9 Things to Know About Oregon Criminal Appeals
by: Rjohnson • January 8, 2011 • no comments
1. Unlike a trial, an appeal is not about the facts
At trial, the parties offer evidence to resolve issues of fact. In a jury trial, the jury listens to the evidence and decides whether to believe it. When evidence is in conflict (one witness says that the defendant was not provoked before hitting the victim, and one witness says that the victim hit the defendant first) the jury decides whether to believe one version, the other, or neither. The jury is told what law to apply, and it reaches a verdict by deciding the facts and applying the law that the judge tells them to apply.
By contrast, an appeal is not about facts at all; the appellate court will usually refuse to reconsider facts. Rather, an appeal is about legal questions: whether evidence was admissible, whether a search by the police was legal, whether the jury instructions accurately state the law, or whether the sentence was calculated correctly. On appeal, whether a witness was lying or told an inconsistent story is insignificant, or even irrelevant. In order to win on appeal, the appellant (the party who lost at trial and brings the appeal) generally has to show that:
- the trial court made a mistake in a legal ruling
- the appellant objected to, and
- the outcome of the trial might have been affected.
Only the third point involves any consideration of the trial facts at all, and it is usually a minor consideration.
2. Appellate courts almost never care about "innocence"
"Innocence" is an issue that almost never comes up in court. Juries decide whether someone is "guilty" or "not guilty." "Not guilty" means, technically, that the prosecution failed to prove the defendant's guilt. In other words, a jury returns a "not guilty" verdict if they don't know whether the defendant committed the crime. (If the jury is convinced the person is innocent, they can't really say so. They still return a verdict of "not guilty," rather than a verdict of "innocent.")
And that is when guilt is directly at issue, at the trial. Appellate courts don't even go so far as to decide that the defendant is "not guilty." An appellate court might say that the defendant should receive a new trial because some of the evidence offered at trial was inadmissible and prejudicial. It might find that the sentence was longer than permitted by the sentencing guidelines. On occasion it might say that the evidence wouldn't have permitted a rational finder of fact to find the elements proved beyond a reasonable doubt. But it would never find that the defendant hadn't really done the crime. 'Actual innocence," as a technical legal term, is a relevant in a small percentage of federal habeas corpus cases, and possibly in post-conviction relief or other sort of collateral review, but otherwise, innocence is not even relevant.
3. A "Notice of Appeal" is a very small part of the appeal process
A "notice of appeal" is a short, simple document indicating that the party who lost at trial is subject to appeal. It is subject to short, strict time limitations, and the trial judge or trial attorney may emphasize that short time period to the defendant. Getting the notice filed on time is crucial, but not hard. If someone showed up in my office on 4:45 on the day the notice was due, I could get it filed that day.
Filing the notice is only a small part of handling the appeal. The lion's share of the work is filing the brief: the written argument to the appellate court. The brief cannot be filed until the transcript is prepared, and that could be weeks or months after the notice of appeal is filed. So, although the 'appeal' must be started quickly after the trial, most of the work is done much later.
4. Appeals are slow
Once the notice of appeal is filed, the court reporter needs to create a written transcript of everything said at trial. The attorney then needs to read the transcript and other documents in the court's file and write a written argument. The other party's attorney also needs to read the transcript, the file, and the opening brief, and write a response. Sometimes the appellant files another brief, and then the case needs to wait in line to come up for oral argument. If the issues are simple, everyone does their job quickly, and the stars align favorably, the appeal might possibly be decided in a year. A year and half is more likely, and no one would be surprised if it were twice that. And that's just the first layer of appeal, not counting a petition for review in the Oregon Supreme Court.
The appellant has a little control over some of that process, and no control at all over most of it. Everyone in the system is busy, and there are too many cases and not enough money to handle them promptly. That means that if the appellant is a criminal defendant serving a term in jail or prison, the sentence might be over before the appeal is decided. That is not a fair outcome, but it's the way the system works.
5. The real work is the brief, not the oral argument
Oral argument is dramatic. Most appellate arguments in Oregon take place in the Supreme Court Courtroom, which is a beautiful courtroom with ornate wood décor, stained glass, and an imposing bench with seating for seven black-robed Justices. At its best, oral argument is an eloquent and precise dialogue between the court and counsel about an intricate and important question of law.
But oral argument is not where the cases are decided. Appellate judges often say that most cases are decided on the briefs, and oral argument makes no difference in the outcome. Oral argument is fun, but the real work is in providing a strong written argument in the appellate brief.
6. The trial court is the foundation for the appeal
It is rare that I raise an argument on appeal that trial counsel didn't develop and argue to the trial judge. Appellate courts will usually decline to consider argument if it is "unpreserved," that is, if it wasn't presented to the trial judge first and rejected. Not only must the argument be preserved, but the factual basis for the argument must be developed in the trial court. Appellate courts do not hear evidence or decide the facts. For example, suppose that the argument on appeal is that the state crime lab uses inaccurate drug-testing procedures and the results of those tests should not have been admitted at trial. If the party objecting to the test results does not offer evidence about what the crime lab did, then the appellate court won't even consider the argument. So, an appellate attorney is powerless without the prior assistance of the trial attorney.
7. Plea-bargains usually cannot be appealed
A plea-bargain is an agreement between the state and the defendant; typically the defendant agrees to plead guilty to some of the charges, and the state agrees to recommend a particular sentence or dismiss other charges. By statute, the issue of the defendant's guilt cannot be raised on appeal, (although it can be in other proceedings) and the agreed-upon terms of the sentence cannot be appealed even if those terms are illegal. So the plea-bargain can involve a sentence that is longer than permissible for a particular crime, and even that cannot be appealed.
There are two instances when an appeal is possible following a guilty plea. The first is a "conditional guilty plea," in which the defendant reserves the right to appeal one or more specific rulings by the trial judge. If the appeal is successful, the guilty plea can be withdrawn. Second, any part of the sentence to which the defendant did not agree can be appealed the same as any other sentence. But, because the prosecution wants to avoid appeals and further legal proceedings, the plea-bargain often prevents an appeal.
8. An appeal may not help you
An appellate court has limited power over the case. Usually, if it decides that an error occurred, it will send the case back to the trial court for some additional proceedings. That may result in a new trial with a change in the evidence admitted or the instructions to the jury. The appellate court usually won't send a case back unless it thinks that the new proceedings might have a different outcome, (such as an acquittal or a shorter sentence), but that is no guarantee. Usually things are likely to turn out better for the defendant, and sometimes can't possibly be worse. For instance, if the Court of Appeals finds that no rational jury could have convicted defendant, it will undo that conviction, and it cannot be reinstated. If the Court of Appeals finds that the trial court failed to apply a sentencing rule that would benefit the defendant, then a new sentencing is likely to result in a shorter sentence. But if a longer sentence is lawful, then the sentencing court could impose a worse sentence after appeal, leaving the defendant sorry for having appealed.
9. An appeal is not the end
An appeal is a specific and limited procedure to attack legal rulings made by the trial judge. Because some sorts of injustice are not reflected in the rulings of the trial judge, those injustices cannot be the subject of appeal, but sometimes can be raised in another proceeding. The most common post-appeal attacks on a conviction are post-conviction relief and federal habeas corpus. Those procedures can be used to challenge the validity of the defendant's plea, performance of the defendant's attorneys, misconduct by the police or prosecutors, or violation of federal rights such as the right to a jury trial or to confront or cross-examine witnesses. Although appeals, post-conviction relief, and federal habeas corpus overlap somewhat, each of the three can address issues that cannot be addressed in the other two.
Rankin Johnson IV is a Portland criminal defense attorney, handling primarily appeals, post-conviction relief, and federal habeas corpus. www.briefwright.com
