KIM WOODS Criminal Justice Multiple Choice

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Step 15

Appeals

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We have seen the human drama that accompanies trials and sentencing hearings. The intense emotional atmosphere that can develop during pivotal moments of the trial demonstrates the seriousness of the proceedings in the eyes of many of the participants and observers. The highly formal, ritualized nature of court procedures is the “official framework” of trials, yet the actual proceedings are often quite per- sonalized, idiosyncratic, and charged with emotion.

A defendant’s conviction, however, is often only the end of one phase of the legal process, with the most critical stage yet to come. How can this be? The answer is that a finding of guilt in a trial court may raise legal issues that are reviewable by an appeals court.

Trial courts at both the state and federal level are charged with finding out the facts in a case and deciding how the law applies in particular cases. In contrast, the function of appellate courts is examining claims that the law was improperly applied or that legal procedures were not correctly followed. An appeal is “a pro- ceeding in which a case is brought before a higher court for review of a lower court’s judgment for the purpose of convincing the higher court that the lower court’s judgment was incorrect” (Merriam-Webster, 1996).

WHY ARE APPEALS IMPORTANT?

At first glance, it may seem obvious that appeals are important to the parties in a case, and indeed this is true. The appeals process is part of the system of “checks and balances” designed to ensure that defendants have received due process at ear- lier stages of the criminal justice process. Thus, appeals are a critical means for pursuing specific legal goals in individual cases.

However, appeals are also important because they are one of the principal avenues by which legal issues in a particular area of law are shaped. The principle of stare decisis means that precedent is highly respected in the law, but at the same

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time legal, societal, and technological changes bring new issues before the courts. These new issues often raise legal questions that become the subject of appeals, and each appellate decision in turn contributes to legal precedent on the issue. An appellate court’s holding in a case provides the court’s decision, the case facts that were the basis for the decision, and the judicial reasoning underlying the decision. The holding serves as a precedent that is then applicable to all similar cases arising in future in the appellate court’s jurisdiction.

In contrast to a trial court’s decision, which is binding only on the parties to a particular case, an appellate court’s decisions serve as precedent that is legally binding on all lower courts within its jurisdiction. This means that all lower courts must decide cases in a manner consistent with the applicable precedent in that jurisdiction.

Appellate court decisions in one jurisdiction also often serve as a source of guidance to courts in other jurisdictions that are seeking ideas on how to address a particular legal issue. Because appellate decisions constitute legal precedent that lower courts in the appellate jurisdiction must adhere to when deciding similar cases, appellate courts are thus major sources of public policy on criminal justice issues.

This creates continuing controversy between those who argue that courts are deliberative forums that are well positioned to perform policymaking, because appointed appellate judges are comparatively immune to the political pressures sur- rounding elected officials, and others who disagree. Legislators, as elected officials, are susceptible to influence by well-organized interest groups and lobbyists, and must depend on the favor of a certain proportion of the electorate if they wish to continue to hold office (see Box 15.1 on Rose Bird). In contrast, courts are better able to protect the rights of the minority, which otherwise might be suppressed by majority rule (Smith, 2000). For example, the right of individuals who wish to tram- ple and burn the American flag has been protected by the U.S. Supreme Court as an expression of free speech under the First Amendment (Texas v. Johnson, 1989). Therefore, legal protection of the exercise of free speech is not contingent on the popularity of the speech or the speaker. Thus, the right of civil rights activists to demonstrate and lead protest marches is protected by the First Amendment; but so is the right of extremist white supremacist groups to march and protest as well.

Critics argue that policymaking by courts usurps the legislative function, and that, in addition, courts are not well suited to policymaking for a number of reasons (Smith, 2000):

• Judges do not have expertise in specific policy issues. • Courts can consider policy issues only if and when they arise in cases

before the court. • Courts must rule narrowly on the legal issues in a particular case. • Courts cannot rule broadly on matters of policy outside the scope of the

specific issues in a case.

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The significance of appellate courts becomes even clearer if you consider that our legal rights have an impact only insofar as legislatures and courts choose to inter- pret what these rights mean in practice. In particular, federal and state constitutional rights often raise legal issues that are addressed through the appellate process. For example, does the Sixth Amendment right to trial by jury apply to minors whose cases are adjudicated in juvenile court (McKeiver v. Pennsylvania, 1971)? Does the Fourth Amendment’s prohibition against unreasonable search and seizure allow police officers to fire in order to prevent a suspect from fleeing (Tennessee v. Garner, 1985)? The provisions of federal and state legislation can raise similar questions for appellate courts (see Box 15.2 on HUD [Housing and Urban Development] policies).

Public policymaking on crime and criminal justice raises questions about pol- icy applicability, scope, and exceptions. We’ve actually looked at some examples of this already on our journey through the courts. For example, “three strikes and you’re out” sentencing statutes raise questions about what counts as a “strike”: Do juvenile offenses count? Do nonviolent offenses count? Should offenses committed ten or twenty years before the current offense count? Each of these questions has been asked on appeal. See Box 15.3 for another example of how legislative provi- sions can provide plenty of questions for appellate courts to consider.

Appellate decisions therefore serve as a bridge between legal theory and practice, as a means of translating abstract concepts into concrete policies, proce- dures, and requirements. For example, what does “due process” mean in practice for a person accused of a crime? As we saw earlier in the book, it was only after a series of appellate court decisions from different cases spread over a span of more than 150 years that the concept of due process came to include the right to have an attorney provided if you cannot afford to hire one.

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Why Are Appeals Important? 467

BOX 15.1

Judicial Independence, Accountability, and the Death Penalty

Rose Bird was the Chief Justice of the California Supreme Court from 1977 to 1986. During that time, sixty-one California death sentences were appealed to her court, and she voted to overturn the sentence in each case. Many California voters were outraged by this, and legal and political commentators accused Justice Bird of extreme judicial activism—of letting her oppo- sition to capital punishment color her judicial decisions. Bird supporters argued in rebuttal that her decision was based on the specific legal issues particular to each case. In 1986, Justice Bird and two of her colleagues on the court were removed from office after failing a routine “confir- mation vote” by voters. During the acrimonious public debate over Bird’s handling of capital cases, some of Bird’s opponents touted the slogan “Bye, Bye, Birdie” (Balzar, 1985). After being ousted from the court, Rose Bird lived a life of quiet seclusion until her death in 1999.

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468 Appeals

BOX 15.2

You May Be Your Brother’s Keeper, After All

Herman Walker was seventy-seven years old, disabled, and living in public housing. When the woman he hired to assist him was found with a crack-cocaine pipe in her possession, Mr. Walker faced eviction. In another case, a woman living in public housing faced eviction after her adult granddaughter was arrested by police for drug possession five blocks away from her apartment; another grandmother faced eviction when her grandkids were found in the parking lot of her pub- lic housing building smoking marijuana (Finz, 2000). Another tenant, a pregnant woman with a toddler, was awakened by police when they arrested an individual who was in her living room and allegedly had heroin in his jacket pocket. The police had a search warrant to enter the apart- ment and look for two people alleged to be drug dealers. The tenant says the people did not have permission to be in her living room, and that her young child had accidentally let them in while her mother was asleep. The woman and her daughter face eviction (Egelko, 2001).

What’s going on here? The common thread linking these cases is a federal anti-drug pol- icy. In 1991, the federal Department of Housing and Urban Development, the agency that con- trols public housing, initiated a “one-strike” policy for public housing tenants. In an effort to control crime, the policy stated that public housing tenants would be evicted if any member of the household, including visitors, were involved in illegal drug activity either on or off the premises (Egelko, 2001). The policy, which could affect approximately three million tenants in public housing across the nation (Egelko, 2001), is set up to encourage tenants to monitor the behavior of people who live with, work for, or visit them, and to punish criminal activity by loss of a scarce resource—subsidized housing. But critics charge that this simply punishes tenants for the crimes of others when the tenants had no knowledge of such crimes, and that the policy illustrates how the war on drugs disproportionately affects the lives of people who are poor and people of color.

Tenants and their lawyers challenged this policy in federal court, and a judge issued an injunction stopping the evictions, “saying the law appeared ‘irrational’ because the tenants had no idea of the drug use” (Finz, 2000, p. A20). However, as the appeals process continued, the U.S. Court of Appeals for the Ninth Circuit reversed the injunction, allowing the evictions to go forward. However, evictions were halted once again when the appellate court decided to rehear the case en banc (that is, with the full panel of judges rather than the typical three judge panel). The court later ruled that evictions were permissible only when the tenant “knew or should have known” about the drug activity (Egelko, 2001) (Egelko, 2001; Finz, 2000).

Upon appeal by the tenants, on March 26, 2002, the U.S. Supreme Court upheld the con- stitutionality of Congress’s “zero tolerance” eviction policy for public housing tenants, even if the tenants were unaware of the drug use of their family members, friends, caretakers, or visi- tors (HUD v. Rucker et al., 2002) (Egelko, 2001; Finz, 2000). The policy rests on the assump- tion that the behavior of family, friends, and visitors of the lease-holding tenant is under the tenant’s control, even if the drug-related activity took place blocks from the actual premises of the apartment or the building. Do you think this is a reasonable assumption?

Source: Excerpts from the San Francisco Chronicle reprinted with permission.

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Why Are Appeals Important? 469

BOX 15.3

What’s the Right Meaning of “Wrong”?

In California, criminal defendants who wish to present an insanity defense have the burden of proving that they were insane at the time of the crime, under the following definition of insanity:

In any criminal proceeding. . . . in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused per- son proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distin- guishing right from wrong at the time of the commission of the offense. (California Penal Code § 25 (2001)(b)).

This definition was the subject of appeals related to various aspects of the wording. For example, this definition of insanity is a variation of the famous M’Naghten standard (see Step 2). However, whereas the original M’Naghten standard required a defendant to prove only that she or he was incapable of understanding the nature and quality of the act or incapable of know- ing right from wrong, California’s version appears to require defendants to prove both of these things in order to pass the standard. When a defendant appealed this apparently stricter require- ment, the appellate court determined that the legislature had not intended to depart from the original M’Naghten standard. Therefore, despite the wording of Penal Code Section 25 2001(b), only one prong of the test must be met; in essence, the appellate court found that “and” really should be interpreted as “or,” a critical difference for defendants presenting an insanity defense (People v. Horn, 1984; People v. Skinner, 1985).

What does it mean to speak of “knowing right from wrong”? In another case stemming from the wording of California’s insanity definition, the appellate court clarified that “wrong” refers to society’s generally accepted moral standards, not the defendant’s subjective moral standard of right and wrong (People v. Stress, 1988).

BOX 15.4

The Great Writ

“You have the body.” That is the literal translation of the Latin phrase “habeas corpus,” which is the name of the appeal filed by thousands of people incarcerated in jails and prisons. habeas corpus appeals reflect a long legal tradition dating back to medieval times; the Magna Charta refers to this appeal as “the Great Writ” in recognition of its power as a legal mechanism for prisoners to question the legitimacy of their confinement by the government. The basis of a “habeas appeal,” as it is commonly called, is an assertion that the appellant is being held ille- gally by the government. The appeal lays out the legal arguments to support this assertion and requests that the court free the person who is unjustly detained.

How did the Great Writ come to be? Recall the appeal the incarcerated jurors in the Penn and Mead trial (discussed in Steps 4 and 12) used to attain their freedom: that they were

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470 Appeals

THE POWER OF JUDICIAL REVIEW

The power of appellate courts to review the decisions of government officials in the legislature, the executive branch, and lower courts is the power of “judicial review.” This power allows the U.S. Supreme Court and the supreme courts of each state to review legislation, court decisions, and executive acts that are chal- lenged in court to determine their constitutionality. Note, however, that the power of judicial review does not mean that courts can independently decide to oversee the laws enacted by the legislature and the executive branch. Instead, appellate courts can only consider the issues arising from cases brought before them. Al- though judicial review empowers appellate courts to consider the legal issues raised on appeal from trial courts, the legal basis of the right to appeal is not found in the Constitution. Rather, statutory provisions at both the state and federal levels provide the legal basis for appeals of trial court decisions. The most famous articu- lation of the concept of judicial review was by Alexander Hamilton in The Federal- ist (No. 78), and by the U.S. Supreme Court in Marbury v. Madison (1803). The Marbury opinion illustrates the court’s reasoning on the logic of judicial review:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule in particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. (p. 177–178)

COURT HIERARCHY

As we saw in Step 4, courts are organized in a hierarchy that defines each court’s jurisdiction in relation to the other courts. At the state level, the decision of its supreme court is legally binding on the lower courts (both appellate and trial) in that state. However, the court decisions of one state are not legally binding on courts in a different state.

BOX 15.4(continued)

wrongfully imprisoned by the English government. This was the landmark case that ultimately resulted in the Habeas Corpus Act of 1679 becoming law in England (Rosenn, 1983). American colonists imported the Great Writ, and thus Congress provided for federal habeas corpus peti- tions in the Judiciary Act of 1789. The scope of habeas corpus was expanded to state courts in later years (Rosenn, 1983).

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Court Hierarchy 471

At the federal level, the decisions of higher federal courts are binding on lower federal courts. With respect to Constitutional issues, the decisions of federal courts are usually binding on state courts. On Constitutional matters, the ultimate appellate court is the U.S. Supreme Court.

The appellate process follows an established progression, with appeals ascending up the ladder of the court hierarchy in sequence. After the trial, an appeal must be submitted to the appropriate lower appellate court; appeals cannot be directly submitted to a higher appellate court. Criminal convictions in state trials can be appealed to federal courts only if there is a federally guaranteed right at issue (i.e., a right guaranteed by the U.S. Constitution or federal legislation). Why? Under the framework specified in the Constitution, the task of defining crimes and punish- ments is primarily a matter for state legislatures rather than the federal government. Thomas Jefferson said in 1798 that: “The power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respec- tive States, each within its own territory” (Jefferson, 1798). This is why most crimi- nal cases (and thus appeals) arise at the state level, although in recent years there has been an increasing trend toward national legislation giving rise to federal cases (for example, RICO, the Racketeer-Influenced Corrupt Organizations statute passed by Congress as a crime-fighting mechanism).

Though tribal court systems are independent, the courtroom of the Navajo nation Supreme Court is typical of many state and federal appellate courts. Three judges hear cases, and if one of the judges cannot sit on a particular case (e.g., due to illness), a replacement judge is temporarily appointed. The five flags in the background represent the jurisdictions governing the Navajo Nation: the federal gov- ernment; the states of New Mexico, Utah, and Arizona; and their own tribal laws. The Navajo Nation does not have an intermediate court of appeals; appeals are heard by the Navajo Nation Supreme Court. SOURCE: Courtesy of Jon’a Meyer.

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Because the federal and state court systems have a parallel structure to address issues of federal and state law, respectively, state criminal courts are gener- ally autonomous with respect to matters of state law. If, for example, a criminal defendant wishes to appeal on the basis that her rights as provided in state legisla- tion were violated, then the appeal is a matter for state appellate courts. However, the Supremacy Clause of the Constitution (U.S. Constitution Article VI, para- graph 2) provides that federal laws take precedence over state laws when there is a conflict between the two. Thus a state criminal defendant may claim that his feder- ally guaranteed rights were violated, and file an appeal in the state appellate court. If the appeal is decided in favor of the defendant, the prosecution may appeal this finding in a higher level appellate court. However, if the defendant loses the appeal after having exhausted all state court avenues, then (and only then) may the defen- dant appeal to the appropriate federal appellate court.

APPELLATE JUDGES

Federal judges at both the trial and appellate levels are appointed by the President of the United States, as provided for in the Constitution. Nominees must be

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472 Appeals

U.S. Supreme Court Nine justices appointed

for life

FEDERAL

Court of Appeals Thirteen intermediate appellate courts, referred to as “circuit courts.” Three-judge panels.

Trial Courts Ninety-one district courts

State Supreme Courts Courts of last resort at

the state level. Panels of seven or more judges

STATE

Appellate Courts Intermediate

appellate courts. Three-judge panels.

Trial Courts

Note: Most states have one level of appellate courts, but a few states have two levels.

Federal and State Court Systems

FIGURE 15.1 Court hierarchy

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The Appellate Process: Procedural Issues 473

approved by the Senate. State appellate court judges are usually elected, but may be appointed in some jurisdictions (depending on the level of the appellate court).

APPEALS OF LAW, NOT FACT

Appeals are made on the basis of matters of law, not fact. What this means is that the legal basis for an appeal must be a claim that the law was misapplied, either substantively or procedurally. An appeal cannot be made on the basis of disputes about the facts of the case, or dislike for the outcome of the case. For example, if you are convicted of a crime, you generally cannot appeal solely because you believe you are innocent. In rare cases, defendants have appealed their convictions using the argument that the evidence was not sufficient to support a conviction. However, such appeals are rarely successful. Rather, your appeal would have to be based on legal issues, such as whether your trial provided appropriate procedural safeguards.

Appellate courts thus usually do not relitigate factual issues that were brought up at trial. The facts as noted in the trial court’s record of the proceedings are assumed to be correct (and this is why the court reporter’s work is so impor- tant). This assumption reflects the belief that the judge (and jury, if there was one) would logically be in the best position to determine the facts of the case, compared to the judges of the appellate court. The issue for the appellate court is whether the law was properly applied to the facts in the case as they are described in the trial court records. Thus, appellate decisions are based on the facts and applicable law as described in the transcript of the trial proceedings, in the briefs and supporting documents filed by the parties to the appeal, and in oral arguments, which may be given in some appeals.

Under certain narrowly defined circumstances, an appellate court may hold an appeal de novo (anew). In this instance, “The appellate court uses the trial court’s record but reviews the evidence and the law without deference to the trial court’s rulings” (Black’s Law Dictionary, 1999, p. 94).

THE APPELLATE PROCESS: PROCEDURAL ISSUES

Standing: Who Can Appeal?

In criminal cases, both prosecution and defense can appeal a court’s decision on var- ious motions (such as to exclude evidence). However, whereas defendants can always appeal a conviction if appropriate legal grounds exist, the government gener- ally cannot appeal an acquittal (State v. Jones, 1809). Once a person is acquitted, they cannot be tried for the same crime. For example, recall the case of Mel Ignatow, the man who was acquitted of murdering his girlfriend, only to have photographs

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documenting his crime turn up later (see Step 5). In very limited circumstances, the government may be able to appeal an acquittal, such as when it was due to the defendant’s bribery of the judge in a bench trial (People v. Aleman, 1994). In contrast, a number of other countries, such as Israel, Pakistan, Singapore, and Venezuela, allow the government to appeal acquittals (Office of Legal Policy, 1987).

However, note that the Fifth Amendment prohibition against double jeopardy does not mean that a person cannot be tried by two different types of courts on the same charges—for example, civil and criminal charges—or be prosecuted at both federal and state court levels.

In order for an appeal to proceed, the appellate court must determine that the appellant (i.e., the party bringing the appeal) has the legal right to bring the case; the opposing party, by the way, is called the appellee. This means that the court must determine whether the appellant has standing, meaning that the appellant has a legally recognizable interest in the case. Standing is defined as “the status of being qualified to assert or enforce legal rights or duties in a judicial forum because one has a sufficient and protectable interest in the outcome of a justiciable controversy and usually has suffered or is threatened with actual injury” (Merriam-Webster, 1996).

Here is an example of standing: In wrongful death lawsuits, people who are legally defined as family members of the deceased have standing to file the suit, whereas others generally do not. In San Francisco, the death of Diane Whipple, who was mauled to death by a neighbor’s dog, raised the issue of standing. Whip- ple’s long-term domestic partner, Sharon Smith, wanted to sue the owners of the dog for wrongful death but did not have legal standing to do so. Coincidentally, two months before Whipple was attacked, California legislator Carole Migden had introduced legislation to expand the California legal definition of family members to include domestic partners. If the legislation passes, domestic partners would have legal standing to sue for wrongful death in California (Hoppin, 2001). Box 15.5 describes a historic example of the controversy that the issue of standing can embody.

If a court determines that the appellant has standing, the case may proceed. If not, the court dismisses the case for lack of standing, which means only that this particular appellant cannot raise the issue. However, another appellant who has standing is free to raise the same issues as part of a new case.

THE STEPS OF AN APPEAL

When a trial ends in conviction and the defense decides to appeal, there are certain steps which must be followed, as listed below. Depending on whether the appeal is filed in state or federal court, and the particular practices of the jurisdiction in which the appeal is filed, there will be variation in the amount of time allowed for each step, and the exact procedures the defense must take to complete each step:

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The Steps of an Appeal 475

BOX 15.5

Without a Leg to Stand On: The Issue of Standing in the Corn Tassels Case

The year was 1830, and the Cherokee Nation was in serious conflict with the state of Georgia (before the Trail of Tears, during which they were forcibly marched from their ancestral home- land to Oklahoma, the Cherokees lived in Georgia, where they were viewed as a nuisance by Georgians). Although the Cherokees, and other Native American nations, considered them- selves to be sovereign, the state of Georgia had passed a law allowing them to assume jurisdic- tion when crimes occurred on Cherokee land.

Among those arrested by the state under its new law was Corn Tassels, a Cherokee Indian who was accused of killing another Cherokee. The Cherokee were understandably upset because they had intended to prosecute Corn Tassels themselves and viewed the state’s actions as pure kidnapping. Imagine how upset Americans would be if a foreign nation came into this country and arrested and prosecuted an American citizen for a crime committed in the United States.

In September of 1830, the Georgia state court found Corn Tassels guilty and sentenced him to hang. An attorney working for the Cherokee Nation drafted an appeal, arguing that treaties signed with the Cherokees guaranteed them the right to self-government and that included control of their criminal justice system. The Cherokee fought, and predictably lost, appeals in the state of Georgia, and then sought a final appeal with the relatively new U.S. Supreme Court, filing a writ of error that argued that Georgia’s actions were in error and vio- lated the U.S. Constitution.

The U.S. Supreme Court granted the writ, and demanded that Georgia appear before their court to explain why the Corn Tassels situation “should not be corrected.” But Georgia officials refused to submit themselves to any scrutiny, saying that “interference” by the U.S. Supreme Court “in the administration of the criminal laws of this state . . . is a flagrant violation of [Geor- gia’s] rights.” On December 24, 1830, ten days after the writ had been granted, Georgia officials executed Corn Tassels, rendering the appeal moot.

This case illustrates several concepts of courts. First is the idea of standing, which is pos- sessed only by individuals who face actual injury or harm and who have a protectable interest in a case outcome. Even though the Cherokee Nation wanted the case to go forward, it could not because the individual with standing (i.e., Corn Tassels) could no longer press the case forward or benefit from the Court’s intervention. It is irrelevant that his tribe and attorneys wanted to keep the case moving ahead in hopes that the U.S. Supreme Court would invalidate Georgia’s law. It was also irrelevant that Georgia had directly interfered with the U.S. Supreme Court’s review by prematurely executing the defendant. What was important was that Corn Tassels him- self could no longer maintain the case and so the appeal was rendered moot.

The case also illustrates the relative powerlessness of the U.S. Supreme Court when faced with Georgia’s extreme defiance. At that time, the High Court was fairly new and had not estab- lished its power or gained respect from the other branches of government or the American citizens. Instead, the High Court was somewhat afraid to anger the executive or legislative branches of a gov- ernment that was rather hostile towards Native Americans. Today, this situation would not occur. If the U.S. Supreme Court ordered any state to appear and explain a situation, no state would feel that they could ignore such a request and act on their own (Norgren, 1996, pp. 60–62, 95–98).

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• The appellant files a notice of appeal within the specified time after the conviction.

• The appellant files the trial court record (e.g., the transcripts) and support- ing documents with the appellate court.

• The appellant and appellee each file briefs. A brief outlines the basic facts of the case, the argument being made by the party filing the brief, and lists cases serving as supporting precedents. Briefs are not so named because they are short memos; indeed they can be quite lengthy. Instead, the name reflects the fact that they “brief ” the court on the case.

• In most courts, the judges will hear short oral arguments from the parties in the case. Typically, each side is given half an hour to present its case.

• When the court issues a decision, it is usually accompanied by a written opinion describing the court’s reasoning for the decision.

Timeliness of Appeal

Procrastination is not an option when seeking appellate review. Failure to file an appeal by the proper deadline will cause the appeal to fail regardless of its legal mer- its. The issue of timeliness is particularly important in capital cases, where clients can pay the ultimate price for their attorneys’ failure to file the appropriate court

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476 Appeals

BOX 15.6

When Timing Is Everything

Russell Tucker was convicted of murder and sentenced to die. The defense attorneys handling his death penalty appeal failed to file some of the legal documents relating to his appeal by the deadline required in the state of North Carolina. When Tucker’s execution date was set, attorney Steven Allen learned that he and the other attorney had missed the deadline by less than a week. Failure to meet the deadline meant their client faced certain execution. What Allen did not real- ize was that his co-counsel, David B. Smith, had sabotaged the client’s appeal by deliberately missing the deadline and causing Allen to miss the deadline. Recall that earlier in Step 6 we read that David B. Smith had decided that their client “deserved to die” (Nowell, 2000, p. A14).

David B. Smith’s misconduct came to light when he decided to reveal his role in the case, noting that he had “failed” and that he had to tell the truth. Smith reported that when he realized his fellow attorney Allen had misunderstood the filing deadline for the appeal, he avoided work- ing on the case or correcting Allen’s misperception about the deadline. After learning of Smith’s admission, Allen appealed, arguing that Tucker should be allowed to have new attorneys appointed. The prosecution has opposed the appeal, and as of this writing the status of the appeal is not known (Nowell, 2000).

Source: Adapted from Nowell with permission of the Associated Press.

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The Steps of an Appeal 477

documents on time. Inexperienced and/or overworked attorneys have inadvertently missed such deadlines, but the case in Box 15.6 describes a very different story.

The issue of timeliness is particularly well-illustrated in death penalty cases where defendants sentenced to death later wish to appeal on grounds that new evi- dence will demonstrate “actual innocence.” The incidence of such appeals has been increasing since the advent and improvement of technology such as DNA testing, which can be applied to evidence saved in cases prosecuted before DNA technology was available (or DNA analysis was sufficiently reliable) to be used to exculpate the defendant.

Whether through exoneration via DNA evidence or other types of evidence, a number of people have been freed after mistaken convictions: “Nationwide, eighty-five death-row inmates (or more than one percent of the approximately 6,000 men and women sentenced to death since the U.S. Supreme Court reinstated the death penalty in 1976) have been released from prison after their convictions were overturned by evidence of innocence” (Hart and Dudley, 2000, p. 2). As noted by one congressman, “innocent persons served an average of seven and one- half years on death row” (Leahy, 2000, S198). Nevertheless, such appeals are still relatively rare, and rarely successful. However, given increasing public concern with the possibility of mistaken convictions in death penalty cases, this situation could change in the future. The issue is also troubling to at least one Supreme Court jurist: Justice Sandra Day O’Connor commented at a speech to a lawyer’s group that: “If statistics are any indication, the system may well be allowing some innocent defendants to be executed” (Whitworth, 2001, online). Justice O’Connor has supported the death penalty in most, although not all, cases involving capital punishment that have come before the court during her tenure.

An appeal based on the claim that evidence of “actual innocence” has been dis- covered post-trial must be filed within a specified time, which varies according to the nature of the appeal (e.g., an appeal for retrial, a writ of habeas corpus, or another type of appeal) and the jurisdiction. According to The Innocence Project, “thirty- three states require that claims of innocence based on new evidence be brought within six months of the final appeal” (Scheck, Newfield, and Dwyer, 2000). Of the remaining states, seven will permit such appeals at any time (Hart and Dudley, 2000).

So what happens if the evidence is not discovered until the deadline for appeal has passed? An inmate on death row cannot apply directly to a federal appellate court with a claim of new evidence of actual innocence. Instead, the inmate must first exhaust all state remedies, according to the U.S. Supreme Court (Herrera v. Collins, 1993). More critical from the defense perspective was the Supreme Court’s ruling in Herrera, a capital case, which established that a mere claim of actual innocence is not sufficient in and of itself to trigger appellate review. Rather, the court held, there must be a violation of constitutional rights: “Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free standing claims of actual innocence” (Herrera v. Collins, 1993, p. 401). The justices rejected appellant Herrera’s claim that the

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constitutional issue at stake was the fact of his impending execution despite new evidence of his innocence. Herrera, who had been convicted of killing two peace officers on the basis of both physical evidence and his own confession, did not dis- pute the propriety of his conviction given the evidence presented at the time of trial. Rather, he contended that eight years after conviction, he now had exculpatory new information in the form of sworn affidavits attesting that his deceased brother was the actual killer of the officers: an affadavit from his nephew, who was nine at the time of the crime, swearing that he had seen his father killing the officers; and an affidavit from a family friend who stated that the dead brother had admitted the mur- ders to him. Herrera argued that he was innocent and that therefore, his execution would constitute a violation of the Eighth and Fourteenth Amendments.

In the Court’s opinion that affirmed Herrera’s conviction and sentence, the justices noted that the original evidence presented at trial strongly indicated his guilt. They also questioned the fact that the affidavits consisted of hearsay and con- tained contradictory information, and that no explanation was offered for why the affidavits had not been produced years earlier at Herrera’s trial. The Court, in deny- ing his petition for examination of the claimed new evidence, stated that the proper avenue was to seek recourse in state courts, but that given that the timeline for fil- ing such an appeal was long past, he should explore other options: “History shows that the traditional remedy for claims of innocence based on new evidence, discov- ered too late in the day to file a new trial motion, has been executive clemency” (Herrera v. Collins, 1993, p. 417).

APPEAL OF ISSUES ALREADY ARGUED

The general legal principle underlying appeals of criminal law and procedure is that the issue being appealed must have been raised earlier at trial. For example, during the trial the defense may raise an objection to the prosecution’s introduction of a particular witness. Another common basis for appeal is the assertion that the jury was not properly instructed. However, if there was no objection to the instruc- tions given at the time of trial, there is generally no basis for raising the issue de novo. There are some exceptions, such as when the claimed error is so blatant that, if true, it would represent a fundamental deprivation of due process.

In general, only the final judgment of a trial court can be appealed. An excep- tion to this is appeals that are made during the course of the trial, which are called interlocutory appeals. These address issues that require a decision by the trial judge before or during the course of trial, but which do not end the case (so-called interlocutory orders). In general, there is no right to interlocutory appeal except in certain specified circumstances. The procedural rules governing interlocutory appeals require that the trial court decision to be appealed must be final before it can be appealed, and the issue must be collateral to the merits of the case (which are appropriately the subject of trial). The issue must be so significant that waiting

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The Source of the Error 479

till the end of trial for review would significantly compromise an important right of the appellant; in other words, interlocutory appeals are used in situations where “immediate review is absolutely necessary to effectuate the purpose behind the claim” (Johns, 1982, p. 385).

For example, in cases where the defendant alleges that a retrial would violate the prohibition against double jeopardy, the defense will first file a motion in trial court seeking the case dismissal on those grounds. If the trial court denies, the defen- dant may then make an interlocutory appeal to the appropriate appellate court. If the procedural requirements are met, the appeal can be considered because the purpose of the prohibition against double jeopardy would be significantly undermined if the defendant had to await appeal until after trial (Abney v. United States, 1977).

THE SOURCE OF THE ERROR

An appeal typically asserts that an error occurred in the trial judge’s interpretation of the law, or in the conduct of trial proceedings. For example, the defense may argue on appeal that the judge improperly overruled a defense objection to the prosecutor’s cross-examination. But what if the defense committed the error, by failing to present a crucial piece of exculpatory evidence, or failing to object to a prosecution tactic? As a general rule, the appellant cannot appeal on the basis of his or her own error.

So where does that leave defendants who wish to file an appeal on the basis of the claim that they were denied “effective assistance of counsel” during their trial? In this instance, the claim is generally filed by a new defense attorney handling the defendant’s claim at the appeals stage. Of course, this raises the critical question of what constitutes “ineffective assistance of counsel.” What if a defendant represents him or herself, and does a poor job of it? Can the defendant later claim that he or she was denied effective assistance of counsel?

Harmless Error

The fact that an error occurred earlier in the criminal justice process does not in and of itself represent a denial of due process. If it is established that an error was made, the important question is whether it constitutes harmless error—that is, an error that the court determines did not significantly change the outcome of the case. In contrast, the court may determine that the problem constitutes reversible error—that is, a legal error that must be remedied by new legal proceedings.

In Strickland v. Washington (1984), a defendant convicted and sentenced to death for murder appealed on the basis that he had received ineffective assistance of counsel at trial, in violation of his Sixth Amendment right to counsel. The U.S. Supreme Court reviewed the case, and the Court’s opinion discussed how this right should be evaluated. Does the right to counsel mean the right to a defense which is

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“effective”? What defines an effective defense strategy—one which is substantially free from error? Consider the Strickland court’s perspective on effective assistance of counsel:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome (Strickland v. Washington, 1984, HN10).

You Be the (Appellate) Judges: Harmless Error?

In 1984, Calvin Burdine was tried for the murder of his former roommate. Because the killing occurred during the course of a robbery, the prosecutor filed capital murder charges, and Burdine faced the possibility of a death sentence if his jury convicted him. Burdine admitted participating in the robbery, but claimed that an accomplice committed the murder. Burdine’s trial in a Texas state courtroom lasted a little over a week, at the end of which the jury swiftly convicted him, and shortly thereafter sen- tenced him to death. Throughout his trial and the initial unsuccessful appeal of his death sentence, Burdine was represented by an attorney named Joe Cannon.

More than a decade later, Burdine’s new attorney, Robert McGlasson II, dis- covered that Burdine’s trial attorney had napped at the defense table during the trial, sometimes for as long as ten minutes. Three jurors and the court stenographer attested to the fact that Cannon’s eyes were closed and his head down, and the trial transcript documents long periods during the trial where Cannon made no objec- tions or comments of any kind (Hoppin, 2000).

Does this constitute ineffective assistance of counsel? Yes, according to a Federal District Court judge, David Hittner, who overturned Burdine’s conviction in 1999 after noting that “a sleeping counsel is equivalent to no counsel at all” (Robbins, 2000, online).

When the prosecution appealed this reversal, the matter went to the Court of Appeals for the Fifth Circuit. In a split decision, two of the three judges held that, despite the fact that Burdine’s attorney had napped during “substantial portions” of his trial, this was not in and of itself proof that he was denied effective assistance of counsel. Rather, the court said, the question was whether his attorney’s naps had in fact prejudiced his defense! Burdine had not proved that, the court ruled; therefore, the napping must be considered “harmless error.”

McGlasson submitted a relatively rare type of appellate petition asking for fur- ther review of the case by the Fifth Circuit Court en banc (that is, a rehearing in

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The Source of the Error 481

front of the full panel of Fifth circuit judges). Burdine’s appeal was supported, but Texas prosecutors appealed to the U.S. Supreme Court. In June, 2003, the Justices issued a ruling that allows Burdine to have a new trial (Egelko, 2002).

The Burden of Proof

The appellant bears the burden of presenting and defending the legal worthiness of his or her appeal. After the appellant files the legal brief describing the facts of the case and the basis for the appeal, the appellee will file his or her own brief with the court in reply. The appellant will have the chance to file another document in response, and the court will decide the matter with or without hearing oral argu- ments from the parties, depending on how the court decides to handle the case. During oral arguments, appellate judges have the opportunity to question counsel for the government and the defense. Sometimes, the appellate justices on the panel begin firing questions at the attorneys well before they have completed their oral presentations. It is important therefore to present one’s important points quickly, and to be able to think quickly on one’s feet in order to answer questions that some- times appear to be random and unrelated to the case at hand. Unlike the overt attempts to appeal to emotion that can characterize attorney presentations before a jury (or judge) at trial, appellate arguments have a distinctly different character, reflecting the difference in audiences.

Although appellate courts originally entertained oral arguments on appeals in virtually every case, the volume of appeals that are submitted to courts today pre- cludes oral arguments in every case; in many cases the issues are sufficiently straight- forward that oral arguments are not considered necessary. The trend toward

BOX 15.7

Why Spelling Matters

American appellate courts in the nineteenth century could be sticklers for detail when they reviewed trial court records. Legal historian Lawrence M. Friedman provides an example of what he called “record worship” run amuck:

Harwell, the defendant in a Texas case decided in 1886, had been arrested and convicted for receiving stolen cattle. The Texas court reversed, because, among other things, the jury found the defendant “guity” instead of “guilty.” In 1877, the same court reversed a conviction because a jury carelessly wrote, “We, the jury, the defendant guilty,” leaving out the word “find.” This same court, however, magnanimously upheld a conviction of “guily” in 1879, proving that a “t” was less crucial than an “l” in the common law of Texas. (Friedman, 1985, p. 400)

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“nonargument” appellate review has increased in recent years, and today most appeals are decided by the court without hearing arguments (Cecil and Stienstra, 1987).

Standards of Appellate Review

How do appellate court judges evaluate the issues brought to them for review? It depends on the type of legal issue that is being appealed, and the nature of and con- text in which it is raised: An appellate court will use the appropriate standard of review, a legal standard of proof which is used to assess the arguments made in the appeal. It is important to understand the basis for appellate review: the assertion that a violation of a statute or constitutional provision has occurred. Depending on this, the legal issue is said to have arisen in a “statutory” or “constitutional” con- text. In turn, the context of the issue determines what standard of proof is applied during appellate review.

THE OUTCOME OF THE APPELLATE PROCESS

The principle of stare decisis gears the appellate courts toward affirming lower court decisions, unless the appeal presents sound legal reasons for overturning the decision. Appellate courts appreciate the value of legal consistency and the impor- tance of finality.

When an appellate court affirms (that is, confirms) a lower court’s decision, the appellant has lost the case. When this happens, it may be possible to petition a higher- level appellate court to further review the matter. However, this is not an automatic process or a matter of right. The higher appellate court is free to deny the petition, and generally will grant the petition only if there are compelling legal issues at stake.

If the appeal is decided in favor of the appellant, a variety of possible out- comes may occur. The lower court’s decision may be modified in part, rather than simply affirmed or reversed. The lower court’s decision could be reversed, mean- ing that the appellate court has “set aside” the lower court’s decision without requiring any further legal proceedings. In contrast, the case may be reversed and remanded (returned) to the trial court for further legal proceedings consistent with the opinion of the appellate court. This could mean that the defendant receives a new trial or sentencing hearing wherein the legal issues raised on appeal are reliti- gated consistent with the appellate court’s decision. For example, if the defendant wins an appeal on the basis that testimony from an expert witness was improperly disallowed at the original trial, the new trial provides the opportunity for the expert witness to present the relevant testimony. Finally, an appellate court could simply remand the case back to the trial court without reversing the lower court’s judg- ment. In this instance, the appellate court is essentially instructing the trial court to conduct further legal proceedings to address the issues raised on appeal. Figure 15.2 depicts the possible outcomes.

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The “Court of Last Resort” 483

THE “COURT OF LAST RESORT”

The United States Supreme Court was created pursuant to Article III of the Constitu- tion, and serves as the ultimate interpreter of the U.S. Constitution. The Court also decides legal issues arising from federal statutes. The U.S. Supreme Court is the final appellate court, sometimes referred to as “the court of last resort.” The Supreme Court plays a unique role in the pantheon of American appellate courts because of its authority and influence on many of the most significant legal, political, and social

Appellant loses:

Appellate court affirms lower court decision

Outcomes favorable to appellant:

Appellate court: • Modifies the lower court’s decision • Reverses (“sets aside”) the lower

court’s decision • Reverses and remands the case; the

case returns to the trial court for further proceedings

• Remands the case. The lower court decision is not overturned, but the case is returned to the trial court for further proceedings

Appellate Court Decisions

FIGURE 15.2 Appellate court decisions

BOX 15.8

Appellate Court Philosophy

According to one attorney, public expectations of the appellate process can be quite different from the reality of the process:

Some clients, having been propagandized for years by movies and television programs showing people winning appeals on “technicalities,” believe in the “magic wand” theory of the law. That is, a cunning lawyer will throw a mass of issues at an appellate court, wave a magic wand, and the judgment is reversed. Real life is different. Appellate courts try their hardest to uphold judg- ments, because there is a great social interest in the finality of judgments. Instead of looking for ways to reverse, appellate judges look for ways to affirm. The appeals that win are those which show the court that something fundamentally unfair or improper happened in the trial court, and the appellate court most likely will then reverse the judgment in order to preserve the integrity of our system of law. (Cox, 1997, online)

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issues in the nation. Although the Supreme Court usually operates in relative obscu- rity, the presidential election of 2000 focused worldwide attention on the court, rais- ing public consciousness about the critical role of the court in the nation’s legal and political affairs.

U.S. Supreme Court Structure and Process

The U.S. Supreme Court includes nine justices, including a chief justice, who are appointed by the president of the United States for life. Unlike other appellate courts, which must review all cases submitted to them, each year the Supreme Court grants only a small proportion of the requests for certiorari (that is, requests for review) submitted for its consideration. For a case to be granted review by the Supreme Court, at least four of the nine justices must agree to accept the case. When the Court agrees to accept a case, the acceptance is referred to as “granting certiorari,” commonly abbreviated as “cert.”

The U.S. Supreme Court considers legal questions involving constitutional issues or matters involving federal laws; it does not review legal issues that concern only state constitutions or statutes. With hundreds of cases submitted to it each year, the Court must carefully select the cases that present legal issues of the great- est significance.

Cases that involve the application of constitutional rights in new contexts often merit the Court’s attention. This is where the justices consider how to apply

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This photograph shows the courtroom of the Supreme Court Building, where the U.S. Supreme Court has sat since 1935. In this country, there is no appeal available beyond the U.S. Supreme Court. Few cases make it this far—only about 100–200 a year—meaning that the majority of cases are governed by decisions rendered in lower federal courts or state supreme courts. SOURCE: Photograph by Franz Jantzen, collection of the Supreme Court of the United States. IS

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The “Court of Last Resort” 485

constitutional principles, created more than two centuries ago, to modern-day issues. For example, how should the Second Amendment’s right to bear arms, which was written in the era of muskets, be applied in a world with submachine guns (see Box 15.9)? How can the Fifth Amendment’s privilege against self-incrimination be applied in cases where police request a DNA sample from an unwilling suspect? How can a defendant’s Sixth Amendment right to a fair trial and impartial jury be protected in an age of widespread, detailed media reporting on criminal cases? How does the Fourth Amendment’s prohibition against unreasonable search and seizure apply when law enforcement agents use new heat-sensing technology to track the movements of a suspect inside his or her home? These are just a few of the difficult questions that have been posed to the U.S. Supreme Court.

The U.S. Supreme Court also frequently reviews appeals that request the Court’s assistance in resolving contradictory lower court precedents. For example, federal appellate courts in different circuits may have treated similar legal issues in very different ways, leading to inconsistent decisions between circuits. In some cir- cumstances, the issue is of such significance that the Court will grant certiorari to a case that provides an opportunity to address jurisdictional inconsistencies (see Box 15.10 for insight into what the justices value when considering petitions submitted

BOX 15.9

The U.S. Supreme Court and the Second Amendment

Consider the following provision of the Second Amendment to the U.S. Constitution: The . . . right of the people to keep and bear arms shall not be infringed . . .

These famous words are the source of the continuing and intense public controversy over gun crimes and gun control. What do these words mean? How should they be interpreted in the con- text of modern society? Questions such as these are at the heart of the debate over public policies on gun control. Many people argue that the intent of the framers of the Constitution is easily dis- cernible in the language of the Second Amendment, and thus that the right to bear arms is absolute and cannot legally be subject to restraints in the form of gun control policies. Others argue that the framers never contemplated a world where sophisticated weapons that can kill scores of people exist—weapons which are relatively easy to obtain by members of the public.

Yet many people may be unaware of the fact that the U.S. Supreme Court has never inter- preted the Second Amendment as providing an absolute right to bear arms, despite having con- sidered the issue several times (Etzioni, 2001). Rather, the justices have determined that policies regulating various aspects of gun acquisition, ownership, and use are constitutionally accept- able. Thus, people can be subject to background checks before they purchase guns. Individuals can be required to apply for a permit before they are allowed to carry a concealed weapon. People can be restricted from carrying guns in particular places (for example, airports, public buildings, school); and restricted from owning certain types of guns or ammunition. State and local gov- ernments can ban certain types of firearms from being sold, transferred, or owned—as the Dis- trict of Columbia did when it banned handguns in 1975 (Walker, 2001).

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for possible review). For example, the Court has considered several cases involving conflicting federal circuit court definitions of various elements of federal crimes. The Court also granted certiorari to two cases to resolve a “circuit split” on the question of whether peace officers possess qualified immunity from civil lawsuits alleging federal civil rights violations. In one such case, police officers invited a Washington Post reporter to accompany them while they served a search warrant on a probationer at his home. Unfortunately, the home was actually the residence of the culprit’s star- tled parents, who took exception to being awakened in the pre-dawn hours by several armed plainclothes officers, while the reporter snapped photographs. Although the photos were not published, the parents sued the police department, alleging that the media presence constituted a violation of their Fourth Amendment rights (see Charles Wilson v. Harry Layne, [1999] and Hanlon v. Berger [1998]).1

Another type of legal issue that may be appealed all the way to the Supreme Court is an instance where state or federal statutes clash with each other, or with the Constitution. One such example exists in California, where voters recently approved an initiative allowing marijuana use for medicinal purposes by patients whose health-care provider had authorized this. After passage of this measure, Cal- ifornia police and prosecutors found themselves in an awkward position; if they continued “business as usual,” pursuing possessors and purveyors of marijuana,

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BOX 15.10

U.S. Supreme Court Rule 10: Considerations Governing Review on Writ of Certiorari

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

• (a) A United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an impor- tant federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

• (b) A state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

• (c) A state court or a United States court of appeals has decided an important question of fed- eral law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Source: Supreme Court of the United States (online).

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Discussion Questions 487

they appeared to be violating the new state law; but if they failed to pursue such cases, they would not be complying with federal anti-drug laws. This has led to a variety of responses on the part of California police and sheriff’s departments: In some locales, law enforcement proceeds against marijuana cases much as it did before the initiative passed; in other areas, police have issued “medical marijuana user” cards for patients to display to officers in the event they are stopped and mar- ijuana is found in their possession (Hornblower, 1999).

In May 2001, the U.S. Supreme Court held unanimously that federal drug laws permit no exceptions for medical marijuana use. The justices rejected the argument that marijuana use for medicinal purposes should be permitted under a “medical ben- efits” exception to the Federal Controlled Substances Act, finding no conclusive evi- dence of such benefits. The Court did not directly address the legal viability of Proposition 215, but the Court’s decision provides the legal go-ahead to California and federal authorities seeking to shut down marijuana clubs that provide marijuana for medical use by patients (Chiang, 2001). Despite this decision, related legal issues remain, such as whether patients can claim a “necessity” defense if facing prosecu- tion for medicinal use of marijuana. Thus, it is likely that these issues will be part of the appellate docket, whether at the state or federal court level, in the future.

CONCLUSION

The appellate process is a critical step in the journey of some criminal cases through the courts. Appellate review provides judicial oversight of trial proceed-

BOX 15.11

The “Volunteers”

Most death row inmates await the results of their appeals with baited breath, hoping for the opportunity for a new trial or at least a temporary stay of execution; others reject such appeals. Such “volunteers” for the death chamber insist that they want no appeals, that they want to get on with the business of death. Some say they crave some small element of control over their lives, or that they would prefer actual death to the living death of a “life” sentence. Some change their minds, or may never have been serious in the first place; others take matters into their own hands and commit suicide before they can be executed.

The truly dedicated “volunteers” are a breed apart. During the penalty phase of his trial, convicted killer Steven Judy had this to say to his jurors: “You better vote for the death penalty, because if you don’t, I’ll get out, and it may be one of you next, or your family.” He was exe- cuted by the state of Indiana in 1981 (O’Neill, 1998).

Robert Massie was executed at San Quentin in California on March 27, 2001, after instruct- ing his attorneys not to file appeals of his death penalty conviction. One newspaper account reported that Massie “was an eager participant in his execution this morning, helping medics find the veins needed to inject the lethal drugs that took his life.” (Zamora et al., 2001, p. A1)

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ings, precedent on new areas of law, and guidance to lower courts on the applica- tion of legal theory to new questions of fact. Although few criminal cases make it to trial and fewer still are reviewed by an appellate court, the impact of appellate rulings is felt throughout the criminal justice system as a whole. Appellate rulings shape both the substance and procedure of the criminal justice process, revealing as they do so the richness and complexity of the court system.

We have almost come to the end of our journey through the criminal court system, but we have one final, and very important, stop: the juvenile court system. Now that you are knowledgeable about the criminal courts and the steps of the criminal justice process for adult defendants (and juveniles who are prosecuted as adults), you are in a good position to learn about the juvenile courts. In the next chapter, you will learn how the juvenile justice system differs in significant ways from the adult criminal justice system, and the implications of this for both juve- nile offenders and societal efforts to prevent juvenile crime.

D I S C U S S I O N Q U E S T I O N S

1. How are appellate courts different from trial courts? How do the functions, roles, and outcomes of appellate courts set them apart from trial courts?

2. Given the starring role that stare decisis has in our legal system, how do appellate courts con- tribute to the dynamic, changing nature of the law?

3. Consider what you’ve learned about the controversy on appellate courts as policy-making forums. Do you think that courts have the ability to effectively shape policy, or not? Does judicial policymaking interfere with the legislative branch’s function, or does it complement it?

4. In what ways are appellate courts dependent on other criminal justice actors, such as members of the courtroom work group, police, and corrections personnel, to implement the rulings that appellate courts produce? In what ways can the above-mentioned criminal justice players help translate “law on the books” into “law in action”?

5. In Box 15.1 you read about public-housing tenants who face possible eviction because of the drug crimes of people they knew. What are the constitutional issues raised by such a policy, and what is your opinion of the impact of this policy?

6. Why is the “Great Writ” a very powerful legal tool? What does “habeas corpus” mean (quick, think of the answer without peeking at the glossary)? When a petitioner makes a habeas appeal, what is he or she asking the government to do?

7. What is the basis for the power of judicial review, and what are the limitations of this power?

8. Imagine you are a defendant in a criminal case (again, just as you did before in Step 12). Unfor- tunately, your trial resulted in a conviction. You are convinced that if you can just tell a higher court about the strange circumstances that resulted in an innocent person such as yourself being charged with a felony, you’ll win your freedom. But you know that you can’t simply contest your conviction on the grounds that you’re innocent, because you have no new evidence. Why not? What sorts of procedural issues are typically the basis for an appeal?

9. What does the concept of “standing” refer to, and why is it a key consideration in appellate litigation?

10. Consider what you’ve learned from earlier sections of the book about capital cases, the quality of defense representation in such cases, and the evidence that innocent people have been sentenced to death. Given this, what role do you believe the appeals process has in capital cases? Should

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there be more avenues of appeal for defendants sentenced to death? Why or why not?

11. Consider the “sleeping lawyer” case. If you were an appellate judge, would you hold that a sleeping lawyer is by definition providing an inadequate defense, or would you require the defendant to prove that a napping counselor’s actions—or rather, inaction—prejudiced the chance of a fair trial?

12. Why is the United States Supreme Court called the “court of last resort”? What is the role of the court in our legal system? In what ways do the Court’s decisions influence everyone in America? Can you think of some examples?

N O T E

1. On the issue of media presence, the Supreme Court held: “It is a violation of the Fourth Amend- ment for police to bring members of the media or other third parties into a home during the execu- tion of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant” (Wilson v. Layne, 1999, p. 614).

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