Real Talk About Reversible Error (Part II)

Brandon Bullard
September 4, 2021

The role of appellant’s counsel.

In my last post, I gave you some broad strokes about criminal appeals and appellate courts. I also explained that because most criminal appeals are taken by defendants after they have been convicted, I am most often appellant’s counsel. This week, I’m going to talk about what that means.

On appeal, the appellant has the burden of showing (proving) reversible error. If an appellant can show reversible error, the appellate court will either reverse or vacate the judgment of the lower court. Reversal happens when the appellant has shown that a judgment is legally wrong and should be overturned. Vacatur happens when the appellant has shown that a judgment that could be right was nonetheless the result of an unlawful process and should be cancelled or nullified. For example, if the trial court admitted evidence that the law says it should have excluded, an appellate court will reverse the trial court’s judgment. But if the trial court entered a judgment that might be correct—even if it engaged in the wrong analysis—an appellate court will vacate and remand for the trial court to consider the matter again. An appellate court may also vacate part of a judgment, like a sentence that was imposed on a count that should have merged into another, but leave the rest of the judgment in place.

The job of appellant’s counsel is to represent the appellant’s interests. Which means determining what arguable errors (issues) in a case are most likely to net the appellant a favorable judgment from the appellate court. So what errors should appellant’s counsel raise on appeal?

As a baseline, lawyers should raise only meritorious claims and contentions, and so cannot “knowingly advance a claim or defense that is unwarranted under existing law,” unless “it can be supported by good faith argument for an extension, modification or reversal of existing law.” Ga. Rules of Pro. Conduct, Rule 3.1(b); accord Model Rules of Pro. Conduct r. 3.1 (Am. Bar Ass’n, 2020). In fact, a lawyer may move in federal court and in the courts of most states for permission to withdraw from the representation of a criminal appellant whose appeal presents only frivolous grounds for relief. Anders v. California, 386 U.S. 738, 744–45 (1967); see Fed. R. App. P. 27; 11th Cir. R. 27‑1(a)(8). Not so in Georgia, however. Georgia’s Supreme Court forbade appellate counsel from seeking to withdraw from representation under Anders in 1985:

"We now hold that in the future Anders motions will not be granted by this court. We conclude that the Anders motion is unduly burdensome in that it tends to force the court to assume the role of counsel for the appellant. Anders v. California, supra, provides a mechanism for withdrawal of appointed counsel at the appellate level in the event that the appeal would be frivolous, but it does not require such withdrawal. Further, the opinion of the United States Supreme Court does not intimate that an attorney should be subjected to discipline or even disapproval for filing a frivolous appeal in a criminal case. Ever since Griffin v. Illinois, 351 U.S. 12 (1956), a continuing line of cases has developed protection for the indigent defendant on his first appeal. Therefore, a defendant is entitled to review of any claim which might afford him relief. In this case, as in every other in which an Anders motion has been filed, this court has reviewed the entire record and transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record. We therefore find and now announce to the bar that the Anders motion will no longer be entertained in this court."

Huguley v. State, 253 Ga. 709, 710, 324 S.E.2d 729, 730–31 (1985).

The Court of Appeals of Georgia followed suit three years later in Fields v. State, 189 Ga.App. 532, 533, 376 S.E.2d 912, 913–14 (1988). Thankfully, the rules of Georgia’s appellate courts authorize contempt sanctions for frivolous filings in civil appeals, not criminal ones. Ga. Sup. Ct. R. 6; Ga. Ct. App. R. 7(e)(2). So appellant’s counsel cannot suffer a penalty for the inability to withdraw from a frivolous appeal in those courts. The relevant Federal Rule of Appellate Procedure, Rule 38, is not so limited: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” See United States v. Cooper, 170 F.3d 691, 691–92 (7th Cir. 1999) (holding that Fed. R. App. Pro. 38 authorized sanctions for frivolous criminal appeals).

But what if a case would support several arguably non-frivolous issues? Even then, appellant’s counsel should not raise every possible claim. When you hire an appellate lawyer, one of the things that you’re paying for is that lawyer’s informed judgment about how best to present your case to the appellate court, including which arguments to raise and which to forgo. As the Supreme Court of the United States explained in 1983,

"Most cases present only one, two, or three significant questions …. Usually, … if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones."

Jones v. Barnes, 463 U.S. 745, 752 (1983) (quoting R. Stern, Appellate Practice in the United States 266 (1981)).

In my experience, only the rarest cases present more than three viable claims of error for reversal or vacatur. My job is to find those one-to-three issues and present them in the best light to the appellate court. That means I spend a lot of time considering and rejecting potential claims of error because they are unlikely to win for my clients. I do so fully aware that claims forgone on appeal may be unavailable in a later petition for a writ of habeas corpus. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that a state defendant’s failure to raise a federal claim in state court generally defaults that claim in a later federal habeas action); Glover v. State, 266 Ga. 183, 183–84, 465 S.E.2d 659, 660–61 (1996) (holding that a Georgia defendant’s failure to have raised claims of ineffectiveness before the direct appeal when the opportunity was present, defaulted those claims for a later state habeas action). A claim of error that would not have won the day on appeal is no more likely (and typically less likely) to win the day if raised in a petition for a writ of habeas corpus. And good appellate counsel should work to get you the best chance at relief as soon as possible, not make you wait until later to raise your best claims. (An exception to that general rule is the capital case. A client challenging a sentence of death has different interests from a client challenging a sentence of imprisonment, and appellate counsel should take steps to keep every future opportunity for relief available.)

My policy is to be brutally honest with every client. I thoroughly review every case and research every potential claim of error that I can find. I then carefully decide which claims of error will afford my client the best chance at getting relief from the appellate court. I never hide the ball about which claims of error are stronger, which claims of error are weaker, or why I would select one over another. Win or lose, I want my clients to know that I gave them the best chance possible.

Thanks for reading. In my next post, I’ll get into what an appellant has to show for an appellate court to find reversible error. As always, the information in this post is not legal advice. It’s too general to apply to any particular case. And the law is different in different jurisdictions. Still, I hope you got a sense of what appellant’s counsel does when considering what claims of error to raise.