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How is an appeal different than a trial?
What is the procedure on appeal?
Why does it take so long?
What kind of decisions might result in a reversal of your conviction?
How is an appeal different than a trial?
At trial, the jury is asked to decide one fundamental question: Has the prosecution proved its case beyond a reasonable doubt. If the defendant has waived his or her right to a jury, or if the defendant is a juvenile, then the same question is answered by the judge. The jury judge hears all the evidence presented by both the prosecution and defense.
On appeal, the fundamental question to be decided is very different. Instead of asking whether the defendant is guilty or not guilty, the appeals court is normally concerned with whether the defendant received a fair trial. If yes, then the court will assume the jury reached the correct verdict. Therefore, it becomes important to demonstrate to the court that the defendant did not receive a fair trial.
What is the procedure on appeal?
The first thing to know is that the appeal must be filed promptly after the trial and sentencing, within 30 days. Failure to file the Notice of Appeal within 30 days may result in you forfeiting forever your right to appeal. If you are reading this and hoping to appeal a verdict that is more than thirty days old, then don’t lose all hope. You may be able to file a motion for an extension or a Personal Restraint Petition. Don’t delay. You should contact me or another experienced appellate attorney right away so you don’t lose any further rights that you may have.
The next thing you need to understand is that appeals are not speedy. Depending on the size of the trial transcript and the number of alleged errors, an appeal in the Court of Appeals is taking between twelve and twenty-four months. If the decision is further appealed to the Washington Supreme Court, add at least another eight to twelve months.
Why does it take so long?
First, it takes time for the court reporter to prepare the trial transcript. Then the appellate lawyer must read the transcript, identify the errors that are going to be argued and prepare a Brief of Appellant. The Brief of Appellant will set forth the important facts and argue the alleged errors. Depending upon the number of alleged errors, it can get quite lengthy. Once the Brief of Appellant is filed, the prosecutor has the opportunity to respond in a Brief of Respondent. Depending upon how the prosecutor responds, a Reply Brief of Appellant may be filed. Once all the briefing is complete, the Court of Appeals begins the process of determining how it will resolve the issues. Sometimes, the Court decides that it is necessary to have “oral argument” prior to deciding. Oral argument allows the attorneys to appear and try to persuade the judges that the alleged errors should result in reversal of the verdict. Regardless of whether oral argument is ordered or not, the Court will eventually issue a decision in writing either affirming or reversing the verdict.
What kind of decisions might result in a reversal of your conviction?
As the writer of nearly 200 appeals, this question is nearly impossible to answer without first reading the trial transcript. But I can tell you that the potential issues are vast. Looking quickly at the many published cases that I have argued in the Court of Appeals and the Washington Supreme Court, seven have addressed sentencing issues, six have looked at alleged errors in the jury instructions, five have involved issues of statutory interpretation, three have involved alleged errors of evidence or trial procedure, and one involved a search and seizure question. Almost anything has the potential to be an error if it can be tied to some tangible prejudice to the defendant’s right to a fair trial. Even a “routine” or “mundane” decision by the trial judge may lead to a reversal if it is possible to show prejudice. For instance, in State v. Brady, the Court of Appeals reversed my client’s conviction because the trial judge’s impatience during jury selection resulted in prejudice and merited a new trial.
Most people understand the importance of having an experienced trial attorney standing next to them during a jury trial. But few give any thought to who should represent them on appeal. Rarely should your appeal lawyer be the same as your trial lawyer. The legal skills required are very different and many great trial lawyers have never done an appeal. Also, having a different lawyer for appeal allows you to argue that your conviction was the result of “ineffective assistance of counsel” by your trial lawyer. At your initial, free consultation we will discuss what happened at your trial and what the realistic probabilities are that the Court of Appeals will reverse your conviction.
Washington Appellate Lawyer Thomas Weaver represents people convicted of crimes throughout the state of Washington including Seattle, Tacoma, Spokane, Olympia, Bremerton, Vancouver, Yakima, Bellingham, Kennewick, Pasco, Lakewood, Walla Walla, Port Orchard, Everett, Shelton, Chehalis, Port Townsend and the counties of Clallam, Jefferson, Grays Harbor, Mason, Thurston, Pacific, Lewis, Wahkiakum, Cowlitz, Clark, Lewis, Pierce, King, Snohomish, Skagit, Whatcom, Skamania, Spokane.
Before You Talk to the Police, Talk to Tom
