Sunday, June 24, 2012

On Sunday, I saw two articles about what Jerry Sandusky's issues on appeal will be. Mind you, a jury only convicted him yesterday. He hasn't been sentenced yet and a notice of appeal won't even be filed until after that. But already we've got assurances about what issues will be included on the appellate brief that will be filed a year or so from now.

It's time for me to admit something. I'm kind of an appellate snob. I would expect a trial lawyer to pull rank over me because I don't know how to construct a cross-examination or talk to a jury. Just as I always chuckle a little when people, even lawyers, who don't know much about appeals try to tell me what the appellate issues will be. Most people, even lawyers, simply don't have a good grasp of which issues are good appellate issues and which issues no decent appellate attorney would touch with a ten foot poll. There are lots of things to consider, like whether the trial record includes all the necessary information, whether the issue was raised, or raised sufficiently, at the trial level, what standards the appellate court will apply in considering the issues. This is the kind of stuff that people who don't spend their days immersed in appellate nerd land just aren't up on. Which is one reason why I would encourage anyone appealing a conviction to find a different attorney than the trial attorney because you're best served by an attorney who specializes in appeals.

Now today I have seen that Sandusky's outspoken trial attorney will not be handling the appeal (phew, as trial attorneys should never handle the appeals), but his stated reason isn't that he isn't an appeal expert but rather that he will be a witness at the appeal stage.

Hmm... So now I want to do some research into Pennsylvania appellate procedure because such a statement from a trial attorney in my state would prove to me that the trial attorney doesn't know how appeals work. Here in Kansas, we can't raise ineffective assistance of counsel on direct appeal and we don't have witnesses during the appellate process. Other states do it differently, though. So I can't immediately say that this guy is an idiot who doesn't know what he's talking about (at least not on this topic...), but I'm leaving that possibility open.

I guess the basic point to this post is let's leave the appeal to the appellate lawyers and not declare now what issues they will and will not include in the brief they will submit next year. And outspoken defense attorneys who are already in some trouble for violating gag orders should probably shut up already and turn the case over to the next set of lawyers.

Location:The premature talk of Jerry Sandusky's appeal

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