| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
The
Appeal
The appeal process begins with the filing of a notice by the defense that an
appeal will be filed. In death penalty cases, that notice is usually considered
automatic and appeals go directly to the highest or supreme courts in each state.
All other appeals are typically filed with the intermediate appellate courts.
The prosecution can never appeal an acquittal. The prosecution may appeal interim
trial rulings that would have a bearing on the outcome of a trial. For example,
if a judge suppresses all evidence in a narcotics case, there would be no case
left to prosecute. Such a ruling is may be appealed by the prosecution.
In an appeal, the burden shifts from the prosecution to the defense
and the challenges are limited to questions of law, not fact. The
trial court is considered the finder of fact; the appeals court
is considered the arbiter of the law.
The defense files an opening brief, the prosecution files a response
and the defense is entitled to a response. After reading the briefs,
the appeals courts decide whether to hear oral argument. If not,
the case is taken under advisement and a ruling will be forthcoming—although
there is no time requirement for issuance of a ruling. That may
lead to the infrequent, but not unheard of, instance where a conviction
or sentence may be set aside well after a defendant has served
the initial sentence and been released. If oral arguments are heard,
they follow the same format as the filing of legal briefs. The
appeals judges usually take the case under advisement and issue
formal rulings later.
There are two types of appellate rulings: published and un-published.
These terms have nothing to do with whether a decision is written—both
are—but instead refer to whether a holding can be cited as
precedent or in other legal proceedings. Unpublished opinions are
not published in case law directories such as Westlaw or Lexis.
Rulings from intermediary appellate court may be appealed to the
next level, usually the state supreme court (which can be called,
depending on the state nomenclature, the court of appeals or the
supreme judicial court) and after the state highest courts have
ruled, lawyers can seek review by the U.S. Supreme Court, which
will decide whether to review the case. Depending on the jurisdiction,
a defendant may get just one full appeal because the state’s
high court has a discretionary docket. The U.S. Supreme Court takes
only a minuscule number of cases, almost always when a general
principle of law is involved. The high court generally does not
take a case to correct a single procedural error by a lower court.
Defendants may seek to file post-conviction motions, which usually
must allege some new evidence has been discovered. Many defendants,
upon exhausting all appeals, seek relief in federal courts by filing
a writ of habeas corpus, which alleges an error was made in the
prosecution or appeal of the case.
DNA Testing
In the last 15 years, many states have enacted post-conviction DNA testing
laws that allow defendants to seek DNA testing of evidence. Test results
that have excluded defendants have formed the basis for motions to vacate
the conviction and to grant a new trial on the grounds of newly discovered
evidence. In most instances, prosecutors have acceded to those motions and
then, rather that proceeding with a new trial, have agreed to dismiss the
charges, allowing defendants to go free.
REFERENCES
- “The Reporter and the Law” by Lyle
W. Denniston. Columbia University Press. (1992)
- “Covering the Courts: A Handbook for Journalists” by
S.L. Alexander. Rowman & Littlefield Pub. Inc. (2003)
- “Media and American Courts: A Reference Handbook” By
S.L. Alexander. Rowman & Littlefield Pub. Inc. (2004)
- “Black’s Law Dictionary,” West Publishing Company;
8th
edition (2004)
- “Courtroom 302,” by Steven Bogira. Alfred A. Knopf. (March
24, 2005)
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