from lawful custody. So, that is a separate charge not incidental to whether or not he was exonerated at a new trial.

Carrie in PA said:
What are the steps they would be going through to have his name cleared?

New trial to discover that he was indeed NOT guilty of the crime. It would almost be better if he were sentenced to the death penalty because those appeals are more routinely heard. However, if he should actually be exonerated of the original crime, then he needs a VERY expensive PR blitz to 'clear his name' because the public consciousness doesn't ever really forget nor forgive. Ask anyone falsely accused of rape, child molestation or heinous murder crimes. Or, heck, just ask Michael Jackson (the singer) or OJ Simpson (the cleverly let go murderer - oops! that proves my point).

But the judge of the original case would have first crack. Most likely the judge would turn down the request for a new trial. Judges don't generally like to have people tell them their court was wrong. Then an appeal to a higher court. If they decide to take the case and discovers that there was some sort of prosecutorial misconduct, defense ineptness or just faulty grounds for the verdict, then they order a new trial. The person is brought back to the original jurisdiction for the trial and housed - most likely - in the local jail. The process then begins all over again (arraignment, prelim - blah blah blah). If found guilty, they go back to prison and it's over. It's hard to get a third trial after a second fails. If innocent, well, in this scenario, they still go back to prison. Unless the judge hears the escape charge and decides to give them credit for time already served and that maxes out the sentence. In which case they get sent back to jail to be processed out - but are still a felon.

Carrie in PA said:
ETA: Is the escape a separate crime he'll be charged for, or can I kind of ignore that?[/quote

See above and no. Not with any sort of authenticity of course. Unless you're writing for Hollywood - in which case they do it all the time.

Carrie in PA said:

I'm assuming it has to go back in front of a judge, but does it go back through a whole trial?? And after he is ruled innocent, how long until he is released from prison?

Click to expand...

Unless the prison where he is housed is actually in the jurisdiction of the original crime, then he goes back to a city/county jail. So, if he's found innocent, he doesn't go back to prison. He goes back to that jail to be processed out. Some places (like mine) you can be released in as little as a few hours. Larger facilities (say, Los Angeles or Las Vegas) and it could be a day or more.

Carrie in PA said:

My 72 hour Law & Order marathon hasn't helped.

Click to expand...

Imagine that!

But if things do get 'made up' most people would never really notice. The public is so numb to fact and reality in their entertainment that they actually believe they know as much or more than the people working in the field. Especially when it comes to law, police work or even medicine. Ever watch "House" and hear him complain about people who go onto the internet to look up diseases and stuff? Doctors are getting really tired of that because it's led to an upswing in people telling the doctor what they have based on their own 'diagnosis' - which is generally wrong. Some time ago my doctor gave me a WHOLE lot more information on something she thought I had because I mentioned I looked up what she first thought I had and asked a few questions. Most of which were wrong questions.

Or, another case in point. I wrote a short story featuring a deputy and had him react according to the policies and practices of my own county's department. I sent it out for critique and got back such lame duck advice as "deputies don't wear ballcaps, they wear smokey bear hats" and how the police officer was 'unbelievable' because he didn't rush into the deep dark, wet woods with his gun drawn at the first hint of something mysterious going on. This person told me how cops act and think and he was a produce clerk or something like that. But he watched a lot of 'cop shows'. Like 'CSI' (which, btw, really chafes my rear).

So, in essence, think of getting the major things right - a new trial, held responsible for escape from prison, etc. Minor stuff like being released right from court after being told 'innocent' is passable. Heck, just do a scene shift and skip over all that, people then just assume all the required paperwork has been done.

Rabe...

raelwv · Oct 14, 2006

Just a clarification of terms -

An "appeal" is the legal challenge to a trial that takes place immediately after a person is convicted and sentenced. Appeals deal only with legal issues on the record produced during the trial - no new evdience, outside facts, etc. If you are convicted in state court you would go through the state appellate courts (1 or 2, depending) and then to the Supreme Court. If you were convicted in federal court, there is one layer of appellate courts between trial and the Supreme Court.

The type of post-trial proceeding where new evidence can be heard is generally called a writ of habeas corpus. That proceeding starts back in the court where the person was convicted. There are procedural rules that limit the kind of issues you can raise in these proceedings. You can appeal decisions by that court through the state and federal systems, too.

A lot of times when lay people talk about appeals, they're really talking about habeas proceedings. A lot of my clients (I practice appellate criminal law) don't grasp the difference, either, at first.

Are you thuroughly confused now?

Carrie in PA · Oct 14, 2006

raelwv said:
Are you thuroughly confused now?

Now THAT I understood. :ROFL:

Kidding, thanks for the details.

Do we have a lawyer that would answer a question for my WIP?

Carrie in PA

Write All The Words!

LeeFlower

Lurker Extraordinaire

Carrie in PA

Write All The Words!

icerose

Lost in School Work

jbal

icerose

Lost in School Work

Begbie

Quite a character

Carrie in PA

Write All The Words!

ChaosTitan

Around

Carrie in PA

Write All The Words!

Rabe

the living dead

raelwv

Carrie in PA

Write All The Words!