Anybody who’s ever watched evening TV has heard of the legal concept of “appeals”. And I write a lot on this blog about decisions that come from appeals courts. But how does that all work?

The short answer is that an appeal is what happens when one side of a case believes that something related to a trial was done incorrectly, or a pretrial ruling was decided incorrectly, in such a way that the outcome of the trial was unjust or improper.

This can include almost anything from the initial actions of the police officers to the judge’s instructions to the jury, but it’s that last part – that the outcome of the trial was affected – that’s always the sticking point.

If a judge showed up 20 minutes late for court, it was probably inconvenient for everybody. And it shouldn’t have happened. But a judge being 20 minutes late probably doesn’t create grounds for an appeal. But if a defendant’s court-appointed lawyer falls asleep during the trial, that arguably violates the defendant’s right to counsel – so that would give grounds for appeal. This actually happened in Texas in the case of State v. Burdine!

Let’s walk through a hypothetical case using the “sleeping lawyer” argument.

Mr. Jones is arrested for OWI. A lawyer is appointed – Mr. Smith – who shows up for court, but regularly falls asleep during the trial. After a long trial in the local Wisconsin circuit court, Mr. Jones is convicted of that OWI. Mr. Jones is understandably upset, because he feels his lawyer could have done a much better job representing him.

So Mr. Jones, wisely, hires a different lawyer. That lawyer – Mr. Allen – writes up the argument for the appeal, and gives the relevant legal basis. In this case, he argues that Mr. Jones’ right to counsel was violated because a sleeping lawyer can’t adequately protect and defend Mr. Jones’ rights. Mr. Allen submits this to the next court in the Wisconsin system – the Court of Appeals. The State of Wisconsin also makes an argument, arguing that the lawyer was awake during the parts of the case that mattered (the actual argument in the Texas case).

The Court of Appeals reviews the argument Mr. Allen is making, and considers the State of Wisconsin’s argument. They may even ask Mr. Allen and the attorney for the State of Wisconsin to present brief oral arguments. After review, astonishingly, the Court of Appeals agrees with the State of Wisconsin. Mr. Jones’ conviction stands.

Mr. Allen and Mr. Jones are shocked, and decide that they want to appeal again. The basis for this appeal is the same as the initial appeal to the Court of Appeals, and Mr. Allen files the appeal with the Wisconsin Supreme Court.

The Wisconsin Supreme Court looks at the arguments, and decides whether or not they’re willing to hear the case. If not, the Court of Appeals’ decision stands. If they decide to hear Mr. Jones’ case, each side gets 30 minutes to argue their case in court. The court then makes their decision. In this case, the Wisconsin Supreme Court agrees with the Court of Appeals that the sleeping lawyer wasn’t enough of an issue to overturn the conviction.

Since Mr. Jones lost at the Wisconsin Supreme Court, he can file with the US Court of Appeals for the Seventh Circuit and see if they’ll hear his case. This is a federal court that covers Wisconsin, Illinois, and Indiana. And if the Seventh Circuit doesn’t yield the result Mr. Jones is hoping for, Mr. Jones could appeal to the United States Supreme Court.

In this particular case, the Seventh Circuit agrees with Mr. Jones that his rights were violated, and orders that a new trial be held, with Mr. Jones being provided adequate counsel.

Generally speaking, the higher Mr. Jones attempts to take his case (Court of Appeals, Wisconsin Supreme Court, Seventh Circuit, U.S. Supreme Court), the lower his chances of having his appeal be heard. At the highest level, the U.S. Supreme Court only hears about 100-150 cases out of the thousands of requests they receive per year.

But it’s those few cases at the highest levels that provide broad, sweeping legal standards that protect all of us. The “you have the right to remain silent…” speech that we’re all familiar with from TV came directly from a U.S. Supreme Court case in which a suspect wasn’t advised of their fifth-amendment rights. And many other rights that you take for granted have also come from the decisions of the U.S. Supreme Court.

This also illustrates why it’s important to have a lawyer in your corner when you’re dealing with any type of criminal charges. You can’t be expected to know all of the case law that impacts your case, but a good lawyer will have read all the previous decisions and know how they impact you – and the strategies that will give you the best chances in court.

I hope that you never wind up in a situation where you need a criminal lawyer. But if you do, you owe it to yourself to make that phone call!

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