1. Forum
  2. Usenet
  3. MISC.LEGAL.MODERATED

  • how much recourse does the prosecution have in a criminal case?

    From S K@21:1/5 to All on Sun Sep 26 20:36:11 2021
    Once these is an acquittal - there is no recourse.

    But if the judge is blatantly pro-defense as the pre-trial evidentiary rulings are made and during the the trial itself - can that be appealed by the prosecution even as the case is ongoing?

    the judge in the Kyle Rittenhouse case is giving every indication of railroading the prosecution.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From Stuart O. Bronstein@21:1/5 to S K on Mon Sep 27 09:53:40 2021
    S K <[email protected]> wrote:

    Once these is an acquittal - there is no recourse.

    But if the judge is blatantly pro-defense as the pre-trial
    evidentiary rulings are made and during the the trial itself - can
    that be appealed by the prosecution even as the case is ongoing?

    the judge in the Kyle Rittenhouse case is giving every indication
    of railroading the prosecution.

    If it's caught during the trial, the prosecution can ask the judge to
    recuse himself for bias. In theory an appearls court can force the
    judge to do that. But finding bias will be a difficult hill to
    climb.

    When the trial is over, if actual bias is found, in theory an appeals
    court could overturn an acquittal on the basis that the trial was, in
    effect, fixed and the defendant was never, in fact, "in jeopardy."
    That is also very unlikely to happen unless there is clear evidence
    that the judge (or jury) was determined never to convict in the first
    place.

    In a high profile case like this a judge may want to give the defense
    a lot of latitude to reduce the chances of a successful defense
    appeal. But that doesn't mean the judge, or the case, is actually
    being tilted in the defendant's behavior.


    --
    Stu
    http://DownToEarthLawyer.com

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From Barry Gold@21:1/5 to S K on Tue Sep 28 05:25:22 2021
    On 9/26/2021 8:36 PM, S K wrote:
    Once these is an acquittal - there is no recourse.

    But if the judge is blatantly pro-defense as the pre-trial evidentiary rulings are made and during the the trial itself - can that be appealed by the prosecution even as the case is ongoing?

    the judge in the Kyle Rittenhouse case is giving every indication of railroading the prosecution.

    Based on reading a few news articles and the Wikipedia article, it looks
    to me as if Rittenhouse has a legitimate self-defense claim.

    However, he may be guilty of unlawful possession of a firearm (he was
    underage at the time). But that is a misdemeanor, so he should be tried
    as a juvenile, with correspondingly less punishment.

    As a general rule, the time for either side to challenge a judge --
    assuming that state law allows for that (California does) -- is before
    the trial starts.

    Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
    was chosen. So it is too late for the prosecution to request a new
    trial, and the only reasons I can imagine for changing judges in the
    middle of a trial are (1) the judge dies, (2) the judge is found legally incompetent, (3) the judge becomes incapable of performing his duties
    for an extended period of time (too long for the trial to be kept in
    recess) -- e.g., he has a massive heart attack and must be kept in an
    ICU for multiple weeks..


    From Wikipedia:
    At the first location, Rittenhouse was pursued by a group, a gunshot
    was fired into the air by a third party, and Kenosha resident Joseph
    Rosenbaum lunged at Rittenhouse and attempted to take his rifle.
    Rittenhouse then fired at Rosenbaum four times, who died shortly
    afterwards. At the second location, Rittenhouse tripped while fleeing, a
    man kicked him, and Rittenhouse fired at the man twice but missed. While
    still on the ground, protestors approached Rittenhouse, and Silver Lake resident Anthony Huber struck Rittenhouse with a skateboard and
    struggled for control of his rifle. Rittenhouse then fired at Huber
    once, killing him. West Allis resident Gaige Grosskreutz then approached Rittenhouse while holding a handgun, and Rittenhouse shot him once,
    severing his bicep.


    --
    I do so have a memory. It's backed up on DVD... somewhere...

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From Mike Anderson@21:1/5 to Barry Gold on Wed Sep 29 09:39:37 2021
    On 9/28/2021 8:25 AM, Barry Gold wrote:
    As a general rule, the time for either side to challenge a judge --
    assuming that state law allows for that (California does) -- is before
    the trial starts.

    I'd be very surprised if any state did NOT allow such a challenge at
    some point in the proceedings. The requirements for such may vary but I
    just can't see it being forbidden completely.

    Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
    was chosen. So it is too late for the prosecution to request a new
    trial, and the only reasons I can imagine for changing judges in the
    middle of a trial are (1) the judge dies, (2) the judge is found legally incompetent, (3) the judge becomes incapable of performing his duties
    for an extended period of time (too long for the trial to be kept in
    recess) -- e.g., he has a massive heart attack and must be kept in an
    ICU for multiple weeks..

    I could see a judge recusing himself partway through if he found there
    was a conflict-of-interest that he wasn't aware of sooner or if he
    simply decided he couldn't be impartial. All of your scenarios assume
    it's involuntary but just as a lawyer could request to step down
    mid-trial (but sometimes told "nope, you're here for the duration"), I'd
    think a judge could request the same.

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)
  • From Barry Gold@21:1/5 to Mike Anderson on Wed Sep 29 13:50:20 2021
    On 9/29/2021 9:39 AM, Mike Anderson wrote:
    On 9/28/2021 8:25 AM, Barry Gold wrote:
    As a general rule, the time for either side to challenge a judge --
    assuming that state law allows for that (California does) -- is before
    the trial starts.

    I'd be very surprised if any state did NOT allow such a challenge at
    some point in the proceedings. The requirements for such may vary but I
    just can't see it being forbidden completely.

    Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
    was chosen. So it is too late for the prosecution to request a new
    trial, and the only reasons I can imagine for changing judges in the
    middle of a trial are (1) the judge dies, (2) the judge is found
    legally incompetent, (3) the judge becomes incapable of performing his
    duties for an extended period of time (too long for the trial to be
    kept in recess) -- e.g., he has a massive heart attack and must be
    kept in an ICU for multiple weeks..

    I could see a judge recusing himself partway through if he found there
    was a conflict-of-interest that he wasn't aware of sooner or if he
    simply decided he couldn't be impartial. All of your scenarios assume
    it's involuntary but just as a lawyer could request to step down
    mid-trial (but sometimes told "nope, you're here for the duration"), I'd think a judge could request the same.

    Yes, I think a judge could do it. But if the prosecution requests it,
    all they will accomplish is to make the judge angry, which is almost
    never something a lawyer wants to do.




    --
    I do so have a memory. It's backed up on DVD... somewhere...

    --- SoupGate-Win32 v1.05
    * Origin: fsxNet Usenet Gateway (21:1/5)