According to my BFF Lexis, I've handled 210 appeals, in eight of the twelve Ohio appellate districts, the Ohio Supreme Court, and the 6th Circuit Court of Appeals. And I've been fairly successful. I won a case in the Ohio Supreme Court last year, and there was a stretch a couple years back where I got five straight life sentences vacated.
I didn't realize until I attended a seminar in Dayton a couple of weeks ago that I was doing it all wrong.
Well, I wasn't doing it all wrong. The seminar, a three-and-a-half day job--8:30 to 5:30 the first three days, and then four hours on Sunday - was put on by the National Defender Training Project. The Ohio Public Defender pays for it; not only was the seminar free, but so was my hotel room. My only real cost was digestive. On the second evening, we were looking for places to eat, and happened to be standing in front of one when the owner came by. She was a friendly woman, and managed to talk/shame us into eating there. The chicken marsala, which one friend and I had, tasted scrumptious, but we both became more familiar with our bathrooms later that night than we cared to.
The faculty was top-notch. It included my old friend, the small-fingered John Martin, head of the county Public Defender's appellate division. I kidded John about the credentials listed for him on the brochure, as compared to some of the other instructors. "Let's see, this guy: 'Head of the Innocence Project for the Midwest Region.' And this woman: 'Supervisor, New York Public Defender, Appellate Division.' And this guy: 'Has handled over fifty capital cases, in direct appeal or post-conviction relief.' And then there's John Martin: 'Has a small office in Cleveland.'"
The basic pitch the seminar offered wasn't anything new to me: it was about telling a story.
I'm a big believer in the "story" theory, both in trial and on appeal. And frankly, I'm surprised when I run into an attorney who doesn't understand that yet. I doubt if you'll find anybody with more than four or five trials under his belt who thinks that juries decide cases on the evidence. There's overwhelming empirical support for the theory that people made decisions emotionally, rather than rationally. Everybody likes a story, and if you tell a better one than the prosecutor, you're probably going to win. Sure, maybe your story is that he didn't prove his story beyond a reasonable doubt, but you're still telling a story about why: mistaken identification testimony, bad police investigation, and the like.
Same thing in appeals. Basically, you're telling the story about how your innocent client got railroaded. There's a balance, and you may not have both: the more compelling the evidence of guilt, the more you have to stress the unfairness of the trial.
But it's one thing to understand the basic concept, and another to understand how to put it in practice. We lawyers are a very obedient lot. When the appellate rules tell us that we have to have a statement of the case and a statement of facts in a brief, we think of those as being separate, and in that order.
That's what I've done. Every appeal, I've started out with the Statement of the Case, which invariably begins, "On blank date, the blank county grand jury indicted blank defendant on three counts of blank, a first degree felony, and four counts of blank, a second-degree felony." I'll recount any major events - a motion to suppress, to dismiss, something like that - and then move into trial: the State presented X witnesses, the Rule 29, the defense presented Y witnesses, the jury was instructed, retired to deliberate, and returned with a verdict of guilty on all counts. The judge sentenced the defendant to Z years in prison, and here we are.
Two things. First, that's boring as hell; the least interesting aspect of a criminal case is its procedure. Second, what's the story that I've just told the court? It beings with my client being charged with some very serious crimes, and ends with a jury convicting him of them.
There's nothing that says you can't combine the statement of the case with the statement of facts. Figure out if your story has a hero, a victim, and a villain. All stories do. It may be that the villain is the defense attorney or the prosecutor or the judge; don't make the villain the jury. The defendant may be the victim - of injustice - but don't limit yourself. It may be that the victim here is the concept of due process: while the particular defendant's guilt may be a bit murky, the larger issue is the fairness of a trial.
Heroes? That's a little iffier. If you've got a judge who dismissed an indictment for pre-indictment delay, or granted a motion to suppress, hero designation got a lot easier: the judge was Horatius at the Bridge, defending Justice against the barbarians. Or something like that.
But start telling the story from the start. Combine the case and facts into one, and start with the facts of your story. You can get into the indictment and conviction stuff later, by which time you've hopefully gotten the judges thinking that something went wrong here.
Think of it this way. We always complain about how hard it is for the defendant to win an appeal, especially if he's the one appealing. But that also offers a great opportunity. We get to tell our story first, and that is such a great advantage, especially where the prosecutor doesn't know how to tell a story. I just got a brief from a prosecutor, whose statement of facts consisted of a recitation of the testimony of each witness, in the order they testified at trial. Nobody's going to read that.
By the way, John gave a great presentation on oral argument. If you can catch one of his arguments on the Supreme Court channel, do so. He's top-notch, too.
Just don't kid him about his stubby fingers.