A Few More Tips on How to Get Through the Fiery Pits

of Mount Doom Door

Direct Appellate Review• The Justices ask: “Should we take your

case?”

• To which you respond:

Who to Impress4 Justice Hearing Committee• Sits once a month (second week)• Rotates; C.J. Gants always takes part• Two votes to approve

If they’re not impressed…

• It goes to the remaining justices at their monthly meeting (last week)

Your Application Is All They Have

–No briefs, Record Appendix, transcripts

–Make it easy for them

–Append useful documents (i.e. trial court decision, relevant portion of transcripts, Eyewitness ID report)

–Don’t overdo it

How They See It• Best way for Court to identify important

cases

• Helps manage and distribute caseload between the courts

• They want the important cases to go directly to them

DAR is Your Best Shot• When in doubt, apply

• Don’t count on sua sponte transfer

• Definitely don’t count on FAR

Ask for Help

• Ask around on Listserve• Solicit amicus letter

Further Appellate Review

What to Focus On• Rule says to point out “substantial reasons

affecting the public interest or the interests of justice.”

• Do I focus on the bigger picture, or why the MAC got it wrong?

• Current makeup of the Court – goal is to look for miscarriages of justice – including individual ones.

Present the Injustice with a Laser-Like Focus

Facts SectionM.R.A.P. 27.1(b)(3) – application shall contain “a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any, of the Appeals Court shall not be restated)” (Dr. Evil’s emphasis added).

But…

Facts Section, Cont’d• Why give up a chance to

advocate?

• Why let the MAC control which facts are presented?

• Why make them go to the back of your application to re-read the facts?

• Go ahead and do it.

What to Attach• Appeals Court decision

• If decision refers to another document (Commonwealth’s brief, trial court ruling) must attach that

• Anything relevant you want them to see– They will not go the MAC and read the briefs, RAs,

or transcripts

Re-Visiting Stays• Allowance of FAR could give you an opening

to ask for a stay of sentence

• “In the context of a pending appeal, the practice of granting a stay is grounded in the rudimentary notions of justice because a conviction may be reversible, but time spent in prison is not.” Com. v. Charles, 466 Mass. 63, 77 (2013).

Limited Scope?• SJC has increasingly been limiting the scope

of the case on FAR

• Exhaustion

• When to ask for limitation

And If it Doesn’t Work Out…• Very few are allowed• Consider federal review if appropriate• All you can do is your best