Criminal Justice Magazine
Fall 2003
Volume 18 Number 3
The Right to Appeal
Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr., is emeritus professor of law at the University
of Richmond School of Law in Virginia. He is also a contributing editor
to Criminal Justice magazine and former chair of the Section's Juvenile
Justice Committee.
As we continue to commemorate the fortieth anniversary of Gideon v.
Wainwright, 372 U.S. 335 (1963), and its younger juvenile justice progeny,
In re Gault, 387 U.S. 1 (1967), it is important to focus on the broader
meaning of the right to counsel, such as appellate representation. In
fact, the existence of a right to appeal and the right to a written
transcript were two of the six issues initially presented to the U.S.
Supreme Court in Gault, but the Court expressly declined to decide the
issues then, and no subsequent decision has specifically addressed them
since. However, other state and federal courts have concluded that the
Equal Protection Clause of the Fourteenth Amendment requires that a
juvenile convicted of delinquency have the same opportunity to appeal
that a criminal defendant does in the jurisdiction, and every state
guarantees a right to appeal by statute. This column addressed the important
issues of the juvenile's rights to appeal and to seek post-conviction
relief 13 years ago, but they are still being ignored in many jurisdictions
today. (See Robert E. Shepherd, Jr., Juvenile Justice: Juvenile Appeals
and Post-Conviction Review, 5:3 Crim. Just. 31 (Fall 1990).)
The record
The important and influential ABA publication, A Call for Justice:
An Assessment of Access to Counsel and Quality of Representation in
Delinquency Proceedings, published in 1995, noted the shortcomings
in representation of juveniles in the postdisposition phase of juvenile
delinquency proceedings at that time:
Almost one-third of public defenders and 41% of appointed counsel end
their representation of juveniles at the disposition hearing. Defenders
rarely take appeals in juvenile cases. Among public defender offices
responding to the survey, 32% are not even authorized to handle appeals.
Of the offices that do handle appeals, 46% took no appeals in juvenile
cases during the year prior to the survey. Site visits confirmed these
findings. One public defender reported that she handles her own appeals
but must do so on nights and weekends because of the pressure of her
"regular" caseload. The failure of some public defender offices
to give any leeway in case assignments for lawyers taking appeals has
operated as a disincentive and created hardships for those taking appeals.
***
Appointed lawyers also take appeals infrequently. Among the appointed
lawyers surveyed, three-quarters were authorized to handle appeals,
but 79% took none during the prior year.
More recent assessments of individual states, done under the auspices
of the Criminal Justice Section's Juvenile Defender Center, show that
practices have improved little in the eight years since A Call for
Justice was published. The assessment in Kentucky, for example,
showed that about 50 percent of the public defenders in that state filed
no appeals on behalf of juveniles in the prior year, although 30 percent
of the offices filed between seven and 10, and two offices filed more
than 10 appeals. (Kentucky: Advancing Justice: An Assessment of Access
to Counsel and Quality of Representation in Delinquency Proceedings
31 (2002).) In Ohio, 40 percent of the attorneys surveyed reported filing
no appeals whatsoever, and another 30 percent filed only one to three
appeals. Only 58 percent of the Ohio youths interviewed indicated that
their right to appeal was ever explained to them. (Ohio: Justice
Cut Short: An Assessment of Access to Counsel and Quality of Representation
in Delinquency Proceedings in Ohio 32-33 (2003).) The Virginia report
stated that "an overwhelming number of defenders admitted they
do not appeal cases. . . ." (Virginia: An Assessment of Access
to Counsel and Quality of Representation in Delinquency Proceedings
28 (2002).)
A meaningful right to appeal
The right to an appeal should be explained to the juvenile at the conclusion
of the case, initially by the lawyer, but also on the record by the
court itself. The youth should also be given information concerning
the procedures for perfecting that appeal in a timely and proper manner.
One important consideration for an attorney in advising a juvenile whether
to take an appeal is the effect of the appeal on the implementation
of the disposition order. Juvenile codes generally afford juveniles
a lesser right to bail on an appeal than adult criminal defendants.
Some afford no right to bail at all. And the question of a stay of the
court's disposition order is usually addressed solely to the discretion
of the juvenile or family court judge. This is important because the
length of many juvenile dispositions is generally shorter and may make
the practical effect of even a successful appeal almost meaningless
if no stay can be secured.
Role of the attorney in an appeal
As in adult criminal cases, generally no nonjurisdictional error can
be noted on appeal unless it has been preserved in an effective manner
at trial. Consequently, the attorney has an initial obligation to protect,
and make, a record during trial by carefully noting all objections and
preserving any errors for consideration on appeal. The Juvenile Justice
Center's Juvenile Defender Delinquency Notebook, edited by Barbara
Butterworth, Will Rhee, and Mary Ann Scali in 2000, has a helpful appendix
– "Form F30: Making the Record for Appeal Checklist"
– to assist lawyers in preserving issues for appeal. The traditional
informality of many juvenile court proceedings may tax the patience
of the attorney who wants to preserve an objection for review on appeal,
but it is necessary. If the seriousness of the charge, or the nature
of the police investigation, or the legal issues presented by the case
are such that the likelihood of an appeal seems high, the attorney should
try the case at two levels-one for the trial judge and the other for
the appellate court. The youth's lawyer must force the juvenile court
to abandon the informal procedures that undermine the appellate process
and demand that all rulings on evidentiary matters be made explicit.
The effective use of written pretrial and trial motions, such as motions
to suppress and proffers of evidence if it is ruled inadmissible, may
go a long way in fixing the issues for effective appellate consideration.
After a disposition decision, the attorney should carefully explain
to the juvenile what his or her appellate rights are and assist the
client in reaching an intelligent decision on exercising those rights.
The time limits for noting an appeal and the method for advising the
court should be explained with special care and in language that is
developmentally appropriate for the client's age. The short-term and
long-term implications of the disposition order should be noted, along
with its likely impact-even such orders as probation supervision or
restitution that may not result in an immediate loss of liberty. The
"reforms" of the late 20th century have had a significant
impact on the collateral consequences flowing from a juvenile adjudication.
If the juvenile decides to appeal, the attorney has a duty to the youth
to properly perfect the appeal in a timely fashion and to pursue it
with vigor and skill. If the trial lawyer does not feel competent in
handling a case on appeal, another lawyer should be sought to assist
in the matter or take over the case. The Notebook has another useful
appendix – "Form 35: Direct Appeal Worksheet" – that
will assist the trial defender in meeting the deadlines for filing the
appeal correctly.
Conclusion
As in past columns, it must be noted again that legislative changes
in the 1980s and 1990s significantly criminalized the juvenile justice
process, which markedly changed the equation concerning appeals. Taking
an appeal was not a high priority for many lawyers in the more benign
juvenile or family court of an earlier era with its closed courtroom,
confidential records, expungement of delinquency adjudications, limited
collateral consequences, and limited correctional commitments of short
duration. Juvenile adjudications today carry higher stakes and dispositions
are more draconian. Appeals must become more frequent and lawyers more
aggressive in pursuing them.
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