January 26, 2011

What Appeals Are (and Aren't)

I realize that my daily life involves a fairly specific niche of law.  Criminal defense law is specialized enough, on the federal level even more so.  Add to that the complexities and mysteries of appellate work and it's no wonder that the ins and outs of the process only really interest a few legal geeks (of which, I admit, I'm one).

Still, I wish the broader culture - movies, TV, and the like, in particular - would make a little bit of effort to figure out how things work.  I'm sure one of us geeks would be willing to explain it.  My biggest beef is that most people think appeals are just "do overs" of a trial.  That's not the case.

This came up for me most recently in The Trials of Darryl Hunt, a 2006 documentary.  Hunt is a black man who was charged with raping and killing a white woman in Winston-Salem, North Carolina in the mid 1980s.  He always maintained his innocence. Despite evidence that could be labeled "sketchy," at best, he was convicted, twice, of first-degree murder by all-white juries.  After nearly 20 years of battling, a wild goose chase DNA database search uncovered the real killer, who promptly confessed.

As you might expect, Hunt's case bounced up and down the court system for years until he was finally exonerated.  The film makes great drama out of a couple of periods of tense waiting amongst Hunt's lawyers and supporters while an appellate court considered the case.  With one exception (the appeal that vacated his first conviction), the relief they sought never came.  But the filmmakers never really explain what issues were raised on appeal and how they might effect the ultimate outcome of the case.  As a result, when the appeals are unsuccessful, viewers are left with the impression that the mean ol' appellate court just wouldn't do justice for Darryl.

That impression comes about because most people don't understand that appellate courts in our system aren't designed to resolve factual disputes, for the most part.  In general, appellate courts in common law countries are required to give great deference to factual findings made by a trial court or a jury.  Defendants can challenge the sufficiency of the evidence supporting their conviction on appeal, but it's a long shot, because appellate courts “assume that the jury resolved any conflicting evidence in the prosecution's favor.” United States v. Jeffers, 570 F.3d 557, 565 (4th Cir.2009).  Two recent cases discussed over at The Volokh Conspiracy show just how bad it has to get for a defendant to prevail on a factual issue.

Ruiz v. State, from a midlevel Florida appellate court, is a garden variety search case under the Fourth Amendment (and Fourteenth, since it's in state court).  Ruiz ran into some cops on the street and they eventually searched his home.  At the suppression hearing, the cops testified that Ruiz consented to the search.  Ruiz testified that he did not give any consent.  The trial court found the cops to be credible and found that consent had been given.

On appeal, the reviewing court was not as sure about the cops' story:
Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is 'nonchalantly' and 'casually' approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.
So the court says the cops are full of shit and the defendant wins, right?  Not so much:
Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized 'with special care?' Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of 'consent' cases that have come before us, the finding of 'consent' in so many curious circumstances is a cause for concern.
So what does it take for an appellate court to ditch a lower court's factual findings?

United States v. Prokupek involved a traffic stop that lead to a search and the discovery of drugs.  Cops set up fake signs advertising a drug checkpoint up the road.  The defendant exited the highway after the signs and then turned onto the country road at the end of the ramp.  He was pulled over.  At the time, the cop told the defendant that:
The reason you got pulled over is because when you exited the interstate you didn’t signal—you didn’t signal your exit [inaudible]. You signaled your turn, but you didn’t signal—exit—signal when you were getting on the exit.
That was recorded on the microphone that was part of the cop's dashboard video camera.  If it works like the ones in West Virginia cop cars, it activated automatically when the cop turned on his lights to pull the driver over.

At the suppression hearing, however, the cop's story changed.  He testified that the driver signalled the exit, but not the turn onto the country road.  When pressed, the cop admitted that he did not even see the driver when he exited the highway.  In spite of the discrepancy, the trial court credited the cop's testimony and found probable cause to support the traffic stop.

On appeal this time, the defendant wins.  The Eighth Circuit, after noting that determinations of witness credibility "can virtually never be clear error," it was in this case:
The district court’s factual finding that 'Prokupek failed to signal his turn before turning from the exit ramp on to the county road' is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is 'implausible on its face,' Anderson, 470 U.S. at 575, and we are left with the 'firm and definite conviction that a mistake has been made,' United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous.
Sadly, the second case reminds me of a story I saw long ago on one of the TV news magazine shows (20/20, IIRC), about a teenager charged with murder.  The best piece of evidence against the boy was his confession, on video tape, to police.  Due to police procedure at the time, the entirety of the interactions between the cops and the boy were filmed.  When viewed in its entirety, the video showed that the boy's confession had been coerced and was not reliable.  The jury acquitted him.

What was the lesson learned by that law enforcement agency due to that case?  If you think it was that it needed to better train and supervise its officers, you're wrong (and naive).  No, the problem wasn't that the cops coerced a teenage boy into falsely confessing to a murder - the problem was that they recorded it!  The agency changed its policy and stopped recording interrogations.  And given the ongoing dispute about whether cops can be taped by the public (see here for an example), I don't see a boom in the number of cases resolved like this any time soon.

Getting back to Darryl Hunt, his case was all about the facts.  There were legal issues lurking around, but no blockbusters.  The bottom line was it was a whodunit.  On appeal, the courts reviewing the conviction were largely bound by the jury's conclusions about who was telling the truth and who wasn't.  The jury's conclusion wasn't objectively wrong until some kind of unimpeachable contrary evidence popped up - the DNA match to someone else.  So Hunt's chances of success on appeal were somewhere between slim and none.

Nonetheless, the filmmakers pin a great deal of hope on those appeals.  Which I understand.  I've spent plenty of times on pins and needles while the Fourth Circuit decided one of my cases.  But I know, in the back of my mind, what the odds really are and never get too caught up in the hope of success in fact-bound cases.  Some explanation, from either the attorneys involved in the case or some outside expert, about what appeals are about and what they aren't about would have helped viewers grasp complete what was going on.  But it might have bogged down the drama of the film a bit.

The bottom line is that, with very few exceptions, appellate courts are only concerned with legal errors.  Factual errors, unless truly egregious, just aren't on their radar.  It doesn't need to be that way - civil law countries in Europe and elsewhere have appellate courts that do some factual review.  But that's the way it is here.

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