An appeal constitutes a process through which a convicted person can legally request for a formal change to be made on an official court decision. After an alleged perpetrator of crime is convicted and sentenced, s/he has an opportunity under the law to make an appeal on the sentence. When convictions result from ‘guilty pleas’ the defendant has to seek for permission or “leave” in order to launch an appeal. Appeals do not include trials or re-trials, but rather the scrutinization of the trial files to make sure that the due procedures of trial were adhered to.
If successful the appeals may lead to appeal hearings where the appeal court takes time to listen to the respondent and appellant arguments presented against the trial as well as examine the trial records. This hearing materializes when transcripts of the trial are presented and the factum and appeal book are made ready for the hearing. Appeal hearings are usually done in a higher court than the one issuing the conviction. Appeals are unique because most of the presented arguments are in written form rather than in open court sessions.
The hearing of appeal is conducted by judges in a panel and not by a jury and judge as in normal court cases, and arguments are made in relation to the rights of the convicted at trial and during the whole prosecution process (Berman & Bergman, 2009).The process of appealing is procedural and the first step includes filing an appeal notice which informs the court that the defendant wishes to make an appeal and it states the grounds on which the appeal will be based or rather why the defendant should be granted permission to appeal.
The document is usually brief and it contains the appeal statement which outlines why a defendant should be given a chance for a hearing. This is alternatively termed as an opening brief (Berman & Bergman, 2009).Prior to the answering brief’s filing the exhibits used during the first trial and the transcripts from the hearing should be made available. The answering brief will then be filed after the opening brief and this one presents a response to the opening brief. The defense is then offered a chance to present to the appeal court rebuttal arguments which are given as a response to the answering brief.
After the completion of these steps an oral argument may be scheduled, in which the appeal court gets a chance to question both the defense and the state. These arguments are mainly directed towards legal academic issues that pertain to the case. After the hearing of these arguments several steps may be undertaken and these may include an affirmation, a modification, and a reverse or remand. An affirmation declares the sentence given to be a rightful and just judgment in which case the sentence by the trial court still stands. Alternatively, the company may offer a modification, this involves a making a change in the sentence so as to conform to legal standards without requiring the trial court to act.
The appeal court may also reverse or remand, in which case it will direct the trial court to re-sentence or re-try the appealing person in accordance to the legal instructions that it may offer (Berman & Bergman, 2009).Appeals may also come in form of “Post-conviction Relief Petitions (PCR).” These petitions occur in the same court that the trial was made. The PCR is usually handled by the same judge that made the initial trial.
The PCR petitions may be filed in convictions made by plea agreements or a jury. The prosecuting office used in the first trial will still be used in the PCR hearing. Like the normal direct an appeal the initial arguments are made in writing and responses may be made in writing and at times oral arguments and hearings may be scheduled.
Hearings where evidence is presented for a second time may also be scheduled where necessary during a PCR (Berman & Bergman, 2009). The PCR decision may actually take as long as a year before presentation. Results offered may also be similar to those given in a higher appeal court either in form of an affirmation, reversal or modification. The innocence project is a legal project mainly concerned with appeals and confirmations of evidence used at conviction. The project is a project concerned with legal issues of people that have been wrongfully convicted and would like to make appeals on their sentences
This project was initially established in 1992 at “Benjamin, N. Cardozo Law School.” Initially, it operated as a legal clinic making non-profitable operations for people seeking justice through appeals. The project’s main focus is the use of post-conviction DNA tests to ascertain the credibility of evidence used at trial in order to seek justice for the defendants involved. The project was established with the effort of the external legal council and students at the law school. The project has so far helped in exonerating 182 convicts since its inception in 1992. The project has spread the provision of its services all across the country and even abroad in nations such as Canada (McGill, 2010).
The Canadian project was initiated in Osgoode hall law school. The project initially concentrated on cases where DNA may be involved, but as time has gone by it has gotten into the exonerations involving non-DNA cases as well. Examples of cases handled in this project include: Lamont, Joseph Abbitt’s case. Lamont was convicted over an incidence that took place in May, 1991 in California. Lamont was charged with two counts of rape and first degree kidnapping as well as 1 count of burglary. After hearing he was convicted for all the charges presented against him. Lamont received 2 life sentences and an additional 110 year, in 1995.
He was finally exonerated in 2009 after serving a 14-year sentence period, however; the actual perpetrator has not been found. The contributing cause of the wrongful conviction was based on misidentification by the eyewitnesses. Despite the limited chance to see the attacker the victims identified Lamont as the attacker. Attempts to defend himself on an alibi failed because a time card lacked due to the long time that had elapsed from the crime’s date to the conviction period. The employer gave a testimony, but it did not suffice because of the lack of a time card. Lamont has however not been compensated.
The DNA tests were inconclusive and therefore Lamont was convicted of kidnapping, burglary and rape. Exoneration finally came after an appeal and fresh tests of the DNA gathered by the test kit from the crime scene. The fresh test excluded Lamont from the crime (Innocence Project, 2011). .The third case on highlight involved Cody Davis from Florida. Davis was charged with robbery. The incident occurred in 2006 and Davis was convicted on the same year of robbery and granted a three year sentence.
After a successful in aided by the project Davis was finally exonerated in 2007, after serving for five months. The real perpetrator has not yet been found and Davis has not yet been compensated. The cause of the wrong trial was misidentification by an eyewitness. The DNA evidence given by Davis did not prove to be probative during his conviction and thus was not offered priority at the trial. However, after it worked through the laboratory testing backlog it exonerated him by excluding him from the crime. During the robbery at a bar the cashier was forced to give cash to the robber whom he later identified as Davis.
However, the cashier had given a description of a tattoo that Davis did not have. During the same incidence a mask was found at the scene of the crime, just outside the bar. However, this did not count because no one was ever recorded see the robber in a mask. Therefore, Davis was convicted on the grounds of the eyewitness identification and the informant’s statement which declared that Davis had been bragging of committing various robberies in the area. However, after a laboratory test the DNA on the mask matched that of another man named Pritchard, who happened to be in jail awaiting other charges.
Apparently, Pritchard happened to have a tattoo that matched the description offered by the cashier, and once confronted in an interrogation he confessed to the robbery, thus exonerating Davis (Innocence Project, 2011). The fourth case involves a 1988 incident in California Leonard McSherry, was charged with kidnapping, oral copulation, rape and digital penetration. Leonard was charged with the offenses and convicted to a 48 years sentence in jail in 1988. Luckily, his exoneration came in 2001 after serving 13 years in jail as a result of help from the project. McSherry has been compensated and the real perpetrator found. The cause of his wrongful trial was misidentification by an eye witness.
The rape victim and her brother identified Leonard from a photo lineup and live lineup. A neighbor also identified him from the same line ups and stated that he was seen near the park before the occurrence and the victim positively identified the interior of Leonard’s grandmother’s house in a nearby place as the scene of the crime. After a DNA test request on appeal grounds the test results excluded McSherry and he was exonerated. After which he sought compensation for wrongful incarceration and got his compensation. (Innocence Project, 2011). http://www.innocenceproject.org/Content/Leonard_McSherry.php
Berman, S. and Bergman, P. (2009),. The criminal law handbook: know your rights, survive the system, 11th edition, Nolo Books
Gould, B. Jon. (2007),.The Innocence Commission: preventing wrongful convictions and restoring the criminal justice system, NYU Press
March 2011 from .
McGill, I. (2010),. The innocence project history, retrieved on 4th March 2011 from http://www.mcgill.ca/innocence/history/