[conspire] Hans Reiser found guilty

Christian Einfeldt einfeldt at gmail.com
Mon Apr 28 19:18:36 PDT 2008


On Mon, Apr 28, 2008 at 6:48 PM, Deirdre Saoirse Moen <deirdre at deirdre.net>

> It's not possible to have a capital case be a bench trial.

Really?  I haven't researched the issue, but AFAIK, the right to jury trial
resides with the defendant, not the people, and the defendant can waive the
right to a jury trial, if he / she so chooses.  Most defs do NOT waive that
right, simply because the people must get a unanimous jury, AFAIK.  Caveat,
I don't practice criminal law and I passed the bar in 1993, which was a LONG
time ago.

> Also, in
> criminal cases, my understanding is that the appeal is predicated on the
> assumption that one is guilty (because one has been convicted).

The result is the same, but AFAIK, the way to phrase it is that the
appellate court will not revisit the facts and act as a third super-juror.
However, the appellate court will reject a jury's finding if the verdict is,
by law, inconsistent with the fact adduced at trial.  The appellate will
hear argument that the jury's decision was based on prejudice and passion,
not sound reasoning; will look for errors in admitting documents, testimony,
and things into evidence; will look for improper argument on the part of the
prosecution; errors in the trial judge's jury instructions, stuff like that.

But yes, on appeal, the burden rests with the defense after a guilty

There will be post-trial motions to have the verdict overturned.  Those
motions will be denied, and then the appeals process will start.

Criminal appeals are much harder than civil appeals.

True.  Most trial and appellate judges are Republicans.  Plus, the law has
generally moved to the right over the past 40 years.  In most cases, the
defendant needs to show that any errors or irregularities in the trial were
"prejudicial", meaning that the errors actually made their case worse.  That
rule basically means that the appellate panel can point to any other
evidence in the record which might have supported a reasonable jury to
support a conclusion upon which the conviction is based.

For example, if a gun is erroneously admitted, an appellate panel might
point to the fact that there was properly admitted evidence showing that the
defendant owned a gun similar to the gun described by witnesses, and that
the def tested positive for gun powder residue shortly after the crime was
committed, etc.  This is one of the many reasons that I would not practice
criminal law; you are setting yourself up to lose repeatedly.  That really
must bring defense attorneys down.  I couldn't stand losing all that often.

> --
> _Deirdre  blog: http://dsmoen.livejournal.com/
> "Memes are a hoax! Pass it on!"
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Christian Einfeldt,
Producer, The Digital Tipping Point
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