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Appeals & Post-Conviction Relief

SUCCESSFUL EXAMPLES OF APPEALS

Homicide/Self-Defense/Battered Child Syndrome: My client was convicted of second degree murder of his father. The trial court would not permit him to present his theory that he acted in self-defense based on many years of child abuse. I won reversal in the Court of Appeals, but the State asked the Supreme Court to review it. I persuaded the Washington Supreme Court to be the first court in the United States to articulate the law of self-defense in the context of battered child syndrome. State v. Janes, 121 Wn.2d 220, 850 P.2d 495 (1993). My client won the right to a new trial. When a jury considered self-defense, it was unable to reach a verdict. My client accepted a plea to manslaughter, got credit for time served and was released.

Homicide/Battered Women's Syndrome:
My client was tried for killing her abusive boyfriend. The trial court gave an incorrect instruction on assault. Realizing its error, the court granted a new trial. The State appealed. The Court of Appeals agreed the instruction was incorrect and affirmed the grant of a new trial. State v. Corn, 95 Wn. App. 41, 975 P.2d 520 (1999).

Homicide/Self-Defense:
My client was convicted at trial of second degree murder. The Supreme Court reversed his conviction because the court failed to give instructions on a lesser included offense based on self-defense. State v. Schaffer, 135 Wn.2d 355, 957 P.2d 214 (1998).

Assault/Unlawful Display of a Weapon:
My client was convicted of assault with a firearm. The Supreme Court reversed his conviction because the instructions defining assault did not require the specific intent, and so didn't permit the jury to consider whether he was only guilty of unlawful display of a firearm. State v. Byrd, 125 Wn.2d 707, 887 P.2d 396 (1995).

Aggravated First Degree Murder:
My client was convicted of killing two people based on circumstantial evidence. On appeal, we challenged the State's procedure for obtaining a search warrant to search the client's home. The Court of Appeals held the search warrant was unconstitutional, reversed the convictions, and ordered a new trial without the evidence obtained with the warrant.

Assault of a Child:
My client was convicted of assaulting her infant daughter. The court instructed the jury on a crime that the State never charged. The Court of Appeals reversed the conviction.

Assault/Protection of Property:
My 83-year-old client was convicted of felony assault with a gun of a person who wouldn't leave his home. The Court of Appeals agreed with me that the instruction defining "defense of property" was incorrect, although it was a pattern instruction that had been used for years. It reversed his conviction. State v. Bland, 128 Wn. App. 511, 116 P.3d 428 (2005). The State dismissed the charge, leaving him with no criminal record.

Conspiracy to Commit Burglary, Robbery & Kidnapping:
My client was tried for conspiracy to commit a brutal home-invasion burglary, robbery, and kidnapping. The jury was unable to reach a verdict. The defense discovered the prosecutor had withheld exculpatory evidence. It moved to dismiss for prosecutorial misconduct. The court granted the motion and dismissed. The State appealed. I represented the client in the appeal. The Court of Appeals affirmed the dismissal, condemning the prosecutor's misconduct.

Child Sex Abuse:
A client retained me after being sentenced to prison. He had pleaded guilty understanding the prosecutor would recommend a SSOSA (treatment alternative) sentence. Instead, the prosecutor argued for prison at the sentencing hearing. We appealed for violation of the plea agreement. We won a new sentencing hearing in front of a new judge, who granted the SSOSA. The client was released from prison.

Child Sex Abuse/PRP:
A client had been convicted and had lost his appeal. I reviewed the record and found the Court of Appeals had violated its own procedures and the client's appeals lawyer had failed to raise major issues. The Court of Appeals reinstated my client's appeal, the State agreed the sentence was five years too long, but the Court of Appeals reversed and dismissed the convictions completely for violation of speedy trial. The client was released from prison.


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Law Offices of Lenell Nussbaum
2125 Western Ave., Suite 330 Seattle, WA 98121
Tel: (206) 728-0996 / email: lenell@nussbaumdefense.com
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