Daily Archives: February 22, 2020

The Search For Political Validation

Some high profile criminal trials and/or cases are driven by that search.  It’s improper, and that’s on the prosecution, but never mind that for now.  The reality is clear enough.

So there are two such cases dominating the “news” cycle this week:  the trial of Harvey Weinstein and the post trial proceedings of Roger Stone.

It’s a strange drive, if you ask us.  Convictions and stiff sentences will constitute highly emotional validation for the partisans on one side.  Will they feel rebuked by acquittals or leniency?  Of course not.  Will the partisans on the other side feel the same, only going the other way?  Of course not.

That’s why it’s an improper and wasteful exercise bringing a criminal case for political validation, as a proxy for some political controversy or other.  It has no chance of resolving the controversy.  That’s one reason anyway.  There are others more serious.

In any event, there is one interesting practitioners’ aspect to the latest development in the Harvey Weinstein trial, where the jury asked a question towards the end of the business day on Friday, implying that they had reached a verdict on three “lesser” charges but were hung on the remaining two more serious counts.

We take it back.  This is not just interesting, but fascinating.  Questions a jury asks are often revealing to the anxious litigants and their attorneys regarding the outcome.  In one of our first jury trials, we were summoned back the court from our office because the jury had asked a question.  By the time we got there, however, the jury had asked a second question that they said “superseded” the first:

Can we award the Plaintiff more money than he asked for?

This was, you know, a a pretty good clue into the minds of the jurors.

If the Weinstein trial were more normal, the latest question the jury asked could be reliably interpreted to mean that they had reached guilty verdicts on the lesser counts but were hung on the more serious ones.  Maybe not as reliably as the question we just recounted from our own trial, but still pretty reliable.

Alas, the Weinstein trial is not normal.  Because “propensity” evidence of similar but uncharged conduct was admitted, it is possible – not likely, but possible – that the jury might acquit on the lesser charges but convict on the more serious because those charges were bolstered by the propensity evidence but the lesser charges were not.

That would be quite an anomalous result, to convict Harvey Weinstein of the more serious charges after acquitting him of the lesser.  Indeed, it would arguably constitute an inconsistent verdict, which would be a basis for quite the post-verdict motion.

Not that such a motion, no matter how meritorious, will ever be granted, of course. Because judges.  They would have to grant such a motion, and they don’t want to.

When you bend the rules to get your political validation you may overlook the foreseeable problems you generate.  Be careful what you wish for, in other words.

Roger Stone?  Apparently he has moved to disqualify the judge.  Turley is right, of course, that such motions are never granted.  He should throw in – like we do – that they should be frequently granted, because for the most part judges are extremely biased in favor of the prosecution.

Here, the judge having already very publicly condemned Mr. Stone when she sentenced him, how can she impartially rule on the new trial motion?

But never mind.

Politics makes strange bedfellows, it is said.  It also makes for incoherent criminal prosecutions.



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Filed under epistemology, Media incompetence/bias, wrongful convictions