Appellate Law

Former House Majority Leader’s Conviction Overturned

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In 2010, former U.S. House Majority Leader Tom Delay was found guilty of illegally funneling money to Republican candidates.  The trial lasted three weeks.  He was sentenced to three years in prison.  However, his sentence was postponed pending his appeal.  According to WMBF News, Delay’s conviction has been reversed.  Agreeing with the argument that Delay’s appellate lawyer made, the Third Court of Appeals of Texas held that there was insufficient evidence at the trial.  Specifically, the appellate court stated that the State failed to prove that the laundered money was illegally obtained.  The State claimed that DeLay used $190,000 in corporate donations and supplied them to Texas House candidates.  Texas law prohibits corporate money to be given directly to political campaigns.  Prosecutors plan to pursue an appeal to the highest appellate court in Texas.

What this case illustrates is that the prosecution has the burden of proof in a criminal case.  It is their burden to prove the defendant guilty beyond a reasonable doubt.  If they fail to establish any element of the charge, then the defendant cannot be found guilty.  The appellate court found that the prosecution had failed to establish an element of the charge of money laundering.  What is important to remember is that the trial counsel for Delay had to preserve this argument for appeal.  If the argument is not set forth at trial and on the record, then the appellate court cannot consider it.  A good criminal defense attorney will be able to make sure that arguments are preserved in the event an appeal must be filed.

During the appeals process, appellate counsel has to identify the issues in the case that have merit.  This involves reviewing pretrial motions, transcripts, and orders from the lower court.  Appellate counsel is only able to address matters that are preserved on the record.  If key issues are not preserved, a 2255 motion could potentially be filed at a later time by the defendant which usually alleges that the defendant received ineffective assistance of counsel.  After this stage, appellate counsel performs an extensive amount of legal research and begins to write the appellate brief.  The brief is presented to the appellate court and identifies the alleged errors made at the lower court level.  Opposing counsel has the opportunity to file an answer brief.  Once all the briefs have been filed, the appellate court may set the case for oral arguments or file an order with its decision.

The appellate process can be confusing because of the legal research involved.  To write an effective brief that addresses all issues, you must be experienced in this area of the law.  Specifically, you must know how to identify potential issues, research those issues to determine if they have merit, and draft the brief in a manner that clearly and concisely addresses each of those issues while following the appellate rules of procedure.  This can be difficult for a person that is not experienced in arguing before state and federal appellate courts because you are only given a short amount of time to prepare the brief (normally 30 days).  This is why it is in your best interests to contact an appellate lawyer if your are seeking to file an appeal.

Russell Mace & Associates, P.A. has appellate lawyers that have argued before the Fourth Circuit Court of Appeals, Eleventh Circuit Court of Appeals, South Carolina Court of Appeals, Supreme Court of South Carolina, and United States Supreme Court.  We know the time and effort that goes into the appellate process and we seek to provide the best representation possible for our clients.  In doing so, we ensure that every meritorious issue is addressed.  If you are seeking an appellate lawyer, contact our office for a free consultation at 1-800-94-TRIAL or contact us online.  We have appellate attorneys licensed in South Carolina, Florida and Georgia.

Appeals From Family Court Orders in South Carolina

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In Family Court in Horry County, Charleston County and Florence County, final orders from divorce and custody actions are frequently appealed to the SC Court of Appeals as well as the Supreme Court of South Carolina.  However, it is well-settled that temporary orders generally can not be appealed to the South Carolina Court of Appeals.  Only orders that address matters on a final basis may be appealed. Once a party receives a final order that has been executed by a family court judge, a party has thirty (30) days to file a notice of appeal.

A party may appeal a family court judge’s ruling on child custody, visitation, child support, alimony, equitable distribution, restraining orders and most frequently, the award of attorney fees.  It is important to note that a litigant who appeals a decree ordering child support or alimony will have to continue making the payments while the appeal is pending in the South Carolina Appellate Court.  However, most family court appellate attorneys agree that attorney fee awards and equitable distribution are generally stayed during an appeal.

When reviewing appeals from the family court in South Carolina, the court historically used the abuse of discretion standard.  However, in recent cases, the South Carolina Court of Appeals has held that the standard of review for family court rulings is de novo for factual and legal issues.  This means that the appellate court can find facts in accordance with its own view of the preponderance of the evidence.

It is important to remember that the family court does not have jurors in South Carolina.  Only one family court judge makes a ruling at trial.  On appeal, the court reviews the record to see if the family court judge correctly followed the divorce and custody laws of South Carolina and how the law was applied to the facts of the case.  In some appeals, the South Carolina Court of Appeals may hold oral arguments.  Oral arguments are nothing like a trial.  During oral arguments, a family law appellate lawyer in South Carolina appears before a panel of three judges and argues the issues contained in the initial brief.  The respondent’s attorney must also appear before the panel and argue the contested issues.  During oral arguments, the appellate court judges engage in a question and answer setting, during which the family court appellate attorney must answer questions about the briefs.  There is no live testimony during these arguments.  The appellant and the respondent may be present, but do not address the appellate court judges.  An opinion is issues generally two to three months later.

Once an opinion is issued, the loosing party may petition the Supreme Court of South Carolina to hear the case.  However, the Supreme Court does not automatically accept the case.  The court must decide whether or not to allow the case to proceed in the Supreme Court.  If you have questions about appellate practice in South Carolina or would like to appeal a decision from the Family Court in South Carolina, contact the Mace Firm.

 

The Appellate Process and South Carolina Appellate Attorneys: Facts

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In South Carolina, in order to appeal a conviction and sentence in the Circuit Court, your criminal appellate attorney must first file a notice of appeal within ten days of the judgement.  Once the notice has been filed, the transcripts from the trial and any important pretrial hearing should be ordered from the court reporter.  Your South Carolina appellate attorney then informs the South Carolina Court of Appeals that the transcripts have been received and a briefing order is issued by the court.

When reviewing the issues to be raised on appeal, it is important to determine if the issue was preserved in the trial court.  In order for an issue to be preserved, counsel must have made an objection when the issue is raised at trial.  In other words, the issue must have been brought to the trial judge’s attention.  If the issue is not preserved, the appellate court reviews the matter using the standard of review of plain error.  The court must decide to recognize the error under these circumstances and only does so when the error is evident and clearly prejudicial and effected the outcome of the case.

It is best to raise issues that have been preserved in the trial court when preparing an appeal.  Once the initial brief is filed, the State has the opportunity to file an answer brief.  When the answer brief is filed, the appellant may decide to file a reply brief to address the arguments made in the state’s answer brief.  The final briefs are then filed and the appellant must wait for the court to render a decision.

The court may decide to hear oral arguments if they have questions about the briefs that were filed or want to hear more arguments on a particular issue.  If oral arguments are granted, your South Carolina appellate lawyer then appears before a panel of three judges and engages in a question and answer session with the appellate judges.  The court usually issues an opinion thirty to sixty days after oral arguments are heard.

Once the decision is rendered, either side may petition the South Carolina Supreme Court.  This document is called a Writ of Certiorari, in which an appellate attorney in South Carolina requests the South Carolina Supreme Court to hear the case.  It is important to note that if an individual wins an appeal in the Court of Appeals and the State decides to petition the South Carolina Supreme Court by filing a Writ of Certiorari, the appellant will not be transferred back to the circuit court until the court makes a ruling on that petition.  However, an appellate attorney can file a motion for bond pending an appeal.

If the court reverses an appellant’s conviction, the case is generally remanded back to the Circuit Court for a new trial.  In some cases, the appellant’s conviction is unchanged, but the sentence is over turned.  In those instances, the appellant goes back to the Circuit Court in order to be re-sentenced by the trial court with instructions by the Court of Appeals.  If you have questions about the appellate process in South Carolina, please contact The Mace Firm.

South Carolina criminal appeal by The Mace Firm Wins New Trial

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Our appellate attorneys recently won a criminal appeal in the South Carolina Court of Appeals.  The defendant was charged with two counts of murder and possession of a weapon during the commission of a violent crime.  On appeal, our appellate attorneys in Myrtle Beach SC argued that the trial court made three errors: 1) a Batson error, during jury selection, the trial court found that the defense attorney’s reason for striking a juror was pretextual, 2) the court erred by failing to hold a hearing to address his motion for remand to reconstruct the record and 3) the court erred by failing to make an evidentiary ruling regarding the States introduction of prior bad acts because this evidence inflamed the jury.

Our South Carolina appellate attorneys argued in the initial brief that the trial court failed to follow Batson procedure during jury selection, and ultimately placed the burden on the defense to show that his reasons for striking certain jurors were not pretextual.  The appellate court argued with our appellate attorneys in South Carolina and reversed, granting our client a new trial.

The State was not required to meet its burden of establishing purposeful discrimination because the trial court placed the burden of disproving the pretext on the appellant.  The court failed to follow the Batson requirements set out by the South Carolina Supreme Court because the State simply argued that the defendant had not met his burden of giving a racially neutral reason for the strike.  When giving a reason to strike a juror, it must be race neutral but does not have to be specific.  The court also noted this in its opinion.

The State has filed a petition for rehearing in the Court of Appeals, and may appeal the case to the Supreme Court of South Carolina.  If you have questions about the appellate process or what is required to file an appellate brief, contact our appellate attorneys at the Mace Firm.

 

Oral Arguments before the Fourth Circuit Court of Appeal

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Twice this year, our federal appellate lawyer in South Carolina has argued before the Fourth Circuit Court of Appeals. In March of this year our Myrtle Beach attorney presented the case for appellate Roach before Justice Sandra Day O’Connor, Judge Traxler, and Judge Shedd. This appeal was based on the lower court’s refusal to suppress evidence prior to trial. The defendant was charged with possession of a firearm and possession of heroine. These charges exposed the defendant to a minimum sentence of 10 years. The defendant went to trial in Charleston and was found guilty by a jury. After the trial a pre sentence report was generated and the defendant was sentenced to 10 years imprisonment. This appeal was written shortly after the sentence was imposed.

Our appellate attorneys wrote the brief that enable the Fourth Circuit court to hear the case. Our argument before the court can be listened to by clicking on this link. Appellate Argument in Fourth Circuit. The end result was the appellate court affirmed the district court’s decision to allow the evidence to be introduced. After receiving notice of this decision, our the federal appellate lawyer filed a petition with the United States Supreme Court to review the decision. This type of review is very limited and rarely granted based on the number of cases that are sent to the Supreme Court. We have a very strong appellate department that has won many cases for our clients and many criminal defense attorneys send their cases to our office to handle the appeal.

Drew Peterson Will Appeal his Conviction Based on Hearsay Evidence

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Drew Peterson was convicted of first degree murder in the death of his third wife, Kathleen Savio. It was the first case in Illinois to allow the use of hearsay evidence based on a state law passed in 2008 that was specifically tailored to his case. Hearsay is defined as “an out of court statement offered in evidence to prove the truth of the mater asserted.”

The jurors admitted that remarks made by Stacy Peterson, Peterson’s fourth wife, made before her disappearance in 2007 played a key role in his conviction. Prosecutors explained that this hearsay testimony would enable Savio and Stacy Peterson, who is presumed dead, “to speak from their graves” through family members and friends. There was a lack of physical evidence tying Peterson to Savio’s death, which was previously ruled an accident in 2004.
Neighbors found Savio’s body in the bathtub of her home with a gash on the back of her head. Investigators initially thought she drowned after slipping in the tub, but reopened the case after Stacy Peterson disappeared.

Drew Peterson’s criminal defense lawyers have asserted that the hearsay evidence impinged on Peterson’s Constitutional rights because he could not directly confront his accusers, his third and fourth wives.
The Confrontation Clause of the Sixth Amendment to the U.S. Constitution is the right, in criminal proceedings, to have a face to face confrontation with a witness who is testifying against an individual in the form of cross examination during a trial.

Peterson’s criminal appellate attorney will focus on this hearsay issue, as it was central to Peterson’s conviction. His appellate lawyer will argue in his initial brief that Peterson was denied the opportunity to cross examine his third and fourth wives, which violated his constitutional rights and denied him his right to a fair trial. The fact that the jurors admitted this evidence was central to his conviction will strengthen this issue as well because the prosecution will not be able to argue that any hearsay error was harmless. This issue involves a question of law, so the standard of review is de novo, meaning the appellate court considers the question for the first time.

If Peterson was convicted in South Carolina, he would hire an appellate lawyer in South Carolina and his case would be heard by the South Carolina Court of Appeals which is located in Columbia, South Carolina. He would also have the opportunity to appeal his case to the Supreme Court of South Carolina if he lost his direct appeal in the Court of Appeals. If he lost his appeal in state court, he would have the opportunity to file a federal appeal in Federal court known as a habeas petition and could also file a writ of certiorari in the United States Supreme Court.

Suspect in Shooting Held in Solitary Confinement

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The twenty-four year old graduate student, James Holmes, who is the only suspect in the Batman shootings in Aurora, Colorado is currently being held in solitary confinement.  According to the head of the Public Defenders Officer, this is standard in high profile cases.  The police are likely attempting to question Holmes about the shooting.  This stage is crucial in Holmes prosecution.  The police must be careful to avoid violating Holmes’ constitutional rights.  Since he is in custody, the police must read him his Miranda Rights before questioning Holmes.  If he asks for an attorney, the police must cease with their questioning.

A public defender has already been appointed to Holmes case, but he may decide to hire a criminal defense lawyer.   He is going to be arraigned in court tomorrow morning.  An arraignment is the first step in a criminal proceeding during which a defendant is informed of the charges against him or her.  A defendant can also enter a plea at this stage and usually has three options, not guilty, guilty or no contest.

If Holmes decides to enter a plea of not guilty, he will have the right to a trial by a jury of twelve people.  He will likely be charged with First Degree Murder.  First degree murder is generally defined as the unlawful killing of another person that is both willful and premeditated, meaning that it was planned.  If Holmes is convicted, he will likely receive a life sentence or the prosecution may decide to seek the death penalty.  Murder is a state crime, not a federal crime.  There is no Federal Murder statute, and as a result, Holmes will not be tried in Federal Court.  Colorado recognizes the Death Penalty.

According to the Death Penalty Information Center, there are currently only four people on death row in Colorado and only one person has been executed since 1976.  Death penalty cases are very different from other cases.  Only a few lawyers handle death penalty cases, and the appellate process is also different in death penalty cases.

If Holmes is convicted after a jury trial, he will need to hire an experienced appellate attorney to handle his case. A direct appeal is automatic to every person sentenced to death.  The appeal is made to the state’s highest court, usually the state supreme court.  The direct appeal is limited to issues from the trial.

In South Carolina, the South Carolina Supreme Court has exclusive jurisdiction to hear death penalty appeals.  The South Carolina Court of Appeals has jurisdiction to hear murder cases that do not include the death penalty, and those cases can be heard by the South Carolina Supreme Court as well once the court of appeals has issued an opinion.  In many murder cases, South Carolina appellate attorneys are granted Oral Arguments.  South Carolina appellate attorneys typically spend a great deal of time preparing an initial brief as well as preparing for oral arguments.

If you have questions about filing an appeal or the appellate process in South Carolina, contact the appellate attorneys at the Mace Firm.

 

Jerry Sandusky’s Appellate Rights and Issues on Appeal

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The day after Jerry Sandusky’s conviction, his trial attorneys informed the press that they were not adequately prepared to defend him because his case was brought to trial so quickly.    Sandusky was tried seven months after he was arrested.  Sandusky was convicted on 45 counts of child sex abuse.  There were many witnesses involved in the case, making Sandusky’s attorneys argument for more time to prepare a viable issue on appeal.  His trial lawyers have explained that thy will not be representing him on appeal because they will likely have to testify at a hearing addressing his claim of ineffective assistance of counsel.

This issue will be central to Sandusky’s appeal.  In his initial brief, his appellate attorney will have to address the number of continuances requested by his defense team and why these continuances were denied by the trial court.   This was a high profile case and involved many witnesses, so it is conceivable that his defense team needed several months to prepare his case.  Another important aspect of his appeal will be the disclosure of evidence.  If the defense team received some of the discovery from the State at the last minute or on the eve of trial, his appellate lawyer could show prejudice.

However, Sandusky claim that he received ineffective assistance of counsel during his trial is generally not appeal-able in a direct appeal.  Claims of ineffective assistance are usually raised in a post conviction motion that is filed after the initial appeal.  When an appellate attorney in South Carolina raised ineffective assistance of counsel, it is done in a Post Conviction Relief (“PCR”) Motion.  In Strickland v. Washington, the United States Supreme Court established a two-prong test for establishing a claim of ineffective assistance of counsel.  A criminal appellant must show that 1) counsel’s performance fell below an objective standard of reasonableness and 2) there is a reasonable probability that the results of the trial or the sentencing hearing would have been different “but for” counsel’s deficient performance.

In South Carolina, these PCR motions are heard by the trial court.  Usually, at the hearing, the trial attorney testifies and is questioned by the defendant’s South Carolina appellate attorney.  However, before a PCR is filed, a criminal defendant usually proceeds with a direct appeal to the South Carolina Court of Appeals.  If the case is a federal, a South Carolina federal appellate lawyer files an initial brief is the United States Court of Appeals for the Fourth Circuit.

In order to start the appellate process, a notice of appeal must be filed.  A South Carolina Appellate Lawyer then orders the transcripts from the trial or other proceeding.  Once the transcripts are received, the appellate lawyer in South Carolina then drafts the initial brief, citing to the the lower court record.  In the Fourth Circuit Court of Appeals, a scheduling order is issued to the federal appellate lawyer, notifying counsel of the date the brief is due.

Sandusky will likely raise multiple issues in his appeal, and will likely seek a new trial on all counts and will ask the appellate court to reverse his conviction and sentence.