Taking the Mystery Out Of the "Trial Court" and "Appellate Court"

How is the criminal justice system organized? How many possible chances do you have to appear in front of a judge? If you lose your trial, how many appeals do you really have? How many opportunities are there for you to assert your innocence, explain the injustices in your case, and argue for your freedom, or a reduced sentence after a conviction you believe is flawed?

These are very common and pressing questions which weigh on the minds of not only those who are accused of criminal misconduct, but also on the minds of their family members and friends. People who find themselves or their loved ones embroiled in the criminal justice system, thrown into it by the State or Federal government, face a frightening web of seemingly endless courthouses and “jurisdictions” and terms like “motions” and “briefs” and “trials” and “appeals.” This short article will not define all terminology, nor will it provide all answers, but it will provide some structure and simplicity to the idea of “the legal system” for those who have been accused of having committed a criminal offense.

The easiest way to conceptualize the legal system is to imagine a pyramid. At the lowest and widest level of the pyramid is a bandwidth known as the base. In the criminal justice pyramid, this base represents your local State and Federal district courts (sometimes called “circuit courts” or "superior courts" in some States). Within this bottom level of the pyramid we find the cases that are charged by the local authorities and brought in front of a trial judge for determination (guilt or innocence, or plea bargaining or dismissal). For one reason or another, most of these cases are resolved by way of plea-bargaining, or occasionally, a dismissal of charges after fantastic work by a defense lawyer who has convinced a judge to throw out a case based on evidence illegally obtained. However, for those few cases that to proceed to a trial – because statistically we know that most of those will result in a conviction – that small portion of cases will proceed up to the next highest level of the pyramid, which is the “direct appeal” level. In the State system, the “direct appeal” level is reached when the case is transferred with the assistance of an appellate attorney to the State intermediate court of appeals. In the Federal system, the case will be transferred through the assistance of an appellate attorney to one of the regional United States Courts of Appeal, of which there are 13 (split into 11 regions across the country, plus one in the District of Columbia, and another specifically set up for the Armed Forces).

At this “direct appeal” level, your appellate attorney should dissect the entire case to look for any and all errors made by the judge or by the prosecution during the proceedings (from start to finish) endured back down in the trial court. Those errors are then artfully explained by the appellate attorney in your “Appellant’s Brief” wherein your lawyer also lodges legal arguments in an attempt to convince the Court of Appeals (generally a panel of three appellate judges who are reviewing trial court cases for errors) to send the case back to the trial level for a new trial, or in some cases, at least a new, lower sentencing.

If the appeal is unfortunately unsuccessful, then in most instances your lawyer should press forward by trying to convince the State supreme court, or in Federal cases, the United States Supreme Court, to accept transfer of the case for review of both the Court of Appeals’ and the trial court’s determinations. However, the State supreme court and the United States Supreme Court, in all but a very, very few limited instances, are courts of unfettered discretion, which means that they do not need to accept any appeals from any parties and generally only accept approximately 60 to 80 cases each year. (Why even try, then? There are complex rules which govern that decision, which are beyond the limited scope of this paper. But in far simpler terms, you will never know if you don’t try! Litigation for the accused embroiled in the criminal justice system is a battle waged on paper, but with consequences often suffered in prison. No stone should be left unturned; no chance at arguing in front of appellate judges should ever be overlooked.) Once an attempt has been made to take your case to the State supreme court or the United States Supreme Court, this is generally considered the end of the “direct appeal” process.

At any point in the “direct appeal” process, if a panel of judges rules in your favor, the case is most often transferred back to the trial court for either a new trial, a new sentencing, or a new hearing on a particular claim. However, if you unfortunately do not prevail in the “direct appeal” proceedings, your case is far from over. The next level up on the pyramid is the litigation process called “post-conviction.” In the “post-conviction” process, an experienced post-conviction lawyer should be hired, who will dissect your entire case once more, this time performing a far more comprehensive review of all issues and procedures in hopes of finding either newly discovered evidence or errors which were made by your trial lawyer (or in some rare instances, even by your “direct appeal” attorney). At that point, your post-conviction lawyer will then prepare and file a lengthy brief back in front of your trial judge, which outlines all of the errors that until then, the trial judge likely had no idea ever even occurred. (Why does a “post-conviction” process begin back in front of the trial judge who convicted and sentenced you? Because that judge is in the best position to have assessed the performances during pre-trial and trial proceedings of the prosecutor and your trial lawyer, that judge is thus tasked with being the first assessor of your claims complaining about hidden malfeasances by these two sets of lawyers in the first level of the pyramid.) The prosecution is then permitted to oppose this filing, and then the trial judge will ultimately make a series of findings and decisions, sometimes first even holding a hearing to supplement the case record with additional evidence. If the trial judge sides with your post conviction lawyer, there is a good chance you will receive a new trial or at least a new sentencing. However, if the judge rules against you, then your case can be transferred back up to the intermediate court of appeals where another complete round of the appellate process takes place. Once again, if the first appeal is unsuccessful in the intermediate court of appeals, counsel may petition the State supreme court, or in Federal cases, the United States Supreme Court, to accept transfer.

Once again, if you win this round of appeals, then your case can be sent back to the trial court for a new trial, a new sentencing, or a new hearing on a particular claim. However, if you do not prevail, do not lose hope. All is not lost.

If you were convicted in the State system, you can then commence a second round of post-conviction litigation, called “Federal habeas corpus” litigation. Often times this round of litigation provides a convicted litigant a far greater chance of obtaining justice than can be found in the State court system. Why? Because the litigation takes place in the Federal system, in front of “fresh” eyes and with an entirely different review system in place. In the “Federal habeas corpus” process, a Federal judge will examine the State court litigation to ferret out whether any violations of the convicted litigant’s Federal constitutional rights were violated. If a Federal judge does find error, he or she is empowered to order a convicted litigant “released or retried within [a specified number of] days.” Only a highly skilled post-conviction attorney should be hired to represent you in this process. The downside to the “Federal habeas corpus” process is that there is no guaranteed right to appeal an adverse ruling from a Federal judge up to one of the 13 Federal Courts of Appeal. Rather, permission must first be obtained, through the procurement of a “certificate of appealability” which must be sought by your post-conviction lawyer from a Federal judge. It is a difficult task, to say the least.

All that said, once again, even if you have pursued all remedies and all procedures available in all of these courts, if you find new evidence, or if a hidden error is discovered for the first time years later, there are still other procedural loopholes an experienced appellate or post-conviction lawyer can use as a wedge to re-open the courthouse doors for you once more.

In conclusion, make sure you consult with an experienced appellate or post-conviction attorney early on during your criminal case. There are stringent time deadlines which must be met at every turn. Failure to meet a time deadline can prove fatal to your appeal or post-conviction litigation, and in some instances, forever preclude you from pursuing claims further in other courts. No, none of this is simple!

The Pyramid of Trial, Appellate and Post-conviction Litigation

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