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"A Foray Into The Appellate World" by Anne Jelliff


A Foray Into the Appellate World

by Anne Jelliff

When the Appellate Division, Third Judicial Department of the New York State Supreme Court comes to your school, here is what you can expect.

A sympathetic professor might suspend an afternoon class so that everyone can attend, or you might play hooky and just go. You arrive in the large auditorium as a case is being argued and sit in the overflow balcony, stage left, where you'll have a good view of the action. At the judge's bench sit five black-robed figures in various poses of attentiveness. There are a number of official looking people in their immediate vicinity. You see that one of them must be the court clerk, and the two nearest the door are obviously security guards. You have no idea who the others are and make a mental note to ask someone later.

The case being argued has something to do with a school district, but it is hard to figure out what the attorney is talking about and you quickly realize that this is because the appellant has already spoken, and you are hearing the end of the respondent's argument - you've come in on the second half of the conversation. The nice 3L at the door gave you a paper entitled "Summaries of the Cases," so you could theoretically figure out which paragraph applies to this case and try to piece things together, but instead you decide to scan the audience to see if you can pick out which are spectators, and which are performers just waiting in the proverbial wings.

Your gaze slides over the many jean-clad, backpack-carrying groups that you recognize as fellow students, before it lands on a bearded man in the front row. He looks like an absentminded professor with his glasses sitting slightly crooked, and several pens of different colors clipped to his polka-dot tie and to the lapels of his suit coat. He has a mobile face and, as he listens to the argument, he occasionally cocks an eyebrow or pulls his lower jaw forward, but since you don't know him, it's hard to tell if this is a sign of approval or just interest.

In the third row at the end of the aisle sits a youngish-looking man with his back ramrod straight, fiddling with the folder in his lap, obviously waiting for his cue. Is it his first appellate argument, or is he just put off by the number of people in the audience? He raises a hand in greeting at the woman taking a seat across the aisle from him and she nods in return.

One row further back sits an attractive woman in a tweed suit with a purple shawl. She is perusing a very fat document with many handwritten notes in the margins, and leans down looking for something. She can't find it right away, and puts the document on the neighboring seat and, with both hands, lifts the item to the center of her lap. Ah, you have discovered her shopping-weakness! It is a really gorgeous black-and-purple handbag which she treats with such careful, studied nonchalance that you know she is still making payments on it. She finds what she was looking for - a pen - but is diverted from her document for a few more minutes when her Blackberry screen lights up with a message.

Your eye is caught by a movement down in the second row. A man is very deliberately crossing his legs in a way that implies that, but for the unsophisticated in society at large, this should have been a recognized dance move. You watch him arrange his tie, tie tack, cufflinks, and breast pocket handkerchief, in that order. A routine move, you guess. You have a flashback to eighth grade history class where you learned about a general who was called "old fuss and feathers" (what was his name?) and was said to "strut even when he's sitting down." That general would find a kindred spirit in the man in front of you. The man turns his head and you see that what you had previously taken to be an unusual haircut is in fact a very carefully arranged ponytail that extends to the middle of his back. It seems at odds with his expensive-looking suit.

A heavyset woman comes into the room, slightly out of breath, and stops to speak to one of the security guards at the door. He holds up a paper and gestures, and she points at it and looks relieved when he shakes his head. Her case has not yet been called. She spots the absentminded professor and makes her way over to a seat near his. They exchange quiet greetings but you can just make out "battery dead . . . called a cab. . ." She no sooner sits down and pulls her papers from her briefcase than the current performers are finished with their lines, the stage is cleared, and the next case called. She gets up from her seat and goes to the table that you know is reserved for the appellant. She got here just in the nick of time. The respondent in this case is represented by the woman with the purple and black handbag.

Apparently the car-trouble woman receives a signal, though you did not notice it yourself, because she goes to the podium and begins to present her case. Her client, who was represented by another attorney in the lower court, was convicted of arson when the building that housed her restaurant went up in flames. She is now appealing her conviction on the grounds of ineffective assistance of counsel and insufficient evidence to support the jury's verdict. The alleged arsonist's attorney had not told her that no probation would be possible if she were found guilty, and she went to trial believing that, at the worst, she would face time doing community service.

Ms. Car-Trouble says that a U.S. citizen should not be tried and sentenced if they do not understand the full gravity of the charges they are facing, and that in failing to fully inform his client, the defending attorney in the lower court allowed the arsonist's due process rights to be violated, and so provided ineffective assistance of counsel. She presents several cases to the court in support of her client's position, and answers questions about them before going on to the insufficient evidence argument. The jury, she notes, was shown evidence that lighter fluid had been thrown on the walls where the fire started, and that two days before the fire, the restaurant owner had moved all of her equipment and supplies into a storage facility so that she could have her place renovated. Ms. Car-Trouble notes that this is not enough to convict someone.

Ms. Handbag gets up and presents her case. She is a very good speaker, calm, organized, and convincing. She points out that Ms. Car-Trouble overlooked the fact that the alleged arsonist had also doubled the insurance policy on her business only nine days before the fire. The court asks Ms. Handbag about direct evidence that the restaurant owner had set the fire, and she admits that the evidence is all circumstantial, but she returns to the lighter fluid, the sudden removal of the woman's possessions for "renovations" (you can actually hear the quotation marks in Ms. Handbag's voice) and, most of all, the doubled insurance policy.

Ms. Car-Trouble had reserved rebuttal time and now answers a question about the insurance policy. She says the policy was only updated to be more in keeping with what other restaurant owners have on their businesses, and that the old policy was just insufficient. She also says that her client is a middle-America woman with no history of criminal or otherwise unsavory behavior, and should be allowed to re-argue her defense. Ms. Car-Trouble is now finished, and both she and Ms. Handbag exit stage right.

The next case is called, and the absentminded professor makes his way to the Respondent's table. At a nod from the judge sitting in the middle of the bench (the mysterious signal!), the appellant attorney stands up and goes to the podium. You had not noticed him before, but you are inclined to like him right away because he seems so pleasantly familiar. Picture your great-uncle Simon - because everyone has a great-uncle Simon. Though I have noticed that in some families there is a mix-up of sorts, and he seems to be named Charlie instead. But no matter - Simon or Charlie, you know who I mean. He is the great jolly one who favors loud neck-ties, and used to offer you candy every time you saw him, and then teased you thoroughly when you chose the peppermint over that spicy-hot cinnamon that he claims as the secret of his sound health. This man wears the uniform-white shirt with his dark suit, but his tie is brightly colored, his suspenders are a brilliant red, and you are amused to see that his cane (which he needs for a limp in his right leg) has painted-orange-and-yellow flames ascending halfway up its length.

"Your Honors," Uncle Simon begins, "the defendant claims this case should be dismissed because the statute of limitations has run, but that is not so." One of the judges immediately asks a question about the number of late charges that are leveled at the prosecution, and Uncle Simon qualifies his admission by noting that each postponement was made at the defendant's request when she had problems finding necessary witnesses.

Uncle Simon then draws the court's attention to the applicable statute where it says that the statute of limitations begins to run when notice is served in a particular way. Because that type of notice was not needed in these circumstances, and therefore not served, the statute of limitations has never started, so cannot bar this case from court. The judges ask why the prosecution would have granted so many extensions when surely they could see that time might be a problem, and Uncle Simon says they wanted to allow the defendant a fair trial where she could bring the witnesses she needed, and he ends by reiterating that because the specific kind of notice was not served, the statute of limitations should not even be an issue.

Enter the absentminded professor, who uses his first minute or so to apologize to the court for some typos in his brief. You make a mental note never to do this, since it sounds unbearably awkward. Mr. Absentminded then posits that the court is being offered a red herring. The statute of limitations does not hinge on a particular type of notice being served, but should start running at the time the case is placed on record. He urges that the purpose of the statute of limitations will be defeated by the appellant's "strained interpretation," and he presents legislative history, as well as a number of cases to support his point. In spite of the typos incident, Mr. Absentminded is a very good speaker and obviously knows his subject matter well. He answers a number of questions about the requests for postponement and the problems assembling witnesses, but returns each time to policy arguments about the statute of limitations, its purpose, and the implications to justice if it is "rendered meaningless." His argument is now finished. Exit both attorneys.

The court clerk calls out the number of the next case and the nervous young attorney from the third row goes to the appellant's table. The opposing counsel is Fuss and Feathers from the second row, and you wonder how this will go down. The center judge nods (this time you were watching for it) and Mr. Nerves steps to the podium. He is interrupted halfway through his first sentence with a question about the police following a vehicle, and why the arresting officer in this case should be found to have conducted a lawful search.

The case is about a man who was arrested on suspicion of drug dealing when the police recognized on the pickup he was driving a number of abnormalities that are often present on trucks used to carry drugs. The police officer noticed the truck weaving and pulled it over, but later admitted that weaving was not the real reason he stopped the driver. A search of the vehicle revealed that the driver was carrying fifty-seven (57) pounds of marijuana in a concealed compartment, and the defendant was arrested and indicted for criminal possession of drugs. The lower court agreed to suppress the evidence gathered during the search (including the marijuana) because the defendant claimed that the search was performed illegally. There being no other evidence to support the charge, the court dismissed the case, and the prosecution is now appealing.

Mr. Nerves says that the search was lawful because police officers have regularly been allowed to conduct a search based only on their professionally-trained judgment. He presents cases supporting the position that police suspicion alone, when based on traits or behaviors recognized as typical of criminal activity, is sufficient basis for a legal search. He answers several questions about the dangers of profiling and points out that since it was night and the driver was not visible to the police officer, the officer could not have been profiling the defendant but only the truck, which incidentally was also traveling a road that had often been used for drug smuggling, a fact that further aroused the officer's suspicions.

Mr. Feathers takes the stage and starts out with a quip about appearing in the US Supreme Court, but none of the judges smile. Mr. Feathers says that a person cannot be pulled over by the police unless they are known to have done something wrong. "Even a busted taillight," would have been grounds for stopping his client, he says. But since the police had nothing but the one officer's suspicions on which to base the search, the search was illegal, and the lower court was correct to suppress the evidence and dismiss the case.

Mr. Nerves briefly responds with a restatement of his position and adds that, although the defendant had not been doing any one thing wrong when the officer pulled him over, the police were suspicious based on a totality of the circumstances, and this suspicion proved to be entirely justified. He finishes, and both he and Mr. Feathers retire from the field of battle.

The next case is being called, and you would love to stay, but your conscience cannot support the idea of skipping out, er . . . that is, being excused from more than one class in a day, so you regretfully leave, but strongly recommend the experience to other interested students.

Anne Jelliff is a 3L at Albany Law School. Among other things, she serves as the Executive Editor for the Albany Government Law Review and Vice-President of Albany Law School's chapter of the National Academy of Elder Law Attorneys. Publication of her article about the jurisprudence of Justice Anthony Kennedy and its ties to his Catholic faith is forthcoming in the Albany Law Review.

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This page contains a single entry from the blog posted on February 17, 2013 3:37 PM.

The previous post in this blog was Letter From The Editor.

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