by Kristina “KK” Kersey, Sr. Youth Defense Counsel
Once upon a time, there was a curly-haired defender who hated having to play Go Fish about discovery before a transfer hearing:
“Prosecutor, do you have the statement from the store clerk mentioned in the police report?”
“No. Go fish. I don’t plan on using it at the hearing. And this is a preliminary hearing. Your client will get it after the transfer to adult court and indictment. Mwahahahahaha!” ::insert evil mustache twirl::
And this chapped the curly-haired defender’s hide and ruffled her feathers and got her goat and every other angry animal reference. So the curly-haired defender filed a motion, a Motion for Full and Complete Discovery Prior to a Transfer Hearing. And much to everyone’s surprise, including the curly- haired defender, the motion was granted! But instead of a giant packet of discovery landing on her desk, a Notice of Leave for Interlocutory Appeal arrived.
Font size and margins and font type and a pink or green cover page and nine copies and I am the Appellee or the Appellant? And who cares that much about Courier New? Answer: appellate attorneys do.
The fear of creating bad law and having to wander the earth like Dr. Frankenstein’s monster after being shunned by the defense community loomed large.
We waited years as the case snaked through the Appellate Division and the New Jersey Supreme Court. There were many times I worried I had made the wrong decision. And worse, that my client, N.H., who had trusted me completely, was shouldering the ramifications by having to sit, in custody, and wait. Is there anything that keeps us defenders up at night more?
But the New Jersey Office of the Public Defender’s Appellate Division did their thang and it all worked out: a unanimous decision by the New Jersey Supreme Court, opinion written by the Chief Justice, and some of my best amici showed up: Rutgers Law Criminal and Youth Justice Clinic, ACLU of New Jersey, Juvenile Law Center, and a little nonprofit you may have heard of, NJDC.
I recently had the pleasure of participating in NLADA’s storytelling appellate training and remembering how smart appellate attorneys are. I was also reminded of my teeny brush with appellate practice with N.H.1 and why we as frontline defenders should not just be concerned with appeals but be crushing on it hardcore. Appeals as New Kids on the Block. Scream and cry when you pass them in the hallway. Have them autograph your next brief. Like, actually have them weigh in about how you are setting up the record.
This February, make an appellate attorney your Valentine.
1. They are game changers.
Batson, Miranda, Kent, Gault, Simmons: those surnames all mean change, thanks to an appeal.
2. You build toward what you thought might not be achievable.
According to Westlaw, N.H. is cited 43 times in support of applications to expand the rights of a youth facing transfer.
3. You get breadcrumbs from the court about the path to victory.
“Moreover, this case does not properly present—and thus we do not consider—any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence.”2
So, you are saying there is a chance, SCOTUS.
4. I mean, you know you’re right, right?
Hey, some hills are worth dying on.
5. Impact litigation.
Brown v. Board of Education was a carefully selected case. You ain’t Thurgood Marshall, but have lunch with our appellate friends and find out what case they think might change the court’s mind in a big way.
6. It improves your trial practice: preserve the record!
Feel free to use a tip a former supervisor taught me: when a judge keeps rushing you and cutting you off, ask, “Are you precluuuuuding me from making a record?” It’s like judge kryptonite. Tell the others.
7. It keeps you humble.
Good golly, Miss Molly, reading a transcript of yourself in court? Dear Elite Transcripts, feel free not to include every one of my “umms.”
8. You are a pivotal part of the appellate team, even if someone else is counsel.
You might be the one explaining the process to the youth and their family. You can explain the trial-court process to the appellate attorney. You hold key facts and information.
Ya know every movie from the 80s where one character interacts with the other character who they don’t think they need in their life because they are so different? That’s us.
9. They are fancy AF.
At the trial level, it’s like Rocky. You’re out there chasing chickens and doing one-handed pushups. Sometimes you just wanna go the distance even if you don’t win. (That’s a lie, we always wanna win, but stay with me.)
Appeals are like the elaborate sword fight scenes from The Princess Bride. I’m pretty sure “may it please the court” loosely translates to “Hello, my name is Inigo Montoya. You killed my father. Prepare to die!”
10. We are all in the same gang.
There is no room for East Coast/West Coast beef. Plus, we have prosecutors to gang up on.
I guess I’m just a girl, standing in front of a computer, asking all appellate attorneys if they will accept this rose?
1 State in the Interest of N.H. 226 N.J. 242 (2016).
2 Jones v. Mississippi, 593 U.S._ (2021).