Lessons About Appealing Verdicts
An Interview with Lisa J. Steele, Esq.
by Gila Hayes
The Network is frequently asked about funding to appeal a wrongful conviction after use of force in self defense. While we can’t give non-members charity, our own members have a very legitimate interest in the Network’s provisions for funding appeals. As part of the up-to-half of the Legal Defense Fund we make available for legal defense of a member’s self-defense incident, the Network does fund appeals when there are appealable issues.
The questions we are asked suggest that some think appeals are another venue in which to assert their justification for use of force. This led us to seek out a widely-published attorney who has made appeals cases her career to ask questions about the ins and outs of appealing unfavorable verdicts.
Lisa J. Steele, Esq. specializes in indigent criminal defense appeals in MA and CT. At various points in her career, she encountered defendants who said they had acted in self defense but were convicted at trial. This led to research on self-defense law, defending self-defense cases, firearms law, forensic firearms identification challenges, perception and memory and numerous related topics, many about which Steele subsequently published scholarly articles. She has taught classes on firearms and self-defense law for a variety of agencies as well as teaching for Gun Owners Action League for many years.
After exchanging emails asking about appellate procedures, we spoke with Ms. Steele by phone and the following Q & A is so educational that we share it here with our readers in two parts, starting this month and concluding in December.
eJournal: Thank you for helping me with this effort to foster a better understanding about appeals.
Steele: I’m delighted to help. Part of my job is education to demystify appeals both for the public and for my colleagues. My clients have many of the same questions you’re asking. I find myself trying to explain what I can do and what I can’t do; which problems I can help with and the problems that I can’t do anything about.
eJournal: What are some of the issues you can’t address in an appeal?
Steele: A lot of appeals founder on very technical things. Did the trial attorney preserve the issue? Did the trial attorney say the right objection in the right way at the right time in order to alert the trial judge so that the judge makes the correct ruling or so the appeals court can decide whether the judge made the right call.
If the attorney doesn’t object in just the right way, the court may say you didn’t “preserve” the issue, meaning it wasn’t clearly presented to the trial judge, so the appeal is denied. The appeals attorney can’t reach the merits of the argument because the trial attorney didn’t say the right words. One reason I publish is to help my colleagues on the trial bar to say those right magic words.
eJournal: You mentioned earlier that the U.S. Constitution doesn’t assure the right to an appeal. Can we presume that all states have some provision for appealing a conviction?
Steele: The vast majority of self-defense cases will come through the state courts, each of which has their own variations on law and procedure. My understanding is that all states will have at minimum a statutory provision for appeal or do it through common law, so yes, there is going to be some provision in your state for how you appeal a conviction. The mechanics differ state to state, with wide variations about whether you have to wait until conviction at the end of the case to appeal any of the possible issues or whether you can appeal certain decisions in the middle of the case. Some places you can plead guilty and reserve constitutional issues for appeal, but others won’t let you.
Your trial attorney should be generally familiar with the process: how to preserve things for appeal and how to start the appeal rolling. They’re not necessarily going to know all the intricate details; one thing we learn in law school is where all the yellow flags are so we can go to our colleagues and ask advice.
eJournal: In brief, what is the hierarchy of courts the trial and then an appeal might move through?
Steele: At least for CT and MA, any homicide case goes to the superior court or the equivalent. If somebody died and if your state’s courts have two gradations, you are likely to be in the higher court.
Let’s describe the mechanics of an appeal. So, you have had your trial. Your trial is over, and your trial attorney will usually file some sort of notice of appeal. Many clients, even though they had enough money for private trial counsel, are now in jail and out of money. They are now legally indigent and in the hands of the public defender or its equivalent. The case may get assigned to the original trial attorney, a public defender staff attorney or end up in the hands of assigned counsel: myself and my colleagues who do this on a contract basis.
If it’s assigned to me, I have to gather all the pieces. I go to the court reporter and say, “I want all the transcripts” (a written record of everything that was said in the courtroom). I have to tell the court reporter if I want just the trial, the trial and jury selection and all or some of the pretrial hearings. What I order varies by state and by custom. In CT, we order everything, so I will have half a dozen transcripts that are just briefly saying the case was called and continued, but I know what is there and I know nothing important was said. Sometimes something important gets said in there. In MA, pre-trial hearings are not routinely ordered unless trial counsel or the record indicates something important might have been said or done.
Once I get the transcript, I have to read and take notes on it. Often there are little record problems to sort out: there’s a date missing; something is incomplete. We have inordinate problems with recorded evidence. There’s been a 9-1-1 call and it is played for the jury. In some places the court reporter will transcribe it; some places they won’t. Sometimes the recording is very clear; sometimes it is very muddy, so the court reporter says, “It is unintelligible; it is undiscernible,” and I’m left wondering, “OK, now what?” How do I show the appellate court what evidence the jury heard?
At some point, I’ll go to the trial court clerk. All the papers and objects given to the trial court and the jury are saved by the clerk. They’ll bring out a box and everything is going to be in there. All the papers are going to be in there; hopefully the CD recording of that 9-1-1 call will be there; the weapon will be there; ammunition may be there. If they introduced clothing as an exhibit, it may be there. All of that stuff is going to be sitting in this box. My job is to look through the box and at least lay eyes on everything the jury saw.
I am going to get copies of some of it; I may take pictures of some of it. I normally travel with a little ruler, so if I have to take a picture of a firearm, for example, I put it next to the ruler so I know how big it is. I’m going to try to get a copy of that audio. I will look at all the clothing. Most clerk’s offices are OK with counsel taking cell phone pictures of the exhibits because they’re public record. It beats the old days where we had to lay everything out on the photocopier.
After I’ve gathered everything, I start sorting out what happened and what is wrong with this case. I’ll ask the trial attorney, “What were the most important things that you thought went wrong?” They are going to have an opinion! Then I go to the client and say, “Tell me about it. What went wrong?” and they are going to have an opinion.
From all of that I’m going to come up with what I think are decent issues for appeal. I have to be able to support each issue from the record. Sometimes the client will tell me things like, “One of the jurors had their eyes closed a lot. I don’t think they were really paying attention when they convicted me.” I ask the attorney, “Do you remember this? Did you do anything about it?” Can I go to the trial court and create a record of something that happened in the courtroom that isn’t in the transcripts?
Sometimes people will gesture. The transcript says they asked a witness, “How was he standing? How was he holding the gun?” and then the transcript says, “Witness gestured,” so I’m asking attorneys, “And HOW did the witness gesture?” In an ideal world, the trial attorney would have said after the witness responded, “Let the record reflect the witness held his right arm straight out from his shoulder.” Sometimes we can reconstruct it and sometimes we can’t.
eJournal: If there were multiple errors, do you throw it all into your appellate brief?
Steele: The appellate attorney has a large amount of discretion over what issues to raise, and attorneys are going to differ significantly on how they approach appeals. If there were lots of mistakes, I’ll pick the strongest one to three issues for the brief. The appellate brief is a formal document. In CT it is limited to 35 pages and in MA it is 50 pages (the difference is in the size of the margins and the font you can use; both have roughly the same amount of actual content).
In those pages I have to explain in a formal manner what were the original charges, how were the charges brought, was it a jury trial, when did it take place and what was the sentence? I have to explain the facts of the case and I’ve got to tell the bad facts, too. The prosecution is going to tell the court the bad facts so the court might as well hear it up front from me so I can put it in context rather than hearing it first in the prosecutor's brief and thinking, “Hey, wait a minute! Attorney Steele didn’t tell me that this happened.”
About a third of the brief is going to be trying to explain to the court what happened and how it happened. Then the brief is going to explain to the court, “This is the problem. This is what the attorneys did. This is what the objections were.” Then, “This is what the governing law is,” and “Now, here is what I would like you to do about it.” It takes pages to do that well.
At best, you are probably looking at one to three issues depending on how complicated they are. How many of those pages do I need to explain my best issue? How many pages for my second best? Can I get these issues to work together? Sometimes I’ll have an issue that, maybe on its own would be a “c,” “d” or an “e” issue but it works nicely with the first issue, so we’re going to do those two because they logically fit together or I can use one to help explain why the other one is important.
At the end of all of this, I often have to explain to the court how the client is hurt. The court wants to know the strength of the state’s case; the court wants to know why this error is important. Whenever I’m working on an issue, the thought in the back of my head is, “What is my prosecutor going to say?” and I want to head off as many of those problems as I can.
eJournal: How much control does the client have over which issues the brief addresses?
Steele: I will sit down with the client, and say, “This is what I want to do and this is why.” As much as possible I want to sit down and work with the client. Ideally, I want the client to be happy with the brief, because the client is doing the time. Sometimes I get a client who wants me to do what I can’t do. They’re insistent on an issue that just isn’t there, and I have to say, “I can’t do that for you.” They’ll get a long, written explanation from me showing why I can’t do it.
eJournal: What are they asking you to do?
Steele: Often, the client will say, “The witness lied” or “how could the jury have believed that witness?” We see this a lot. In self-defense cases, the witnesses are going to disagree on what they saw. If there isn’t a video and there isn’t an objective record, the jury has to decide whom they are going to believe. I can talk about the inconsistencies; I might be able to say, “Witness A, who was standing 20 feet away, said ‘X.’ Witness B, who was at conversational distances, standing right next to it, said ‘Y.’”
I can suggest to the court that “Y” is more credible than “X,” but the court may respond, “We didn’t see these witnesses. We have cold transcripts. We don’t know how they presented; we don’t know what their tone of voice was; we don’t know what their body language was. We’re not going to decide which witness was more credible. As long as the jury can reasonably come to a conclusion, we’ll accept that.”
This is most important when it affects the strength of the whole case. Sometimes, then the court can look at it and say, “Because Witness Y was closer, we are going to look to them for the strength of the case more than Witness X who was farther away.”
eJournal: When you get assigned a case, how much attention do you pay to problems like a substandard police investigation?
Steele: We have problems with confirmation bias and tunnel vision. At some stage in the process, the investigators form a theory. Maybe they start to think that this is not a self-defense case and that the client did something horrible. When that happens, it is human nature to ignore, excuse or explain away things that don’t fit the theory. Investigators may say, “We are not going to go chase down those witnesses because we know this guy did it. Why do we need to go chase down those other three or four people at the scene? Why do we need to go look for extra video? Why should we send this stuff out for expert testing?”
For an assault or weapons possession case, they are probably not going to pull out all investigative stops. The scope of the investigation is going to depend a lot on resources and where you live. I’m going to see a very different police report in a homicide case when a state police major crimes unit shows up and they bring in the state lab’s investigators who document the case in a totally different way than if a bar-fight/assault case with no serious injuries is being done by a small-town agency. They are going to preserve different things, make records of different things and photograph different things.
That is just the luck of the draw. Where were you when this happened? Yes, some small towns are better than others; same thing with detectives, some are better than others. The town I grew up in had an average of one murder every five years. They had a fine police department, but they don’t have the experience that Boston has, where you may have two or three murders in one night.
I’ve got a case now where the victim was shot and there were two casings found at the scene but apparently, they were never tested by the lab to see if they came from the same gun. They are the same caliber, different manufacturer. The assumption has been there was only one gun and that it was in the hands of whoever shot this young man, but nobody tested it. It may well have been one of those, “Well, the victim says that the defendant did it. He knows the defendant, he is 100% sure the defendant did it. Why do we need to spend probably $3,000 to $4,000 to confirm this thing that we already know?”
eJournal: When you’re starting to work on an appeal, it seems that even the volume of reports and evidence you have to root through would be significantly different based on the quality of the investigation. Wouldn’t that influence how hard it is to meet your deadlines?
Steele: At least for MA and CT, the briefing deadline doesn’t start to run until the transcription’s done. Sometimes I will be assigned the case before the transcript is finished, which means I can start the running around gathering documents while waiting for the transcript. I can go to the trial court, I can look at things, I can talk to the client, I can talk to the attorney, I can ask the trial attorney to send me their files, so now I have all those exhibits and all the discovery and I can start poking through it.
By the time the transcript shows up, I can know a fair amount about the case. Other times the box just shows up on my desk and I’m looking at maybe two linear feet of paperwork in a box that once held 20 pounds of blank paper.
Transcripts sometimes are easier to read than you’d think because it is conversation. It is not as dense as a novel, so while it still is not going to be fast, it is easier than it looks when you first open that box. I have to read everything, but I know through experience which places I have to read really carefully because I know where something is most likely to go wrong. Sometimes the attorney or the client has told me, “Hey, I really didn’t like that jury instruction,” or “This piece of evidence came in and I objected to it and the court did it anyway,” so I know to pay special attention to that. I’m still going to look at everything.
I’m going to do my best to make sure that record is as perfect as I can get it, so the court doesn’t come back and say, “No, we’re not going to reverse the conviction because the judge’s ruling is ambiguous and since the ruling is ambiguous and we'll interpret the ambiguity in favor of the trial court having gotten it right.”
Sometimes I’m going to get to the end and think, “Oh, no, I’ve got nothing.” This will happen now and then. I don’t like what happened in the case, but sometimes there really is nothing I can work with. At that point, I’m going to start working backwards, in reverse chronological order and I’ll go through nitpicking it and looking at every single objection, every single ruling, every single decision point and asking, “Was this right?” If I still can't find anything, then each state has a procedure for what to do when there's no meritorious issue to appeal.
eJournal: Do the deadlines to submit the appellate brief give enough time to get through all that?
Steele: The court knows that it takes time. If I go to the court and I give a good reason why I need extra time, within reason, the court’s going to give me that time. I might say, “This video exhibit was played for the jury and it is not adequately transcribed. I need to sit down with the trial attorneys and figure out what was said. It is going to take a month.” The court is going to say, “OK, that is important. We need that answer. Go ahead.”
Sometimes, there will be various other motions involved in dealing with that record. One of the ways appeals will founder is if the court says that the record is not adequate for review. It’s ambiguous, its missing something about which a court might say it’s not good enough. There are ways to ask the trial court to resolve some of those ambiguities and those also take time.
eJournal: Then you’re in a bad spot since you didn’t make the mistakes at trial, but the client, sitting in a jail cell, is asking you to fix it. Is there any way to throw a “Hail Mary pass?”
Steele: The courts have rules for what you can do. I am not allowed to bring up an issue that I believe is legally frivolous. “Frivolous” is a legal term–it doesn’t mean the issue won’t win; it doesn’t mean I think the client really did it; it means that there is an unfixable, inadequate record or absolutely no supporting case law and no good argument to change the existing case law. Sometimes, I’ll write up whatever you have that is least bad of the non-frivolous issues because I don’t want to leave the client completely hanging. Sometimes you go to the client and say, “Look, I got nothing. Do you want me to continue or do you want to dismiss the appeal and go straight into habeas court?” [We’ll discuss the “habeas” option later, in the next installment, when Ms. Steele tells us about what happens if your appeal is denied. –Editor]
There are downsides to having an appeal. The biggest downside is almost everything the appeals court does is public. Even if it is an unpublished decision, it is in the legal database, so it is findable. You may not want the facts of your case to be public, particularly if you are not likely to win.
Sometimes, when the facts are really bad, I have to say to the client, “Look, if we lose this, the facts of your case are going to be public. The appeal is going to be searchable and the prisons have law libraries and the guys in your unit may find out what you’re accused of. Are you 100% sure you want me to go forward with this?”
eJournal: What if the client insists, but there are no issues you can argue in good faith?
Steele: In some states and in the Federal system, I can file a sealed a motion to withdraw. The underlying explanation is sealed so the state never sees it. I explain to the court, “Here’s what happened in the case. Here’s all of the possible issues; here’s all the objections, here’s what I’ve looked at and here’s why I think I have nothing.” The judge may allow me to withdraw from the case, which means the client is now representing himself and functionally, the appeal is going to end at that point. In other states, I write up the facts and law about the issue the client most wants to raise, and let the court decide it.
eJournal: Let’s return to writing the appellate brief. We were talking about the massive amount of material you had to comb through. What do you have to create from all that information?
Steele: When I’m assigned the appeal, I get that huge pile of stuff and I figure out what I’m going to do with it. I write a document that is about 40 pages of double-spaced text, which is the brief. It explains for the court what happened, what went wrong and why the court needs to fix it. It is accompanied by an appendix with anything that the court needs to know from the record that they need to have right in front of them in the courtroom. That might be a picture of an exhibit, it might be a portion of the transcript, it might be the language of the statute, it might be a motion. It is going to be appended to the brief so the court has it sitting right there in front of them.
Then opposing counsel gets the case and the same box of stuff I got. They also start with a very short amount of time to work with it. They will ask for and get typically five to seven months but they won’t be working on it for five months, it just means they have four months’ worth of work ahead of my case. They’re backlogged. They are going to write a similar-sized response, saying, “No, no, no! Everything’s fine; the trial court did what it was supposed to do; your record is terrible; and besides, it is all harmless error because the guy is obviously guilty.”
In most states, the defendant gets to respond, so I’ll usually get about ten pages to respond to whatever the state brought up. I can at least get the last word on whatever their arguments were.
Now, all of this goes to the court. The court is busy, so our briefs go into a pile of cases that is going to be assigned for argument. Usually the older cases get argued first. In some states, they are busy enough that the court may say, “No, we don’t want to hear this case. We think it is routine and we don’t want to hear the argument. We want to do it on the paper.” If they do that, I can object and most of the time, I am going to object. If I feel strongly enough about the case to write the brief, I feel strongly enough about the case to want to argue it. I will go to the court and say, “This really is serious. You should hear it,” and then they will decide whether or not they want to. Most criminal cases and any homicide cases are going to get court arguments.
eJournal: I’m curious how much of this process takes place in person and how much is written?
Steele: The appeal itself may involve only one actual court appearance which will be when I am arguing the case in front of the judges. Any request for an extension of the deadline is going to be done on paper; trying to fix the record is all done on the paper. Every once in a while, I have to go into the trial court because we are trying to sort something out and the judge needs to hear from me and from the prosecutor in person. With the appeals court, generally the only time I’m physically in front of the court is going to be the arguments.
So now we are at court. The case is going to arguments. It’s been three or four months since I wrote the brief. I am going to spend the week or more coming up to arguments rereading everything because I need it all fresh in my brain. I need to think, “If I’m a judge and all I know about the case is what I’m reading in these papers, what are my questions?” I need to make sure I have answers for them so when the judges ask me questions, I’m not fumbling, I can say, “The answer to that is found on this page of the transcript where the witness says…” and in a perfect world, I have the transcript right there and can turn to the page and read what was said. That’s in an ideal universe. Sometimes it is more like, “Well, I think they said ‘X’ but the transcript will give you the answer.”
eJournal: If you write a good brief, what is the point of oral arguments?
Steele: The entire point of the court arguments is for the judges to ask questions. The judges should have already read the briefs. They are going to be at least vaguely familiar with all of the relevant case law. Now they are going to have questions.
Sometimes the questions are going to be about the record, so they may ask, “I don’t understand what happened here. Can you tell me what was said? What was the context?” The prosecutor and the attorneys have the full context when writing the briefs. Sometimes there are questions that we didn’t answer because the answers seemed really obvious to us when we had the transcript. Sometimes the question is going to be about other cases. If we do this, how does it affect other cases? We’ll get into those discussions, too, but we are there for questions.
Questions are good! I want questions! Questions tell me what is on the judges’ minds and tell me that the judges are interested. I go to court ready with a few minutes of what is essentially my canned presentation. If the judges say nothing, and all I can hear is crickets in the background, this presentation will hit all the high points. I don’t ever want to give that, because it means that the judges have no questions and that is never good. I expect to get a couple of sentences out and then we are going to talk about whatever it is that the judges want to talk about.
Then the opposing counsel is going to get up and hopefully the judges will ask them tons of questions. Depending on the court, I may or may not have been able to save some time for rebuttal, to get up and tie it all together. Then the judges will thank us for our time and wish us a nice day and go back into their chambers.
eJournal: Is it common for the appellant to be present when you give oral arguments? What other people might attend? Do those attending wield any influence?
Steele: If the defendant is incarcerated, they are almost never there. The appellate courts generally are in a separate building from the trial courts. They don’t have holding facilities and they don’t have the same security ability to transport somebody who is in custody. I tell the defendant that their family and friends are welcome at oral arguments.
The courts can’t take in new information, so in theory, the judges are supposed to ignore anything that happens in the courtroom. Their focus is the record. I like having the families there because it helps humanize the client. The brief is just a piece of paper, but a person in the courtroom is a mom, a dad, the client’s sister or girlfriend or wife.
I tell them, “Dress for church and whatever happens, keep a poker face. Whatever happens, whatever they do, don’t react.” I like having these people in the courtroom in part because they can go tell the client, “This is what happened.” The client hears it from me but hearing it from your mom is completely different. I want the client to hear and understand it. The victim’s and complainant’s family are rarely there. I think the prosecutor tells them about it, but I’ve almost never seen them.
Sometimes we’ll get press; occasionally there’s a courtroom full of students who are there for their school field trip. Every once in a while, the court will go on the road and we’ll be arguing in front of a whole bunch of law students. Often, the only people in the room are the attorneys.
eJournal: Moving forward, what happens after you complete oral arguments? Does the court ever research the case itself or are they only relying on the briefings?
Steele: Now the judges are going to think about the case and they are going to talk about it. The judges are going to decide amongst themselves what to do and they are going to pick one of the judges to write the decision.
The judge who is writing it will be the one who will read everything. That judge is going to get the transcripts, look at the exhibits, read all the cases and write the opinion. They circulate that among all the judges who either sign off on it or if there’s disagreement, do like the U.S. Supreme Court does and you get four or five different written opinions about what the heck happened here.
Then, in the fullness of time, the decision is published. That can take four to six months, sometimes a year. The longest I ever waited was around 18 months. Long is good, although after about six months the client is usually climbing the walls. I have to tell them that the court can say the trial judge did it right really quickly; that doesn’t require a lot of explanation. If they’re going to say, “There was a mistake, and here is how not to do it again,” that takes time to explain.
eJournal: Do the judges seek further input from the attorney or the state? Do they ever ask you to answer additional questions?
Steele: I’ve never had them do it, but in theory they can. The judges sometimes ask for supplemental briefings. Every once in a while, something will change in the middle of an appeal. Maybe I’m making a Federal Constitutional argument and the U.S. Supreme Court comes down with a decision that changes the focus of the case. I can either go to the court and request permission to give them a briefing, “Hey, there’s this brand-new case. We have to talk about it,” or they will come back to us and say, “Hey, we want you to talk about this.” This will happen now and again, and then my life gets exciting.
eJournal: The process of an appeal is complex and work intensive. I guess that’s a good thing! We’re out of space for this month, so let’s postpone what happens after the decision is handed down until next month. Readers, it just gets more interesting from here, so come back next month to find out about what can happen if the appeal goes in the defendant’s favor and what recourse exists if it does not.
To read more of this month's journal, please click here.