Vol. 11, No. 2,586W - The American Reporter - February 20, 2005

On Media
AN UNAPPEALING KIND OF JOURNALISM

by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif

SAN PEDRO, Calif -- This week Martha Stewart has joined many, many others in bravely promising to appeal a criminal conviction. For once, the national news media have refused to accept such an assertion at face value, but all too often the media mindlessly report such remarks in a ritual that misleads readers about the realities of the justice system.

All too often, the pages of our daily newspapers contain something like the following: "John Smith, accused of embezzling $600,000 from his employer, was convicted in a seven-week trial which included testimony from 19 witnesses. Most of the lost money was never recovered, but witnesses told of Smith losing tens of thousands of dollars gambling at Atlantic City as he went on a spending spree which involved the purchase of five automobiles, numerous items of jewelry and illegal narcotics. Particularly incriminating was fingerprint evidence linking Smith to checks stolen from the company vault and testimony from two witnesses who observed him cashing the checks. Smith said that he will appeal the verdict."

This inclusion of some variant of the phrase "the defendant says he will appeal" has become a routine part of reporting on trial verdicts. Such writing is lazy and misleading because it fails to question further whether there are legitimate grounds for appeal and if so, what the likelihood is that an appeal might succeed. The naive reader may believe that an appeal is a routine second phase of the criminal trial procedure and that appeals succeed much of the time.

This is far from the truth. For example, the Bureau of Justice Statistics from one recent year (in this case 1999 - 2000) show that most criminal prosecutions carried out by federal prosecutors end in conviction, either by a guilty plea or by a guilty verdict at trial. Most of the time the defendant pleads guilty to something. In total, about eighty percent of federal criminal defendants plead guilty or are convicted.

Of those who appeal a trial court's verdict of guilty, only a small fraction - typically ten percent or less - enjoy some relief. For most, this involves being sent back for a new trial. Only a very small fraction see the charges dismissed outright.

Perhaps some real numbers would help illustrate the story. In the period October 1, 1999 through September 30, 2000, there were 87,006 defendants prosecuted for federal crimes and 68,156 convicted, for an overall conviction rate of just under eighty percent (again, remember most of these were guilty pleas). There are minor differences in conviction rates for various types of crimes, but overall, the success rate for prosecutions in federal matters stay consistently high.

In this same period, there were about 9000 new appeals filed and about the same number were disposed of by the courts in one way or the other. Typically there were no more than ten percent sent back to the lower courts for retrial, and a considerably lower fraction dismissed outright.

Roughly speaking, a person convicted in federal court who filed an appeal had about five chances in six of losing outright, and most of the lucky few who prevailed on appeal won only the right to go through the whole criminal trial process once more.

Still, we endure this "Smith says he will appeal" litany in the daily newspapers on a daily basis. Of course most criminal prosecutions are state or local, not federal as in the Martha Stewart case, but conviction rates and convictions upheld on appeal tend to be high in these venues as well, as a check of your local crime statistics will probably show.

Reading these stories, I sometimes wonder why the news business doesn't take it one step farther and ask Smith's attorney these questions: What grounds do you have for appeal? In particular, what legal or procedural error did the judge make that provides grounds for appeal? What would you rate your chances of winning?

Absent such questions, the ignorant or naive reader is left to wonder whether criminal verdicts are overturned much of the time, a view that is contrary to realty but assisted by cultural myths about revolving door justice, liberal judges and runaway juries.

The Martha Stewart case was so much in the public view that news organizations actually did their homework and ran legal evaluations of the likelihood of winning an appeal. One example from the Washington Post (and available on the internet) begins with the headline, "Martha Stewart's Appeal Won't Be Easy." It continues by examining the more likely appeal strategies and finding them substantially lacking. "Stewart and Bacanovic have a difficult task, outside lawyers said. Appeal judges review most issues against the standard of whether the trial judge abused his or her discretion, a very tough benchmark to meet."

In this story, the Post is reminding its readers of something that many people routinely miss, namely that an appeal is not a second trial of the facts, but only a review of whether or not the original trial was fair. Appeals courts do not require perfection, only an acceptable level of fairness.

There is another issue that the dailies fail to explain most of the time: The trial jury has sole discretion for deciding which witnesses were telling the truth and which were not. The function of the appeals court is not to decide whether the jury decided correctly. Rather, the appeals court has to decide whether the jury was allowed to hear the right testimony (and not to hear testimony that would merely be prejudicial), and whether the judge allowed only the right questions to be presented to the jury for their consideration.

For once, the national media took a newly convicted felon's statement and subjected it to logical analysis. They managed to make the point that most of the time, there is one trial and its decision is final. The routine reporting of crime in newspapers, radio and local television is usually not performed nearly so well.

Copyright 2005 Joe Shea The American Reporter. All Rights Reserved.