There's an old saying that a lawyer who represents himself has a fool for a client. Though pro se defendant Frederick Bush wasn't a lawyer when he represented himself at his federal trial, he also wasn't a fool. In fact, he acquitted himself quite nicely, preserving a mens rea argument that the Eleventh Circuit just relied on to vacate his conviction.
To recap, Bush was confined at a residential re-entry center in Tallahassee. One day, he decided to leave, later claiming that an employee there had threatened him. In a single count (importantly), the government charged him with two separate statutes that criminalize escaping or leaving custody, one of which (critically) required proof that the defendant acted "willfully" (i.e., with knowledge that his conduct was unlawful).
At trial, Bush had several back-and-forths with the Court about the need for the government to prove willfulness, even reading from an old Fifth Circuit case. Still, the Court specifically instructed the jury that it needn't find that Bush knew that his actions were unlawful. This was plain error, the Court said.
A short opinion. Also notable that Judge Newsom used the word "stretch" to describe Bush's time in custody. A word right out of a Dashiell Hammett novel.
Bush Decision by John Byrne on Scribd
6 comments:
Great win...but really, this is fucked up:
"After the close of the evidence, the parties discussed the jury instructions. Bush complained that the district court’s proposed instructions didn’t properly inform the jury about the mens rea el-ement of the charged crime. He asserted that the offense’sknowledge element required proof that he knew his conduct amounted to escape. The court again disagreed: “You are wrong about that, and you can tell it to the appellate court.”"
So no question he preserved the issue, right?
Nope:
"On appeal, the parties dispute whether Bush properly pre-served the jury-instruction issue for our review. Because we con-clude that Bush can meet even the heightened plain-error burden to demonstrate that the instruction was not only erroneous but also “probably responsible” for an incorrect verdict, we needn’t de-cide the preservation question."
That is so fucked up, and demonstrates the bullshit criminal defendants face day in and day out in the Eleventh. How the panel can dispute that error is preserved when a district judge says "You are wrong about that, and you can tell it to the appellate court", is beyond me.
What is he supposed to do - stick his finger in the Court's eye further and object after the charge - on this record? Such nonsense. And for the government to turn around and argue it wasn't preserved is equally as bad - ha - dedication to justice, blah blah blah.
I wonder if the DJ is going to man up and own his ridiculously dismissive comment:
“You are wrong about that, and you can tell it to the appellate court.”
A judge of substance would bring the parties in, apologize to the defendant for being so dismissive, acknowledge that he was wrong, and then hammer the AUSA for advocating a position that was plainly erroneous.
Of course, we suspect what might happen: When it comes back, the government will tweak the indictment, the evidence he wanted to present will come in, and he will be convicted. Then, the "you are wrong" judge will instead of giving him 37 months for walking off, jack him to 60 months for presenting perjured testimony.
And the Eleventh will not blink in affirming.
Dashiell Hammett? Maybe. I would also include James Cain, James Ellroy, Lawrence Block, and, of course, Raymond Chandler. On legal note, should not this case have been presented as a duress defense. Of course he had the mens era. The issue is does his acting under duress excuse the criminality of his conduct.
That's pretty embarrassing that the government argued that he waived preserving the appeal. It was a pro se defendant who objected at seemingly every turn...
Clarance Darrow and Jack Fernandez did the same , too. It takes talent.
upon reconviction he should get the max
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