Legal Mythbusting

I’m loathe to recommend anything over at Huffington Post, but with Radley Balko’s move over there from Reason, that’ll be difficult. When it comes to criminal justice issues, particularly the ever disappearing Fourth Amendment, Balko’s about as good as it gets. Thus, it’s still with a little trepidation I highlight his current series on “Myths of the Criminal Justice System.” Part one is here. Part three arrives on Friday.

As for part two, it includes a myth that is near and dear to my heart – that appellate courts exist to retry factual contentions raised at trial. I’ve written about it before. Appeals focus on legal issues and try to sift the facts of the case only in the very rarest of occurrences. I suspect they do it just to keep people like me from saying they never do it.

Just how rare is it? As Balko explains:

In a 2008 article published in the Columbia Law Review, Brandon L. Garrett, a law professor at the University of Virginia, reviewed how appeals courts handled the first 200 cases in which DNA testing exonerated a defendant who had previously been convicted of rape or murder. Of those 200 convictions, just 18 convictions were at one point reversed by appellate courts. Another 67 defendants' appeals were denied without even a written ruling. In 63 cases the appellate court opinion described the defendant as 'guilty,' and in 12 cases referred to 'overwhelming' evidence of guilt. In the remaining cases, the appeals courts either found the defendant’s appeal without merit or found that the errors in the case were 'harmless' -- there were problems with the case, but those problems were unlikely to have affected the jury’s verdict -- due, again, to the convincing evidence of guilt.

It need not be that way. Appellate courts in some civil law countries evaluate the facts for their own sake on a regular basis. But in common law countries like ours, you’ve basically got one chance to get the “facts” to come out in your favor. After that point, I’m pretty well stuck with them.