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What the Court of Appeals looks like from the perspective of a defense attorney.

January 25, 2018

 

 

 

The community of defense attorneys in Virginia who handle criminal appeals is small.  There are good reasons why most attorneys do not handle appeals.  Appeals are extremely complicated, take a ridiculous amount of time, and have almost no chance of succeeding.  And by the way, the process is full of landmines that can get the appeal dismissed and result in a bar complaint.  Oh and one last thing, the fees for court appointed appeals are laughable.  $400 for 40 hours worth of highly complex work is sort of laughable.  Does that sound like something you would want to do?  

 

Most clients have no idea how vanishingly tiny their chances on appeal really are.  Most envision getting a brand new trial.  It doesn't work like that.  There's no new trial and no new evidence.  Let me break down the process.  The first step is writing the "petition for appeal."  This is where the defense attorney writes arguments about how the trial court messed up and why the conviction(s) should be reversed.  A single judge up at the Court of Appeals reads the petition and either grants or denies it.  If it's granted, it doesn't mean you've won.  Far from it.  All that means is that a judge has deemed the issue worthy of further consideration.  About 90% of criminal appeals are denied and die at this stage. My source for that info is a Court of Appeals judge who spoke at an appeals seminar I attended last year.  If the petition is granted, you advance to the next step called the merits stage.  

 

At the merits stage, the attorney general's criminal appeals division takes over for the local Commonwealth's Attorney's Office.  The AGs have a tremendous home field advantage because they write tons of criminal appeal briefs and appear before the Court of Appeals judges far more frequently than any defense attorney.  Both sides write briefs (that have to bound in a certain way, with a certain color cover, with a CD attached---are you starting to feel nauseous?).  After the briefs are submitted, a date is scheduled for both sides to make oral arguments before a panel of 3 Court of Appeals judges.  A Court of Appeals argument is a completely different animal than a trial argument.  It's 1. more formal and 2. much more interactive. I have yet to have a Court of Appeals argument that lasted more than 30 seconds before I was being peppered with questions by the judges.  For criminal defense attorneys (who spend 99% of our time arguing in front of trial court judges), it can be a very disorientating experience.  

 

I looked through all of the Court of Appeals criminal opinions from 2017.  Yes, I have no life.  I counted 183 total opinions in appeals filed by criminal defendants.  Opinions only come out in cases that have reached the merits stage.  If the rate of criminal petitions being granted is about 10%, that puts us at a rough number of 1830 total criminal appeals to the Court of Appeals in 2017.  Out of all of those appeals, I counted 25 reversals of convictions.  In other words, about 98.6% of criminal appeals to the Court of Appeals in 2017 resulted in wins for the prosecution.

 

 

 

 

If a criminal defendant loses in the Court of Appeals, he/she has the right to appeal further to the Supreme Court of Virginia.  If you can believe it, the chances for criminal defendants in the Supreme Court are even slimmer.  In 2016, there were 28 criminal appeals decided on the merits.  3 of those resulted in reversals.  That was out of 774 total criminal petitions.  3 divided by 774 is .0037.  That means that 99.63% of criminal appeals to the Supreme Court of Virginia in 2016 ended in prosecution victories.  Another mind blowing stat is that almost 8% of criminal petitions to the Supreme Court in 2016 were dismissed for procedural defaults.  In other words, the appeal was dismissed for technical reasons because the attorney screwed up by filing late or filing something that didn't follow the Supreme Court rules.  I would imagine that feels something like this: 

 

 

 

It's really no wonder that not many attorneys are stepping up to the criminal appeals plate.  It's hard, thankless, and has a decent chance of ending up with a procedural default that gets you a bar complaint and possible bar action.  Who in their right mind wants a piece of that action?  I'm not being sarcastic when I say that I have nothing against criminal defense attorneys who won't handle appeals.  Objectively, it's a sound business decision.  Against all our better judgment, the mad men at Westendorf & Khalaf still handle criminal appeals despite the puny return on investment and the difficulty of the work.  It took me years of writing and arguing appeals to develop appellate craft.  I'm proud to be in that small group of attorneys who are qualified to handle them. I would feel like I was losing something if I stopped writing appeals completely.  So, if  you need an attorney for a criminal appeal and you're a millionaire, we would love to talk to you.  

 

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