A common perception held among trial attorneys is that the die has been cast by the time the case arises on appeal. Neither party can introduce new facts into the record. Nor can they raise new claims not raised below. Combined with the usual deference the appellate court must afford to a trial court's ruling, some attorneys fall into an "it is what it is" approach to litigating the appeal.
This fatalistic view is not without support since the vast majority of appeals result in a unanimous affirmance. Indeed, for the appellate attorney who frequently represents the appellant, merely obtaining a favorable lone dissent can feel like a victory.
So, yes, litigating an appeal can sometimes feel like a rote process.
Except when it's not.
Take, for example, the recently decided case of People v. Aveni. In Aveni, the female victim died of a drug overdose. The police suspected the victim's husband, and brought him into the station house for questioning. After reading the defendant his Miranda rights, the police, knowing the victim was dead, explained to the defendant that his girlfriend was at the hospital and it was imperative that the defendant tell them whether the victim ingested any drugs because "whatever medications the doctors giver her now could have an adverse effect on her medical condition." The police further explained that if the defendant refused to "tell . . . the truth" and "[the doctors] give her medication, it could be a problem." The detective's implicitly threatening the defendant with a homicide charge if he refused to admit to the killing worked: shortly thereafter, the defendant penned a written statement admitting he killed his girlfriend by injecting her with heroin.
The Appellate Division, Second Department reversed, finding this tactic so unconstitutionally deceptive that it overcame the defendant's will. At this point, the Court distinguished a seemingly dispositive precedent in People v. McQueen, 18 N.Y.2d 337 (1966). As the Court explained:
[In McQueen,] the officers used mere deception by telling the defendant that "she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her," but did not threaten her with repercussions if she chose to remain silent. In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that [defendant's girlfriend] was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to [her] death, since the physicians would be unable to treat her, which "could be a problem" for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to [his girlfriend's] death, and then he could be charged with her homicide.
(emphasis added). Subtle indeed. Aveni highlights and validates the appellate specialist's work. Oftentimes, the appellate attorney is called upon to carve out fine distinctions in the hopes of winning the appeal. To this end, the attorney logs countless hours polishing, editing, and massaging the distinction. And many times the nuanced argument falls on deaf ears.
Except when it doesn't.
Persuasive appellate counsel can make a difference.