One element in the Network’s assistance to members is paying to appeal a wrongful conviction or a judgment assessing damages against a member who acted in self defense. People harbor a lot of misconceptions about appeals and retrials and this month we asked our affiliated attorneys to help us dispel the myths. We asked —
If one is wrongfully convicted or ordered to pay damages without good reason, is he or she guaranteed that an appellate court will review the verdict? What are the leading reasons appeals are denied? If granted, how long before the court hears the appeal?
Is it true that even if a court of appeals orders a retrial, the second time before a judge and/or jury is rarely more successful than the first? If so, why?
Thomas C. Watts III
Thomas C. Watts, Inc.
8175 Kaiser Boulevard Suite 100, Anaheim Hills, CA 92808
714-364-0100
https://tcwatts.com
According to Bureau of Justice stats, the reversal rate in criminal matters is just under seven per cent (7%). In my state of California, the reversal rate is just slightly higher than the fifteen percent (15%) for the several states.
Against this backdrop, it must be understood that the appeals court does not rehear the case. The justices do not substitute their judgment for that of the trial court save for those items which they deem manifest disregard for the law or factual findings which cannot be supported by any evidence or the inferences arising therefrom. Instead, the appellate court takes up mistakes of law that may have occurred.
While there is a right to appeal any adverse judgment, there is a huge mouthful as to whether the appeal will be successful. In California, one can reasonably expect from 18 to 24 months to get an appeals decision. From there, the appeal can be appealed, but, whether the higher court such as the California Supreme Court will take the case is a different matter. This occurs in about six per cent (6%) of the matters. If you take the reversal rate times the acceptance rate, your conviction or restitution judgment has about a 3% rate of reversal.
The moral is to lawyer up with thoroughbreds at the earliest opportunity.
Randy L. Robinson
Attorney at Law
P. O. Box 682, Augusta, ME 04332
207-653-6749
In practice, appeals are rarely successful. One out of every twenty prevails. An appeal system is technically worth having, but just barely so. If it is not a criminal matter, there is a fee for an appeal, and there is also the cost of ordering a transcript, printing out the briefs, etc. It is rarely worth it.
As for how long it takes, that depends on how busy the court is and whether it thinks there is any merit to the appeal. It will review a criminal appeal, but it does not all that often ask for oral argument.
As far as the second time around, any serious issues will likely have been corrected by the grant of an appeal, so the odds might actually be better the second time around, but still, nothing is certain.
Cole B. Combs
Cole Combs Law Firm PLLC
5600 Bell St., Ste. 105, #298 Amarillo, TX 79109
806-318-8899
Well...it depends.
The first question is really two (a criminal conviction vs a civil damages award), and varies widely by state. There was a Department of Justice study back in 2010 that found about 2/3 of state criminal prosecutions were upheld on appeal, for various reasons. I can say for Texas the two largest appellate pitfalls at trial are:
1. For criminal matters, it’s failure to preserve error. This can be not objecting properly to evidence which should be inadmissible, not proffering the correct jury charge to the court, failing to make an offer of proof when defense evidence is wrongfully excluded, failing to fully develop reasons to strike a juror for cause, etc., but even then a defendant on appeal must show that the error likely caused the rendition of the wrong verdict. The “harmless error” issue is where most appeals are lost, because it’s really hard to show that but for the trial court doing X, the verdict would have been not guilty.
2. For civil matters, failure to preserve error also happens frequently. Most civil cases of this sort are lost at the discovery and pre-trial disposition stage. In Texas, if there’s no criminal prosecution then there is likely good grounds for a summary judgment motion, if not a dismissal for failure to state a claim. Spending the time and money on well-prepared depositions and use of force experts will win or lose the trial if it gets to that stage. I don’t know if anyone has done a comprehensive analysis of civil suits and appeals thereof for civil assault in Texas.
As to the second question, that’s impossible to answer without a particular fact situation, and even then a different jury might come to wildly different conclusions. If any attorney could say for certainty what any particular jury would do they would charge $100,000 an hour.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P. O. Box 70, Borden, IN 47106812-810-1234
https://ooleylaw.com/
With respect to state court matters in Indiana, the answer is that a guilty verdict after a criminal trial or an adverse civil verdict will receive some form of intermediate appellate review by our Indiana Court of Appeals if an appeal is filed. The next step in the appellate process would be an appeal to the Indiana Supreme Court. However, there is no guarantee the Indiana Supreme Court will review the matter after the holding by the Court of Appeals. This is simply a result of the fact that there are too many cases for the Indiana Supreme Court to review given its resources, and whether the particular issues involved have been previously addressed by the Indiana Supreme Court.
With respect to the review by the Indiana Court of Appeals, that review might be extensive or simply an affirmation of what occurred in the trial court without much analysis. The depth of analysis is simply based upon the unique circumstances of the case in terms of the facts, law, and how the trial court dealt with the case. The analysis at the Indiana Court of Appeals will also depend upon the quality of legal advocacy at the trial court and appellate court. However, under all circumstances, it is unquestionably the case that the Court of Appeals will be highly deferential to the rulings of the trial court judge and even more deferential to any verdict by a jury. An appeal to the Indiana Court of Appeals will take at least 4 to 6 months and likely much longer if oral arguments are conducted by the attorney’s in front of the Indiana Court of Appeals.
Even if successful on appeal, it is likely that any retrial will have the same result as the original trial unless there is some major change in the law or interpretation of the law that resulted from the appeal. However, we believe, at least in the civil context, a resolution or settlement of the case is more likely after an appeal. This might be a function of the parties growing weary of incurring attorney fees or developing a clearer understanding of the law to be applied to the case.
Jerold E. Levine
5 Sunrise Plaza Ste. 102, Valley Stream, NY 11580-6130
212-482-8830
http://www.thegunlawyer.net/
If one is wrongfully convicted or ordered to pay damages without good reason, is he or she guaranteed that an appellate court will review the verdict? What are the leading reasons appeals are denied? If granted, how long before the court hears the appeal?
Essentially, every trial verdict is subject to a right of appeal. In New York, verdicts of the type referenced here will come from the Supreme Court, and the Supreme Court Appellate Division will hear the appeal. The only question is whether the decision of the Appellate Division can be appealed to the highest New York court, the Court of Appeals. Appeals to that court require certain conditions, often involving permission to appeal.
Appeals of a trial judge’s decisions are guided generally by a standard known as clear error of law, or clearly erroneous. Appeals of a jury verdict relate mostly to whether the judge made a legal error in allowing the case ever to get to the jury, or in some cases juror misconduct. The most common reasons that appeals are denied is that the appellant cannot demonstrate that either (1) the trial judge made some kind of clear error regarding admission or exclusion of evidence, or that an error was significant enough to affect the case outcome, or (2) the evidence was not legally sufficient to allow the jury to get the case.
Is it true that even if a court of appeals orders a retrial, the second time before a judge and/or jury is rarely more successful than the first? If so, why?
Retrials usually favor the aggressor, the plaintiff or prosecutor. The reason for this is that, while the defender has a good idea of exactly how the other side will make its claims, the way that the defendant will try to avoid responsibility is not always clear to the plaintiff or prosecutor. This is most true in criminal court, where the pre-trial evidence discovery process is much more limited than in civil court cases. The prosecutor may not know for certain how the defense is going to “throw a wrench” into the prosecutor’s case, but if the case is retried, the defense has no surprises anymore, and criminal retrials almost always end in conviction.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.