Appeals

It it common in many criminal cases to challenge the legal correctness of a verdict, sentence, or ruling. Attorney John Calcagni discuss this topic of Appeals.

https://www.calcagnilaw.com/

John L. Calcagni, III, is a prominent Rhode Island criminal defense attorney with extensive experience as a former military prosecutor (JAG Corps) and Special Assistant U.S. Attorney, specializing in federal, state, and military cases, including violent crimes, drug offenses, sex crimes, and white-collar cases, leveraging his prosecution background for defense in state and federal courts. He holds a Juris Doctor from Roger Williams University Law School, is admitted to practice in multiple states and federal courts, including the U.S. Supreme Court, and is recognized as a SuperLawyer. 

Transcript

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SPEAKER_01 0:13

What's your first thing? Metaphor. Has the jury reached a verdict? I'm John Cal Cagney, New England's premier criminal defense lawyer, and you're listening to my exclusive podcast. Not guilty, where all things criminal defense are explained and discussed. Thanks for listening and stay tuned. Not guilty. I'm New England-based criminal defense attorney John Kel Cagney and welcome back for another episode of my podcast. Today I want to speak about broadly the topic of criminal appeals. Do you know what an appeal is, Armando?

SPEAKER_00 1:20

An appeal, I would guess, is uh when I'm going to sort of fight against something.

SPEAKER_01 1:26

Yeah, I mean that's a general way of thinking of it. Remember, we've spent so much time talking about what happens in the trial courts. Well, when somebody loses, either they're found guilty after trial or perhaps they lose an important motion and they want to have that adverse decision reviewed or revisited, they would file a notice of appeal. And when the notice of appeal gets filed, the case gets transferred to a higher court for purposes of the review. So here in Rhode Island, our highest court is known as the Rhode Island Supreme Court. Yep. Across the border in Massachusetts, they have a criminal appeals court, and they also have the Supreme Judicial Court. So they actually have two appeals courts or synonymously appellate courts. In the federal system, we have courts of appeals. Rhode Island and Mass fall into what's known as the First Circuit Court of Appeals, and then we have the highest court in the country in the federal system, known as the United States Supreme Court. Now, appellate courts or courts of appeals are set up much differently than trial courts. Trial courts have cases that are presided over usually by a judge, and then if there's a trial, it could be a case with a jury or a judge sitting without a jury. And depending upon what happens in the trial court, an important motion gets denied, an individual gets found guilty after trial, the defendant would file a notice of appeal causing the trial case to be sent up to the higher court, the appeals court, for review. And those courts are comprised of a group of judges. For example, here in Rhode Island, the Supreme Court is comprised of five judges, or we call them Supreme Court justices. And their job is to review or analyze what happens in the trial court to determine if the decisions of the trial court are grounded in law. In other words, they review the conduct and the performance of the attorneys to come before it, the defense lawyer, the prosecutor. They review the decisions and the performance of the trial judge. And in some cases, they even review the conduct of jurors. And their job is to determine if some mistake or error occurred at the trial court level. And if so, was that a harmful error that somehow violated or undermined an individual's rights? Or was it a harmless error that though the error occurred, it didn't violate any rights? If the appeals court determines that an error occurred and that it was a harmful error, they'll reverse the trial court decision or ruling or verdict after trial. Sometimes they'll even award a defendant a new trial. So some people think of it as like a second bite at the apple, which isn't quite accurate, but it's certainly an opportunity to sort of revisit issues that have been decided in the trial court.

SPEAKER_00 5:06

Okay. And does anyone have the right to file an appeal? Great question.

SPEAKER_01 5:13

Well, there's two types of appeals. One is called an interlocutory appeal, and the other is called a direct appeal. Interlocutory appeals get filed in the middle of a case. For example, you know, you've been accused of a crime, your lawyer files a motion to suppress evidence, the motion gets denied, and you want to have that motion denial reviewed on appeal immediately while the case is still open. The defendant hasn't pled guilty, hasn't gone to trial, the matter's still pending. In a circumstance like that, you can often apply to have the case heard on an interlocutory appeal. This varies by jurisdiction. Okay, keep this in mind. In Rhode Island, you've got to apply. In Massachusetts, you can apply. In the federal system, only the government can apply. Very interesting. And compare now the interlocutory appeal with the direct appeal. Somebody goes to trial, they get found guilty. They have a legal right automatically to file for direct appeal. So the interlocutory is kind of discretionary. You can ask for it, but there's no guarantees that it's going to occur. The direct appeal is a matter of right to answer your question. Now, some people say, well, gee, what if a motion gets denied and the court doesn't grant interlocutory appeal? Can that denial ever be reviewed on appeal? And the answer is yes. When there's a direct appeal, you're asking the appellate court to not only review the verdict guilty after trial, but if there's any motions that were denied that you claim were denied an error by the trial court on a direct appeal, you can also raise those issues. And oftentimes, when you apply for the interlocutory appeal in the middle of the case, a lot of times the appeals court, the Supreme Court, the appellate court, whatever we're going to call it, will deny it, knowing full well that the defendant on direct appeal can ask to have those decisions reviewed.

SPEAKER_00 7:32

Interesting. That um not to interrupt you, but if you have a quick answer for this, um the right to think that something was an error, is that based on opinion of oneself or by a fact that has to be proven that there was an error?

SPEAKER_01 7:50

Well, legal error is something that uh is claimed on the appeal, and um a lawyer may claim that, hey, a judge's ruling wasn't grounded in law, it was a misinterpretation of the law. That's an example. Um, a judge might issue a ruling that a lawyer disagrees with, um, and that can be reviewed on appeal. A prosecutor might engage in conduct that a lawyer alleges is misconduct, that can be reviewed on appeal. Okay. Sometimes a juror can engage in conduct during a trial, sort of in violation of a judge's order as to how a juror should conduct themselves during a trial. Not visiting the scene of the crime, not conferring with any witnesses in the case, not speaking with the lawyer, not doing independent research. And if we learn that those things occur after a defendant is found guilty, that can be addressed on appeal. So lots of things that can be addressed on appeal. But the appeal itself involves a number of important steps that I want everyone to know. First, you file the notice of appeal. Second, you order a verbatim transcript of everything that happened in the trial court that would document what was said, what was argued, testimony, objections, etc., so that the appeals court will have that transcript for purposes of their review. This is why it's so important that lawyers at trial who are making objections and arguments on behalf of their client go to great lengths to detail out their legal points in support of the position that they're advocating for, so that the appeals court will understand what the attorneys were attempting to do at trial. And judges typically do the same thing when they outline their decisions. So we got the notice of appeal followed by the transcript, and then the appeal itself. It's the written submissions of the attorneys as well as oral argument. And these written submissions are called briefs. And on appeal, you have two parties. Like at the trial, you have, for example, state versus Armando Machado. The state is the prosecuting entity, the defendant is Armando Machado, right? Make sense? Yep. On appeal, you have the person bringing the appeal, known as the appellant, A-P-P-E-L-L-A-N-T. That would be the defendant who was found guilty after, and the appellee, A-P-P-E-L-L-E-E, and that would be the state typically defending the appeal. Both parties have an opportunity to submit these written submissions. There's lots of rules on how long they can be, how many words, how they have to be formatted and structured. And in addition to the written briefs, uh, after they're filed and read by the court, the appellate court will uh invite the attorneys for the parties to come before it in order to present their oral argument, which are typically limited in time, measured in minutes. The longest oral argument time frame that I'm aware of is 30 minutes. That's a the rule here in Rhode Island, but you can request a lesser amount of time, or the court can set a lesser amount of time. So you've got to get your points, you know, concise and and you know well organized because you don't get a lot of time. And the remarks that you typically intend to deliver are are often interrupted by questions from the judges. That's the real focus of oral argument: being able to properly respond to uh interjected questions from the judges who are sitting on a panel in front of you uh until your time runs out. All five of them? All five of them.

SPEAKER_00 11:42

Wow.

SPEAKER_01 11:43

I just argued an appeal last week. You know, I got three or four sentences out of my mouth, and bang, the judges came out with questions. Now, of the five on the bench, uh for my recent appeal, only three of them uh asked questions. But those questions went on, as did the answers, right until my time ran out. And then I was able to sit down. Uh, the attorney for the state or the appellee got up, made his remarks, and then I was given a short rebuttal, a short period of time to respond to certain points that were made uh by that attorney. And then after that, it's done. It's not like a trial verdict where you wait around for the decision, you leave, and you wait for the justices to issue a written opinion, which will come several weeks, if not months, down the road, outlining what happened in the trial court, outlining the issues that were raised on appeal, the law that would apply to those issues, and then the legal opinion signed on to uh by the judges, by the judges.

SPEAKER_00 12:45

Interesting. So this thing can really stretch out.

SPEAKER_01 12:48

Yeah, I tell everyone the appellate process takes one to two years. I tell everyone that your best chance of success in the criminal justice system is at trial, you know, going up, you know, forcing the state to prove its case and being uh decided by a jury of your peers, a jury of 12, uh, because the likelihood of success on appeal, I don't have my fingertips on any statistics, but it's very, very low.

SPEAKER_00 13:15

Now, depending on what you're accused of, like the level of crime during that waiting period, um does it mean that that individual has to be imprisoned? Or great question. Can their life continue with some sort of normalcy? That's a great question.

SPEAKER_01 13:33

And we've talked about bail before, so I'll address this issue. If after trial a defendant is convicted and then sentenced and they're given a prison sentence, uh, you can often ask the court to stay or pause the execution of that prison sentence and allow the person to be continuously on bail while pending appeal. But that is very infrequently granted. Very rare. Most of the time that have where you have clients who have been sentenced to a term of incarceration and who also have pending appeals, they're waiting in the jail while the appeal is pending. At least that's been the case uh for most of my clients. I have a client recently was convicted after trial and was um blessed to have been sentenced to home detention or home confinement instead of going to the ACI. So, but that individual is serving out that sentence while the appeal is pending. All the other appeals that I'm working on now have been uh as a result of murder cases or uh child molestation, sex assault, very serious offenses, and all of the individuals that I can think of are are in prison while the appeals are pending. And here's another neat thing. Normally for a trial, you know the defendant is brought to court, they sit beside their attorney and they're there for each and every important step of the process. That is not true with the appeals. The appeals is are really left to the attorneys. Unless the defendant is out on the street, maybe they haven't been sentenced to a prison sentence, or alternatively, maybe their prison sentence has been stayed, they're on bail pending appeal, such that they have the freedom to walk into the building and sit in the audience while on appeal. Defendants who are incarcerated are not transported to the courthouse to be present for the oral argument aspect of the appeal. It's really like an academic exercise left to the attorneys for the parties as well as the judges that comprise the appellate court. Did I know that? Yeah, very interesting. A lot of people don't know that, but that's very unique. And, you know, it's a real different skill set to work appeals versus being a trial attorney. Uh many times folks that do trials don't touch appeals, and vice versa. Uh I don't uh fancy myself as an appellate lawyer, but I do like to take a couple of appeals each year just to keep the written and oral advocacy skills that apply in the appellate context alive and sharp. I do enjoy doing them, but they do require an enormous amount of time, preparation, lots of reading, thought process, lots of research and writing. Very different than sort of the quick reactionary stuff to me dealing with my new arrests, my arraignments, my bail hearings, my motions, and my trials. You know, you know, think of the appeal as the marathon, and what goes on on a day-to-day basis for a criminal defense lawyer is a lot of sprinting. Sure. Good way to put it. So that's it. That's my summary for this podcast episode uh pertaining to appeals. Um, and there's more information about them on my website. Actually, if folks decided to go to youtube.com and look up my name, they'll have the benefit of seeing a video of a very important appeal I did many years ago in front of the Massachusetts Supreme Judicial Court. I think it's a 2015 case. I had a case in the New Bedford District Court. I uh I represented a defendant who was a passenger in a motor vehicle, stopped, drugs were found inside of the car, and I challenged the lawfulness of the stop. I was moving to suppress the drugs, claiming that the car was stopped unlawfully, based primarily on the odor of marijuana from a burning marijuana cigarette that police observed having been smoked by the driver. And uh I lost my motion. The trial judge concluded that the odor of marijuana was enough to stop the car, but it was during this portion in time where the law was in a transitionary phase in Massachusetts and marijuana was being decriminalized. So I filed for an interlocutory appeal, which we talked about, is discretionary. The court granted my request, and this matter went to the Supreme Judicial Court. I appeared in front of the justices. I think there were seven. Uh there's more en masse than there are in Rhode Island. It was a 30-minute oral argument. It went on for a considerable period of time, and I won the appeal. And that was kind of like that case, Commonwealth versus Rodriguez, was one of the three or four cases that helped reshape, reshape criminal procedure and constitutional law in Massachusetts as it pertains to stops, detentions, and searches based on the odor of marijuana. I tried to do the same thing in Rhode Island, by the way, and I lost. Same issue, different state, different court, different opinion.

SPEAKER_00 18:51

Always learning something new on every episode. Looking forward to the next one. Sounds great. Take care. Not guilty.