Although appellate courts can’t know whether a defendant is actually innocent, they can—or should—know when a trial is unfair. Unfortunately, says a New York attorney who writes under the pseudonym “Appellate Squawk,” most are simply rubber stamps for miscarriages of justice in lower courts.
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.
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.