By K. R. Claviger
In Part 1 of this series of posts, I outlined the overall appeals process in federal criminal trials – which is what will govern how the appeal that was filed in Keith Raniere’s case will be handled.
I left off at the point where the 3-judge panel from the U.S. Court of Appeals for the Second Circuit – which, BTW, has already been assigned to Keith’s appeal – will have received the following documents:
- The appellant brief that filed on May 7, 2021 by Jennifer Bonjean on behalf of Keith;
- The response brief that will be filed by the prosecutors from the EDNY; and
- The reply brief that will be filed by Ms. Bonjean.
At that point, the three judges will decide whether or not to hear oral arguments in the case. Even though that’s statistically unlikely – only about 25% of federal appeals involve oral arguments – I’m going to assume there will be oral arguments in Keith’s case so that I can explain what would be involved with that component of the appeals process.
So, following their review of the three briefs – plus whatever documents and other evidence from the trial that they deem relevant to the issues raised in the appeal – the 3-judge panel will schedule a date for both sides to present their arguments.
Given the continuing relaxation of COVID-19-related rules, I think it’s quite likely that the oral arguments in Keith’s case will be conducted in person at the Second Circuit’s courthouse at 40 Foley Square in New York City (Keith will not be in attendance at the oral arguments).
On the Thursday before the scheduled date for the oral arguments, both sides will find out the names of the three judges who have been assigned to the appeal.
Once they have those names, they will undoubtedly send their respective staff off to review other appellate cases in which those same judges were involved to see if any of their prior rulings may give some indication of how they might approach the case at hand.
On the day set aside for oral arguments, the attorneys for each side will be given 20-30 minutes to argue the various legal points they raised in their briefs – and to refute any points that were raised by the other side.
Most of that allotted time will actually be used to answer questions that the three judges have about the issues that were raised in the filings and/or via their review of the trial court proceedings.
And, at the end of the oral arguments, the three judges will most likely indicate that they “…take the matter under advisement” – which is just a fancy way of saying “We’ll get back to you after we’ve decided whether to grant some/all of the relief that the appellant has requested” – which, in this case, would be a reversal on almost all the counts on which Keith was convicted and a new trial.
Moot Court Sessions
Many appellate attorneys will prepare for the oral arguments by conducting “moot court” sessions.
These are basically practice sessions where fellow attorneys will read all the relevant materials – and then play the role of the 3-judge panel members by bombarding the appellate attorneys with questions about the case.
Such practice sessions can add a significant amount to the overall cost of a federal appeal – but given how important these sessions can be in preparing for oral arguments, they have become fairly standard in modern law practice.
What Sorts of Issues Will The Appeals Court Judges Be Able to Consider?
One of the fundamental rules of federal appeals is that the appellate judges will only consider those alleged legal errors that were properly “preserved” during the actual trial.
What that means in simple terms is that if the defendant’s trial attorney did not object to an alleged error during the trial on a timely basis – and state a specific basis or ground for their objection – the appellate court cannot even consider the alleged error.
Let’s look at an example of a very common occurrence in a trial to underscore what this concept of preservation means.
Let’s say that Keith’s lead attorney, Marc Agnifilo, objected to the response given by a prosecution witness to a question that was asked by AUSA Moira Kim Penza on the grounds that the response contained “hearsay”.
Even if Judge Garaufis responded by saying “Sustained”, Agnifilo still has to do more work if he wants to preserve this matter for appeal.
The reason he may want to do that is because the jurors will have already heard the hearsay answer from the witness – and, thus, the verdict they render could be negatively affected by the tainted response.
So, in this example, Agnifilo would also have to request that Judge Garaufis “…strike the answer from the record”.
If Judge Garaufis rejects the request to strike, then the hearsay issue will have been properly preserved because the judge’s ruling constitutes an “adverse ruling” against Agnifilo and his client.
But if Judge Garaufis grants the request to “…strike the answer from the record”, then Agnifilo still has work to do if he wants to preserve the matter for appeal because there has not yet been any “adverse ruling”.
In this example, Agnifilo would have to request that Judge Garaufis “…instruct the jury to disregard the hearsay response from the witness”.
If Judge Garaufis issues such an instruction to the jury, then Agnifilo would have to do something else like filing a motion for a mistrial because he still will not have received any sort of “adverse ruling” as regards the hearsay response.
If, however, Judge Garaufis rejects Agnifilo’s request about instructing the jury to disregard the hearsay response, then that would constitute an “adverse ruling” – and would preserve that issue for appeal.
What You Ask for in an Appeal Pretty Much Dictates What You Might Get
Although several of the people who still support the former Vanguard continue to suggest that if he wins his pending appeal he will be set free, that is not likely to happen (I’ll have much more to say about this issue when I focus on Keith’s actual appeal in the segment of this series).
While outright acquittals can – and do – occur, they are exceedingly rare when it comes to federal appeals.
In general, if the appellant is successful in convincing the appellate court that “reversible errors” occurred during the course of the trial, the relief afforded will be a new trial.
Thus, if the appellant wins on appeal, they return to the status they had before the trial started.
For Keith, that would likely mean a return to the Metropolitan Detention Center in Brooklyn, NY – where he would begin preparing for a new trial with whatever new defense attorneys he might hire (Although possible, I think it’s extremely unlikely that Marc Agnifilo would be willing to represent Keith again – and equally unlikely that Keith would ask him to do so).
What Happens if the Appeal Is Denied?
Even if the appellate court denies a direct appeal, the appellant still has several other options for trying to undo the outcome of the trial.
These options vary somewhat from federal circuit to federal circuit but they generally include such things as “Petitions for Rehearing” and “Petitions for Rehearing En Banc” (The former would be a request for a new hearing before the same 3-judge panel – and the latter would be a request for a new hearing before all the judges for the appellate court).
Even if those secondary appeals fail, there are still more options like habeas corpus proceedings – and appeals based on “ineffective assistance of counsel”.
These other options can keep prisoners busy and hopeful for several years – especially if they have access to money to pay for numerous appellate attorneys or they become jailhouse lawyers.
I apologize if any Frank Report readers found this two-part description of the appellate process to be dull and uninteresting. But I thought it was really important to explain the whole process before I started reviewing the details of Keith’s pending appeal.
As always, feel free to ask any questions you may have about anything I’ve written in this post – and/or to point out anything you think I’ve misstated (I do read all your comments – and respond to as many as possible).