Third Time’s the Charm
Patrick Mulligan gives defendants another shot at a second chance
Published in 2018 Colorado Super Lawyers magazine on March 26, 2018
“There are three main stages to the proceedings in a criminal case, and most people know of the first two stages: a trial and, if there’s a conviction, an appeal,” says Patrick Mulligan of Mulligan Breit in Denver.
The third stage? Post-conviction litigation, in which a defendant can bring a separate challenge to a conviction after the appeal has concluded. If the defendant’s motion is deemed sufficient, the case comes back into trial.
Mulligan took on his first post-conviction case nearly 20 years ago, at the request of a judge he worked with during his stint as a public defender.
Ineffective assistance of counsel is one of the most common claims Mulligan makes in a post-conviction proceeding—and it was central to his first case. “It turned out the defendant had had very inexperienced trial counsel who made a series of significant mistakes, one of which was the key to our post-conviction litigation,” he says. “It took about two years of really hard work, and multiple days in court of expert and lay witness testimony. The judge saw that the trial counsel’s mistakes really contributed to and caused the conviction and said, ‘Overturned.’
“At that point, I guess I should have retired, because I was one for one.”
At least 19 other clients—for whom Mulligan has reversed convictions and sentences—are glad he didn’t. That first case flipped a switch for Mulligan; post-conviction work has now become a significant part of his practice. “The part that’s really rewarding is to succeed in getting a conviction—and, typically, either a very lengthy prison sentence or a life sentence—overturned,” he says. “I’m passionate about it.”
Cross-examining a trial lawyer is a favorite part of the process. “It’s interesting to delve into a lawyer’s thought processes and recollections about judgment decisions or strategy decisions,” he says. “It can be really fascinating and challenging to cross-examine someone who is skilled in the art of cross-examination and to dig into the detailed assessment about how trial decisions are made. And it’s critical to trying to preserve your client’s rights and to seeing if there is an avenue for relief.”
Recently, Mulligan’s skill on cross won a new hearing for a man who had been convicted and sentenced to 96 years in prison “for being a habitual criminal.”
The court ordered the prosecution to reinstate the original offer of eight to 20 years, and Mulligan’s client accepted an eventual 12-year sentence. But, because he had already served more than seven years, the man was almost immediately eligible for release on parole.
In Colorado, there’s a three-year statute of limitations after an appeal has concluded for most post-conviction challenges. For Class 1 felonies, however, there is no statute of limitations. Mulligan notes that, in cases involving sentences of death or life without parole, challenges have been brought forward more than 10 years after original convictions.
But it doesn’t happen as often as it could. “I think some defendants … may not know that there’s any avenue of relief after the appeal,” says Mulligan. “The problem with that, of course, is that there may be a fairly significant number of convictions that are not being tested or challenged or even investigated at all. I think that’s a significant issue.
“I think every defendant who can bring such a challenge to their conviction should, because it’s part of the process of making sure our system’s working properly.”