Judges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some
Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?
She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.
The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.
So, my advice to the lawyer who called me was to do one of three things: