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Winning an appeal in the federal courts is no easy task. The laws are exceedingly complex and often obscure the severity of an injustice from the public eye. The law tends to make everything abstract and a philosophical debate. While this may be useful in cases where the emotional weight of the alleged crime is heavy, it can whitewash injustices with sophistry when they must be referenced in technical jargon and abstract principles of law. A successful criminal defense appeal lawyer knows exactly what it takes to help their clients strike that perfect balance of demagoguery and technical error.
The appellate process begins at the trial level. There is little to review on appeal if you did not hire skilled trial counsel to preserve the issues. These issues can range from Discovery violations to excessive sentences to unfair tactics used by the prosecutor at trial. In many cases, the jury instructions play a critical role in the outcome of a case. When they are too broad, the jury can become confused and can wrongfully convict innocent people.
If your attorney has faithfully preserved errors, he should also provide you with the benefit of filing a notice of appeal after sentencing to have these issues reviewed in the higher courts. A notice of a appeal is a simplistic one-page statement that the judgment order was entered on such and such date and that you are appealing it to the appropriate circuit court. It must set out the parties, the name of the court, and the case number in the caption. It must also be signed and served on all the required parties in the U.S. District Court.
Because anyone can file a notice of appeal with a little guidance, the courts will rarely consider a notice of appeal filed nunc pro tunc. Nunc pro tunc is an expression used when any document is filed late. The deadlines for a federal criminal appeal can be as short as 10 days after entry of the judgment order, not receipt by mail. Your trial attorney is in the best position to file this and can be held accountable in post-conviction proceedings if you can prove that he failed to do so despite your instructions.
A skilled attorney will carefully examine all the issues that were preserved by your attorney and the record. They will then be able to carry out research on any current case-law that may affect the principles cited by your trial attorney. Most appellate attorneys then use a winnowing process to focus on the more serious errors with the highest potential for relief.
For example, an objection regarding the jury instruction omitting a critical element of the crime such as the intent of the perpetrator would be likely to obtain redress on appeal. An issue such as a prosecutor’s comments that the defendant looks like a person who might steal someone’s credit card would be highly subjective. The appellate court would have to look at the weight of the other evidence and decide if this inflammatory statement would bias a jury enough to convict based on appearances or the specious reasoning elicited by the prosecutor.
The appellant’s (defendant) opening brief is the key document in the appeal. This document has strict limits on the format, length, covers used, etc. A strong brief will focus and consolidate a pattern of violations into one large error. For example, if the prosecutor withheld multiple pieces of evidence that may create reasonable doubt in the aggregate, you would not bring up each piece separately. If the trial court ignored numerous valid pre-trial issues to suppress misleading evidence, this too could be cited in the aggregate.
The prosecution then has an opportunity to rebut the claims. A common trick they will use is to ignore your arguments and claims altogether as if they are not even worth mentioning. If they can’t seriously contest the claims, their only method of winning is diverting attention away from the errors and slandering the appellant’s character or restating the strength of the case without consideration for the errors that would change the outcome.
The court can vacate the order of the lower court and remand for new proceedings or reverse the decisions. They can vacate in part and affirm in part or simply affirm the entire judgment made below. When it is affirmed, you can move for reconsideration or appeal to the U.S. Supreme Court.