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Appeals From a Criminal Conviction: Some Thoughts About the Process and Writing a Brief

Kish Law LLC

People who are trying to get their criminal conviction reversed or overturned often contact us at our criminal defense firm here in Atlanta.  Sometimes, they are trying to help a friend or loved one.  Often, the people who contact us are a little confused about the appellate process and how we prepare the written Brief for the appellate courts.  I am currently working on appeals in both the Georgia Court of Appeals and the United States Court of Appeals for the Eleventh Circuit.  Working on these two matters made me realize that I often spend a lot of time explaining the process or procedures to the folks calling our firm, and this realization made me wish that their original lawyers took the time to explain it all to the family or friends of the person who got convicted of a crime.

To begin with, many people think that when they appeal their case they get to argue all over again as to whether they are guilty of a particular crime.  For the most part, this is not true.  An appellate court does not decide guilty/not guilty.  Instead, a court of appeals mostly decides whether the process that led up to the guilty verdict was fair.  There are some cases where we raise what is called the “sufficiency of the evidence.”  In these cases, we are NOT claiming that the jury was “wrong.” Instead, in this type of appeal we are claiming that the trial judge was wrong for even letting the jury make a decision, because the evidence was legally insufficient.  This might seem like the same thing, but it is significantly different.  The important thing to remember is that appeals for the most part focus on whether the trial judge (or prosecutor, or defense lawyer) did his or her job correctly.

Here’s another thing to remember about doing an appeal.  Just about every court has deadlines for doing the initial paperwork on an appeal.  This is usually called the “Notice of Appeal”, and for the most part must be filed within 30 days in State court, and generally within 14 days in the federal criminal justice system.

Many times, we get contacted by a person or his family after a trial where the person was found guilty.  The Defendant wants us to get him or her out of jail with an appeal.  We then turn to what happened, sometimes reviewing materials about the case, often reading parts of the trial or pretrial transcripts.  When doing this we are looking to see if the trial judge or the lawyers made such large mistakes that there is a good chance we might win on appeal.  But far too often, we have to tell people that what appears to be a “good” issue is not so good because the trial lawyer failed to object, or preserve the issue.  That is an important rule: most appellate courts will rarely consider or agree with an issue if the question was not first brought up in front of the trial judge.  Many great issues are waived when trial lawyers forget to properly object, and at the correct time.

When we do agree to take on an appeal, we then need to move all the paperwork in the case over from the trial court to the appellate court. The rules then generally give us around 4-6 weeks in which to file our Opening Brief.  Many clients are naturally unhappy with everything that happened during their trial and want us to bring up each and every instance when rulings went against the defense.  After 34 years of doing these cases, I have come to the conclusion that such an approach is wrong.  When you lump in 5-10 unmeritorious issues along with your three best issues, the “good” issues get kind of lost in the Brief.  Judges are busy, so my feeling is to give them a real solid explanation of the 3 or 4 issues that truly have potential merit.

Finally, many people who contact us about a possible appeal from a criminal conviction want to know how long the process might take.  The Georgia appellate courts have certain “Terms of Court” by the end of which they are supposed to render a decision.  However, some exceptions to these Terms let the judges have almost up to a year in order to issue a ruling.  In the federal appellate courts, there are no time limits.  While many federal criminal appeals are handled there in 6-9 months, I have one case in a federal appellate court that has been pending for three years.

If you or a loved one got convicted and are considering an appeal, remember to talk with lawyers who know about and have experience with doing this kind of specialized legal work.

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