APPEALS, Soup to Nuts.
I.
What is the appeals process?
Once the appellate court receives both petitioner and respondent briefs, it will analyze the arguments and make a determination of whether: a) there were errors of law made by the trial court, and b) whether the errors rise to the level of "reversible error. Harmless errors will be overlooked by the appellate court.
The court will either: 1) affirm the decision; 2) order a new trial; 3) modify the ruling in some way; 4) in extremely rare cases, may throw out the case entirely.
Westlaw.
(Reversible error: is a legal mistake at the trial court level which is so significant that without the error the outcome may have been different and the judgment must be reversed by the appellate court. A reversible error is distinguished from an error which is insignificant and did not affect the judgment at the trial. Reversible error may be made by a judge or jury. Although attorney misconduct is not technically reversible error, the failure of the judge to remedy it during the trial is reversible error. Reversible error affects the reliability of the outcome of a court case).
http://definitions.uslegal.com/r/reversible-error/
II. What are the odds of a successful appeal?
The number of successful appeals is low. Appellate courts give the trial court great leeway in conducting trials. The law does not guarantee perfect trials, therefore appeals courts will only overturn verdicts which contain clear, serious errors of law.
Because of the leeway appeals courts give trial verdicts, petitioners carry an even greater burden in proving that errors of law were serious and not harmless. If an appellate court can find any reasonable argument that the error wouldn't have changed the verdict (and is therefore "harmless"), it will refuse to overturn the verdict. (
Westlaw)
III. Arizonas Rules for Appellate Briefs
Except by permission of the court, (i) a principal brief in a non-capital case prepared in a proportionately spaced typeface may not exceed 14,000 words
(1) Appellant. The appellant's brief shall include:
(i) A table of contents with page references.
(ii) A table of citations, which shall alphabetically arrange and index the cases, statutes, and other authorities cited, with references to the pages of the brief on which they are cited.
(iii) A statement of the case, indicating briefly the basis of the appellate court's jurisdiction, the nature of the case, the course of the proceedings and the disposition in the court below.
(iv) A statement of facts relevant to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matter unless material to a proper consideration of the issues presented, in which instance a reference shall be made to the record or page of the transcript where such evidence appears. The statement of facts may be combined with the statement of the case.
(v) A statement of the issues presented for review. The statement of an issue presented for review will be deemed to include every subsidiary issue fairly comprised therein.
(vi) An argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may include a summary. With respect to each contention raised on appeal, the proper standard of review on appeal shall be identified, with citations to relevant authority, at the outset of the discussion of that contention. Citation of authorities shall be to the volume and page number of the official reports and also when possible to the unofficial reports.
(vii) A short conclusion stating the precise relief sought.
(ii) In addition, the appendix to an appellate brief may include extended quotations from cases and authorities where such quotations are required for proper presentation of the issues.
f. Capital Cases.
(1) Time for Filing. In capital cases, the appellant's opening brief shall be filed within 70 days after the mailing of the notice as provided for by Rule 31.10. Except by permission of the court, (i) a principal brief in a capital case prepared in a proportionately spaced typeface may not exceed 28,000 words
IV. Advice by a judge on appellate brief writing:
1. Writing a laundry list of points( is a bad idea). Select 3 or 4 of what you think are your strongest points and develop those.
2. Do not beat us over the head with statutory language and precedent. Your case, unless it is a federal criminal case, probably would not have reached the court of appeals if it had been clearly governed by a statute or a case.
3. Do not exaggerate the cogency of reasoning by analogy by trying to persuade us to base our decision on a previous case, especially a case from another field of law.
4. Be brief. Judges do a lot of reading. (Holmes once said that he was paid to readthat was his job.) We get tired or bored, and some of us tend to start skimming when we encounter a tedious, repetitious brief.
5. Do not omit from your brief, especially if you are the appellant, mention of the strongest points that you know your opponent will make in his or her brief. Often I read the appellants brief and think, how could the judge have made such a mistake, committed such an injustice! And then I read the appellees brief and realized that the appellants brief had omitted the points that showed that the lower-court opinion, whether ultimately persuasive or not, was at least reasonable. And when that happens, one loses confidence in the appellants position.
V. Some possibilities of what s attys will argue, taken from Nurmis many motions, and how JSS ruled.
1.
Inconsistent testimony by Flores about sequence of injuries (shot first) 2009 probable cause hearing versus trial testimony.
((Note: The shot-first aspect was litigated before trial. The DT hopped all over this not just to impeach Flores, but because, they argued, shot-first mattered as to whether or not the State could demonstrate especially cruel, the States sole basis for seeking the DP.
DT asked for a new probable cause (Chronis) hearing January 2013. JSS denied, saying in part---shot first or last, doesnt matter, an abundance of evidence demonstrates Travis suffered tremendously. DT filed for a Special Action by the COA, the COA declined jurisdiction)).
JSS: DT had the opportunity in both guilt phase and PP2 trials to cross-examine Flores and ME on the stand about Flores 2009 statements. Credibility of witnesses is the jurys to determine.
2.
Text messages were not disclosed to DT in a timely manner.
JSS: Texts were provided to DT in October 2010, way before trial, way time enough; technology to capture texts didnt exist before that.
3.
Media shouldnt have been allowed-the circus deprived of a fair trial, the jury should have been sequestered, blah blah blah.
JSS: I bent over backwards to accommodate every last little whine of yours about this. Believe it or not, this wasnt the trial of the century or even of the decade. All that matters is if the jury was influenced by media coverage. Each and every juror during both trials said daily they were not, end of story. (Note: because, Mr. Nurmi, unlike you, appellate courts NEVER as in NEVER presume jurors lie).
3.
JM harassed, intimidated, was a meanie to DT witnesses.
JSS: Its called zealous cross examination. Get over it.
4.
was deprived of due process during the guilt phase because Detective Melendez testified he didnt find *advertiser censored* or viruses, which made the look like a liar when she was actually telling the truth. And Melendez testified to the same thing during PP2.
JSS: The DT had the opportunity to cross Melendez at both trials. Its up to the jury to determine witness credibility, evaluate evidence, and to resolve factual disputes.
JSS: And by the way. During the guilt phase, Melendezs testimony about TAs computer related to June 4. The computer evidence existed then to establish those facts.
5.
Prior attorneys were ineffective for allowing destruction of evidence when computer was turned on.
JSS: Nope, harmless, whatever was lost, because the DT had access to a mirror image of the HD. No demonstration of prejudice to your client.
6.
Flores woke up TAs computer, destruction of possibly exculpatory evidence, Flores violated LE protocol.
JSS: No reason to believe any relevant evidence was destroyed, much less exculpatory evidence, much less intentionally destroyed. And no, Flores didnt violate protocol; waking up sleeping computers was standard practice, and Flores had no idea it was a bad idea
7.
The was denied her 1, 2, 3, 4, 5, 8, and 34th right to fully mitigation-tify.
Why? Mitigation witnesses were too afraid to testify. They were afraid of being picked on by SM bullies, and terrified JM would be a shouting meanie.
JSS: Zealous is good, the court cant control what SM does, the court offered to accommodate the quivering alleged witnesses with creative solutions including: pseudonyms, testimony brought in through other witnesses, names sealed, testimony videotaped, and by the way, you could have used subpoenas.
Considered your Affidavits--under seal--of Sept 26, 2014, your supplements-under seal- filed Jan 5 and 7, 2015, and your Nov 26, 2014 Motion to Reconsider given COAs ruling, but the latter applied only to the , not to other mitigation witnesses.
.
The Defendant has failed to demonstrate any misconduct by the State that deprived the of her ability to present full mitigation, and it is patently absurd to claim the was too afraid to testify in PP2 after spending 18 days on the stand in guilt phase burying us all with her rancid lies.
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Handy definition: Prosecutorial Misconduct. Intentional, knowingly improper and prejudicial. Must be demonstrated that there was a reasonable likelihood the conduct deprived defendant right to a fair trial. Must be pronounced and pervasive enough to have permeated the atmosphere of the entire trial. Errors, mistakes, and insignificant impropriety dont rise to this level.
Handy to remember: JSS denied every single one of Nurmis motions for this or that based on prosecutorial misconduct. Cant be pervasive if not one motion was persuasive.