Fogbow

Maybenaut wrote: ↑Mon Nov 08, 2021 4:32 pm

andersweinstein wrote: ↑Mon Nov 08, 2021 3:10 pm

Maybenaut wrote: ↑Mon Nov 08, 2021 2:37 pm

Well, it was the statute he was convicted of violating, and the appellate court said,



One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

OK. It is something that an appellate court failed to spontaneously notice the argument existed. But how significant is that really? Wouldn't one expect they would be extremely unlikely to spontaneously come up with this argument on the defendant's behalf if no one ever spelled it out for them? It's far from obvious on its face. And isn't it true that, in this context, they don't really scour the statutory text for any possible loophole with anything like the same energy as a defense lawyer fighting a charge?

No, that’s not true. When counsel filed a “no merits” brief, the court was obligated under California v. Anders, 386 U.S. 738 (1967), to independently review the entire record for appellate issues, which it did in Fultz’s case.

But what the fuck do I know about criminal appeals?

It is frustrating talking to idiots*.

* worthwhile if they are willing to learn,
Infuriating when they are proud of their intransigent belief that they are right even when they are wrong.

Maybenaut wrote: ↑Mon Nov 08, 2021 4:32 pm
But what the fuck do I know about criminal appeals?

Mabenaut, I feel moved to thank you for your many years of Fogbow posts on many subjects, but especially for your expert commentary on criminal and military law issues.



Edit: fixed embarrassing misspelling.

bob wrote: ↑Mon Nov 08, 2021 3:26 pm

andersweinstein wrote: ↑Mon Nov 08, 2021 3:19 pmIt's a case of them not finding it on their own as a possible issue when no one has brought it to their attention.

Again:

bob wrote: ↑Mon Nov 08, 2021 3:10 pmThe court also will satisfy itself there are no issues.

Ignoring that doesn't make it any less true.

And there’s a very good reason that the Supreme Court has placed this burden on the appellate courts. Reasonable minds can differ about where the frivolous line is. Counsel obviously doesn’t want to put his or her license at risk by making a frivolous argument to the court. But the Supreme Court balanced that concern against the requirement that criminal defendants get a fair trial. So they put the onus on the appellate court.

I have no reason to think that the judges in any appellate court system don’t take that obligation seriously. So I’m a little put off by the notion that they don’t put “the same energy” into that aspect of their roles as appellate judges.

chancery wrote: ↑Mon Nov 08, 2021 4:46 pm

Maybenaut wrote: ↑Mon Nov 08, 2021 4:32 pm
But what the fuck do I know about criminal appeals?

Mabynaut, I feel moved to thank you for your many years of Fogbow posts on many subjects, but especially for your expert commentary on criminal and military law issues.

Maybenaut wrote: ↑Mon Nov 08, 2021 4:32 pm

andersweinstein wrote: ↑Mon Nov 08, 2021 3:10 pm

Maybenaut wrote: ↑Mon Nov 08, 2021 2:37 pm
Well, it was the statute he was convicted of violating, and the appellate court said,

One would think that if the appellate court thought the statute didn’t apply to 17–year-olds they would have set aside the conviction for failure to state an offense.

OK. It is something that an appellate court failed to spontaneously notice the argument existed. But how significant is that really? Wouldn't one expect they would be extremely unlikely to spontaneously come up with this argument on the defendant's behalf if no one ever spelled it out for them? It's far from obvious on its face. And isn't it true that, in this context, they don't really scour the statutory text for any possible loophole with anything like the same energy as a defense lawyer fighting a charge?

No, that’s not true. When counsel filed a “no merits” brief, the court was obligated under California v. Anders, 386 U.S. 738 (1967), to independently review the entire record for appellate issues, which it did in Fultz’s case.

But what the fuck do I know about criminal appeals?

Thanks. I put that as a question precisely because I didn't know, but took it you would be able to tell me.

I'm just trying to get a sense for how telling it is that an appeals court failed to find this non-obvious argument in their review. I mean, it apparently doesn't preclude defense from trying the argument now, right? It just suggests it's a longshot?

Maybenaut wrote: ↑Mon Nov 08, 2021 4:46 pmI have no reason to think that the judges in any appellate court system don’t take that obligation seriously.

The shipping clerks serve to live!

So I’m a little put off by the notion that they don’t put “the same energy” into that aspect of their roles as appellate judges.

In a no-merit brief from a guilty plea, the plea itself is going to be the main focus. So the shipping clerk court will read the plea, to make sure plea was proper. And part of determining whether the plea was proper means cross-checking against the charged statute. (You can't (validly) plead to stealing a car if you only fished without a license, for example.)

So, in this type of appeal, the statutory language is even less of a proverbial needle. Because the haystack is so much smaller.

I think it’s very telling. Marcus Fultz represents the personification of the defense’s argument: a 17-year-old who was in possession of a rifle who was not engaged in hunting.

What isn’t spelled out in the decision in Fultz’s case, but mentioned by the appellate court, is that the jury instructions were provided to him in anticipation of his guilty plea, and the judge in that case engaged in a plea colloquy, which is where the judge goes over all of the elements of the offense and makes sure before accepting the plea that the defendant knows what it is that he’s pleading guilty to, and is actually guilty.

So not only did the appellate court apparently think that the statute applied to 17-year-olds, so did the trial judge. So did the guy’s trial attorney. So did his appellate attorney. That, of course, is because it’s pretty clear to everyone except for Kyle Rittenhouse his defense team that the statute applies to 17 year olds. And as I’ve said before, they may not actually believe it. They’re just doing what they have to do.

bob wrote: ↑Mon Nov 08, 2021 5:02 pm And part of determining whether the plea was proper means cross-checking against the charged statute. (You can't (validly) plead to stealing a car if you only fished without a license, for example.)

So, in this type of appeal, the statutory language is even less of a proverbial needle. Because the haystack is so much smaller.

Exactly. For me, the starting point in every case I get is this: is what this guy has been convicted of even a crime? I assume the appellate courts under California v. Anders do the same thing.

Maybenaut wrote: ↑Mon Nov 08, 2021 5:06 pmSo not only did the appellate court apparently think that the statute applied to 17-year-olds, so did the trial judge. So did the guy’s trial attorney. So did his appellate attorney.

And, "for completeness," so did the prosecutor.

Maybenaut wrote: ↑Mon Nov 08, 2021 5:09 pmFor me, the starting point in every case I get is this: is what this guy has been convicted of even a crime? I assume the appellate courts under California v. Anders do the same thing.

Yeah. I mean, if it is a crime that pre-dates the United States (e.g., common-law burglary), there's a certain degree of certainty it is. But crimes that are essentially status crimes,* you need to look at the statutory language.


* Which I consider all "minor in possession of _____" crimes to be, as the criminalizing factor ultimately is the age and not the conduct.

Maybenaut wrote: ↑Mon Nov 08, 2021 5:06 pm I think it’s very telling. Marcus Fultz represents the personification of the defense’s argument: a 17-year-old who was in possession of a rifle who was not engaged in hunting.

Thanks for making the effort to spell this out.

Maybenaut wrote: ↑Mon Nov 08, 2021 5:06 pm What isn’t spelled out in the drcisiin in Fultz’s case, but mentioned by the appellate court, is that the jury instructions were provided to him in anticipation of his guilty play, and the judge in that case engaged in a plea colloquy, which is where the judge goes over all of the elements of the offense and makes sure before accepting the plea that the defendant knows what it is that he’s pleading guilty to, and is actually guilty.

But I assume the instructions would not have included mention of any possible exceptions, since, apparently, they were not put in issue at trial, and we've seen the recommendation to treat exceptions as akin to affirmative defenses.

Maybenaut wrote: ↑Mon Nov 08, 2021 5:06 pm So not only did the appellate court apparently think that the statute applied to 17-year-olds, so did the trial judge. So did the guy’s trial attorney. So did his appellate attorney. That, of course, is because it’s pretty clear to everyone except for Kyle Rittenhouse his defense team that the statute applies to 17 year olds. And as I’ve said before, they may not actually believe it. They’re just doing what they have to do.

Well there's no question that this consensus understanding of the law has arisen. It has been stated on the DNR web site and in a statement from the legislature. Rittenhouse himself fully believed it, I think.

BTW this all is much more significant for Dominick Black, whose lawyers are making the same argument in his case. He is facing felony charge for providing the weapon to a minor, with increased severity because it was discharged by the recipient causing a death. They've charged two counts for the two deaths, though defense has a motion pending that the law doesn't support multiple counts for one act of providing.

Interestingly, I believe Black is still fully on the hook even if Rittenhouse gets off on all homicide charges. As written, the "caused a death" part doesn't depend on how the death was caused: it could be murder, but also suicide or accident. So I think it could also be justifiable homicide committed in fully lawful self-defense too.

But being a vigilante is surely a get out of jail free card?

andersweinstein wrote: ↑Mon Nov 08, 2021 5:30 pm Interestingly, I believe Black is still fully on the hook even if Rittenhouse gets off on all homicide charges. As written, the "caused a death" part doesn't depend on how the death was caused: it could be murder, but also suicide or accident. So I think it could also be justifiable homicide committed in fully lawful self-defense too.

Huh. Never thought about that. Shirley there must be _some_ reason they put Black's case on hold until Rittenhouse's was adjudicated though.

raison de arizona wrote: ↑Mon Nov 08, 2021 5:38 pm

andersweinstein wrote: ↑Mon Nov 08, 2021 5:30 pm Interestingly, I believe Black is still fully on the hook even if Rittenhouse gets off on all homicide charges. As written, the "caused a death" part doesn't depend on how the death was caused: it could be murder, but also suicide or accident. So I think it could also be justifiable homicide committed in fully lawful self-defense too.

Huh. Never thought about that. Shirley there must be _some_ reason they put Black's case on hold until Rittenhouse's was adjudicated though.

Possibly not to influence Kyle's case.

If Black was convicted prior to Kyle's case, then the jury might be influenced to believe that babyface Kyle was a criminal before he killed 2 people.

Hoist by their own petard.

Tucker Carlson has been playing an edited version of drone footage which rwnj have been using to "prove" Rittenhouse is an innocent victim.

Due to the uproar rwnj made of that, the police made efforts to obtain the raw footage. The raw footage shows that prior to coming around the other side of the car to approach Rittenhouse, Rittenhouse stops, turns, puts down a fire extinguisher and points his rifle in the direction of the Ziminskis. Prior to this there wasn't actual footage of Rittenhouse pointing his gun at anyone (except the people he shot). Oops.

Edited - the best part. The drone footage, being from above, shows that Rosenbaum is too far away from Rittenhouse to have touched his gun before Rittenhouse shoots him. That's a big deal. Because so far, the only person close enough to see, the Daily Caller videographer, testified that he thought Rosenbaum "went for Rittenhouse's gun". But the drone footage shows that wouldn't have been possible. The witness couldn't see past Rosenbaum, and therefore really couldn't judge how close they were. But the drone footage closes the door on the idea that Rosenbaum grabbed his gun before he shot. Oops.

Thanks Tucker! We owe you one.

WHAT!!!
Innocent Kyle threatened people with lethal force!!!!!
Neva! he be only defending himself against those evil protesters..

RVInit wrote: ↑Mon Nov 08, 2021 5:45 pm

Hoist by their own petard.

Tucker Carlson has been playing an edited version of drone footage which rwnj have been using to "prove" Rittenhouse is an innocent victim.

Due to the uproar rwnj made of that, the police made efforts to obtain the raw footage. The raw footage shows that prior to coming around the other side of the car to approach Rittenhouse, Rittenhouse stops, turns, puts down a fire extinguisher and points his rifle in the direction of the Ziminskis. Prior to this there wasn't actual footage of Rittenhouse pointing his gun at anyone (except the people he shot). Oops.

Edited - the best part. The drone footage, being from above, shows that Rosenbaum is too far away from Rittenhouse to have touched his gun before Rittenhouse shoots him. That's a big deal. Because so far, the only person close enough to see, the Daily Caller videographer, testified that he thought Rosenbaum "went for Rittenhouse's gun". But the drone footage shows that wouldn't have been possible. The witness couldn't see past Rosenbaum, and therefore really couldn't judge how close they were. But the drone footage closes the door on the idea that Rosenbaum grabbed his gun before he shot. Oops.

Thanks Tucker! We owe you one.

Can you please indicate a source where one can view this raw footage? I would be interested.

If you saw it shown during the trial, it would be viewable on one of the many live streams up on youtube, so all you would have to do is indicate at which point in the trial -- which witness, for example -- it was presented.

I had to switch to watch the Ahmaud Arbery trial.

Everything I am posting is coming directly from evidence testified to in trial. The detective testified that he viewed the drone footage on his iPhone which allowed him to zoom in and that is where he can see that Rittenhouse points his gun at the Ziminskis prior to the last chase where he kills Rosenbaum. The raw unedited drone footage was only obtained by the police on Friday, so the prosecutor has not had time to record a zoomed in version that the jury will be able to see. As of today it's only the sworn testimony of the detective saying you can see Rittenhouse pointing his gun at the Ziminskis if you zoom in on the footage. The prosecutor indicates his office is working on making a zoomed version of the video available to be played in court.

Patagoniagirl wrote: ↑Mon Nov 08, 2021 6:02 pm I had to switch to watch the Ahmaud Arbery trial.

Another case where the vigilantes are claiming that they killed in self defense...

Dave from down under wrote: ↑Mon Nov 08, 2021 6:20 pm

Patagoniagirl wrote: ↑Mon Nov 08, 2021 6:02 pm I had to switch to watch the Ahmaud Arbery trial.

Another case where the vigilantes are claiming that they killed in self defense...

It's a habit.

What does this mean?



Dunford retweeted it.

RVInit wrote: ↑Mon Nov 08, 2021 6:14 pm Everything I am posting is coming directly from evidence testified to in trial. The detective testified that he viewed the drone footage on his iPhone which allowed him to zoom in and that is where he can see that Rittenhouse points his gun at the Ziminskis prior to the last chase where he kills Rosenbaum. The raw unedited drone footage was only obtained by the police on Friday, so the prosecutor has not had time to record a zoomed in version that the jury will be able to see. As of today it's only the sworn testimony of the detective saying you can see Rittenhouse pointing his gun at the Ziminskis if you zoom in on the footage. The prosecutor indicates his office is working on making a zoomed version of the video available to be played in court.

OK. I look forward to seeing this.

It has been known that Rittenhouse came up against the Ziminskis as he ran onto the lot. Seems likely Ziminski had his gun in his hand; he is seen holding it on other occasions that night and fired it shortly after.

pipistrelle wrote: ↑Mon Nov 08, 2021 6:43 pm What does this mean?

You found the embedded tweet, but to be explicit: Reasonable doubt.