General Discussion of Fresh Evidence at appeal

[Samson]

I am interested in the question of evidence at appeal, and the broader question of what the appeal court must or should consider.
Generally we are told that if a jury has considered the evidence previously it will not be heard again.
In a specific case there is foreign male dna found under the fingernails of 2 murder victims, who fought at the scene.
The defence council in summing up said this exonerates the accused, yet the judge made no mention of this evidence in his summing up.
A guilty verdict was returned, yet the man is innocent.

Can this omission by the judge be raised as part grounds for the appeal?
Lawyers, anybody.

There are many other matters in this broad subject of fresh evidence, I suggest this thread can have wide ranging focus.

 

[nota]

our scaly reptoid supreme court judge
now dead thankfully
said actual innocence is NOT grounds for review

but errors and omissions are grounds
looks to me like procedure is everything to them
and justice is missing from the counts

I do NOT think a lawyer should be allowed to make laws
as there is a very basic conflict of interest in that

 

[Loss Leader]

Can this omission by the judge be raised as part grounds for the appeal?
Lawyers, anybody.

Legal error is appealable, factual error is not. That being said, sometimes a factual error can be so gross that it cannot be interpreted any other way. In that case, the fact can be used to send the case back to the trial judge.

The judge's instructions to the jury do not have to account for every piece of evidence either side brings in. A case may be overturned if the judge wrongly instructs a jury that it must find in a certain way or another.

If the evidence made it logically impossible for the defendant to have committed the crime, the judge will instruct the jury to return a not guilty verdict. Short of that, the instruction doesn't have to be much more than explaining reasonable doubt.

If you have a more fully developed hypothetical, I can help you further.

 

[Samson]

Legal error is appealable, factual error is not. That being said, sometimes a factual error can be so gross that it cannot be interpreted any other way. In that case, the fact can be used to send the case back to the trial judge.

The judge's instructions to the jury do not have to account for every piece of evidence either side brings in. A case may be overturned if the judge wrongly instructs a jury that it must find in a certain way or another.

If the evidence made it logically impossible for the defendant to have committed the crime, the judge will instruct the jury to return a not guilty verdict. Short of that, the instruction doesn't have to be much more than explaining reasonable doubt.

If you have a more fully developed hypothetical, I can help you further.

Well, in this case, and I would rather not name it here to avoid google searches but there is a big thread here, we are talking to the defence people, who say they will not try to use this dna evidence at the pending appeal, and my supposition is they deem it not fresh.
My point is that it looks central to the case, it appears to show a different assailant to the man in jail.
Since the defence used it summing up, it looks to me that the judge should have had a paragraph in his summing up but he did not.
In his final paragraph he states

[142] ....After you go into the room I will check with counsel that I have not made mistakes or missed something. If I have I will need to call you back in to fix it up.....

Now I am currently working on the assumption counsel did not notice or raise this glaring omission.

In fact counsel said this in their summing up

" And it might provide an explanation also, might it not, for the unidentified footprint? It might, might it not, provide and explanation for the fibres under both ********* and ***** *****’s fingernails, inconsistent with **** *****’s clothing? It might, might it not, be consistent, this impossibility be consistent and provide some explanation as to why it is that ******* and ******* have the Y-STR of a male stranger underneath their nails, and that's the consequences of the impossibilities."

Therefore in my view pivotal. Yet no mention of this by the judge, so it stays buried in 7 weeks of a trial.

I am suggesting defence council use this omission to bring it all right back in for the appeal, along with new research and data on speed of dna dissipating in ordinary life, eg washing hands before going to bed, which C Halkides is helping with.
What do you think LL? Does this introduce the dreaded inadequacy of counsel and so on, or is it entirely reasonable to bring it back without prejudice to counsel. One member from trial remains and is bitterly opposed to any suggestion of being inadequate at appeal for career reasons.

 

[marplots]

I do NOT think a lawyer should be allowed to make laws
as there is a very basic conflict of interest in that

How do you feel about plumbers designing water systems or mathematicians creating new math? Same problem?

 

[MikeG]

Which jurisdiction are you talking about Samson? You see, the rules are different in different countries, and presumably even in different states in the same country. I know that actual facts are a problem for you, and that every murderer is innocent, but it would be handy to know which particular judges we should be excoriating and which conniving politicians should be hanged.

 

[Loss Leader]

Well, in this case, and I would rather not name it here to avoid google searches but there is a big thread here, we are talking to the defence people, who say they will not try to use this dna evidence at the pending appeal, and my supposition is they deem it not fresh.
My point is that it looks central to the case, it appears to show a different assailant to the man in jail.
Since the defence used it summing up, it looks to me that the judge should have had a paragraph in his summing up but he did not.
In his final paragraph he states

[142] ....After you go into the room I will check with counsel that I have not made mistakes or missed something. If I have I will need to call you back in to fix it up.....

Now I am currently working on the assumption counsel did not notice or raise this glaring omission.

In fact counsel said this in their summing up

" And it might provide an explanation also, might it not, for the unidentified footprint? It might, might it not, provide and explanation for the fibres under both ********* and ***** *****’s fingernails, inconsistent with **** *****’s clothing? It might, might it not, be consistent, this impossibility be consistent and provide some explanation as to why it is that ******* and ******* have the Y-STR of a male stranger underneath their nails, and that's the consequences of the impossibilities."

Therefore in my view pivotal. Yet no mention of this by the judge, so it stays buried in 7 weeks of a trial.

I am suggesting defence council use this omission to bring it all right back in for the appeal, along with new research and data on speed of dna dissipating in ordinary life, eg washing hands before going to bed, which C Halkides is helping with.
What do you think LL?

Am appeal based on the inadequacy of counsel is very different from an apeal based on legal error. You haven't been terribly forthcoming, so it looks like the DNA evidence did not logically exclude the Defendant. Thus, the judge had no reason to bring it up in his jury instructions. If the DNA did exclude the Defendant but the defense lawyer was playing some game of hoping to raise it on appeal, that's not allowed. A ridiculously stupid gambit like that is not going to work in the Defendant's favor. If the DNA did exclude the Defendant but the lawyer was too inept to raise the issue at trial and/or the evidence was unknowable at trial, that would probably be grounds for a successful appeal.

You can protect people's names all you want, but I can't give you a better answer than that without some actual facts.

One member from trial remains and is bitterly opposed to any suggestion of being inadequate at appeal for career reasons.

Then a simple motion for a new lawyer is necessary. Putting one's career in front of zelously representing one's client is a conflict of interest. The lawyer could easily be swept aside.

 

[Rolfe]

I presume mentioning Lockerbie isn't out of line in this thread?

This links into some discussion I have had with the legal experts about the way forward as regards the proof that the bomb was introduced at Heathrow rather than Malta. The fact is that the possibility that the bomb was in the case seen in the baggage container an hour before the connecting flight landed was given a pretty extensive airing at the original trial. It got as far as the judges declaring "yes it might well have been, but the defence haven't proved that it was so we'll just assume it wasn't." That's a paraphrase not a quote but you get the general drift. (OK, here's what they actually said.)

It was argued on behalf of the accused that the suitcase described by Mr. Bedford could well have been the primary suitcase, particularly as the evidence did not disclose that any fragments of a hard-shell Samsonite-type suitcase had been recovered, apart from those of the primary suitcase itself. It was accepted, for the purposes of this argument, that the effect of forensic evidence was that the suitcase could not have been directly in contact with the floor of the container. It was submitted that there was evidence that an American Tourister suitcase, which had travelled from Frankfurt, fragments of which had been recovered, had been very intimately involved in the explosion and could have been placed under the suitcase spoken to by Mr. Bedford. That would have required rearrangement of the items in the container, but such rearrangement could easily have occurred when the baggage from Frankfurt was being put into the container on the tarmac at Heathrow. It is true that such a rearrangement could have occurred, but if there was such a rearrangement, the suitcase described by Mr. Bedford might have been placed at some more remote corner of the container, and while the forensic evidence dealt with all the items recovered which showed direct explosive damage, twenty-five in total, there were many other items of baggage found which were not dealt with in detail in the evidence in the case.

Now, however, we do have actual proof that the bomb was indeed in "the suitcase described by Mr Bedford". We have proof that the American Tourister was not underneath that suitcase but was in fact on top of it. We have proof that the forensic evidence purporting to show that the bomb suitcase was not the one in the bottom layer of luggage in the container was a gross error - it was indeed on the bottom, if not actually flat against the floor of the container. We have extremely strong evidence that no rearrangement of the luggage occurred at all.

The difficulty is that a lot of the evidence used to prove these things was presented in court in the first place. It wasn't correctly interpreted and in many cases it was entirely unremarked. But it was there. It was basically a failure of both the original investigation and the defence team to interpret the forensic evidence competently.

There are exceptions, though. The evidence that the luggage wasn't rearranged wasn't presented. Certain basic house-keeping documents (relating to passenger and baggage transfers at Heathrow airport) which are needed to carry out a complete reconciliation of the items of luggage that were packed around the bomb suitcase weren't presented. A crucial police report which analyses these documents was withheld from the defence.

This gives rise to an allegation that the Crown prosecution ran a false and deceptive case before the court, knowingly editing the documentation supplied to the defence, knowingly failing to call a crucial witness (the man they represented as having rearranged the luggage but who if called would have testified that he didn't), and knowingly obfuscating the interpretation of the raw forensic data that was presented.

So would this fly in a new appeal? I've asked the experts and they say they don't know. It's worth trying, but it's possible that the appeal court would rule that although the interpretation of the evidence in the original trial has now clearly and blatantly been shown to be erroneous, too bad, they had their chance back in 2000. There is a perceived implacable will within the Scottish criminal justice system not to allow that conviction to be overturned, and that will not help matters.

We may get a crack at putting it to an appeal court, there are moves afoot, but every possible obstacle is being placed in the way. A public inquiry may be a better route to establishing the truth, but before that can happen it's necessary to show overwhelming grounds for calling one. The Scottish criminal justice system doesn't want to do that either.

 

[Samson]

Which jurisdiction are you talking about Samson? You see, the rules are different in different countries, and presumably even in different states in the same country. I know that actual facts are a problem for you, and that every murderer is innocent, but it would be handy to know which particular judges we should be excoriating and which conniving politicians should be hanged.

I am talking New Zealand Mike, and the difficulties are similar to England, though the justice minister recently said this

"The New Zealand justice system has a highly regarded, robust appeal process for dealing with people who consider they have been wrongly convicted."

Also in this article that should underline the capricious nature of justice in NZ

"That Pora exhausted available appeals in New Zealand (except the Royal prerogative of mercy which he abandoned in favour of the Privy Council) underlines the need for an independent government-sanctioned criminal cases review commission to sit beside and independent of the justice system."

http://www.internationalskeptics.com/forums/newreply.php?do=newreply&p=11712586

And I don't think all murderers are innocent, I usually concentrate on cases where I see an innocent person in jail.

I don't believe in hanging anyone, but as a thought experiment I would rather see hanged a pillar of society who works against justice than a dreg whose behaviour is more or less driven from his place in society.

 

[Loss Leader]

I presume mentioning Lockerbie isn't out of line in this thread?

This links into some discussion I have had with the legal experts about the way forward as regards the proof that the bomb was introduced at Heathrow rather than Malta. The fact is that the possibility that the bomb was in the case seen in the baggage container an hour before the connecting flight landed was given a pretty extensive airing at the original trial. It got as far as the judges declaring "yes it might well have been, but the defence haven't proved that it was so we'll just assume it wasn't." That's a paraphrase not a quote but you get the general drift. (OK, here's what they actually said.)




Now, however, we do have actual proof that the bomb was indeed in "the suitcase described by Mr Bedford". We have proof that the American Tourister was not underneath that suitcase but was in fact on top of it. We have proof that the forensic evidence purporting to show that the bomb suitcase was not the one in the bottom layer of luggage in the container was a gross error - it was indeed on the bottom, if not actually flat against the floor of the container. We have extremely strong evidence that no rearrangement of the luggage occurred at all.

The difficulty is that a lot of the evidence used to prove these things was presented in court in the first place. It wasn't correctly interpreted and in many cases it was entirely unremarked. But it was there. It was basically a failure of both the original investigation and the defence team to interpret the forensic evidence competently.

There are exceptions, though. The evidence that the luggage wasn't rearranged wasn't presented. Certain basic house-keeping documents (relating to passenger and baggage transfers at Heathrow airport) which are needed to carry out a complete reconciliation of the items of luggage that were packed around the bomb suitcase weren't presented. A crucial police report which analyses these documents was withheld from the defence.

This gives rise to an allegation that the Crown prosecution ran a false and deceptive case before the court, knowingly editing the documentation supplied to the defence, knowingly failing to call a crucial witness (the man they represented as having rearranged the luggage but who if called would have testified that he didn't), and knowingly obfuscating the interpretation of the raw forensic data that was presented.

So would this fly in a new appeal? I've asked the experts and they say they don't know. It's worth trying, but it's possible that the appeal court would rule that although the interpretation of the evidence in the original trial has now clearly and blatantly been shown to be erroneous, too bad, they had their chance back in 2000. There is a perceived implacable will within the Scottish criminal justice system not to allow that conviction to be overturned, and that will not help matters.

We may get a crack at putting it to an appeal court, there are moves afoot, but every possible obstacle is being placed in the way. A public inquiry may be a better route to establishing the truth, but before that can happen it's necessary to show overwhelming grounds for calling one. The Scottish criminal justice system doesn't want to do that either.

It sounds to me like the court's interests in full and final determinations may outweigh any other interest here. But I am not even a lawyer on your continent, so don't take my advice.

 

[Samson]

It sounds to me like the court's interests in full and final determinations may outweigh any other interest here. But I am not even a lawyer on your continent, so don't take my advice.

And of course this works to the benefit of society and fiscal prudence in all those cases in which this sub forum has no great interest.

 

[Rolfe]

It sounds to me like the court's interests in full and final determinations may outweigh any other interest here. But I am not even a lawyer on your continent, so don't take my advice.

The people who are say they don't know what would be decided. The Professor Emeritus of Scots Law at Edinburgh University doesn't know, so I guess you'd have to test it. It may come to that.

I have heard that the US courts are particularly difficult on that point, and it may be that Scottish courts aren't so rigid. Unless they want to be, of course.

It's a rather shocking state of affairs though. In this case the man who was convicted due to the error is dead and so the injustice is to the truth rather than to an individual, but suppose someone was still in jail on the basis of the misinterpreted evidence? Suppose we had the death penalty and they were awaiting execution?

It couldn't be more clear cut.

1. The court was told flat-out by the forensic scientists that there had been another suitcase under the bomb suitcase, between it and the floor of the container.
2. The court was then encouraged to find that the American Tourister suitcase, which had definitely been loaded flat against the bomb suitcase, had been that "underneath" suitcase.
3. On that basis they were encouraged to conclude that the luggage had been rearranged by the man who transferred the cases from the connecting flight (as rearrangement would have been necessary to get the Tourister in that position).

In this way the extraordinarily suspicious case which had been seen in the container before the connecting flight landed (in the position subsequently said to have been occupied by the Tourister) was spirited out of contention by a sort of three-card-trick. "Well, it was moved, so we don't need to worry what it was."

But a clear-headed look at the evidence shows beyond any doubt at all, that all these three points are definitely wrong.

1. The pattern of damage to the cases sitting upright behind the bomb suitcase, and other factors, demonstrate conclusively that the bomb suitcase was the bottom one, without anything underneath it.
2. The condition of another suitcase shows clearly that it was on the other side of the Tourister from the bomb suitcase. The Tourister was blasted upwards, against this other suitcase, not downwards against the floor of the container.
3. The man who transferred the cases from the connecting flight, who was not called as a witness, had given three clear police statements plus repeating this a number of times in the witness box in the 1990 Fatal Accident Inquiry, saying that he didn't rearrange the luggage.

This shows that the bomb was indeed in the case that was seen in the container before the connecting flight landed. Thus it could not have flown in on the connecting flight. Thus it could not possibly have been introduced at Malta by the accused.

If, in the face of all this, and with a man still in jail on the basis of the false interpretation, and appeal court were to say, too bad you had your chance to spot that in 2000 and you missed it so you stay in jail, I think that's anything but justice. It's also anything but certainty and finality.

If a death sentence were then to be carried out on the basis of the false interpretation, how could that country be described as civilised?

 

[Loss Leader]

And of course this works to the benefit of society and fiscal prudence in all those cases in which this sub forum has no great interest.

I have no idea what you mean by this post.

 

[Loss Leader]

If a death sentence were then to be carried out on the basis of the false interpretation, how could that country be described as civilised?

Well, maybe they have a really good public broadcasting system.

Seriously, I don't believe the death penalty is ever appropriate for at least one of the reasons you stated.

In the US, there's almost no recourse if the not-guilty defendant is dead. You could sue the state in tort or get a pardon from the chief executive. Otherwise, you're really not going to ever have satisfaction. The one thing they can't do is go back in time and fix things.

 

[Rolfe]

There are other possibilities here. In this particular case we have the irresistible force of the people who want the truth to be recognised and if possible the investigation re-opened to find out who actually did it, meeting the immovable object of the Crown Office which doesn't want to lose face, admit error and spend a shedload more money on a new investigation.

We'll see who rusts first.

 

[Samson]

I have no idea what you mean by this post.

1. It saves money to avoid hearing too much detail in pointless appeals often driven by the argument of inadequacy of defence.
2. This sub forum generally looks at miscarriages of justice.

That is what I was trying to say.

 

[Henri McPhee]

The Jeffrey MacDonald case in America is an example of how the appeals process can fail. For some unknown reason the 1985 MacDonald appeal, and the 1992 MacDonald appeal, were both presided over by the same biased trial judge. That would never happen in the UK. He was never likely to admit mistakes, or irregularities, even after he was accused of being clearly erroneous, and Brady violations, and quite ludicrously unsatisfactory evidence. Both the biased Judge Dupree and the biased Judge Fox then had their wrong and unsafe verdicts rubber stamped by the 4th Circuit judges and by the Supreme Court.

They only seem interested in legal technicalities about a fair trial rather than if the defendant is factually innocent.

There is a bit of background to all this in a British Penguin book published in 1961 by a solicitor, Leslie Hale, called Hanged in Error:

The Court of Criminal Appeal, for example, was established in 1907 following grave public anxiety over some recent jury verdicts. The Court was empowered to 'allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.....'

Finally, throughout the whole history of miscarriages of justice, both here and abroad, the importance of free and frank criticism is glaringly obvious. Restrictions on criticism, by judge-made law on contempt of court, have gradually increased. The right of Parliamentary question has been slowly abrogated, until quite recently,the Home Secretary declined to be questioned on the exercise of his power to order an inquiry. A reconsideration of the present limitations on the right to question and to criticize, before it is too late, as it has been in the past, is surely necessary.

 

[Planigale]

The people who are say they don't know what would be decided. The Professor Emeritus of Scots Law at Edinburgh University doesn't know, so I guess you'd have to test it. It may come to that.

I have heard that the US courts are particularly difficult on that point, and it may be that Scottish courts aren't so rigid. Unless they want to be, of course.

It's a rather shocking state of affairs though. In this case the man who was convicted due to the error is dead and so the injustice is to the truth rather than to an individual, but suppose someone was still in jail on the basis of the misinterpreted evidence? Suppose we had the death penalty and they were awaiting execution?

It couldn't be more clear cut.

1. The court was told flat-out by the forensic scientists that there had been another suitcase under the bomb suitcase, between it and the floor of the container.
2. The court was then encouraged to find that the American Tourister suitcase, which had definitely been loaded flat against the bomb suitcase, had been that "underneath" suitcase.
3. On that basis they were encouraged to conclude that the luggage had been rearranged by the man who transferred the cases from the connecting flight (as rearrangement would have been necessary to get the Tourister in that position).

In this way the extraordinarily suspicious case which had been seen in the container before the connecting flight landed (in the position subsequently said to have been occupied by the Tourister) was spirited out of contention by a sort of three-card-trick. "Well, it was moved, so we don't need to worry what it was."

But a clear-headed look at the evidence shows beyond any doubt at all, that all these three points are definitely wrong.

1. The pattern of damage to the cases sitting upright behind the bomb suitcase, and other factors, demonstrate conclusively that the bomb suitcase was the bottom one, without anything underneath it.
2. The condition of another suitcase shows clearly that it was on the other side of the Tourister from the bomb suitcase. The Tourister was blasted upwards, against this other suitcase, not downwards against the floor of the container.
3. The man who transferred the cases from the connecting flight, who was not called as a witness, had given three clear police statements plus repeating this a number of times in the witness box in the 1990 Fatal Accident Inquiry, saying that he didn't rearrange the luggage.

This shows that the bomb was indeed in the case that was seen in the container before the connecting flight landed. Thus it could not have flown in on the connecting flight. Thus it could not possibly have been introduced at Malta by the accused.

If, in the face of all this, and with a man still in jail on the basis of the false interpretation, and appeal court were to say, too bad you had your chance to spot that in 2000 and you missed it so you stay in jail, I think that's anything but justice. It's also anything but certainty and finality.

If a death sentence were then to be carried out on the basis of the false interpretation, how could that country be described as civilised?

Practically what does it matter? No one is in jail, it is unlikely anyone would be charged. I do appreciate that there is a virtue in 'truth'. What will happen with a review of Lockerbie?

Trying to correct a miscarriage of justice at least benefits an individual.

 

[Rolfe]

Practically what does it matter? No one is in jail, it is unlikely anyone would be charged. I do appreciate that there is a virtue in 'truth'. What will happen with a review of Lockerbie?

Trying to correct a miscarriage of justice at least benefits an individual.

The family of the man who was wrongly convicted are extremely anxious to clear his name.

There is some possibility of finding the real perpetrators, which matters to a lot of the families of the people who died.

There is some possibility of correcting an egregious error made by the criminal justice system of my country, in such a way as to improve the system for the future. That matters to me.

And yes, that "truth" thing.

But you may also have noticed that I framed the question as a "what if" - what if someone was in jail or even sentenced to death on that completely discredited evidence. Is it right that legal rules about admissibility of evidence on appeal should prevent him being acquitted?

 

[nota]

Originally Posted by nota View Post
I do NOT think a lawyer should be allowed to make laws
as there is a very basic conflict of interest in that

How do you feel about plumbers designing water systems or mathematicians creating new math? Same problem?

new math sucked
plumbers should follow a plan by a engineer/architect

but a 13 year old kid is expected to understand and obey the law
or suffer the wrath of the law in some cases the full wrath in adult court

I think we would have a better fair just cheaper quicker system
if the people made the laws for the people
without the lawyers who make laws for lawyers

and a simple rule was if the 13 year old kid can't understand the law
it is unconstitutionally vague and needs a rewrite