Criminal Procedure: Theory and Practice, Second Edition by Jefferson L. Ingram

1. Criminal Procedure: Theory and Practice, Second EditionbyJefferson L. Ingram Chapter 14: Appellate Practice and Other Posttrial Remedies

2. 1. The Right to Appeal • “[T]he right of review in an appellate court is purely a matter of state concern.” McKane v. Durston, 153 U.S. 684, 688 (1894). • Federal Constitution: No guarantee of appeal in any state criminal prosecution. • All states guarantee at least one appeal. • Rationale: Permits correction of major errors.

3. 1. The Right to Appeal (cont.) • State grant of right of appeal not absolute. • May be forfeited: • Defendant fails to appear for sentencing. • Defendant escapes and disappears. • Appeal conditioned on filing notice of appeal; following appellate rules.

4. 1. The Right to Appeal (cont.) • All trials contain errors. • Reversible error: • A mistake that affected the case outcome. • Harmless error: • Mistake that had no effect on result. • Appellate process: Determines which error, if any, affected the outcome.

5. 2. The Appeal Process: Generally • General Rule: Convictions may be appealed once to an intermediate appellate court. • Appeal to state supreme court: • Never a certainty. • Based on state supreme court’s discretion. • State supreme court might take case when conflict among lower jurisdictions.

6. 3. The First Appeal: The Court of Appeals • Free counsel appointed for indigents. • Notice of appeal: Necessary step to give appellate court jurisdiction. • Prosecution and defense prepare and file appellate briefs with court. • Attorneys may orally argue case or submit based on briefs.

7. 3. The First Appeal: The Court of Appeals (cont.) • Appellate court outcomes: • May order new trial. • Order level of conviction reduced. • Could send case back. Order case dismissed. • Affirm the trial court decision. • Most common outcome: Affirm decision.

8. 4. The Appellate Role of a State Supreme Court • State supreme courts possess almost total discretion to take a case. • Losing party at court of appeals: • May request rehearing. • May ask state supreme court to consider. • Defendant may ask state supreme court as necessary step for habeas corpus.

9. 4. The Appellate Role of a State Supreme Court (cont.) • Where state supreme court accepts case: • Similar procedure as court of appeal. • Both sides prepare briefs. • Usually argue case in front of supreme court. • Whatever result, losing party can request a rehearing by the top court. • Usually not granted.

10. 5. Supreme Court of the United States: Only a Potential for Review • Case must involve federal question. • To obtain writ of certiorari: • Four justices must vote to hear case. • Few state cases accepted yearly. • Best chance: When state supreme courts have different interpretations of federal question.

11. 6. Appellate Assistance to the Defendant: The Right to Counsel • Sixth Amendment right to the counsel extends to the first appeal. • Douglas v. California: pursuit of criminal appeal not dependant upon ability to hire attorney. • Prior practice: Appellate court “looked over” record to determine if counsel would be appointed.

12. 6. Appellate Assistance to the Defendant: The Right to Counsel(cont.) • Douglas v. California : Type of appellate review depended on amount of money. • Earlier case: Griffin v. Illinois held no justice where a state granted appeal only to those who could afford trial transcript. • Current practice: Poor get free appellate assistance- attorney, transcripts, etc.

13. Facts: Douglas was convicted of robbery and wanted counsel for appeal. Court denied. Appellate court reviewed trial record; concluded no merit to appeal. Convictions affirmed. Issue: Where indigent gets no attorney and appellate case decided on brief review, is equal protection of Fourteenth Amendment violated? Held: Yes. Rationale: The type of appeal depended on money of defendant. Rich afford attorney; poor gets cursory review. Where merits of the only appeal are decided without benefit of attorney, an unconstitutional line has been drawn based on wealth. State must provide free counsel for first appeal. Case 14.1, Leading Case Brief: Douglas v. California, 372 U.S. 353(1963).

14. 6. Appellate Assistance to the Defendant: The Right to Counsel(cont.) • Modern update: Assistance of appellate counsel for indigent: • Attorney reviews case: may conclude no merit exists. • Attorney not obligated to pursue frivolous appeal. • Second appeal: states have no counsel obligation for indigents after first appeal.

15. Facts: Robbins wanted to appeal conviction; attorney appointed believed appeal frivolous. Lawyer filed brief with appeals court indicating no merit; offered to brief any issue appellate court suggested. Appeals court agreed with attorney. Issue: To meet required due process and appellate counsel assistance, must attorney brief frivolous theories? Held: No. Rationale: To meet due process, state need not require attorney to file legally unsupportable theories. Due process is met when state provides plan for free attorney to address meritorious appellate arguments. Court stepped back from earlier Anders v. California case requirements. Case 14.2, Leading Case Brief: Smith v. v. Robbins, 528 U.S. 259(2000).

16. 7. Appellate Assistance to the Defendant: The Indigent’s Right to a Transcript • Trial transcript necessary: • To alert appellate attorney to trial errors. • For appellate court to understand facts. • Griffin v. Illinois: Full appellate review available only with certified transcript. • Griffin could not afford; wanted free trial transcript.

17. 7. Appellate Assistance to the Defendant: The Indigent’s Right to a Transcript (Cont.) • Supreme Court in Griffin: If transcript was essential to review; state had to give free transcript. • Where transcript not essential: State need not provide it. • Supreme Court: Sensitive to appellate cases where poverty harms merits.

18. Facts: Moffitt convicted of forgery and granted free counsel for first appeal. Moffitt wanted free counsel for state supreme court appeal, but it was denied. He argued due process of law under Fourteenth Amendment required free appellate lawyer at next stage. Issue: Does due process force state to fund appeals beyond first one? Held: No. Rationale: Since a state has no obligation to grant any appeal, it need not give assistance to appeals that are not available as a matter of right. Even wealthy person not guaranteed second appeal. Moffitt was treated in a fundamentally fair manner by funding one appeal and his arguments have been heard. Case 14.3, Leading Case Brief: Ross v. Moffitt, 417 U.S. 600(1974).

19. 8. Laying the Groundwork for an Appeal: Preserving the Record • Where trial attorney observes error: • Obligated to make immediate objection. • Allows judge to correct error. • If not corrected; preserves record for appeal. • Cannot allow error with hope of reversal; silence does not preserve objection.

20. 9. The Plain Error Rule: Ability to Appeal without Preserving the Record • Errors that all parties and judge should have noticed, but did not: • May allow appeal even where no objection. • Exception to general rule requiring objection to trial errors: • Plain error rule applies only to particularly outrageous errors. • Must have affected fairness of proceedings.

21. 9. The Plain Error Rule: Ability to Appeal without Preserving the Record(Cont.) • Best chance for success: Constitutional violation. • Example: Clear Fourth Amendment violation of search and seizure. • No one at trial recognized obvious problem. • Affected substantial rights of defendant. • Used when error undermines court integrity. • Used when error prejudiced a possibly innocent person.

22. 9. The Plain Error Rule: Ability to Appeal without Preserving the Record(Cont.) • Plain Error Rule: Applicable situations. • Coerced confession admitted. • Incompetent defense counsel. • Outrageously erroneous jury instruction. • Juror misconduct affecting defendant.

23. 10. Subject Matter Jurisdiction: Always an Appealable Issue • Even if no preserved record: • Subject matter affects court jurisdiction. • Can be raised at any time. • Court in one state: • No territorial jurisdiction over crime committed in different state and • No subject matter jurisdiction. • May be raised first time on appeal.

24. 11. The Appellate Process: Making It Work • Only final orders or judgments are subject to appeal. • Appellate court has no jurisdiction unless, • Plea or verdict. • Judge signed judgment entry. • Judgment entered in court records.

25. 11. The Appellate Process: Making It Work (Cont.) • Appellate court may: • Affirm result. • Reverse conviction. • Order dismissal. • Order retrial. • Reduce level of conviction: • To lesser included offense. • If harmless error, no change in judgment. • Error did not affect outcome.

26. Facts: Chapman convicted of murder; she did not testify in her own defense, using her Fifth Amendment privilege. Prosecutor commented on her failure to take witness stand in her own defense. State courts followed harmless error rule even when error was of constitutional dimension. Issue: Where constitutional error occurred, must case always be reversed? Held: No. Rationale: Not all constitutional errors affect the result. If error was harmless, no need to reverse. Here, error affected outcome of trial and was not harmless. Her Fifth Amendment rights relating to self-incrimination were substantially and adversely affected. Case must be reversed. Case 14.4, Leading Case Brief: Chapman v. California, 386 U.S. 18(1967).

27. 11. The Appellate Process: Making It Work (Cont.) • Harmless error in appellate process: • Arizona v. Fulminante: Erroneous admission of coerced confession was not harmless beyond a reasonable doubt. Reversed. • Neder v. United States: Harmless error, jury instruction omitted element of crime. • Vasquez v. Hillery: Harmless error, but reversal due to admitted racial discrimination in grand jury.

28. 12. Adverse Appellate Results: The Next Step • Defense and prosecution options: • Adverse result: Appeal top state court. • If in favor of defense, retry case. • If state remedies exhausted: • Supreme Court of United States, if federal question. • If Supreme Court denies, federal habeas corpus.

29. 12. Adverse Appellate Results: The Next Step (Cont.) • If appeals court returns case for retrial: • State may elect not to retry. • If retrial, limited to original level of conviction. • Impliedly acquitted of higher crime. • Jury trial allows higher sentence upon second conviction.

30. 13. Collateral Attack:The Writ of Habeas Corpus • If federal court, must meet “Exhaustion of Remedies” doctrine. • All state redress attempted, failed, or futile. • Writ of habeas corpus: • Contends defendant being illegally held. • If federal district court denies writ: • Must have certificate of appealability to go to circuit court.

31. 13. Collateral Attack:The Writ of Habeas Corpus (Cont.) • Federal defendant must first exhaust all direct remedies. • Must allege being held contrary to laws or Constitution. • Cannot “save” grounds for later application of successive writ. • Possibility of appeal of writ denial to federal circuit court of appeal and Supreme Court.

32. 14. Summary • All states and federal jurisdictions permit one appeal after trial. • Counsel granted for first appeal only. • Appeal procedure must meet due process. • Trial errors: be preserved on record. • Errors, if harmless, do not reverse. • Habeas corpus, where remedies ineffective.