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General Discussion of Fresh Evidence at appeal

If there is evidence that there was a mistrial, or evidence that proves a prisoner is innocent, then no judge should be allowed to reject that appeal just because he thinks another jury would come to the same conclusion.
 
Henri McPhee said:
Appeals should be easier for innocent people and not just for people with the biggest purse.
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Henri, watch closely the pending Mark Lundy appeal, there is much at stake. It is at the end of October, check the thread here, or just google it up.
 
From a book called English Justice written by a solicitor and published in 1932 with regard to appeals:

Let any reader who doubts the necessity of making further provision for appeal consider the magistrates with whom he is personally acquainted, and ask himself whether he would be willing to put the question of his personal liberty at their uncontrolled discretion.
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Henri McPhee said:
An appeal judge should be a man of character.
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In the case I am talking about the appeal is of such wide ranging nature that the prosecution will surely argue a lot has already been considered. It is going to be interesting, the appeal submissions may prove a wrongful conviction with precision and elaborate detail, yet in New Zealand this is not usually enough.
 
It's particularly important to carefully consider fresh evidence at appeal. It may not matter in cases involving professional burglars, but in execution cases it can mean life or death.

Personally, I think it would be better for all concerned if psychopaths and murderers were executed. My only objections in the past has been that judges and juries don't always have right judgement. The penalty for murder used to be death. I half-suspect that much of the pressure to abolish the death penalty came from Germany, who wanted their war criminals to get off scot free.
 
Henri McPhee said:
It's particularly important to carefully consider fresh evidence at appeal. It may not matter in cases involving professional burglars, but in execution cases it can mean life or death.

Personally, I think it would be better for all concerned if psychopaths and murderers were executed. My only objections in the past has been that judges and juries don't always have right judgement. The penalty for murder used to be death. I half-suspect that much of the pressure to abolish the death penalty came from Germany, who wanted their war criminals to get off scot free.
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Henri, the safe approach is for society to continue to take care of the live offender. Rod Miller of Texas was the sole custodian of the forensic evidence that has served to keep Mark Lundy in jail. He said that Lundy would have been executed in Texas, yet it is certain he is innocent.

The Lundy case is now progressing with consideration of fresh evidence. In written submissions Philip Morgan said the petrol evidence, that which in science and fact determines that Mark Lundy had 35 liters insufficient petrol to do 3 trips rather than one trip (return killing trip plus trip to the police cordon). was not fresh evidence.
I attended the three day appeal hearing, and Morgan was challenged by Helen Winkelmann j, one of 3 judges.
Mr Morgan, can we turn this around, is there any evidence the defence are bringing you do deem fresh?
Morgan said, in fact, yes, the petrol evidence that was determined by racetrack trials by a scientist Robertson was fresh.
So there is a striking reversal of the written submission.
If any lawyers are following this thread, I would be interested in their view.
 
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Samson said:
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.
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The omission by the judge can certainly raise grounds for appeal because it may be an error of law. There's no "fresh evidence" in this case. The evidence was all adduced at trial. The judge may have made a mistake in charging the jury.

If the judge has told the jury the wrong information about the law, that's reversible.
 
Loss Leader said:
The omission by the judge can certainly raise grounds for appeal because it may be an error of law. There's no "fresh evidence" in this case. The evidence was all adduced at trial. The judge may have made a mistake in charging the jury.

If the judge has told the jury the wrong information about the law, that's reversible.
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It depends whether it was ever entered into the evidence / legal issues list in the first place.

Not all 'evidence' comes up in a trial as being an 'issue'.

Or, the defence may have submitted it as an issue and their application dismissed.

In that case, there is no obligation for the judge to mention it in a summing up.
 
Vixen said:
It depends whether it was ever entered into the evidence / legal issues list in the first place.

Not all 'evidence' comes up in a trial as being an 'issue'.

Or, the defence may have submitted it as an issue and their application dismissed.

In that case, there is no obligation for the judge to mention it in a summing up.
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Yes, well, um ... all of that is pretty obvious. Also, a judge doesn't sum anything up. She charges the jury.
 
I don't know if they ever discussed fresh evidence at an appeal in Nazi
justice, or Soviet justice, or even Egyptian and Iranian justice.
 
Loss Leader said:
Yes, well, um ... all of that is pretty obvious. Also, a judge doesn't sum anything up. She charges the jury.
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That is a statement that unfortunately passes the layperson by. I spent 3 days at the Lundy appeal and listened to all parties discuss the summing up of Judge France. It is pivotal for reasons I will elaborate, but I am happy to hear this charging of the jury explained in plain(er) English.
 
This case of the murders by Stone in the UK on Sky News today demonstrates lurking doubt and is why there should be fresh evidence on appeal. Personally, I have always thought Stone a suspicious character, but he could be completely innocent as charged:

Levi Bellfield admitted to the hammer murders of a woman and her daughter in a "very detailed" confession, according to lawyers acting for a man convicted of the killings.

Michael Stone is serving life sentences for bludgeoning Dr Lin Russell, 45, and her six-year-old daughter Megan to death near the village of Chillenden in Kent, in 1996.

He was also convicted of the attempted murder of Dr Russell's other daughter Josie, nine, who suffered severe head injuries in the attack on a country lane.
Stone has always maintained his innocence and his legal team says they are set to present new evidence which points to Bellfield, whose three murder victims included 13-year-old Milly Dowler.

The lawyers said: "There is now new and compelling evidence which proves that (Stone) was not responsible for these awful crimes.
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Henri McPhee said:
This case of the murders by Stone in the UK on Sky News today demonstrates lurking doubt and is why there should be fresh evidence on appeal. Personally, I have always thought Stone a suspicious character, but he could be completely innocent as charged:
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I am quite sceptical, as I saw Stone's defence lawyers putting forward their case on a minority channel with a little watched documentary. They use they typical defence lawyer spin:

- They claim Stone was convicted on merely circumstantial evidence.

- They put forward arguments as to why they did not think it was his car that was seen by witnesses (pure opinion)

- They put forward a alternative perpetrator.

- The alternative perpetrator is someone with a string of murder convictions under his belt (so, the argument seems to suggest, why not stick another one on him?)

- The claim Bellfield has 'made a full confession' should be taken with a pinch of salt. They brought this up in the tv documentary, and it turns out to be another 'a prison inmate claims Bellfield confessed to him in prison he did it' (shades of Shawkshank Redemption).

The police did respond and there is incriminating forensic evidence which points to Stone. They didn't give any credence to the Bellfield theory.

the public seem to love a 'wrongfully convicted' story.

The fact this tired defence has today made headline news indicates how gullible the media is to these claims of 'new evidence', which turns out to be old hat which was already discredited at the time, from what I can discern.
 
I read an interesting article suggesting Stone was innocent, some time in 2011 I think. The author, a lawyer, suggested that nobody would touch this as Stone was actually a psychopath and nobody wanted to be responsible for letting him out.

I'm on my phone at the moment but I'll try to find it later.

ETA: That was easy. http://www.davidwolchover.co.uk/docs/Gaol Cell Confessions.doc

I see it has been recently revised and it's a long time since I read it so I think I should read it again.
 
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It is easy to see that that innocent persons may be put in grave peril by such means as bolstering up false evidence. The police usually find, or think they have found, who has committed a crime, before they start to obtain legal evidence against him. Unfortunately they are apt to jump to conclusions. It is the magistrates, and not the police, on whom the responsibility for accepting or rejecting the evidence rests, but benches as a rule do not realise this, and merely "support the police".
 
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