One of the most valuable rights a person charged with a crime has is a right to a trial. But what happens when errors are made in the trial that affect the outcome or there is no trial but simply a guilty plea? As valuable is the right to trial, so too is the right to appeal. Every person convicted of a crime in federal court has the right to appeal their conviction. For a majority of those people, that right is waived when they enter their plea pursuant to plea bargain agreement. However, where there is a trial, there is often an appeal. Appeals are also seen when there is a contested matter that requires the trial court to rule in favor of one party.

Whether it is an objection overruled at trial, a motion to suppress evidence that is denied, or other adverse ruling, appeals are generally focused more on what the judge presiding over the case has done and less so on what the jury does.

Another way of looking at an appeal is looking at legal versus factual issues. Facts are typically decided by a jury and are rarely overturned on appeal. Instead, an appeal focuses more on what the trial judge did or did not do in terms of legal decisions and whether it affected the outcome of the case. While a trial lawyer is focused primarily on the facts in the case, the appellate lawyer is focused on the law. For this reason, it is important that a lawyer handling an appeal has a firm grasp of the law and exceptional legal skills. A good appellate lawyer must be able to identify the legal issues, know and be familiar with the law, and then be able to identify other cases and opinions with similar issues to make a compelling argument.

Unlike a trial where the “action” takes place in the courtroom, the appellate process takes place almost entirely on paper. When a person appeals their case, the first thing that typically happens is that a record of the trial proceedings (or other proceedings in the trial court) is prepared. That is because the appeal is based solely on what is in that record; appellate courts will not typically consider “new evidence” not presented to the trial court. From that record, issues must be identified and then researched to determine the merit and potential level of success. The final step is then preparing the appellate brief, a lengthy document that sets out in writing the reasons for why a conviction should be set aside. Even though there is little time spent in an actual courtroom, an appeal can sometimes involve, on average, 50 to 100 hours spent doing research and writing.

Once the brief is filed, the government prosecutors are given an opportunity to respond by filing their own respective brief. After briefs are filed, the appeals court then takes the case under consideration. The court may sometimes allow the appellate attorneys to make oral argument before taking the case under consideration as a final opportunity to supplement their written brief or answer questions.

After a defendant is convicted in a United States District Court, the right to appeal is to one of eleven circuit federal Courts of Appeals. These are geographic; the Fifth Circuit, for instance, hears appeals from federal district courts in Texas, Louisiana, and Mississippi. From there, the only court above those Courts of Appeals is the United States Supreme Court and is a court of discretionary review.

If you or a loved one has been convicted and is looking to appeal their federal conviction, Brent Mayr, Paul Schiffer, and Richard Esper are available to assist.