Paul understands the tough predicament that convicted defendants face. His experience in fighting dozens of convictions gives defendants the best chance of lessening or eliminating their sentence. Below are some questions and answers about the appeals process.
What is an appeal?
During a criminal prosecution, the trial court decides various issues affecting the rights of the defendant. For instance, the trial judge might allow the jury to hear evidence that is unfavorable to the defendant. Or the judge might increase the defendant’s sentence because of a past conviction. Through an appeal, a criminal defendant can request that a higher court undo these decisions to lighten the sentence or erase the conviction entirely.
Should I appeal?
As an initial matter, many criminal defendants cannot appeal because they waive that right in accepting a plea deal. It is important to consult with an appellate attorney, such as Paul, to decide whether an appeal is available.
Even if you can appeal, you and your appellate lawyer must decide whether it’s in your best interest. One large factor is the severity of your sentence. The more severe your sentence, the more you possibly have to gain by appealing. Another important factor is the potential issues to appeal. The trial court’s mistake has to be important enough that correction on appeal will have a substantial effect on your sentence. Yet another factor is the strength of the evidence against you. Even if the trial court made a mistake, the appeals court will not change your sentence unless, all things considered, the mistake affected your sentence.
Paul can provide you with an initial analysis whether it is worth appealing your sentence, taking into account the factors above as well as other concerns, including the cost of appealing.
Why should I hire a separate appellate lawyer?
A criminal defendant should have a new lawyer on appeal to prevent a conflict of interest. A very common argument on appeal (and habeas) is that the defendant's trial counsel provided ineffective assistance of counsel that violated the defendant's constitutional rights. Trial counsel typically are less willing to admit they made mistakes during the trial, and ineffective-assistance arguments made by trial counsel are less persuasive with appeals courts. So it's simply good defense strategy to hire someone else to scrutinize both the trial court's and trial counsel's possible missteps.
In addition, a criminal trial and a criminal appeal are two very different things. At trial, defense counsel's main task is to question witnesses and present evidence in a way that leads the jury to a not guilty verdict. During an appeal, however, the focus shifts. The primary question on appeal is how the law applies to the facts as determined by the jury. This critical difference means that trial lawyers need different skills than appellate lawyers. Whereas a trial lawyer must be a savvy inquisitor and persuasive storyteller, an appellate lawyer must excel at analytical thinking and cogent legal writing.
Moreover, an appellate lawyer provides a different perspective than trial counsel. The trial lawyer is focused on the details of trying a criminal case, including investigating witnesses and obtaining exhibits. This focus on trial procedure and strategy means that trial lawyers, when thinking about an appeal, can lose the forest for the trees. By contrast, a skilled appellate attorney provides the top-down analysis needed to win on appeal.
Paul provides both the skills and the fresh perspective that leads to winning appellate briefs.
How much time do I have to appeal?
Criminal defendants in state court typically have 60 days from the sentencing hearing to file a notice of appeal. Federal court defendants typically have only 14 days. There can be exceptions, however. It’s important to speak with Paul as soon as possible regarding whether to appeal your conviction.
What are the steps to an appeal?
Notice of appeal
A party starts an appeal by filing a notice of appeal in the trial court. This document, although simple, plays a critical role in the appeals process. It is the party’s “ticket” to gain entry into the appeals court—without a timely notice of appeal, the appeals court has no power (i.e., jurisdiction) to review the appeal.
The Record on Appeal
An appeals court bases its decision only on evidence that appears in the record on appeal. The record consists of two separate transcripts: the clerk’s transcript and the reporter’s transcript. The clerk’s transcript contains selected documents that were filed in the trial court, while the reporter’s transcript includes a collection of oral proceedings that were transcribed by the court reporter.
Briefs on Appeal
After the record on appeal is filed, the party filing the appeal (called the appellant) must file an opening brief. This brief lays out the framework for the appeal: it describes the issues on appeal (i.e., the alleged errors by the trial court), the history of the case in the trial court, the relevant facts determined at the trial level, and the arguments why the trial court’s alleged error should be corrected. The responding party then files a brief (typically called the respondent’s or appellee’s brief) that argues why the contested trial-court decisions were not mistakes or, in any event, do not dictate a different ultimate result. Finally, the appellant may file a reply brief that counters the responding brief.
Several months after the reply brief is submitted, the parties may argue in person before the three-judge appellate panel who will decide the case. The oral argument typically lasts about 30 minutes, which is spent in a back-and-forth between the judges and counsel clarifying points made in the three briefs.
The three-judge panel will publish its decision on the appeal typically after several months. The decision will explain whether each of the trial court’s alleged mistakes was in fact erroneous and, if so, how it should be corrected. Some possible outcomes include leaving the conviction intact, returning the case to the trial court for further proceedings, or dismissing the case altogether.
A party dissatisfied with the decision can request, in a brief, for the appellate panel to reconsider its decision. If this request is denied, then the party can solicit the highest court, either the California or U.S. Supreme Court to review the case. But these courts have discretion over which cases they review, and only a very small portion of requests are accepted.
How long does it take?
Each step in an appeal, including compiling the record, submitting a brief, conducting oral argument, and obtaining a decision, takes months. So an appeal, from start to finish, can take up most of a year or longer.
How much does it cost?
The cost of bringing an appeal varies, depending on the size of the case and the issues being contested. Please consult with an appellate attorney, such as Paul, to discuss the particulars of your potential appeal.