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Appeals: The Final Frontier (Or The Role Of Appellate Courts And How They Work)

"Space: the final frontier. These are the voyages of the starship Enterprise. Its five-year mission: to explore strange new worlds, to seek out new life and new civilizations, to boldly go where no man has gone before."

-Opening lines to Star Trek

Many people believe that a criminal ends once the trial judge pounds his or her gavel. False.

While the news cameras and reporters may go away, and while the convicted defendant may be transferred to a prison cell of the government's choosing, criminal cases that go to trial do not end just because a verdict has been reached or a sentence imposed. Often times, the cases will proceed to the various courts of appeals -- or the 'final frontiers' of the legal systems.

Where Do I Go?

These courts of appeals are divided up amongst various districts or circuits. They will hear cases based on geography, i.e. from the county/counties comprised of their districts. For example, the Eighth Appellate District in Ohio hears cases only from Cuyahoga County (Cleveland), while the Ninth Appellate District will hear cases from the four county region that includes Summit (Akron), Medina (Medina), Wayne (Wooster) and Lorain (Elyria) counties. For a map of the appellate districts in Ohio, check out the Ohio Supreme Court's website.

As a general rule, Ohio courts of appeals will hear cases in the county seat in which a case originates: for example, if a case is heard before the Summit County Court of Common Pleas, the Ninth District Court of Appeals will hear the case while they are sitting in Akron, which is the home base of the court. Similarly, if the case originated in the Wayne County Court of Common Pleas or Wayne County Municipal Court, the Ninth District would travel to Wooster to hear the case.

On rare occasions, depending on the court's schedule, Ohio appellate courts will offer attorneys the option of hearing the case in one of the court's other counties. For example, I once had a case that originated in Ashland County, which is in the Ohio Fifth District Court of Appeals. Rather than having the case heard in Ashland, which only heard cases every several months, the case was heard in Canton while the Court was hearing cases originating from Stark County.

Similarly, the federal court courts have their own courts of appeals. They are divided up based on the state in which the case originated. For example, the United States Sixth Circuit Court of Appeals covers the four state region of Michigan, Ohio, Tennessee and Kentucky. The federal court system also has specialized courts of appeals, such as the United States Court of Appeals for the Armed Forces, which hears cases stemming from the various courts of the Armed Forces.

Unlike the state appellate courts, the federal courts of appeals rarely travel from their home base. For example, the Sixth Circuit Court of Appeals only sits in Cincinnati. While the individual judges may have offices in their home districts/cities, they will travel to Cincinnati to hear arguments.

Who Are The Judges?

In state courts in Ohio, appellate judges are generally elected to six-year terms. The exception to this is when a vacancy opens through the resignation or death of an appellate judge. If a vacancy occurs, the Governor of Ohio will appoint his/her replacement. That judge will sit on the court until he/she can either be elected to serve the remainder of their term, or run for a full term of his or her own.

In federal courts, appellate judges are nominated by the President and then confirmed by the United States Senate. Once appointed, appellate judges serve for life and can only be removed from office through an impeachment. Otherwise, the judges will sit on the Court of Appeals until they die or retire from the Court. In certain cases, an appellate judge can go to "senior status," where they will have a reduced caseload of appellate cases, but enjoy the same benefits of being a full federal judge.

In rare cases, and usually due to staffing issues, federal courts of appeal will have district court judges sit "by assignment," meaning that the judge will act as an appellate judge for the purposes of a specific case. Those judges will have the same voting powers of the regular appellate court judges.

What Do The Judges Consider?

As a general rule, appellate courts can only review materials in the original trial court's record. These materials will include things like transcripts, motions, indictments, sentencing entries, exhibits and so forth. Appellate courts will generally not consider new evidence. Except in rare occasions, new evidence must be presented to the trial courts in the form of a motion for a new trial or petition for post conviction (or habeas) relief.

The judges will rely on the evidence and trial transcripts, but will be focused on the issued raised by the attorneys in the case. Attorneys will file briefs with the court, which are designed to focus the court's attention on the issues that the attorney believes have merit for the court's review. For example, the court may review items such as if there was sufficient evidence to convict an individual or if a motion to suppress evidence should have been granted or denied.

On occasion, judges will make rulings based on their own review of the case. For example, if the judges believe that an issue should have been raised, they can raise it sue sponte, or on their own. This rarely happens, and usually only happens in criminal cases where they believe that an appellant's rights have been violated. Courts will occasionally raise issues sue sponte for procedural reasons, such as that a final appealable order was never filed in the case.

How Many Judges Hear A Case?

As a general rule, three judges will hear a case on direct appeal. A majority of the panel must rule one way or another on the case, i.e. to affirm or reverse and remand the case. As such, the possibilities for votes are usually 2-1 or 3-0.

On occasion, the judges will come up with a general overall holding, i.e. affirming a case, but with different judges having different viewpoints on how they got to the decision. These are called concurring opinions. Similarly, judges can issue dissenting opinions, where they disagree with the majority's decision and lay out the reasoning for their opinion.

How Long Will An Appeal Take?

Depending on the appeal, the entire appellate process can take anywhere from five to fifteen months. On occasion, such as in death penalty or complex litigation cases, the appeal can take longer. The biggest deciding factors for how long a court will take is their court's caseload, the length of the attorneys' briefs and transcripts, the number of issues presented to the court and how quickly the judges come to a conclusion.

How Will I Find Our The Court's Ruling?

Court's usually let parties and the public know their decision by one of two ways: either a person can look up a decision on the court's website or the court will mail the party's attorney(s) a copy of the decision. Generally, unless a party is checking decisions online every day, the attorneys will learn of the court's decision when it is received in the mail.

What Do I Do If I Do Not Like The Appellate Court's Decision?

After the appellate court makes its decision, if you disagree with it, you have one of two options: you can either request that the entire appellate court hear the case en banc, where the entire panel of the court hears the case; or you can appeal to the Supreme Court.

In your original appeal, you will have your case heard by three of the judges of the appellate court. If your case is heard en banc, every judge of the appellate court will hear your case. For example, an en banc hearing in the Ninth District Court of Appeals will involve all five judges of the Court of Appeals. In the Ohio Eighth District Court of Appeals, all twelve judges would hear the case. In the United States Sixth Circuit of Appeals, it would involve all fifteen active judges of the Court.

An appellate court hearing a case en banc is rare. Usually a court hears a case en banc when it is a case of great importance, such as a death penalty case, or when the appellate court has cases where the opinion of the court conflicts with an earlier decision. Also, like appeals to the supreme courts, an appellate court's decision to accept a case for review is discretionary -- meaning that the judges can decide not to accept the case for review.

The second option is to appeal to the Supreme Court. In both the federal and Ohio court systems, the option to appeal to the Supreme Court is always an option, but it is important to remember that neither the Ohio nor United States Supreme Courts have to accept a case. Appeals to both of these courts are considered to be discretionary, meaning that the courts are only required to take cases that they believe warrant their attention. Generally, the rule is that the case has to be of great constitutional or statutory importance or that there are conflicting cases from the courts of appeals below.

In Ohio, the Supreme Court of Ohio has seven justices who are from all over Ohio. These justices are elected by the voters of Ohio and serve six year terms. In the event that a justice of the Ohio Supreme Court is unavailable or has to recuse himself/herself, a judge from one of the lower courts of appeals is appointed by the Chief Justice to sit by assignment.

The United States Supreme Court hears cases from all around the country, and is limited to hearing cases with federal issues, i.e. interpreting federal statutes or the United States Constitution. As a general rule, the United States Supreme Court will not hear issues involving state laws or state constitutions unless they conflict with federal law or the United States Constitution. Justices on the United States Supreme Court are appointed by the President and confirmed by the United States Senate. When the Supreme Court accepts a case, or grants certiorari, the case will be fully briefed and heard by the Justices.

In the event that a case is appealed to the Ohio Supreme Court and a decision is not favorable, or if the Ohio Supreme Court declines to hear the case, an appeal can be filed with the United States Supreme Court.

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