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Trial versus Appellate versus Postconviction Work

Trial Public Defenders

Trial-level public defenders handle cases at the trial stage, including pre-trial investigation, pre-trial motions, plea bargaining, and trial. Trial defenders interact regularly with clients, witnesses, police officers, prosecutors, judges, and court personnel. There is some research and writing in this position – particularly with respect to motions, but the job is much more people intensive.

Appellate Public Defenders

In a majority of jurisdictions, appellate defenders spend most of their time in their offices doing legal research and writing appellate briefs. They do travel to prisons to meet with clients and they spent a few days a month doing oral arguments in front of appellate benches, but the job is much more solitary and cerebral. The trial record and the facts are already set. The appellate defender is looking for error in the record and bringing that error to the appellate courts’ attention. However, in a significant minority of states (including Michigan), appellate defenders are permitted to open the trial record on appeal. In these jurisdictions, the job of an appellate attorney is not only to examine the trial record for errors but also to consider if there are extra-record issues that might merit reversal. If there are problems of trial attorney ineffectiveness or prosecutorial misconduct that require more record development, the appellate attorney will ask to remand the case to the trial court for an evidentiary hearing. Determining whether to ask for and then conducting these evidentiary hearings often requires skills that trial attorneys frequently put to use – investigation; frequent interaction with witnesses, police officers, prosecutors, judges, and court personnel; and trial advocacy. For some, this appellate-trial combination is attractive. Others prefer the life of the on-the-record appellate lawyer.

Postconviction Defenders

Once a defendant is convicted and has exhausted her direct appeals, the postconviction process begins. The Supreme Court has never held that indigent defendants have a constitutional right to the assistance of counsel after their first appeal, but some states have public defender offices or independent organizations with postconviction sections. And most jurisdictions have statutory rights to postconviction counsel in capital cases and in some non-capital cases as well. Postconviction processes vary dramatically by state. Some states have statutory provisions indicating when and how to make postconviction attacks on criminal convictions whereas others rely on common law writs of habeas corpus and coram nobis to attack criminal convictions. Federal defendants and those state defendants who are still in prison after exhausting their state postconviction processes may seek federal habeas corpus review of their criminal convictions in the federal courts. Federal habeas corpus law is procedurally complicated and governed by a combination of highly detailed federal statutes and federal common law decisions. State and federal postconviction attorneys combine the skills of trial and appellate lawyers. They often have to reinvestigate old cases and interact with people and they spend a lot of time seeking and conducting (if they are lucky) evidentiary hearings in trial courts. At the same time, there is a lot of research and writing involved in the job. Before they can even get a hearing, they have to navigate complex procedural rules and write long and detailed motions/petitions.