This week Whitey Bulger’s lawyers argued the appeal of his conviction on 31 federal charges stemming from the mayhem he perpetrated as the leader of the Winter Hill crime syndicate.  They had a mere 15 minutes to make his case in front of three judges from the United States Court of Appeals for the First Circuit in Boston. Bulger remained locked up in Florida, miles away from the dignified atmosphere in which his fate was being discussed. What a difference from the hubbub of his 35-day trial in 2013, a proceeding marked by outbursts from Bulger and the entry of more than a thousand exhibits into evidence. Does Bulger have a chance of winning on appeal?  The odds are against him.  Here’s why: 

This part of the process, known as the direct appeal, is a challenge to the trial itself. The defense team files a written brief that alleges errors occurred at trial; the prosecution responds; then the defense may reply to the government’s submission. Eventually the appeal is heard in open court, as happened this week with Bulger in the First Circuit. But the briefs are where the appellate action lies; judicial chambers where decisions are made. 

The direct appeal surfaces in most criminal cases after a defendant is convicted at trial. And it will emerge soon enough in other notorious trials of recent vintage, namely those of Dzokhar Tsarnaev and Aaron Hernandez.  Three things are contrary to the popular imagination when it comes to the direct appeal: the scope of the issues recognized on appeal is limited; convictions are seldom reversed on a technicality, and the process is not endless.

First, defendants in general may only raise issues on appeal that were previously addressed by the trial court. Defendants may argue that the trial judge improperly excluded evidence, overruled an objection, or otherwise made a poor decision. What they may not do is introduce new evidence or solicit witness testimony. Appeals courts look back, not ahead, and often refuse to entertain any claims of error related to topics that were not vetted at trial.

Second, it is extremely difficult to persuade a court to reverse a conviction and order a new trial.  The presumption of innocence has vanished. Even when a prisoner convinces a panel of appellate judges that an error occurred at trial that event does not necessarily produce a new trial because of something known as the harmless error doctrine. An appeals court will usually only overturn a conviction after it finds the mistake was not harmless in the context of the evidence as a whole—that it possibly influenced the outcome. If the evidence against the defendant at trial was overwhelming, then an appeals court may very well label an error as harmless. Consider the sports phrase “no harm, no foul.” Judges will blow the whistle on appeal if the trial error was significant, but otherwise let the conviction stand.

Third, the appellate process has boundaries. If Bulger’s convictions are affirmed by the First Circuit, he may then implore the Supreme Court to take the case. Yet the nation’s highest court—by both choice and necessity—grants these requests sparingly. Next, Bulger could file a petition back in federal trial court based on the ancient writ of habeas corpus. In a habeas action, a defendant may present novel claims, even put forth newly discovered evidence. But there are many restrictions, including obstacles on filing multiple petitions and appealing a lower court’s denial of a particular one. State post-conviction procedures vary somewhat from their federal analogues, but basically follow the same roadmap.

In short, there are not infinite appeals for those convicted of crimes in this country. And the appellate opportunities that do exist are rife with procedural potholes. Whitey Bulger may have had his last fifteen minutes of fame.

Daniel S. Medwed is Professor of Law at Northeastern University School of Law and a Legal Analyst for WGBH News.