markm said on February 07, 2006  

I think the odds are pretty good that the judge was correct - both men were lying and both knew they were stealing. However, your client's story was not impossible or unreasonable. What ever happened to "beyond a reasonable doubt"?

Did the prosecution use the "both of them are guilty" theory in both of the trials, or did they use conflicting theories? Remember the DC sniper trials: In one county, prosecutors were claiming that the older man that was on trial there was the criminal mastermind and the young man was just his unthinking follower, while at the same time in another county, prosecutors trying the young man claimed he was the mastermind. IMHO, if anyone deserves the death penalty then both of these men do, but there seems to be something wrong when the prosecutions' theories together assign a total of 150% of the guilt...

 Rob R. said on February 07, 2006  

I once heard David Baugh at a CLE say that a tie in credibility (or in your case incredibility) should go to the Client. Appeal?

 homillerlaw said on February 07, 2006  

I have noticed this sort of judicial "discretion" quite a bit lately in my practice. If "guilty beyond a reasonable doubt" means that the evidence excludes any reasonable hypothesis of innocence, your description of the case certainly seems to suggest this scenario existed. I unfortunately sense that judges more and more are not entertaining reasonable explanations by unimpeached defendants, but rather listening to them with preconceived notions of guilt.

 Ken Lammers said on February 08, 2006  

Did the prosecution use the "both of them are guilty" theory in both of the trials, or did they use conflicting theories?

I wasn't there two years ago so I don't know the argument used then. He basically argued in this case that someone who went to a place marked with no trespassing signs on a Sunday night, took the metal, and fled when the police came to the scrap shop the next day was guilty.

However, he did at one point state "Mr. OM has already been convicted of this. He's got no reason to lie today." My answering argument was: "Mr. OM was subpoenaed to court today and required to testify. Of course he has an incentive to tell the same story today he told at his trial. If he doesn't he can be tried for perjury."

 Ken Lammers said on February 08, 2006  

Appeal?

Not sure yet. It'll probably depend on how much time the judge gives my client. Client has already served a fair amount of time and by the time of the sentencing hearing may get time served. Most clients aren't interested in an appeal after they get out.

 Ken Lammers said on February 08, 2006  

I unfortunately sense that judges more and more are not entertaining reasonable explanations by unimpeached defendants, but rather listening to them with preconceived notions of guilt.

Well, I can't exactly say Client was unimpeached. It was more along the lines that both Clien and OM were bad witnesses.

 ACS said on February 09, 2006  

Hey, you did the best you could. That's what matters.

If you had a jury, things could have been different, but nonjury trials are extremely difficult (in my view), unless the judge is doing them because of the consent of the defendant. In those cases, judges often try to demonstrate a more lenient reasonable doubt standard in order to encourage time saving (nonjury trials are always much shorter than jury trials, in my experience).