This one is all about criminal appeals. It also includes insights into the life of a criminal appellate defense lawyer.
I think I know why people have been asking about appeals. There was what you might call a high-profile criminal conviction in the news this week. However, I plan to talk about criminal appeals in general.
Here you go. Everything you’ve ever wanted to know about criminal appeals. Presumably you’ll never need a conversation with a criminal appellate defense lawyer, so this (I hope) will also be more than you’ll ever need to know.
However, please pay attention because there will be a test over the concepts.
The basics: All people have the right to appeal from adverse rulings initiated by the government. These include criminal convictions, sentencing, involuntary mental hospital commitments, and dependency rulings. (Dependency law refers to the law governing the removal of children from families based on allegations of abuse and neglect).
Making sure that criminal proceedings will be scrutinized for errors is a key part of due process and insuring that the laws are fairly applied. Last week I wrote this:
Appeals provide another check on the power of the government. (The prosecutor = the government.)
Defendants who lose at the trial level and can’t afford an appellate lawyer have the right to a court-appointed appellate lawyer. In California, the tasks are divided. Public defenders handle the trial for people who can’t afford a lawyer. Appellate defenders handle their appeals. (In California appellate defenders are appointed by the courts through “projects such as FDAP” and paid through the state’s general budget.)
Appeals also help create uniformity so that different courts within the same jurisdiction apply the same standards.
After I received a bunch of questions on Mastodon about criminal appeals, I said I would dedicate this week’s blog post to appeals. One person offered me this advice:
Please don’t overestimate your audience. I feel like I know less than nothing about appeals.
Another said:
I am getting confused just trying to figure out which court(s) hear which level of appeals in this case.
Okay, here’s the fun part. We have 51 jurisdictions, 50 states and the federal government. Each jurisdiction has its own court system. Each court system has three levels: (1) The trial court (2) the first level of appeal, and the (3) final level of appeal. Everyone has a right to appeal to the first-level appellate court, but the highest level takes only select cases. To get to the final court (Supreme Court) there must be a good reason: The case must be a case of first impression, or it must raise important Constitutional issues, or affect the nation (or state) as a whole.
In the federal system, the courts are called (1) district courts (2) circuit courts (3) The Supreme Court.
In California, the courts are called (1) Superior Courts (2) Courts of Appeal (3) The Supreme Court.
The New York courts are called (1) the Supreme Court, (2) the Appellate Division of the Supreme Court (3) Court of Appeals.
So if you feel confused by the names of courts, that’s why. (Blame New York! They got the names backward!)
Trump can’t take his case to the United States Supreme Court, right? I heard that federal courts do not have jurisdiction over state criminal cases.
State courts have jurisdiction over state laws and federal courts have jurisdiction over federal laws. But federal laws include the Constitution and criminal defendants have Constitutional rights. So a defendant who raises Constitutional issues can appeal to the United States Supreme Court after state court appeals have been exhausted. So in rare cases, the path can look like this:
(1) State trial Court, (2) First level of appeal in the state court system, (3) Highest court of appeal in the state court system (4) United States Supreme Court.
But most of the time, the path looks like this:
(1) Trial Court (2) Court of Appeal. [The defendant’s options are exhausted when the final courts refuse to hear the appeals.]
An appeal is not a new trial.
The defendant doesn’t get a new trial on appeal. An appeal isn’t a do-over. It’s a chance for the defendant to raise errors that may have denied the defendant the right to a fair trial or just sentence.
The trial court is where evidence is introduced and evaluated. The fact-finder (usually a jury) decides what happened. The appellate court generally accepts the factual findings and looks for legal errors.
I inserted the word generally because there are always exceptions. Welcome to the law, where there are (almost) always exceptions. The idea isn’t to confuse people or make it difficult. The idea is to create fairness. Bright line rules are easy to understand and apply, but often result in unfairness because they don’t account for different circumstances. Open-ended standards are more complicated but create more fairness by allowing for nuance and flexibility. Put another way, bright line rules allow for more uniformity by taking away discretion from the judge.
For a discussion of bright-line rules v. open-ended standards, see this article. (If you clicked and started reading, you get the Legal Nerd Award 🏆 and you will probably do well on the test.)
The procedure
- The defendant files a notice of appeal (usually this must be done within 30 days of the adverse ruling)
- The defendant files an Opening Brief.
- The government files a Response Brief.
- The defendant files a Reply Brief.
- The court holds oral arguments.
- The court issues a decision.
For my clients, the process often took up to a year. The procedure is repeated if the case goes to higher courts.
After the defendant files a notice of appeal, the appellate lawyer receives a copy of the record, which can run thousands of pages. The record includes transcripts, exhibits, police reports, motions, previous rulings, etc. The appellate lawyer studies the record, identifies potential issues, and researches the issues to determine whether the issues are appealable.
Appealable is different from winable. Appealable is any issue that is not frivolous. Frivolous means “no legal basis.”
An appeal can have a legal basis if the defendant is challenging a law as unconstitutional. In the 1930s, when the NAACP decided to take on the issue of racial segregation, racial segregation was legal in the United States. In 1896, the Supreme Court, in a case called Plessy v. Ferguson, held that racial segregation did not violate the Fourteenth Amendment as long as the separate facilities were equal (which they never were.) The NAACP didn’t want equal facilities. They wanted to end racial segregation. Had the NAACP lawyers been forbidden from bringing appeals with no basis in the law, they would not have been able to challenge the constitutionality of segregation.
An appellate lawyer has a duty to provide the best possible representation to their clients, so appellate lawyers have a duty to raise all non-frivolous issues.
Courts (at least in California) rarely label silly arguments as frivolous. Instead, they simply hand the defendant a loss and move on. Because of the seriousness of the proceedings — the government is inflicting punishment on an individual — appellate courts tend to give criminal defense lawyers lots of leeway. Criminal defense lawyers refer to the Laugh Test. If it passes the Laugh Test, go for it. Occasionally we win on issues we didn’t think were winable.
I am going to pause here to tell you about my legal practice. My appellate practice, which I maintained for 12 years until Abrams offered me a contract write the Making of America series, was 100% dedicated to representing indigents on appeal. Some of my clients were among the most vilified members of our society.
There were people who thought I was wasting government resources and court time by bringing appeals on their behalf. My view is that when anyone‘s rights are denied, everyone‘s rights are imperiled.
My cycle usually looked this this:
-
- Get a new record. Begin reading. Think: “OMG my client screwed up big time. I won’t be able to do anything with this one.” 🤦♀️
- Keep reading. Do some research.
- Identify an issue. Think: “This might work.”
- Read some more. Think: “I can raise this.”
- Write the argument.
- Final stage: “I should win this!” 💪
Most issues cannot be raised on appeal unless they were preserved. This means if a trial court makes an error, the trial lawyer must raise a timely objection. This gives the court and opposing party a chance to cure the errors. It also prevents trial lawyers from sitting by and allowing mistakes to occur so they will have issues on appeal.
Not every error must be preserved in order to be raised on appeal. The Plain Error Exception allows an appeal for errors that are so serious that to ignore them would constitute a denial of due process. A plain error is an error that is plainly evident from the record and affects a litigant’s substantial rights.
(You’d be surprised how many plain errors a diligent criminal appellate defense lawyer can find in a record. Put another way, you’d be surprised how often a criminal appellate defense lawyer can find an error that was not preserved and construct a non-frivolous argument for why the error should be considered a plain error.)
Appellate court proceedings are nothing like trials. At oral arguments, a lawyer from each side stands at a podium facing a panel of justices. Each lawyer has a set amount of time to present their case. Generally, the appellate lawyer begins speaking and the justices interrupt with questions. Sometimes (but not always) it’s possible to guess which way the justices are leaning from their questions.
There is very little courtroom drama. There are no surprises. The judges know what the lawyers will say because they read the briefs and lawyers cannot bring up arguments that were not included in their briefs. Everyone knows the facts because they have been determined at the trial. No new evidence is presented. Nobody shouts “Objection!”
Also, every appellate lawyer knows this is true: The justices have mostly made up their minds about how they will rule before the oral arguments begin. Appellate lawyers understand that when they get questions, it is their last chance to change the justice’s mind.
The odds on appeal are bleak for defendants.
The presumption on appeal is that the trial court ruled correctly. The defendant has the burden of demonstrating prejudicial error. In matters where judges have discretion, it isn’t enough to show that the trial judge made a bad decision. The standard is that trial judges have to abuse their discretion before their decision can be overturned.
It’s also not enough to find errors. The errors cannot be harmless. Harmless errors are those that have no bearing on the outcome of the trial. In other words, the appellate court has to believe that without the error, the outcome would have been different. This is often frustrating to appellate defenders because how can you construct an alternate reality in which the mistake wasn’t made? It’s difficult to construct what might have happened without the error.
Another reason the odds are bleak for defendants is that findings of fact are not disturbed except in rare cases. The fact finder, usually the jury, is the arbiter of what happened. Once fact finder has made a factual determination, the appellate court will not reweigh the evidence or second guess the jury.
Moreover, a win on appeal may not end up helping the defendant. Sometimes a “win” means the reversal of a conviction or the revising of a sentence, but often a “win” means that the case is remanded to the trial court with orders for a new trial. The court conducts another trial and this time avoids the error. Very often the defendant will lose again at the trial level. So sometimes a win doesn’t end up being much of a win.
This is why fewer than 20% of criminal and dependency appeals succeed, and many of those that do succeed don’t actually help the defendant. So be suspicious of a criminal defense lawyer who has just lost and says, “Don’t worry. We will appeal this.”
Release Pending Appeal: Stay of Execution
When a defendant files a notice of appeal after a sentence has been imposed, the defendant can seek what is called a stay of execution. The trial court decides whether to grant the stay. Because the decision is up to the judge, and judges have a lot of discretion, there is no uniformity. Two people can have similar situations, be in different courts in different jurisdictions, and get different orders. (Federal sentencing used to be like this, so now we have the Federal Sentencing Guidelines to help create uniformity.)
If the court refuses to grant a stay of execution, the decision is appealable. In California, the defendant on appeal must show that the court unjustifiably denied the application.
With death sentences, of course, the execution is automatically stayed but the defendant remains in prison.
Questions
Will Trump have any issues on appeal?
Give me the complete record (it will not be complete until after sentencing), a few weeks to spend full time reading and studying the record, and access to a good legal data base and I will tell you.
A lawyer with impressive credentials is getting lots of attention on Youtube. She sat through the entire trial and said Trump has no grounds for appeal!
That thump you just heard was me falling off my chair because I was laughing so hard. I’m also a little jealous. It would be fun to be that popular but I just can’t bring myself to provide that kind of bias-affirming entertainment.
Whenever I was assigned a new case, I contacted the trial lawyer and asked what issues he or she had identified. The trial lawyer usually had a few good ideas, but, after studying the record, I often found errors that the trial lawyer missed because I had far more time to reflect and do extra research.
(By the way, I looked at that lawyer’s impressive credentials and they did not include experience as an appellate lawyer or in criminal law. She specializes in sex discrimination cases.)
And now the part you have been looking forward to: The Test
Identify what is wrong with these statements:
Why do prosecutors have to get every little thing right? I’ve been told they have to dot each “i” and cross each “t.” Absurd! It should be easier to haul bad people off to prison!
Something is really wrong with a system that takes too long. The entire process needs to be simplifed. We need more bright line rules.
Trump will abuse the system by bringing any appeal he can. People should not be allowed to abuse the system that way.
Rich people can afford better lawyers so they can buy their way out of trouble!
If you had difficulty identifying what was wrong with each of those statements, click here and begin reading. (It should be clear why that last one annoys me.)
I suspect that one reason good, democratic, fair-minded people make such authoritarian statements about the criminal justice system is because they spend too much time listening to what I consider bad prosecutors. Bad prosecutors are those who care nothing about defendants or their rights and are only interested in notching up “wins.” They tend to be simple-minded people who are good at shaking their fists and speaking in platitudes. They are often riveting speakers. Many have second careers on TV as pundits.
Important Note: When discussing this week’s news, it is important not to accidentally write the sentence in this form: “Trump is appealing.”
With that, I will show myself out.
See you next week.
Why I Shut Down My Comment Section
This is my personal website so I need to moderate the comments, and the task was becoming too time-consuming. This way I can publish my blog on Saturday and take off Saturday evening and Sunday. I have deadlines with my next book and limited time.
But I often get ideas for blog posts from the comments. So here’s a contact button for questions and comments. I will probably not answer. Instead, I may select a few to answer here.
Subscribe and I’ll tell you when a new blog post is ready: