Folks are focused on the federal criminal appeal of Dzhokhar Tsarnaev (hereinafter, the “Defendant”). While his appeals will be automatic because of his unusual penalty, all criminal defendants, especially if convicted after a trial, have the right to appeal their conviction.

The appeal, however, may not be what you think it is.

Let’s look at the Defendant’s appeal, for example. Most analysts opine that one of the primary grounds for appeal will be the court’s refusal to move the site of the trial. In fact, a number of articles, one of them being “Marathon bomber likely to appeal over Boston trial site” the experts forcast that the appeal will focus on the judge’s refusal to move the trial out of Boston and the prosecution’s barrage of emotional testimony from more than a dozen victims of the attack.

Clearly, nobody expects the basis of an appeal to be that the juror’s verdict of guilt was not based on the evidence. Yet, most people believe that a criminal appeal is really a chance to second-guess the jury.

It really isn’t.

Actually, it is to second-guess the judge.

Many people believe that the purpose of an appeal is to bring their case, just as it was at trial, before some kind of new court who will then examine the evidence anew. This is not the case.

“But, Sam, you mentioned that there could be a basis that the verdict was not based upon the evidence.”

In certain cases, there can be an issue that the jury’s verdict was so contrary to the evidence presented that the judgement should be set aside. This is rare because he appeals courts place a great deal of reliance on the jury’s verdict as well as the trial court’s descretion. The primary reason is that the trial judge and jury were present at the actual trial and so had the benefit of seeing and hearing all the evidence presented. In terms of the jurors, of course, there is also the fact that the right to a jury verdict in such cases is a Constitutional right.

“So, what types of issues can be presented in an appeal?”

Usually an appeal challenges decisions the trial court made both before and during the actual trial. These decisions are not factual decisions, but legal decisions. In other words, issues of law.

“Like the issue of whether the trial should have been moved out of Boston?”

Exactly. The issue there is that the matter should have been moved to another location (this is called a change in venue) because to allow the trial to take place in Boston. The argument is that to have the trial take place, and have jurors from, the Boston area is to invite prejudice to the Defendant. The claim is that the Defendant could not receive a fair trial because there was no way to have a fair and impartial trial. The jury pool could not be relied upon to be fair.

“What about the other expected basis? The parade of sympathetic witnesses?”

We had been discussing that during the trial. There is hypocrocy embedded in the system, I believe, and that was an example of it. We tell the jurors not to be moved by emotion, sympathy or anger. At the same time, both sides do all trhat they can to appeal to just those things.

I made the observation last week that perhaps it makes sense that there is hypocracy in our system of justice. Because, as emotional human beings, we are not always consistent in either what we want or what we do. There are many examples of this when one looks at our criminal statutes. Inconsistencies abound.

Lawyers often look to “caselaw” to argue their points. These are cases which have been previously decided which may have similar or exactly the same fact scenarios. Yet, cases often differ; different courts sometimes change their reading of the laws.

This is a subject we can return to if you want some other day. For now, let’s look at the issue of criminal appeals.

In case you were not aware, appeals are one of the reasons attorneys object so much during trial. True, it is because they do not want a jury to hear something that is otherwise about to be said, but an attorney has to object to “preserve the record” for appeal. In other words, if defense counsel does not object to something at the trial, then she cannot raise it as an issue on the appeal.

This is another reason why, when going to trial, you want an experienced attorney. That experience should include handling appeals for the same area of law.

“What happens if a defendant wins the appeal? Is the case thrown out?”

Usually it is not thrown out. It is simply thrown back to the trial court to re-try the matter under the ruling that the appeals court has just made.

“Sam, there is alot of debate already as to whether the Defendant’s appeal is likely to be successful. What do you think?”

I must take the position that no defense attorney knows this case better than the ones who tried it.


The basis of an appeal is the argument that the Defendant was deprived of his right to a fair trial. That, if there had been a fair and impartial jury and a fair trial, the verdict may have been different.

In terms of the underlying case at least, it is difficult to see how that argument can win.

Any error that a court makes cannot be “harmless error” as the appeals court reviews the case in perspective. It must be a harmful error. It must have made a difference.

In this case, the defense basically announced the Defendant’s guilt in the beginning of the trial. Clearly, this was a tactical decision because the main issue for the defense was the sentencing phase. However, that tactic came at a cost. There is no way to argue that if another jury was presented with different evidence that said jury might have overruled the defense’ proclaimation of guilt and acquitted him?

So…no. I do not see a successful appeal for the Defendant, at least on those grounds.

I now turn you over to my associate, the esteemed attorney, Ian Keefe for tomorrow’s blog.

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