Criminal Law

Why Appeals in Death Penalty Cases Take So Long

By Janet Portman, Attorney
Appealing any criminal conviction can take years. Add to that a publicly-paid (but underpaid) lawyer and the inability to correct matters if a defendant is executed by mistake, and you’ve got a long, long road ahead.

Defendants who are sentenced to death spend years, even decades behind bars, awaiting a sentence that may never be carried out. That waiting period has two phases: Time spent pursuing appeals and writs (a type of appeal), attempting to reverse the conviction, if not the sentence; and after all appeals have been exhausted (and lost), time spent waiting for the sentence to be carried out. This article examines the first phase: Why does it take many years to complete the appeals process, when non-death cases take a fraction of that time?

Death penalty cases go through a longer appellate process because they involve more steps and trips to the courthouse than the average felony conviction. In theory, all cases can avail themselves of every step, but in practice, most non-death cases stop somewhere along the way. Death penalty appeals leave no stone unturned simply because the stakes are so high, and to state the obvious, a mistaken execution cannot be corrected later.

The Typical Path of State Criminal Appeals

To appeal a criminal conviction, the defendant (now known as the appellant) follows these steps, though most cases don’t take all of them. Defendants who receive the death penalty, however, usually pursue each one.

Appealing a State Court Conviction: A “Direct Appeal”

In any felony criminal case in a state court, the convicted defendant has the right to appeal the judgment and sentence to the intermediate appellate court, which must hear and decide the case. If the appellant loses, he can ask the state’s highest court to review the case (the states’ highest courts accept only a few such appeals). The appeals are limited to the evidence and rulings in the trial court and (if appealed to the highest state court) to the decisions of the intermediate court. In short, the appellant is limited to arguing about issues that are apparent “in the record below.” If the case is lost at the highest state court, the defendant can sometimes appeal to the U.S. Supreme Court, depending on the nature of his claims (again, the highest court need not accept the case).

Appealing a State Court Conviction: Filing a Writ of Habeas Corpus

While the case is on appeal, or at any time thereafter, the defendant can also file a “writ of habeas corpus,” which requests the judge to overturn or modify the conviction based on information that is not in the record below. Most commonly, defendants file writs when they claim that their trial lawyers were incompetent because they failed to find or introduce exonerating evidence, raise legal arguments, file motions, or find and present witnesses. (By definition, these arguments involve evidence that is outside the trial record, because the arguments center on what was not done at trial.) Writs can be filed in the trial court, but most often are filed in the appellate court, and sometimes appealed to the highest state court.

Appealing a State Court Conviction: Going to Federal Court

If an appellant has gone through the entire state-level process for both an appeal and a writ (if he filed one), and if he lost at all levels, he can then turn to the federal system. He can’t send his appeal to the federal court, but he can file a writ of habeas corpus in the federal district (trial) court. In general, he’ll be limited to the arguments he raised at the state level – the idea is that, because the case comes from the state system, the federal courts will not weigh-in on an argument that the state did not have a chance to resolve itself. Again, if the defendant loses at the trial level, he can appeal his writ to the appellate court, and can ask the U.S. Supreme Court to review it as well. (The mid-level appellate court must review the case if asked; the Supreme Court has a choice.)

The Typical Path of Federal Criminal Appeals

The federal system has a death penalty, though it’s rarely charged. Defendants who have been sentenced to death have the right of appeal to the intermediate appellate court. If they lose, they can ask the U.S. Supreme Court to take the case. And, like state defendants, they can file parallel or subsequent writs of habeas corpus, arguing for reversal based on issues that are beyond the trial record.

Death Penalty Appeals

As you can see, the system for filing appeals and writs in a criminal case is quite complex. And in fact, few convictions go beyond a direct appeal to the intermediate appellate court. Once that is lost, there’s no guarantee that the state’s highest court (or the U.S. Supreme Court, for federal cases) will take the case (typically, they take very few). As for writs, these take time and money, and are appropriate only when the defendant has outside-the-record claims. Few can raise these claims credibly.

Death penalty cases are different. Because the stakes are so high, state legislatures have recognized that they must provide funds for lawyers to take advantage of every opportunity to raise arguments that might save their clients’ lives (most death penalty defendants are indigent and rely on publically-paid lawyers). This means that the appeal will surely go to the state’s highest court (in California, in one lonely example of efficiency, the case skips the intermediate appellate court and goes directly to the highest court), and may be presented to the U.S. Supreme Court as well. At the same time, lawyers will prepare parallel writs that they present to both the state courts and the federal courts. It can take many years for lawyers to prepare these complicated cases, and more time still for them to wend their way through the system once the appeal or writ has been filed.

Delays Caused by the State

The complexities of a death penalty appeal and writ are not the sole reason for the extraordinary time it takes for one of these cases to reach finality (overturning the conviction or sentence, or losing completely). The state itself plays a major part: Through lack of funding, an already long road has become even longer.

A case decided by a federal judge in California in 2013 (Jones v. Chappell, 31 F.Supp.3d 1050 (2013), reversed on technical grounds) eloquently makes the case. As explained in the opinion, in California the state appoints a lawyer to represent the condemned. The lawyer must have a minimum number of years’ experience handling felony cases, and be willing to work for very low pay. As a result, it takes three to five years to find one willing to take the case (during that time, the case just sits). It takes another four years for the lawyer to become familiar with the case and file the brief. The Supreme Court won’t schedule a hearing for another three years, and won’t issue an opinion for up to another three months after that.

Assuming the Supreme Court upholds the verdict and sentence, the inmate will almost surely file a writ (if he hasn’t already), alleging newly-discovered evidence or incompetence of counsel, or both. The defendant is entitled to a new lawyer, and if he asks for one, more time passes while the state looks for a lawyer willing to take the case. All in all, it can take an average appellant over 17 years to get through just the state system. If the defendant files the writ next in federal court, that’s on average another ten-plus years. The total: About a quarter century of court reviews.

Is the Long Appeals Process a Waste of Time?

It’s understandable to suspect that the drawn-out appeal process involves condemned defendants raising frivolous issues and arguing far-flung theories to support their positions. But here’s a startling statistic: According to the decision in the Jones case, 60% of those condemned to death won some level of victory in the federal courts…that’s after they exhausted their state appeals. With a statistic like this, it’s hard to argue that the process is not worth the time and money it requires.

Questions for Your Lawyer

  • In our state, what is the usual lag time between a sentence of death and filing the first appeal?
  • If my lawyer failed to rigorously cross-examine witnesses against me, can I raise this on appeal? Or do I have to file a writ of habeas corpus?
  • If the state appoints counsel to represent me, how can I make sure that person is doing a good job?
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