If this plea took place in Pennsylvania, could they have given up their appeal rights? I think the answer is yes and no.

In Pennsylvania, there are two types of appeal: direct and PCRA (Post Conviction Relief Act). A direct appeal is what people normally think about when they want an appeal, that is to appeal a decision made by the judge in the trial or to appeal something the prosecutor did that was not fair during trial. A PCRA appeal is much different. The three main types of PCRA appeals that we see in our office are appealing some mistake that your own lawyer made, newly discovered evidence, or an illegal sentence.

I think that a defendant can give up their right to a direct appeal in consideration of a deal with the prosecutor. However, I do not believe that you can waive your PCRA rights. If the plea is illegal, if your lawyer tricked you into pleading guilty, or even if you can show that your plea was not voluntary, you may be able to file a PCRA even if you waive your appellate rights.

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At a bar in Philadelphia, two people were killed. Lambert was prosecuted, convicted, and sentenced to death. The main testimony for his conviction was from a man who was impeached four different ways. Turns out, there was a fifth way to impeach him–that another man was with him, not Lambert. This information was contained in the police activity report.

The police activity report was never given to Lambert’s lawyers.

On appeal for the last 28 years, court after court denied Lambert’s appeal. Finally, on February 7, 2011, the Third Circuit Court of Appeals had the courage to do the right thing and reverse the conviction and order a retrial based on a simple Brady v. Maryland, 373 U.S. 83 (1963) analysis. Restating for the umpteenth time that the district attorney has to give the defense attorney all of the discovery before the trial.

This is the link for the opinion for Lambert v. Beard.

The relevance of this case is that the appeals court in Texas sent the case back for re-sentencing because the criminal defense attorney erred during the case, specifically the sentencing.

In Pennsylvania, we have two types of appeals: direct and pcra (post conviction relief act). In a direct appeal, you appeal the trial itself, that the judge made a mistake or didn’t give you a fair trial, that an error occurred during your case. In a pcra, you can appeal for many reasons, but if the case of the blue-eyed butcher had occurred in Pennsylvania, her claim would have been ineffective assistance of counsel, that her lawyer erred under the pcra. This distinction is important in Pennsylvania, because you cannot exercise your rights under the pcra until you have fully exhausted all of your direct appeal rights, which can take many years.

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Today, the confrontation clause is applied through cross examination in our courts. The defendant hires a lawyer to fight their case and during trial the lawyer gets to confront and cross examine all of the witnesses against the defendant.

In our modern approach the courts have come up with rules for courtrooms and rules for how evidence comes into the courtroom. Sometimes the rules of evidence conflict with the confrontation clause. Legislatures and courts around our country have created rules of evidence that dictate what is allowed in court and what is not allowed. A major rule of evidence is hearsay. Hearsay is an out of court statement, offered for the truth of the matter asserted in court, by a witness other than the person who originally made the statement. Many hearsay exceptions exist that allow lawyers to get in statements that are hearsay, yet meet an exception to the hearsay rules.

For many years, in domestic violence cases, if a victim did not appear in court, but the police officer took a statement from victim, the police officer was allowed to repeat in court what the victim had told the officer so long as the district attorney could show that the statement was taken at a time when the victim was excited or when the victim simply blurted out the statement because he or she presently had the impression of what just occurred on their mind. The officer was allowed to testify as to what the victim said even though the statement was hearsay because the statement fit an exception of hearsay rules as either and excited utterance or a present sense impression.

Whether these exceptions to hearsay violated the confrontation clause was appealed to the Supreme Court of the United States in a case called Crawford V. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court ruled that the confrontation clause trumps the rules of evidence and the witness must appear if the statement being sought to be entered by the district attorney is testimonial. How we define testimonial is a difficult question, but I think it means that if the testimony sought goes to the central issue of guilty or innocence, the witness must appear in court because we have the right to confront them. However, the actual definition is whether the statement or document was produced for the purpose of trial.

Recently, the Supreme Court of the United States took this concept one step further. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Court held that in a narcotics case the lab report showing whether the substance is actually narcotics is a testimonial statement, thereby, if the defendant wants to cross examine the author of the report, the court must allow them to confront that witness and force the DA to produce that witness in court.

Our own Superior Court has recently applied the Melendez-Diaz statement to DUI (Driving Under the Influence) cases in Commonwealth v. Barton-Martin, 2010 PA Super 163. In Barton-Martin, the Superior Court held that in a DUI case, you have the right to confront and cross examine the lab analyst who made the lab results report to show that you were under the influence. The Commonwealth can no longer move the blood report into evidence as a business record exception to hearsay. The rationale is that the blood report in a DUI is central to the DA’s case, so it is testimonial in nature and the right to confront trumps the hearsay exception.

Barton-Martin will certainly help clients who are charged with DUI, where blood was taken and the numbers are borderline whether the person was under the influence where the conclusion section states that no conclusion can be made if the person was unfit to operate a motor vehicle safely absent other evidence. You should now be allowed to question on lab conditions, methodology of testing, training of the lab tech, error margin of the testing procedures to show that the lab results create a reasonable doubt.

The right to confront your accuser still exists.

There is no automatic right to review by the Supreme Court.  A party that desires to have their case heard by the Court must file what is called a Petition for a Writ of Certioari.  The Justices decide based on that petition, as well as any brief in opposition thereto filed by an opposing party, whether they will hear the case.  If the Justices grant the Petition for a Writ of Certioari, the parties are directed to file briefs and oral argument may be set.

There is a very strict time limit of ninety (90) days in which a party must file the Petition.  The ninety days start running from the time of the entry of final judgment in the lower court.