The Attorneys who handle America’s criminal appellate cases.
By: Ian L. Courts¹
Many Americans are familiar with trial attorneys, whether criminal defense attorneys or frontline prosecutors. However, very few Americans understand and recognize a smaller segment of criminal attorneys — appellate prosecutors and defenders. Appellate prosecutors, whether they be in state attorney generals offices, solicitors offices, U.S. Attorneys, or large municipal district attorney’s offices — appellate prosecutors handle most of the government’s criminal appeals. Similarly, appellate defenders located in state appellate defender associations, federal appellate defenders, and large municipality defender units — handle appeals for indigent accused persons. This article will describe the role of appellate prosecutors and defenders, their duties, and how they impact our criminal justice system.
Appellate prosecutors handle criminal appeals or, in rare instances, governmental appeals before state and federal courts of appeals. In their role, they examine defense briefs, pro se appeals, trial court memorandum opinions, and other documents contained in the certified record/record on appeal. After they have understood the legal arguments raised by the defendant or the trial court and the applicable law or precedent, they begin the brief drafting process. Once they have submitted their response-brief or petitioner’s brief, if it's one of the rare cases where an oral argument is granted, they prepare for it!
Appellate prosecutors respond to accused persons' petitions and briefs in writing and orally. Appellate Prosecutors rely heavily on appellate standards such as abuse of discretion, harmless error, plain error, jurisdictional time bars, de novo, and other statutorily or judicially created standards.
Places Appellate Prosecutors serve:
Municipal/City Attorney’s Offices
State District Attorney’s Offices
State Attorney General’s Offices
State Solicitor's Offices
U.S. Attorney’s Offices
U.S. Department of Justice
Everyone is entitled to the effective and competent assistance of counsel with the United States, including on appeal and post-sentence matters. However, there are many criminal appeals where the accused represent themselves and file pro se motions, petitions, and appellate briefs. Additionally, state and federal public defender associations and independent appellate defender offices have attorneys representing accused persons on appeal.
Appellate defenders meet with their clients, and in many cases, the attorney who represented the accused at trial, and understand what the accused and/or their trial attorney believe was unfair, wrong, or unjust at the trial court level. Additionally, the appellate defender will conduct an independent view of the trial record, notes of testimony, filings, and petitions and determine what issues are present. Common issues accused persons raise on appeal concern due to process violations, the sufficiency of the evidence, abuse of discretion, illegal sentencing, governmental interference, ineffective assistance of counsel, evidentiary and discovery, and judicial bias. Once the appellate defender understands, they begin drafting their appellate brief and preparing for oral argument if oral argument is granted and beneficial for their client.
Places Appellate Defenders serve:
State Public Defender’s Offices
Independent Appellate Defender Offices
Federal Defender Offices
Criminal Defense Law Firms
The International Criminal Court handles international violations under the Rome Statute on the international criminal law stage.
The Office of the International Prosecutor handles the prosecution of international criminal violations before the ICC. The Appellate Division handles criminal appeals from trial decisions in the International Prosecutor's Office. However, the appellate defense of persons accused is primarily handled by independent international criminal defense lawyers, and in some cases, international criminal defense firms.
: About the Author: Ian Courts is a young millennial attorney with expertise and a passion in American and international law and politics. Ian received his BA in Political Science from the University of North Carolina at Greensboro in 2017, in 2020 he received his J.D. from North Carolina Central University School of Law, and in 2022 Ian received his LLM in International Criminal Law and Justice from the University of New Hampshire School of Law. Ian lives in Philadelphia where he is an appellate lawyer and the proud fur-dad of two American Cocker Spaniels.