To Be A Coward
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So to be found guilty of the lesser charge, they needed two unanimous decisions, the first not guilty on the severe charge, and the second guilty on the less severe. That would depend on a jury that had very specific conclusions. Those instructions are idiotic, since the spirit of the law can be carried out by asking the jury to return a decision on at most one of the charges, of their choosing. The jury will then pick the most severe charge they agree on.
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Sorry, but it’s bullshit and removes much of the burden of proving guilt from the prosecution. What they are essentially saying is “we know he did something bad. You decide what he did.
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The instructions are definitely designed to maximize the chances of a guilty verdict on count 1. That's the judge's decision, and a very interesting one. I really hope this shit gets challenged and that it goes to SCOTUS. Judges shouldn't be putting their fingers on the scale for a certain verdict. If the prosecutor wants to present two different, mutually exclusive charges, then the jury can decide which they like better.
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The instructions are definitely designed to maximize the chances of a guilty verdict on count 1. That's the judge's decision, and a very interesting one. I really hope this shit gets challenged and that it goes to SCOTUS. Judges shouldn't be putting their fingers on the scale for a certain verdict. If the prosecutor wants to present two different, mutually exclusive charges, then the jury can decide which they like better.
@Horace said in To Be A Coward:
Judges shouldn't be putting their fingers on the scale for a certain verdict.
I agree, but you haven't watched enough trials.
Who can be called as witnesses, what evidence is excluded, and a ton of pre-trial hearings clearly can prejudice a case one way or another.
For example, again, in the Read case.
I've commented on the injuries on the cop's arm. The Commonwealth is alleging this is due to being struck by a Lexus SUV traveling 25 mph - in reverse. The defense is claiming these are bite marks from a large dog.
There is going to be a hearing whether to allow an ER doc to testify that these injuries were caused by a dog. This doc has written papers on dog bite injuries. She's seen hundreds of them. But the state wants to exclude her testimony, even though the judge allowed it during trial #1.
In the first trial, the judge did not allow interview notes by news media with the accused. Yesterday, same judge is allowing it.
The judge always has a thumb on the scales. Always.
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@Jolly said in To Be A Coward:
Bluntly?
It stinks.
Amen. It’s hedging the prosecution’s bet which is at least ethically questionable. If I were a juror he’d walk. We can’t have citizens afraid to act for fear of persecution based on social fads. They guy was a menace to the general public present and his death was a direct result of his own actions.
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@Jolly said in To Be A Coward:
Bluntly?
It stinks.
Amen. It’s hedging the prosecution’s bet which is at least ethically questionable. If I were a juror he’d walk. We can’t have citizens afraid to act for fear of persecution based on social fads. They guy was a menace to the general public present and his death was a direct result of his own actions.
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@Horace said in To Be A Coward:
Judges shouldn't be putting their fingers on the scale for a certain verdict.
I agree, but you haven't watched enough trials.
Who can be called as witnesses, what evidence is excluded, and a ton of pre-trial hearings clearly can prejudice a case one way or another.
For example, again, in the Read case.
I've commented on the injuries on the cop's arm. The Commonwealth is alleging this is due to being struck by a Lexus SUV traveling 25 mph - in reverse. The defense is claiming these are bite marks from a large dog.
There is going to be a hearing whether to allow an ER doc to testify that these injuries were caused by a dog. This doc has written papers on dog bite injuries. She's seen hundreds of them. But the state wants to exclude her testimony, even though the judge allowed it during trial #1.
In the first trial, the judge did not allow interview notes by news media with the accused. Yesterday, same judge is allowing it.
The judge always has a thumb on the scales. Always.
@George-K said in To Be A Coward:
@Horace said in To Be A Coward:
Judges shouldn't be putting their fingers on the scale for a certain verdict.
I agree, but you haven't watched enough trials.
Who can be called as witnesses, what evidence is excluded, and a ton of pre-trial hearings clearly can prejudice a case one way or another.
For example, again, in the Read case.
I've commented on the injuries on the cop's arm. The Commonwealth is alleging this is due to being struck by a Lexus SUV traveling 25 mph - in reverse. The defense is claiming these are bite marks from a large dog.
There is going to be a hearing whether to allow an ER doc to testify that these injuries were caused by a dog. This doc has written papers on dog bite injuries. She's seen hundreds of them. But the state wants to exclude her testimony, even though the judge allowed it during trial #1.
In the first trial, the judge did not allow interview notes by news media with the accused. Yesterday, same judge is allowing it.
The judge always has a thumb on the scales. Always.
Right but this jury instruction is unequivocally motivated to maximize the chance of a certain verdict. I understand anything that goes on in the courtroom can be framed as advantageous for a certain side, but it can also be framed as a pursuit of truth. This instruction can't be framed that way.
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I thought the DA requested that the judge dismiss. Anyway this seems destined for a mistrial no matter what happens, even if they return guilty. (Obviously they won't return not guilty, if one of them refuses to budge on guilty for the more severe verdict.)
I mean we know enough now to know that the verdict will not be not guilty. This is a perversion of the system.
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Yeah it is looking like they made this shit up on the fly, and it has no precedent in legal procedure. This shit will never stand on appeal, and I will welcome a SCOTUS escalation.
@Horace said in To Be A Coward:
Yeah it is looking like they made this shit up on the fly, and it has no precedent in legal procedure. This shit will never stand on appeal, and I will welcome a SCOTUS escalation.
In the case of Alec Baldwin, there was evidence of prosecutorial misconduct - a Brady violation (the prosecution withheld potentially exculpatory evidence from the defense). The case was dismissed because of this because "jeopardy had attached." That means that a jury had already been empaneled, and proceedings had started/
In Penny's case, one could make a similar argument. Jeopardy has attached (both state and defense have made their cases before a jury) and "it is what it is."
Tons of appellate fodder here.
The question is: Does Penny have the financial resources to pursue an appeal, should it occur?
Remember, the punishment is not always the verdict and the sentence. Sometimes, it's the process.
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@Horace said in To Be A Coward:
Yeah it is looking like they made this shit up on the fly, and it has no precedent in legal procedure. This shit will never stand on appeal, and I will welcome a SCOTUS escalation.
In the case of Alec Baldwin, there was evidence of prosecutorial misconduct - a Brady violation (the prosecution withheld potentially exculpatory evidence from the defense). The case was dismissed because of this because "jeopardy had attached." That means that a jury had already been empaneled, and proceedings had started/
In Penny's case, one could make a similar argument. Jeopardy has attached (both state and defense have made their cases before a jury) and "it is what it is."
Tons of appellate fodder here.
The question is: Does Penny have the financial resources to pursue an appeal, should it occur?
Remember, the punishment is not always the verdict and the sentence. Sometimes, it's the process.
@George-K said in To Be A Coward:
The question is: Does Penny have the financial resources to pursue an appeal, should it occur?
You mean, can he afford to appeal, if he's convicted? Yes, I'm confident that money won't be a deciding factor for that.
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Riffing of the jury instructions comment, appellate defense attorney Andrea Burkhardt posted a thread on X. It's long, but an interesting (to me) read about how things really work.
Threadreader link:
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Thanks for posting that, George. I guess instructions are agreed upon by both parties? But the judge must also have authority to dictate, since agreements won't always be reached. The instructions present quite a maze to get to a deliberation of the second count. Unanimous agreement of not guilty on count 1, and unanimous agreement on specific reasons for that verdict. I'll be curious to know how non-standard those instructions are. Or maybe the mutually exclusive charges themselves are so non-standard, that any instruction will also have to be non-standard.
