The purpose of this posting is to give prospective clients and their families an idea of what they should expect from the court system when pursuing an appeal as well as from the criminal defense lawyer who is representing that person who now stands convicted and sentenced.
The appellate process varies a little bit from State to State (and in the various federal courts), but the format of this appellate process when an accused is found guilty and sentenced is, for the most part, the same from State to State.
When does the appellate process start?
When a person loses a trial and is sentenced by a judge, this is the first opportunity to appeal a case. If you’re asking whether you can appeal a case after a trial verdict but before sentencing, the answer is no. In almost every situation, all proceedings in front of the trial court must be concluded before one can pursue the appeal. In the State of Illinois, only certain very limited issues (such as excessive bail and double jeopardy) can be taken up to the appellate court before a trial takes place. That pre-trial appellate process is called an interlocutory appeal.
An appeal formally starts with the filing of a Notice of Appeal. In Illinois, this document is filed with Clerk of the Circuit Court in the County where the conviction and sentence occurred. It must be filed within 30 days of the final judgment in the case. This final judgment typically is at the time of the sentencing when the judge notifies the defendant of his rights to pursue an appeal. This gives the Illinois appellate court jurisdiction to hear the appeal.
What are the realistic goals of an appeal?
The most common case an appellate court considers is the defendant’s challenge to his or her conviction after a trial whether it’s a bench trial or a jury trial. A defendant under these circumstances can ask the appellate court to do one of two things: find that there was a reasonable doubt and decide that a guilty verdict should never have been entered (it’s very rare that the appellate court will do this), or find that the defendant’s trial was fundamentally unfair and order that a new trial take place because the original unfairness means that there is no confidence in the guilty verdict (this is much more commonly done by the appellate court).
What evidence or documentation will the appellate court consider?
Appeals are proceedings that are extremely important, but limited in their scope. One common question I receive is whether or not the client can bring witnesses to the appellate court to testify or have these witnesses sign affidavits to give to the appellate court. The answer to that is no. The reason is because appellate courts do not hear from live witnesses at all nor will they look at new documents that the trial judge never saw.
The appellate court will look at the items the trial judge saw and considered to decide whether to affirm or reverse that trial judge’s rulings. The two most important categories of items the appellate court will review are the documents the trial judge reviewed and the spoken words that the court reporter transcribed in open court. The documents that the trial judge had for review are maintained by the Clerk of the Circuit Court for the specific County where the trial proceedings took place. Examples of such documents include the original charges, every motion the prosecution filed, every motion the defense filed, and every court order the trial judge entered. These are all compiled for the appellate court’s consideration. In Illinois, this compilation is sometimes referred to as the common law record.
The second category of items the appellate court will consider is everything that was said in front of the trial court that was on the official record. Everything that was said during the trial, pre-trial motion hearings, post-trial motion hearings, and the sentencing hearing was taken down by a court reporter who will prepare an official transcript of the proceedings. All of these transcripts are compiled for the appellate court’s review and consideration. The appellate court will also have access to all of the prosecution and defense exhibits that were turned over to the Clerk’s Office before the trial proceedings ended.
What makes an appeal different from a post-conviction petition is that an appellate court confines itself to what is in this official record of proceedings. In contrast, a post-conviction petition can look to witnesses and evidence that is outside of the scope of this record. For more on post-conviction petitions, see the blog post posted on October 9, also in the Answers column.
What should I expect from my defense lawyer that is pursuing my appeal?
The job of the defense lawyer is to present a compelling written argument to the Appellate Court why the defendant deserves relief from his conviction. This written argument, to be persuasive, must rely on extensive legal research of past court decisions as well as citations to documents in the common law record and the words used at trial located in the transcripts of proceedings. Through great writing, a defense lawyer will try to convince the appellate court that serious error occurred sufficient to grant the defendant the relief he or she is seeking. This written argument is commonly called a brief.
After the defendant’s counsel submits his brief, the prosecution has the opportunity to write a response brief to the appellate court. The prosecution is under the same restrictions as the defense. The prosecution lawyer will rely on the common law record, the transcripts of proceedings, and the exhibits in writing their brief. The prosecution will see their job as to writing a persuasive argument asking the appellate court to uphold (or affirm) the conviction that occurred in the trial court.
After the prosecution’s brief is submitted, the defense has an opportunity to write a reply brief to directly respond to what the prosecutor wrote to the appellate court. This brief has the same limitations as the previously mentioned briefs. It must not just re-hash the same arguments as before or present new issues that were not previously presented to the appellate court.The purpose of a reply brief is to respond to the prosecution’s arguments and convince the appellate court that the prosecution position is wrong.
Will the appellate court only rely on the written arguments?
It’s quite possible that the appellate court will decide the case solely based on the submitted briefs. However, the appellate court, before issuing a decision, may order that oral argument take place. This is the lawyer’s opportunity to persuade the 3 Justice panel that the client did not get a fair trial and ask the appellate court to order the relief requested. The Justices will be armed with direct questions for the defense lawyer. That lawyer must take that opportunity to give direct and compelling answers to convince the appellate court to reverse the conviction. When the defendant is appealing, his or her lawyer gets to go first in oral argument. After the prosecution argues to the appellate court, the defense has the opportunity to reply, giving what is sometimes called a rebuttal argument.
After that, the case is submitted for their decision. The appellate court will issue a decision in writing ruling one way or the other.
Do I have a right to appeal?
A defendant who’s been convicted after a trial has an absolute right to appeal. If the Notice of Appeal is filed on time, the Illinois Appellate Court must take the case.
If I lose in front of the appellate court, do I have the right to appeal to the Illinois Supreme Court or even the United States Supreme Court?
After the Illinois Appellate Court decides the case, neither side has the right to appeal further, but the losing side has the right to ask. One asks the Illinois Supreme Court to take the case by filing a document called a Petition for Leave to Appeal which is a persuasive legal brief which argues to the State Supreme Court about why they should take the case. After the Illinois Supreme Court either refuses to take the case or takes the case and makes a decision, the losing side can petition the United States Supreme Court to take the case. The persuasive brief that asks them to take the case is called a Petition for a Writ of Certiorari. If the Illinois Supreme Court and/or the United States Supreme Court do take the case, then, similar to the Illinois Appellate Court procedure, the defense lawyer must write a persuasive brief and be prepared to answer questions at oral argument.
Are appeals limited to convictions after a trial?
Appeals can cover other issues other than trial verdicts. A trial judge’s pronounced sentence can be challenged as being excessive or as being improper because of improper evidence at sentencing or improper rulings regarding evidence at sentencing. Evidence that the defendant maintains was collected in violation of the defendant’s Constitutional rights that the trial court refused to suppress is also an issue that can be raised on appeal. While this blog posting has focused on appeals from trial verdicts, guilty pleas can also be challenged on appeal. This can happen if certain procedures are followed, including filing a timely Motion to Withdraw a Guilty Plea in front of the trial court and a timely Notice of Appeal once the trial court denies that Motion.
What qualities do I need from my defense lawyer for an appeal?
To win an appeal, the defendant needs a lawyer that has excellent writing skills, research skills, and a sharp mind to answer questions off the cuff at oral argument. That lawyer must have great analytical skills as well as the ability to think and write creatively to capture the attention of the Appellate Court. The Law Office of William Wolf, LLC has all of these skills to give the defendant a new chance at freedom. Bill Wolf is admitted to practice in the State of Illinois, the Seventh Circuit Court of Appeals (federal), and the United States Supreme Court.