Steve Palmer [00:00:00]:

All right, it is that time again. Lawyer Talk Podcast. Check us out@LawyerTalkPodcast.com where we answer questions, we cover topics, we have all sorts of different areas that we like to focus on. But anyway, today is going to be another. What's the appeal for those who have followed it? I never would have thought people would be interested in the criminal appellate process, but they are, so we're going to keep doing it. If you've got a comment, a question, you want me to cover something, just let me know. Anyway, today I'm going to talk about because I. I recently started an appeal in my law practice upstairs, Palmer Legal Defense, and my client's family asked me, what do I look for? What do I do? What's the appeal all about? And here we're talking about for those who followed the steps.

Steve Palmer [00:00:41]:

This is the appellate ladder. This is like the first direct appeal that my client was convicted at trial. Now they've hired me to do the direct appeal. That's like rung number one on the ladder. And the first step in that process is to get a transcript. I've talked before about the accuracy of transcripts, etc. But today I'm going to talk about what I look for when I read a transcript and how I go about it. Maybe share a little bit about how the sausage is made.

Steve Palmer [00:01:07]:

And there's a look. I like to think there's an art form to everything in life and there's the black and white way of looking at it, and then there's the sort of the third or fourth dimension way of looking at it. And I try to combine the two. My first read of a transcript, say it's a thousand pages. And transcripts in criminal cases usually follow a rhythm. Sometimes there's motion hearings or things that happen before trial, but let's focus on trial. I read the whole thing through and through. But before I do that, I like to skip to the end.

Steve Palmer [00:01:38]:

I always skip to the end and read the closing arguments of the trial. And why do I do that? I don't know if all. It's funny, I ran into one other colleague of mine who does the same thing. But I sort of developed this process years ago when I started doing appellate work, because the closing arguments tell me what the lawyers thought was the most important parts of the case. And most specifically, I read the prosecutor's closing argument because that's telling me what they're emphasizing, what evidence they thought was the. This. The smoking gun that got the guy convicted. And then with that context, I can go back to the beginning and read the entire transcript.

Steve Palmer [00:02:15]:

And, and like I said, there's sort of a rhythm to it. There's usually a victim that has to testify. There's usually police officers that testify. There might be some emergency workers that testify. Sometimes there's experts that testify. And you sort of learn to focus on certain buzzwords. And first and foremost, we look for objections. So if the trial lawyer, if the defense lawyer says, object, this evidence shouldn't come in, or object, I want this evidence to come in and you're not letting me do it.

Steve Palmer [00:02:46]:

I look for those things and I flag them. It used to be I would flag them. I'm trying to switch to PDFs and no paper, but I still use little post it notes and I put them on my transcript and it drives my office crazy. But anyway, I flag those and I make little notes about what the objection is about. And that's sort of the obvious stuff. But then I look for the less than obvious stuff. Maybe even if there's not an objection, maybe there's some evidence that was admitted improperly. Now, granted, it's harder to raise issues if there's no objection, but it's important in context to focus on everything, then the most important, and sadly, I think a lot of lawyers skip this part or don't review it closely enough.

Steve Palmer [00:03:28]:

You got to read the jury instructions. You got to read the instructions that the judge gives to the jury because often there's a mistake there. And sometimes those mistakes are pretty significant. The other part that people often skip is the beginning part, voir dire, which is where you pick a jury. I should probably do a whole session on voir dire. But anyway, voir dire, you pick a jury and the lawyers get to ask jurors questions prior to trial or prior to the start of the testimony. And that process often yields a little bit of fruit on some appellate issues, even if it's just to punctuate the point of an argument. And here's what I mean by that, and here's what I mean by that third dimension.

Steve Palmer [00:04:06]:

Let's say a bit of evidence comes in and the lawyer, the prosecutor argues it later in their closing argument. And maybe it shouldn't have come in, maybe that bit of evidence was not admissible. But now I know that the prosecutor has relied on inadmissible evidence in the closing argument. And then sometimes in voir dire, they're talking to the jury about that evidence before they're even seated. So they're really punctuating the point of the inadmissible evidence. And then on opening statement, before they even call their first witness, they mention it. So all of that taken together, forms what we call assignments of error or arguments as to why the case should be reversed. Do I always find something in the transcript? Sadly, no.

Steve Palmer [00:04:51]:

And here's the problem with the appellate process. I can't tell my clients whether there's a great issue for appeal until I do the work. Yet my clients need to know if there's a great issue for appeal because they want to know if they're hiring us to do the appeal, is it going to be successful? The problem is we don't know. You're paying for the work. You're paying for the expertise in reading the transcript and deciphering what happened and trying your best to draft a comprehensive brief. And then the other thing I like to do, I think often there's a rhythm to a case where there are themes and theories throughout the case. I try to do the same thing in my appellate brief. Even though I've got individual assignments of error that maybe stand on their own, I try to find strings or common threads in these assignments of error.

Steve Palmer [00:05:39]:

So maybe all the mistakes were evidence that was admitted or not admitted that bears directly on the alleged victim's credibility. And maybe it's a he said, she said contest. And then I can sort of connect all the mistakes, all the individual evidence or mistakes with. With one common thread of prejudicial impact, which is to bolster the credibility of a victim or to discredit maybe the defendant's testimony in an improper way. And all those things bore directly on those concepts. And then I can try to link it all up as I go through the brief. So, look, it's not just black and white. It's not just two or three dimensions.

Steve Palmer [00:06:20]:

It's both. And when I read those transcripts, it sort of forms the basis of my idea. And then when I'm done, I actually sit down and. And I let it soak in for a week or two before I start drafting my brief. And I kick it around with my team upstairs. I try to figure out what are the issues, what's the law. And once we get through the transcript, we start the research. That's a whole nother topic on how we raise it.

Steve Palmer [00:06:42]:

But look, if you got a question about. I hope that was interesting. If you got a question about the appellate process, you got a question about how it works, transcripts or anything else, just shoot me a note or shoot me a note at lawyertalkpodcast. Com. Check us out@palmerlegaldefense.com if you want some direct help. See you next week.