Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

My Boston Criminal Lawyer Says I Can Appeal My Conviction; What Does That Mean?

Attorney Sam’s Take On Massachusetts Criminal Appeals

Your worse fears have been realized, The jury’s foreman has announced that the jury panel has found you guilty as charged.

Your Boston Criminal Lawyer turns to you and murmurs that it is “not over yet” and that he will be filing an appeal this very day.

Sounds great. Only one question. Does that mean its argued right now? Can you wait out the appeal process outside the walls of punishment? Most of all…will the Appeals Court recognize the jury’s tragic mistake?

Ok, more than one question.

Well, the answers to these questions tend to vary from case to case.

As I began to explain last Thursday, the job of the various appeals courts differ from that of the trial court.

The trial you just went through was to determine the facts. Presumably, the Commonwealth was successful at proving you guilty beyond a reasonable doubt. Both your Boston criminal lawyer and the prosecutor put before the jury various arguments and pieces of evidence. The person in charge of what evidence/arguments actually got before the jury was the Judge.

The jury has reached its verdict on you. One way to look at it is that it is now time for the appeals court to pass judgment on His Honor.

No, that appeal is not going to be argued today. Nor tomorrow. Not for several months at least in fact.

Judges make many decisions of law throughout a trial, and the road leading up to same (such as Massachusetts search and seizure issues). However, judges are human and can make mistakes (at least, as far as the various appeals courts are concerned). Therefore, the job of your appeals lawyer is generally to list and argue the legal mistakes the judge made in hopes to have the guilty finding thrown out and give you another shot at trial.

“Sam, you mean the verdict itself is never examined?”

Well, it may be if there is an argument is that, as a matter of law, the jury could never have reached that verdict. However, a motion stating such would be presented to the trial judge generally and denied first. This is not a requirement, however. Be assured, though, that the odds of such an appeal are not great. Appeals courts do not like to second-guess juries or judges when they themselves are the fact-finders.

The question of whether you can go home during the pendency of the appeal is not so easily answered. It depends.

“On what?”

Well, you name it! It depends on the judge, the prosecutor, the charges, the sentence, your record and what took place during the trial.

“Well, surely there is some consistency…!”

Not so much. I mean, if you have just been convicted of an Amesbury murder, it is likely that you are not going home while the appeal is pending. On the other hand, a Dorchester disorderly conduct conviction? You are probably not going to jail.

Other than the extremes, though, it is basically up for grabs.

“Are you saying that one judge might make me wait out the appeal behind bars while another might not?”

You’ve got it.

Many people are shocked when they find that they are being treated more harshly than someone else who is similarly situated.

Is it “fair?” Probably not. However, when you remember that all judges are human beings with their own views and moods…it tends to seem somewhat inevitable.

That is, unless and until there is a major change to the criminal justice system. However, before that happens…more people will have to understand that the system needs a change.

Other than getting rid of all those nasty scummy criminal defense attorneys, I mean.

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