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The Appeal, Writ and Habeas Corpus Petition Process

What is an appeal?

An appeal is a petition to a higher court by the losing party in a lawsuit to overturn a lower court's ruling. The basis of an appeal must be a reversible error in the application of the law at the trial court level (i.e., based on the facts, the court clearly misapplied the law).

In criminal cases, an appeal can target the conviction itself or just the sentencing portion of the decision without regard to the underlying conviction. For example, if a defendant is properly convicted of manslaughter but a judge sentences the defendant to a prison term that is beyond the limit of the law, the defendant will only appeal the prison term while leaving the conviction itself intact.

An appeal may be filed only after a final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn't bogged down by delays and trials aren't constantly put on hold while waiting for appeals of a judge's every ruling.

At the conclusion of a trial, the losing party may also make direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to immediately overrule the jury's decision, but these are rarely successful.

Does an appeal constitute a new trial?

No. In an appeal there are no new issues presented or witnesses called to testify. The appellate court will only review the trial's transcript and evidence presented during the trial to determine whether there were errors in either procedure or application of the law. Even if there were errors, if they are deemed minor - legally called "harmless error" - the judgment will not be overturned or a new trial granted.

Can any judgment be appealed?

The short answer is no, there is no absolute right to an appeal. Each state has laws which outline the types of cases which appellate courts may review. There must be an error of law for an appellate court to review a case. The fact that the losing party did not like the verdict is not enough to sustain an appeal.

That being said, even in administrative courts or lower level courts, if anyone's constitutional rights have been infringed upon, they may sue to enforce their rights and/or to revisit the original case.

What is the appeals process?

In most state court proceedings, the appellant or petitioner (the party appealing the verdict) must file a notice of appeal within 30 days of the ruling. In federal court, the deadline is 60 days. The filing of the notice of appeal starts the clock running on the appeals process and there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged errors of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) writes a response.

Once the appellate court receives both petitioner and respondent briefs, it will analyze the arguments and make a determination of whether: a) there were errors of law made by the trial court, and b) whether the errors rise to the level of "reversible error" (very serious errors). As noted above, harmless errors will be overlooked by the appellate court.

There may or may not be oral arguments presented by petitioner and respondent. If the court decides to hear oral arguments, the petitioner will present their arguments and field questions from the judge(s) and then the respondent will do the same. In most appeals, this question and answer format lasts 10-15 minutes per side.

Whether the appeals court hears oral arguments or issues a ruling based solely on the written briefs, the court will either: 1) affirm the decision; 2) order a new trial; 3) modify the ruling in some way; 4) consider new facts or evidence (seldomly); or 5) in extremely rare cases, may throw out the case entirely.

What are the odds of a successful appeal?

The number of successful appeals is low. Appellate courts give the trial court great leeway in conducting trials. The law does not guarantee perfect trials, therefore appeals courts will only overturn verdicts which contain clear, serious errors of law.

Because of the leeway appeals courts give trial verdicts, petitioners carry an even greater burden in proving that errors of law were serious and not harmless. If an appellate court can find any reasonable argument that the error wouldn't have changed the verdict (and is therefore "harmless"), it will refuse to overturn the verdict.

There are, of course, numerous cases where serious errors were made and appeals courts will overturn those verdicts. Particularly serious are charges that the trial court denied rights guaranteed by the constitution, such as due process and equal protection rights.

I lost my trial because my attorney made stupid mistakes, can't I rely on an appeal to correct them?

Don't count on appeals to make up for any real or perceived deficiencies at trial. You should put all of your energy into the trial itself, which includes finding the right lawyer to try the case. Successfully appealing a verdict because you had a deficient attorney is extremely difficult proposition. You can't appeal because you simply had a bad lawyer.

You can appeal on the basis that your attorney was so incompetent that you were essentially denied your 6th Amendment right to a fair trial (known legally as an "ineffective assistance of counsel" appeal). This occurs almost exclusively in criminal defense cases and the standard for the appeal is very high--courts are extremely deferential to the competency of attorneys and maintain a strong presumption that the lawyer's assistance was within professional standards. To put it in perspective, there have been cases where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.

Many cases aren't eligible for appeal because the trial attorney did not object to a ruling during the trial, and therefore didn't "preserve" that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.

Because the attorney failed to object at trial to the admission of only a written statement rather than live testimony, however, the defendant is deemed to have waived this right and an appeal will not be allowed on that issue.

The example sounds absurd--an attorney waives your constitutional right through ineptitude, yet your appeal on the basis of ineffective assistance of counsel fails--but it happens frequently. An appeals court may reason that putting the witness on the stand wouldn't have had any positive effect for the defendant and therefore the decision not to object could be considered a trial strategy. That's the type of deferential latitude attorneys receive in ineffective assistance of counsel appeals and the reason why it is imperative to choose your attorney wisely at the beginning of the process and stay involved during each aspect of the trial.

What is a writ?

A writ is a directive from a higher court ordering a lower court or government official to take a certain action in accordance with the law. For example, if a lower court decides to try a case that is out of its jurisdiction, one or more of the attorneys involved may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to transfer the case to another jurisdiction.

How are writs and appeals different?

Writs are extraordinary court orders and only issued when a moving party (the one seeking the writ) has no other options. In the case of the writ of mandamus from above, the moving party had to act quickly because the lower court improperly took the case. If the moving party had simply objected at trial and waited to appeal, a tremendous waste of time and money would have occurred - and all for nothing if the trial court improperly took the case.

Generally, higher courts won't review decisions of a lower court until a final verdict is delivered, for the aforementioned reasons of efficiency and leeway given to lower courts. Unlike appeals, which require a final verdict, writs are immediate orders and extraordinary in that the normal course of a trial is disrupted, potentially causing disorder and delay.

Courts do not take such events lightly and higher courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, irreparable harm would occur to a party, and there are no other options.

Courts may also issue writs, such as writs of attachment and execution, in order to force compliance with a court order by an unwilling party.

What's a writ of habeas corpus?

A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.

Literally translated, a writ of habeas corpus is a court order to "produce the body," and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also known as "the Great Writ," habeas petitions are often referred to as the hallmark of the United States justice system. Unlike other countries where the government may throw anyone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.

A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.

Everyone has the right to be challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.

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