Preparing for a Federal Appeal
Preparation for a federal appeal begins at the trial court level. Any errors made in this court must be preserved with enough force for the appellate courts to conclude that relief should have been granted. Therefore, the appeals process is an extension of the defense legal work that was done below. On a direct appeal, the record is closed. You can’t add new evidence, new testimony, or bring up new claims. You can improve your claims by adding additional perspectives, arguments, or authorities.
If you want to bring up new claims, you have to file for a writ of habeas corpus. This may also lead to a direct appeal in the appellate courts of your circuit in rare cases. For the most part, direct appeals deal with any issue that made the trial or prosecution unfair, issues that were already presented to the trial judge. Because these claims were almost always addressed thoroughly by the lower courts, the statistical probability of obtaining relief in the federal appellate courts is less than 6 percent.
Therefore, an attorney will focus on presentation and choosing the strongest claims instead of chasing every error. If the court ruled against the defendant in the court below, the appellate defense attorney has to consider why and adjust his arguments accordingly. In many cases, it could be a misunderstanding, which makes clarity and the concise use of wording essential to a winning appellate brief.
Overview of the Federal Appellate Process
Notice of Appeal
In all cases, the appeal is initiated with the filing of a notice of appeal in the U.S. District Court where your trial was held. This simple document contains just a paragraph of double-spaced text that recites the entry of a judgment order, the date of entry, the judge, the court, case number, and parties. The notice of appeal may be due in just 10 days after entry of the judgment order. For this reason, you should advise your trial counsel to file the notice while you are seeking appellate counsel.
Briefing the Merits
Once the case is docketed, the defendant will receive notice to file his appellant brief within 45 days. The appellant principal brief is the main focal point of an appeal. This brief should contain a citation to legal authorities, the essential facts of the case, the pertinent portions of the record, and the correct scope and standards of review. This document must also contain meticulous indexes that layout where each authority is cited in the brief and where particular arguments or facts can be found in the record below and portions attached.
The prosecutor’s office will then have 30 days to file a response. They may ask for an extension by citing a heavy caseload or other reasons. In their brief, they may try to evade the merits of the claims even if you have a strong winning claim. They are trying to build a diversion to confuse the appellate court away from the issues in dispute. Although these tactics can be punished with a motion for sanctions, the appellate courts tend to favor the government attorneys, whom, as a result, act with a callousness of being above the law.
At the end of the day, the courts and prison system are business partners and have conflicts of interest. And the briefs are merely public records that can later be used to expose injustices and demand accountability. For this reason, the appellees (prosecutor’s office) may try to play stupid even when you have rock-solid claims on appeal. Their ignorance creates an excuse for their wanton disregard for your rights if they can play dumb and ignore your claims. Hiring an experienced appellate attorney who knows how things really work is the only way to stand a chance in the federal appellate courts.