By Texas Criminal Defense Lawyer Jeremy Rosenthal
That isn’t supposed to happen. It can only happen where there is evidence of misconduct AFTER the case has been appealed.
Think about it. We want people to appeal cases. Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices. Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.
Won’t the Judge or Prosecutor Get Mad?
Possibly. Everyone in America gets their paper graded. Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong. No one likes being told they are wrong and Judges are certainly no exception. Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair. But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.
Can the Judge or Prosecutor Retaliate Against Me for Appealing?
They can try. When you appeal a case, however, the case goes to a different set of higher judges. The case is out of the trial judge’s hands. There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.
If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal. See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).
I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years. This just tells me they have never cracked a book to look at the rule.
Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions. This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however. The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.
Appealing a case is an important decision. Don’t factor stiffer punishment or angering anyone in making your decision, however.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice. For advice about any situation you should contact an attorney directly.