"Because of the complexity and
the potential punishment, defendants in death penalty cases are in some
jurisdictions afforded better than average lawyers and greater than average
resources. Many appellate courts look more closely
at a case when the defendant has been sentenced to die."
-- David Feige of the Bronx Defenders, a
nonprofit criminal-defense law firm
In a capital murder case, the appellate process varies
slightly from state to state but there are generally at least eight levels of
- The first appeal is filed with the state court of
appeals and is based on issues developed from the original trial
record. If granted, the case is sent back to the district court for
acquittal, retrial or rehearing but the state can appeal the reversal.
- If denied, the convicted can appeal to the US Supreme
Court asking for a "certiorari" review. If denied, this ends
the "direct appeal".
- A person sentenced to death is then entitled to seek
state habeas corpus review, which is basically just an additional
appeal. It differs from the direct appeal in that the defendant may
now raise claims based on facts outside the trial record and they must be
claims that could not be raised in the direct appeal. These usually
consist of claims of ineffective assistance of counsel. This appeal is
filed with the trial court but reviewed by the state appeals court
- If the state habeas corpus review is denied, the
inmate can appeal to the US Supreme Court.
- Then the Federal habeas appeals begin when the inmate
files a petition for habeas review with the US District Court that
oversees that area.
- If the writ of habeas corpus is denied by the District Court, the
appeal can then move to the US Circuit Court.
- If the Circuit Court denies the appeal, the inmate
can again ask the US Supreme Court for certiorari review. As with
certiorari after the direct appeal, the US Supreme Court rarely agrees
to hear and consider such cases.
- If denied a hearing from the US Supreme Court, an
execution date is set and the final appeal left to the defendant is to
ask for clemency or commutation from the governor and/or the parole
board of the state.
- If this is denied, the execution is carried out,
unless another court intervenes for some reason.
explanation of an appellate brief
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