What is the Appeals Process?
Not the End of the Road: Appealing a Conviction in Chicago, Illinois
The trial has ended and the jury has just returned from its deliberations. The foreperson tells the judge that the jury has reached a unanimous decision. The jury’s signed verdict is handed from the bailiff to the clerk. As the clerk reads the verdict, your heart dropped and the world seemed to stand still. The words coming from the clerk’s mouth seem like they are in slow motion. What the clerk actually said was a blur all that you remember is your family in disbelief. Even after the jury has left the courtroom, you are still not sure what just happened. Despite all your hopes and the prayers of your friends and family, the verdict was not what you expected. However, it’s not over, far from it. Even though a jury found you guilty, your fight has not ended and your real fight has just begun. Even after a criminal conviction you still have options to get the justice that you deserve. But your time to fight is short and you must act immediately to ensure that your rights to appeal your case are preserved.
Despite the many flaws that our criminal justice system may have it does have a mechanism to rectify mistakes and to right wrongs that were made in the trial courts. A highly specialized subset of law within criminal defense that focuses upon correcting these wrongs is known as appellate law. Appellate law includes direct appeals, post-conviction petitions, habeas corpus petitions, writs of mandamus, and 2-1401 petitions just to name a few options available to someone suffering from a wrongful conviction or unjust sentence.
Wrongful convictions are not only convictions where an innocent person was found guilty of a crime that he or she did not commit but it also includes convictions that resulted from trial errors. For example, wrongful convictions include convictions that resulted from due process violations, prosecutorial misconduct, ineffective assistance of counsel, or other constitutional violations. In fact, the vast majority of appeals that are successful are based upon some violation other than whether the prosecution proved its case beyond a reasonable doubt.
The exact method of attacking a conviction is case specific and must be tailored to individual needs but general rules do apply. For example, direct appeals are limited to the evidence that was admitted at trial, post-conviction petitions focus on constitutional deprivations that are not contained within the trial record, habeas corpus petitions can only be filed in federal court when you have exhausted all your options in state court, and 2-1401 petitions are a means to vacate judgments that are older than 30 days. Only a trained and experienced attorney will know which method is best for you and your particular situation.
Mr. Jaleel is a criminal appeal lawyers in Illinois who handles the most challenging criminal appeals case throughout Illinois and the Seventh Circuit Court of Appeals. The issues we handle are challenging and complex. Mr. Jaleel’s appellate practice is 100% devoted to criminal appellate matters.
Generally, a direct appeal is the first-step that is taken to overturn a conviction. The right to file a
direct appeal is guaranteed by the 5th and 14th Amendments to the United States Constitution. However, the Illinois Supreme Court Rules governing appeals to the appellate court and appeals to the Illinois Supreme Court must be followed exactly; otherwise, you run the risk that the reviewing court will dismiss the appeal for not complying with the Illinois Supreme Court Rules. The rules governing direct appeals include what motions must be filed in the trial court to preserve your right to appeal; how and when a direct appeal must be filed; what must be contained within the direct appeal; the documents that must be filed to support your appeal; to minor rules such as the number of pages allowed, the size and type of font used, the number of copies that must be filed with the appellate court, the page margins and the color of the first page of the appellate briefs.
Motion for a New Trial
A criminal appeal will ultimately be argued and heard in a reviewing court but the appeals process truly begins in the trial court. The first major step in appealing a conviction is the filing of a motion for a new trial in the court where the trial occurred. A motion for a new trial must be filed within 30-days of the final order from the judgment being appealed. The motion for a new trial while not required for appellate jurisdiction it is a critical step to lay the proper foundation for a successful appeal.
The Supreme Court Rules state that a motion for a new trial must contain all the arguments that you intend to raise in your direct appeal. A failure to raise any argument could result in that argument being waived for appeal, which means that you may not be able to raise the waived argument on appeal. To survive waiver, arguments must be raised with specificity and they cannot be conclusory statements without support from the trial record. It goes without saying that a waiver of any viable argument could be detrimental to your chances on appeal because the appellate court will not consider even valid arguments that are waived.
The Notice of Appeal
After the motion for a new trial is decided in the trial court the party filing an appeal has 30 days to file a notice of appeal with the clerk of the circuit court where the trial was conducted. The notice of appeal is the formal method of transferring jurisdiction of the case from the trial court to the appellate court. This step is critical and a delay of one-day could result in the case becoming final and being unable to appeal. Once the notice of appeal is filed, the trial court is no longer authorized to make any further rulings on your case.
As stated, the filing of a notice of appeal is a jurisdictional step that must be filed on time and a notice of appeal that is untimely will forfeit your chances to appeal. The appellate court may authorize a late notice of appeal. After the notice of appeal is filed and notice is given to the appellate court, the arduous process of creating the appellate record begins. The appellate record is the evidence in an appeal. Unlike a trial where witnesses are called to testify, exhibits are introduced as evidence, stipulations are made between the parties; in a criminal appeal no new evidence can be introduced and arguments not raised at trial cannot be argued on appeal.
The Appellate Briefs
The appellate lawyer then begins the time-consuming process of reviewing the appellate record page-by-page and line-by-line to determine what grounds for appeal exist. This process usually involves reading and analyzing the thousands of pages that make up the appellate record multiple times. The analysis of the appellate record by the appeals attorney must be thorough and complete to ensure that every error of fact and law is discovered and investigated in depth. The ability to identify and define the key issues in an appeal is critical because a focused appeal will always be more successful than throwing everything against the wall and seeing what sticks. Knowing how to find and analyze the key issues requires more than knowing the law but it requires knowing where the law is headed and where it can be pushed forward, which only comes from years of experience.
The review of the record on appeal usually involves the creation of an abstract of the record. This abstract is essentially a detailed index of the record. This abstract will be used to prepare the actual opening brief. The person who filed the notice of appeal, known as the appellant, files the opening brief; in most cases in the appellate court it is the defendant who was convicted. However, the State is allowed to file what is known as an interlocutory appeal in certain situations such as when they lose a motion to suppress or a motion to dismiss.
The opening brief is the single most important part of the appellate process. A talented appellate attorney is able to shine in the opening brief. The brief is a written argument that contains the issues presented for review; the standard of review for the issues presented; a concise statement of facts; a detailed argument in support of your arguments; and the remedy being sought in the appellate court. The argument section must cite by page the law that supports the arguments being made and cite to the appellate record by page where the error was made, which is why a detailed abstract is so important. Anything short of that could result in the appellate court dismissing the opening brief without even considering the arguments.
After the appellant files the opening brief the person defending the appeal, known as the appellee, files a response. The appellee’s response is held to the same rules and procedural standards as the opening brief. The purpose of the response brief is to establish that reversible error did not occur in the trial court. The response must also cite by page to the law that supports its positions and it must cite to the appellate record by page.
Once the appellee’s response is filed, the appellant is allowed to file a reply brief. The reply brief is meant only to respond to the arguments made in the appellee’s response. The reply brief cannot raise new arguments not raised in the opening brief. After the reply brief, the appellate rules prevent any more filings by either party. At this point, the appellate court is allowed to make a ruling based solely upon the briefs filed by the parties. However, a few cases are called for oral argument by the appellate court.
The Appellate record
The appellate record consists of two separate parts, the common law record and the record of proceedings. The common law record contains everything that was filed in the trial court whether it was filed pre-trial, during the trial, or post-trial. These documents and exhibits consists of every motion or petition filed by either party; every order entered by the trial judge; every piece of evidence introduced at trial; and any other documents that are contained in the court file. The motion for a new trial and the notice of appeal are also part of the common law record.
The other part of the appellate record is the record of proceedings. The record of proceedings is the transcript of the oral statements made during your case. Criminal cases almost always have a court reporter that is either physically present or in a remote location. The court reporter is responsible to transcribe every word that is being spoken regarding your case by your attorney, the prosecutor, the judge, any testifying witnesses, and any statements that you make. The record of proceedings is the certified transcript that the court reporter creates based upon his or her transcription of the proceedings. The clerk of the circuit court where your trial occurred must certify and bind the common law record and the record of proceedings. Once the appellate record is certified, it or a certificate in lieu of the record must be filed with the appellate court. At this point, in the direct appeal process is where the talent of the appellate attorney matters and it cannot be underestimated how much an appellate attorney means in the difference between victory and loss.
The Oral Arguments
Oral arguments are vastly different than the opening or closing arguments that are made at trial. Instead, oral arguments on appeal consist of questions that the appellate justices have regarding the case. These questions can either be based upon the relevant law or upon the facts adduced through the appellate record. A ruling is also not given by the appellate court at the conclusion of the oral argument. Rather, the appellate court will issue a written ruling sometime in the future. This written ruling can either be a written opinion that is published in the law books, which means that the case has precedential value to future cases or it can issue a written order that is not published and does not have precedential value.
What happens after the Appellate court decision and supreme court review?
The losing party on appeal has a right to file a petition for reconsideration with the appellate court, which states the reasons why the appellate court should reconsider their decision and either party can request that a written order be published in the official record. The losing party can also file a petition for leave to appeal with the Illinois Supreme Court. Unlike a direct appeal where the losing party has an absolute right to appeal to the appellate court, there is no corresponding right to appeal with the Illinois Supreme Court. Instead, the Illinois Supreme Court can deny or grant a petition for leave to appeal. Most appeals that are filed with the Supreme Court are not considered for review. The petition for leave to appeal must state the reasons why the Court should take the appeal and it is vastly different than an opening brief with a vastly different purpose.
The Supreme Court is not focused upon correcting wrongs or determining whether the lower courts made the right decision. Instead, the Supreme Court is focused upon clarifying conflicting or ambiguous statutes or decisions by the lower courts that reached different decisions with similar facts. The Supreme Court seeks to ensure a uniform application of the laws and to prevent errors to be repeated in the lower courts. Therefore, to increase the likelihood of the Supreme Court taking your case, the petition for leave to appeal must analyze how the lower court’s incorrect decision will affect other cases that are pending or will be pending in the future and why that would be detrimental to the criminal justice system. If the Supreme Court grants the appeal, like the briefing schedule in the appellate court the appellant has a chance to file an opening brief, the appellee can file a response and the appellant can file a reply brief. Unlike the appellate courts, the Supreme Court typically calls most cases it hears for oral argument.