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| Criminal appeals are a very specialized area of criminal law |
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As an attorney who has practiced criminal defense in Milwaukee for the past twenty-eight years-- much of it related to criminal appeals-- there is no doubt that the most misuderstood area of criminal defense is the postconviction and appeals process. This article will discuss those common misconceptions, and will show you how to avoid them.
Begin with realistic expectations. A common expression heard from inmates in county jails as they await trial is, "I'm not worried. I'm going to come back on appeal." Apparently, the inmate has somehow been led to believe that one's chances on appeal are greater than before a jury. Nothing could be further from the truth. Firstly, on average, the Wisconsin Court of Appeals reverses the criminal conviction in approximately two percent of the appeals that are brought before it. Thus, the numbers suggest that it is unlikely that any person who is convicted of a crime is "coming back on appeal." This is because the Court of Appeals is an "error correcting court" and, further, the court is required to give great deference to the result in the trial court. No criminal trial is wholly without error; but only prejudicial errors will result in a reversal of the conviction. Therefore, if you or a family member has recently been convicted of a crime, you must understand that the postconviction and appeal process is a long-shot.
Resist the temptation to "help" your postconviction/appellate lawyer. Persons convicted of a crime and sentenced to prison will frequently say, "I've got all day to sit in the law library. I will result issues for you, and help you write the brief." No lawyer would tell a client not to do so; however, I firmly warn you that this is not at all helpful to your appellate lawyer and, in many circumstances, it is counterproductive. The so-called law libraries in prisons are hodge-podge collections of law books, sometimes from other states, and they are rarely up-to-date. Thus, even a highly-skilled criminal appeals lawyer would have a difficult time doing effective legal research in a prison law library. But a bigger concern is that the inmate is almost certainly not a skilled criminal appeals lawyer. A person who is not trained and not experienced in criminal law is at a huge disadvantage. He simply cannot effectively identify legal issues and then research them. Consequently, all criminal appeal lawyers have one or more clients who will, on a weekly basis, mail off twelve page letters in small print with chain citations of cases, and incomprehensible legal arguments. When a lawyer receives such a letter, he has two choices: (1) simply ignore it; or, (2) try to understand it. A scrupulous lawyer will not simply ignore such a letter. Therefore, he is forced to spend valuable time attempting to understand the client's points, research them, and then write a letter back explaining why the issues and the law cited cannot be raised. This, of course, take time; so you can understand why an inmate's efforts to "help" the appellate lawyer are counterproductive.
One further point on this issue, inmates tend to be almost obsessed with "ineffective assistance of counsel" claims. Frequently, their research does not go beyond this issue. Again, it is easy to identify numerous ways in which a trial lawyer made mistakes during the course of a trial. No one ever tries the perfect case. Nevertheless, only errors that were so serious that, had the error not been made, the defendant would have been acquitted may serve as the basis for an ineffective assistance of counsel claim. Such errors are extremely rare.
More is not more. Some lawyers will routinely draft forty-five page criminal appellate briefs raising ten separate legal issues. Why do they do this? Because it makes the client happy. There is a firm belief among those in prison that, when it comes to appellate briefs, more is more. Again, nothing could be further from the truth. Firstly, remember that it is no difficult task to identify numerous legal errors that occurred during the course of any criminal trial. However, only prejuducial errors will result in a reversal of the conviction. There is no point, then, in raising in an appeals brief some minor error made by the court in admitting irrelevant evidence that in no way contributed to the conviction. Simply as a matter of logic, if you do not persuade the Court of Appeals to reverse your conviction with your best three issues, you certainly are not going to convince the court with issues four through ten. Moreover, by including issues four through ten, you diminish the persuasive impact of the strong issues. Remember, Court of Appeals judge are human beings. If a judge must laboriously wade through pages of listless legal argument on issues that do not matter, he may just miss the importance of your strong issue.
How do I know whether someone is a good criminal appellate lawyer, and how much should I pay? The criminal appeals process is entirely research driven. Therefore, a good appellate lawyer must have a broad understanding of the law. There is only one way to develop such a broad knowledge of the law: experience. Attorney Jeffrey W. Jensen has, literally, written the book on criminal appeals in Wisconsin. Therefore, when looking for a criminal appeals lawyer, the first questions must be: How long have you been practicing, and how many criminal appeals have you handled? Secondly, a criminal appeal is decided on written briefs. The Wisconsin Court of Appeals almost never orders oral argument on a criminal appeal. Thus, an effective criminal appeals lawyer must have strong writing skills. Ask to see samples of your lawyer's appellate briefs. Is the writing clear, concise, and understandable? Most of all, is the writing interesting and persuasive? If not, then you should continue your search.
This, of course, brings us to the important question of how much money to spend on a criminal appeals lawyer. Recently, the family of a recently-convicted person came to me seeking to hire a postconviction and appeals lawyer. They told me that they had been shopping around, and one lawyer quoted them a fee of $50,000 to handle postconviction motions and an appeal, if necessary. As we talked, I learned that the defendant was convicted following a guilty plea, and there were no pretrial motions. I frankly told these people that the lawyer who quoted them a $50,000 fee was attempting to take advantage of their shock and grief over their son's criminal conviction. A validly entered guilty plea waives all issues on appeal. Thus, where a person is convicted based upon a guilty plea, the only postconviction relief available to them were: (1) a motion to withdraw the plea which, after sentencing, is virtuallhy impossible; and, (2) a motion to modify sentence which, again, is very difficult to succeed on. Moreover, a lawyer's name and reputation alone carry no weight with the Court of Appeals. Judges-- unlike the hapless insurance adjusters in the television commercials-- do not receive an appellate brief with a certain lawyer's name on it, and then exclaim, "It looks like we're going to have to reserve this conviction." Instead, they read the brief, they discuss it among themselves, and then they issue an opinion. This is why the quality of the brief, and not the weight of the lawyer's name, will carry the day.
You can expect to spend between $10,000 and $20,000 on attorney's fees for a fully-briefed appeal to the Court of Appeals where there has been a trial.
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