Indigency Appeals 101 Joseph N. Schneiderm a n, Esq. H a mpden County B a r Associ a tion M a y 1, 2020
Indigency Appeals 101 Tod a y’s Agend a • You can challenge the denials of funds during a criminal case and don't have to wait for a conviction. • I handled an indigency appeal in late February. That was fun! See Fuller v. Comm., A.C. Docket Nos. 20-J-111, 20-J-118. • Travaun Bailey (give him a big hand!) reached out to me two weeks later about a similar issue and I talked him through it. • We’ll cover the procedures here and common errors and issues. • I adapted this course from a practice advisory I sent to the SDP and juvenile panels.
Indigency Appeals 101: Step 1: Filing the Appeal • If your motion for funds is denied, under G.L. c. 261, §27D, you have seven (7) days to fi le a notice of appeal in the trial court. • You absolutely, positively, HAVE TO MAKE THIS CLOCK! • The 7 Day Clock is Mandatory and Statutory. • Miss the 7 day clock, there is no appeal/you have no appeal. Comm. v. Clark., 67 Mass. App. Ct. 832 (2006).
Indigency Appeals 101: Step 1: Filing the Appeal • Reference Section 27D in your notice of appeal. (Models are attached at the end.) • Doesn't have to be long, Judge denied on this date, pursuant to G.L. c.261, §27D, defendant appeals. (Last slide is a model.) • The Clerk HAS TO ACCEPT the notice of appeal. Skandha v. Clerk of the Su ff olk Superior Court, 472 Mass. 1017, 1019 (2015) • If the Clerk won't accept the notice of appeal, get an order from the judge compelling the clerk to accept it or try fi ling it in the appropriate appellate court. • Compare Mass. R.A.P. 4: if you fi le a notice of appeal in an appellate court, they send it to the lower court. That happened in my case-my colleague fi led in the Appeals Court, they sent it to Su ff olk Superior as a courtesy. • However you do it, FILE IT IN 7 DAYS!
Indigency Appeals 101: Step 1: Filing the Appeal • If there’s more the judge should consider in connection with your motion for funds, fi le a motion to reconsider. • Dovetails with the preservation rule: “There is something unseemly with telling a lower court it was wrong when it was never presented with an opportunity to be right.” Comm. v. Alphas, 430 Mass. 8, 23 (1999) (Greaney, J., concurring) • If your motion is still denied, fi le a fresh notice of appeal referencing the denial of funds and the denial of reconsideration. • ESPECIALLY IF THERE’S NOT A HEARING-per the Appeals Court. • Notify the trial court clerk and the clerk of the appellate court.
Indigency Appeals 101: Step 2: Processing the Appeal You’ve successfully f iled the notice of a ppe a l, now wh a t? • Section 27D establishes a very comprehensive procedure. • The appeals go in three di ff erent directions, depending on the lower court. • When funds are denied in the Juvenile Court, the appeal goes to the Superior Court. • When funds are denied in the District Court, the appeal goes to the Appellate Division of the District Court. • When funds are denied in the Superior Court, the appeal goes to the single justice session of the Appeals Court-the “J” docket, not the Appeals Court panel docket- the “P” docket.
Indigency Appeals 101: Step 2: Processing the Appeal Re a ching the Appell a te Docket • In an indigency appeal from the Superior Court to the Appeals Court single justice, one does not need to pay a fi ling fee or move to waive the fi ling fee to enter the case on the “J” docket. • The appeal automatically enters when the Appeals Court Clerk receives the record from the Superior Court. • This is unlike other matters on the “J” docket, i.e., motions for stay, late notices of appeal, or docketing an appeal late-which require a motion to waive the fi ling fee and an a ffi davit of indigency. • Not here. Appeals Court Clerk receives the record, you’re good to go.
Indigency Appeals 101: Step 2: Processing the Appeal Re a ching the Appell a te Docket • If you draw a stickler clerk in the Superior Court, move to waive the entry fee and emphasize that a juvenile who is allegedly delinquent is deemed indigent by law under SJC Rule 3:10 (1)(h)(iv)-(1)(l) and SJC Rule 3:10(6A). • Best practice with an indigency appeal from Juvenile Court: Call Bill Walsh or Shana Wilson or Kevin Cla ff ey (or the appropriate Clerk’s o ffi ce if you’re not in Hampden.) • Best practice with District Court: Call the Clerk of the Appellate Division in Boston. • If you’re in Spring fi eld District Court, call Rosemary Berard (she handles record assembly) and let her know this is coming-and/or let your session clerk know this is coming.
Indigency Appeals 101: Step 2: Processing the Appeal Re a ching the Appell a te Docket • Section 27D establishes a comprehensive procedure for the lower court clerk/judge. • The lower court clerk has to assemble a record of anything relevant to the case. • Tell the lower court clerk to follow the procedure in 27D when assembling a record-individual clerks don’t see them as often. • This is unlike direct appeals where one fi les a brief and appendix-or other matters on the single justice docket where one fi les an appendix. • Indeed, Rule No. 1 of single justice practice generally is that the single justice has to have an adequate record to make a decision-and you include anything relevant. • The motion judge has to issue fi ndings-also part of the record. • Under 27D, within three (3) days of receipt of the notice of appeal, the judge has to issue fi ndings, if they haven’t done so already.
Indigency Appeals 101: Step 3: Resolving the Appeal You’ve re a ched the a ppell a te court, wh a t h a ppens now? • If you’re in the Appeals Court, those clerks are (GOOD) sticklers! • The Appeals Court Clerk will thoroughly review the record that the Superior Court sent up. • If something’s missing (like fi ndings), the Appeals Court Clerk will tell the Superior Court clerk, send us the missing X,Y,Z. • The Appeals Court Clerk will stay action on the appeal-or even vacate entry on the “J” docket. • You might even win summarily-the failure to hold a hearing before denying funds is error in and of itself! Adjartey v. Central Housing Court, 481 Mass. 830, 842 (2019)
Indigency Appeals 101: Step 3: Resolving the Appeal Wh a t H a ppens on the Appell a te Docket • You have an adequate record from the lower court clerk…now what? • The Appeals Court single justice usually resolves it on the papers. • The single justice can schedule a hearing-you can also always ask for one too. • You can, if you want to, ask for permission to fi le a brief or a memorandum of law, if it’s a novel or complex issue. (Call and let the Clerk know.) • AC doesn’t reject additional fi lings from an advocate-so long as there’s a docket number. • Depending on how the Appellate Division or the Superior Court handles this, do fi le a memo or a brief to educate your judge (esp. Superior Court on juveniles.) • The AC single justice sees some of these once a month every two years. • If time is of the essence, move for a stay of trial court proceedings pending appeal.
Indigency Appeals 101: Step 3: Resolving the Appeal Seeking a St a y Pending Appe a l • G.L. c.261, §27D explicitly authorizes the single justice/reviewing court to stay trial court proceedings during an indigency appeal. • If you want to, move for a stay (like of an imminent trial or of a motion hearing.) • Moving for a stay can be a vehicle for self-help and zealous advocacy in two regards. • 1. If the lower court clerk sends an inadequate record, you can fi ll in those gaps and avoid having deferred action on your appeal by pointing the appellate court in the right direction. • 2. Another opportunity to open up the arguments of why you deserve funds.
Indigency Appeals 101: Step 3: Resolving the Appeal St a ys Pending Appe a l • Mass R. Civ. Pro. 62/ Mass. R.A.P. 6 govern stays. • Four prong test-for our civil and criminal practitioners, like getting a temporary injunction. • 1. Likelihood of success on the merits: is there a question of law that o ff ers success-i.e., did the judge not hold a hearing, apply the wrong standard, etc. • 2. Irreparable harm: Your client’s in jail, facing jail, risking COVID exposure • 3. Stay will not harm the opposing parties: Compare Comm. v. Dotson, 402 Mass. 185, 187 (1988) (the Commonwealth “has no proper role to play in a [criminal defendant’s] motion for defense funds unless the judge requests [their] participation.”) • 4. On balance, a stay is in the public interest/won’t cause public harm: Yes, we don’t like dragged out proceedings/like conserving public funds, but those can’t override liberty interests. •
Indigency Appeals 101: Step 3: Resolving the Appeal C a se Study of a St a y Pending Appe a l • How did seeking a stay work in a real case? • In Fuller, the Su ff olk Clerk sent a woefully inadequate record in 20-J-111, which hit the docket on February 24. • I moved for a stay under Docket No. 20-J-118 on February 25. • I included a 30 page appendix-everything that the lower court clerk should have sent. • The appendix: Not hard to put together. Docket sheets, the motion for funds, a motion to reconsider (if any), the judge’s order, the notice of appeal-anything relevant to the issue. • On February 27, Justice Ditko ff granted the indigency appeal and dismissed the stay application as moot. • Mr. Fuller got funds and was ultimately found NOT SDP! •
Recommend
More recommend
