Appeal this!

US Appellate Court Justice Douglas Ginsberg

On TV, whenever someone is convicted in criminal court, they immediate are told by their legal counsel, “We can appeal”.  The expectation is that anyone can appeal a criminal conviction.  Oh contraire!

There are only certain circumstances in which a convicted felon can file an appeal.  First of all, the appellate attorney (who may or may not be the trial counsel) has to have solid grounds.  Even though a case can be “appealed as of right”, that does not mean it can be realistically appealed.  The client must find that either the judge made an error in ruling on the pertinent law or instructing the jury or the jury formed their opinion based on a bias or  the defense attorney fail to do the best s/he could do for the client.

If an appeal is feasible and the attorney is ethically ok with doing it, a “Notice of Appeal” has to be timely filed to the appropriate court.  If it is not timely, the client better have a darn good reason to file it late, lest s/he be turned down off the top.  In some instances, the time to file an appeal can be “tolled” (stopped) due to one reason or another.

If the Notice is timely, the higher appellate courts have right of certiorari (literally meaning the right to “be more fully informed”) of the case before they decide to accept it.  This is especially true of the Ohio and federal Supreme Court, which turns down far more cases than they accept for deliberation.  The first level about the trial court is the State district Court of Appeals, who statutorily have to rule on appeals as of right.  Many others do not.  You can think of the federal system as a mirror of Ohio courts, except for federal questions (like violations of federal constitutional or federal regulations) or cross-state concerns (“diversity”).  Federalism (mainly defined in the 10th and 11th Amendments of the U.S. Constitution) mandates that States are sovereign and can only be trumped by the federal courts under specific conditions (see my article “The Civil Side of Litigation” for more discussion on this topic).

If our case is accepted, the moving attorney files an “Appellate Brief” to the court.  This is followed by a “Response” from the prosecutor (either state or federal).  At that point, the Appellate court decides to either: (1) accept the Defendant-Appellant’s argument; (2) deny the argument; or (3) docket the case for oral hearing.

It is rare that an appellate court will hear a case “de novo” (“anew”).  Usually, they go only on the record established from the trial court.  In other words, they hear no new evidence and examine no new witnesses; only rule on the law before them as established in the record handed to them by the lower trial court.

In the uncommon case when (1) happens, the case is usually remanded (sent back) to the trial court that heard the case for another trial, perhaps full and perhaps only on the strictly remanded portion, say sentencing.  If (2) happens, the only recourse is to appeal to the next higher court of appeals, which may well decline certiorari unless the case poses a new or at least intriguing legal question.  In the rare case (3) happens, both sides are scheduled to argue their points “to the bench” (in front of the judges).

In summary, if a client asks for an appeal they have to forewarned that it is a lengthy and potentially expensive process; and by the way, the success is usually low of winning there.

MJB  2/10

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