Monday, September 11, 2017

Back at it

Here's hoping everyone came out of the storm okay.  I have no power and limited cell service at home, but the office is operational with power and internet.  Although it's a ghost town, it looks like many of the buildings in downtown Miami have power.  Some are still blocked off though, so you should check first before trekking down here.  If you are coming from the south, US1 is moving along but at many spots, there are no lights and there are trees blocking the road (sometimes making US1 into one lane). 

If you are looking for something to read, check out this opinion by Judge Marcus, which came out just before the storm.  The government finds critical evidence -- a video of the crime -- and discloses it on the morning of trial.  The defense moves for a continuance.  The government does not object.  The district judge decides to go forward with the case.  Conviction affirmed because the court says that the defense cannot show prejudice.  To me, this is simply wrong:
 After closely reviewing the entire record, we cannot say that the trial court abused its discretion in denying Jeri’s motion for a new trial. Although we think it would have been wiser to allow Jeri time to view the video before starting the trial, the tape was not exculpatory and Jeri has not come close to establishing specific and substantial prejudice from this omission. We can discern no other errors in this record, and, therefore, affirm the judgment of the district court.
What effect will "wiser" have on district courts?


Anonymous said...

Here is your answer:

Anonymous said...

I'm assuming that's a rhetorical question. The 11th is giant backstop for judges and they know that. How many trials have you had where the judge rules against you relying on "harmless error" cases? And when you say that's an appellate standard, you just get a blank stare.

Anonymous said...

Doo doo Brown - Love it.