The Appellate Prosecutor

About the Book

The Appellate Prosecutor: A Practical and Inspirational Guide to Appellate Advocacy is a new book for appellate advocates, particularly those in attorney general's and prosecutor's offices.

The importance of an appellate prosecutor's work cannot be overstated. Don Zelenka, a consummate appellate advocate, expressed it well when he wrote, "If the maxim that 'the best use of life is to spend it for something that outlasts life' is correct, the life and work of an appellate prosecutor is one to be cherished." Appellate prosecutors not only preserve just convictions through their advocacy but also shape the law for the future.

Authors for this book are some of the best-of-the-best teachers and authorities on how to be an effective appellate advocate. They were selected from across the country and include appellate prosecutors from attorney general's and prosecutor's offices as well as appellate judges and justices and a law professor.

The authors have crafted information-packed chapters on these subjects:

• Persuasion, Planning and Analysis for Appellate Advocacy - The building blocks of persuasion and how to use them in appellate advocacy
• Writing the Persuasive Brief - How to effectively craft the three major sections of the brief
• The Key to Good Legal Writing
• A Sample Appellate Brief Template
• Appellate Strategies - How to: find procedural and other bars; uncover flaws in Appellant's brief; determine the real issue; enhance your credibility with the court and more.
• Research Resources: An Appellate Lawyer's Tools of the Trade - Internet sites, prosecutor association information banks and written resources for appellate prosecutors.
• Standards of Review: The First Line of Defence
• Protecting the Record for Appeal: Advice to the Trial Prosecutor
• Professional Responsibility on Appeal - How to respond to ethical dilemmas that confront appellate prosecutors.
• Prosecutor Appeals - eight considerations that may influence your decision to appeal.
• Successful Appellate Oral Advocacy.
• Appellate Court Conferencing of Cases - How appellate courts conference and how that can effect your advocacy.
• Answering the Difficult Questions from the Bench.
• Inspirational Words for the Appellate Advocate.

As Judge Charles Moylan, thirty-year veteran of the appellate bench, renowned lecturer and author, put it, "This work in my judgement will find an indispensable place on the desk, or at the bedside before argument, of every successful appellate prosecutor."

About the Author

JUSTICE PAUL H. ANDERSON is an Associate Justice of the Minnesota Supreme Court. A graduate of Macalester College and the University of Minnesota Law School, Justice Anderson was a Vista Volunteer, Special Assistant Attorney General for the State of Minnesota, and was in the private practice of law for twenty-nine years before being appointed Chief Judge of the Minnesota Court of Appeals in 1992. He was appointed to the Minnesota Supreme Court in 1994 and was reelected in 1996.

TIMOTHY A. BAUGHMAN is the Chief of Research, Training, and Appeals for the Wayne County Prosecutor's Office, Detroit, Michigan. Mr. Baughman has been an assistant prosecuting attorney for over 29 years, and he has appeared four times in the United States Supreme Court, each with a successful result. He has argued over 60 cases in the Michigan Supreme Court.

J. KIRK BROWN is Nebraska's first Solicitor General. Prior to that appointment he was the first Criminal Bureau Chief and Chief of the Criminal Appellate Section of the Nebraska Department of Justice for over 12 years, and directly responsible for Nebraska's death penalty litigation. Mr. Brown has successfully briefed three cases on the merits before the Supreme Court of the United States, and has been counsel of record in 238 other appellate cases in the state and federal courts.

HILARY L. BRUNELL is the Executive Assistant Prosecutor in the Essex County Prosecutor's Office in Newark, New Jersey. Through out her career, she has specialized in appellate practice, and in 1994 received the Regional Vice-PresidentÕs award for excellence in appellate advocacy from the Association of Government Attorneys for Capital Litigation. She has appeared many times before the state Supreme Court of New Jersey.

JUDGE JERRY G. ELLIOTT was appointed to the Kansas Court of Appeals in 1987. Prior to his appointment to the bench, Judge Elliott practiced with the Foulston Siefkin firm in Wichita, Kansas, where he spent about 70% of his time in civil appellate practice.

PROFESSOR JAMES FLANAGAN is the Oliver Ellsworth Professor of Federal Practice at the University of South Carolina School of Law. Before beginning his career as a law professor, he served as an Assistant United States Attorney for the District of Columbia in the Felony Trial and Appellate Divisions and practiced as a trial lawyer in Chicago. He is an experienced trial and appellate advocate and has appeared in state and federal courts in the District of Columbia, Illinois and South Carolina.

ROBERT M. FOSTER is a Supervising Deputy Attorney General in his 30th year with the Appeals, Writs and Trials (Criminal) Section of the California Attorney General's Office in San Diego, California. He has briefed, argued, and won, two case at the United States Supreme Court and over 15 cases at the California Supreme Court. His main area of practice is in the state appellate courts where he has handled over 1,500 appeals. He is the author of the chapters on writing respondent's briefs in Purver and Taylor's Handling Criminal Appeals published by Bancroft Whitney.

JUDGE KAYE HEARN has served as a member of the South Carolina Court of Appeals since her election in 1995 and has been chief judge since 1999. Before taking the bench, Judge Hearn was a trial attorney with the firm of Stevens, Stevens, Thomas, Hearn, and Hearn. In 1986, she was elected to the family court bench where she remained until her election to the court of appeals.

JUDGE BARBARA P. HERVEY is a judge on the Texas Court of Criminal Appeals She served as an assistant district attorney in the appellate section for sixteen years. She has taught at the National College of District Attorneys and is a frequent lecturer throughout Texas. She received the Rosewood Gavel Award for judicial service from St. Mary's in 2003 and has recently been elected to the American Law Institute.

JUDGE ROBERT J. HUMPHREYS is a judge of the Court of Appeals of Virginia. Before assuming the bench, he spent 22 years as a prosecutor including election to three terms as Commonwealth's Attorney in Virginia Beach, Virginia and as a Special Assistant United States Attorney for the Eastern District of Virginia. He is a past president of the Virginia Association of Commonwealth's Attorneys and past Chairman of the Commonwealth's Attorneys Services Council.

JUDGE MICHAEL E. KEASLER is a judge on the Texas Court of Criminal Appeals. He was a prosecutor in Dallas County for twelve years, tried over four hundred jury trials, and was the senior felony chief prosecutor in the Career Criminal Division. He then served as district judge in Dallas for seventeen years. He served as Chair of the State Bar of Texas Judicial Section and the ABA State Trial Judges' Ethics Committee. He was also dean of judicial education in Texas.

JUSTICE NATHAN D. MIHARA is an Associate Justice on State Court of Appeals in California. He began his career in a private law practice in Menlo Park until he joined the California State Attorney General's Office. Justice Mihara served as a trial court judge; first on the Santa Clara County Municipal Court beginning in 1985 until he was elevated to the Santa Clara County Superior Court in 1988. In 1993, he was appointed to the Appellate Court.

JUDGE CHARLES E. MOYLAN, JR. is a retired Judge sitting on the Maryland Court of Special Appeals, where he has served for over three decades. Prior to that he was the State's Attorney for Baltimore City, and, during his tenure there, he was named the Outstanding Prosecutor by the National District Attorneys Association. Judge Moylan has lectured to prosecutorial and judicial groups in all 50 states on topics including, among other: search and seizure; trial tactics; double jeopardy; confrontation, and the history of homicide law.

J. FREDERIC VOROS, JR. is Chief of the Appeals Division of the Utah Attorney General's Office. He supervises a division of 16 attorneys who handle all felony appeals statewide, as well as all state and federal post-conviction matters. He has handled hundreds of appeals, including criminal, civil, and agency matters. Prior to joining the Division in 1991, he maintained an active civil litigation practice, including handling appeals for clients ranging from the First National Bank of Boston to a convicted murderer.

DONALD J. ZELENKA is an Assistant Deputy Attorney General and Chief of Capital and Collateral Litigation in the South Carolina Attorney General's Office in Columbia, South Carolina. Mr. Zelenka has been with the Attorney General's Office since 1979, handling criminal appeals and federal habeas corpus actions. Mr. Zelenka has personally argued five cases before the United States Supreme Court, over 100 cases in the United States Court of Appeals for the Fourth Circuit, and numerous cases in the state appellate courts. He has also tried a number of murder cases in the trial court.