Once Libby verdict is announced, what may happen next ....

[Blackhatjack]

I have executed criminal appeals.

There are two stages to post verdict finality.

The first phase is post verdict motions, usually directed to the trial judge and ruled upon by him. Motion(JNOV) to set aside the verdict as being contrary to the factual evidence presented in the trial. Motions regarding any issue which is deemed to have deprived defendant of a fair trial which could not have been raised prior to the entry of a verdict. Motions related to the proper sentencing of the defendant, and motions for a reduction of the sentence after it has been entered. Motions related to allowing defendant to remain free on bond pending appeal. Any other motion for appropriate relief.

THe second is the execution of the formal appeals process. Many deadlines and requirements must be met. I won't try to summarize it all in detail, but a couple things to remember.

First, a trial transcript is obtained and reviewed, usually by defense attorneys WHO DID NOT TRY THE CASE. This makes it possible for another attorney to spot 'ineffective assistance of counsel' issues, and raise these issues on behalf of the defendant. It also allows a new set of eyes to spot issues that the attorney who tried the case might have overlooked.

Second, appellate issues are never evaluated by defense counsel on the basis of 'guilty as sin' determinations, and raising an 'insignificant' issue on appeal. To do so would subject the appellate lawyer to sanctions since a lot of time and money is expended in the process by everyone involved. All appellate attorneys know and understand that the appellate court will turn down any appeal that does not substantially impair the defendant's right to a fair trial.

THe standard that must be overcome is it must be more than 'harmless error' which means that there could be a real and proven violation of the rules that govern evidence and procedure, but it must have substantially altered the outcome of the trial and/or the sentence. Sometimes it seems that obvious and real errors were committed and the appellate court just ignores it by stating it was 'harmless error.' In that case, you may have succeeded in proving the violations, but nonetheless it is ball game over.

The real baseline to the appellate process is that the trial must have been 'just' not necessarily 'fair.' A just trial means it followed the rules and the violations of those rules did not alter the outcome that was warranted. It is not always fair, meaning that everything that could have been done was not done.

In regard to issues arising about the jury and its conduct, that goes directly to the heart of the criminal justice system. Anything that affects the jury's ability to carry out its duties according to the rules they must operate under is almost always a reversible issue on appeal.

Even if the Judge, the attorneys for the defendant and the prosecutors all agree DURING the trial that this jury was not 'contaminated' the truth is they do not know. Further, if there is evidence that comes forward from the jury members AFTER the verdict is rendered which shows that they were 'contaminated' then the agreement of the judge and the attorneys during trial is meaningless.

Some errors cannot be fixed, and cannot be overlooked just because counsel and the judge agree to do so. That is something appellate courts take very seriously. And these instances usually get lots of press where it is presented to the public that the defendant got his conviction 'overturned on a technicality.' In truth, no conviction is ever overturned on a technicality. It is almost always the result of some rule that protects us all were we in the shoes of the defendant from a trial procedure that does not afford us the basic constitutional rights we all are entitled to receive.

I know this is longer than most want to read, but I thought it might help people understand what may happen next once a verdict is announced in this case.

[Blackhatjack]

1. Must be too early to discuss this ....n/t