I think Grant is on five year probation……….serving three five years probations concurrently. About the double jeopardy situation raised again…………..I earlier expressed my concerns about them throwing the book at him with more charges, or new charges which could lead to more time. Let us take worst case scenario in the context of what senoirjudge raised which is valid. Even if he was found guilty on the same charges again, the sentencing guidelines would not ignore the fact that he served the maximum already in hard time. He would be sentenced to time already served in 90% of cases if not all. But the risk is in new charges or tagged charges which could lead to him being found guilty for more offenses or more serious offenses leading to more jail time than before……..then sending him to jail again. Again only an experience appellate lawyer can best advice you based on all relevant evidence and appellate law.
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Shoplifting, Larceny, Robbery, Theft Complex double Jeopardy issue
- Thread Starter Dave_H_23
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seniorjudge
New Member
Yes and maybe.
Remember, it was your son who wanted the new trial. He got his old case thrown out which means it never happened (at his request). Legally, you start over again.
That means there is no double jeopardy issue. (That's what your son wanted.)
He may or may not come off better.
seniorjudge,
I do understand that there's no double jeopardy issue about the retrial, but there's a double jeopardy issue about the punishment. I found this on Findlaw. It's a US Supreme Court case: NORTH CAROLINA v. PEARCE, 395 U.S. 711 (1969)
Unless there's been a case that changed this, I would think this would be a precedent.
Here's the appropriate part:
"We turn first to the more limited aspect of the question before us - whether the Constitution requires that, in computing the sentence imposed after conviction upon [395 U.S. 711, 717] retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction.
I.
The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. 8 It protects against a second prosecution for the same offense after acquittal. 9 It protects against a second prosecution for the same offense after conviction. 10 And it protects against multiple punishments for the same offense. 11 This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168:
"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule's] entire and complete protection of the party [395 U.S. 711, 718] when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.
. . . . .
". . . [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it." Id., at 173.
We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years' imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years' imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed. 12
We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully [395 U.S. 711, 719] "credited" 13 in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned - by subtracting them from whatever new sentence is imposed. ""
(Bold added by me.)
What do you think?
-Dave H.
I do understand that there's no double jeopardy issue about the retrial, but there's a double jeopardy issue about the punishment. I found this on Findlaw. It's a US Supreme Court case: NORTH CAROLINA v. PEARCE, 395 U.S. 711 (1969)
Unless there's been a case that changed this, I would think this would be a precedent.
Here's the appropriate part:
"We turn first to the more limited aspect of the question before us - whether the Constitution requires that, in computing the sentence imposed after conviction upon [395 U.S. 711, 717] retrial, credit must be given for time served under the original sentence. We then consider the broader question of what constitutional limitations there may be upon the imposition of a more severe sentence after reconviction.
I.
The Court has held today, in Benton v. Maryland, post, p. 784, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. 8 It protects against a second prosecution for the same offense after acquittal. 9 It protects against a second prosecution for the same offense after conviction. 10 And it protects against multiple punishments for the same offense. 11 This last protection is what is necessarily implicated in any consideration of the question whether, in the imposition of sentence for the same offense after retrial, the Constitution requires that credit must be given for punishment already endured. The Court stated the controlling constitutional principle almost 100 years ago, in the landmark case of Ex parte Lange, 18 Wall. 163, 168:
"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule's] entire and complete protection of the party [395 U.S. 711, 718] when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.
. . . . .
". . . [T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it." Id., at 173.
We think it is clear that this basic constitutional guarantee is violated when punishment already exacted for an offense is not fully "credited" in imposing sentence upon a new conviction for the same offense. The constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence after reconviction. Suppose, for example, in a jurisdiction where the maximum allowable sentence for larceny is 10 years' imprisonment, a man succeeds in getting his larceny conviction set aside after serving three years in prison. If, upon reconviction, he is given a 10-year sentence, then, quite clearly, he will have received multiple punishments for the same offense. For he will have been compelled to serve separate prison terms of three years and 10 years, although the maximum single punishment for the offense is 10 years' imprisonment. Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed. 12
We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully [395 U.S. 711, 719] "credited" 13 in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned - by subtracting them from whatever new sentence is imposed. ""
(Bold added by me.)
What do you think?
-Dave H.
mafioso,
Thanks for the info about Grant. At least she didn't get prison time...
I am concerned about the new, more serious, tagged charges you are talking about regarding my son's retrial. Are you sure that can be done? Can you show me something? If we had known about that, we never would have gone through with the appeal.
Thanks,
-Dave H.
Thanks for the info about Grant. At least she didn't get prison time...
I am concerned about the new, more serious, tagged charges you are talking about regarding my son's retrial. Are you sure that can be done? Can you show me something? If we had known about that, we never would have gone through with the appeal.
Thanks,
-Dave H.
CdwJava
Moderator
On an anecdotal note, I have seen that time served previously has been subtracted from the current (new) imposed sentence. But, that may be an element of CA's interpretation of law and may not hold true elsewhere.
- Carl
- Carl
Hi Dave,
Let's try to delve into appellate law a bit given your questions and request for specific cases and rulings…………I would provide what I can find and add more specific cases which illustrates what Carl(cdwjava) was talking about. Tagging of more charges is possible but must meet certain standards in other not to be considered double jeopardy. An appellate case would require that the defendant be retried only for what the higher court overturned if the prosecution chooses to….if your son had not served the maximum time. If the court required a completely new trial for all the counts including what he was acquitted of, he could be found guilty of all charges in the new trial(just saying is a possibility) leading to additional time in jail even if credit is given for time served. For tagging of new charges separately or during a new trial or after new discovery(new evidence or witness), the prosecutors new charges and evidence must meet the following conditions( I would paste them below in several post……….they are different conditions and questions the court must answer before the new charges can proceed……they are quite long. I would past them in several posts):
The first thing to know about your state before we analyze what I mentioned above is what your state interpretation of double jeopardy is……….from enotes….
ILLINOIS: The protection against double jeopardy afforded by the Illinois Constitution is no greater than that provided by the U. S. Constitution (see People v. Ortiz, 196 Ill.2d 236, 752 N.E.2d 410, 256 Ill.Dec. 530 (Ill. 2001); U.S.C.A. Const.Amend. 5; S.H.A. Const. Art. 1, § 10).
Okay back to the things the court must sort before tagging can occur…….if statutes are still valid…. For tagging of new charges separately or during a new trial or after new discovery, the prosecutors new charges and evidence must meet the following conditions( I would paste them below in several post……….they are different conditions and questions the court must answer before the new charges can proceed……they are quite long. I would past them in several posts):
Let's try to delve into appellate law a bit given your questions and request for specific cases and rulings…………I would provide what I can find and add more specific cases which illustrates what Carl(cdwjava) was talking about. Tagging of more charges is possible but must meet certain standards in other not to be considered double jeopardy. An appellate case would require that the defendant be retried only for what the higher court overturned if the prosecution chooses to….if your son had not served the maximum time. If the court required a completely new trial for all the counts including what he was acquitted of, he could be found guilty of all charges in the new trial(just saying is a possibility) leading to additional time in jail even if credit is given for time served. For tagging of new charges separately or during a new trial or after new discovery(new evidence or witness), the prosecutors new charges and evidence must meet the following conditions( I would paste them below in several post……….they are different conditions and questions the court must answer before the new charges can proceed……they are quite long. I would past them in several posts):
The first thing to know about your state before we analyze what I mentioned above is what your state interpretation of double jeopardy is……….from enotes….
ILLINOIS: The protection against double jeopardy afforded by the Illinois Constitution is no greater than that provided by the U. S. Constitution (see People v. Ortiz, 196 Ill.2d 236, 752 N.E.2d 410, 256 Ill.Dec. 530 (Ill. 2001); U.S.C.A. Const.Amend. 5; S.H.A. Const. Art. 1, § 10).
Okay back to the things the court must sort before tagging can occur…….if statutes are still valid…. For tagging of new charges separately or during a new trial or after new discovery, the prosecutors new charges and evidence must meet the following conditions( I would paste them below in several post……….they are different conditions and questions the court must answer before the new charges can proceed……they are quite long. I would past them in several posts):
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What Constitutes the Same Offense
The final question courts must resolve in double jeopardy litigation is determining whether successive prosecutions or punishments are for the "same offense." Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to re-prosecute a defendant or impose multiple punishments.
At common law a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But over the last fifty years the proliferation of overlapping and related offenses has made it possible for the government to PROSECUTE someone for several different crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, KIDNAPPING, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.
The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. Blockburger requires courts to examine the elements of each offense as they are delineated by STATUTE, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that each offense has at least one mutually exclusive element. If any one offense is completely subsumed by another, such as a lesser included offense, the two offenses are deemed the same, and punishment is allowed only for one.
The final question courts must resolve in double jeopardy litigation is determining whether successive prosecutions or punishments are for the "same offense." Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to re-prosecute a defendant or impose multiple punishments.
At common law a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But over the last fifty years the proliferation of overlapping and related offenses has made it possible for the government to PROSECUTE someone for several different crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, KIDNAPPING, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.
The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. Blockburger requires courts to examine the elements of each offense as they are delineated by STATUTE, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that each offense has at least one mutually exclusive element. If any one offense is completely subsumed by another, such as a lesser included offense, the two offenses are deemed the same, and punishment is allowed only for one.
Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But several other methods have been used by courts to determine whether successive prosecutions are for the same offense. COLLATERAL ESTOPPEL, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men at a poker game when a jury had already acquitted him of robbing another one of the six. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, the government here was not allowed to rehearse its case and secure a conviction against a person already declared not guilty of essentially the same crime.
The "same transaction" analysis is another means by which courts determine whether successive prosecutions will survive constitutional scrutiny. It requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.
Both state and federal courts have employed the "actual evidence" test to preclude successive prosecutions for a single offense. Unlike Blockburger, which examines the STATUTORY elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced by the prosecution at the second trial. Criminal offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.
Under the "same conduct" analysis the government is forbidden from twice prosecuting an individual for the same criminal behavior, regardless of the actual evidence introduced during trial and regardless of the statutory elements of the offense. For example, this analysis has been applied to prevent prosecuting someone for vehicular HOMICIDE resulting from drunk driving, when the defendant had been earlier convicted for driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's NEGLIGENCE without proof of his INTOXICATION. The U. S. Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.
My advice to you is to let an experienced appellate lawyer advice on your next step after review the whole case……..Don't just give Dave………..You have seem to have the fire necessary for such case.
The "same transaction" analysis is another means by which courts determine whether successive prosecutions will survive constitutional scrutiny. It requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.
Both state and federal courts have employed the "actual evidence" test to preclude successive prosecutions for a single offense. Unlike Blockburger, which examines the STATUTORY elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced by the prosecution at the second trial. Criminal offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.
Under the "same conduct" analysis the government is forbidden from twice prosecuting an individual for the same criminal behavior, regardless of the actual evidence introduced during trial and regardless of the statutory elements of the offense. For example, this analysis has been applied to prevent prosecuting someone for vehicular HOMICIDE resulting from drunk driving, when the defendant had been earlier convicted for driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's NEGLIGENCE without proof of his INTOXICATION. The U. S. Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.
My advice to you is to let an experienced appellate lawyer advice on your next step after review the whole case……..Don't just give Dave………..You have seem to have the fire necessary for such case.
To cover the examples Carl (cdwjava) was talking about………..that is potential for more time if your son is convicted of all the charges if the appellate court required a completely new trial for all the charges. You can read more details of each of the cases below from any law journal site you have membership to……or try searching online.
North Carolina v. Pearce, 395 U.S. 711, 720 (1969) (no double jeopardy violation when retrial resulted in imposition of three-year increase in sentence); see U.S. v. Perez, 904 F.2d 142, 148-50 (2d Cir. 1990) (no double jeopardy violation when significant new evidence in retrial resulted in imposition of 10 to 27 year increases in sentences); Rock v. Zimmerman, 959 F.2d 1237, 1257-58 (3d Cir. 1992) (no double jeopardy violation when retrial resulted in imposition of additional life sentences because judge imposing second sentence taking "fresh look at the relevant facts and exercising an independent judgment" presumed not based on vindictiveness); U.S. v. Bello, 767 F.2d 1065, 1070 (4th Cir. 1985) (no double jeopardy violation in increasing surviving sentence on retrial because no expectation of finality in sentence after defendant challenged entire sentencing scheme as including cumulative punishments for lesser-included offenses); Gauntlett v. Kelley, 849 F.2d 213, 219 (6th Cir. 1988) (no double jeopardy violation when defendant resentenced to five to IS years imprisonment after successful appeal of original sentence of five years probation because only legality of initial sentence challenged, and defendant on notice that appeal could lead to more severe sentence); U.S. v. Templeman, 965 F.2d 617, 620 (8th Cir. 1992) (no double jeopardy violation in receipt of 108-month sentence following appeal and retrial for charges originally resulting in 60-month sentence under provisional guilty plea); Osborn v. Shillinger, 997 F.2d 1324, 1329 (lOth Cir. 1993) (no double jeopardy violation when retrial after guilty plea resulted in additional consecutive life sentence; judge more likely motivated by vivid murder testimony than vindictiveness).[1] find article…source.
North Carolina v. Pearce, 395 U.S. 711, 720 (1969) (no double jeopardy violation when retrial resulted in imposition of three-year increase in sentence); see U.S. v. Perez, 904 F.2d 142, 148-50 (2d Cir. 1990) (no double jeopardy violation when significant new evidence in retrial resulted in imposition of 10 to 27 year increases in sentences); Rock v. Zimmerman, 959 F.2d 1237, 1257-58 (3d Cir. 1992) (no double jeopardy violation when retrial resulted in imposition of additional life sentences because judge imposing second sentence taking "fresh look at the relevant facts and exercising an independent judgment" presumed not based on vindictiveness); U.S. v. Bello, 767 F.2d 1065, 1070 (4th Cir. 1985) (no double jeopardy violation in increasing surviving sentence on retrial because no expectation of finality in sentence after defendant challenged entire sentencing scheme as including cumulative punishments for lesser-included offenses); Gauntlett v. Kelley, 849 F.2d 213, 219 (6th Cir. 1988) (no double jeopardy violation when defendant resentenced to five to IS years imprisonment after successful appeal of original sentence of five years probation because only legality of initial sentence challenged, and defendant on notice that appeal could lead to more severe sentence); U.S. v. Templeman, 965 F.2d 617, 620 (8th Cir. 1992) (no double jeopardy violation in receipt of 108-month sentence following appeal and retrial for charges originally resulting in 60-month sentence under provisional guilty plea); Osborn v. Shillinger, 997 F.2d 1324, 1329 (lOth Cir. 1993) (no double jeopardy violation when retrial after guilty plea resulted in additional consecutive life sentence; judge more likely motivated by vivid murder testimony than vindictiveness).[1] find article…source.
mafioso,
Thank you for the info. I'm not sure I understand some of it, but it appears that there's "wiggle room" on issues that appear to me to be cut and dry. That is so typical. I really can't fathom that one could be acquitted of a charge by a jury and then have to face the same charge again, but I think this is what you are telling me is possible. That seems to absolutely fly in the face of double jeopardy protection.
The state appellate defender really should have informed us of the risks. We asked.
As far as having an appellate attorney look over the case, we don't have the money. We already spent $40K on private defense attorneys.
We're hoping they will offer my son some sort of deal, but this was (is?) what you guys call a heater case and nothing went the usual way. It always just went badly for us. There was big money and political power pressing the prosecution. They even manipulated the press. This all makes me very concerned about what they're going to do now.
Anyway, thank you for your help. I really appreciate it.
-Dave
Thank you for the info. I'm not sure I understand some of it, but it appears that there's "wiggle room" on issues that appear to me to be cut and dry. That is so typical. I really can't fathom that one could be acquitted of a charge by a jury and then have to face the same charge again, but I think this is what you are telling me is possible. That seems to absolutely fly in the face of double jeopardy protection.
The state appellate defender really should have informed us of the risks. We asked.
As far as having an appellate attorney look over the case, we don't have the money. We already spent $40K on private defense attorneys.
We're hoping they will offer my son some sort of deal, but this was (is?) what you guys call a heater case and nothing went the usual way. It always just went badly for us. There was big money and political power pressing the prosecution. They even manipulated the press. This all makes me very concerned about what they're going to do now.
Anyway, thank you for your help. I really appreciate it.
-Dave
seniorjudge
New Member
This is perfectly logical.
Your son wanted the new trial and he got it. Your son is the one who caused this; not the prosecution.
I suspect that he was not "acquitted" but rather that the case was reversed, meaning that the trial never happened.
This has happened frequently to folks who appeal and win and then have to go right back to jail.
Señor judge,
Thank you for sharing. Are you or were you ever a prosecutor? You sound like one. The comments you are making to me here are typical of how prosecutors think they can have it both ways. I saw one of your posts to a pregnant teenage girl saying something like, "Do you want us to give you permission to kill your baby?" To say that to a young girl who is struggling with a decision that will affect her for the rest of her life is just mean and crude. I thought this site was intended to provide help.
I know there are bad guys out there who need to be in prison. That being said, as you have seen from my posts in this thread I am very disturbed by the fact that at least some (and I fear most) prosecutors routinely suborn perjury, present false evidence, and ignore the oath they took to uphold the constitution. Again, just like a prosecutor, you ignore the facts and evidence that are staring you in the face. How do prosecutors build a murder case against someone who is later proven by DNA to be innocent? Logic tells us that the prosecutors must have been lying, fabricating evidence, purchasing testimony from jail house snitches, etc. so they can get the conviction and clear the case... all the while ignoring (and sometimes hiding) any evidence that would exonerate the accused.
So let's take your statements to me one by one...
This is perfectly logical.
I disagree, it is not logical (or fair) to be acquitted by a jury of a charge and then have to face the same charge from the same circumstances again. It's called double jeopardy.
Your son wanted the new trial and he got it. Your son is the one who caused this; not the prosecution.
If the prosecution had acted legally and in the interest of justice as they are mandated to do, we would not have persued the appeal. Therefore, the prosecution caused the appeal.
This is quoted from Paul Craig Roberts, former Assistant Secretary of the Treasury in the Reagan Administration:
"I have written often about wrongful convictions. We know that wrongful conviction is a serious problem when the advent of DNA evidence has led to the release of a significant number of innocent people who were convicted of murder and rape, and when a number of law schools feel that it is necessary for them to operate innocence projects that work for the release of the wrongfully convicted."
I suspect that he was not "acquitted" but rather that the case was reversed, meaning that the trial never happened.
Actually, as I stated earlier in this thread, at the end of the first trial, he was convicted of two counts and acquitted on one count. You can suspect whatever you want. It doesn't change the facts.
This has happened frequently to folks who appeal and win and then have to go right back to jail.
In the world of normal "folks" winning an appeal and possibly undoing a wrongful cinviction is a good thing. Prosecutors, though, take offense at anyone calling them on their sh_ _. They just reach into their bag of dirty tricks and "frequently" convict folks again to to teach them and everyone else a lesson. Unfortunately, the real lesson is that power corrupts and absolute power corrupts absolutely. Prosecutors in this country have way too much power and no effective oversite. They are corrupt.
Again from Paul Craig Roberts:
"...Prosecutors are like President Bush. They absolutely refuse to admit that they ever make a mistake and have to be forced to disgorge their innocent victims. Nothing makes a prosecutor more angry than to have to give back a wrongfully convicted person's life."
If one of us "folks" were to take an innocent person from their family and force them to live in an 8 X 8 cage, we'd be sentenced to many years in prison, maybe even executed. If a prosecutor does the same thing, they don't even get a slap on the wrist. I hope that someday prosecutors will be held accountable for their misdeeds because they, more than anyone else, know better yet they choose to do wrong.
Again, thanks for sharing, Señor.
-Dave H.
CdwJava
Moderator
But it is a truthful statement. Having an abortion WILL effect her for the rest of her life. Ask anyone who has had one. By the same token, NOT having the abortion will effect them as well ... though I doubt the regret and depression is quite as severe.
That's bull.
Some FEW MIGHT be like that, but I have never once met with a DA that either suborned or solicited perjury or anything they thought was phony or false. Even DAs I did not like have been honest in this regard.
Not at all!
In a SIMPLE hypothetical, let's say the state based it's case on eyewitness testimony and a theory of the crime that included the suspect in custody cutting his hand on a window trying to escape. Later, technology exists that allows for the testing of the blood on the window and they find it did not match the blood of the suspect in custody. Since the theory of the crime did not include an accomplice, the prevailing thought might be that they would have to acquit because of the weight of that blood evidence at trial ... even IF eyewitness or other evidence still pointed at the suspect in custody.
The fact that DNA "exonerates" someone does NOT mean that anything was done improperly at all. It means the prosecution's theory might have been wrong, but it does not necessarily imply that anyone did anything wrong.
If we were to make such leaps, then once could imply that if a jury acquits an accused suspect that the state wrongfully prosecuted him or someone/everyone lied. It just does not work that way.
That is not the case in this instance.
This was a reversal upon appeal, as I recall. That means he was NOT acquitted, the appellate court remanded the matter BACK to the trial court for a new trial.
I can't recall the grounds for the appeal and it being overturned, but unless it was based upon prosecutorial malfeasance, fingers might well be pointed at the original trial court for allowing or not allowing something in that in retrospect should have, or on the defense for not raising an issue that they should have.
Now, he has a new trial. If he gets a stiffer sentence upon a conviction, then "oops"!
It is not double jeopardy as the law defines it. And, ultimately, it is the legal definition of double jeopardy that applies and not what you or anyone else thinks it SHOULD be.
And a new trial could result in the same verdicts, or, all new verdicts. Depending on the laws of your state, all three counts may be back on the table. I suspect they will be.
That's an overly broad statement.
I guess I should say everyone convicted is guilty.
Try to avoid absolutes and name-calling - it diminishes your argument.
They are. You read about prosecutors and even judges getting hammered every week ... at least I do. Remember Mr. Nifong?
- Carl
seniorjudge
New Member
Dave, I think Carl summed everything up in an excellent manner (as usual).
No one here has any animosity towards you or your family.
We're just explaining the law.
No one here has any animosity towards you or your family.
We're just explaining the law.
Everyone looking for help in the criminal justice system,
I stand by everything I've said on this site.
There is really no help for most people caught up in the criminal justice system. Guilty OR innocent, they (prosecutors and judges) will gang up on you to convict you and spit you into prison. They'll generally be calm and collected while they ruin your life. They pride themselves in this. One of your defense counsel's main jobs is to keep you calm while this is happening. After all, it's all in a days work for all of them.
Unless you have a ton of money to spend on a criminal defense, the prosecution is just going to do what they're going to do to you. I don't think it matters a whole lot who you have defending you.
When your trouble is over, I urge you to help work on changing our broken criminal justice system. I know it's scary, and they're very good at beating us "folks" down, but I feel obligated to try to preserve the freedoms we've been handed down in this country.
Here are some places to start:
http://www.jail4judges.org/
http://www.americans4legalreform.com/
http://www.truthinjustice.org/index.htm
http://www.unknownnews.org/reference.html
And again, if you want to see what you're up against in the criminal justice system-
I wish you luck. You are going to need it now.
-Dave H.
I stand by everything I've said on this site.
There is really no help for most people caught up in the criminal justice system. Guilty OR innocent, they (prosecutors and judges) will gang up on you to convict you and spit you into prison. They'll generally be calm and collected while they ruin your life. They pride themselves in this. One of your defense counsel's main jobs is to keep you calm while this is happening. After all, it's all in a days work for all of them.
Unless you have a ton of money to spend on a criminal defense, the prosecution is just going to do what they're going to do to you. I don't think it matters a whole lot who you have defending you.
When your trouble is over, I urge you to help work on changing our broken criminal justice system. I know it's scary, and they're very good at beating us "folks" down, but I feel obligated to try to preserve the freedoms we've been handed down in this country.
Here are some places to start:
http://www.jail4judges.org/
http://www.americans4legalreform.com/
http://www.truthinjustice.org/index.htm
http://www.unknownnews.org/reference.html
And again, if you want to see what you're up against in the criminal justice system-
I wish you luck. You are going to need it now.
-Dave H.
seniorjudge
New Member
Here are some suggestions for your son.
He could plea bargain with the prosecutor: He'd plead guilty to something and the prosecutor would agree that he would get time served (even though what he served time on really didn't happen--legally speaking--because of your son's appeal).
This way everyone gets something: Your son spends no more time in the clink (even though he will have a record) and the prosecutor gets a conviction.
Your son could even ask for a suspended imposition of sentence (or whatever it is called in your state) which means that there will NOT be a conviction on your son's record as long as he kept out of trouble for a certain amount of time.
He could plea bargain with the prosecutor: He'd plead guilty to something and the prosecutor would agree that he would get time served (even though what he served time on really didn't happen--legally speaking--because of your son's appeal).
This way everyone gets something: Your son spends no more time in the clink (even though he will have a record) and the prosecutor gets a conviction.
Your son could even ask for a suspended imposition of sentence (or whatever it is called in your state) which means that there will NOT be a conviction on your son's record as long as he kept out of trouble for a certain amount of time.
seniorjudge
New Member
You're welcome.
To All:
One thing I let slide was that one of the lawyers who responded to me said that attorneys were always getting punished for their wrongdoing... that he sees it all the time. This is called spin. Lawyers do it all the time. A lot of the time the spin is really lying, but the lawyers are very seldom called on it...
This is quoted from PROSECUTORS WHO INTENTIONALLY BREAK THE LAW
by Angela J. Davis. The entire article can be viewed at:
https://www.wcl.american.edu/journa...lyBreaktheLaw-byProfessorAngelaDavis.pdf?rd=1
"...Ken Armstrong and Maurice Possley found the same lack of punishment and accountability in their 1999 study:
With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases. . . . They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
They do it to win. They do it because they won't get punished.75
Armstrong and Possley found that a number of the prosecutors not only totally escaped punishment or even a reprimand, but advanced in their careers.76 In the 381 cases they examined in which appellate courts reversed convictions based on either Brady violations or prosecutors knowingly allowing lying witnesses to testify, the courts described the behavior in terms such as "unforgivable," "intolerable," "beyond reprehension," and "illegal, improper and dishonest."77 Yet, of those cases:
One was fired, but appealed and was reinstated with back pay. Another received an in-house suspension of 30 days. A third
Spring 2006 22
prosecutor's law license was suspended for 59 days, but because of other misconduct in the case. [. . .] Not one received any kind of public sanction from a state lawyer disciplinary agency or was convicted of any crime for hiding evidence or presenting false evidence, the Tribune found. Two were indicted, but the charges were dismissed before trial.78
None of the prosecutors were publicly sanctioned or charged with a crime. It is unclear whether any were sanctioned by state bar authorities because these proceedings are not a matter of public record if the sanction was minor. Several of the offending prosecutors advanced significantly in their careers..."
One thing I let slide was that one of the lawyers who responded to me said that attorneys were always getting punished for their wrongdoing... that he sees it all the time. This is called spin. Lawyers do it all the time. A lot of the time the spin is really lying, but the lawyers are very seldom called on it...
This is quoted from PROSECUTORS WHO INTENTIONALLY BREAK THE LAW
by Angela J. Davis. The entire article can be viewed at:
https://www.wcl.american.edu/journa...lyBreaktheLaw-byProfessorAngelaDavis.pdf?rd=1
"...Ken Armstrong and Maurice Possley found the same lack of punishment and accountability in their 1999 study:
With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases. . . . They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.
They do it to win. They do it because they won't get punished.75
Armstrong and Possley found that a number of the prosecutors not only totally escaped punishment or even a reprimand, but advanced in their careers.76 In the 381 cases they examined in which appellate courts reversed convictions based on either Brady violations or prosecutors knowingly allowing lying witnesses to testify, the courts described the behavior in terms such as "unforgivable," "intolerable," "beyond reprehension," and "illegal, improper and dishonest."77 Yet, of those cases:
One was fired, but appealed and was reinstated with back pay. Another received an in-house suspension of 30 days. A third
Spring 2006 22
prosecutor's law license was suspended for 59 days, but because of other misconduct in the case. [. . .] Not one received any kind of public sanction from a state lawyer disciplinary agency or was convicted of any crime for hiding evidence or presenting false evidence, the Tribune found. Two were indicted, but the charges were dismissed before trial.78
None of the prosecutors were publicly sanctioned or charged with a crime. It is unclear whether any were sanctioned by state bar authorities because these proceedings are not a matter of public record if the sanction was minor. Several of the offending prosecutors advanced significantly in their careers..."
- Status
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