DIRECT APPEAL
The direct appeal is the most important post-conviction remedy there is. Please take care at this critical stage of the process. You have your most favorable standard of review, and it is a wonderful opportunity for reframing the narrative of your case. But also, it will follow you at every future step of your journey.
After knowing some of the basic principles of post- conviction litigation and recognizing the critical importance of investigation and discovering new facts, it is time to see how all these pieces fit together to create a compelling narrative and how best to present your case for relief.
After you are convicted and sentenced, you will have the opportunity to file a direct appeal. Jurisdictions vary throughout the country, but most likely there is an inter- mediate appellate court where this direct appeal will be filed (some states, like Wyoming, have only one court where criminal cases are heard, the Wyoming Supreme Court). Once you are convicted, you must file a notice of appeal with the Court to inform them an appeal is forthcoming. Filing that document transfers the jurisdiction of your case to the appellate court from the court in which you were convicted. Consult with a lawyer as to the specifics, but realize that shortly after your conviction, you will need to file the notice. Do not delay. If you miss the deadline to file a notice of appeal, you run the risk of losing your right to appeal your case.
What is a Direct Appeal?
A direct appeal challenges legal errors that occurred in your case. In a direct appeal, you may raise legal errors that apparent in the transcript. Generally, you are searching for errors that the trial judge committed during the course of your trial that impacted your right to a fair trial. Some common claims that are raised on direct appeal are that the trial court erred in allowing certain evidence into your trial, like a statement or an identification. A direct appeal issue might be that the trial court erred in allowing an expert to testify to some particular fact because that testimony exceeded the scope of his or her expertise. Common issues are also problems with the jury instructions, or decisions not to allow a juror to be removed from the jury venire for cause. A judge’s decision to close the courtroom during a suppression hearing could be raised on direct appeal. There are numerous issues that can be raised on direct appeal, but keep in mind you’re likely limited at this stage to legal issues that are apparent from the transcript.
Why Are Direct Appeals Important?
- Reframing the Case
The direct appeal, arguably, is the most important legal remedy you have. First of all, every state allows a defendant to pursue a direct appeal and every state will appoint counsel to assist you in filing this first appeal. This may be the one-and- only time you are provided a lawyer at no cost if you are indigent. Some states will pay for the appointment of post- conviction counsel, but many (if not most) will not. If you are indigent, take advantage of having a free lawyer assist you with your direct appeal.
Importantly, though, the direct appeal is critical to reframing your case. Before you file the direct appeal, you should have already conferred with an experienced lawyer about all the issues in your case—whether there was evidence that wasn’t presented to the jury, whether witnesses were not called who should have been, whether you received ineffective assistance of counsel. Having identified some of the core injustices in your case at the outset, a skillful appellate attorney can begin to incorporate or highlight specific facts that can drive the narrative of your case forward. If, for example, the key piece of incriminating evidence in your case was a DNA match, appellate counsel can highlight how there were various other available investigative tools that law enforcement did not pursue, such as obtaining witness statements, conducting fingerprint analyses, searching for trace evidence including gunshot residue. Counsel can also start chipping away at the reliability of that DNA evidence by highlighting the fact that the prosecution’s expert witness was relatively inexperienced or that there was no testimony presented as to whether the laboratory was certified. In other words, appellate counsel can begin setting out some of the areas in which the evidence presented at trial was not as forceful as it may initially have appeared to be (or as forceful as the prosecutor certainly argued to the jury it was).
Here’s how that becomes important. It may be a little secret of the criminal justice system, and I’m sure there are exceptions, but for very many cases, the only time someone is going to read your entire trial transcript is when your lawyer is preparing your direct appeal. No one will ever read the transcript with such close attention to detail as your lawyer and the manner in which your lawyer frames the case and the issues in your direct appeal will follow your case at every additional level of litigation. So, for example, if you lose your direct appeal, you will have the opportunity to pursue an additional challenge to your conviction by way of a post- conviction proceeding (Different states have different names for it, but in nearly all states a defendant can challenge his conviction by claiming he received ineffective assistance of trial counsel). The judge who presides over that post- conviction challenge will almost certainly not have read your trial transcript, not because he isn’t interested but because the crushing caseloads of the criminal justice system make it impossible for judges to read the trial transcripts of every litigant coming through the courthouse. Instead, judges rely on the advocates to inform him or her what information is relevant and important to the case. There is a very good chance the judge will read the direct appeal pleadings in the case, including your direct appeal brief. That brief, therefore, will do double duty. It will be the basis of your legal challenge on direct appeal, but it will also be very helpful in highlighting the weaknesses of your case when it is reviewed in post-conviction.
Reframing the case in the manner that is most beneficial to you is one is one reason why the direct appeal is so important.
- More Favorable Standard of Review
But also, the direct appeal is important because, in terms of the applicable legal standards of review, it is the easiest place to win. As discussed earlier, as a general principle, it is easier to win a case on direct appeal than in post-conviction, and it is easier to win in post-conviction than in federal habeas. As you traverse each step of the process, the more the courts will find there are increasing substantial government interests in the “finality” of convictions.
In a direct appeal case, it is your burden as a defendant to show there is legal error on your case and that the trial court erred in not seeing things your way. Once you include these claims in your brief and your opposing counsel has an opportunity to respond, the appellate court will review your arguments to see if it agrees. If so, your conviction will be reversed and you will most likely be entitled to a new trial on remand. An exception to this is when you win on an insufficiency of the evidence claim, or when the appellate court holds that some critical piece of evidence against you was improperly admitted. In these two cases, your conviction may be vacated or reversed and you will not be retried. Certain kinds of prosecutorial misconduct as well as double- jeopardy claims may also keep you from being subject to a retrial. Later, I’ll discuss the additional demanding burdens you have to meet in post-conviction, federal habeas, and then petitions for writs of certiorari in the United States Supreme Court.
- Other Considerations
Jurisdictions have their own idiosyncrasies so, especially if you have a state conviction, it is important to talk to a capable state appellate lawyer to explore additional issues that may impact your case. In my jurisdiction, for example, we have a rule that provides that our court of appeals must render an opinion on any claim we raise on direct appeal.
This is really very important because, if you find yourself in federal habeas, you can challenge the opinion from the court of appeals in your habeas action. A direct appeal may be the only opportunity you may have to ensure that your issue is addressed on the merits (or, if there is a procedural problem, for the court to indicate it is specifically not reviewing the merits due to the procedural bar).
But also, as you are challenging your conviction on direct appeal, if you are incarcerated, you may be able to earn your release by way of an appellate bond. Your chances of a court agreeing to your release on bond are better at this stage of the litigation than when you are pursuing later collateral challenges to your conviction. Again, this is very state- specific advice, but you should explore your options in this area with a competent appellate lawyer.
