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Appeals are often perceived as a get-out-of-jail free card but in reality, they are no more certain than any other procedure in federal criminal law. It is true that a successful appeal may prevent the need for an expungement later, but the appellate court may also allow your conviction to stand. If you decide to appeal a federal conviction, here is an overview on what to expect.

Appeals are limited.

You cannot appeal a sentence simply because you did not like it or personally believed it was wrong. Appeals are granted when your conviction contained irregularities. For example, the judge made an incorrect ruling on evidence or juries receives the wrong instructions. Mistakes may even go back as far as when you were arrested, but if a court fails to consider those errors, your conviction may be appealed.

Sometimes, there may be constitutional violations that require charges to be dismissed. If a trial court failed to recognize that and the appellate court agrees, your conviction could be reversed on appeal.

Basically, appeals cannot be based merely only the factual conclusions of the court or jury. There must be a procedural error that lead to incorrect conclusions. If your trial was conducted perfectly and the jury convicted, your options for appeal are immediately limited, if not completed eliminated.

This is not a trial.

Appeals are normally determined from the briefs. Oral argument, the traditional method of arguing and settling appeals, is going by the wayside.

While the Ninth Circuit Court of Appeals (which is where Nevada appeals are heard) does not release statistics on this, other circuit courts show this trend. The Third Circuit only hears 10 percent of cases on oral argument and publishes around seven percent of its cases. Only published cases become precedent so most cases are considered insignificant by the courts.

Most cases are evaluated on the written briefs. Courts evaluate the arguments and cited cases to see if the procedural error made it impossible to conduct a fair trial. A vast majority of these cases are affirmed without an opinion, meaning not only will your conviction stand but you will never know why the court made that decision.

Oral argument works in your favor. It is a chance for your attorney to put a personal spin on your case and clarify points with the judges (appeals are usually decided by a three-judge panel). Since judges can ask questions, that allows your case to become even clearer. Points in the brief become stronger and you are more likely to benefit from the appeal.

Your case is most likely to become subject to oral argument if you hire a skilled appellate attorney who drafts a compelling brief. Many criminal trial attorneys associate with appellate specialists for this reason. Appeals is more a scholarly skill than a persuasive one and sometimes, a case needs that extra edge.

Cases are slow.

In the 12-month period ending June 30, 2017, the Ninth Circuit Court of Appeals received 52,028 cases. There is no doubt that the caseload for appeals courts are high. It is a big factor on why courts are so selective when it comes time for oral arguments.

Technology streamlined some elements of the appellate process but the evaluation of briefs and decision-making is not a step to rush. To make matters worse, the Ninth Circuit is one of the slower circuits, with a case life median of 17.4 months.

But you do not want this to be a quick process. That reduces the chances of arguments being considered. While this is often a point of contention with many clients, there is little attorneys or the courts can do about it. Accept this as a fact and never expect an immediate decision.

There are options after appeal.

While appeals are not necessarily futile, there is a good chance that they will not end the way a defendant desires. Even in the most egregious cases of court abuse, your appeal may be slow and still affirm the trial court’s decisions. This can leave defendants feeling hopeless, which is reasonable since many put significant faith in their appeals.

However, there are options even when you lose an appeal. You can appeal to higher courts, which is often time-consuming and a long shot. Other options include habeas corpus (a lawsuit against the government) and other proceedings to challenge criminal convictions. While many imagine the dramatic fight that travels up to the Supreme Court, these mundane solutions come into play much more frequently and have a slightly higher chance of success.

You can lower your chances of facing the appellate process by hiring a skilled criminal defense attorney. Gabriel L. Grasso is a proven winner offering 25 years of experience representing defendants. Contact our office today to schedule a consultation.

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