Posted by: captainfalcon | September 1, 2014

Fun Facts About Early Criminal Appellate Procedure

I commend this article by David Rossman about the history of appellate review of criminal convictions in America as (among other things) a trove of fun facts.  Three of the best:

1.  It is well recognized that courts were more hidebound back in the day, and would e.g. dismiss lawsuits or prosecutions based on what we would now regard as harmless technicalities.  A good example from the article is an 1802 North Carolina case, State v. Carter.  Apparently the defendant was indicted for murder for stabbing the victim in the breast.  After conviction he moved to “arrest the judgment” on the grounds that the indictment had misspelled the word “breast” at one point (spelling it “brest”).  The reviewing court (which I believe was the same court that oversaw the defendant’s trial) granted the motion and dismissed the indictment despite the fact that, as they recognized, the conclusion “could not easily . . . be reconciled to good sense or sound understanding.”  [The court does not appear to have entertained the possibility that the defendant backstabbed his victim in Brest, which would have presented a very different case.]

2.  Nowadays we tend to think that the more serious the crime of which you stand accused, the greater the legal protections you ought to enjoy.  The opposite held in pre-Revolutionary America and England.  Then a defendant had an automatic right to file a “writ of error” [the forerunner to an appeal] in misdemeanor cases, but had to petition the attorney general for permission to file a writ of error in a felony.  According to Rossman, the reason relates to the result in State v. Carter — there was less of a cost in a reviewing court’s granting a frivolous writ of error in a misdemeanor case than in a case involving a serious crime.  (That this rationale undermines the legitimacy of early criminal appellate review altogether does not appear, at least from Rossman’s article, to have disturbed the jurists of the day.)

3.  It remains the case that a criminal appeal ordinarily does not stay the execution of judgment i.e. once a defendant is convicted he usually begins to serve his sentence, even as he pursues his appeal.  The obvious exception is capital defendants; we do not typically execute those who have been sentenced to death until they exhaust all possible avenues of post-conviction relief (we have a strong interest in finality, but not finality).  Apparently the same did not hold in the 1800s.  Thus a prosecutor could credibly argue that an appellate court should not allow a capital defendant to appeal his conviction because “it would be useless, as the judgment would be executed before the decision here.”  [However, another fun fact, it might not actually be useless.  As Rossman explains, “At common law, the fact that a defendant already may have been executed would not have ended the review process.  The defendant’s heirs could still maintain a writ of error in order to avoid the consequences to them of an attaint and a corruption of the blood, which would have deprived them of their inheritance.”]

I’d add that the point of the article is to argue against the consensus view, supported by Supreme Court case law, that there is no constitutional due process right to appeal a criminal conviction.  It does a very good job pointing to features of our early criminal justice system that, in combination, were functionally similar to a right of appellate review, even if they were not a separate proceeding by an appellate court with power to review and correct errors and problems in the trial below.  This mode of argument — that a practice was so deeply embedded in preconstitutional custom as to have been “received” into the Constitution — has been successfully pursued in the past.  See, e.g.Tafflin v. Levitt, 483 U.S. 455, 459 (1990) (noting a constitutional presumption in favor of concurrent state and federal court jurisdiction to entertain federal causes of action because “[c]oncurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule”).  Of course, at best what Rossman can establish (still a significant point) is that there is a right to something that is functionally like appellate review, which would leave it up to the legislature exactly how to implement that right.  There is support in the academic literature for an analogous position with respect to the limits of the power to suspend the writ of habeas corpus — specifically, some academics reading the terrorism / Gitmo cases think that they stand for the proposition that the writ of habeas corpus may be suspended in certain circumstances as long as a sufficient degree of legal process is provided through alternative mechanisms — but I can’t find the article that lays this position out right now.

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