In this column, our Network Affiliated Attorneys generously contribute commentary and information from their professional experience to help Network members better understand the myriad legal issues affecting armed citizens and self defense. With members pondering the concerns faced by a defendant in a use of force case through the lens of the Rittenhouse trial, we asked our Affiliated Attorneys whether they included appeals in the scope of their law practice. We asked–
Do you generally do appellate work and if so, what are some of the primary hurdles compared to an affirmative defense of self-defense trial?
How does the time commitment change with appeals work, compared with a jury trial, and how do the costs factor into the process?
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, Indiana 47106
Our office does appellate work, and as the question implies, the appeals process is quite different from the pre-trial and trial process. Often, trial attorneys do not engage in appellate work because the process is so different. However, as with the selection of a trial attorney, it is important to select an appellate attorney that is knowledgeable with respect to self-defense claims.
Regardless of who is your appellate attorney, one of the primary hurdles on appeal will be the trial court record. Appeals are constrained by the issues and/or objections raised at the trial court level. Therefore, issues for appeal are preserved or lost during the trial process. Many opportunities for appeal may be lost if an issue is not raised or if an objectionable issue is not objected to. Appellate courts will generally not review issues on appeal if the issue was not raised or preserved at the trial court level. The policy, generally, is that you can’t raise the issue for the first time on appeal. So, if there is an important issue, make sure it is raised on the record at the trial court level, or the appellate court will not consider the issue on appeal.
This leads to another hurdle on appeal – time and expense. You will likely have to pay an attorney more than $10,000 for an appeal (probably much more), especially if the appeal is an appeal from a jury trial. An appeal from a jury trial is very expensive because the attorney will have to obtain and review an enormous written record of any relevant pre-trial and trial proceedings. These transcripts can be thousands of pages. Additionally, appellate counsel will have to spend a great deal of time researching for and preparing a written brief that could take weeks to prepare. Then, once written briefs are submitted, appellate counsel may have to prepare for and engage in oral argument before the appellate court. Oral argument would involve a great deal more time and expense. Finally, if the appeal is denied at the first level of appeal, you may find it necessary to appeal again to a higher level appellate court, which would require more briefing and oral argument. As you can see, this process could involve a great deal of time and expense.
There are other hurdles, of course, but one more I’d like to mention is that the standard to prevail on appeal can be very difficult. Appellate courts are reluctant to overturn things that have been done at the trial court level unless there has been a significant mistake. The standard will vary depending on the nature of the challenge and the degree of the harm created. In any case, the legal hurdle is high when challenging a decision on appeal. At the trial court level, the State has the massive hurdle of disproving self defense beyond a reasonable doubt. On appeal, the burden is reversed. It will be your burden to prove reversible error. That burden is difficult to overcome because appellate courts are reluctant to overturn the decisions of trial court judges, and they are even more reluctant to overturn the decision of a jury.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
I do a lot of criminal appeals. Popular entertainment media frequently portray criminal trials. Even though they are dramatized, they at least give people an idea of how trials are conducted. Appeals have no drama to them (mostly briefs and sometimes oral argument), so they are rarely portrayed. As a result, people do not have a realistic picture of what appeals are like. Here are a few thoughts on appeals.
An important thing to keep in mind is that the further you go in the criminal process, the less likely you are to go free. If you are arrested, that means the police at least think there is probable cause that you are guilty. If you are actually charged, that means a prosecutor thinks he can prove your guilt to a jury beyond a reasonable doubt. If you can’t get the case dismissed on pretrial motions, that means there are no major legal flaws in the prosecutor’s case. If you get convicted, that means the state has convinced 12 jurors of your guilt beyond a reasonable doubt. You have lost the presumption of innocence and you are now facing a serious uphill climb in getting your conviction reversed. The tables have turned by this point and you are behind the eight ball.
There are some things that can be appealed and some things that can’t (at least not often successfully). A lot of people either think an appeal is a “do over,” where new evidence is introduced, or an argument over whether the evidence at trial was “good enough” to convict. It is neither. No new evidence can be brought up on appeal. And, because you have lost the presumption of innocence, the test of sufficiency of evidence is the “any evidence” standard. If there was any evidence to support a conviction, it was “good enough.” Appellate courts will not second guess whether it was good enough in their eyes. Criminal defendants frequently want to argue, for example, that the state’s star witness lied or contradicted himself. That argument is a failure.
If the defense theory at trial was self defense, it is especially hard to overcome a conviction. That is because the conviction means the jury did not believe your actions or beliefs were reasonable. An appellate court is not going to second guess that. Juries get to decide whom to believe and you generally get only one kick at that cat.
Appeals generally take only a fraction of the time that full-blown serious felony trials do, but they still are not cheap.
Kiana Carolyn Garrity
Kiana Carolyn, PLC
121 West Cedar St., Suite 100, Kalamazoo, MI 49007
Appellate work – particularly on a capital-offense case – is more time consuming than doing the original underlying case. Have you ever been tasked to edit another person’s thesis? Unfortunately, I have many times. And unfortunately, 99% of the time it would have been easier to write it from scratch. That is what it is like to do the appellate work of another attorney’s trial (Appeal by Right).
First, I have to review all the discovery that was available (or that should have been available) prior to the case going to trial.
Next, I have to see what was missed by the attorney pre-trial (witnesses, expert witnesses, underlying motions etc.). This includes having to request/review all the transcripts of any pre-trial hearing or motion. This also includes any rulings against the defense that were properly preserved.
Then, I have to review the entire transcript of the trial itself looking for each and every mistake that was made; any objection that was missed; every word of the prosecution; and any improper ruling by the court.
Finally, I have to write it (with potential oral argument). It is too time consuming for a busy attorney. And it will cost more than what I charge for an open-murder indictment.
We extend a hearty “Thank you!” to our affiliated attorneys who contributed their knowledge and experience on this topic. For additional educational reading about the important subject of appeals, please refer to our 2018 two-part interview with Attorney Lisa Steele at https://armedcitizensnetwork.org/appealing-verdicts and https://armedcitizensnetwork.org/lessons-about-appealing-verdicts-part-2.
To read more of this month's journal, please click here.