How Appeals Courts ‘Rubber Stamp’ Injustice

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Photo by Joe Gratz via Flickr

It’s always good news when an innocent person is exonerated. But how many wrongful convictions that come to light would have been reversed years earlier if appellate courts had done their job?

The public hears about miscarriages of justice caused by lying witnesses, prosecutors hiding evidence favorable to the accused, forensic expert testimony based on hooey. But few people besides appellate lawyers and their clients know that there’s another leading cause: a system of appellate review that is often so biased and perfunctory that it might as well be called “appellate rubber-stamp.”

For example, Yusuf Salaam, one of the Central Park Five, was convicted based on his confession in the highly publicized case of the 1989 assault and rape of a jogger. All five were exonerated decades later when the real perpetrator came forward.

Illustration by Appellate Squawk

But New York’s Court of Appeals should have reversed Salaam’s conviction at the time. Even the abbreviated facts recited in its 1993 decision show that his confession was involuntary and should have been thrown out.

As the dissenting judge argued, the police had isolated this 15-year old from his family, falsely told him that his fingerprints were on the jogger’s pants and suggested that he’d be released if he admitted to participating in the attack. Any court conscientiously following the law would have suppressed a confession obtained by such coercive tactics.

But the majority, in a rather testy opinion, ignored the facts and concluded that Salaam “chose” to implicate himself.

Another example is Martin Tankleff, a 17-year old convicted of murdering his parents. In denying his appeal, the court saw nothing coercive about the detective’s extorting his confession by falsely telling him that his father had regained consciousness and identified him as the attacker.

Rather, the court inexplicably concluded that the confession was all the more reliable for having been induced by a trick.

The court also saw nothing unconstitutional about eliciting the confession without Miranda warnings, asserting that Tankleff was “clearly” not in custody and therefore not entitled to them. The lone dissenting judge reminded the majority that it had overlooked a few facts: the police had isolated this teenager from his family and subjected him to hours of accusatory questioning.

Thus, he clearly was in custody so that his statements were involuntary and should have been suppressed.

Salaam and Tankleff were able to prove their innocence after many years in prison—an extremely rare occurrence. What’s not so rare is the way the appellate courts ignored the facts and the law.

Why should this be?

You’d think courts would examine appeals with the care of a mechanic inspecting an airplane before takeoff, of a doctor reading an X-ray. “We must be deeply mindful of the dire consequences of a criminal conviction,” the judges would exhort one another. “So we’d darn well better scrutinize each appeal carefully.”

But that’s not the spirit they bring to appellate review, at least not in criminal cases. Criminal appeals are handled by a battery of anonymous clerks who are apparently given to understand that their job is to uphold the conviction by any means necessary.

They write memos for the judges that are mostly if not entirely based on the prosecution brief. They draft the decisions affirming the conviction.

Only once in a blue moon is any error considered prejudicial enough to warrant a reversal, even if all that means is a new trial. Did the prosecutor tell the jury she wouldn’t be prosecuting the defendant unless she knew he was guilty? “Did not exceed the permissible bounds of rhetorical comment,” the court will conclude.

Was the defense lawyer a potted plant? “We cannot say he was not pursuing a reasonable strategy.”

Did the judge conduct the trial with the defendant involuntarily absent? “We find no constitutional violation under the [unstated] circumstances.”

As Dave Barry would say, we’re not making this up.

Why should appellate review be such a contradiction in terms? Maybe because reversing a criminal conviction is unpopular. “Three judges overturn 12 jurors!” howled New York Times columnist Jim Dwyer when former New York State Assembly Speaker Sheldon Silver’s conviction was recently reversed.

No judge wants to be howled at. But a jury verdict is only as fair as the trial.

It would be interesting to go back and examine the rejected appeals in every exoneration case. Chances are, most of those trials were infected with prejudicial errors. Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair.

Unless appellate review becomes more meaningful, miscarriages of justice will continue to be an intrinsic part of the criminal justice system.

Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.

7 thoughts on “How Appeals Courts ‘Rubber Stamp’ Injustice

  1. Pingback: President Trump takes to the street | Appellate Squawk

  2. You are so right. It is a real mockery of our justice system. Or should I say injustice?
    Do you have any idea of how we can correct this grave mis-justice? Our sons are just rotting in prison and no one seems to care.

    • Where do you begin, when a man you love is in prison because someone lied. Everyday you realize thats one less day you have with the one you love and the evidence is clear he is inoccent. Someone tell me how i can help free an inoccent man.

  3. So true…. My husband was wrongfully convicted of murder and the court of criminal appeal’s admitted that the court had several errors but said they were harmless….. How can jurors sleeping be harmless?

  4. Our family having been the”victim” of the appeals process.

    YES,the clerks who actually advise the judges on the decision to make in the
    Appellate courts are aware that 1.The court need not give any reason for not accepting an Appeal 2. That the mandate (actually identified) is to assume/weigh deliberation assuming the trial (judge/attorneys) are correct. While the jury is sacred, there is no way to determine or know the actual jury
    deliberation – legally conducted.

  5. I sat and watched how both lawyers ,district and defendant worked together along with the judge and totally denied my son a fair trial, Due Process,Speedy trial,Bias jury,prosecutorial misconduct,eneffective assistance of counsel, and that was way before trial. We turned him into the Bar. Of course his replies blamed everything on my son. He was scared, he said. Multiple charges he said. And even told my son that he was the 4th person that had turned him into the BAR! And they still believed his lies! My son also wrote the Judge and asked,begged him to Please Fire his lawyer! Because he was a oids appointed lawyer.We the people have a right to have defensive counsel! BUT we do not have a right to choose who that be! Only the Judge can replace one. Unless one withdraws and has to be for good cause. Poor folk go to prison and die! Rich folk just gets a slap on the hand, fined and they never step foot in a jail cell!! And it doesn’t even matter what the charge is! Murder,Rape, whatever if they can pay attorney and fines they walk!! The system is messed up! We need to take the power back from the District Attourney’s and give it back to The Grand Jury to decide evidence and indictment. I guarantee it will stop all the racked in charges, scared into getting LIFE if go to trial so take a plea. Once we sign plea’s the DA no longer has to prove your guilt, cause u just confessed! And Appealing that will do u no good. When they App to Accel u!

  6. It’s not just criminal courts, I’m sure. I can’t even appeal anything, because I have no money and despite a (state) Constitutional “guarantee” of “open Courts”, they’re NOT. It seems easier to get an attorney to help someone commit fraud, etc rather than to find one who actually.

    Since I’m not in prison, I won’t delve into my troubles too much, other than to say my life was wrecked as result of divorce and court-facilitated fraud. To make matters worse, I recently had a bench warrant for debt (unconstitutional) issued against me by the divorce attorney, even though I am exempt from collection and had appeared numerous times in response to the initial court summons. This is a matter that HAS been ruled on by the appellate and Supreme courts in this state, BUT the court (judge) issued it nonetheless.
    Fortunately, I received some help getting that canceled but the fact that it even happened ought to be receiving scrutiny.

    I no longer have any respect or hope of seeing anything resembling “justice” in our courts; the fact that an attorney can’t write about the matter without hiding his true identity (or likely be subject to severe disciplinary repercussions) is telling. Before and since I experienced the injustice I have, I’ve been outraged by some of the things done to those who have been unjustly convicted. Learning more about the tactics used by police and prosecutors to “solve” crimes … I can only say that they are the ones who need to be locked up.

    I don’t think most people outside court circles give it much thought or concern; too many “on the inside” are intimidated or otherwise dissuaded from “bucking the system”. And media exposure? Not much, though it would be discovered if any (real) investigative journalism was being done.

    Another article is Demand Side Reform in the Poor People’s Court by Jessica K. Steinberg of George Washington University. Although the article focuses more on the civil side, it was illuminating to me. I finally understood why I was barely allowed to testify in cases (where I was pro se against an attorney). I also began to get a grasp on the fact that injustice in America is a HUGE problem, in both our criminal and civil courts.

    A big “shout out” to EVERY attorney who helps others who can’t help themselves and works toward justice instead of going along or working solely for money, both of which I imagine are a lot easier and much more financially rewarding.

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