Cases That Are Appealed

What Is An Appeal?

The Criminal Justice system can be a complicated system to follow. For a crime victim and/or witness who is also coping with the crime and its effects, the entire process can be difficult and stressful.

Further complicating matters is the fact that, once there is a conviction and the case is thought to be finished, the defendant ordinarily has the right to appeal.

An appeal from a judgment in a federal criminal case is a request by the losing party to have the federal Court of Appeals or the U.S. Supreme Court review the decisions made in the district court. Many of the issues raised on appeal concern how the district court judge managed a trial or plea, or ruled at sentencing. The issues are frequently technical and usually do not question the defendant’s guilt but rather the procedures used in the court process and the application of the relevant law. For instance, there may be questions about whether or not the judge should have allowed certain evidence to be presented, whether he or she gave improper instructions to the jury, or whether the proper sentencing criteria were applied.

Who Can Appeal?

In most criminal cases, an appeal is brought by a defendant after a court or jury finds him or her guilty.

Appeals by the government are limited by the United States Constitution. The 5th Amendment’s “double jeopardy” clause protects against multiple prosecutions for the same offense. Therefore, if the defendant is acquitted, the government cannot appeal.

There are limited instances, however, when the government can appeal. The government may appeal court rulings which grant a defendant post-conviction relief (e.g., the reversal of a conviction). It may also appeal district court decisions on certain pre-trial motions (e.g., the suppression of evidence and sentencing issues).

Who Represents The Government On Appeal?

The United States Department of Justice, specifically, the United States Attorney’s Office, handles criminal appeals on behalf of the government.

The United States Department of Justice, Solicitor General’s Office, represents the government in all Supreme Court cases.

Who Represents The Defendant On Appeal?

A criminal defendant has a constitutional right to an attorney at both the district court and appellate court level.

Those defendants who can afford to pay for an attorney may hire the attorney of their choice. Those defendants who are determined to be indigent (unable to afford an attorney) are provided court-appointed counsel.

Will You Have To Testify?

In reviewing the case, the appellate court considers only the written record of what occurred at the district court level. No new evidence or testimony is given. Victims and/or witnesses do not have to testify during appeal.

Criminal Appellate Procedure

Appeals arising out of cases from the Federal district courts of Wisconsin, Illinois and Indiana are handled by the Seventh Circuit Court of Appeals, located in Chicago, Illinois. Criminal appellate procedure involves a set of rules and time limits which guide a case through the appellate process. This process begins when a defendant convicted at the district court level files a “Notice of Appeal.” The defendant’s notice of appeal must usually be filed within ten days following the district court’s entry of judgment. If the government is appealing the district court’s decision, a timely notice of appeal may be filed within thirty days following entry of judgment.

The defendant, now referred to as the “appellant,” must file an “appellant’s brief.” A brief is a written legal argument which conveys the case to the court. On the average, it takes several months for a case to move from sentencing to the filing of the appellant’s brief.

The government then responds to the appellant’s brief by filing an “appellee’s” brief approximately thirty days thereafter. The appellee’s brief is an answer to the challenge made by the defendant. The defendant may, within fourteen days thereafter, file an “appellant’s reply brief” before the Court of Appeals considers the case.

In most cases, following briefing, oral arguments are scheduled before a panel of three judges. An oral argument is an opportunity for each party’s attorney to persuade the court and answer any questions from the judges. The argument, regarding the issues raised, usually lasts a total of 20 to 30 minutes. Only attorneys may address the court during oral arguments. Victims and/or witnesses may attend an oral argument which is open to the public. The defendant will not be present if he or she is in prison.

After the Court of Appeals receives the briefs and has heard arguments, it may take several months or more to make a decision. Ultimately, the appellate court’s final decision will either:

• agree with the lower court and uphold the previous decision; or
• disagree with the lower court and reverse the previous decision; or
• agree in part, disagree in part and send the case back for the lower court to take further action or resolve certain questions.

The Final Decision

In approximately 95% of appealed criminal cases, the decision affirms or upholds the criminal conviction.

The losing party may request a rehearing by the three-judge panel and/or may suggest that the case be heard by the entire Court of Appeals. Rehearing requests are rarely granted.

Review By The United States Supreme Court

After the Court of Appeals decision, the losing party may ask the U.S. Supreme Court to review the decision. Review by the Supreme Court is not automatic and the odds of having a case accepted for review are very low. A petitioner must ask for this review within 90 days from the date of the Court of Appeals decision.

How Long Does An Appeal Take?

The average felony case takes approximately eleven months from sentencing to the final Court of Appeals decision. While this may seem like an inordinately long time, it is helpful to understand why these delays occur.

There may be times when it appears that there is nothing happening with a case. Yet, there are a considerable number of procedural steps which must occur, each subject to time limits that may be extended. A large record needs to be compiled, and complex and lengthy briefs must be written. This is just a sampling of the events that must take place before the Court of Appeals reads the briefs, examines the record, conducts research on case law, hears oral argument, discusses and finally decides the case. Furthermore, in the interests of justice, fairness and thoroughness, time extensions are sometimes granted.

How can You Be Notified Of An Appeal?

Victims are automatically notified of the filing and outcome of an appeal under the Justice For All Act.

Post-Appeal Remedies

Under certain conditions, the U.S. Constitution and some federal statutes permit federal prisoners to challenge their convictions or sentences in a separate lawsuit, following the exhaustion of their direct appeal rights. These lawsuits are filed initially in district court and the losing party may seek permission to appeal to the Seventh Circuit and U.S. Supreme Court. Special rules govern these “collateral” proceedings, and, to prevail, the prisoner must demonstrate that the conviction or sentence violates the Constitution or law of the United States.