Criminal Appeals Are Really Frustrating

I lost one on Friday. But that isn’t the frustrating part. Something like nine of ten criminal appeals end in affirmances. The irritating part – and also a big reason for the high affirmance rate – is the way I lost.

First of all, I really did not lose. The trial attorney lost. How, you ask? Well, in non-death penalty appeals, the ONLY errors you can raise on appeal are errors that were properly raised at trial. That means a timely objection stating the specific grounds on which it relies. And that specific ground is the only ground on which you can rely during the appeal. For example, a statement by a witness may be both hearsay and a confrontation clause violation, but if trial counsel objects on hearsay grounds alone, the confrontation claim goes buh-bye. In this particular case, trial counsel objected to several errors – and I think did so sufficiently – but Alacrap said he did so too late, or on other grounds than what I argued, or too generally. So my issues got no consideration on the merits.

Second, the really annoying part is that in contrast to a civil appeal, where your only adversary is the opposing party, in a criminal appeal you have to fight the Attorney General’s office AND the appellate court. I’m not just being cynical. In this case, the A.G.’s office never even hinted at the preservation issue; Alacrap thought it up, researched it, and wrote the argument all by themselves. 

I understand the reason for the rule. In a civil case, the only issue is money, and the only people affected are the parties. So if a party does not care enough about their own interests to research and present all the arguments, well, let them bear the costs of their neglect. But a criminal case involves the whole state’s interests. It is, after all, the State of Alabama v. Joe Accused. So if the A.G.’s office is derelict – and they often are, this is NOT the first case I have lost on an argument never raised by the A.G.’s office – the whole state suffers. If Alacrap did not take up the A.G.’s slack, we would have more reversals than there are courts to hold the new trials, and that would be bad.

But the fighting the court is still annoying.

First, it undermines the idea of a court as a neutral arbiter. They’re taking sides. Like I said, I understand the reason, but it’s still taking sides.

Second, it’s appellate arguments by ambush. The way appeals work is that the defendant files an appellate brief, the A.G. responds, and then the defendant can reply. In this case, I knew preservation was an issue, so I tailored my initial brief so as to allow an easy response when the state raised it in their brief. But the state did not raise it, so I had nothing to which I could reply. Then Alacrap goes and makes their decision based on the preservation issue. In other words, I was ready to fight over the preservation issue, but the party I am supposed to fight never raised it. And I do not get a chance to reply to Alacrap prior to the opinion. So the decision is made without full arguments over the issue.  

Third, allowing the court to take up the state’s slack is a ridiculously bald double standard. In non-death penalty cases, if a defendant does not object to an error at trial, that error, no matter how egregious or obvious, is waived. Ditto for appeals. The appellate court is not going to consider any arguments except the ones I specifically raise and argue. But when the state overlooks the obvious, or even the not-so-obvious? In swoops Alacrap to save the day.

So there it is. My only hope now is that I can convince the state supremes to consider the case. Right. Grhhh.

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7 Comments on “Criminal Appeals Are Really Frustrating”

  1. Demopolite Says:

    We don’t call it the Court of Criminal Affirmance for nothing! I do know the feeling, though — even it it’s just in civil court. I’ve had several trial court judges ambush me at a summary judgment hearing with off-base arguments when the defendant failed to appear…all in the name of home-cooking.

  2. Galleon115 Says:

    Just another reason why judges should not have to be politicians. I read that the AL Bar Assn. is trying to implement a more contemporary approach, along the lines with several other states, like being appointed by a non-partisan group. I hope it works.


  3. Amen Wheeler! Same thing happened to me back when I was in the fray. The only thing worse was once when an argument was simply ignored. The AG pretty much punted on the issue, and I can’t recall what the issue was, yet the Alacrap simply wouldn’t address. I gradually lost my religion I suppose yet this particular appeal was surely part of the process.

    In a related vein, I’m listening to Grisham’s An Innocent Man right now. Sounds like Oklahoma and Alabama have much in common.

    The AlaBar’s Missouri Plan efforts are a part of the process of reforming yet it’s hard to think a civil liberties oriented judge that consistently defends the rights of those facing the State being able to withstand being dumped in our lovely Alabama.

  4. Truman Says:

    Dang Mr. Rothstien, You are right!

    That’s exactly what we need! More rights for murderers, rapists and theives! Maybe if we could get the criminal defense bar to appoint judges directly they wouldn’t have to answer to that pesky electorate!

    Let’s change the appellate standard on appeal, what a great idea!

    Nice to see you showing your true colors.

  5. Dan Says:

    Truman, I completely agree. Rights for the accussed? Gufaw! What country is this? Communist China? We don’t need no stinkin rights.

    By the way, no one’s saying that DAs or the AG shouldn’t be elected. Just judges. And judges SHOULDN’T have to answer to the electorate. They should have to answer to the law.

    … Snap.

  6. Old Prosecutor Says:

    Dan – does not the logic for having non elected judges apply equally to DA and AG? If not, please distinguish

  7. Baudrillard Says:

    Wheeler, as for CCA’s creative research and writing sua sponte on R.32s, all that is about to grind to a halt. you might be surprised at what you find, but watch Ala. Law Weekly in the next several weeks. Maybe there will be some material for a good post.


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