Appellate Courts are Biased
This may come as a shock to some of you, but Appellate Courts are not interested in your justice. The truth is they could care less if you are innocent, if the police committed crimes, if the prosecutor committed felonies to rebut the presumption of innocence and obtain a conviction. As disgusting as such a thing is, it does not change that it is.
The result of years of media portraying defense attorneys as getting the murderer off because the cop failed to use his turn signal has created a society that is very jaded towards fundamental constitutional rights. That led to a belief that the prosecutor is noble and more popular. Which led to more judicial appointments. And that led to more prosecutors being appointed to the appellate courts and Supreme Courts. The result is an entire system of prosecutors judging if another prosecutor was wrong.
So you think you are innocent?
This is permitted to continue because of the ignorance of the masses. The population foolishly believe that they do nothing wrong, so they do not need to worry. Yeah, like no one in the world has ever been falsely accused. No one has ever lied on the stand. And certainly no one with a motive would do those things.
The truth is that those are the very reason for the jury trial requirement. “Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies… Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor” (Duncan v. Louisiana, (1968) 391 U.S. 145, 156)
In 2013, Bill Maher had the former director of the NSA on his show, they were discussing a great American hero, Edward Snowden. Specifically, the growing sentiment among Americans that they did not care if the government read email because they were not committing any crimes. The man in charge of the most intense domestic spy entity said in response:
“It’s not whether you have committed a crime or not. It’s whether the government decides to think that you have committed a crime.”
The Appellate Game is a Human Game
So if everything is stacked against us, and they could care less if we are innocent, and truly care less if the government committed crimes to prove you were a criminal, then what the ___ are we supposed to do?
Luckily, most appellate justices have super massive egos. They love their own intelligence very deeply. About the only thing they love more is showing off how smart they are. Which they often screw up.
But that is not to say that their ego is not our friend. The one thing you need to look for, is an issue that is not decided yet. An issue of first impression is like gold to them. But it has to be useful. Being the first to write about a super boring point, will not show the world how great they are, because no one will read it.
Your author has written a lot of motions, petitions, appeals, and bids to get the supreme court to hear a case. Once almost resulted in the California Supreme Court granting review. Which shows how many times failure was enjoyed. But failure leads to innovation and thus to future success.
Of course you want to always raise your most glaring errors. Then you should try to find something new that has not been decided yet. Its not always that easy, but since very rarely are facts the same, your case is different and unique. Find out why, then build on that. Then after that you should also raise errors that are favorable to you.
The Secret to Building a Better Chance with the Appellate Courts
You must pick the right issues and then present them the right way. This entire article was inspired because of a brilliant collection put together by two brilliant men that I know nothing about, yet the quality of their work leads to that being the only conclusion. The article discusses the standards of review. How to recognize which ones apply and how to craft your case to fit in the more favorable ones.
Special shout out with much love and gratitude to Jonathan Grossman and Dallas Sacher and their work:
STANDARDS OF REVIEW AND PREJUDICE AND HOW TO SATISFY THEM
That is the most important thing you must know if you want a chance at winning. Please read it many times. Download the PDF, highlight it, review it, and use the cases cited in it.
Then read it again. The standard of review will make you or break you.
The Second Most Important Aspect After Standard of Review
You must, and I mean must, cite to the record. If you state a fact, it must be followed by a citation to the record.
Record citations vary according to your local court but generally they will be along the lines of references to the Reporter’s Transcript (RT) or the Clerk’s Transcript (CT) if you are on appeal. Or to your Petition’s exhibits (Ex.) if on habeas or mandamus.
If the reference is to the Reporter’s Transcript you will also need to cite to the lines on the page. (On the left side of each page are numbers, 1-28). A typical citation would look like this:
“Mary was at the store.” (RT24:1-6)
That says Reporter’s Transcript page 24, lines 1 through 6.
If you have more than one volume you need to include that as well. Say the above was in Volume 3.
“Mary was at the store.” (3RT24:1-6)
If the quote goes over into the next page you would write it like this:
“Mark waited in the car, with the engine running and had the radio playing. Mary was at the store.” (3RT23:27-24:6)
That said: Volume 3, Reporter’s Transcript page 23, starting at line 27 and continuing onto page 24 and ending on line 6.
If you make a statement of fact, it must be followed by the location in the record. If you have an entire paragraph and its all in the same location then that is ok too. You would cite a reference to your entire brief below as:
See Motion to Suppress, 1CT67-203.
Where it gets a little tricky is when you have 3 or 4 paragraphs that are all in the same page of the record. The problem with citations to the record is that it consumes word count.
Because you only get so many, so citing the record for every sentence with the same record citation consumes massive word count and disrupts the flow of reading. If citing to a number of paragraphs you could do something like. (Last two paragraphs 2CT23-24)
“A party on appeal has the duty to support the arguments in the briefs by appropriate reference to the record, which includes providing exact page citations. We have no duty to search the record for evidence and may disregard any factual contention not supported by proper citations to the record.” (Air Couriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928; Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 [“we will not scour the record on our own in search of supporting evidence”].)
Conclusion
Accept that this is a challenge, find the path to make it less hard. Play into their egos and prepare the arguments according to the correct standard of review. And support that work by citing to the record.
Read more about formatting and basic flow of arguments.