Hypothesis: The right to a fair trial includes the right to appeal 19 July A.D. 2013

Subj: Hypothesis: The right to a fair trial includes the right to appeal

19 July A.D. 2013

A matter for research, as the time avails itself, which is "not today,"
is this.

In the present rulings for the "federal" (as in national) system is the
notion that there is no such thing as a "right" to an appeal.

That notion having come up recently regarding the prospective review of
the Foreign Intelligence Surveillance Court rulings, it has retriggered
some considerable amount of reflection.

A right that is well-established is the "right to a fair trial."

How, though, is that right "protected?"

There has to be a Record, for example.  So, it makes sense that part and
parcel of the "right to a fair trial" is the "right" to the Record. 
(This is fundamentally at issue where the defendant can't afford to pay
for the Transcripts.)

But, really and truly, of what possible value is a Record without an
appellate court sitting in review?

As for the FISC rulings, if there's no "trial," then the direct
application of this thinking to that issue doesn't exist.  But, if there
are adversarial proceedings, then we're talking "trials," thus also
Records, or else the notion of a "fair trial" is not part and parcel of
that "secret court" system.

The right to a fair trial, while not associated with appeal at the
origin of the concept, probably wasn't what it should be when it
started.  In other words, was there really a "right to a fair trial"
where there wasn't also a "right to an appeal?"

We find in Scripture the instructions and advice by Jethro to Moses
regarding the structure of the judicial branch.  In the Midianite model
under Jethro, there were the trial courts over the smaller matters and
the trial courts over the larger matters and ultimately, then, a
presentation of the case to  some final decision-maker. This is the
model that Jethro proposed to Moses, so that Moses would be that high
court Justice entering the final ruling rather than the trial court
Judge for all matters.  However we look at that, it sure looks like an
appellate process.  Where Scripture is the source for the Common Law,
which is the foundational "choice of law" on which this nation was
founded (circa 1620), and where the model for the judicial branch is
plainly set forth with the notion of review, whether that's by "trial de
novo" or what we'd consider today to be an "appeal on the Record," which
are, arguably, two different things, the end result is that the notion
of trial always included the notion of review.

There's a difference between an appeal and a discretionary review. The
appellate courts exist for the appeal, and the high courts exist for the
discretionary review.  Discretionary review is just that,
discretionary.  But, the appeal isn't and shouldn't be "discretionary,"
or even subject to non-existence, as we may be finding as the policy of
the FISC.

The entire point about a "fair trial" is that to know whether what
happened constitutes a fair trial or not necessitates the associated
right of review, in the nature of an appeal.

This, then, is the hypothesis:  The right to a fair trial necessarily
also compels recognition of the right to an appeal.  The U.S. judicial
system, per Title 28, does not presently recognize a "right" of appeal,
which, in the context of this discussion, seems "unfair" and out of
place.  It seems curiously inconsistent.  That leaves review as
"discretionary," as if an appeal were as "discretionary" as the
"discretionary review."

If the Brits clobbered the appeal for whatever reason by the time we
separated from that system, should that "corruption" of the original
standard implemented by Moses still pass as the prevailing policy?

It may very well be the case that as of the separation from Great
Britain, there truly was no "right" to an appeal.  But, if not, then
there truly was/is no "right" to a fair trail, for without the
associated appeal of that trial, who's to say that what happened at
trial was "fair" or not?

For there to be a fair trial, there must also be an appeal.  The latter
is a necessary by-product of the former, and the former can't possibly
exist without the latter.

We start, then, with the hypothesis.  We then see where this leads.

Harmon L. Taylor
Legal Reality
Dallas, Texas

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