IT AIN’T OVER TILL THE APPELLATE COURTS SING:
CRIMINAL DEFENSE APPELLATE LITIGATION
By Vince Aprile
J. Vincent Aprile II practices law with Lynch, Cox, Gilman and Goodman, PSC, in
Louisville, Kentucky.
Whether as a specialized practice or as an area of expertise, work
as an appellate litigator on behalf of a defendant in a criminal proceeding
provides a practitioner with a complete spectrum of challenges and
interests. In virtually every jurisdiction in this country appeals are on
the basis of a record made in the lower court. The record is comprised of
two segments. The first record component is the collection of all the
documents filed or entered in the case, such as the charging document,
motions, responses, and orders. The second record component is the
evidence, which is the recording of what occurred in court, such as
pretrial hearings, evidentiary hearings, trials, and sentencing, whether
memorialized on a printed transcript, an audio or video tape, a CD, or a
DVD.
The job of an appellate defense attorney is to pore over that
entire record searching for errors that would require an appellate court
to grant the client relief, such as dismissal of the charges, reversal of the
conviction and a new trial, or some other more specific form of relief.
This practice is referred to by some as “panning for gold.” There are
basically two separate types of error in a criminal appeal. The first and
less controversial type of error is the preserved error. An error is
preserved when the criminal defense attorney in the proceedings below
made it clear to the judge presiding over the trial that the judge should
provide some form of relief to the defendant. The relief requested by the
defendant may be presented by a motion, either written or oral, or by an
objection to what the prosecutor or the judge seeks to do or has done.
The final step in the preservation of an error is when the judge rules on
the record adversely to the defense attorney’s request.
The other type of error is an unpreserved error, which is
described in some jurisdictions as “plain error.” In this type of error
analysis, the appellate litigator finds an obvious error by the prosecutor
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or the trial judge that was not objected to by the defense counsel in the
proceedings under review. The error is obvious because the controlling
law under the facts and circumstances of the proceeding below made the
judge’s ruling incorrect. Courts are hesitant to grant relief on the basis
of unpreserved errors so appellate defense counsel must present a
compelling case why the perceived error was an obvious error that
severely and adversely impacted on the appellant’s right to a fair trial.
As a result, the first task of an appellate defense attorney is to
read the entire record and to scan it carefully for every possible error,
whether fully preserved, partially preserved or unpreserved for
appellate review. The reading of a record, although tedious work, is
entertaining as the record usually tells two stories – the prosecution’s
theory of the crime and the defense’s theory of innocence or reduced
culpability. From the reading of the record, the defense appellate
litigator begins to develop in his or her own mind the defense theory of
the appeal, the context in which the various errors will be examined and
evaluated to determine whether under the circumstances of the case
the ruling or non‐ruling was an error and how it prejudiced the
defendant’s ability to defend.
An appellate defender must evaluate potential errors as
violations of evidence rules, statutory law, procedural rules, case law,
state constitutional law and federal constitutional law. In many
situations the appellate defender must tier the analysis of the error to
display it as an error under the state’s law or procedure that has also
violated state and/or federal constitutional law. In proceedings that
begin in a non‐federal forum, such as a state court, the criminal
defendant’s ability to file eventually a habeas corpus petition in federal
court will depend on the appeal presenting questions of federal
constitutional law to the state appellate courts for review and
resolution.
As a brief writer, appellate defense counsel uses the portion of
the brief typically called the statement of the case to present the
defense version of the facts and often the proceedings below. Here both
writing skill and storytelling techniques are essential as the statement
of the case orients the appellate court to the defense perspective and
provides the context for evaluating the assigned errors. In the
statement of the case there is no room for overt argument or for a
misleading or erroneous presentation of the facts.
Each potential assignment of error must be broken down into at
least the following elements: its factual predicate; its legal basis; its
prejudicial impact on the proceedings; the relief available to remedy the
error; and either how the error was preserved in the court below or
why it must be reviewed despite its inadequate preservation. Those
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potential errors must be prioritized on the basis of a number of factors.
Counsel must assess how strong the error is. Is the court’s ruling or the
questionable conduct in this situation actually contrary to the
controlling law? Is the basis for the error only persuasive authority? Is
it a close call or an obvious error? What relief must the appellate court
give the client to remedy this error? Does this error entitle the
appellant to a new trial, dismissal of the charges, or some lesser relief
such as a remand for a limited evidentiary hearing? These are some of
the criteria for evaluating and prioritizing the potential assignments of
error in an appeal.
Because virtually every appellate court regardless of the
jurisdiction places page limitations on the briefs for the appellant and
appellee, an appellate defender in some cases may have more available
errors to raise than will fit in the space allotted in the brief for
appellant. In most appellate courts the statement of the case and the
exposition of all of the assigned errors must fit within a specified
number of pages. There are numerous theories or beliefs concerning
how many issues to raise on an appeal. Some say an appellant should
raise no more than three assigned errors on an appeal so the appellate
court will know that all the errors presented are strong. In the final
analysis each case is different. If a number of compelling errors are
present and there is room to brief each one adequately, it is difficult to
abandon some of those errors simply to have a brief focused on three or
less errors. Each of those compelling errors is an avenue of relief for
the client from his or her conviction and sentence. An appellate litigator
does not have the prescience to know which of the compelling errors
the appellate court will prefer.
Although for most appellate defenders the appeals will be from
convictions by jury or bench trials, counsel will also be involved in
appeals of guilty plea convictions and sentences as well as trial court
orders denying a criminal defendant postconviction relief, whether
brought by a habeas corpus action, a coram nobis petition, or a motion
for a new trial based on newly discovered evidence.
An appellate defense attorney is not in the business of making
law through the appellate courts. Appellate defense counsel in each
appeal represents only the interests of his or her client in that appeal. If
the appellate court’s decision provides relief for the appellate
defender’s client but makes bad law for future defendants in criminal
cases in the jurisdiction, the appellate defender should not be
perturbed. A criminal defense attorney, whether at trial or on appeal,
must represent one client at a time undeterred by the interests of future
clients or other criminal defendants in the system.
In most instances an appellate defense litigator will represent
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the appellant and file the opening brief that establishes the issues to be
resolved on the appeal. There are limited situations where an appellate
defense counsel will represent a criminal defendant who is in the role of
the appellee and will file the responsive brief. For example, in a number
of jurisdictions the prosecution is permitted to appeal pretrial rulings
that gut the government’s case, such as a trial court’s ruling suppressing
the drugs in a drug possession case on the grounds that the search and
seizure was in violation of the Fourth Amendment of the federal
constitution.
In most appellate courts the appellant is entitled to file two
briefs: the brief for the appellant or opening brief and a reply brief to
respond to the prosecution’s brief. The reply brief provides appellant’s
counsel an opportunity to analyze and critique the fallacies in the
prosecution’s brief. The page limitation for a reply brief is always
considerably less than the pages allotted for the opening and responsive
briefs. A reply brief challenges an appellate defender to summarize in a
few words the most compelling arguments of the appellee and to refute
those contentions persuasively but efficiently. Appellate defense
counsel should never disregard or overlook the opportunity a reply
brief offers to engage directly the espoused arguments of the appellee.
In most jurisdictions once the three briefs (opening, responsive
and reply) are filed, the next step is oral argument. The availability of
oral argument varies from one appellate court to another. Some
appellate courts may require oral argument in every appeal unless
waived by the parties. Others may require that at least one of the
parties request oral argument by a written motion stating with
particularity why oral argument should be granted in the case under
review. Oral argument is an important phase of the appellate process
and should be utilized to the appellant’s advantage in every instance.
However, no appellate court wants to hear either party’s counsel simply
stand before it and read or regurgitate the contents of that party’s brief.
An appellate defense counsel needs to have a theory of the oral
argument and devise an oral presentation that will immediately spark
the appellate court’s interest and curiosity. Counsel must prepare for
three possible scenarios. The court could from the beginning of the oral
argument to the end bombard counsel with question after question to
determine counsel’s position on the matters of the most concern to the
court. Conversely, the court may refrain from asking a single question
and permit counsel to use the time allotted as she or he sees fit. The
more common practice, though, is to allow counsel the opportunity to
make an oral presentation interrupted by questions from the court. As
a result, appellate counsel must be able to provide the court with an
uninterrupted oral presentation, if necessary, while being prepared to
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answer any and all questions pertaining to the appeal.
Appellate counsel must realize that in every question from the
court, regardless of how hostile it seems, there is an opportunity to
garner support for the client’s position by a well crafted answer that
returns to the essential elements of the appellant’s theory of the appeal.
In most jurisdictions the appellant will speak first and have the right to
reserve some of the allotted time for rebuttal. The appellee’s
presentation will follow giving the appellee the opportunity to address
immediately the points just offered by the appellant’s counsel. The final
word belongs to the appellant who in the few minutes reserved for
rebuttal may answer the arguments and judicial questions that
occurred during the appellee’s presentation. Counsel should refrain
from interpreting how the court will rule based on the oral argument.
Appellate court judges use their questions and comments in a variety of
ways during oral argument making the intent of the question or the
position of the questioner difficult to read.
After the oral argument is concluded or denied, the appeal is
taken under submission by the court. Absent an unusual circumstance,
the next step in the procedure occurs when the appellate court issues
its opinion in the case. If the opinion affirms the decision of the lower
court, appellate defense counsel will have a limited period of time to file
a petition or motion for the court to reconsider its decision. Appellate
counsel must review carefully the opinion to find either legal or factual
errors or misconceptions that would require the appellate court to
reverse itself and grant the appellant relief. In most jurisdictions the
opposing party is entitled to file a response to the rehearing position.
In the event that the appellate court grants the appellant relief
such as a new trial, defense counsel must still carefully review the
opinion to determine whether any aspect of the opinion will adversely
impact the appellant at his or her new trial in the matter. Because the
decision on appeal becomes the law of the case, at a retrial the lower
court judge will be bound by any rulings made by the appellate court in
the opinion. If the appellate defender feels that there are errors in the
opinion that must be corrected before the new trial occurs, counsel may
file a petition or motion to modify or extend the opinion, without
challenging the appellate court’s grant of a new trial. This action must
be taken to protect the client’s right to a fair new trial.
In those jurisdictions where the initial appeal is heard by an
intermediate appellate court, the losing party on the appeal will usually
be granted the opportunity to request the appellate court of final
jurisdiction in its discretion to review the decision of the intermediate
court. Here appellate counsel must craft a written motion or petition
that demonstrates the incorrect analysis employed by the intermediate
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court and establishes why the issue or issues presented are of such
significance that the jurisdiction’s highest court should address them.
In those situations where the appellant has been granted relief, the
appellate defender may have to file a response to the prosecution’s
request for review by the highest court, contending that the decision of
the intermediate court be allowed to stand.
Should review be granted by the jurisdiction’s highest court, in
most instances the appellate process of full briefing (opening,
responsive, and reply brief) will begin anew on the issues the high court
wants to hear. In most cases there will be an opportunity for oral
argument.
Following an unsuccessful appeal, whether in a state or federal
court, an appellate defender may prepare and file a petition for
certiorari in the United States Supreme Court requesting that court in
its discretion to review federal issues decided incorrectly on the appeal.
Conversely, if the appeal is successful and decided on the basis of a
federal issue, the prosecution may file a certiorari petition requiring the
appellate defender to decide whether to file a brief in opposition. In all
but the rarest situations counsel should oppose the government’s
petition.
An appellate defender must also be adept at appellate motion
practice, applying procedural rules and case law to diverse situations
that occur during the appellate process. Appellate litigators inevitably
file a variety of motions, including motions to supplement the record or
to strike portions or all of an opposing brief. Appellate counsel must
also be able to go on the defensive, responding and countering opposing
counsel’s appellate motions.
Appellate defense counsel file and respond to original actions in
the appellate courts, such as extraordinary writs of mandamus and
prohibition, which challenge the lower court’s rulings or refusals to
rule, where there is no adequate remedy by appeal or the lower court
lacked jurisdiction.
An appellate defender quickly learns that what appears at first
glance to be a simple run‐of‐the mill criminal appeal may contain meaty
federal constitutional issues or unresolved perplexing procedural
questions. The issues on appeal may be as factually oriented as
insufficient evidence or as law intensive as applying the Fourth
Amendment to a new technology for covertly revealing the contents of a
briefcase or a car.
A legal career that includes practicing as an appellate defense
attorney requires a lawyer to enjoy researching the law, scrutinizing the
record of the proceedings below, analyzing and devising legal
arguments, writing cogent and persuasive expositions of facts and law,
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and making oral presentations that are responsive and enlightening.
Appellate defense work provides counsel with psychological rewards,
including when a successful appeal provides a new trial or other form of
relief to the client and appellate approval of trial defense counsel’s
position in the lower court.
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