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How I Do Appeals
The first thing a lot of appellate lawyers will tell you is that it’s hard to win an appeal.
The first thing I’ll tell you is that I can shorten those odds.
Just like a trial is a story, an appeal is, too. There are four ways to win an appeal. You can show that the jury got it wrong, that the judge made an error, that the prosecutor engaged in misconduct, or that your lawyer didn’t competently represent you.
Your appellate lawyer has to tell one of those stories, or some combination of them. I do that very well. If you check out the blog I did for ten years, you’ll see that my writing style is easy to read and easy to understand. Not much use in trying to convince a judge to overturn your conviction if he falls asleep halfway through my brief.
But even more important than presenting your arguments in a logical and compelling fashion is finding the arguments to present. Sometimes, that’s just a matter of knowing the intricacies of the law.
In State v. Weimer, for example, I represented the defendant in an appeal from her conviction of aggravated murder and aggravated burglary, and a 44-to-life sentence. The trial took three weeks. The State presented 32 witnesses and over 300 exhibits. The transcript ran 2,500 pages. I got it reversed because of thirty pages of testimony and knowing what the co-conspirator exception to the hearsay rule was.
And sometimes it’s not just knowing the law, but figuring out the law. In State v. Tatum, the defendant’s attorney tried to argue that the victim claimed he’d been robbed at gunpoint because he was upset over my client selling him bad drugs. The judge wouldn’t let the lawyer present that to the jury, holding that he was “arguing facts not in evidence.” Instead of debating that, I changed the argument: the attorney was presenting his inferences from the evidence, and not letting him do that violated the defendant’s 6th Amendment right to the effective assistance of counsel. The court of appeals agreed, and Tatum’s six-year sentence became a one-year time- served sentence.
Finding and figuring out the law that will help you, and putting it together in a compelling narrative, is what I do. Let me do it for you.
How Appeals Work
You have thirty days from the date of your sentence to file an appeal with a court of appeals. You may be able to file a motion to file a delayed appeal after that, but there’s no guarantee the court will grant the motion. After that, the court reporter will prepare a transcript of the proceeding, and the clerk of courts will assemble your file. Those items – the “record” — will be filed with the court of appeals forty days after the notice of appeal is filed. It’s very important to understand that a court of appeals will only consider what’s in the record. If it’s not there, as far as the appellate court is concerned, it didn’t happen.
Once the record is filed, I have twenty days to file the brief. The court will grant two extensions, each of thirty days, and I’ll definitely take the first, and maybe the second. My philosophy is that I’d rather do it right than do it fast, and it doesn’t make much sense for you to spend years in prison because I didn’t take an extra thirty days to fine-tune your brief.
After I file my brief, the State has twenty days to file theirs, and will almost always take a thirty-day extension. Once they file their brief, I have ten days to file a reply brief if I think one is warranted. The court will hold an oral argument in front of a panel of three judges about three months later, where each side will get fifteen minutes to present their side of the issues.
How Long Does An Appeal Take?
So how long does an appeal take? The big X factor is how long after oral argument the court will take to make its decision. The average time is about two to three months, although I’ve had decisions take as little as three weeks or as long as a year.
Supreme Court Appeals
Appeals to the Ohio Supreme Court are much different. Unlike the court of appeals, the Supreme Court doesn’t have to take your case. You have to convince them that they should, because the particular question of law that’s involved in your case hasn’t been addressed, or there’s confusion in the lower courts about it. Generally, the Supreme Court takes in about 5% of the cases it’s asked to hear.
An appeal to the Ohio Supreme Court is a two-step process: you file a notice of appeal and a Memorandum in Support of Jurisdiction explaining the issues involved, and why the court should take the case in. If it does, then the party appealing gets sixty days to file its brief, the other side gets fifty days to file theirs, and the party appealing then gets twenty days to file a reply brief. Oral argument will be held soon after that – in one case I had, oral argument was held two days after the reply brief was filed – and then the court will make a decision. It usually takes longer than the court of appeals, because there are seven justices, as opposed to three judges. In one memorable case, the Supreme Court had oral argument, and then decided it shouldn’t have accepted the appeal in the first place, and dismissed it.