My winter term working on criminal appeals

By Isaac Gelbfish, J.D. ’17

During J-term 2017 I interned at the Criminal Appeals Bureau (CAB) of the Legal Aid-Society, New York City’s largest public defender office. I was fortunate to have amazing supervisors and had the opportunity to work on a number of criminal appeals. With closed and relatively short records– it was kind of like second-semester LRW, but with real cases.

I had the opportunity to work, from start to finish, on various appeals because the Appeals Bureau works on all cases– big and small alike. Sure, a 3-week intern wouldn’t bear responsibility to lead a murder conviction appeal, but, it turned out, a very large percentage of the CAB is not actually flashy murder appeals. The appeals docket, rather, consists mostly of smaller misdemeanor convictions, like disorderly conduct or public lewdness, where defendants risk loosing public benefits or housing, or being deported, or simply risk attaching further addenda to an existing criminal record.

Such misdemeanor convictions come quick and dirty, by hasty trials with very short records. A person charged with disorderly conduct, i.e., a penal, rather than an administrative offense, for playing his music too loud can be convicted in a matter of minutes – one appeal I worked on regarded a seven and half minute trial. The officer testifies, and, boom, before you know it, there’s a conviction. On appeal, then, enter the lawyers, asking all sorts of legally nuanced questions. What are the legal standards for determining whether conduct was “disorderly;” are they objective or subjective; and were those standards met in the current case?

The lawyers at the CAB approached these questions seriously and methodically. I was continuously impressed at just how committed the lawyers were to each and every case. Appeals were carefully considered, and, in weekly team meetings that I would attend, attorneys would discuss and deliberate about their arguments. The legal questions were always interesting, even if relating to all too common behavior. In one case I worked on, for example, a defendant/client peeped three times under a dressing room stall, and was then convicted for harassment. In quite a lawyerly fashion—conceding and bracketing that the defendant was up to no good—the CAB lawyers in our weekly team meetings started discussing: what did the harassment statute say, and was the three-timed peeping considered a “course of conduct” as required by the harassment statute? If not, the defendant’s conviction must be reversed.

Much of criminal appeals work is indeed quite abstract – lawyers sitting in a room, researching, writing, and defending clients they never met. That said, I’d be remiss if I didn’t mention quite a different type of appellate lawyering that I saw at CAB—one that was quite inspiring. A CAB senior attorney described to me the relationship she would form with her clients. Whereas some appellate attorneys wrote briefs and focused exclusively on the legal and often abstruse defenses for the client, she would aim to explain to the client the arguments she intended to make. So often, she explained, the clients were quite astute, even pushing back and actively shaping the arguments on appeal. In some instances clients’ insistence on certain arguments might– in the lawyers’ view– be harmful or not productive, and in those cases she would sit down with the client, engage with him or her, and best explain the reasons behind the argument. Through the months and years of the appellate process, the senior attorney was able to form a relationship with the client that trial lawyers often could not; the clients came to trust her meticulousness and respect her dedication. And while the vast majority of appeals are lost, she concluded in response to my final question, the appellate process was a way to “be there for her client,” to provide him with the feeling that somebody had his back, in a system where he had likely bounced around from person to person. For me, the idea of losing the vast majority of cases was initially disheartening. But I was happy to hear what, to me, was an inspiring answer. I came to value her dedication.