As I tell my new clients, criminal defense appeal lawyers are not magicians or miracle workers. Your appeal can only be won on direct appeal if there is reversible error in the record. Maybe the police violated the defendant's constitutional rights and the motion to suppress should have been granted. Maybe the prosecutor overcharged the case or failed to prove a specific element of a crime and the judge should have granted your motion for acquittal. Perhaps the trial judge incorrectly overruled defense objections during trial, or the trial judge erred when giving the jury instructions or at sentencing. Or maybe the defense lawyer fell asleep for much of the trial or there was juror misconduct which impacted the case.
To win on direct appeal the reversible error has to be in the record (there are other avenues you can pursue for errors that occurred off the record). So the trick to winning your direct appeal is not to pull a rabbit out of a hat. And it surely is not to "trick" the appellate judges.
The "trick" to winning on appeal is to get an experienced criminal appellate lawyer who is hard working and thorough. You want a lawyer that will comb over the record and be able to recognize the reversible error(s). You want an appellate lawyer who can clearly present the error(s) to the appellate judges so they will agree that reversible error occurred. Losing appeals is easy. Winning appeals is hard work. So you want a hard working and experienced appellate lawyer who will try to win your appeal.
But even the best criminal appeal lawyer will lose the direct appeal if there is no reversible error in the record. If the police did their job properly and respected the constitutional rights of the accused, if the prosecutor was reasonable in filing the charges and proved every element of each offense, if the judge knew what she was doing and followed the law during trial, and if the defense counsel provided the effective assistance of counsel, there is nothing anyone can do. After all, even the best criminal appeal lawyers are not magicians or miracle workers.
