posted 2019 | G.M. v. State (Broward)
This is another reason why the appeals lawyer that you hire can make all the difference! Some appeals lawyers are simply better then others. Most lawyers who claim that they are appeals lawyers are simply lawyers who handle all type of criminal cases – “a jack of all trades…a master of none!” A little research will show that they are simply criminal trial lawyers.
This small, but important case demonstrates why there is simply no substitute for a criminal appeals specialist like Mr. Forman. This appeal was won solely based on his vast knowledge of the law involving improper comments in closing argument by the prosecutor. These comments were not objected to by defense counsel who was obviously unaware that they were improper.
The client was arrested for DUI after he refused to provide a breath test. The facts of the case are unimportant, except that the prosecutor made several arguments to the jury that commented on the client’s failure to provide a breath sample. Although these comments are permissible to show a consciousness of guilt, the prosecutor argued in a manner that shifted the burden of proof to the client.
A defendant is presumed innocent and these type of comments are highly improper. Unfortunately, a well-respected trial lawyer who has been practicing for 31 years, did not realize that these clever comments were improper. Luckily, Mr. Forman immediately recognized that these were improper. However, since the trial lawyer did not object, the issue had to be raised under an exception known as “fundamental error”, which is rarely granted.
Despite the trial lawyer’s failure to preserve the issue for appeal, Mr. Forman was able to convince the three-judge appellate panel that these comments denied the client of a fair trial. A new trial was granted! Naturally, the client was thrilled with the result. Remember, the good lawyers know the rules – the great lawyers know the exceptions!