Fundamental Error on Direct Appeal

The following are the argument that my son’s appeal attorney, Bill Ponall used for the appeal. While they are good arguments, the problem is that the trial attorney did not object to practically any misconduct done by the prosecutor during closing argument. In fact, he only objected a few times during the trial if that many. Since the attorney, Gary Schwartz, had no objections during trial, most of the issues below were unpreserved issues.

My question is, whose fault is it if the trial attorney does not make appropriate objections? Is the defendant suppose to object himself?

Closing Arguments (Taken From the Florida Bar Journal)
To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection.23 If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.24 If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review.25 The motion for mistrial must be made before the jury retires to deliberate. 

In the argumentative issues below, Bill is raising the point that, these vast amount of issues had a cumulative effect constituting fundamental error.

Florida courts recognize three such exceptions: fundamental error, ineffective assis-tance of trial counsel, and cumulative error. Although these three developed separately, they should be (and, at least implicitly, are being) blended into a single rule: Appellate courts should address the merits of the issue if the record is sufficient to allow the court to do so. The record is sufficient if 1) the issue was preserved or 2) if unpreserved, the record is sufficient to allow the court to determine that a) error did occur and b) there was no legitimate tactical reason for defense counsel’s failure to preserve the issue. If conditions a) and b) are met, the court should reverse if the error was prejudicial. If it is clear from the record that prejudicial error occurred, it is the appellate court’s duty to reverse, in order to vindicate the defendant’s due process right to a fair trial. The label applied to the legal basis for reversal is irrelevant; what is important is the determination that is clear from the record that prejudicial error occurred. (Florida Bar Journal)

I   THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY PERMITTING THE PROSECUTOR TO MAKE    IMPROPER ARGUMENTS THROUGHOUT CLOSING ARGUMENT.

  • Burden Shifting
  • Appeal to Jury’s Emotions
  • Bolstering the Victim
  • Accusations of Lying
  • Comment on Demeanor
  • Denigrating the Defense

2.    THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY ADMITTING INTO EVIDENCE THE UNDULY  PREJUDICIAL PORTIONS OF THE VIDEOTAPE OF MR. AJOLOKO’S INTERROGATION; IN THE ALTERNATIVE, TRIAL COUNSEL COMMITTED FUNDAMENTAL ERROR BY NOT OBJECTING TO ITS IMPROPER INTRODUCTION.

(Please note that in this argument, Bill states in the appeal that our trial attorney, Gary Schwartz committed ineffective assistance of counsel by not objecting to its improper introduction. I had a problem with this argument, because it was Gary’s idea to redact the video tape in the first place. Later, the judge suggested that Gary and the prosecutor, Syed Qadri, redacted the videotape. How do you make an argument for something Gary initiated?)

These were the arguments on appeal.

My next post will bullet point what my son, Charles wanted included in the appeal along with the above argumnets.

He never got what he wanted.

 


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