Ted Nugent is a POS

#380
#380
lawgator1 said:
His line is "I'm listening."
Click to expand...

Okay, so I was involved in a case some years ago that went to trial. Ended up with a guilty verdict for the accused and was sentenced. The case went to appeals and the guilty verdict was overturned. I actually didn't know it was overturned and don't have a specific timeline of when that happened, but anyway...

Apparently there was a somewhat recent Supreme Court ruling that ended up changing the rules (I'm not sure which one, but I'd assume you would be familiar with it) which will allow the initial case to be retried. And it looks as if the prosecution wants to push ahead with that avenue. So the question(s) I have are:

Being that it's a retrial, are the same charges included (they were involuntary manslaughter and negligent homicide) or does the prosecution have the latitude to change the charges based on the fact it's a new trial?

And how do the evidentiary rules work in this case? I ask because the defense had my report tossed out on the basis of hearsay. Which I found odd since the report was all substantiated scientifically or was appropriately annotated as witness accounts and I ended up testifying to everything that was in there anyway during the trial. But anyway, does the evidence have to go through the same vetting process again or does the prosecution get to use only what evidence was allowed in the initial trial?

And lastly, since the defendant already served at least part if not potentially all of the sentence, is that typically taken into account if he is found guilty again? Or is that more of a judge's call?

Thanks in advance for the answers if you can.
 
#382
#382
Grand Vol said:
Okay, so I was involved in a case some years ago that went to trial. Ended up with a guilty verdict for the accused and was sentenced. The case went to appeals and the guilty verdict was overturned. I actually didn't know it was overturned and don't have a specific timeline of when that happened, but anyway...

Apparently there was a somewhat recent Supreme Court ruling that ended up changing the rules (I'm not sure which one, but I'd assume you would be familiar with it) which will allow the initial case to be retried. And it looks as if the prosecution wants to push ahead with that avenue. So the question(s) I have are:

Being that it's a retrial, are the same charges included (they were involuntary manslaughter and negligent homicide) or does the prosecution have the latitude to change the charges based on the fact it's a new trial?

And how do the evidentiary rules work in this case? I ask because the defense had my report tossed out on the basis of hearsay. Which I found odd since the report was all substantiated scientifically or was appropriately annotated as witness accounts and I ended up testifying to everything that was in there anyway during the trial. But anyway, does the evidence have to go through the same vetting process again or does the prosecution get to use only what evidence was allowed in the initial trial?

And lastly, since the defendant already served at least part if not potentially all of the sentence, is that typically taken into account if he is found guilty again? Or is that more of a judge's call?

Thanks in advance for the answers if you can.
Click to expand...




Stand by GV, he's on ask a lawyer dot com.
 
  • Like
Reactions: 2 people
#384
#384
Grand Vol said:
Okay, so I was involved in a case some years ago that went to trial. Ended up with a guilty verdict for the accused and was sentenced. The case went to appeals and the guilty verdict was overturned. I actually didn't know it was overturned and don't have a specific timeline of when that happened, but anyway...

Apparently there was a somewhat recent Supreme Court ruling that ended up changing the rules (I'm not sure which one, but I'd assume you would be familiar with it) which will allow the initial case to be retried. And it looks as if the prosecution wants to push ahead with that avenue. So the question(s) I have are:

Being that it's a retrial, are the same charges included (they were involuntary manslaughter and negligent homicide) or does the prosecution have the latitude to change the charges based on the fact it's a new trial?

And how do the evidentiary rules work in this case? I ask because the defense had my report tossed out on the basis of hearsay. Which I found odd since the report was all substantiated scientifically or was appropriately annotated as witness accounts and I ended up testifying to everything that was in there anyway during the trial. But anyway, does the evidence have to go through the same vetting process again or does the prosecution get to use only what evidence was allowed in the initial trial?

And lastly, since the defendant already served at least part if not potentially all of the sentence, is that typically taken into account if he is found guilty again? Or is that more of a judge's call?

Thanks in advance for the answers if you can.
Click to expand...


Wow. That's some complicated shinola there.

The primary issue is double jeopardy. I do not handle criminal matters (indirectly I guess i do because i handle civil cases against LEOs which of course are based on them), but I checked and there is a recent USSC case called Blueford v. Arkansas, in which defendant tried on murder charge. The jury was prepared to unanimously acquit him of capital murder, but the jury hung on a manslaughter charge and some other lesser charges.

The USSC held he could be retried on all charges.

That case came out in 2012. I did a quick Westlaw search and already there are 47 cases citing to it. Double jeopardy is extremely complicated, but I imagine that is the central issue in your case.

As to your question about the rules of evidence, since the case is going to be retried whatever the rules are now would be the rules. I doubt that there has been any significant change in your state on hearsay so the ruling is probably the same. That does not prevent the state however from asking the judge to revisit it.

I don't know what the merits are on the defense's argument. The report itself might not be hearsay if its a business record, but it might be if the important content is that it repeats someone else's statement, i.e. hearsay within hearsay. I'd need to know more about it.

As to the question about sentencing, yes, if he's been serving a sentence all this time then even if convicted I would think he'd be given credit for the proverbial "time served."
 
#385
#385
Edit: I guess what I'm saying is that this kind of decision is fairly involved and I imagine the prosecutor spent a lot of time researching and deciding whether it violates double jeopardy. The defense will argue against it. You might get an appeal, like a writ of prohibition, even before it is tried again.
 
#386
#386
lawgator1 said:
Wow. That's some complicated shinola there.

The primary issue is double jeopardy. I do not handle criminal matters (indirectly I guess i do because i handle civil cases against LEOs which of course are based on them), but I checked and there is a recent USSC case called Blueford v. Arkansas, in which defendant tried on murder charge. The jury was prepared to unanimously acquit him of capital murder, but the jury hung on a manslaughter charge and some other lesser charges.

The USSC held he could be retried on all charges.

That case came out in 2012. I did a quick Westlaw search and already there are 47 cases citing to it. Double jeopardy is extremely complicated, but I imagine that is the central issue in your case.

As to your question about the rules of evidence, since the case is going to be retried whatever the rules are now would be the rules. I doubt that there has been any significant change in your state on hearsay so the ruling is probably the same. That does not prevent the state however from asking the judge to revisit it.

I don't know what the merits are on the defense's argument. The report itself might not be hearsay if its a business record, but it might be if the important content is that it repeats someone else's statement, i.e. hearsay within hearsay. I'd need to know more about it.

As to the question about sentencing, yes, if he's been serving a sentence all this time then even if convicted I would think he'd be given credit for the proverbial "time served."
Click to expand...

I was wondering along the lines of the double jeopardy rule myself, but thought that only included cases where a life might have been at stake.

As for the report, there was a junior junior prosecutor on the case and didn't exactly go into details as to why the report was pulled save "it got tossed because of hearsay." As with most police reports you've probably seen, it does include witness statements, which I annotated in the report and even pointed out the fact the eyewitness accounts were not considered in the overall diagnosis of the report. Most of the other data included was only known facts that I recall. It was a messy situation, so the "how" it happened wasn't detailed very well in my report since I couldn't positively recreate the conditions that took place without making a huge guess on my part. And the only assumptions I made were backed up by some pretty good circumstantial evidence. The scientific data is traffic accident investigation techniques that have been upheld in court for some time.

Appreciate the input.
 
#387
#387
lawgator1 said:
Edit: I guess what I'm saying is that this kind of decision is fairly involved and I imagine the prosecutor spent a lot of time researching and deciding whether it violates double jeopardy. The defense will argue against it. You might get an appeal, like a writ of prohibition, even before it is tried again.
Click to expand...

I asked the question myself of why after nearly four years are they going to go after it again. And I got that Supreme Court decision as an answer as well as the prosecution feeling pretty confident in the ability to retry the case and end up with a guilty verdict again.
 
#388
#388
Grand Vol said:
I asked the question myself of why after nearly four years are they going to go after it again. And I got that Supreme Court decision as an answer as well as the prosecution feeling pretty confident in the ability to retry the case and end up with a guilty verdict again.
Click to expand...


Did the jury hang on at least one charge and/or acquit on one?
 
#390
#390
Grand Vol said:
I was wondering along the lines of the double jeopardy rule myself, but thought that only included cases where a life might have been at stake.

As for the report, there was a junior junior prosecutor on the case and didn't exactly go into details as to why the report was pulled save "it got tossed because of hearsay." As with most police reports you've probably seen, it does include witness statements, which I annotated in the report and even pointed out the fact the eyewitness accounts were not considered in the overall diagnosis of the report. Most of the other data included was only known facts that I recall. It was a messy situation, so the "how" it happened wasn't detailed very well in my report since I couldn't positively recreate the conditions that took place without making a huge guess on my part. And the only assumptions I made were backed up by some pretty good circumstantial evidence. The scientific data is traffic accident investigation techniques that have been upheld in court for some time.

Appreciate the input.
Click to expand...


Yeah, the problem with the report sounds like its because it contains statements made by others.

If its your own observations it is still an out of court statement intended to prove the truth of the matter asserted in it, i.e. your observations. But it might be subject to an exception as a business record.

The problem is the statements within it. That's like you just coming in and saying, and witness x told me "blah blah blah."

It can be used indirectly. For example, if witness x takes the stand and says the light was red, but in your report you quote witness x as saying the light was green, the prosecutor can ask, didn't you tell Officer Grand Vol that the light was green?

If the witness denies having told you that, you can be called to testify that she did. That's because your recounting of what she said is not being offered to prove the light was green. Its being used to prove she made inconsistent statements about whether it was red or green.
 
#393
#393
lawgator1 said:
Yeah, the problem with the report sounds like its because it contains statements made by others.

If its your own observations it is still an out of court statement intended to prove the truth of the matter asserted in it, i.e. your observations. But it might be subject to an exception as a business record.

The problem is the statements within it. That's like you just coming in and saying, and witness x told me "blah blah blah."

It can be used indirectly. For example, if witness x takes the stand and says the light was red, but in your report you quote witness x as saying the light was green, the prosecutor can ask, didn't you tell Officer Grand Vol that the light was green?

If the witness denies having told you that, you can be called to testify that she did. That's because your recounting of what she said is not being offered to prove the light was green. Its being used to prove she made inconsistent statements about whether it was red or green.
Click to expand...

If I recall (it's been three years since I looked at the thing), the only witness testimony I used was in relation to the location of the accident itself and the conditional factors going into the accident. The only good witness (long story) was the driver of another vehicle that claimed he was passed by the defendant's vehicle immediately prior to the accident. Other than that, I certainly didn't include his "maybe's" and "I think's" into the report. Just the basic "I was here at this time, driving this vehicle with these people as passengers when I was passed by the defendant's vehicle at an unknown rate of speed and saw it hit a guardrail." Trust me, I know you silly lawyer types that pick over every word and knew they would get his testimony tossed since he really wasn't a good witness. Which is why the majority of his statements didn't get used in the report.

Sad thing over the whole case? I could tell you exactly how it happened, why it happened, in detail as to the positioning of the vehicles but I couldn't use any of it because I didn't have the proper evidence to back it up. One of things I knew beyond a doubt in my mind, but couldn't prove beyond a reasonable doubt based on what little evidence I had, no statement from the defendant and the witness accounts really adding nothing to the case.
 
#395
#395
lawgator1 said:
You don't make the news, you just report it.
Click to expand...

Sadly I agree to an extent. My job as an accident investigator was to recreate the accident based on the evidence of the scene. And while I could have done that quite easily based on the circumstantial evidence, it would have been easy to refute as the defendant invoked his Article 31 Rights (5th Amendment) and I never got a statement to corroborate my theory.

But I wish the judge and jury could have seen the things I knew in my mind on how and why it all happened.

Damn legal system...
 
#396
#396
Grand Vol said:
Sadly I agree to an extent. My job as an accident investigator was to recreate the accident based on the evidence of the scene. And while I could have done that quite easily based on the circumstantial evidence, it would have been easy to refute as the defendant invoked his Article 31 Rights (5th Amendment) and I never got a statement to corroborate my theory.

But I wish the judge and jury could have seen the things I knew in my mind on how and why it all happened.

Damn legal system...
Click to expand...


Until you are on the other end of it.
 
#399
#399
I would not call it racism.

Based in ignorance? Based on flawed assumptions about 1 billion people because of the acts of a few thousand? Short-sighted? As dumb as racism? Sure, all of that.

But no, Islam is not a race.
 
New posts
You must log in or register to reply here.

VN Store



Back
Top