Listed below are the seven deadly sins of appellate law. These are part of the appellate law, but they are also so lacking in definitions and standards that a judge can apply them or not. All of them work towards depriving the client of a decision on whether he got a fair trial. These can be applied in almost every case, but they can also be avoided in most every case. A lazy or heartless appellate judge could go his whole career without saving a single soul. If an appellate judge never wants to admit that the trial judge or the prosecutor made a mistake in the law, he can avoid ruling on the merits by indulging in these sins.
What can the defense lawyer do about? We can’t change that they are part of the law, but if we work at it, we help the appellate judge avoid these sins. It is like living with a drunk; we can at least pour out the bourbon.
Social Policy: Some of you appellate judges go to a lot of trouble to figure out what the law is. If you don’t avoid these sins, trial judges and prosecutors will stay in darkness about the law and what they are supposed to do. Do you really think people in the practice of law read your decisions if they don’t have a case in point? Not so much. If you clearly state the law and then avoid its application, there is little incentive by bench or prosecution to pay any attention to it.
Much of this blog will be about how to avoid enabling the appellate judge addicted to these sins. We won’t be able to save all the appellate judges from themselves, but we must make the effort.
1. Sin number one: The Preservation of Error Doctrine. This is the King’s X rule. If the lawyer is too slow standing up, or doesn’t know a Rule, or only objects under one ground and the judge can think of another, the doctrine tells the client, we know it isn’t your fault, but your lawyer didn’t use the right magic words so your fair trial will run down the drain into the sewer and be lost forever.
A way to pour out the bourbon: Rule 104 motions.
2. Sin number two: Harmless error doctrine: Even if the judge made legal mistakes, we’re going to ignore them unless the client can prove he was hurt, but we know this is almost impossible to prove because there is no way to reconstruct the past, so usually, we just say “tough luck, fella.” This is when you must explain to the client, yes, the trial judge or the prosecutor got the law wrong, the appellate court admits that, but they won’t do anything about it. A subpart to this sin is requiring the proof of prejudice in ineffective assistance of counsel cases. Another is “…actual not theoretical harm” in jury charge error.
A way to pour out the bourbon: Developing Rule 403 objections with details and a careful review of the record for references by the prosecution to the false evidence admitted.
3. Sin number three: “What is sauce for the goose is sauce for the gander.” The judge tries to treat the State of Texas and the defendant equally. “I want to be fair to both sides.” This leads to bad results because it is based on a false premise. The State of Texas does not have a presumption of innocence, or a right to equal protection under the law, or a right to due process, or a right to be free from cruel and unusual punishment. The person accused of a crime does. So, if the trial judge finds for the individual, the appellate court should recognize this doubt in the mind of the trial judge is enough. It is the defendant’s right to be protected by a reasonable doubt standard, not the State’s. But if the appellate judges think the trial judge made a mistake by not finding for the defendant, that also should be honored as part of the presumption of innocence.
A way to pour out the bourbon: Rule 104 motions and “We are all textualists now” so when we read the law, we see how it functions. Texas Rule of Evidence 803(8) is a good place to begin the argument because the rule it allows evidence if it is “against the government in criminal case…”
4. Sin number four: Abuse of Discretion doctrine when applied to errors harming the defendant. Many legal standards make it difficult for the defendant to win. These standards should be treated differently as they are applied to defendants or the State. (See Sin number three). Unfortunately, many standards have been calcified into the law that have harmful consequences: clearly erroneous, great deference, implicit findings of fact, disbelief of uncontroverted evidence, and evidence “only incrementally” furthered a defensive theory.
A way to pour out the bourbon: Argue for a de novo standard if the court is dealing with a question of law or the credibility of the witness is not in issue.
5. Sin number five: Totality of the Circumstances. Also, “balancing test,” “non-exhaustive checklist,” “non-exclusive lists,” “all-things-considered approach.” This is contrasted with “rigid rules,” “bright-line tests,” and “mechanistic inquiries.” When there are no rules, the defendant tends to lose. (A similar result occurs in civil cases, where the more powerful party tends to win). Also, without rules, no one can predict the outcome of a case.
A way to pour out the bourbon: Present and argue the rules or factors that should apply. For instance, the appellate courts consider whether someone is knowingly possessing drugs under the “totality of the circumstances.” However, we are also given a “non-exclusive” (ugh) list of “possible” (ugh, again) “affirmative links” (better):
(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
I’m not saying this is a perfect list. For one thing it relies on a lot of subjective cop testimony, but I do think rules tend to be good things. Remember all that “Rule of law and not of men?” stuff we pontificate about. To the extent “factors” can be used in voir dire, Rule 104 motions, jury instructions, and final argument, they should be helpful. Every decision from probable cause to intent to murder has “factors” that should be considered. We might have to develop our own based on common sense and knowing how a crime works.
6. Sin number six: Do Not Publish: This is a harmful and outdated doctrine which in the Texas Court of Criminal Appeals means the opinion has “no precedential value and must not be cited as authority by counsel or by a court.” Of course, publishing doesn’t involve cutting down trees. Do Not Publish Rules are codified in the Texas Rules of Appellate Procedure, Rule 77 and Rule 47.2. “Do Not Publish” was ended for civil cases after January 1, 2003, we may guess on the belief that any case involving money should be fully respected, but if it is only freedom, not so much. We are telling the client, “Whatever mistakes were made in your trial, we don’t think it is worth telling other judges and prosecutors. They may make these same mistakes repeatedly. We really would just as soon that no one notices what we have done to you.” From the lawyer’s point of view we may know something from the unpublished decisions, but we are told they “must not be cited as authority by counsel or by a court.” The Rules do provide that “Any party may move the appellate court to change the notation….”
A way to pour out the bourbon: I’m open to suggestions here. This may require a political solution: “Please, please, please, your honors, publish more decisions.”
7. Sin number seven: Refusing to hear cases. Whether the appeals court hears oral arguments seems like it should be important. After all, oral arguments are intended to “clarify the written arguments in the briefs.” This seems like a good thing. If I am reading their website correctly, the 13th Court heard from four criminal defendants in 2021 and so far, only two in 2022. That doesn’t seem like very many. In some states, two thirds of the cases have oral argument. Which judges are on the appeals panel may make a difference in the outcome of the case. If things go south, we can ask for a rehearing, an en banc hearing, or a petition to discretionary review. Even if the panel has split 2-1 on the decision, it is not unusual for all future requests to be denied. Under the appellate Rules, en banc hearing are “disfavored.”
A way to pour out the bourbon: Heck if I know. This may take a political solution too, so I’ll leave it to more astute colleagues. However, I do warn clients before they hire me that we may have only one shot on appeal.