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"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 appeal available.

  • 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 also.
  • 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.

An explanation of an appellate brief
Green Mile Marathon - political cartoon


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