Focus: federal criminal appeal and post-conviction change in law

Here’s a question to which the answer is not uniformly agreed to and applied by federal circuit courts across the country: When a defendant appeals a trial court conviction, should the appellate court apply the law that existed at the time of trial or, if the law was changed subsequently, the law that exists at the time of the federal criminal appeal?

One might think that the federal circuits would be aligned in a determination concerning that issue, but they are not. For example, the 9th U.S. Circuit Court of Appeals, based in San Francisco, as well as the D.C. Circuit in Washington, D.C., apply the standard that existed at the time of the trial. Several other circuits, including the 11th Circuit, which includes Georgia, consider the law as it is currently, in other words, at the time of a defendant’s appeal.

The 5th Circuit joined other circuits espousing the “at the time of appeal” standard in a divided decision issued last week. In the case being considered, a defendant who pleaded guilty in a March 2011 trial asked the appellate court to apply a Supreme Court ruling issued months following the criminal trial that changed the law considered and applied by the trial judge.

The court agreed to do so, with the majority opinion stating that, “Instead of … potentially applying law we now know to be incorrect, we can simply apply the law as it is and determine whether the error is plain.”

In applying that standard, the court found in favor of the defendant.

Among other things, the case illustrates the complexities of federal law, its sometimes altered application among the federal circuits, and the critical role that an experienced federal appeals attorney can play in promoting the best interests of any person charged with a federal crime.

Source: Thomson Reuters, “Defendants can benefit from clarifications in the law: 5th Circuit,” July 26, 2012