Lessons About Appealing Verdicts Part 2
An Interview with Lisa J. Steele, Esq.
by Gila Hayes
In last month’s journal, we discussed the process of building an appeal on behalf of a client wrongly convicted by a trial court. Appellate attorney Lisa Steele, a lawyer of 26 years’ experience, explained in detail how an appellate brief is crafted and the process of arguing it before an appeals court. Because the information is so detailed, we broke the interview with her into two segments, returning this month to discuss what happens after the appellate court has published its decision.
eJournal: We left off last month with the appellate court having returned a decision on your appeal. I suppose that might be good or bad. What’s next?
Steele: Let me back up slightly. Many states, including MA and CT have two levels of appellate courts, the intermediate appellate court and the state’s supreme court. The intermediate appellate court hears the vast majority of cases. Only a few cases are heard first by a state’s supreme court.
So now I have the court’s decision sitting in front of me. Let’s assume it is from the intermediate appellate court. If it is good news, I call the client and tell them. And then I have to say, but this isn’t the end of the story. The state can and will file a petition to the state supreme court and say, “I think the appeals court got it wrong. I want you to look at it.” They lose a lot less often so they are more likely to get review.
If it is bad news, I will often send the decision to the client and then call them a day or two later, when (hopefully), they have had time to get the decision by mail and look at it as we talk. Now, I will say that I can petition the state supreme court and say, “I think the appeals court got it wrong. Please look at it.”
If the supreme court says, “Yes, we are going to review it,” we do the whole thing over again, and so we are going to have another round of briefs and another round of arguments, but it is going to have a tighter focus because we both are familiar with it, and we address just the specific question the court wants to look at. We are mostly arguing about whether the appeals court made the wrong decision, or sometimes, was it forced to make that decision because of some earlier decision by the state supreme court (precedent) that only it can change or re-interpret.
If the state supreme court says “no,” then the appeal is done in that state. The defendant may be able to go to state habeas, or in very, very rare circumstances to the U.S. Supreme Court.
Either side can also ask either the appellate court or supreme court to reconsider. If they made a significant mistake, there are ways to go back to the court and say, “Um, um, this isn’t right.” Maybe they’ll change it and maybe they won’t. A motion to reconsider may be the only option if it’s a decision by the state’s supreme court.
eJournal: I want to step back to the appellate court’s decision. What’s the likelihood of a murder or manslaughter conviction being overturned by a state appellate court?
Steele: Reversal is complicated. As a whole, if you look at CT and MA and look across the board at all the criminal defense cases done by all of us–private counsel that do appeals, the public defenders, the assigned counsel who do what I do–maybe we get something useful for the client in one in ten-ish of the cases.
Something useful does not necessarily mean the client goes home. That is relatively rare. It may mean that the court says, “You were convicted of two robbery offenses, but there’s really just one robbery, so we are going to merge them and you only get sentenced for just one robbery.” Well, that’s nice, but it is not sending you home and it may not change your time at all.
A number of years ago I had an OUI case–a drunk driving case–in which the client was convicted under two different provisions in the drunk driving statutes. The court came back and said, “Really, the legislature intended these to be alternatives, so you can get sentenced to one or the other, but you cannot get sentenced on both.” They can send it back for resentencing and, depending on the original sentence, the judge may still impose the same total time.
eJournal: In self-defense cases, what common trial errors might lead to a reversal?
Steele: There could be any number of legal errors–
- How the defendant was questioned;
- What searches were done;
- How the jury was selected;
- What evidence was admitted or excluded from trial; and
- What instructions the judge gave the jury.
Those are some of the most common, broad areas.
eJournal: Some of those are specific issues that influence jurors. What are examples of issues you look for when reading trial transcripts that alert you to trial errors?
Steele: Sometimes the record will show issues about–
- What questions can prospective jurors be asked about their opinions on weapons and self-defense;
- What evidence can be offered about what the defendant said that’s consistent with the self-defense claim;
- What evidence can be offered about the aggressor’s prior record and/or reputation for violence;
- What evidence can be offered about the defendant’s past, social media posts, training, membership in organizations and ownership of other weapons;
- Whether the defendant can offer expert testimony about self-defense training, practice and procedures;
- Whether the defendant can offer expert testimony about perception, memory, and reaction time issues specific to self defense;
- Mis-statements by the prosecutor about how guns work or about self-defense; and
- The self-defense instruction to the jury.
eJournal: Even if those mistakes happen at trial, it seems that going back for a retrial only makes it harder to prevail.
Steele: First, and foremost, I want to say that you really want to win this thing at trial. Remember that most cases don’t go to trial. The vast majority of criminal cases are resolved by plea. Your self-defense case may be different because you have someone saying, “No, I won’t plead, I won’t agree that I did anything wrong here.”
But you may have cases that plead out to reckless manslaughter, criminally negligent homicide, something that’s a much lower level of culpability with a much shorter sentence. Particularly in a homicide case, you may be in jail for the entire pretrial. You may be in a place where you are not getting bail. That time may be credited to you if you’re ultimately convicted, but if you’re acquitted, you’re just losing that time.
Clients look at this and say, “I’m going to be in jail for a year before I even get to trial. I have a family, but I’m not earning any money while I’m sitting here. I’m not seeing my kids, I’m not caring for my elderly grandmother, so if there’s a plea, I’m just going to take it because my family is more important than anything else. Just get me out of here.” That is 100% the client’s decision and if the client tells me that is what we are going to do, I say OK I will try to make it happen.
eJournal: In earlier conversation, you commented on the difficulty of appealing a negotiated sentence. I was shocked because I thought plea bargains stipulate that you can’t appeal.
Steele: You’ll probably get a less good agreement from the prosecutor, but in some states you can. I had one a few years back where the issue was whether the search warrant was valid. All the evidence came out of the search warrant. They reserved the constitutional issue of the search warrant in the plea, so that was the only appellate issue.
eJournal: Searches are only one aspect of evidence. There is so much detail being gathered that it is a tall order to ask the defense attorney to keep track of it all. Truly intending no offense–I’m surprised that more cases aren’t reversed over mistakes by attorneys.
Steele: In a well-investigated case, the attorney is drowning in information. There are going to be police reports and lab reports; they are going to have sent the firearm out and they are going to have tested it; there is going to be gunshot residue testing from the deceased and from the defendant; there is going to be a massive pile of stuff that the attorney has to keep track of. Occasionally, things will fall through the cracks, but a good trial attorney has staff to keep track of it all.
eJournal: Isn’t all this detail good so long as it corroborates the statement of the accused?
Steele: Let me speak about confirmation bias from my firearms trainer perspective: let’s say you’ve walked into an armed robbery in progress at a convenience store. You see someone with a weapon threatening the clerk, who is an utter stranger to you, and you choose to engage the robber. There are two or three video cameras recording and the clerk backs up your story entirely, “This guy was pointing a gun at me, demanding all of my money, and I thought he was going to kill me.” This is a case that is probably not even going to end in arrest; it is probably not going to get an indictment; it probably is never going to show up on my desk because exactly what happened is so clear.
A case that may show up on my desk is where you’re at a bar, and you and the other guy have some history together. You’re both drinking and both being argumentative and disruptive. One of you shoves the other one and you take it outside and somebody gets shot.
It is a lot muddier because you’ve been drinking and everybody’s perceptions and memories are going to be muddled. It happened outside so there probably is no video, so now it is going to be you and your buddies’ word against what was seen by the buddies of the deceased. It is probably dark so if the deceased had a weapon, maybe the police will find it but maybe they won’t; or maybe the deceased’s buddies hide it or wander off with it. Now the case is muddy, messy and complicated.
Once the police have formed the opinion that you did it, they’ve made an arrest and they’re building a case. Now the tunnel vision can start kicking in. That’s going to be hard to break. Confirmation and tunnel vision are part of human nature – you pay more attention to, and weigh more heavily, the things that confirm what you expect, and tend to ignore things that are in conflict. This is where your attorney may be able to get somewhere with a plea, or you may reach the place where the prosecutor looks at you and says, “This may be a hard case to take to trial, but this office doesn’t dismiss gun cases. I can plead it but I can’t dismiss it.”
There are prosecutors who won’t dismiss a drunk driving case because they fear that five minutes after they dismiss your charges, you’ll have some champagne to celebrate and go run into a school bus. The gun cases tend to run the same way.
You are going to get media attention. Gun cases attract press and they are going to dig up stuff. That may also influence how the detectives see the case and how the prosecutor sees the case. Once the momentum hits, even if you’ve got a really good witness who wants to come forward and say, “I saw this and it really didn’t happen that way,” to what extent will the institutional momentum not want to believe that witness?
eJournal: Are crime investigation misdeeds generally acknowledged and treated as important by appellate courts?
Steele: I think the court will always treat what comes before them with great seriousness. But sometimes, the judges don’t know a lot about either self defense or about weapons. Ideally, the problems all need to be clearly explained by the trial attorney before the appeal so it is all in the trial record. There are limits on what I’m allowed to tell the appellate court. I’m not allowed to tell them new things.
In an actual case, the defendant used a hollow point bullet, and the state’s firearm expert–not the medical examiner, the firearm expert–went off on a tear about hollow points, and essentially gave enough basis that the prosecutor began calling it a flesh-ripping, killer bullet in the closing arguments. I said this was factually wrong, and an improper appeal to the jury’s biases. The problem was that the trial attorney hadn’t objected to what she said. They probably didn’t know very much about ammunition and didn’t look at the expert and say something to the effect of, “Mr. Firearms Examiner, you’re an appointee of the State Police, right?”
“You’re familiar with the firearm and the ammunition issued to the State Police?”
“What is the standard ammunition issued to the state police?”
To which the response would have been, “The exact same bullets the defendant used.” Then the prosecutor couldn’t have made that argument, but the defendant needed an attorney who knew about ammunition.
In closing arguments, everything the attorneys say should be supported somewhere in the transcripts or be a reasonable inference from the transcripts or be something that you can argue is common knowledge. The problem is that the attorneys are working from notes and memory and they get stuff wrong. Now the question for the court is, “Was the prosecutor off-record?”
The trial court is somewhat forgiving of little mistakes because the court knows the attorney didn’t have a transcript to check, so they’re going to call it “rough and tumble” or argument or talk about the improvisational nature of argument. That is functionally what happened in this case. The appellate court affirmed and said, “Well, the expert was talking about how much more damaging this particular kind of bullet was, so the prosecutor’s claim was based in evidence. Affirmed.”
I had a case where the prosecutor elicited testimony from the witness about the trigger pull weight. In closing arguments, they started talking about lifting a bag of sugar and how you can’t lift a bag of sugar by accident. If somebody doesn’t know that the mechanics of pulling a trigger is completely different from the mechanics of lifting an object, they don’t know that’s not a fair comparison. If they didn’t know that, didn’t object, didn’t put that information in at trial, it’s hard to explain it for the first time in the appellate court and say, “This is wrong!”
The bane of the appellate attorney’s life is a concept called “harmless error.” Here, the court says, “Yes, it is a mistake. Yes, it shouldn’t have happened but the evidence against the client is so overwhelming that even though there is a mistake, it didn’t make a difference, and we are not going to overturn the conviction.”
The appellate attorney is left looking at the client and the client is saying, “But they made a mistake! It was important!” But, the court didn’t see it as important.
eJournal: Is the state court of appeals the final recourse?
Steele: Most convictions can be appealed in the state system. If it is a federal constitutional claim, we can try to go to the U.S. Supreme Court. If we are dealing with a self-defense case we may have Second Amendment or possession issues, so there may be a federal constitutional issue and it may be the kind of issue that the court, as it is currently configured, may be interested in. The problem is that the U.S. Supreme Court gets tens of thousands of applications every year of which they take, I think, fewer than 100 these days. It is going to be a rare case that you look at and say, “I think this has some chance of success.”
eJournal: Switching to the positive for a moment, if you appeal a verdict and the court agrees that you did not get a fair trial, what’s the likely outcome?
Steele: The most common relief we ask for is a new trial. The case starts over somewhere at the pre-trial stage, depending on what specifically was the error. Rarely, are there errors that can cause an entire count to be dismissed.
This depends a lot on what the result is and how many charges there are. In a self-defense case, you may have the homicide charge itself. If the person is not legally in possession of the weapon, there may be weapons charges. Depending on this person’s interaction with other people at the scene there may be assault charges. You will sometimes see possessory offenses combined, like possession of a firearm while intoxicated.
There are a frightening number of my cases that generally result from young people at a bar. There is alcohol and there are drugs and there is often–let’s phrase it as “hurt feelings.” And the next thing you know there’s a fist fight and somebody says, “Let’s step outside.” Then things get really complicated.
Then there may be a whole bunch of secondary offenses. The question may be, “What’s the threshold for intoxication under the carrying while intoxicated statute? Is it the same as drunk driving? Is it different?” We may ask, “Did you prove the level of intoxication?” That’s usually a small part of the case, but I’ve had small details sometimes become the important part of the appellate case.
I had a case with a young college student who got himself into a tussle with another college student. The whole thing was recorded by security video that showed the other kid hitting my client, pushing him down the hall, kicking him in the head. You’re looking at this video and saying, “Good Lord!” The kid finally had enough. He pulls out a knife and stabs the kid that’s attacking him. He wins the assault case but he loses on the possession of the weapon charge because he’s carrying a switchblade–on a college campus. Neither of the attorneys were focused on the switchblade possession. They were all worried about the assault case. This possessory thing was the tail of the dog and it became the central appellate issue. It came down to a question of whether the corridor of the dormitory was part of his house. There are statutory exemptions in some cases for having a weapon where you live.
Things get complicated when we get into cases where people share common areas. If I live in an apartment house and I want to go down to the scary, little dark laundry room in the basement to do my laundry and I have my firearm or my knife or my pepper spray with me, am I in my house? That’s one of those not-easy answers. That tiny thing in a case suddenly becomes incredibly important on the appeal.
eJournal: What if none of the issues you raise get traction with the court? If we aren’t granted a retrial, are we at a dead end?
Steele: From there, the case will typically go into the state counterpart to habeas where the defendant can challenge mistakes made by trial counsel. This is also the place for claims of actual innocence based on new forensic science or new witnesses unknown at the time of trial. After state habeas, and state habeas appeal, then the defendant may be able to file for federal habeas.
eJournal: May we clarify the terminology? Doesn’t a habeas petition claim that the person is being unjustly detained? Are we going to a higher court and asking for a ruling on guilt or innocence?
Steele: Sometimes. There are different flavors. Only talking about MA and CT habeas petitions, and only at a state level, one kind of habeas is ineffective assistance of counsel. It is a different procedural argument. When the court comes back and says, your issue wasn’t preserved, the attorney didn’t make the objection properly, the record is inadequate, habeas is where you go to address that. You say, “I lost this case because my attorney didn’t object; a competent attorney would have made that objection, now I want the court to find that my attorney was incompetent and that it mattered.” That is one level of habeas. Habeas is also the place where you go to say, “My attorney didn’t deal with this alibi witness, my attorney never talked to them and I wanted to present that alibi witness,” or, “My attorney never had this piece of evidence tested.”
It happens! In the case I’m working on now, the attorney never had a firearms examiner do a casing comparison. The habeas attorney is going to hire an expert to do a casing comparison and if it matters, the attorney will say to the habeas judge, “Look, the attorney was inadequate because they didn’t do this test. I did, and here are the results and, if the jury had heard them they would have reached a different verdict.”
The second distinct flavor of habeas is actual innocence. Think of the DNA exoneration cases. That is the case where you’re saying, there is new evidence that was not available at the time of my conviction that shows that I didn’t do it. For your typical self-defense case, this one is not going to be particularly applicable.
Self-defense cases are different! They’re fundamentally different because the logic of self defense is that the defendant is admitting, “I was there, I did it, I meant to do it and I was justified in doing it.” It is not a who-done-it case that is going to turn on forensics. It is not going to turn on DNA to show you were not the one who was there and that somebody else was holding the gun. It may turn on witnesses that weren’t found; it may turn on some security video that was just found; but it is more likely to turn on ineffective assistance.
The habeas attorney gets to complain about everybody; they even get to complain about me. Remember last month when I said if I couldn’t do what the client wants for an appeal they would get a long letter from me explaining why I won’t do it?
In addition to wanting the client to understand, the reason they are getting that long letter that I heard and understood them is to document why I think it is a bad idea. I want the client to understand why I think it is a bad idea. Then, when the habeas attorney asks, I want that attorney to understand my reasoning.
If the attorney looks at it and says, “I see your reasoning, but damn, you’re wrong about this part here,” then it is documented. It is not a matter of having to remember five years later, “Now, why did I think that was a bad idea?” I can say, “This is what I was looking at.” If the habeas attorney finds a key case I missed, I might have to say “I didn’t see that case that you’re talking about. You’re right.” It hasn’t happened yet, but it certainly could.
Sometimes when I write that letter, the process of having to set out the reasoning on paper may make me think, “I missed this the first time I thought about it, and the idea is looking better and better,” so that letter can make me change my mind.
eJournal: Returning momentarily to habeas court, how often does the client get the desired result?
Steele: I am not habeas counsel, but I get the impression it is not successful very often. After the habeas hearings, there can be a habeas appeal, and we can go through the whole process again.
eJournal: Who hears the habeas appeal?
Steele: It goes back to the appellate court to say the habeas court got it wrong. Those generally don’t get far, but occasionally the court will say, “No, no, wait…we see this, there was a problem.” We have had years and years and decades of fighting in exoneration cases where that does happen.
We had a homicide case out of CT in which a fellow was convicted with really, really bad arson science that has long since been replaced with a much better understanding of how fires work and a bunch of things in psychology and how people can be induced to give statements that are not true. There was probably 15 years’ worth of fighting before that guy finally walked out of jail. It went through appeal, it went through habeas, it went through habeas appeal, and I think it was on the second or third round of habeas before the court finally said, “Dang, you’re right!”
eJournal: You mentioned earlier that an awful lot of the time, the client will run out of money before exhausting all the possible appeal avenues. Playing the devil’s advocate, let’s say the client has a rich uncle who “wants to fight this all the way to the U.S. Supreme Court…” At what point does the government step in and say “Enough, already! This is settled!”?
Steele: Generally, it can go on a long, long time. You can have multiple rounds of habeas, and sometimes that is what it takes to get somebody to listen to the proof that you really did not do it. At each stage, it is getting harder and harder and harder. You are building up more momentum from all of the courts that said you were wrong. It makes it more likely that the court will say, “We’ve already heard this before.” It makes it much harder to find a court that says, “Gee, you’re right!”
At court, there are all kinds of complicated rules about exhausting your possible remedies and when something’s been brought up and whether you can ask something to be reconsidered. Again, that is all habeas counsel’s area.
eJournal: Are there attorneys who specialize in habeas pleas?
Steele: Yep. Because there are going to be court hearings with witnesses and investigators, you really want an attorney with trial experience. You really want somebody who has got the investigators, knows the experts, and who can say, “OK, this is what’s wrong with this case; go get ‘em.”
eJournal: Thank you for all the time you’ve taken with us explaining these complex and often misunderstood topics. You’ve been so generous with your time and knowledge, and while our Network members will likely never meet you, I want you to know how much I appreciate it and I know our members do, too.
Steele: With luck, Network members are never going to see my end of the process. But it can happen and I do talks for my local firearms organization because there have been several good self-defense cases that lost. I had the case for the kid who lost because he had a poor choice of weapon. If he’d had anything other than the switchblade, he probably would not have a criminal record. He didn’t know. He got it from some other buddy because he thought it looked cool; he didn’t realize what he’d gotten himself into.
I had the young lad with the alleged flesh-ripping killer bullets.
I had another one where the trial court just would not let the self-defense expert testify. The expert’s primary area of expertise was in training police officers and the court said, “Your client is not a police officer. Your experience is irrelevant to this case. You’re not testifying.” The appellate court looked at it and said, “You didn’t make a record about why this guy was qualified to talk about civilians, so the trial judge was within his discretion to say no.”
I had a case of an incident with a fellow at a bar that was a combination of how the jury instructions were structured, the closing argument, the evidence itself and the duty to retreat. He’s in the bar and another fellow had threatened him. He had flashed his legal revolver, saying, “Back off, quit hitting me.” He had gone into the bar kitchen to clean himself up because he had a bloody nose and had gotten scratched up a bit, and the guy he had been fighting with chased him into the kitchen, charged him and got shot five times.
At court, there was a whole discussion about whether retreating to the kitchen actually complied with the duty to retreat or whether he should have gone outside to the parking lot. There was an unmarked door in the kitchen that led outside and they asked whether he should have retreated through that door. How far do you have to go? When do you have to go?
eJournal: It seems like the trial attorney might have found a way to show how fast a charging attack like that happens.
Steele: That case didn’t have an expert either. Sometimes, it can be hard to interest self-defense experts in criminal cases. A lot of our trainers tend to be law enforcement or former law enforcement and they may not want to get involved in something where the facts are muddy enough that it is going to trial.
eJournal: You’ve emphasized that the straight-forward cases often are not charged at all. However, smart people also plan for disasters and messy, complicated cases certainly fit that description. Thank you for teaching us about the process that makes some of the legal remedies work.
About our source:
Lisa J. Steele is a widely published legal author, an appellate attorney, and helps teach concealed carry classes. She explains that appeals differ from a trial in the immense amounts of research and writing involved. It’s not unusual for her to get an apparently small legal problem that takes 40 to 50 billable hours to research. The results are compiled into a brief, but if the court turns down the appeal, she likes to offer the research to the National Association of Criminal Defense Lawyers’ publication The Champion or one of the law reviews and write an article so other attorneys may be able present her research in a different court. This may open the door to revisit the appeal in later years with the original court that turned it down, she explains. For armed citizens, articles by Ms. Steele that are sometimes reprinted in various websites that provide a rich resource for further learning from a trusted source. Web searches are recommended to readers wishing to learn more from her writings.
To read more of this month's journal, please click here.