SELECT ISSUES IN CRIMINAL APPEALS[Posted August 21, 2007] The fourth in our series of appellate practice symposia, this one focusing on criminal appeals, took place recently. Here’s a sample of some of the topics covered, and some of the insights the participants received from experienced appellate advocates and court insiders.
If you’ve ever looked long and hard at the implications of filing an Anders brief, you have probably wondered if doing so signals that you’re abandoning your client. After all, filing an Anders motion entails a certification that you don’t think there’s a meritorious ground for the appeal.
There are two factors in this consideration. One, of course, is your obligation of zealous representation. (RPC 1.3, Comment 1) But that’s counterbalanced by your duty not to advance frivolous arguments. (RPC 3.1) When those two considerations conflict, Rule 3.1 trumps its partner, as noted in LEO 1530.
Second, the appellate court is evaluating your credibility, every time you file a brief or present an argument. In that case, you could develop a reputation as a lawyer who files frivolous pleadings if you don’t file an Anders brief when one is called for. Remember that your effectiveness before any tribunal will always be a function of what the court thinks of you as an advocate. If you don’t exercise appropriate discretion on just when to move to withdraw, your effectiveness in other cases may suffer.
Referrals to the Staff Attorney
Most criminal appellants in the Supreme Court, when they receive notice to attend oral argument, learn that they will be presenting that argument to one of the court’s staff attorneys (usually Chief Staff Attorney Greg Lucyk) instead of to a panel of justices. That leads some lawyers to suspect that the court has prescreened the criminal docket, and their cases have been relegated to second-class status and eventual denial by the staff attorney.
The truth is far different. Given the very large number of criminal petitions the court receives (roughly 70% of all petitions for appeal are in criminal or habeas cases), the justices simply cannot hear them all without several cloning procedures. The cases are not pre-screened, and the staff attorney can neither grant nor deny any of the petitions.
What he can and often does do, however, is go to bat for a meritorious appellant when he presents the cases to a panel of justices for decision. The justices themselves still decide each petition, but in criminal cases, the panel hears about the case from the staff attorney.
Some lawyers make the mistake of thinking that an argument to the staff attorney requires less preparation than an argument to the justices. That’s a big mistake; this is your one opportunity to make an impression upon someone who might just be able to persuade a justice to grant your petition. Don’t squander it by poor preparation.
Denials and Dismissals in the CAV
When there has been a procedural default of some sort that scuttles the appeal, the Court of Appeals will issue an order that provides that the petition for appeal is either denied or dismissed. Although the outcome is the same—the appellant loses—the two terms mean slightly different things.
A petition can be denied (or, in the term used by the Clerk, refused) for any number of reasons, including a simple lack of appellate merit. But for procedural defaults, that term is used when the default occurred in the trial court. In contrast, the ominous dismissal occurs where the appellate lawyer has made a fatal mistake. With increasing frequency, the court is dismissing appeals for violations of Rule 5A:20(e), which requires argument and citation of authorities for each question presented. Keep in mind that the court won’t go hunting through the record to find reasons to reverse; that’s your job.
Extensions of Time
Like any other court, the appellate courts grant extensions of time in a wide variety of circumstances. The Supreme Court actually keeps track of them, and in 2006, granted 158 extensions out of 256 requests (about 62%). That rate is enough to let you know that good faith requests will usually be granted, but not enough to make the movant overconfident.
Here are some of the factors that go into the courts’ calculus of whether to grant more time:
— The reason given. You need something better than a bad hair day, but you don’t need a death certificate. A sudden explosion of work in the days before your deadline can often get you a few extra days.
— Previous extensions. If you have already received one extension in the case, you’d better have that death certificate handy.
— Promptness. Technically, if a motion is filed on the deadline day (remember, that can include certified mailing on the deadline day – Rules 5:5 and 5A:3), then it’s timely. But the closer to the deadline you wait, the more suspicious your request will look. File as soon as you realize you’ll need the extra time, and remember, the extra time is added to your original deadline, not from the date the extension is granted.
One last thing – if you get an extension and then file an Anders brief, you’re begging for trouble.