Appeals court takes on former Detroit Mayor Kwame Kilpatrick's appeal

Former Detroit Mayor Kwame Kilpatrick says he didn't get a fair trial when he was convicted on corruption charges nearly two years ago. Now, Kilpatrick's attorneys are set to go before an appeals court in Cincinnati. But it won't be easy.

"Every criminal defendant has a mountain to climb in order to get a conviction overturned"

"Trial courts decisions are rarely reversed."

The first quote is from William Swor. The second is Peter Henning. Swor is a top defense attorney while Henning is a former federal prosecutor and current Wayne State Law Professor. But both agree that it does not bode well for Detroit's former mayor

The long odds have never stopped Kwame Kilpatrick before. Eleven years after he was sworn in as the youngest man elected to lead Detroit, he expected to be cleared of public corruption charges. Instead, he was staggered when jurors found him guilty of 24 counts.

Nearly two years into a 28-year prison sentence, Kilpatrick is hoping for a new trial. He says he was convicted because his lawyer had a conflict of interest and FBI agents were allowed to put their spin on private text messages. Kilpatrick's best bud, contractor Bobby Ferguson, is also hoping appeals court judges will agree and that the feds were given way too much leeway when deciphering his messages.

The problem for them is that they were already found guilty. When the pair went on trial in Detroit, they were presumed innocent, meaning the burden of proof was on the prosecution. That's all changed.

"Upon an appeal, the person taking the appeal, in this case Mr. Kilpatrick, has the burden to convince the court that he was denied a fair trial," Swor said.

"Once you get the guilty verdict, courts will go out of their way in effect to uphold the jury's determination," said Henning.

Experts say the judges have several options on how to handle the appeal. 1) They can uphold the conviction 2) Rule there were harmless errors that would not have changed the verdict 3) Rule that there are errors serious enough to send the case back to Detroit for more hearings 4) There were errors that warrant a new trial 5) Determine that there were so many mistakes or such major mistakes that Kilpatrick and Ferguson should be set free forever more.

Federal rules forbid us from recording federal court proceedings so we won't be able to show you Kilpatrick's lawyers in action but you can bet they'll be on their toes.

"The judges control the hearing. You can have this great script written out of all the brilliant things you're gonna say but if the court has 15 minutes of question and you've got 15 minutes to speak, then all your pretty words are going to stay there on the paper," Swor said.

Even if we could show you the action, it might be a little hard to follow.

"Because these are lawyers and judges who are familiar with the law, you don't have to pause to explain something to a jury, to the layperson it is almost incomprehensible," Henning said.

Swor says one of the most important considerations may never even come up in court

"What is there about this case that warrants going back and having another six and a half month long trial?"

While Kilpatrick was not found guilty of plunging Detroit into bankruptcy, the mess he left behind may weigh against him.

"That will hang over the judges' decision, whether they're conscience of it or not," Swor said.

Kilpatrick and Ferguson are not expected to be in court themselves and may not get a decision for months.

But the proceedings will be paid for you by you. Kilpatrick has a court-appointed attorney which means taxpayers are footing the bill for these appeals.
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