Legal Question in Criminal Law in California

You don't specify what charges the attorney was urging for a guilty verdict on, but the short answer is that the jury is to decide each count independently on the evidence presented. Although your brother's attorney may have been urging for convictions on 3 charges that carried less punishment or less severe consequences, the jury apparently disagreed.

Attorneys will often argue that a defendant should be held accountable for certain counts, but not others as a tactical move. For example, if the evidence was absolutely clear on a few counts, but the more severe charges were open to interpretation, a tactical move may be to argue to convict of what the evidence shows clearly - certain counts, but not all.

A defendant is always entitled to make a motion for a new trial BEFORE sentencing. It must be based on certain legal principles, not just because the defendant is not happy with the verdict. Your brother should discuss a motion for new trial with his attorney. If part of the reason to seek a new trial is because of ineffective assistance of counsel (that your brother's attorney screwed up), then you'll need a different attorney to research, write and argue that motion.

The way you have asked your question indicates you feel your brother's attorney screwed up by telling the Jury to find him guilty on three charges and not guilty on two charges. It also suggests that you feel if the attorney had not made this argument to the Jury they would have come to a different conclusion. So let's consider your options. First your brother is entitled to request an new trial by way of a motion for a new trial at anytime before he is sentenced. The motion must be based on sound legal principles that are supported by the law and the facts of the specific situation, if there is any hope of the court granting it. In this situation it is impossible to determine if there are any reasons for the court to consider or grant a motion for a new trial. Further this is not the proper forum for such an analysis. If your brother wants a new trail he should talk with his attorney. If you, your brother or your family believe the attorney representing your brother screwed up, then one of the above mentioned "sound legal principles" would be called ineffective assistance of counsel. However without knowing anything that would be impossible to determine. In order to get an opinion on that you need a copy of the transcript and start shopping for an attorney. I can tell you that attorneys use the strategy you refereed to in your question all the time. Every case is different and the strategy that attorneys use depends on a number of different things starting with the facts of the case, the charges being brought against the defendant and the evidence linking the facts, the defendant and the charges together. Your brother's attorney may have saved your brother from being convicted on all 5 charges. I do not know since I do not know the facts or anything about the situation. However, be aware there are a number of reasons to bring a motion for a new trial.

Good Luck

Brian McGinity

Good Luck,

Brian McGinity