Many of you have asked how the appellate process works. What follows is a rough overview. Individual cases may experience some differences, but it is generally accurate. The process begins by selecting an appellate attorney. You can either have one assigned by the state, for which the wait is about four years for a capital case, or you can hire a private appellate attorney.
Direct Appeal
Anyone sentenced to death is required to file a direct appeal with the California Supreme Court. This appeal may not be waived. The direct appeal has to do with anything within the court record. It covers things like change of venue, evidentiary issues, juror removal, or any judge's ruling.
The appeal begins with the attorney's ensuring that the record of all court proceedings is accurate and complete. Even though the record is certified as the trial progresses a final look is necessary. This process can take a year or more. At the completion of this task the record is filed with the California Supreme Court. This starts the clock on the next step; the Appellants Opening Brief.
Appellant's Opening Brief
The Appellant's Opening Brief (AOB) is the basic statement of why the court should reverse the conviction. The AOB is to be filed within forty days of the submission of the record. Attorney's often request and receive many thirty day extensions. The actual filing of the brief may take more than a year.
Respondent's Brief
Following the AOB the prosecutors file a response - The Respondent's Brief (RB). While the law reads that this is to be in within thirty days, again granting extensions of time is almost a given. It can commonly be six months before the RB is in.
Reply Brief
The third and final brief is the Reply Brief filed by the appellant. This brief is due in twenty days, but again, delays are normal. Look for at least another 6 months before this is submitted to the court.
Oral Arguments
Once the Reply Brief is filed, opening arguments are scheduled to take place before the California Supreme Court. It can be up to two years before oral arguments are heard. Each side gets to argue for 30-45 minutes.
Decision
The courts decision is due ninety days after oral arguments. The court can affirm the conviction. The court can find "harmless errors" and still affirm the conviction and the sentence. They can affirm the conviction and reduce the sentence. They can over turn the conviction and grant a new trial, or they can overturn the conviction and bar it from re-trial. The losing side may request a rehearing and the court can take up to three months to decide if they will grant it.
The total time for the direct appeal would be four years if "rapid". Add to that the wait to be assigned an appellate attorney if you lack the resources to hire your own. During this time exculpatory evidence and witnesses can be lost. This time is only for the direct appeal, the Habeas adds additional time when filed separately.
The habeas is not automatic. It is filed at the request of the client and the court can deny hearing it without comment. Briefing is similar to that which takes place within the direct appeal.
It is best if the direct appeal and the habeas are filed together. This presents the court with all issues at the same time. Arguments are weakened when submitted in separate parts and distanced from each other by years. Unfortunately, this is common. State resources are stretched so thin that an attorney cannot be appointed to tackle the habeas petition until after the direct appeal has run it's course.
If both the direct and Habeas appeals are exhausted, the case is appealed to Federal court. That process will be outlined in the next newsletter.
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