Ep. 59 Post Conviction Relief Part 2

This episode continues our conversation from Part 1 with Judge John Campbell, Judge Tom Greenholtz, and Judge Steven Sword to discuss the legal standards and lasting impact of post-conviction proceedings in Tennessee.

Transcript

Copy Transcript Copied

00;00;00;19 - 00;00;06;15
Host
Welcome to part two of our post-conviction conversation with the Court of Criminal Appeals. You mentioned the need.

00;00;06;15 - 00;00;12;13
Host
To be persuasive. How can practitioners better frame issues for appellate review and post-conviction cases?

00;00;12;16 - 00;00;44;27
Judge Greenholtz
Right. From my perspective, it begins knowing what the standards are. So it's not just enough to come into court and say, hey, trial counsel just kind of messed it up. Trial counsel should have done X, Y, and Z. They didn't do it. It's about knowing what the standards are. If I know that, I also have to show to get relief, that the whatever the deficiency was impacted, the outcome of the trial affected or would have affected the outcome of the trial, then I can begin to be persuasive, in terms of showing the trial court or the post-conviction court, that I'm entitled to post-conviction relief.

00;00;44;29 - 00;01;16;00
Judge Greenholtz
Then to be able to, to argue, maybe persuasively in the appellate court, that maybe the post-conviction court got it wrong in its factual findings. As it goes, it begins with knowing what the standards are and then being able to marshal that proof at the hearing, to be able to meet those. From my perspective, it seems like a lot of time, even on appeal, when we're listening to, when we're hearing cases, dealing with post-conviction cases, it seems like the lawyers do not understand sometimes what the standards are, what they have to show.

00;01;16;03 - 00;01;23;04
Judge Greenholtz
Typically we're arguing, how a trial counsel was terrible, but we're never arguing about how that would have impacted the outcome of the trial.

00;01;23;07 - 00;01;46;20
Judge Sword
A good example of what Judge Greenholtz was just talking about. We've been talking about, post-conviction relief in the context of a criminal trial. You can also seek post-conviction relief if you've entered a guilty plea. And a lot of times, the lawyers just think, well, I'll, I'll put my, client, the petitioner on the stand is to say, yeah, my my lawyer never showed me the discovery.

00;01;46;21 - 00;02;16;08
Judge Sword
If I'd seen this a discovery, it would have made a difference. Well, the you have to know the standard is. But for that deficiency in the attorney's, performance, the outcome would have been different. And in other words, he would not have pled guilty. He would have gone to trial. And so a lot of times, they'll just argue that the lawyer should have done something without actually showing proof that the lawyer's error is what led to the guilty plea in the first place.

00;02;16;10 - 00;02;23;00
Judge Sword
And, if you don't understand the legal standard, you're not going to know what to elicit from your client.

00;02;23;02 - 00;02;23;20
Host
Judge Campbell, do you have anything to add?

00;02;24;14 - 00;02;47;28
Judge Campbell
I think that that kind of sums up what what I've seen as a trial judge and even as a even when I was a prosecutor, is the this disconnect between wanting to criticize, I guess, you know, criticize this lawyer for he. Well, he didn't do what I did. Okay. Well, that doesn't necessarily mean that what he did was below the standard of what we expect of attorneys.

00;02;47;28 - 00;03;09;19
Judge Campbell
Or is that what he did impacted the the to negative effect, the client's, the outcome of the client's case. So basically what I see a lot of times, at least when I was a trial judge, is just basically airing dirty laundry, but really not having anything at all to to connect the dots to something that, that I, that I can use.

00;03;09;21 - 00;03;29;16
Judge Campbell
If I was going to find prejudice. So I mean, I agree, I think preparation is important. Marshaling your proof, not going in and just throwing in a bunch of allegations that you're not going to really be able to prove, because I think that that effect negates some of the maybe something that has some merit. It gets buried in all the other garbage that's that's in there.

00;03;29;16 - 00;03;50;13
Judge Campbell
I think, some of the best petitions I've seen are the ones that are very focused on the one particular problem that that, that you can kind of expand on, as opposed to getting it lost in 20 other issues that there's no way in the world you're going to be able to prove, and it just hurts your credibility.

00;03;50;13 - 00;03;50;27
Host
So we've been.

00;03;50;27 - 00;04;06;07
Host
Talking about this from a trial court level. Although you were all former trial court judges, you are now Court of Criminal Appeal judges. What are some of the most common reasons post-conviction cases are reversed or remanded by the Court of Criminal Appeals, including issues with the trial court's findings.

00;04;06;10 - 00;04;27;04
Judge Campbell
Or the or the trial court's non findings. I mean, that's that's become something that we've seen a lot lately is where there's a requirement. It is required under the statute. The trial court prepares a finding of fact and conclusions of law. And we've had cases sent back because they didn't address all the issues that were raised by the by the petition.

00;04;27;04 - 00;04;50;24
Judge Campbell
There were issues that just are hanging and they didn't address them or where they just filed some, you know, order that doesn't establish the reasons or the findings of the court. Just kind of a summary, some summary dismissal. You know, those are those kind of things we've seen and our entirely preventable. If the court is doing what it what it's required to do under the statute.

00;04;50;26 - 00;05;11;00
Judge Greenholtz
I was going to say, I've seen the I've seen the same thing. I think, you know, from, from my perspective, maybe on the on the trial bench, post-conviction orders are also something that, that are different from typically what, what I would be doing otherwise. A lot of times on the trial court bench, the trial court judge, will rule from the bench.

00;05;11;00 - 00;05;35;14
Judge Greenholtz
So let's say that I have, a motion to suppress evidence, for example, let's say maybe a confession that they claim was, obtained in violation of, Miranda versus Arizona. I may actually rule on that from the bench. I might not issue a written order on it. Sometimes I would, but I might not. In a post-conviction case, though, it's going to require a written order every time that written order is going to have to require, findings of fact.

00;05;35;14 - 00;05;53;10
Judge Greenholtz
As Judge Sword said earlier, what actually happened? Who does the trial court believe? A lot of times what I've seen it. Look, I'm not perfect, so I'm not, I'm not, throwing shade on, on anyone, but a lot of times, what I'll see and orders is that, the the post-conviction court will never make a credibility finding.

00;05;53;13 - 00;06;20;25
Judge Greenholtz
And we're having to infer then, you know, from the other findings that are made, you know, who the post-conviction court found to be credible. If the post-conviction court made that finding on the front end, I think that would really help facilitate a lot of, those factual findings. And then sometimes what I see also then is, maybe just as sometimes some practitioners might not really know the standards, coming into it sometimes may be a trial court judge.

00;06;20;25 - 00;06;39;22
Judge Greenholtz
And I was certainly this way, didn't have a whole lot of familiarity with post-conviction proceedings before I came onto the trial court bench. Requires a lot of education, trying to figure out what it is so that in crafting my order, I know what the standards are. I know what proof I'm looking for, or I know the effect of the absence of proof in some cases.

00;06;39;25 - 00;06;57;03
Judge Greenholtz
And so I think what what Judge Campbell is saying is exactly that to me, to craft a very good post-conviction order, you have to be attentive to what those findings are, as Judge Sword said earlier. You have to be attentive to where the credibility determinations are being made, and you have to be very attentive to the standards and what the law is.

00;06;57;03 - 00;07;06;24
Judge Greenholtz
And then when when all of those things come together, I think you're going to have a very good trial court order where we tend to send the back or some of those are, may be missing.

00;07;06;27 - 00;07;28;21
Judge Sword
As Judge Greenholtz said, the statute actually requires that the judge reduce their findings to writing. And so we have really good trial judges in the state of Tennessee, and most of them have excellent instincts. And, you know, I think I was an average I was a decent trial judge, and there were a lot of times when I would leave the bench thinking one thing and I'd go back to write up the order.

00;07;28;27 - 00;07;40;13
Judge Sword
And after studying the law, I would realize my instincts were right on that, on that issue and the process of writing it out and thinking logically after determining what the standards are.

00;07;40;13 - 00;07;46;17
Judge Sword
And thinking through the proof that I heard, what do I believe? It helps you as a judge to be able to.

00;07;46;17 - 00;08;06;19
Judge Sword
Understand what exactly am I supposed to be finding here, and then making those determinations? And so not only is it required by law, by the statute, it's also really the only way to to capture everything you're supposed to define as a judge, so the appellate courts can know exactly what you were thinking.

00;08;06;21 - 00;08;22;10
Judge Greenholtz
I will say this maybe to follow up on, the follow up on both of those. I don't think there's this perception among our, our trial court judges. I don't know of anyone on the Court of Appeals, who is starting off, an appeal saying, well, you just got this wrong. I'm going to send it back.

00;08;22;13 - 00;08;36;01
Judge Greenholtz
At least from my perspective. I'm not looking to send something back unless it has to be sent back, because there's some kind of deficiency. If we can work with what the what the trial court's findings are. I mean, we can do that in accordance with the law and the arguments. I think that's what we're going to do.

00;08;36;01 - 00;08;57;02
Judge Greenholtz
I think when we when it goes back, at least in my experience, because there really is some kind of deficiency that, that's there like I said, I, I was brand new to all of this when I came on on to the bench, largely from a civil practice. And so I understand how difficult it is to get up to speed, to get going and to and to understand and put together, some good orders.

00;08;57;04 - 00;09;00;27
Judge Greenholtz
We've got some great judges. As Judge Sword says here.

00;09;00;27 - 00;09;04;26
Host
It sounds like the written order from the judges need to be just as detailed, Judge Campbell.

00;09;05;02 - 00;09;24;12
Judge Campbell
Oh, absolutely. Because that basically that's the way I look at it, is the order sets out the battlefield. I mean, that's where when it comes upon appeal, what are the issues that we're going to have to address are what the judge has identified and the and the facts he's found and the conclusions that he's made from those facts that that sets out our universe.

00;09;24;12 - 00;09;46;01
Judge Campbell
Because, you know, if it's not addressed, then, then we usually don't see it. And the problem going back to making that order is if the order conforms to the proof that the judges conclusions are supported by the proof, there's nothing we're going to be able to do to it. Because because he is basically, you know, follow the standard that the statute sets out.

00;09;46;01 - 00;10;24;27
Judge Campbell
He's establish the facts. They're supported by what was the testimony by the evidence. And if he, you know, follows the law correctly, then there's really nothing we can do about that. And, and, or should do anything about that. The problem runs into when they, when, when the, when the judge kind of, glosses over certain issues or facts and leaves it ambiguous, and then it becomes harder for us to be able to say, well, the proof supports his conclusions because he really didn't, you know, show concretely what he was relying on or where the record supports him.

00;10;24;27 - 00;10;40;07
Judge Campbell
And so that's why it's so important for the for the court to really be specific about what it's finding and who it believes and how all that applies to the result in the case and if it had an effect or not.

00;10;40;12 - 00;10;53;12
Host
This sounds like that most of these practitioners are would be court appointed practitioners, right? Once they get to the appellate level, I would say that most of the time they're indigent or, well, their appointed counsel.

00;10;53;14 - 00;11;13;22
Judge Campbell
Almost all post convictions are appointed pretty much in there. And, you know, so many of them were public defenders in many ways beforehand. So the public defender's not on it. So you have a lot of times private practitioners who are then handling the appeal as appointed the public, you know, the few that are PD, the PD has appointed counsel for already for appeal.

00;11;13;22 - 00;11;17;19
Judge Campbell
But private counsel that's appointed, you know, they're on their own.

00;11;17;19 - 00;11;31;29
Host
So how should the practitioners decide whether a claim belongs in post-conviction proceedings? Habeas corpus a direct appeal, anything to correct in a legal sentence. How does that in their mind, how do they go through that before they file the appeal.

00;11;31;29 - 00;11;54;07
Judge Campbell
The purposes of appeal then? Well, you know, it's whatever was raised at trial as far as objection was raised, that motion for a new trial is going to set out what the appeal is going to be about post-conviction, then, is beyond that. It's, you know, then it's a it's a whole separate, you know, review of, of performance. Basically the attorney, you know, the trial attorney is not the person who handles the post-conviction.

00;11;54;07 - 00;12;15;28
Judge Campbell
It's somebody else. And you know that there's that focus. And and we say post-conviction and ineffective assistance. But that's the most common area that you're going to see. Occasionally, you'll have something come up where, you'll have some allegation of jury tampering or something that came up that no one was aware of and couldn't have been raised on appeal.

00;12;15;28 - 00;12;39;24
Judge Campbell
But for the most part, it's attacking attorney. When you get into other things like federal habeas corpus, that's, that's that's even farther down the road or habeas corpus, in the state court, that's something completely separate and is a distinct creature, of statute. So, most practitioners, they're going to be dealing if they're if they're on the trial, then they're talking about direct appeal after direct appeal.

00;12;39;27 - 00;13;05;15
Judge Campbell
Then you go into post-conviction and usually that's a Pro Se filing that the court will then appoint counsel on. Occasionally you'll have somebody hired, but most of the time it's the defendant or the petitioner's filing from prison. And you're getting a pro se and you have to decide. And this is another area that that judges need to be careful about is you get a post-conviction pro se, is it timely filed?

00;13;05;17 - 00;13;25;21
Judge Campbell
Is it does it raise enough allegations to be a colorable claim for you to then proceed with having an attorney on the case to amend it? Was it properly amended down the road? You know, because all this, all this has to be accomplished before the court really has jurisdiction to hear the hear the proof. And so it's, it's a it's it can get pretty complicated.

00;13;25;21 - 00;13;49;07
Judge Campbell
And I think the, the biggest fallacy about all this stuff and I agree with Judge Greenholtz, I think people don't take it seriously. I think they look at, oh, it's a post conviction, you know, and there's a lot of there's a lot of nuance. And people can get in trouble if they don't really understand how the statute works and what their obligations are to make sure it's timely filed and make sure it's adequately filed.

00;13;49;08 - 00;14;00;06
Host
Judge Campbell brought up a good point that there are like a ton of categories and a ton of ways to do this. Are there particular categories of claims that are frequently misfiled and post-conviction petitions?

00;14;00;08 - 00;14;19;06
Judge Greenholtz
There are a number of claims, and I think even before we came on today, Steve was saying, you know, we're talking about post-conviction. In essence, everything after the conviction is going to be a post-conviction petition. You know, going back to your question about what what maybe a practitioner should do, you know, what kind of claim they should file?

00;14;19;08 - 00;14;43;10
Judge Greenholtz
It's really not any different, frankly, from a client coming into your office saying, hey, I've got these set of facts. What relief do I have? You know what? In the civil context, what kind of cause of action do I have? What kind of claim of relief, might I have? And so if the, if the client's coming in and there's a question about the fundamental jurisdiction of the court, I can think of, lots of different ways that a trial court might not have jurisdiction.

00;14;43;10 - 00;15;05;08
Judge Greenholtz
Maybe from the indictment or an exclusive federal enclave or something like that, where the state court may not have jurisdiction. That tends to sound in state habeas cases. So, as Judge Campbell was talking about, we have a our Constitution guarantees the writ of habeas corpus. And what that is, is just, an allegation that, you know, how the trial court lacked jurisdiction in the case.

00;15;05;13 - 00;15;30;11
Judge Greenholtz
My conviction is not supported by a court that had the power or the authority to act very limited. It's only limited to that very specific relief. But, hey, a client walks into my office and says, hey, I've got this issue that I'm thinking about, habeas corpus. The client comes into to my office and says, hey, I have just discovered there is this new piece of evidence out there that fundamentally may have changed the outcome of my trial.

00;15;30;13 - 00;15;48;10
Judge Greenholtz
I may be thinking now of a separate post-conviction remedy, which is called a writ of error coram nobis. Most of us have never heard of the writ of error coram nobis, particularly if we're not in the, in the criminal, law, field. But it has its own procedures. It has its own, standards.

00;15;48;10 - 00;16;11;29
Judge Greenholtz
That govern it separate and apart from the post-conviction, procedures Act. On the other hand, if I'm my client's coming into my office and says, hey, I really think my attorney goofed at my trial, and I think that, you know, had he or she done, these other things, I think the outcome would have been different. Now, I'm thinking back in the post-conviction Procedures Act, as it goes, there's a variety of actual, kind of post-conviction remedies.

00;16;11;29 - 00;16;37;27
Judge Greenholtz
And what it requires, though, in all of these cases is, just like in the civil context for a lawyer to be reasonably familiar with what the law is reasonably familiar with, what the law would require by way of relief, and then just be able to, to listen to the client, understand what is being said and then to offer, what kind of remedies, might be available under kind of these different statutes and different procedures.

00;16;37;29 - 00;16;43;03
Host
I have a rule here on this podcast, if you're going to speak Latin you've got to explain it. So, writ of error coram nobis.

00;16;46;12 - 00;16;49;21
Judge Greenholtz
Yes. Sword will be much better than I would be on that stuff. Certainly.

00;16;49;23 - 00;16;52;13
Host
All right. Go for it, Judge Sword.

00;16;52;15 - 00;17;28;26
Judge Sword
I'm not going to get into error coram nobis. But what I would say. There's a unique aspect to petitions for post-conviction relief that's unlike any other type of post-conviction remedy you might be seeking. Like Judge Campbell said, it's usually a pro se defendant filing something, requesting post-conviction relief because his attorney, fell below the reasonable standard. When the trial judge gets that petition, they have an obligation to determine whether or not it raises valid, issues that can be countenanced under that statute.

00;17;28;29 - 00;17;53;05
Judge Sword
And if not, or if it's filed too late beyond the one year statute of limitations, the law says the judge shall dismiss that petition. And so there are times when you know that, a defendant may label it like a petition or post-conviction leave, but then they're really saying that, you know, I, I've, I've exhausted my sentence. I've already, completed the sentence.

00;17;53;05 - 00;18;14;06
Judge Sword
I shouldn't be held any longer. And the trial judge and say, okay, I'm going to treat this based upon the remedy he's looking at, even though he calls a petition for post-conviction relief. This is really a petition for a writ of habeas corpus. I'm going to treat it that way. But so a lot of these petitions, if they are not proper petition post-conviction relief, they'll get dismissed before a lawyer ever even sees it.

00;18;14;14 - 00;18;32;11
Host
So, you know, when you're watching a football game and you see a coach run up, like with one second left and call a timeout, is there any reason to file a petition for post-conviction relief at the end of the one year? Or is the one year given just as a general rule?

00;18;32;13 - 00;18;53;03
Judge Campbell
Well, the statute says one year from the action of the highest state court or, you know, if it's a guilty plea after, you know, 30 days after the guilty plea is taken, then it's final, then you have a year from that. But the statutes really clear. It's a year. You have one year to file. It is not a year from when the U.S. Supreme Court denies cert.

00;18;53;03 - 00;19;17;27
Judge Campbell
It's from the highest state court. And some people fall fall into that trap. And they they then file it six months late because they're waiting for the Supreme Court to rule on, on, cert petition. But, no, but, you know, and I always, always I'm amazed people wait till the last day to file. And to me, if there's an error, if you make a mistake, you have no way to correct it.

00;19;17;29 - 00;19;31;28
Judge Campbell
So if you file it in error, you can wind up, you know, not being able to correct it. And then it's then you, then it's going to be dismissed. And you, you don't you you don't you're not going to be able to go refile it. So but but the law says it has to be filed within a year.

00;19;31;28 - 00;19;46;10
Judge Campbell
And that's a hard year. You know, unless you can come up with some really extraordinary circumstance that gets you, you know, a due process tolling. But it's, it's it's the statute pretty much says it's got to be filed in a year and there's no exceptions.

00;19;46;10 - 00;19;53;26
Host
Well, my question was more pointed it at I could see some lawyer throwing it in at, you know, the last second for some strategic reason.

00;19;54;00 - 00;20;19;16
Judge Greenholtz
There's really not, and so, I mean, there really is not a strategic reason for waiting that long. Think about it. Like in a civil, case, I, I keep going back to maybe civil cases, as they go. A lot of times you'll have statutes of limitations in civil cases that are a year. So if you think maybe a personal injury case, for example, I got hurt in a car accident, I've generally got a year to file a complaint or a claim for relief.

00;20;19;16 - 00;20;52;25
Judge Greenholtz
There no strategic reason to wait the year if you don't have to. But the reason that you have the year is so that proper investigation can be done on the front end to support the claim. And so what I would expect to see is that if, if, if a reasonably diligent post-conviction petitioner is waiting the year, I would hope that the petitioner is using that time, to investigate the claims the marshaled the proof such that by the time that the petition is filed is that you've got a reasonably good support, for the allegations that are being made.

00;20;52;27 - 00;21;14;01
Judge Greenholtz
If you're not using the year to investigate it, though, I, I can't foresee any strategic reason, why you would wait. I mean, as Judge Campbell says, I mean, if I've got an issue now, I'm going to go ahead and seek relief now. Right? Why would I want to wait in custody for another year? Just just to do it that year is given, I think, for, the ability for some meaningful investigation to occur.

00;21;14;01 - 00;21;21;13
Judge Greenholtz
And if that's not occurring, I can't imagine why, why you would go and try to get a time out for the, from the refs, you know.

00;21;21;16 - 00;21;22;01
Host
Judge Sword.

00;21;22;01 - 00;21;41;19
Judge Sword
One of the things that you really need to keep in mind when you're talking about, this whole act that the legislature passed, is that the short time frame that you have to deal with these. And the legislature intended for this? Not to drag these cases out. And you can see that it used to be three years. You had a three year statute of limitation.

00;21;41;19 - 00;21;42;05
Judge Campbell
Used to have no statute of limitations.

00;21;42;10 - 00;21;43;19
Judge Greenholtz
Yeah. That's right.

00;21;43;22 - 00;22;11;11
Judge Sword
Yeah, I mean before that and said the legislature they want finality to these cases. And so you say you're pro se petitioner. Wait so that last year to file it, the trial court has to look at that petition within 30 days and then determine if an attorney should be appointed or if it should be dismissed. And then 30 days from there, the, attorney, if they get appointed, they have to amend it and then they can ask for an extension for good calls.

00;22;11;11 - 00;22;30;21
Judge Sword
And so that's all in place. You might have a little bit of delay. Is the lawyer, having to do some more investigation to amend it. But after that, once the amendments done, then the state has 30 days to answer. The court has 30 days to determine if a hearing is needed, and then they have to set that hearing, preferably within 60 days.

00;22;30;23 - 00;22;51;09
Judge Sword
They got four months. And they can maybe extend that up to another 60 days, and then they have 60 days to rule. So if you look at the timeline, every one of these petitioner post-conviction relief should be done within ten months of when that judgment, or when the petition was, was, filed before the trial court.

00;22;51;11 - 00;23;03;02
Judge Sword
And you'll see these things lasting for years. But that's because nobody's really following the statutes. But it really timeliness is essential in the Post-Conviction Relief Act.

00;23;03;02 - 00;23;09;10
Host
Have any of you observed any recent trends in Tennessee post-conviction litigation that practitioners should be aware of?

00;23;09;13 - 00;23;34;18
Judge Campbell
The one thing that I that and I don't know, I don't see this being anything the legislature would probably do. But the one I guess problem, if you want to call it a problem, I'm just going to say problem because it's the easiest thing to say if you are indigent and you are alleging that an expert should have been called, the trial court cannot appoint an expert to help you unless it's a capital case.

00;23;34;20 - 00;23;55;17
Judge Campbell
So unless you have a way to fund your own expert, the court cannot appoint you one. As I've used to tell lawyers all the time, I'm the expert nazi. Not, you know, no, no expert for you because the the statute says I can't so that that is something that I don't know whether it's ever going to be addressed. I'm sure nobody wants to spend that kind of money because it can get really expensive.

00;23;55;17 - 00;24;08;03
Judge Campbell
But, that's one thing that, you know, lawyers find out, you know, they take an appointment and think, oh, I'm going to get the court to, you know, it's an indegent case and the statute doesn't allow for it unless it's a capital case.

00;24;08;06 - 00;24;33;22
Judge Sword
Yeah that’s the one I was considering I had a case, before I left the trial bench, where, pro se defendant, did not want appointed counsel representing himself on the post-conviction petition, and he, well, had been speaking with an expert witness, in Memphis. I was in Knoxville, and he was wanting to bring this guy from Memphis and is asking me how to get funding for it.

00;24;33;25 - 00;24;51;23
Judge Sword
Told him, I can't help you there. You know, if this was a trial, then I can point you to the rule that allows you to, submit an application to AOC to get funding for it. There is no provision for that in post-conviction, relief. And so, I can see, why that particular defendant was upset with me.

00;24;51;23 - 00;24;54;04
Judge Sword
But that's the current state of the law.

00;24;54;07 - 00;24;55;04
Host
Judge Greenholtz.

00;24;55;06 - 00;25;36;10
Judge Greenholtz
Yeah. It's interesting about, about maybe trends in post-conviction. So as, as as, you know, Nick, I mean, the Court of Criminal Appeals came about in 1967, in conjunction with the Post-Conviction Procedures Act. So before or, before that time, you know, all criminal cases, went to the Tennessee Supreme Court by way of direct appeal. The federal courts were heavily involved in reviewing state convictions under the federal writ of habeas corpus and maybe some other procedures to and the state Post-Conviction Procedures Act came about as a way for the state to review our own convictions and maybe get some deference.

00;25;36;12 - 00;26;00;14
Judge Greenholtz
On, on, things that were being done from Federal Review. I mean, that's the whole purpose of the State Post-Conviction Procedures Act. But let me emphasize that. I mean, this goes back to 1967. So the although it has been amended in some cases over the years, it has largely remained, the same, in terms of its basic structural, procedures as it goes.

00;26;00;16 - 00;26;26;04
Judge Greenholtz
And so I think as I'm looking forward, what are some issues that we're going to be confronting? I do foresee, maybe some impact with AI, you know, one of the ways you get back into court is the claim that, hey, I've discovered new evidence. Not only is that, to use the Latin phrase again, not only is that under, possibly a writ of error coram nobis in some cases, it also could be post-conviction, relief.

00;26;26;04 - 00;26;44;20
Judge Greenholtz
Also, you could say the claim for post-conviction relief. We may be confronting those types of issues where we're having to decide, is this really new evidence or is this AI generated? And then how do we go about, addressing those kinds of claims, at least in terms of the the fundamental procedures, though, that govern it?

00;26;44;20 - 00;27;06;02
Judge Greenholtz
I think this pretty well established, the case law is voluminous. It takes a while to get through, as it goes. But I think, once again, that just emphasizes the need for practitioners in this area, both, for petitioners, also on behalf of the state, just to be aware, of of what is being required, there, but, it's, it'll be an exciting time.

00;27;06;02 - 00;27;15;04
Judge Greenholtz
We're moving into, with, artificial intelligence. We're moving into an exciting time with the judiciary. It'll be, I'll be curious to see how that impacts post-conviction proceedings.

00;27;15;07 - 00;27;27;21
Host
I'm going to ask all three of you this. If you could offer one piece of advice to defense attorneys handling these narrow post-conviction cases and one to the trial judges overseeing them, what would they be to each.

00;27;27;24 - 00;27;45;05
Judge Campbell
Take it seriously. I mean, I think that, the practitioner just needs to look at it as more than just, hey, I got a I want to get this appointment. I'm going to get $1,000. And, you know, I'm going to put my client on the stand. He's going to tell the court what happened. And then, you know, that's, and I think the court needs to take it seriously.

00;27;45;13 - 00;28;07;06
Judge Campbell
Well, this is just another afternoon I got to give up for, you know, whatever. You know, it's important that they understand their role and understand the need to establish facts and make make adequate findings. Understand what the role of each of each of these different parties is. I mean, I just I just think some people just don't take it that seriously.

00;28;07;09 - 00;28;26;06
Judge Sword
And playing off of what that Campbell just said, I remember as a trial judge, I would have, you know, a post-conviction hearing that I need the needed to docket. And, you know, I've got several homicide cases that I'm trying to get done. I've got motion to suppress. And sometimes you can look at these and think, oh, this is just a waste of time.

00;28;26;06 - 00;28;45;13
Judge Sword
But you have to remember that the legislature determined that if they can raise a proper claim, the defendant has a right to have these issues heard. And so you need to put as a trial judge, you need to put as much effort and energy into that post-conviction proceeding as you did in the original trial or the original guilty plea.

00;28;45;15 - 00;29;01;19
Judge Campbell
Because if you don't, you're going to be seeing it again. And that's the that's the thing I always like. I don't want to do things twice. I just see too many. If you leaves too much open thinking bad things can happen. If you don't cross your T's and dot your eyes, you can wind up having to deal with it again for maybe for a stupid reason.

00;29;01;22 - 00;29;24;24
Judge Greenholtz
I think from my perspective, the advice I would give is the advice I maybe typically give. And that is if I'm practicing in this area, let's say I'm representing a, post-conviction petitioner. Let's say I'm an assistant DA, and I'm representing the state, and I'm trying to make sure that the, conviction that I work so hard at trial, to get, that that finality is preserved.

00;29;24;27 - 00;29;43;11
Judge Greenholtz
The one piece of advice I would have is be extraordinary. Understand what you're getting into. Don't be afraid. Particularly with the with the lawyers representing the petitioner. Don't be afraid to get out and interview witnesses. Don't be afraid to call witnesses. Don't be afraid to offer the proof. Don't just put it up there and let the trial court decide it.

00;29;43;13 - 00;30;00;01
Judge Greenholtz
Give the trial court a basis to rule in your favor. Be bold about it. Know the standards. Do what we you know, all of us. When we were going to law school, we said we want to make a difference. We want to get out there. We want to help people. This is the opportunity to do it.

00;30;00;01 - 00;30;16;19
Judge Greenholtz
In so many times. You see this reflected in the in some of the experiences of my colleagues. And certainly I do sometimes these, proceedings not always. Sometimes these proceedings are treated lightly. They're not treated with the gravity that they could be either, because we don't think maybe the petition has merit or we're having trouble with the client.

00;30;16;19 - 00;30;33;06
Judge Greenholtz
Who knows, maybe a whole lot of different reasons. Don't hesitate to be extraordinary. In and even if you lose, there is value in doing a good job. And so that's what, I think that that would be the advice I would offer practitioners.

00;30;33;08 - 00;30;46;27
Host
Well, I want to thank all three of you for joining me today on Tennessee Court Talk. I think it was a great discussion. I learned a lot, and I hope our viewers learned a lot as well. All Tennessee Court Talk episodes can be found at TNcourts.gov.