Ep. 58 Post Conviction Relief

This episode explores what happens after a criminal conviction in Tennessee, focusing on post-conviction relief and its critical role in reviewing claims that may have been missed at trial.

This discussion explains how cases reach the Tennessee Court of Criminal Appeals, what it takes to prove issues like ineffective assistance of counsel, and how convictions can be challenged after the trial is over.

Host Nick Morgan is joined by Judges John Campbell, Tom Greenholtz, and Steven Sword to discuss the legal standards and lasting impact of post-conviction proceedings in Tennessee.

Transcript

00;00;00;14 - 00;00;19;08
Host
On the last episode of Tennessee Court Talk, we learned about the purpose, history, and day to day inner workings of the Criminal Court of Appeals. On this episode, we are sitting down with three more of the 12 judges that make up Tennessee's Court of Criminal Appeals to discuss post-conviction relief. If you're listening to this and have no clue what I just said, and this episode is for you.

00;00;19;15 - 00;00;41;22
Host
We're breaking down what happens after a criminal conviction in Tennessee. The process usually starts with a direct appeal to the Tennessee Court of Criminal Appeals. On direct appeal, the focus isn't on retrying the case. Instead, appellate courts look at whether the trial judge made the correct legal rulings and whether any errors actually affected the outcome. They do this by reviewing the trial record, not by hearing new evidence.

00;00;41;22 - 00;01;04;15
Host
If a direct appeal doesn't work, the next option is post-conviction relief. This process is even more limited than a direct appeal within one year of the final order. A defendant can file a post-conviction petition in the trial court, usually raising issues that couldn't be addressed on direct appeal, like ineffective assistance of counsel. If that petition is denied. The defendant can then appeal to the Tennessee Court of Criminal Appeals.

00;01;04;21 - 00;01;15;24
Host
Joining me in today's discussion are three judges who know way more about this subject than myself. They are Judge John Campbell. Judge Tom Greenholtz and Judge Steven Sword. Gentlemen, welcome to Tennessee Court Talk.

00;01;16;01 - 00;01;16;26
Judge Campbell
Thanks, Nick. Thanks.

00;01;16;29 - 00;01;17;20
Judge Greenholtz


00;01;17;23 - 00;01;29;18
Host
All right, so let's just jump right into this. What role do post-conviction proceedings play in Tennessee's criminal justice system? And how are they different from a direct appeal or other ways of challenging a conviction after the case is over?

00;01;29;21 - 00;01;54;09
Judge Campbell
I guess the the easiest way to consider it is that the post-conviction procedure is a way for a defendant after his appeal is over with to bring up, what he considers to be errors, constitutional dimension that were primarily the caused by his attorney, by not adequately representing him in the trial. That's what we most often see.

00;01;54;12 - 00;02;14;29
Judge Campbell
And this is something he couldn't raise on appeal because it the, you know, it's it's all, kind of comes out after the fact. And then, he's allowed to present evidence to the court to try to establish that his lawyer just, fell below the standard, that of care that you expect from attorneys. And because of that, he suffered some kind of prejudice.

00;02;15;00 - 00;02;40;06
Judge Campbell
So the that's that's what post-conviction is about. And then an appeal is basically all the errors that you claim the court committed. During your trial that you say caused it to be, you know, I don't say fraudulent, but but, suspect and allows you to ask the court to reverse and send it back for a new trial or for other relief.

00;02;40;08 - 00;02;43;20
Judge Campbell
So that's kind of the the main difference.

00;02;43;22 - 00;03;10;20
Judge Sword
And Nick, Judge Campbell brings out two really important aspects of post-conviction. One is that you can only deal with issues that could not have been addressed earlier, otherwise have been waived. And then the other thing he said was, is there of a constitutional nature. And so the statute that creates post-conviction relief limits it to those issues that were a violation of either the Tennessee Constitution or the Constitution for the United States?

00;03;10;23 - 00;03;31;28
Judge Greenholtz
Yeah, I think that's exactly right. I view post conviction proceedings as, it's kind of fundamentally a check in the system. Right. So you have, you know, all the due process rights that you have through trial. So you got the right to, a public trial, an impartial jury. You have the right to counsel. You have the right to have the state prove your guilt beyond a reasonable doubt.

00;03;31;29 - 00;04;08;19
Judge Greenholtz
You have all of those kind of fundamental due process rights at a trial. When you take an appeal, on direct appeal. You know, you're challenging about whether there were errors in the trial, you know, was evidence improperly admitted? Were the procedures, you know, not up to snuff? So, so to speak here with post-conviction, though, it's, it's after the conviction has been affirmed on appeal and as, as my colleagues are saying, it really is limited to, you know, people coming into court saying, hey, irrespective of what happened in my trial, the conviction was actually obtained in violation of the Constitution.

00;04;08;21 - 00;04;32;21
Judge Greenholtz
And I need to have a hearing on that. And this is kind of a fundamental check on, on what happened at trial, making sure that, that those important rights were, were followed and respected as it goes. And, it's not often candidly, and we'll talk about this. It's not often candidly, that you'll see relief granted in post-conviction proceedings because the standard is a high standard necessarily.

00;04;32;23 - 00;04;36;24
Judge Greenholtz
But where it, where it is made, it functions as an essential check in the system.

00;04;36;26 - 00;04;48;15
Host
Would you say it's just another way to get back into the appeals process, or is it completely different from that? Because if you've already lost some direct appeal, you wouldn't just jump right back into the appeals process without a reason. Correct?

00;04;48;18 - 00;05;15;19
Judge Greenholtz
Yeah. It's not an A, it's not a substitute for appeal. I think it's just sort of indicated a moment ago, that the nature of the issues that are being raised and post-conviction are generally varied, different than the nature of the issues that were raised at trial. And in fact, if you could have raised an issue at trial and you didn't do so, post-conviction is not going to afford a remedy to, if you tried to raise an issue at trial and it was decided against you, in affirmed on appeal, for example, it's not a do over.

00;05;15;22 - 00;05;33;12
Judge Greenholtz
The law, actually prohibits that. Both issues that, that you could have raised and did not in those that you did, and were unsuccessful with it. So it's not a substitute in that way. And, you know, as we've talked about the statute itself, all of these proceedings are governed by a specific statute that the General Assembly enacted.

00;05;33;14 - 00;06;06;24
Judge Greenholtz
All of these are limited to constitutional issues. And so we're not talking about you know, garden variety, you know, evidence issues at trial or garden variety, claims that the trial court should have acted in a certain way but didn't, at the trial, these are, most often we see the constitutional issue as, Judge Campbell indicated, most often the constitutional issue we see is a violation of the right to counsel, where the, defendant comes back into court and says, typically, the Sixth Amendment guarantees me the effective assistance of counsel at my trial.

00;06;06;27 - 00;06;32;06
Judge Greenholtz
My lawyer, so the claim would go, was ineffective, meaning that, the representation that I received fell below the, standard of care that an ordinary lawyer would have granted, would have given under the circumstances. And that affected the outcome of my trial. That, was prejudicial to me. So those are typically the the the claims that we see there are other types of claims that arise, but those are the ones we typically see.

00;06;32;08 - 00;07;05;14
Judge Campbell
In fact, when you when you start talking about it is, as Judge Greenholtz says, if you start talking about on post-conviction. Well, the court, the court didn't charge the jury correctly or the court ruled against my motion to suppress the court. You know, sentence me wrong. I just meant that these are all issues that could have been or should have been raised on appeal, and so we wouldn't even consider those anyway, you know, but if you say my lawyer was ineffective for not, you know, raising this issue or not, you know, not making an objection when the court did this, well, then that gets you into the Sixth Amendment issue and that,

00;07;05;16 - 00;07;34;20
Judge Campbell
that would be something that would be reviewed on post-conviction. But it's extremely narrow. And the burdens on the petitioner to prove it by clear and convincing evidence. And he has to show that it really had an impact on his trial. So it's a it's a very, as Judge Greenholtz said, its a very high burden. And, and it's the way this the statute was kind of designed so you don't have this constant, I guess, litigation about, a final judgment.

00;07;34;21 - 00;07;40;22
Judge Campbell
It's kind of supposed to be a one time, one time thing, and then and then then it's over.

00;07;40;25 - 00;08;04;00
Judge Sword
Your question really illustrates a common misconception by pro se defendants as well as the public is that it's just another bite at the apple. Another continued appeal you get victim's family thinking once the appeal is done, the case is, concluded. And then while this other, proceeding has started, it's so it is not it is completely separate and different than an appeal.

00;08;04;00 - 00;08;15;15
Judge Sword
It's an an extraordinary, the statute that the legislature just committed as Judge Greenholtz discussed, was just to address a very narrow set of circumstances.

00;08;15;18 - 00;08;23;16
Host
All of you are former trial judges. And from that perspective, what is the most common, misunderstood standing lawyers have about the purpose and limits of post-conviction relief?

00;08;23;21 - 00;08;50;01
Judge Campbell
The most common thing I see is this not understanding that the proof, not understanding that you have a responsibility if you're a petitioner's attorney, to prove your allegations, and we have a lot of people that come in and they make they'll make all kinds of allegations about, well, they didn't call these witnesses. They didn't do this, they didn't do that, but they don't ever really establish what difference would have made had they called these people.

00;08;50;01 - 00;09;18;29
Judge Campbell
I mean, the proof comes down to what they present to the court. And there's there seems to be, I think, a misunderstanding that if I make these allegations that I'm they're not, you know, they're not. Then I put it on the state to have to rebut them, but not necessarily not if if it's just allegations without any factual, backup, then the court's pretty much left with no resort but to but to dismiss it because you haven't proven your case.

00;09;18;29 - 00;09;32;04
Judge Campbell
And I think that that to me is one thing that I see pretty regularly is just a misunderstanding of the, the burden and that that it truly is the petitioner's burden to prove his allegations by clear and convincing evidence.

00;09;32;06 - 00;10;02;14
Judge Sword
We were just talking about how a lot of people see post-conviction as just another appeal or second by an app. I don't quite often hear the same arguments that were made on appeal. And in the trial court. And that's not the purpose. And, you know, the United States Supreme Court in the Tennessee Supreme Court follows the same standard, petitioner to receive relief on, post-conviction petition must show not only, that they have some constitutional right abridged, but they actually suffered some prejudice from that abridgment of the right.

00;10;02;16 - 00;10;26;22
Judge Sword
And so a lot of times we'll have attorneys who who represent, these defendants on petition to post-conviction relief. They'll get the first part and they'll argue, you know, the the trial lawyer should have done this, or they should have done that. Like, for instance, common one we see is they'll argue that the, trial attorney should a call this witness that the defendant knew about, it could have established an alibi for him.

00;10;26;24 - 00;10;47;15
Judge Sword
And so the defendant gets up there and says, my cousin Jenny was with me that whole night, and she could have cut it. My attorney had called her. She would have said it couldn't have been him. He was there. But guess what? The post-conviction lawyer doesn't do. He doesn't put cousin Jenny on the stand. And so how do we know that the petitioner was prejudiced by this?

00;10;47;16 - 00;11;03;28
Judge Sword
Unless we hear Cousin Jenny say, yeah, this is what I would have said had he called me. And so that's one of the big failures that we see is that that inability or misunderstanding that you have to show that you're prejudiced by that, by the constitutional violation. Yeah.

00;11;03;28 - 00;11;26;13
Judge Greenholtz
I think from my perspective, both Judge Sword and Judge Campbell are exactly right. What I would typically see in the trial court was a lawyer would come in and, representing a post-conviction petitioner and complained bitterly about the representation that the original trial counsel rendered, effectively to say, you know, I wouldn't have represented the, the defendant this way.

00;11;26;13 - 00;11;49;11
Judge Greenholtz
And I just can't imagine anyone else would have. And, you know, we just we really need to take a look at this. They'd be talking about, all the things that the original trial counsel did wrong without realizing. Two things in particular, one, as would, Judge Campbell, Judge Sword have said, you're going to have to show that, whatever you think happened, the the original lawyer didn't do.

00;11;49;11 - 00;12;15;13
Judge Greenholtz
Well, you're going to have to show that that affected the outcome of the trial. In most of the time. They're not talking about that. They're just talking about the, you know, complaining about the deficiency. Two, they're not realizing that, you know, the original trial counsel gives representation in a lot of different ways under lots of different strategies, under lots of different, you're trying to look forward to see what will influence maybe the verdict of the jury.

00;12;15;16 - 00;12;40;08
Judge Greenholtz
Maybe I'm not making an objection on purpose, because I don't want to highlight particular evidence before the jury. Or maybe I'm not calling a particular witness because I've talked with the witness ahead of time, and I don't think that what is is going to help at all. Without saying. So, a lot of times in the post-conviction context, we're not talking about, hey, you know, it does seem a little, strange maybe that the original lawyer didn't pursue, this particular course.

00;12;40;10 - 00;13;04;22
Judge Greenholtz
But in post-conviction, we're not realizing that. Yeah, maybe there was a strategy for that. If there was a strategy, typically the courts in the Constitution will defer to that original trial lawyer. You're entitled to a fair trial, not to a perfect trial. And the, the original trial counsel, has the right to to make strategic decisions in that litigation, even if it turns out that it was a, you know, call that didn't help.

00;13;04;25 - 00;13;12;13
Judge Greenholtz
Typically we're going to defer to those strategic, caused by counsel. So those are the things that typically I would say, in addition to what the other judges have noted. Okay.

00;13;12;13 - 00;13;32;18
Host
So you say that they have to show, how it actually altered the trial. What are some more grounded examples of that? So, like, instead of just saying, oh, well, my lawyer, you know, didn't do a good job and didn't represent me well. Well, anybody can go up to a judge and say that they lost. Of course they think that my lawyer wasn't effective.

00;13;32;20 - 00;14;07;29
Judge Greenholtz
Well, you could think about it maybe one way. I don't mean to jump in. But you you can think about it one way pretty clearly. Let's say that, that scientific evidence, is admitted at the trial. Let's say that I've got maybe, I don't know, maybe a fingerprint expert that's coming in. And if it can be shown, for example, that had the defendant called a fingerprint expert and had that expert testified and, had really put the doubt to the state's evidence that may have affected the verdict at that point, let's say, if particularly if the fingerprints were maybe kind of the evidence that were tying the defendant to the

00;14;07;29 - 00;14;28;29
Judge Greenholtz
crime, you know, calling that fingerprint expert at the trial, may have resulted, depending on how it goes, may certainly have resulted in a in a different analysis. But look at what you'd have to do in the post-conviction context, though, it's not enough simply for the defendant to come in and to say, hey, my original trial lawyer should have called an expert at the post-conviction proceeding.

00;14;28;29 - 00;14;45;08
Judge Greenholtz
You've got the obligation and the burden to call the expert yourself. Now in post-conviction to show, as Steve, as Judge Sword said a moment ago, to show what that testimony would have been had it been offered at trial, so that the courts then can make an analysis about how that new evidence would have affected the outcome.

00;14;45;13 - 00;15;04;10
Judge Campbell
Just building on this, you know. Well, how can you how can you show that a lawyer fell below the standard and, and that that would have had an impact? Well, you know, one of the things we look at on the, the, the trial judge and you look at and what we look at when we evaluate these things is what we, first of all, the law clear.

00;15;04;10 - 00;15;26;21
Judge Campbell
We're not supposed to be a Monday, Monday morning quarterback. And, you know, substitute our judgment for the lawyer at the time. But one thing we do have to look for is how well prepared was a lawyer. If the lawyer is well prepared and make strategic decisions and we're not really supposed to second guessing, but the situation might come down to is a lawyer's not well prepared.

00;15;26;23 - 00;15;53;17
Judge Campbell
There's the testimony establishes that he didn't talk to the witnesses ahead of time. He didn't really consider, a, suppression issue that looks like it may have had some merit. That gets you in the door where, you know, if you if you can establish if the if the petitioner establishes that his attorney wasn't well prepared, then his strategic decisions all of a sudden don't carry a whole lot of weight.

00;15;53;19 - 00;16;17;26
Judge Campbell
And, you know, that's what the proof is supposed to establish. And, it doesn't happen often, but every now and then you'll get a case where it doesn't look like the lawyer really got prepared. He got a few things together and talk to a couple people, but didn't really dig, didn't really maybe listen to the client and and and look at other avenues that maybe were available that can be proven, maybe can be brought in and post-conviction show.

00;16;17;27 - 00;16;35;07
Judge Campbell
Hey, I would have testified. This is what I would have said. Then you might you may get relief, but it's, and those are the things we see and we see every now and then we'll see one where you clearly going to say the lawyer was not prepared and you're not going to give him that deference on his, his strategic decisions.

00;16;35;10 - 00;16;47;23
Judge Campbell
But but you know, it it can happen and that and that's what we're talking about as opposed to just throwing out a bunch of well, I wish, you know, he should have done this or should have done that. If you come with the receipts, then it's then it's a whole different animal.

00;16;47;27 - 00;16;58;06
Host
Can post-conviction relief. Does it have to be from someone that is incarcerated, or can it be someone who just simply got their license taken away from too many DUI or no?

00;16;58;07 - 00;17;19;08
Judge Campbell
To answer your question, no, you don't have to be in custody. And I've had post-conviction cases where the defendant was sitting right there in the audience, was not in custody. It just has to be filed within a year of of the final judgment. And if they're, you know, and if you have a misdemeanor case, if you're on probation, I mean, technically, you can still file a post-conviction and and we've seen that.

00;17;19;08 - 00;17;33;24
Judge Campbell
But it's, but you don't have to be in because you have to be like, for habeas, you have to. But for, for, post-conviction, you do not have to be in custody, in order to file an order to be, you know, you could be out, you know, you could you could be out and still, and still pursue it.

00;17;33;24 - 00;17;37;27
Judge Campbell
So there's no requirement that you be in custody.

00;17;37;29 - 00;17;40;07
Host
Can you explain habeas just for a second, for.

00;17;40;10 - 00;18;02;27
Judge Campbell
Habeus corpus? Bring the body because you're being unlawfully detained, and, the habeas corpus is to bring the bodies, you know, oldest writ around and, you know, bring the body to court and let them, you know, establish that they're being held, illegally. And then, you know, the real rule, the relief is to to release them from, from from custody.

00;18;02;29 - 00;18;17;05
Judge Campbell
But, that's a whole nother animal. And it's it's very it's even narrower than post-conviction. It's, it's it's a very narrow in Tennessee remedy. So, we see them quite a bit, but they're, but, you know, they're very rarely successful.

00;18;17;13 - 00;18;24;13
Host
All right. So what types of proof tend to be most persuasive or least persuasive at a post-conviction evidentiary hearing?

00;18;24;16 - 00;18;47;28
Judge Sword
You know, usually when you're at a post-conviction proceeding, you're probably talking about the effect of, assistance of counsel. And so it's very important to hear from two people in that case, one is the defendant, the petitioner, who he's actually required to testify if he has personal knowledge of the facts he's alleging. And the other is the trial counsel who represent them.

00;18;48;01 - 00;19;10;06
Judge Sword
And so you might think, well, the judge is just going to automatically believe what the lawyer says, but in my experience, that isn't necessarily true. What I have found quite often is the petitioners. The defendants have a much better memory of what happened because that was their lives. And for the the trial lawyer, it was one of 20 cases he was handling that month.

00;19;10;08 - 00;19;32;23
Judge Sword
And, what is effective? When I was on the trial bench, what was really effective to me is when trial counsel testified and they had documentation in their file like, no, I met with him ten times to assessed this. I and I could tell you the dates they met with him and tell them the topics. They would reduce those, meetings to writing and send a copy to their client.

00;19;32;25 - 00;19;51;17
Judge Sword
That was always very persuasive to me, because it showed that the lawyer was doing their daily due diligence in representing that client. But the lawyers who come in and they're like, may have met with him, I usually do. This is what I usually say. I can't remember having that conversation. That was never very persuasive to me as a trial judge.

00;19;51;20 - 00;20;25;20
Judge Greenholtz
I think I had the kind of the exact same reaction. I can remember one post-conviction hearing in particular, where the petitioner's counsel was truly outstanding and it was outstanding because not only did, the petitioner testify, you know, as he did in that, in that proceeding, but the lawyer brought in a lot of corroboration. So, for example, when, the petitioner testified, you know, I only met with my lawyer, twice at the jail and, and we didn't discuss these, these important topics that I think now we should have discussed.

00;20;25;23 - 00;20;47;01
Judge Greenholtz
You know, the lawyer brought in the jail records, where the lawyer would sign in or in that case, had not signed in. And, just as Judge Sword is saying when the trial counsel was on the stand, there was nothing really to rebut it. The trial counsel didn't have a good recollection of what it was because, counsel to maintain the records and or file, as it goes.

00;20;47;01 - 00;21;10;28
Judge Greenholtz
And so where you have, not just testimony, from someone who's, been convicted, maybe of a serious crime, but then you've got corroboration of what is being said at that point. I think that's the real trick with the, with the lawyer representing a post-conviction petitioner is not just to put the client up on the stand and have them, testify as to, as to what they think should have happened or did not happened.

00;21;11;04 - 00;21;31;18
Judge Greenholtz
That's very important. But to help reinforce the credibility of that testimony, as Judge Campbell said a moment ago, I think he's exactly right. Bring the receipts. And then have a very careful, structured, prepared examination of trial counsel. In that case, just knowing where the burdens are. In my experience, that was the most effective.

00;21;31;20 - 00;21;39;26
Host
Well, you're you're going to have conflicting testimony in these things, right? So is that the only way to evaluate the credibility for post-conviction hearings?

00;21;39;28 - 00;21;59;14
Judge Campbell
Well, I tell you, sometimes you really don't have a lot. There's not a lot of disagreement. I mean, yeah, that's the thing that's interesting about when you talk about criminal case, a lot of times when you talk about there's only a little bit of in the case that's disputed, when you really get right down to it and you know, yeah, they'll say, well, you met with me x number of times and this goes back to the prejudice.

00;21;59;14 - 00;22;16;17
Judge Campbell
Well he didn't meet with me enough. What difference would have been made if he met with you more? I mean, what what what are you saying? You didn't discuss. What did you not understand? So, you know, that's that's where you got to show prejudice. But, it's always better when you know, when the lawyer is prepared. It makes it so much nicer.

00;22;16;17 - 00;22;35;25
Judge Campbell
I mean, it really does for the for as a fact finder, because this is one of the few times we can be fact finders where the where the trial court actually, it makes binding, credibility decisions. It makes decisions at the appellate court has to has to adhere to based on our findings of fact they on what we find of the of the witnesses.

00;22;35;27 - 00;23;04;02
Judge Campbell
So, you know, we want as much information as we can. But again, when you start assessing credibility, how logical and does it, there's there's their story sound. I mean, if it's just oh, my lawyer never talked to me about anything. And, you know, the lawyer comes in sometimes they'll they'll have a memo where they wrote a memo to the defendant saying, okay, here's the offer, here's what, and go through all, I mean, those kind of things just make the court's job so much easier when there is no documentation, then you really have to kind of listen.

00;23;04;02 - 00;23;31;08
Judge Campbell
Okay. What who sounds more reasonable and what other evidence corroborates the outside of because, you know, we can rely on the trial record to we look and see what happened at trial and when defendants when lawyers make objections that the defendant is claiming were not discussed yet, they were made on the record, yet that they were pursued by the by trial counsel makes it look a little less likely that this wasn't discussed with the defendant, or at least wasn't made aware at the time it was being done.

00;23;31;08 - 00;23;50;24
Judge Campbell
So, it's not really a he said she said all the time. There's there's usually a lot of other little factors that the trial court were required to analyze and that, you know, you have a whole record, you have all the motions that were filed, you have all that gets taken into account when when you start assessing attorneys performance.

00;23;50;27 - 00;24;16;21
Judge Sword
I'll probably add to that. What are the, frustrating things, as a trial judge is on dealing with these PCRs, you know, nine out of ten of them quite often are just the, petitioner having no other remedy. So he's just looking for something to raise. And the sometimes their attorneys treat it that way, and sometimes the district attorney's do too. In a PCR, post-conviction relief.

00;24;16;23 - 00;24;42;26
Judge Sword
The state is represented by the District Attorney, not the Attorney General report or like in a habeus corpus proceeding. And a lot of times the DA's will not really do their due diligence and and look at the record from the trial. They'll just put the trial attorney on there instead of helping the trial attorney prepare for the hearing and say, well, your client, former client is alleging that you never went to the jail and met with him.

00;24;42;26 - 00;25;00;23
Judge Sword
Do you have any documentation from the jail? Or let me call the sheriff and say, hey, I saw that this particular defendant met with his attorney four different times. And so sometimes you'll see the state really sort of, try to coast through it without doing, their own due diligence.

00;25;00;26 - 00;25;08;18
Host
So what should practitioners understand about the trial court's role as fact finder in post-conviction hearings, particularly regarding credibility determinations?

00;25;08;24 - 00;25;29;03
Judge Campbell
We'll give them give them facts to find. I mean, I think that's the thing that that really aggravates, at least when I was a trial judge, is that, you know, you don't you don't close the deal, you don't go in there and actually establish your, your facts. You you will you allege it. You, you, you you shoot all around it, but you don't ever, ever hit it.

00;25;29;03 - 00;25;48;22
Judge Campbell
And I think that it's, it's it's a, it's I think a failure to understand that you have to go that extra mile in order to prove your case. I mean, as a prosecutor, that's why we had to, you know, you have to you have to close the deal with the jury as far as proof, you have to establish the elements of the offense in post-conviction.

00;25;48;22 - 00;26;12;24
Judge Campbell
You have to establish, you know, if you're a petitioner's attorney, you that there's two things you have to establish that the lawyer fell below, the standard of care of a, of a, of a typical attorney in that area, and b that it had a prejudicial impact on the case. And that's, that's what you got to prove. And if you, you know, just kind of throw up about a bunch of allegations, you're never going to prove it.

00;26;12;24 - 00;26;23;16
Judge Campbell
And more often than not, that's what we wind up seeing. We see a lot of talking, but we don't see any actual hard evidence to support it.

00;26;23;18 - 00;26;54;29
Judge Sword
And Nick, I know you're talking about practitioners from the perspective of the attorneys, but thinking about the trial judge, the post-conviction judges hearing it to one of the errors that I really struggled with early on in my career as a trial judge is I would write my findings of fact the way an appellate court would. I would just sort of recite what the witnesses said, said what the appellate courts need the trial judge to do in the post-conviction judge is actually make decisions on what the truth is, what do you really find to be the fact in the case?

00;26;55;01 - 00;27;16;28
Judge Sword
And so, as Judge Campbell was saying, you know, the practitioners have to present to the post-conviction judge facts to decide on, well, the trial judge, the post-conviction judge has to decide on those facts and lay out, here's what I believe really happened. Here's what I find to be credible. And this is what I think, the facts were in this particular situation.

00;27;17;01 - 00;27;41;25
Judge Greenholtz
I think it's kind of interesting here from the from the practitioner's perspective, post-conviction proceedings are unique in, in the criminal law. So those of us who had practiced maybe criminal defense, kind of regularly and then, are assigned maybe a post-conviction case, maybe, by way of appointment or the family comes in and wants to retain you for a, a post-conviction proceeding.

00;27;41;27 - 00;28;04;06
Judge Greenholtz
Judge Campbell really kind of hit it. It's not the same. So I think, for criminal defense practitioners, maybe sometimes we get used to maybe just poking holes in the state's evidence. Maybe, we prepare for cross-examination of witnesses and try to make a flash here or there, and, you know, with the aim of just trying to raise reasonable doubt as it goes.

00;28;04;08 - 00;28;21;23
Judge Greenholtz
That's not the case with post-conviction. As Judge Campbell says, just sword is also said. It's a completely different animal. Now, the burdens on you now, the burden is on you to go get the evidence. Now the burden is on you to establish that there was deficient performance and that there was prejudice, that it affected the outcome of the trial.

00;28;21;26 - 00;28;44;18
Judge Greenholtz
And that requires preparation. It requires knowing what the lawyers I think, at least in my experience, sometimes, post-conviction practitioners maybe had not even read the statute, but certainly are not familiar with the cases. And, at least a quarter of the cases I author are going to be post-conviction cases. That's a pretty high percentage, frankly.

00;28;44;20 - 00;29;11;23
Judge Greenholtz
They're not reading the cases, are not aware of the standards, as they go. And then consequently, when they get into a hearing, they may not actually know what they need to be offering. You know, the expert issue that I brought up earlier, I think some post-conviction practitioners would be surprised to know that if they're complaining the trial counsel didn't call an expert at trial, that they have the burden now of, of calling that expert at the post-conviction hearing, which means before the hearing, you have to locate the expert before the hearing.

00;29;11;23 - 00;29;34;08
Judge Greenholtz
You're going to have to get an opinion from that expert, and then you're going to have to argue persuasively at the post-conviction hearing that, had that been offered at the original trial, the result would have been different. I cannot emphasize enough from the practitioner's perspective how different post-conviction proceedings are from regular criminal defense proceedings, and how you really need to be prepared and to understand these before you handle them.

00;29;34;11 - 00;29;41;29
Judge Greenholtz
And I think when you do that, it certainly helps out the, the judge, it helps out the proceedings, in their entirety. Certainly.

00;29;42;02 - 00;29;51;18
Host
That concludes part one of our conversation about post-conviction in the Criminal Court of Appeals. All Tennessee Court Talk episodes can be found at tncourts.gov.