A Glimpse Behind A Federal Criminal Appellate Attorney’s Life With Elizabeth Franklin-Best

 

What does a Federal Criminal Appellate Attorney do? How will you know if you need one? Elizabeth Franklin-Best has practiced criminal defense for the past 20 years and has focused on appellate law for the past 16 years. She has represented clients in direct appeals, federal post-conviction, the Circuit Courts of Appeals, and the United States Supreme Court. Conviction is not the end of the road, and there is hope when you have the right information and proper legal counsel. Listen and learn!

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A Glimpse Behind A Federal Criminal Appellate Attorney’s Life With Elizabeth Franklin-Best

I’m here with Elizabeth Franklin-Best, who is an attorney, a wife, and a mom. She has two cats and a dog. She practices Criminal Appellate Law in South Carolina and focuses on appellate cases in federal courts. Elizabeth handles Federal direct appeals, Federal habeas corpus processing, Federal post-conviction cases, compassionate release petitions, and about anything in the post-conviction arena. Once someone has been convicted of a crime, that’s when her law firm, Elizabeth Franklin-Best, PC Law Firm, takes action. Elizabeth, thank you so much for being here.

Thank you so much for having me. I’m excited to be here. I’m a big fan of what you do and the hope that you are giving people.

Thank you so much. We had a great conversation prior to starting this show. I thought it was interesting about you said that people have seen trials on TV. However, people might not think about what happens once someone is convicted. Could you explain what happens and what someone can do once they have been convicted of a crime?

Absolutely. This is something that, in our firm, we deal with quite a bit, frankly. Typically, the way we become involved is we will get a phone call from a family member. They will say, “Our loved one had a trial last week. They got convicted and got 40 years. What do we do now?”

Forty years, I can’t even imagine that.

We get that all the time, especially in the state system, where the sentences can be incredibly long. It is typically a little bit less in the federal system, where there’s a little more control, and you have more guidance in how sentences are given in the federal system. In the state system, it happens regularly, 40 years or 30 years. They have no idea. We all grow up with some of these TV shows like Law and Order or LA Law. Everyone knows what happens on television, so they’ve got a good sense of that but no one knows what happens once somebody is convicted. We will get people who are like, “What now?”

Typically, what will happen is that after a conviction or a trial, a person is entitled to a direct appeal. That’s true in both the state system and the federal system. People don’t understand what that means exactly. They are like, “What do you mean a direct appeal? Do we get a hearing on that? Are we allowed to bring in new witnesses?” We often have to explain, “No. The direct appeal is your first opportunity to have your case reviewed. It’s where you are able to raise legal issues.” A direct appeal is typically when you make the claim that the judge in your case made some wrong calls. That’s all you can do on the direct appeal. That’s unfortunate but that’s the first level.

After somebody exhausts their direct appeal, if they lose that, then most states have some post-conviction relief proceedings. In South Carolina, that’s called a PCR or Post-Conviction Relief. In some other jurisdictions, they may call that state habeas. That’s going to be your opportunity to make other kinds of claims. Typically, those claims are going to be things ineffective assistance of counsel. You may be able to allege prosecutorial misconduct.

What distinguishes that second-level relief from the direct appeal is that, typically, you are able to expand the evidentiary record in your case. For example, if you have witnesses who were not called at trial but should have been, this is the opportunity to call those witnesses. If there is evidence that the state failed to produce, for example, this would be the opportunity to produce that and have a court look at it. That’s the PCR level. That’s that second level. If you lose that, you have the right to go into federal habeas. Federal habeas allows you to raise your claims to the federal court in the jurisdiction in which you were convicted. You can raise any claims that have been exhausted.

Any claims that you raise on your direct appeal, your PCR or your state habeas case, you can then raise to the federal courts. If you lose that, then you have an opportunity to go to the United States Supreme Court. There are all these different procedures that happen. This is getting back to your essential question. There are all these different procedures that you can take advantage of once you have been convicted, and people don’t know about that.

Nobody shows television shows about wonky appellate lawyers because, pretty much, what you would be seeing is people sitting in front of a computer, looking up Case Law. It’s not very sexy. There’s this whole second part of the criminal justice system in that post-conviction space that people are largely unaware of and unfamiliar with. I’ve spent a lot of time thinking about this. I’m like, “Why not? What does it take to educate people?”

The fact is, truthfully, there are a number of people who win their cases in that space. When you are on the front end and looking at the trial, prosecutors love to stand in front of cameras, and victims’ families love to step out and talk about how justice is done. On the other side, the prosecutors don’t have the same interests in calling the media. For example, when somebody’s conviction is reversed. It’s out of the news. They got the next shiny thing that they wanted to put in the news. All these things that are happening in this post-conviction space fly under the radar. It’s not often in the news.

Every now and then, you will get some of these more sensational cases where there have been wrongful convictions, exonerations, and things like that. A lot of people don’t even hear about the defendant who has his conviction reversed based on some constitutional claim like denial of the right to confront the witnesses against him. That’s one example. It also may be prosecutor misconduct that led to the reversal of a particular case. People aren’t calling the news media outlets to talk about that thing.

If you are a criminal defense attorney, you are trying not to antagonize victims’ families. As a criminal defense attorney, I will tell you that we do not often call the media to follow our cases. There’s this perception for a large number of people that once somebody has been convicted, they start to feel very hopeless. They don’t see the stories about people whose cases have been reversed. They lose hope. That’s one thing that we like to do in our firm. We try to educate our clients and their family members about some of these cases when they come along so that they realize that these cases exist.

 

We’ve got a newsletter, for example, that we send out to our clients who are in the South Carolina Department of Corrections. We send newsletters to our guys who are in federal custody as well. We are trying to let them know when there has been a good case. It’s something that might be able to help them with their individual circumstances but then also remind them that people do win some of these cases and that they shouldn’t lose hope.

I want to thank you for explaining that. I learned so much from listening to you. I wasn’t aware of all of that. You know my brother was incarcerated. What he did was he filed everything on his own back then. I wish I knew then what I know now and had met somebody like you. He exhausted everything. If only somebody can hire or find somebody like you because a lot of people that are incarcerated try to do it all on their own.

They do it a lot. One of the things that we talked about before we started this episode is that I’m writing a book. I will tell you a little bit about what’s in the introduction to give you an idea of why this came about. I was 31 years old when I moved back to South Carolina. I had a Law degree. I was licensed in New York but I wanted to come back to South Carolina. I had lived out West for about previous ten years. I wanted to do criminal defense work in South Carolina.

I got a job at our local public defender’s office. I started my job there before I was even licensed. I had my bar but had not been sworn into the state bar yet. I was given my 250 cases and was told, “Deal with it. Work these cases.” Here I was, well-educated and suddenly committed to the cause. I have always cared about some of these social justice issues. I was doing what I thought was the best I could.

I had this one client who had three different sets of charges. His third set of charges was the result of a high-speed chase with the police. When they eventually caught him, they found drugs in his car. He had three outstanding sets of charges that exposed him to life in prison. If the state had taken him to trial on all sets of those charges, he could have ended up with life without the possibility of parole. He was a young guy. He was maybe 22 or 23 years old.

The prosecutor came up to me and was like, “He has got to plea to this. He’s got to plea to these three sets of charges. We will negotiate a sentence for twelve years.” He then was like, “It’s a one-day offer. If he doesn’t take this, then I’m going to withdraw the offer and we are going to try him. We are going to try him on the first set of charges on Monday. When we get a conviction there, we are going to try him on the second set. When we get a conviction there, we are going to go for the third set, and he is going to get LWOP.” I was terrified. I went and talked to my client. I told him this offer. We talked it through, and he decided to take it.

On the afternoon of May 24th, 2004, this guy pleaded guilty to this twelve years. I had not engaged in any legal research. I hadn’t investigated his case. I hadn’t spoken to a single witness. He did twelve years. I felt horrible. I felt like I had been a coward. I should have stood up and gone to the judge or his boss. I should have done something because I was being bullied by this prosecutor. I ended up pleading with this client for twelve years without really knowing anything about his case. I was ashamed.

It is something that has stuck with me my entire career. To me, it shows how good people in this system can end up doing things that are not right. It was wrong for the prosecutor to bully me in this way and do this to my client but it was wrong of me not to have stood up. I’ve spent my career trying to help clients avoid that so that they have a real chance.

Good people in the legal system can end up doing things that are not right. Share on X

This book that I’m working on is to help guys like your brother, frankly, who need to know more about the landscape once they have been convicted like how they properly raise their claims. Guys need to know when they are dealing with lawyers what should they be looking for. How should they be engaging with their lawyers? What are the issues? Fundamentally, what are the courts looking for if somebody is challenging their conviction and wants to overturn that conviction?

My book is to let them know some of my experiences and that these are the things that the courts want to see. If you are, for example, offering the court some scattershot approach. If you were filing something and you are raising twenty issues and expecting the court to go through those twenty issues to find the one claim that’s going to set you free, they are not going to do that. That is fundamentally not how it works.

If you are going to challenge your conviction, you’ve got to immediately, for example, start identifying the core injustices in your case. You’ve got to figure out how to go ahead and start framing your direct appeal so that it highlights those core injustices. That is so that if you lose your direct appeal, you can raise those same kinds of claims in your state habeas or post-conviction relief case. You need consistency among these post-conviction remedies.

I’m trying to help defendants or people who have been convicted of these crimes understand how the court is looking at this, what they want to see, and what the record on the appeal, the PCR, and the federal habeas proceeding need to look like so that the courts can do what you are asking them to do, which is to reverse a conviction. All that is to say, there’s such a lack of education in this space. People feel hopeless because they don’t understand what could be done. That’s what our firm is here to do. We want to help people move through this space in such a way that they are going to maximize their opportunities to reverse their convictions.

I can relate to what you are saying about us out here on the outside on how, for a lack of a better word, clueless we are to what to do. There’s no book on it. I look forward to reading your book. I do have a question. It’s probably my ignorance. If somebody plea bargains, can they appeal?

Yes. Back in 2012 or it might be 2008, there were two cases that came down from the United States Supreme Court, which were Missouri v. Frye and Cooper v. Lafler. What was important about these cases is that it has established for the first time that defendants have the right to the effective assistance of counsel during plea bargaining. Before that, people held that you had the right to effective assistance at a trial but said nothing about plea bargaining.

There are different ways you can raise a plea bargaining claim. For example, your lawyer is giving you the wrong information about what your legal exposure is. Let’s say that your lawyer tells you that you are only looking at fifteen years but in fact, you are looking at 10 or 20. That can be the basis for an ineffective assistance of counsel claim based on plea bargaining. Maybe your lawyer gave you bad advice as to your parole eligibility. That could be a basis in some jurisdictions.

There is a claim that I’m trying to raise where trial counsel told the state where a murder weapon was. I was like, “Is that ineffective assistance of counsel?” It was an attempt at plea bargaining but it failed. That case ended up going to trial. It went to trial with the murder weapon used against the defendant because of some failure in the plea bargaining process. Plea bargains raise different kinds of challenges. There’s no reason why you wouldn’t be able to raise ineffective assistance of counsel claims with regard to plea bargaining.

I wasn’t sure about it. That’s why I wanted to ask. We have other instances too where families have said that their loved one has a mental illness or is autistic. There’s proof of it but the court wouldn’t allow it into the trial or the sessions. I’ve always wondered about that. I don’t know if you have anything to add there.

That’s a huge issue and one that is not sufficiently recognized and addressed by our court system. There’s such a large number of guys who have mental health issues. Their criminality cannot be understood apart from that. The requirement or the standard for competency is so low. If a defendant knows that he’s in trouble, knows what the role of the prosecution is, knows what the role of the defense attorney is, and knows what the role of the court is, that person is confident to go to trial.

The standard for the competency of lawyers in the justice system today is just so low. Share on X

That’s way different from what most people experience. People can have bipolar, fetal alcohol syndrome, issues or an intellectual disability and are still in the system. That is very much a sentencing issue. We could talk for an hour about this alone. A lot of what happens in our court system is focused on guilt and innocence.

Once that defendant comes, stands up before a judge, says, “I’m guilty,” and gets sentenced, then it’s up to the role of the lawyer to contextualize what happened. That is to say, “This is how we got here. This is when you start talking about mental illness and the challenges this person has had his entire life, and what the parents and members of the community have done to try to support this person. Let’s talk about addiction issues and the rest of that.” That so rarely happens during sentencing.

Here in South Carolina, I can tell you this because I did it when I was a public defender. You would stand up before the judge and say, “Here’s my client. He’s 24 years old. He works as a laborer. He made it through eleventh grade. Your honor, we are asking for the minimum sentence.” The sentencing procedure probably took seven minutes. A court can’t do anything about that. There’s no way you could possibly give somebody an appropriate sentence based on seven minutes of that but the courts aren’t set up. They are not designed to do much better than that.

The federal system is different, frankly. There’s more of an effort made there. There’s a lot more that is expected of lawyers in the federal system when they are dealing with sentencing issues. On the state level, sentencing can be atrocious. When you consider that roughly 97% of all cases resolved is by way of a guilty plea, and then you’ve got a 7 to 10-minute sentencing procedure, how can you possibly expect that to be a just system?

With the impact of mental health and how the courts treat it, I feel like it is ignored. I feel like nobody sees it. We all know it. We all know that people who are mentally ill are going to prison but it is not adequately addressed. I wish I could be a little more positive on that front except to say that if you’ve got somebody who is in the system and has these mental health issues, you might consider hiring what’s called a mitigation specialist. That is someone who can create a report and who can submit that report to a court on behalf of a defendant. That’s what I have been doing in my federal cases because I have been getting funding here in the District of South Carolina.

I’ve got a woman who I worked with on a number of death penalty cases. She’s very good at sentencing mitigation issues. She has been conducting these thorough investigations on behalf of my clients, and then I have been submitting these reports to the court when my client is being sentenced. It has moved the needle in some of our cases.

In one case, for example, we had a guy who was looking at 6 to 7 years. We ended up getting him a 24-month sentence. The judge made a finding on the record that he was doing this based on the information that was contained in that mitigation report. For anyone who has a loved one who has mental health issues and who has not yet been sentenced, that might be something I would suggest. Get a keen expert who can create some document that they can file with the court, so the court has an opportunity to address and study it before sentencing.

 

I appreciate your feedback on that. By us talking about it and bringing it to light or to the forefront, the families, any attorneys, law enforcement professionals or other professionals that are reading can get some insight into what’s happening. Maybe this is how we make a change. We bring it up to the forefront. People can look at it. If you are aware of it, then you can make a change. I hope it’s something that, especially attorneys, will be able to spend a little bit more time on because I don’t know how much time you are given.

You also brought in some great information about a mitigation person because that’s something that I’d never heard about. That’s why we do this show to raise awareness. I want to touch on something you said earlier. You were talking about somebody with LWOP. In case anybody is still wondering what that is, that was Life Without Parole. There are some things that we know that we talk about. I wanted to take a step back to learn more about you. You became an attorney. What is your why? How did you get into this work?

It’s so interesting because I’ve always wanted to do criminal defense. Going to law school happened on a lark but once I got there, it was a historical accident. I had nothing going on. I was like, “What am I going to do?” I ended up in law school. After that first year, I did an externship with the Wyoming Public Defender’s Office. I happened to work with one of their appellate lawyers, and I fell in love with it. It fits like a glove. My parents, at the time, wanted me to be a prosecutor but it never held any allure to me.

I fundamentally hate bullies. When I was a kid, I was that way. I hate to see people treated poorly. It has been a great privilege by having this career. I have been able to represent people who are unable to advocate for themselves. It’s such an honor and such a privilege to be able to stand in a court and help somebody through this system. To me, that’s what has always been most satisfying.

I’ve spent several years doing primarily death penalty work, which is hugely gratifying. It’s important work. It’s exhausting, labor intensive, and all the rest of that. When I started my own firm, I had to get back to what it is that I enjoy doing. The truth of it is that nothing gives me greater pleasure than getting people home to their families.

I’ve tried to take a lot of what I learned doing the death penalty work like the use of the mitigation specialist and the rest of it, to work with the guys who aren’t looking at death but who are still looking at substantial sentences and then try to bring my talents to help them get home to their families. That’s what brings me joy. That’s what our firm is seeking to do. That’s our why. It’s to reunite families and try to bring them home.

I know that we talked about this earlier. It’s easy to get discouraged when you are going through this process but you have to keep in mind that the system is designed to make you feel that way and that your responsibility is to fight against that. You have to work. You’ve got to work on your mindset. You’ve got to work on your physical and emotional health. You’ve got to find the will to fight.

 

I’m glad to see there are shows like this and organizations like yours that can address that emotional aspect because you will not win if you lose hope. You’ve got to be smart about it. You’ve got to be fierce about it. At the end of the day, it’s up to you to do what needs to be done. There are plenty of guys who have attorneys who maybe they are not getting along with. Maybe they are not seeing the case the same way. They need to find new attorneys. You’ve got to own that. You’ve got to own the fact that you, yourself, are going to make this happen.

I remember I had this one client. This was several years ago. She was convicted of homicide by child abuse. I remember I saw her case when it was on television. I was working for the state appellate defense office at the time. It looked weird. The case had a smell to it that I didn’t like. I went and talked to my boss at the time. I was like, “I would like to do this case,” so he gave me the case.

I was a new mom at this time, too. She had been convicted of giving her child medicine from which he overdosed. The state’s theory of this was that she was using this medication as a chemical restraint because she didn’t want to deal with her kid. She was giving him this medication. I thought that was preposterous. I thought it was racist and terrible.

I won’t say her name but from the time that I initially took her case until the time that she walked out of the prison, seven years had elapsed. She had this book that she kept with her the whole time she was in prison. It was a vision book. She had notes in there about what her life was going to be like. She had pictures in there of what she wanted her life to look like.

Her favorite holiday is Christmas. She had all these Christmas pictures in there. She had a letter written to her future husband there, all of it. She was somebody who knew fundamentally that she was not going to spend 35 years in prison. To this day, that energy and mindset helped to propel her case in the manner that it did. She got out. She flew back to Tacoma, Washington, which is where she’s from.

I keep in touch with her occasionally. She’s doing well. She had a lot of trauma when she got out. When she was first released, she would drive her car and would have to pull over on the side of the road because she would break down into tears. She had been traumatized by the prosecution. In addition to losing her son, the prosecution itself was an additional layer of trauma that she had. She got into counseling. I always think about her and about that book because it was such a powerful thing. It’s hard to come to any other conclusion but her mindset helped her to get out.

That’s probably my biggest message for people who find themselves with someone who has been convicted. You cannot give up hope. You’ve got to stay strong. You’ve got to take the bull by the horns and do what needs to be done to get to where you need to be. You need education, and you need to educate yourself.

You cannot give up hope. You have to stay strong, take the bull by the horns, and do what needs to be done to get to where you need to be. Share on X

There are a number of guys in the system who are maybe not good advocates for themselves for various reasons like mental health, cognitive limitations, and addiction issues but if they’ve got some people on the outside who can help them, then they can be their strength for them. It is a proactive experience. People in this space need to realize that you have got to find the strength to move your case forward.

It’s like a whole other world that people don’t think about. They don’t realize what it’s like until they are in it. Sometimes, they get into it, and it’s like a deer in headlights. They need to take steps. They need to move forward. They need to do the research and do everything that you suggested. I want to thank you for sharing all of that with the families and people that are reading. You can take steps. You can take action. You can advocate, and you can move forward. I have one more question for you but do you have any last words for our audience?

That last statement is the most important one. You can never lose hope. There is always a way to challenge the conviction. Courts don’t want innocent people in prison. There are a lot of people who are innocent who are in prison but courts fundamentally don’t want the wrong people in prison. The trick is that you’ve got to figure out the best way to develop the case and present it to the court.

One thing that I will write about a lot in this book and that you will see is the critical importance of investigation in a case. If you were convicted and beginning the journey of unraveling that conviction, the best money is probably going to be spent on getting a good investigator to figure out what happened and how you ended up convicted and start developing new evidence that no one has seen and that impacted your case.

You then need to work with a lawyer who can figure out the right way to package it for the court to make it palatable to the court. You need to give it to the court in a way that it understands, that cuts through the noise, and that shows the court why there has been this breakdown in the process. If you give the court the right record and frame and develop your claims in the right way, they will do what needs to be done. The responsibility for doing that is on you. It’s on the person who has been convicted.

I’m not saying it’s easy to overturn a conviction. It’s not, but we would have more overturned convictions if people did it the way it needs to be done. I have seen so many cases where people should have won but the records weren’t there. The claims weren’t there. It wasn’t framed well. With the court, because of the rules, there are some things they cannot do. I’m hoping, with this book, to get my insights into this and show people on a foundational level what this post-conviction process needs to look like and how you need to make your very best case to have it heard.

You’ve left me with two questions. One question is, when do you think is the book going to be out?

I have finished the draft. I was hoping to make it a Christmas present for my clients. It may be a New Year’s present for the clients.

That’s soon.

It’s written. It just needs additional editing and publication.

My last question is, with everything that you’ve said, there might be people that want to reach out to you. How would somebody contact you and your firm?

They are welcome to send us an email. I can be reached at Elizabeth@FranklinBestLaw.com. Call us at our firm. Our number is (803) 445-1333. We’ve got two lawyers. We’ve got two paralegals. We have a client care specialist. We are looking to hire another lawyer. We handle federal cases throughout the United States. We will help whoever we can.

We are beginning to team up with the local council and a number of jurisdictions to see if there’s anything that we can do to help our federal guy. A lot of state guys need help. I don’t wish that there would be more convictions coming out of state court than federal court but for the federal guys, we can practice pretty much anywhere in the United States.

I want to thank you so much for sharing. I learned a lot. I hope that everybody that’s reading has learned something. The best step would be to not have people wrongly convicted but if somebody was, then we know that there’s hope in the appellate court. Thank you so much.

Thank you for everything that you do. Offering assistance to the family members in these cases is so critically important. Keep it up, for sure.

 

Important Links

• Elizabeth Franklin-Best, PC Law Firm
• Elizabeth@FranklinBestLaw.com
• https://PrisonFamiliesAlliance.org

 

About Elizabeth Franklin-Best

Elizabeth Franklin-Best is an experienced criminal appellate attorney who has spent the last 20 years helping deserving clients reverse their criminal convictions and restore their freedom and lives. She’s the owner and founder of Elizabeth Franklin-Best, P.C., a boutique law firm that focuses exclusively on federal criminal defense, state and federal direct appeals, federal post-conviction, and habeas proceedings. She started her firm in July 2019 because she wanted to create a new kind of firm—one that embodies the highest level of professionalism and aggressive advocacy for her clients. They focus on a few cases at once so that they can give every case the attention it needs and deserves, they select clients who they know can help. Their office is committed to discreetly handling your private affairs with care, and value and appreciate the opportunity to work with those who have been targeted by the government.

 

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