Finality in Federal District Judgments for Purposes of Appeal: the General Rule

Federal courts of appeals have jurisdiction of final U.S. district court judgments except where a decision may be directly reviewed by the Supreme Court of the United States.  SCOTUS said, in Hall v. Hall, No. 16-1150, Mar. 27, 2018, which I have cleaned up: "A final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The archetypal final decision is one that triggers the entry of judgment. Appeal from such a final decision is a matter of right. Under §1291, any litigant armed with a final judgment from a lower federal court is entitled to take an appeal, which generally must be filed within 30 days."

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).

What Happens to Trial Exhibits on Appeal?

In Texas state practice, admitted trial exhibits are attached to the court reporter's record. Where an exhibit is very valuable (e.g. a bearer bond) or dangerous (a firearm) or very bulky (an image as large as a billboard), trial judges will often grant motions for images of exhibits to be substituted for the exhibits themselves.
At the court reporter's request, the trial court clerk must give all original exhibits to the reporter for use in preparing the reporter’s record. Unless ordered to include original exhibits in the reporter’s record, the court reporter must return the original exhibits to the clerk after copying them for inclusion in the reporter’s record. If someone other than the trial court clerk possesses an original exhibit, either the trial court or the appellate court may order that person to deliver the exhibit to the trial court clerk.
 If the trial court determines that original exhibits should be inspected by the appellate court or sent to that court in lieu of copies, the trial court must make an order for the safekeeping, transportation, and return of those exhibits. The order must list the exhibits and briefly describe them. To the extent practicable, all the exhibits must be arranged in their listed order and bound firmly together before being sent to the appellate clerk. On any party's motion or its own initiative, the appellate court may direct the trial court clerk to send it any original exhibit.

All the Time in the World to Claim this Error

Many's the post in this blog that has emphasized the importance of preserving error before you can get it reversed in an appeals court. Texas Rule of Appellate Procedure 33. That is, generally, you must clearly inform the trial judge as to what your complaint is in time for the judge to correct the error. And if you do not do so, you cannot complain of the error on appeal. There is one huge exception to this rule, and that is a complaint that a court lacks subject-matter jurisdiction. We've already discussed the importance of making sure that the court you want to appeal to has subject-matter jurisdiction of your case. , a complaint you can make at any time up to the mandate's becoming final--even then, a habeas corpus writ complaining of it would likely prevail. The same principle applies to if it the trial court that lacked jurisdiction.

There is a story about this point of law. I believe it to be apocryphal.

 As a general rule, the people who have been arrested in the last 24 hours are brought before a judge, usually called a magistrate,

• One job of the magistrate is to listen to one or more prosecutors explain why the State believes the accused probably committed an offence and what offence the State believes it is. This is practically always a pure formality. An arresting officer gets approval to arrest and a designated charge from talking with a prosecutor from the scene of the arrest over radiophone.
• The magistrate also reads the accused his or her rights again.
• Magistrate sets bond or makes a finding that no bond will be set.
• Magistrate asks the accused if he or she claims to be indigent, and, if so, sets up the process for the accused to be interviewed to determine whether or not the accused is eligible for counsel to be appointed at no charge to the accused.

The accused who show up are often a motley crew, often in clothes not washed in days, many of them still drunk from the night before, many marked with the wounds of barroom battles or forceful arrests. And on this particular morning, there are one particularly, loud, obstreperous drunken man. He wouldn't follow the deputies' directions, and he yelled during other peoples' proceedings, and he started scuffles with the other accused people. Finally, the judge,whose main duties involved holding traffic court,  had had enough. He had the bailiffs bring this guy in front of the bench, where, upon hearing of what the man had done the night before--being publically intoxicated somewhere-- the judge pronounced upon him the death penalty, which subdued the fellow, head still spinning from a night of Thunderbird wine.

This is a joke. The trial judge would not have pursued the punishment he pronounced. But the lawyer for the anti-social Thunderbird person's complaint that the court did not have subject-matter jurisdiction for the judgment, could never be held to be too late as long as the accused was still alive.

Who Has a Right to Appointed Counsel at Trial in Texas and in Federal Court?

American criminal defendants threatened with jail in either federal or state proceedings are supposed to have counsel appointed for them if they can cannot afford an attorney themselves. Gideon v. Wainwright, 372 U.S. 335 (1963). Convicts who are too poor to afford a lawyer who do not formally waive their right to one will have their cases reversed. This used to be a common problem with old prior convictions, but you are unlikely to encounter a case 50 years old or more that has not been challenged for Gideon error by now any more. Also those indigents adjudged sexually violent predators in Texas. Tex. Health & Safety Code sec. 841.005. In a suit filed by a Texas governmental entity in which termination of the parent-child relationship is requested, the court has to appoint an attorney ad litem to represent the interests of:

1. an indigent parent of the child who responds in opposition to the termination;
2. a parent served by citation by publication;
3. an alleged father who failed to register with the registry under Texas Family Code chapter 160 and whose identity or location is unknown;  and
4. an alleged father who registered with the paternity registry under Texas Family Code Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.

Tex. Fam. Code Ann. sec. 107.103.

This is an important rule because in a world where there is less and less sure-fire reversible error-- this is the real thing.

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.