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Appeals, despite history, have limits

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© St. Petersburg Times, published December 6, 2000

I appeal unto Caesar.

-- the Apostle Paul

* * *

Hast thou appealed unto Caesar?

Unto Caesar thou shalt go.

-- Festus, Roman governor

* * *

The book of Acts is silent on whether the governor Festus later grumbled, once he had shipped Paul off to Rome, about a court system that allowed so many appeals.

"The empire is soft on crime," we might imagine the governor complaining to his visitor, Agrippa. "We need to crack down!"

But appeals of court rulings have been around as long as courts themselves. The oldest written law we know of, the Code of Hammurabi, included the right of appeal. Trial judges who made blunders were expected to resign and pay a fine. Contract disputes were settled "by the decision of the king."

The word "appeal" comes to us from both English and French ancestry. The word originally also meant "to accuse." An Englishman accused of treason could "appeal," or name others involved, to earn his pardon.

Part of our tradition of appeals is based on the idea that a freeman could ultimately take his case to the king.

"Justice was ultimately delivered by the sovereign, the monarch," says Joe Little, a University of Florida law professor. "Therefore, for a good long time, there was in English jurisprudence the notion that one had the right to have the king make the final decision."

It is an interesting question, Little says, as to whether we Americans have an iron-clad right of appeal. What would happen if a state actually decided, "One trial, no appeal whatsoever"? Little says the question has never been answered.

The true nature of an appeal is often misportrayed in our mass media culture. We treat appeals as a sort of instant replay, with each court freely second-guessing the one before.

But that is not accurate. A loser in court does not have an automatic right to have an appeal heard. Plenty of times -- in fact, most of the time -- a case settled at the trial level is over for good.

It is not valid grounds for an appeal to say, "I did not like the result of my trial." Neither is it enough to say, "The jury was wrong, I am innocent!"

In fact, a local trial court is the only court in Florida that can determine what the facts are in a case. The higher courts are limited to reviewing the case record -- the trial transcript, for example. They do not hear new evidence.

That's why appeals courts have been called "courts of error." Their job, in theory, is limited to deciding whether the lower court made a mistake about what the law says.

Even our highest state court, the Florida Supreme Court, is limited by our Constitution as to which cases it can hear. Some examples are death sentences, conflicting rulings of lower courts, cases of "great public importance," and so on.

"If the Supreme Court of Florida says it has no authority under Florida law," says Patrick Calcutt, a Pinellas lawyer who often does appeals work, "then that's the end of the line." Not even a federal court can jump in after that unless there is an issue of federal law.

Sorry for rambling on. My point was to show where we stand in the presidential race. The trial judge in Tallahassee has found, as a matter of fact, that the allegations of Vice President Al Gore are unsubstantiated. Gore now takes his appeal directly to the Florida Supreme Court, skipping the intermediate level of appeals courts because this is a case of "great public importance."

But the court cannot simply say, "We want Gore to be president, so he wins." To rule for Gore it must find an actual error of law committed by the trial judge. Absent that, and absent some miraculous new federal claim, this case is over. Even St. Paul's appeals ran out eventually, and look what happened to him. See, there are worse things than losing an election.

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