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I lost my criminal case and want to appeal. Now what?

November 8, 2011

2. Law, 7. Post-Trial

I lost my criminal case and want to appeal.  Now what?

Remember all those times your attorney said, “Objection, relevancy” or “Objection” something else?  She was preserving the issues for appeal.  When an objection is made during the trial, it is most often to testimony.  The arguments over admitting physical evidence or certain testimony (like admissions) happened before trial.  The judge ruled then what evidence could come in, and is ruling now on what questions can be asked and answered.  The judge is making “determinations of law.”  Those creatures are what appeals are based upon.

The jury is considered the “finders of fact.”  Two witnesses testify concerning your location at four o’clock on the fateful afternoon – one said that you were at the scene of the crime, the other said that you were 15 miles away quietly at home eating a pizza and watching football.  There is no way both can be right.  One of them is either mistaken or lying.  It’s up to the jury to decide which is right.  How will they do that?  The judge gives them instructions at the end of the trial – some rules they can use – but they are also human and bring their lifelong experiences to the box.  They watched the witnesses.  They deliberate on what they saw and then come to an agreement on which witness was right.

Now assume that the judge ruled on an admission you made before trial.  There wasn’t a Miranda statement read to you.  You had no attorney.  The DA argued that you made the statements as “excited utterances” immediately upon arrest.  Your attorney argues that such statements are typically short, like “I did it” or “What took you so long to catch me?”  But your statements went on for twenty minutes.  Most damning, however, is that as you babbled on and on you told the cops where to find the gun you used in the Robbery.  “I left the store, took a left down Elm Street until it merged with Route 487.  Then 1.2 miles down 487 South is a storm drain.  Right side.  I tossed the gun there.”  Way to go, homey!  If Google Maps posts a job, I’ll let you know.  The cops, of course, get the gun.

The cops finding the gun came from your statement.  Kill the statement, kill the gun, right?  If only.

The DA argues to the judge that if the statement will not be allowed in, then the gun still should be.  “We knew exactly the route he took after the commission of the crime, Your Honor.  We have two witness statements that place him on Elm and then on Route 487 South.  We were actively searching along that route for the gun.  We would have found it.  His statement just sped up the process.”  The DA is arguing “inevitable discovery.”

The judge kills the statement but lets the gun into evidence.

So we have two things that trouble you about the trial – the jury deciding that your mom lied about you woofing pizza and the judge letting the gun in.  The former is a finding of fact; the latter, a determination of law.  What do you do with your appeal?  Only the gun issue goes forward.

An appellate court is ever-so-rarely going to touch any findings of fact.  And know that everything they do is on paper.  They don’t bring in witnesses.  They don’t see or touch physical evidence.  They are not giving you a second trial.  They are going to review the issues your attorney raises that are asserted to be out of step with the law.  The attorney will cite several cases on finding evidence as a result of an inadmissible statement.  The DA will do the same.  The appellate judges will decide whether allowing the gun into evidence was consistent with exiting law.

This is called a “direct appeal” and the first level of the appellate-court system must take your appeal.  Assume they decide that the gun should not have come in.  That may buy you a new trial – only the second trial will not have your gun admitted into evidence.  Now assume that they decide allowing the gun was perfectly fine.  You’re pissed.  You appeal it to the next level of appellate court.  You run into a new issue.  Each of the courts left to you can simply say “No, we don’t want to hear your case.”

These higher courts are looking for issues broader than you.  Instead of caring about your gun being admitted into evidence against you, they are concerned about how much of a litigation penalty cops should get for ignoring decades of Miranda or how broadly the Inevitable Discovery Rule will be applied.  Your case may be the one they choose to decide that – and you may get a new trial as a result – but their focus is broader than you.

So your direct appeal has run its course.  The Superior Court (Pennsylvania – your direct appeal) told you go pound sand and the Supreme Court (your 2d appeal) gave you a tiny shovel.  Are you done?  Nawww … wouldn’t be enough jobs for lawyers if that’s all there was to do.

Now that your direct appeal is finished, you do a “collateral appeal.”  You’re attacking the system that found you guilty rather than the process of your trial.  Here’s some bases for collateral appeal (no, it’s not all of them):

  • A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
  • Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
  • A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
  • The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

You’re going to do this with a Post-Conviction Rights Act filing – a PCRA.  If you’re in prison, just ask around – more PCRAs come out of prison than out of lawyers’ offices (I just made that up, but I betcha I’m right).  The success rate isn’t high – about 2%.  1 out of 50 isn’t good odds.  But think of it this way – of the PCRAs not filed the success rate is 0 out of 50.  Lots of courts will assign a PD to do it for you.

And before you choke then spit caustically at the mention of a Public Defender, let me say this:  There’s good and bad everything in this world from chefs to criminals to PDs.  Yes, PDs can be overworked.  Think of you having to do three burglaries a day – every day – just to break even.  Then add boosting two cars and doing five curb-stomping collection calls.  You’d mess up, couldn’t prepare completely, and all that.  I do PD work – the court assigns it.  I can’t help it if other attorneys that get PD work treat it like taking their sister on a date.  I treat every client exactly the same – whether they’ve paid full fare or the county is picking up the tab at a discounted rate.  The US Constitution, which I vigorously defend in every case, is the exact same no matter the finances.  So cut PDs a break – if you know your PD is overworked or just sucks, get involved and informed.  It’s your life, right?  Don’t blame someone else because you got caught.  Anyway … where was I?  Oh yeah …

So you file your PCRA based on ineffective assistance of counsel.  Here’s a good reason:  In Padilla v. Kentucky, the client asked his attorney if pleading guilty could result in him being deported.  The attorney basically said, “Naw, you’re a legal resident, been here 40 years.  Piece of cake.  Don’t worry about it.”  Padilla pled guilty and the feds got real interested in deporting him.  SCOTUS called the attorney ineffective.  If you want to understand IAC, read this summary of Strickland.  In short, you’ll have to show:

  1. Deficient performance by counsel.
  2. Resulting prejudice, in that but for the deficient performance, the result of the proceeding would have differed.

Easy enough, right?  But you’ll need to find cases where IAC was found and not found.  You’ll need to argue how your case is like the good (for you) IAC cases and not like the bad ones.  You are arguing the law – that’s the point.  Your facts are going to be a quarter (at best) of what is put in the appeal documents.  The rest is the law and how the law applies to your facts – and that how merely applying yesterday’s law mandates the ruling you want today.

Appeals are heady stuff.  Did you read the Strickland summary linked above?  Here’s the full opinion.  Notice how the writing justice weaves in previous cases as the opinion develops.  In fact, the opinion at times is dominated by cases other than the facts of Strickland.  That’s the nature of appellate courts – it’s as much policy as it is the case before them.  And that’s also the nature of the brief you or your attorney will write to submit to the court.  Read this account of a SCOTUS argument that just happened – notice how little time is spent discussing the defendant’s case.

If you’re found guilty or plead out, you have a right to an appeal (although one after pleading is rather thin).  There are deadlines which must be met.  Your filing has to include everything – you can’t appeal one issue at a time.  Don’t think you can breeze through it.  Although the chances of reversal are low, I’ll wager saying that the chances of success are a lot higher for competently prepared appeals.

Educate yourself thoroughly.  Get a lawyer if you can.  Own the process.  Don’t sit there and presume someone else is going to do it better than you.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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