29 June 2005

Writing an Appeal for Someone Else's Trial

Right now I'm in the middle of writing three appeals. Two are due Saturday (almost done on those two) and the other is due later in July.

The one due in July is interesting because it's someone else's trial. I've never before written an appeal for a case someone else tried. It's more frustrating than doing one of my own because I didn't start out with the knowledge I'd have from one of my own trials. Yesterday I spent about three hours watching (and rewatching) the two hour tape of the interrogation because the biggest issue is whether Client asserted his right to remain silent. I have to do all the research that I would have normally done before the trial. That's not to say that the lawyer who tried the case didn't do a good job. He preserved the error which I'll argue should have led to suppression of the confession; once the judge allowed the confession in defense counsel was fighting a rear-guard action and he still managed to get several charges dismissed by the jury. Still, defendant got 20+ years on the remaining charge and decided he wanted an appeal.

It's interesting having another lawyer's jury trial file in my hands. It's set up much differently then I set up for a jury (or difficult bench trial). He has typed notes and a folder for each witness or individual piece of evidence. There's only one case printed out and included in the file. It's interesting seeing how somebody else preps for trial.

My jury trial file usually has a number of cases with notes down their margins to remind me what they stand for and I organize my folders by possible arguments with cases for each argument, requisite jury instructions, motions in limine, etc; I write what the folder is about on the outside in Arabic (well, okay, usually phonetically spelled English) so the no one can tell what they are about when I spread them out on my table. I have one legal pad for the case. The first five or so pages are for jury selection, the next few are for opening statement, the next however many are needed are for witness questions and answers, then there are pages for the closing argument, this is followed by pages devoted to the jury sentencing hearing. So far I've never had to get to the second pad I always have with me but it's been close a couple times.

Well, I gotta go back to court and then dive back into writing. See ya'll later.


Anonymous said...

The irony is that if you write your notes or labels in Arabic (I write my notes in a language that most Americans can't read), people will just think that all lawyers are traitors. Indeed, I am sure that some prosecutor is going to waive that around at some point.

Ken Lammers said...

Let 'em try to point to my folders and call me a traitor. Then I can go on about my 6 years of military service, being taught the language as part of military intel. training, and combat deployment to the Middle East.

Anonymous said...

Of course you can. However, 1) a number of people will combined your need to keep your “notes” about “criminals” confidential with your practice of keeping them in an “enemy” language is suspicious; and 2) many people will point out that after Arabs, veterans have killed the second largest number of“real” Americans in the course of “terrorist” acts.

Tom McKenna said...

Wish I could wish ya good luck, Ken, but I think that may be one I prosecuted, so of course, there can not possibly be any reversible error!

Ken Lammers said...


Vets are not thought of like that hereabouts. Everyone has a person in service or a vet as a relative. I think I can trump just about anything that would be percieved as an attack on my service. Anyway, most the prosecutors I know are under the misconception that they can win without those sorts of cheap parlor tricks and I'll not disabuse them of the idea.

Ken Lammers said...


Bingo. But, of course, you are ever so wrong about the presence of error. It's just a matter of whether the appellate courts will admit it.

Anonymous said...

This is my job! We have a separate state agency that handles all indigent appeals (automatic appointment upon issuance of mit).

It's a shame that we don't get more cooperation from the PD's (I think it's a matter of time; not that they don't want to assist) because sometimes it is impossible to figure out what they were thinking.

I do wish, however, they'd stop filing boilerplate Motions for New Trial. Around here, you waive issues with a boilerplate motion, but not with a failure to file motion (because the plain error analysis is easier without a motion and there's case law against boilerplates.)

Anonymous said...

Well, I am glad that around there everyone loves vets. But, let's face it, when politics is at stake, we just use whatever platitudes we want. In fact, a politician friend of mine has used both veins of rhetoric in a one-week span (vets are crazy, and “support our troops”) and it worked out quite well and everyone loves him. Of course, it is all fun and games to screw with the non-lawyers, but if you ever found yourself on his bad side he would keep talking about how you were a “traitor” because you take your “notes” in Arabic and the “public” has a right to “know” what people like “you” are “doing” with “taxpayer money.”