Members of the state and federal appeals courts based in Denver spoke to attorneys on Friday about strategies for properly litigating criminal appeals, including how to make arguments based on body-worn camera footage.

Justice Brian D. Boatright, Judge Karl L. Schock of the Court of Appeals and Judge Gregory A. Phillips of the U.S. Court of Appeals for the 10th Circuit told lawyers the best strategy for criminal appeals is to be up front with the court about the unpleasant facts. 

“We had a case before our court a couple of years ago with the sale of body parts,” said Phillips, a former attorney general for Wyoming. “And an effective strategy in that case was for the defense to stipulate to certain facts. Obviously, not very pleasant ones. … Just agree with the facts and move on.”

Boatright recalled reading a case where the prosecution and the defense characterized the underlying crime completely differently.

“Remember who you’re writing for. If you’re writing for your client, ‘This is his best version of what happened,’ it’s probably not effective,” he said.

Schock, a former U.S. Department of Justice attorney, added that in many cases, the severity of the crime may have no bearing on the alleged error being litigated on appeal.

“It’s always interesting. I saw this when I was practicing, too: You always have the defense writing their brief and it talks about all of the difficult life that the defendant had and all the mitigating things that happened in this crime,” he said. “And the prosecution comes out and talks about how severe the crime was and how gruesome everything was. And the issue was, like, some hearsay testimony.”

The judges spoke at the annual Appellate Practice Update sponsored by the Colorado Bar Association.

Schock further advised that defense lawyers should avoid litigating numerous issues and instead focus on the relatively strong ones. If one of the issues is “cumulative error” — the idea that several errors, while individually benign, undermined the fairness of the trial in combination — Schock told lawyers to make the appeal about that.

“‘Why did this one affect this one affect this one?’ That’s a much stronger cumulative error argument than, ‘There were a lot of errors,'” he said.

Boatright acknowledged he was “not a huge fan” of the concept of “plain error,” which applies when appellate courts are reviewing an alleged error that garnered no objection in the trial court when it occurred. A plain error is one that affects a defendant’s “substantial rights” and is so obvious that a trial judge should intervene even without an objection.

“I envision myself as a trial court judge going, ‘Whoa, stop!'” said Boatright, a former Jefferson County judge. He elaborated that he encountered moments in which a prosecutor was using inflammatory rhetoric, but the defense attorney made no objection.

“Because they would much rather have the trial court judge jump in and admonish the prosecutor than object. I’m always wondering, ‘Is this a strategy?'” Boatright added.

The judges agreed they found body-worn camera footage and other video useful when reviewing some legal questions — like whether police neglected to warn a suspect of their Miranda rights.

“It’s like a flashback. I’ll watch the video because I feel it gives you so much more of a feel for what’s going on,” said Boatright.

“‘Was a person in custody?’ for example. Let’s see exactly what it looked like. ‘Was there police coercion in interrogation?'” said Schock. “Things where seeing it really matters.”

Phillips added that the proliferation of body-worn cameras is “one of the best developments” for both sides, in that it can deter bad behavior. It also puts reviewing judges “right on the roadside.”

“One statistic that I think would astonish you is how many times we watch those videos. Watch them over and over and over. And we see things that don’t come up in the briefs that maybe should have. We watch them more than counsel sometimes,” he said. “It’s a second-by-second thing. Intonation. Facial expressions.”

Finally, Phillips said his court is “very open” to redacting information from briefs or even barring the public from attending certain oral arguments. He recalled an instance where the courtroom was cleared for a case involving a juvenile sex offender and other instances where there was a credible belief someone may be harmed.

“What does that mean? A lot of the time it’s a government cooperator,” he said. “Nobody wants someone getting hurt for cooperating.”

Boatright said the state Supreme Court has never closed its courtroom during an argument, but it recently heard a request to avoid using certain parties’ names, even though the case had been litigated throughout the lower courts under everyone’s full identities.

“By the time it gets to our court, is the cat already out of the bag?” he said.