Preparing Criminal Appeals: A Comprehensive Guide to Statements of Case and Facts, Lecture notes of Art

Download Preparing Criminal Appeals: A Comprehensive Guide to Statements of Case and Facts and more Lecture notes Art in PDF only on Docsity! EVERYTHING YOU NEED TO KNOW ABOUT PREPARING STATEMENTS OF APPEALABILITY, THE CASE AND THE FACTS IN CRIMINAL APPELLATE BRIEFS Acknowledgments This training module is vastly borrowed material from the AOC 2000 Appellate College lecture materials. The materials have been updated to reflect more current cases and modified to fit appellate practice in the Third and Fifth District Courts of Appeal where indicated. Introduction A criminal appellate brief always begins with three required statements: 1) the Statement of the Case, 2) the Statement of Appealability, and 3) the Statement of the Facts. For many advocates, preparing this part of the brief can be sheer tedium. Yet, experienced appellate counsel know that although arguments are not won and lost here, the benefit of drafting and editing quality preliminary statements will serve to focus the reader and set the stage for the arguments. Once the target audience (appellate justice or clerk) has finished reviewing the table of contents and the three statements, he or she generally has a pretty good idea what’s at stake in the appeal, how it will be argued, and why the judgment should be reversed. The arguments that follow give them a basis to do so. It takes careful work to put together well-crafted and effective Statements. Some panel attorneys, especially in the more complex, long-record cases, worry that they can never be fully compensated for the time necessary to write effective statements, especially fact statements. Statewide guidelines for compensation for Statements of the Case and Facts are a combination of ½ of the record review time, but with a guideline “maximum” of 10 hours. However, if the statements are unusually long – and appropriately so for the issues being raised – compensation over guideline time may be recommended by the appellate project attorney. The guiding factors for the recommendation are a combination of the level of detail in the statements and whether such detail is appropriate to the case and related issues raised. Thus, experienced appellate writers do not spend a lot of time including proceedings or facts that are irrelevant to the issues raised on appeal, and some simply resign themselves to taking their lumps rather than sacrificing the quality and effectiveness of the facts statement in a long record, complex case where a fair amount of editing to make them reader friendly may be necessary. 1 Prefatory Note on References to the Record on Appeal Rule 8.204(a)(1) requires that statements “support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Courts of Appeal have often emphasized the importance of this rule and voiced their displeasure with noncompliance. (See, e.g., Landfield v. Gardner (1948) 88 Cal.App.2d 320, 322-323, People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.) Two sets of issues arise as to the use of record references in the Statements of the Case and Facts. First, how to make shorthand references to the various parts of the record; and second, how meticulous one must be in making record references. On the first point, where there is a single sequentially numbered clerk’s transcript and a single sequentially numbered reporter’s transcript, one can simply refer to these as “CT” and “RT” without need of a specific explanation. If, as is often the case, there are multiple augmentations, supplements, or multiple volumes with separate numbering, some additional shorthand references are needed, with a footnote alerting the reader to this. For example: As separate notices of appeal were filed after conviction in the two trials, the clerk’s and reporter’s transcripts on appeal from the first trial, Court of Appeal No. C012762, and from the second trial, Court of Appeal No. C013188, are separately numbered. For the sake of brevity in nomenclature, appellant refers to the record from the first trial simply as “RT” and “CT,” and to the record in the second trial as “2RT” and “2CT.” This can be also used to distinguish transcripts of trials and probation revocation hearings, and the primary record (“CT” or “RT”) from the augmented record (“ACT” or “ART”). As to the second point, many excellent advocates, and most appellate projects, recommend putting in record references for virtually every sentence in their Statements of the Case and Facts, believing this to be the most accurate and complete way of complying with rule 8.204(a)(1). A minority put record references at the end of each paragraph, especially in the Statement of Facts, on the belief that this greatly improves the flow and 2 sections. Prior convictions, probation ineligibility allegations and the like should normally be summarized as well for a complete picture. Keep this section short and easily understandable. For example, if the information alleges several counts, state what charge is alleged in which count. If several different enhancements are alleged, state what enhancements apply to what counts. Though it is not always possible, summarize when you can. For example, if the information alleges three counts of robbery and use of a deadly weapon only as to count one, you need not separately describe each count. Simply state that the information charged appellant with three counts of robbery and that personal use of a deadly weapon was alleged as to count one. If there are a great number of charges (e.g., 40 counts), a chart detailing the charges and enhancements is helpful to the reader. Some care must also be taken with respect to amendments to pleadings, especially in cases with many counts and enhancing allegations. Frequently there will be one or several amended informations filed, and the charges on which a client is tried may differ in significant particulars from the original charges. It will rarely, if ever, be effective to spell out the details of all the individual informations and subsequent amendments. Absent some need to dwell on the amendments to the pleadings (e.g., if there is a preserved appellate issue concerning untimely amendment), it is probably best simply to note that the client was charged by the original information on such-and-such date, then relate how he went to trial on the charges in the third amended information, which can then be detailed: A second amended information filed on August 30, 2002 charged appellant with two counts of robbery (Pen. Code, sec. 211), one count of attempted robbery (Pen. Code, secs. 664/211), two counts of assault with a firearm (Pen. Code, sec. 245, subd. (a)(2)), and one count of discharging a firearm with gross negligence (Pen. Code, sec. 246.3), with a firearm use allegation (Pen. Code, sec. 12022.5) on all charged counts. (CT 7-9.) Some attorneys include a note to the effect that “appellant entered a plea of not guilty to the charges at arraignment in superior court on such-and-such a date,” however, this is considered an unnecessary fact. 5 Since the Court of Appeal is familiar with the applicable codes, there is no reason to recount the elements of the crimes described in the information. Just state the name of the offense and the applicable code section, and refer to the pages in the clerk’s transcript where the pertinent accusatory pleading is found, e.g. “One count of assault with a firearm (Pen. Code, sec. 245, subd. (a)(2)). (CT 7.)” 2. How the Conviction Came About Next, describe what procedures resulted in appellant’s conviction(s): a jury trial, a court trial, or a plea. Give the date on which these events occurred. If appellant pleaded guilty as part of a plea bargain, briefly summarize the important terms of the bargain. In more complicated situations – e.g., a slow plea, guilty pleas as to some but not all charges, etc. – some care is required in explaining the unusual circumstances. 3. Verdict If appellant had a jury trial or court trial, state the verdict. If the result was conviction on all counts, simply state that without repeating each charge. Briefly explain when charges were dismissed, or if appellant was acquitted on some charges and convicted of others. For example: After deliberating for nine hours over three days, the jury found appellant not guilty for the robbery and receiving stolen property charges involving victims Smith and Jones (counts 3 and 4), and guilty on all other charged crimes and found the firearm allegation true. (RT 450, 514, 537- 542.) 4. Sentence Next, describe the sentence imposed and the date of sentencing. There is some question whether you need to detail the specifics of the sentence in the Statement of the Case (e.g., that the court imposed a four year middle term, with three consecutive one third middle terms, etc.). Many writers always do this. However, if no claim of sentencing error will be raised in the brief, this serves no important purpose; and sometimes care must be made not to delve into details which might alert the court or the Attorney General about a 6 possible unauthorized sentence. For example: “Mr. Smith was sentenced to state prison on August 3, 2003, for a term of 20 years, 8 months.” Even where a limited claim of sentencing error is raised, it is usually not necessary to spell out all the sentencing details. Occasionally, where sentencing error is a primary or particularly key issue in the appeal it may be worthwhile to give a succinct summary of some of the sentencing details in the Statement of the Case. Normally, the more exacting details of the sentence – e.g., the reasons stated by the court for sentence choices, the interrelation of various complex sentencing schemes, etc. – should be saved for the sentencing arguments in the issue portion of the brief. 5. Notice of Appeal Finally, your Statement of the Case should usually conclude with a notation of the fact that a timely notice of appeal was filed, giving the date and appropriate record reference. B. Optional Case-by-Case Matters 1. Motions If you are raising the denial of a specific motion as error on appeal – e.g., pretrial motions to suppress or sever, trial motions such as Wheeler or mistrial motions – the Statement of the Case should identify the nature of the motion, the date it occurred, and the court’s ruling. Only scant detail need be included here as a more thorough discussion of the procedural history of the motion belongs in the introduction to the argument on this point. There is rarely any reason to mention motions decided favorably to the defense, or ones where the rulings do not give rise to an issue on appeal. 2. Extraordinary Events During the course of a criminal trial any number of events might occur which could give rise to an issue on appeal: e.g., defendant being forcibly removed from the courtroom or compelled to be tried in jail clothes, a juror being excused for illness or misconduct, a lawyer being held in contempt, etc. Where these form the basis for an issue on appeal, they should be briefly mentioned in the Statement of the Case. Wait until the argument section of your brief to describe the underlying facts in detail. There is usually no need to recount here the ordinary trial events (e.g., objections to the admission of evidence), which form the basis for a claim of error on appeal. This is better handled in the first part of the argument of the issue. A tactical exception can lie where 7 become interested in the Statement, and therefore read and absorb it, if your writing is clear, succinct, and to the point. The Statement of Facts As counsel for appellant in a criminal case you have the burden of persuading two of three judges to reverse either the verdict of twelve citizens after jury trial, the verdict of one of their brethren after court trial, or a sentence imposed on an individual convicted of a crime. Your first shot at meeting that burden is the Statement of Facts in the opening brief. Indeed, the court’s understanding (or lack of understanding) of the facts may determine the outcome of the case. The primary purpose of the fact statement is to let the court know what the case is about. A well crafted fact statement does much more. It is the means by which you take control of the case by setting up the legal issues you will be raising on appeal – by humanizing your client and/or mitigating the crime, by demonstrating the inadequacies of the prosecution’s proof or the reasons why particular errors were prejudicial, and by establishing your credibility with the court. A. Get Organized The first step towards creating a persuasive Statement of Facts is to read the record carefully and to take comprehensive notes with page citations. That way, you will not have to re-read the record as your notes will suffice. If possible, read the record all in one sitting or, with a long record, in one block of time. Most appellate lawyers agree that the best practice is to take careful, even copious notes when you read the trial portion of the record. You need to decide whether you are better served by handwritten notes or computer-typed ones (or post-it notes for really short record cases). Although there are advantages and disadvantages to each choice, most attorneys find the computerized method is by far more useful and efficient. There are two principal theories about when to write the Statement of Facts. Many practitioners (including the authors of the original essay) recommend that you write a rough draft of the factual statement as soon as you have completed reading the record, while the facts are fresh in your mind. In such a draft, you should err on the side of overinclusiveness, then edit out irrelevant matters and refine your language after you have had the chance to formulate the issues and do your legal research. If you cannot do a rough draft right away, do it as soon as you can. The longer the span of time between the reading of the record and the writing of the facts, the more likely it is that you will waste 10 precious, and perhaps unbillable, time rereading portions of the record. It is also more likely that you will forget details or nuances that you originally intended to include. Other practitioners believe that the best Statement of Facts will be written after you have figured out, at least tentatively, what issues you will be raising on appeal, as the shape of the issues affects how you will organize your fact statement. For example, if lots of evidence was presented as to the identity of the perpetrator, but your issues on appeal all have to do with the instructions on homicide, you will need only the briefest summary of the identification evidence, and will want to pay a lot of attention to the circumstances surrounding the killing. If you choose to draft your fact statement when you are writing the rest of your opening brief, it is even more imperative that you make very careful, detailed notes when you review the record, which will hopefully be adequate to refresh your mind about the details of the case after the all-too-often long delay between review of the record and preparation of the opening brief. Finally, whichever of these two approaches you utilize, when your notes fail you or confuse you on some key point (or when you can’t read your own handwriting), always go back to the record itself to find out what actually happened or was said. B. Matters Usually Excluded From the Statement of Facts In most cases, the Statement of Facts summarizes the facts of the offenses presented at the trial, not an account of the trial proceedings. The content of pretrial motions, arguments held outside the presence of the jury, opening and closing statements, discussions of jury instructions, the text of jury instructions, and the sentencing hearing and/or matters included in the probation report ordinarily are not included. If you plan to raise an error which occurred during one or more of the proceedings just mentioned, the most common practice is to describe the predicate facts in the argument section of the brief where that error is argued. As with everything, there are exceptions to this rule. If your client pled guilty after the preliminary hearing, then your factual statement will probably be a summary of the probation report, since this is the source of facts which the trial court had and considered when it imposed sentence. If your client pled guilty and you are only appealing the denial of a pre-plea motion to suppress, then you can construct your fact statement from the evidence produced at that motion. When the facts come from a source other than the usual trial proceedings, this should be specified to the court, perhaps in a footnote so the reader will understand why such detail is included in the statements section. The facts generally should not include lengthy verbatim quotes from the record. A sentence or key phrase may occasionally be quoted directly. But where the precise 11 wording of a witness’s testimony or ruling or jury admonition by the court is necessary to explain the basis of a legal error, the specifics of that testimony or ruling, including crucial verbatim quotes, are more appropriately presented in the argument section of the brief where the error is raised. C. Be Clear, Concise and Engaging It is almost impossible to persuade a reader of anything with dull, dry writing. Likewise, when a fact statement is too long, complicated or confusing, all hope of persuasion is lost. It is thus very important to make your Statement of Facts as understandable, short and interesting as possible. Unlike the sterile procedures outlined in the Statement of the Case, the human situations played out in trials of criminal cases are inherently interesting, sometimes even gripping. A well-written statement of facts succeeds when it concisely tells the story of the case in a humanizing, compelling manner. In complex, long-record cases, it will often be impossible and unwise to edit the facts down to keep the Statement relatively short. Never leave out important details for the sake of brevity. When a complex, long-record case necessitates a lengthy fact statement (i.e., more than 10-15 pages), it is all the more important to make the discussion as clear, readable, and “novelistic” as possible. 1. Avoid Witness-By-Witness Summaries The best approach to organizing a factual summary is to provide a chronological description of the underlying facts of the case (i.e., the facts of the offense(s) charged and the defense(s) presented). The worst approach, generally speaking, is a chronological description of how the evidence was presented at trial. In other words, avoid writing a seriatim, witness-by-witness summary of trial testimony. Very often witnesses are called out of context or out of order at trial. A chronological rendition of trial testimony that was out of sequence in the first place creates a confusing, sometimes misleading and usually very uninteresting picture of the facts of the case. There is nothing worse than having to leaf back and forth between the pages of a Statement of Facts just to figure out what happened. Although this is usually the way record notes are taken, it is unwise to leave it as is since the “witness-by-witness” account is a frequent pet peeve of appellate judges and their law clerks, and is almost always a bad idea for you and your client. 12 credibility with the court. The rule with relevant “bad” facts is not to omit them; rather do what you can to mitigate them. Along the same lines, make sure you don’t inadvertently omit facts which are favorable to your client. If that same rebuttal witness admitted on cross-examination that he or she was offered a favorable deal in a pending case after agreeing to testify against your client, that fact should be in your brief because it suggests the witness’s rebuttal testimony was unreliable. 5. Omit Unnecessary Details Most readers quickly lose interest with writing that contains useless details. Irrelevant details add nothing to your brief and can seriously detract from its persuasiveness. It is rarely necessary, for example, to include the exact address of the scene of the crime, or the direction in which the perpetrator fled when he ran from the store, the titles and ranks of the arresting officers, the chain of custody of evidence, or the exact location items of evidence were found at the crime scene. Sometimes the entire testimony of witnesses that is critical for purposes of trial, is completely irrelevant on appeal and should be excluded wholesale. This frequently occurs with expert testimony. For example, pages of expert ballistic testimony, which established that your client’s gun was the murder weapon, can be excluded from the facts on appeal if there is no dispute about the expert’s conclusion. A simple statement that expert testimony established that the bullet found in the victim came from appellant’s gun will suffice. (And here is the exception to another rule: namely, you can reference to scores of pages of transcript, “RT 180-241,” for this curt factual summary.) If a series of witnesses testify to the same general events (for example, three friends of the defendant all testify that he was with them at a party at the time of the burglary charged against him), don’t laboriously detail the testimony of each. Instead, summarize the testimony of one witness, then note that two other witnesses reported the same thing; or note that “Witnesses A, B, and C testified that . . .” Either way, note the names of the witnesses and cite the appropriate part of the record. Of course, there will always be a tension between the need to be complete and the imperative of avoiding unnecessary details. The best approach is to err on the side of over-inclusiveness in your first draft of the fact statement, then whittle it down appropriately later on, when you know precisely which issues are being raised on appeal and which factual matters are significant in the case. 6. Do Not Present Your Client in a Bad Light 15 Always be vigilant about the manner in which you refer to your client or the manner in which you characterize the facts of your case so that you do not unnecessarily portray your client in a bad light. For example, if your client screamed obscenities at the judge and trial counsel when a motion was denied, that irrelevant fact should be excluded. Although it occurred at the time of the motion, it adds nothing to your later legal argument that the motion was improperly denied. If your client was convicted of strangling a 70-year-old invalid with drapery cords then repeatedly hit her in the head, it is pretty hard to minimize the atrociousness of the crime, but you can avoid maximizing it. For example, rather than saying, “The evidence established that the 70-year-old victim, an invalid for 20 years, was forcibly strangled with a curtain cord and then bashed repeatedly on the head,” break up the information and use less colorful language. Describe the age and health of the victim in one portion of your facts, and save the description of the cause of death for a later portion. Then state simply that the victim was strangled and was hit several times, or words to that effect. You will still have a complete and accurate factual summary, but you will minimize the shock value of those facts. Along these lines, don’t leave out information that makes your client look good. If your client testified to an alibi which was corroborated by two witnesses who said the same thing she did, don’t exclude any mention of those witnesses just because the content of their testimony was the same as your client’s. At minimum, you should state that two witnesses corroborated your client’s testimony, identify the witnesses and make appropriate citations to the record. 7. Never Use Police Jargon Police officers often use stilted and tortured phrases in their testimony. This police jargon has no place in an appellate brief. The police officer in your case might testify, for example, that he “responded to the scene” and immediately “exited his vehicle” so as to “detain the black male subject.” Don’t write it up like that; change it to normal English and recount that the officer “arrived at the street corner, got out of his car and grabbed hold of appellant, detaining him.” 8. Identify the Source of the Evidence, Defense or Prosecution It is almost always a good idea to specify when the source of facts summarized comes from defense, as opposed to prosecution witnesses. Many experienced criminal appellate advocates break down the statements into “Prosecution Evidence” and “Defense Evidence” sections. Others avoid this separation when it detracts from effective story 16 telling and/or a succinct and focused presentation of the facts. If you don’t separate out prosecution and defense evidence (and rebuttal, surrebuttal, etc.) into separate subheadings, you should find other ways of advising the court that the testimony being summarized came from a defense witness. (Examples: “Joe Smith, called as a defense witness, saw no blows struck by appellant at this point in time.” “Officer Sanchez, called as a rebuttal witness, testified that Mr. Defendant told him that he had never been afraid of Mr. Victim.”) D. Always Be Accurate It is extremely important to be accurate when summarizing the facts of your case. Appellate clerks and justices rely on the factual summaries contained in the briefs in deciding the case. If they discover your summary is not accurate they will disregard it and will likely rely entirely on the Attorney General’s rendition of the facts. Once that happens you’ve lost your ability to persuade because you’ve lost both your credibility and the court’s attention. 1. Never Distort or Exaggerate the Facts As mentioned earlier, a proper Statement of Facts includes the bad facts as well as the good. It is equally important not to distort, exaggerate or mislead the court about the facts you include. If an eyewitness testified that he or she is positive your client was the robber, you must say an eyewitness identified your client. You need not emphasize that identification by repeating that the witness stated he or she “would never forget that face” or was “one hundred percent sure, no doubt about it.” However, it would be highly improper to mislead the court by suggesting that the witnesses’s identification was equivocal when it wasn’t. Distortions – whether accidental or on purpose – rarely go unnoticed by the court and are sometimes specifically commented upon, often in an opinion footnote. If the opinion is incorrect, consider whether a petition for rehearing should be filed. The same is true of facts helpful to the defense. If an eyewitness testified he or she believes your client was the perpetrator, but is not absolutely sure, don’t exaggerate that testimony by claiming the witness was “unable to identify appellant.” Give an honest description of the testimony. Save your characterization of that testimony (i.e. that the witness could not positively identify appellant) for the argument portion of your brief. 2. Stay Within the Record: Never Present Matters in Your Factual Summary Which Are Not Part of the Record on Appeal. 17