Appellate Advocacy

All 50 states provide defendants some form of appeal from a criminal conviction. Appeals were well-established elements of state criminal proceedings throughout the nineteenth century. They probably developed earlier in state court systems because state governments had primary responsibility for enforcing criminal laws from the founding of the nation through the 1800s, since very few federal statutory offenses existed during this period.

Because states decided that criminal appeals were necessary to protect the innocent, the Supreme Court determined that appellate procedures must comply with the federal constitutional guarantees of DUE PROCESS and EQUAL PROTECTION (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). In Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), the Supreme Court held that a state violates a defendant's constitutional protections when it forces an indigent, who has a statutory right to appeal, to attempt the appeal without the assistance of an attorney. The Supreme Court reasoned that without an attorney, an appeal constituted nothing more than a "meaningless ritual." Therefore, a state must provide counsel to a defendant who wants to exercise the right to appeal but cannot afford to hire a lawyer.

In 1985, the Supreme Court held that a defendant has the right to the effective assistance of appellate counsel. The Court concluded that a defendant whose counsel does not provide effective representation is "in no better position than one who has no counsel at all" (Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821[1985]). However, in Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), the Supreme Court held that a criminal defendant does not have a constitutional right to appointed counsel on a discretionary review.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction. In this case, the defendant (Flores-Ortega) alleged ineffective counsel because his attorney did not file an appeal within the 60-day time period dictated by the judge in his original case. The Court rejected a bright-line rule (a strict rule with no ability to use discretion) that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards.

The Court in Roe held that a defendant claiming ineffective assistance of counsel must show that the attorney's representation "fell below an objective standard of reasonableness" and that the attorney's deficient performance prejudiced the defendant. The Court used a test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 205, 80 L.Ed.2d 674 (1984), to determine if Flores-Ortega's attorney was constitutionally ineffective for failing to file a notice of appeal. It directed that an inquiry should begin by asking whether the attorney in fact consulted with the defendant about the appeal. Such a consultation meant advising the defendant on the pros and cons of taking an appeal and making a reasonable effort to discover the defendant's wishes. However, the defendant would still have to show that there was a reasonable probability that, but for his attorney's conduct, he would have filed a timely appeal.

In Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the Supreme Court ruled that defendants are entitled to a hearing to prove that they received ineffective counsel on an appeal. In this case, the defendant argued that his appellate attorney failed to appeal his sentence, which he claimed had been miscalculated under federal sentencing guidelines. This failure would mean serving between six and 21 months longer in prison. An appeals court held that the increase in his sentence was not serious enough to merit a review of his ineffective counsel claim. The Supreme Court disagreed, ruling that any amount of jail time justified a hearing into the issue.

The Supreme Court considered another claim of ineffective appellate counsel in Mickensv. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), but this one involved trial counsel. However, the rule announced in Mickens, could be made applicable to claims of ineffective appellate counsel. The defendant had been convicted of murder and sentenced to death. During the course of his death penalty appeals his appellate attorney discovered that the defendant's trial attorney had represented the murder victim shortly before his murder. This was not disclosed to the defendant during his trial. The defendant argued that this tainted his trial, as there was no way the defense attorney could have been objective.

The Supreme Court disagreed, in a decision that signaled a departure from its death penalty JURISPRUDENCE. Because of the finality of a death sentence, the Court previously required less hard evidence of prejudice from ineffective counsel. In Mickens, the Court stated that the general rule for ineffective counsel should also be applied to capital murder cases. Under this standard the defendant must show that "but for" the lawyer's conduct, the result of the trial would have been different. The Court will presume an adverse effect "where assistance of counsel has been denied entirely or during a critical stage of the proceeding." In Mickens, however, the Court found that the trial attorney had done an acceptable job in representing the defendant, so no adverse effect could be presumed. Because the defendant could not show that the outcome of his trial would have been any different but for the actions of his attorney, his appeal was rejected.