Tevildo wrote: ↑Thu Jul 26, 2018 8:06 pm
May I ask a practical question? Based on the last few posts in this thread, am I right in thinking that, in the States, there's an automatic right of appeal, at least from a criminal conviction? The appellant doesn't need to get permission from the appelate court beforehand?
Short answer: Yes.
Long answer: According to the Supreme Court, there is not actually a constitutional right to an appeal. If a state government wanted to say "You get your trial, and that's it -- no appeals", that would be okay. However, as a matter of practice, every state in the US except Virginia (as well as the federal judicial system) does allow the defendant in a criminal trial a right to appeal a criminal conviction (Appeals in Virginia are at the court's discretion.). And the Supreme Court has said that, if a state
does allow an appeal, then the state has to provide counsel on appeal to people who can't afford it (subject to the
Anders process we've discussed).
TL;DR answer: So for a state court criminal defendant, the process goes like this (assuming that every step ends badly for the defendant):
- State trial court. Counsel provided to indigent defendants (though appointed counsel is often overworked or bad).
- Appeal to state appellate-level court. Always allowed if the defendant requests it. Counsel provided to indigent defendants (same problem).
- Some sort of petition to the state's highest-level court (which may be named the Supreme Court or something else). This is almost never a "right"; the state court can almost always reject petitions at its own discretion, and most high courts reject most of them. Appointed counsel for indigents is generally not provided.
- Petition to US Supreme Court. Supreme Court can reject petitions at its own discretion. Unless it's a death penalty case, the odds of the US Supreme Court accepting a petition at this stage are basically zero. Appointed counsel may or may not be available, depending on what part of the country (what circuit) you're in. If you actually get a petition granted (which just means "The Supreme Court will hear your arguments about the case", not "You win"), then you'll generally have no shortage of attorneys offering to take the case for free in order to have a chance to argue before the Supreme Court.
- Post-conviction proceedings, generally back at the trial court. This is where issues are raised that require factfinding beyond what was originally done in the trial court. For example, this is almost always where "My trial counsel was incompetent" claims are heard, since that requires factfinding about what trial counsel did (or didn't do) and why. Appointed counsel for indigents rarely required or provided, with one exception: if the state doesn't allow ineffective-assistance claims on direct appeal (which most states don't), then counsel has to be provided to argue the ineffective-assistance issue.
- Some sort of post-conviction appeal process, which varies widely by state.
- Petition to US Supreme Court, which again almost never works.
- Federal habeas corpus petition in a federal district court. This is typically the first time that the federal system gets involved in a state case, and it can only consider claims that the earlier proceedings violated the US constitution (not claims that the earlier proceedings violated state law or the state constitution). Review is extremely limited; you basically need to be able to point to an earlier Supreme Court case that's squarely on point and that was made retroactive. The district court can recruit counsel in exceptional cases, but other than that, no counsel is provided to indigents.
- Appeal to a federal circuit court of appeals, which is complicated by the need for a "certificate of appealability". The district court will grant a certificate if it thinks that the outcome of the case is debatable; otherwise you have to ask the circuit court for a certificate, which is rarely granted at that level.
- Petition to US Supreme Court. This is only allowed if either the district court or the circuit court granted a certificate of appealability earlier. And even then the Supreme Court has the usual right to reject the petition, and almost always does. (These days the Supreme Court steps in more often to reverse a grant of habeas relief to a defendant than it does to reverse a denial of relief.)
For a federal criminal defendant the process is simpler:
- Plea bargain or trial in federal district court. Counsel provided.
- Appeal as of right to federal circuit court. Counsel provided.
- Petition to US Supreme Court, which is discretionary, and which is considerably more likely to be granted than it would in a state case, but is still very rarely granted.
- Habeas corpus petition in federal district court to settle claims that need post-trial factfinding.
- Appeal to federal circuit court.
- Petition to US Supreme Court, which is discretionary and rarely works.
Edited: Added Virginia exception; added that some circuits do provide help with cert petitions; fixed a couple of other typos.
