“You don’t need an appeal. You need a time machine.”

This is a repost from a post originally made in May 2010, by request.  


In the last 10 days, I’ve given this advice to three different families.  Families of someone just sent to prison for most, if not the rest, of their lives.  Families of someone  treated unfairly.  I tell them “You don’t need an appeal, you need a time machine.”  I tell them that because an appeal likely won’t fix what’s wrong.

I see every day that other lawyers and law firms don’t really tell it like it is with appeals and post-conviction proceedings.  The odds are against us, people.  100-to-1 that you’ll get relief from a criminal conviction on appeal, I estimate, at the outset of the appeal.  If your case gets put on the general calendar, 50-to-1.  If your case is picked up by the Supreme Court on cert, maybe 5-to-1 (because they only take cases they are really interested in).  None of those are winning odds.  Anyone who tells you “you have a winner” or even “you have a good case” should not be trusted.  We are the underdog, even in the strongest appeal.  We are swimming upstream in very cold water.  There are so many ways to get screwed out of winning an appeal, I would write a post listing them but I’m too busy dodging them.  

And post-conviction and habeas proceedings are even worse.  I guestimate 1000-to-1 odds when filing a first habeas petition.  The vast vast majority of these will be dismissed without even a hearing, much less a response from the government.  You don’t have the right to counsel on a habeas (until it survives to a certain point).  Judges get dozens upon dozens of them each and every day.  Everyone in prison writes a few of these.  They are not taken very seriously.  If yours is exceptional, you might be granted a hearing and even get a lawyer.  Then your odds might be, maybe, 250-to-1.  But with all the pitfalls of procedural default and necessary investigation and fact-finding, perhaps the odds are even worse.

And then there is the relief to expect if you do beat the odds.  Most of the time, what you get in a completely successful appeal is a new trial.  Winning your appeal does not get you declared innocent, or even released, in almost all cases.  (There are exceptions for relief based on double jeopardy, speedy trial, and extreme prosecutorial misconduct, which mean you cannot again be tried.)  You face another trial, where we would hope the same mistakes wouldn’t be made again, but there is no assurance that you won’t be convicted, anyway.

When I explain appeals this way to people, they cry.  I feel like an oncologist.  I am told by my peers that I am nuts to scare away all my potential clients.  People go from me over to firms that paint a rosy, winning picture all the time.  They pay another firm good money for the rosy outlook.  But, they still face the same stark odds.  I feel often families are going with what they want to hear, not the straight poop.

I tell it like it is because I don’t think it is right to take people’s money for unrealistic dreams.  I know the odds, I’ve been doing this for 14 years.  I win more appeals than my share, and the odds are still against us.  Anyone who tells you otherwise is selling you a bridge.  Or a time machine.