hourglass.JPGOne of the problems with appellate law is that clients either show up too late or early. Some clients show up too late and too early.

Too late is after the trial attorney has screwed things up, after a deadline has passed, or after the client took things into his own hands and dabbled in his appeal.

Too early, is when the conviction has just happened and the transcript is not ready yet where nobody can say exactly what the errors were, if any.

Too late and too early is after the trial lawyer screwed things up, no transcript is available yet, and the deadline to file the motion for new trial is four hours away.

Ideally, the client comes in after being convicted, with the trial transcript in hand, with a referral from an excellent trial attorney who made all the necessary objections, filed all the right motions, and received bad rulings from the trial court on every one of them. The lawyer filed a motion for new trial, the hearing on it is three months away, and the client is out on an appeal bond. Really ideally is when the trial lawyer brings me on to assist with legal issues with a mind toward making the best possible record and with a mind of handing the ball to me if the client gets convicted. The trouble is that most clients don’t want to think about dealing with a conviction until they are convicted and don’t think it will happen to them.

When people come to see me for an appeal, it is often with variations on one of two scenarios. I’ll give you the most extreme examples of each.

 

Scenario One

The husband/brother/son/nephew/friend was convicted in 1998 and is serving a life sentence. He had new counsel represent him on appeal. Counsel was unsuccessful, and the conviction was affirmed in 2001. At that point, husband/brother/son/nephew/friend was fed up with lawyers and filed a pro se federal habeas petition, which he unsuccessfully appealed to the 11th Circuit Court of Appeals. He then filed a pro se State habeas in 2003, which was denied and unsuccessfully appealed to the Supreme Court of Georgia and another pro se habeas petition in 2005, which was dismissed.  He really knows a lot about the law now after all these years. He’s drafted his third habeas, and wants me to be his co-counsel.

 

Scenario Two

The wife/sister/daughter/niece/friend was convicted 29.5  days ago. The person who comes to see me did not see the trial because the rule of sequestration was invoked, but he thinks the wife/sister/daughter/niece/fried was railroaded. They don’t understand how this could have happened. They hired the lawyer in town who worked on Uncle Jake’s will and who closed the loan on their house. After they hired him, he quit taking phone calls, and all the discussions of the case were in the hallway on the way into or out of court at arraignments and calendar calls. One day, they got a call at 10:30 on a Tuesday morning to come to court. Low and behold, the judge made them start the trial. Now, she’s got a life sentence. All the witnesses lied. The judge was really mean. So was that 24 year old prosecutor who said this was her first case after passing the bar. They are tired of getting the run around from lawyers. They heard you do appellate law. They will hire you, but they want to know right now if you can win. And they are going to watch you like a hawk because they see how lawyers can act. Oh, and they don’t have any money left because trial lawyer dude got $250,000 already for the trial. Oh, and can they sue the lawyer/judge/prosecutor/bailiff/guy at the metal detector?

 

Managing Client Expectations

Appellate courts are for the correction of error. Meaning, if the State did something wrong, the defense lawyer complained to the judge, the judge ruled against the defense lawyer on the complaint, and the mistake made a difference in the outcome, then the appellate courts are there to say that the judge ruled improperly and give you a new trial. In really limited circumstances, if the trial attorney made a specific identifiable mistake, and that mistake was something that could reasonable impacted the outcome, then the appellate courts exist to grant a new trial.

 

There are a wide range of things not included in the list in the paragraph above. Consider some of the things not included in that list. One would be something the state did wrong, where the defense attorney never complained about it, or where the defense attorney complained about it but where the judge did not make a ruling. And also excluded is a situation where the State did something wrong, the defense objected, the court made a bad ruling, but where the court determines that it did not have any impact on the verdict. Also excluded are all the general things that a client did not like about the attorney but that cannot be reduced to a concrete demonstrable mistake. Certainly excluded would be such things as whether witnesses lied or were credible.

 

Bottom Line

The bottom line is that an appellate lawyer cannot clean up the mess left behind by a bad lawyer and cannot use the appellate process to retry a case that wasn’t tried well the first time. It is even more difficult to clean up a mess created by a pro se client who has dabbled in his own appeal before an appellate lawyer gets on board.

The way Georgia judges hand out sentences under fairly draconian mandatory minimums or because they are just plain mean, clients have no choice but to appeal. And the great thing is that judges and prosecutors in Georgia make mistakes. Every 7 seconds in Georgia a trial judge commits reversible error in a criminal case (a statistic I just made up but which is probably true). Issues are often there.

However, more appellate lawyers need to make the expectations clear early on, and clients need to be able to enter the process with a realistic outlook of what an appeal involves and what lies ahead.