Seattle Criminal Appeals
Frequent Questions
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Frequent Questions

How does an appeal get started?

When must a notice of appeal be filed?

Will the defendant be released on bail during the pendency of a state court appeal?

How do I know whether I have a good appeal?

What if my trial attorney says there are no good appellate issues?

Once I initiate an appeal by filing a Notice of Appeal, am I irrevocably committed to going through the entire process to the very end?

Can I win an appellate ruling that the charges against me must be dismissed?

What can I do if I lose?

If I win can the prosecution seek further appellate review?

How much will all this cost?

What about going to federal court if my state court appeal does not succeed?

What makes a strong appellate attorney?

Why should I hire you to represent me on appeal?

How does an appeal get started?

The filing of a "Notice of Appeal" is what starts an appeal. This notice is a very simple paper which simply notifies the trial court and the opposing party that you are appealing the judgment of the trial court. The Notice of Appeal is filed in the trial court, and it must be accompanied by payment of the filing fee. The trial court then sends a copy of the Notice to the appropriate appellate court, and the appellate court assigns the appeal a number and sends the parties' attorneys a letter setting out the schedule for perfecting the appeal.

When must a notice of appeal be filed?

Following a criminal trial in a Washington State court, you have thirty days from entry of the date of entry of the order or judgment which is being appealed in which to file your Notice of Appeal. (In federal court you have only ten days in which to file your Notice of Appeal.) If you fail to file your notice of appeal within the applicable time period, you will lose your right to appeal.

Will the defendant be released on bail during the pendency of a state court appeal?

Probably not. The trial court judge decides whether or not the defendant will be released on bail pending appeal. In order to allow the defendant to be at liberty pending appeal the trial judge must make findings that:

  1. the defendant is not likely to flee;
  2. the defendant does not pose a danger to the community;
  3. the delay caused by staying the defendant's sentence pending the appeal will not "unduly diminish the deterrent effect of the punishment" imposed by the trial court; and
  4. staying the defendant's sentence will not cause unreasonable trauma to the crime victim or the victim's family.

If a finding is made against the defendant on even one of these points, the trial judge is forbidden to stay the sentence and the defendant will not be released on bail pending appeal.

If the defendant has been convicted of certain sex crimes, release on bail pending appeal is simply forbidden.

How do I know whether I have a good appeal?

Usually an appeal attorney cannot tell you right away whether or not you have a good chance of winning on appeal. Only after an appeal attorney has read the complete trial court record, including all the pretrial, trial, and sentencing transcripts, and all the briefs and records on file in the trial court, can an appeal attorney give you an informed opinion as to what your chances are of winning an appeal.

Occasionally, your trial attorney may be of the opinion that you have one or more particularly good appeal issues, and your appeal attorney may be able to evaluate some of these issues quickly. For example, if your trial attorney objected to the giving of a jury instruction on the grounds that it misstated the law, an appeal attorney may be able to give you a quick read on the chances of winning on that kind of issue. But more often than not, a fully informed opinion on your chances of appellate success must await a thorough review of the record.

What if my trial attorney says there are no good appellate issues?

Your trial attorney may be mistaken. It is generally a good idea to have a "fresh pair of eyes" look over a case. If your trial attorney failed to recognize an issue during the trial, then he or she likely will fail to recognize it again on appeal. Of necessity a trial attorney often must react quickly to events, and may be surprised by an unanticipated trial development. An appeal attorney has the luxury of having more time to think about things before acting, and with that extra time, an appeal attorney may recognize a trial error that your trial attorney did not notice.

Once I initiate an appeal by filing a Notice of Appeal, am I irrevocably committed to going through the entire process to the very end?

No. You can move to voluntarily dismiss your appeal at any time. If you decide to initiate an appeal, and then later conclude that the odds of success are too small to be worth the added expense of continuing the process, you can move to withdraw your appeal.

Can I win an appellate ruling that the charges against me must be dismissed?

Generally no. In the overwhelming majority of criminal appeals, the absolute best that you can achieve is to win a reversal of your conviction and a new trial. Usually the best possible result from a criminal appeal is to be put back in the position you were in before your trial started. So an appellate victory usually takes you "back to square one" and the prosecution gets another crack at obtaining a conviction at a second trial.

In rare cases it may be possible to win a reversal and a dismissal, but these circumstances are truly rare. For example, if you actually succeed in persuading an appellate court that as a matter of law there was insufficient evidence to support a conviction, then your conviction will be reversed and dismissed. But the standard for showing insufficient evidence as a matter of law is a very difficult one to meet, and this does not happen often.

In other unusual circumstances you may be entitled to a reversal and a dismissal, such as where you demonstrate a violation of the state court speedy trial rule, or where there has been particularly egregious governmental misconduct.

What can I do if I lose?

You can seek further appellate review from a higher court. You are entitled to one appeal as a matter of right. If you are convicted in a Superior Court, then you are automatically entitled to an appeal to the Washington Court of Appeals. If you lose in the Washington Court of Appeals, you may petition the Washington Supreme Court for another level of appellate review, but you are not automatically entitled to such a second level appeal. On the contrary, you have to convince the Washington Supreme Court that your case meets one of the criteria for discretionary appellate review. The odds of persuading the Washington Supreme Court to grant such review are not good, and the most petitions for review are denied.

If I win can the prosecution seek further appellate review?

Yes. Either party can petition the Washington Supreme Court for further discretionary appellate review.

How much will all this cost?

It is generally impossible to predict just how much an appeal will end up costing, but most felony appeals where the trial took more than a two or three days, are likely to cost several thousand dollars. Generally speaking, the longer the trial was, the more expensive the appellate process will be. The longer the trial, the longer the trial transcript will be, and the more expensive it will be to order preparation of the trial transcript. Also the more serious the charges, the more expensive an appeal is likely to be. If an appeal involves issues pertaining solely to the sentence imposed, and does not involve any challenge to the conviction, it will likely be cheaper. If an appeal involves challenges to both the conviction and to the sentence imposed, that will also increase the cost.

Furthermore, it is difficult to know in advance what steps the prosecution may take which might increase the cost of the appellate process. For example, if you appeal the prosecution may decide to cross-appeal some ruling which was made in your favor.

Suppose the trial judge excluded some evidence which the prosecution wanted to put before the jury. If you appeal your conviction, the prosecution may decide to cross-appeal the exclusion of that evidence. If the Court of Appeals decides that you are entitled to a reversal and a new trial, it will then go on to decide whether the prosecution gets to present that excluded evidence at the retrial. Obviously a cross-appeal will make the appellate process more expensive.

What about going to federal court if my state court appeal does not succeed?

In some cases it is possible to go to federal court and to obtain further judicial review of a state court conviction. This procedure is called petition for a writ of habeas corpus. The rules governing federal habeas corpus proceedings are extremely complex, and only the most simplistic overview can be given here. Briefly, here are a few of the rules:

  1. Only a federal claim can be raised in a federal habeas corpus proceeding. For example, a claim that the trial court's admission of a hearsay statement violated Washington Evidence Rule 404(b) cannot be raised in federal court, because the Rule is not a federal rule. But a claim that the trial court erroneously admitted evidence which violated your Sixth Amendment right to confrontation can be raised in a habeas corpus proceeding, because the Sixth Amendment is a federal right.
  2. There are strict time limits. If you wait too long to file your petition for habeas corpus, your petition will be time barred.
  3. There is a strict "exhaustion" requirement. Generally, you cannot raise a claim in federal court unless you have first presented that claim to every available level of the state court system. So you cannot go to federal court until you have "exhausted" every available remedy in the state court system.
  4. You can only win in a federal court habeas proceeding if the state court appellate decision that you are challenging is clearly contrary to an established precedent of the United States Supreme Court, or an unreasonable application of a precedent of the United States Supreme Court.
  5. Generally speaking, you can only go to federal court on a habeas corpus petition once. Only in very rare circumstances will you be permitted to file a second federal habeas corpus petition.

What makes a strong appellate attorney?

In order to be a good appellate attorney, it is important to have had some trial experience as well. An attorney who has tried criminal cases is better able to recognize trial court errors, to appreciate the prejudicial impact of certain errors, and to convince appellate court judges that the trial judge made a serious mistake. It is particularly helpful to have had trial experience both as a prosecutor and as a defense attorney.

In order to be an effective appellate lawyer, it is helpful to have had experience working for an appellate court. Working for appellate judges and drafting appellate opinions enables for them leads to a better understanding of what type of issues are most likely to be of interest to appellate courts, and what type of arguments are most likely to persuade appellate judges.

Why should I hire you to represent me on appeal?

The four most important talents that an appellate attorney should possess are: (a) comprehensive knowledge of the criminal law; (b) the ability to spot issues which the trial attorney has missed; (3) the ability to write a persuasive brief; and (4) the ability to speak persuasively in a very restricted amount of time. I have exceptional talent in all four of these areas.

Because I have been practicing criminal law for over 25 years, because I served as a deputy prosecutor, and because I tried criminal cases for several years before becoming an appellate specialist, I know Washington criminal law very well. I have developed the ability to spot appellate issues which the trial attorney failed to see.

I am an excellent writer, a fact I attribute in part to the fact that my father was a professional writer for over fifty years. A good writer (and a good speaker) spends a lot of energy on organization. Much of the law is an exercise in logic: if this, then that. A good writer organizes the appellate brief so that the appellate judges will see the logic of your argument on their own. Long before any conclusions have been articulated in the body of the brief, the appellate judges have been induced to form their own conclusion that reversible error was committed, and that the trial was not a fair one.

Finally, the ability to speak effectively in a very short period of time is generally simply a function of hard work and planning. In most appeals the appellate attorneys are given ten minutes in which to make their arguments. Those ten minutes must include both opening and rebuttal arguments. The key to making effective use of 10 minutes of oral argument is preparation.

Like a general preparing for a battle, I make contingency plans, and develop answers for dozens of questions which the panel of three judges might ask. If the appeal involves multiple issues (and most do) I prioritize the arguments, isolating the one or two that I think are most likely to be of interest to the court. But I also plan for the contingency that the court may surprise me and show the greatest amount of interest for the one issue which I thought would least interest the court. I often spend six or eight hours preparing for a ten minute oral argument. In this way I know that when I stand up to speak, I am as well prepared as it is humanly possible to be.

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"The criminal justice system is not perfect by any means. Mistakes are made and innocent people are wrongfully convicted. Trial judges make serious errors, and prosecutors and police sometimes engage in unfair and illegal conduct in a misguided zealous effort to punish the bad guy.

James Lobsenz

  Top Seattle Attorneys - James E. Lobsenz Copyright © 2013 legalwerks.com, Inc.