Why Criminal Appeals Are Rarely Successful

On February 17, 1970, a pregnant Colette MacDonald and her two young daughters, 5-year-old Kimberley and 2-year-old Kristen, were brutally murdered at their home in Fort Bragg, N.C.

Jeffrey MacDonald, Colette’s husband and the girls’ father, was injured in the attack, but ultimately survived. MacDonald, then a 26-year-old surgeon in the U.S. Army, claimed that a woman and three men had killed his family. 

But investigators didn’t buy MacDonald’s story. Instead, they argued he had slaughtered his wife and children, then staged the scene to look like a Charles Manson-inspired copycat killing. 

MacDonald was ultimately convicted and sentenced to three consecutive life sentences, but he has continued to maintain his innocence, filing numerous appeals over the ensuing decades.

The courts have repeatedly rejected his requests for a new trial or compassionate release, and MacDonald remains incarcerated at the Federal Correctional Institution in Cumberland, Md. 

His case, which has played out over more than five decades, highlights a difficult truth about the American criminal justice system: The majority of appeals fail.

Defendants often think they can win an appeal simply because they are innocent, but the courts usually opt to defer to earlier rulings unless they uncover a legal error that might have affected the outcome of the case. 

The exact rate varies by jurisdiction and year. But in 2010, for example, state appellate courts reversed, remanded or modified trial court decisions in just 12% of the total appeals attempted that year, according to statistics provided by the U.S. Department of Justice. 

“When a criminal defendant is convicted at trial, many people assume the next step is an appeal and that an appeal is simply another chance to argue the case,” Benjamin Levine, managing partner and founder of Benjamin Levine Law, tells A&E Crime + Investigation. “In reality, the appellate process is far more limited, technical and risky than most people realize.”

Unless waived as part of a plea agreement, most defendants in the United States have the right to appeal a criminal conviction. The appellate process is intended to serve as an important safeguard, to help promote fairness and accountability in the justice system. However, appeals are far from straightforward, and experts say they are frequently misunderstood.

Defendants and members of the public alike often mistakenly assume that appeals function as do-overs—a second opportunity to relitigate the case and challenge the prosecution’s evidence. But, broadly speaking, a criminal appeal is not a retrial, according to Levine. 

“Appellate courts do not re-hear testimony, reassess witness credibility or reweigh evidence the way a jury or trial judge does,” he adds.

Instead, appellate judges focus on whether the trial court made some sort of legal mistake—for example, misapplying a statute, admitting improper testimony or evidence, or providing incorrect or misleading jury instructions. To succeed on appeal, a defendant must show the trial court committed an error of law and, crucially, that the error affected the outcome of the case. 

Many appeals are dismissed outright because they fail to meet procedural requirements—for example, they were filed too late—or because they raise legal issues that have already been settled by existing law, according to Levine. In some instances, an appellate court might agree that a legal error occurred but conclude that it had no effect on the outcome of the trial, ultimately affirming the trial court’s decision, Levine adds.

“The appellate court only cares if the legal process worked the way it should,” Robert Tsigler, a New York criminal lawyer, tells A&E Crime + Investigation. “[Appeals] deal with procedural fairness, instead of looking for the absolute truth of the crime.”

When successful, an appellate court might grant a defendant a new trial or a new sentencing hearing, which could lead to an acquittal or a more lenient punishment. 

When Hamza Muhammad appealed his 2018 murder conviction, for instance, an appellate court granted him a new trial because it determined spectators had been unconstitutionally barred from the courtroom during his first trial. Muhammad ultimately agreed to plead guilty to a lesser charge—second-degree criminal possession of a weapon—which resulted in a 12-year prison sentence, rather than the original 40-year sentence.

But defendants often fail to consider that appeals can have several potential drawbacks. They’re typically expensive and time-consuming, and they can reopen painful memories, extend uncertainty and delay a sense of closure for everyone involved. 

Appeals can also have unintended consequences, such as new or more serious charges being filed on retrial, a better prosecution strategy or, possibly, a harsher sentence. These risks aren’t just theoretical either. In the case of Laura Ashley Hall, who was convicted in 2007 of tampering with physical evidence and hindering the apprehension of murderer Colton Pitonyak in connection with the 2005 killing of Jennifer Cave in Austin, Texas.

Hall, who has maintained her innocence, was originally sentenced to five years in prison for her involvement with the gruesome crime. When she appealed, an appellate court upheld the initial conviction but granted her a new sentencing trial. 

In the end, however, her decision to appeal backfired: In 2010, a jury sentenced her to 10 years in prison—the maximum sentence—for tampering with evidence, as well as a one-year concurrent sentence for hindering apprehension. 

“Appeals can carry real strategic risks,” Levine says.