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  #701  
Old 12-03-2017, 08:15 AM
TokyoBayer TokyoBayer is offline
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Originally Posted by Northern Piper View Post
Why? they are two separate things. An accused's right to appeal shouldn't come with the risk of a greater sentence as a punishment for exercising that right.
It seems that PastTense is mistaken in that the defendant in this case in not appealing the sentence but rather the conviction itself.

If I were the prosecutor, I'd be tempted to not contest the appeal and go for another conviction in order to get a longer sentence. I have no idea of the actual strength of the case of course, but if they got a conviction the first time, it would seem possible to get it again.

Last edited by TokyoBayer; 12-03-2017 at 08:16 AM.
  #702  
Old 12-03-2017, 10:31 AM
JRDelirious JRDelirious is offline
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So he got off lightly, but now he wants to clear his record completely. Which I can understand he would.

But at the same time is again evidence that to him, he is the wronged party in this whole incident. Privileged prickhead.

What next, sue Google so searches for his name don't bring this up?

Last edited by JRDelirious; 12-03-2017 at 10:32 AM.
  #703  
Old 12-03-2017, 10:35 AM
Morgenstern Morgenstern is online now
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I guess the sexual predator doesn't like having to register as a sex offender for the rest of his life. I can understand that.
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  #704  
Old 12-03-2017, 11:35 AM
Mr. Miskatonic Mr. Miskatonic is offline
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Last edited by Mr. Miskatonic; 12-03-2017 at 11:36 AM.
  #705  
Old 12-03-2017, 11:36 AM
Mr. Miskatonic Mr. Miskatonic is offline
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Originally Posted by TokyoBayer View Post
It seems that PastTense is mistaken in that the defendant in this case in not appealing the sentence but rather the conviction itself.

If I were the prosecutor, I'd be tempted to not contest the appeal and go for another conviction in order to get a longer sentence. I have no idea of the actual strength of the case of course, but if they got a conviction the first time, it would seem possible to get it again.
Sadly that would mean the victim would have to go through cross examination again.
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  #706  
Old 12-03-2017, 12:20 PM
Merneith Merneith is offline
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The victim in this case is made of steel. She told the first judge that he'd "ignited a tiny fire" and that was reason for us all to speak louder.

She might actually welcome this.
  #707  
Old 12-03-2017, 12:55 PM
Mr. Miskatonic Mr. Miskatonic is offline
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The victim in this case is made of steel. She told the first judge that he'd "ignited a tiny fire" and that was reason for us all to speak louder.

She might actually welcome this.
The article she wrote started with the description of her cross-examination where Brock's lawyer tried a million different ways to make it her fault. This cross-examination is why she utterly rejected his 'apology' during his sentencing, as in: "You made me go through that because you thought you could get away with it, now that you aren't going to get away with it you say you are sorry?!"

She's tough, absolutely, but she shouldn't have to go through this. Brock is just being cruel as is his usualy self. The guy needs to be slapped in the face every minute for the rest of his life.
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  #708  
Old 12-03-2017, 02:16 PM
Merneith Merneith is offline
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No, she shouldn't have to. This should have been handled properly to begin with. Brock should still be in jail. The Olde Stanford Boys network should be dismantled.

But "should" doesn't get you anything in this world.
  #709  
Old 12-03-2017, 03:13 PM
Procrustus Procrustus is offline
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Originally Posted by TokyoBayer View Post

If I were the prosecutor, I'd be tempted to not contest the appeal and go for another conviction in order to get a longer sentence. I have no idea of the actual strength of the case of course, but if they got a conviction the first time, it would seem possible to get it again.
With limited exceptions, a defendant cannot receive a harsher sentence following retrial after appeal.

North Carolina v. Pearce,  395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) the Court addressed the issue of judicial vindictiveness following successful appeals:
Quote:
In order to assure the absence of such a [vindictive] motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.   Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.   And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
  #710  
Old 12-03-2017, 03:25 PM
Sunny Daze Sunny Daze is offline
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I am curious about this:

Quote:
Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.
What sort of objective information about identifiable conduct would matter? It sounds like it would have to be actions taken after the first trial, so it can't be what the defendant was actually tried for.
  #711  
Old 12-03-2017, 03:33 PM
Mr. Miskatonic Mr. Miskatonic is offline
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Well he still maintains it was consensual in a ludicrous letter to the judge, and he sent that letter after the guilty vertdict. That would indicate a lack of remorse and I wonder if that could be brought up if a second trial gets a guilty verdict.
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  #712  
Old 12-03-2017, 03:41 PM
madsircool madsircool is offline
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Originally Posted by Procrustus View Post
With limited exceptions, a defendant cannot receive a harsher sentence following retrial after appeal.

North Carolina v. Pearce,  395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) the Court addressed the issue of judicial vindictiveness following successful appeals:
Thank you for this post. It fought my ignorance.
  #713  
Old 12-03-2017, 04:44 PM
Mr. Miskatonic Mr. Miskatonic is offline
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Talking with a defense lawyer about this and he stated: "Pearce is about judicial vindictiveness. The general rule is you only can get a harsher sentence if the judge states reasons on the record. Wouldn't be hard to justify here."
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  #714  
Old 12-03-2017, 04:47 PM
Sunny Daze Sunny Daze is offline
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Got it. Thank you for the clarification.
  #715  
Old 12-03-2017, 04:57 PM
Procrustus Procrustus is offline
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Originally Posted by Mr. Miskatonic View Post
Talking with a defense lawyer about this and he stated: "Pearce is about judicial vindictiveness. The general rule is you only can get a harsher sentence if the judge states reasons on the record. Wouldn't be hard to justify here."
Reasons that the judge didn't know when the first sentence was handed down.

I agree, the defendant is taking a risk that the next sentence will be longer, but there is certainly a good argument prohibiting that. If the appellate court threw out this conviction (unlikely) and ordered a new trial, the Prosecution might simply let it go, since the sentence has already been served. In a lower profile case, that would be the likely result. Here, there's a chance they would go through another trial and see what happens.
  #716  
Old 12-04-2017, 03:49 AM
AK84 AK84 is offline
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Quote:
Originally Posted by Mr. Miskatonic View Post
Talking with a defense lawyer about this and he stated: "Pearce is about judicial vindictiveness. The general rule is you only can get a harsher sentence if the judge states reasons on the record. Wouldn't be hard to justify here."
What would those reasons be? Social media disapproves is unlikley to be a judicially defendable reason.

Anyone have California statutory and case law on the subject? In many juridictions, there is a bar to a harsher punishment on retrial after successful appeal. Its often not a complete bar, but is there. And I would suppose the Appellant's lawyers have high confidence that there is little risk to their client of further punishment. Otherwise they would have advised against it.
  #717  
Old 12-04-2017, 03:51 AM
AK84 AK84 is offline
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Originally Posted by TokyoBayer View Post
It seems that PastTense is mistaken in that the defendant in this case in not appealing the sentence but rather the conviction itself.

If I were the prosecutor, I'd be tempted to not contest the appeal and go for another conviction in order to get a longer sentence. I have no idea of the actual strength of the case of course, but if they got a conviction the first time, it would seem possible to get it again.
Not necessarily. If the Court decides to reverse of sufficieny of evidence grounds, then a retrial is barred.
  #718  
Old 12-04-2017, 10:08 AM
Mr. Miskatonic Mr. Miskatonic is offline
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What would those reasons be? Social media disapproves is unlikley to be a judicially defendable reason.
As it was explained to me:

The guide is the avoidance of judicial malice. A new trial would not make the 1st trial go away so as I understand it the judge could simply say after a guilty verdict "Given the following: despite the light punishment the defendant recived in the first trial, he has shown no remorse whatsoever for his crime I am giving him a reasonable punishment." As long as it was within sentencing guidelines there would be no real complaint.

Quote:
Anyone have California statutory and case law on the subject? In many juridictions, there is a bar to a harsher punishment on retrial after successful appeal. Its often not a complete bar, but is there. And I would suppose the Appellant's lawyers have high confidence that there is little risk to their client of further punishment. Otherwise they would have advised against it.
For the typically the bar against harsher punishment on retrial is when nothing new is revealed or determined. As I noted above in this case the lawyer i talked to said that it would be very easy to find reason in a retrial.

I have to wonder - the complaint is 172 pages and some 60 of them are devoted to how drunk the victim was, which really does not establish anything except page filler and maybe makes the lawyer look like he's doing something. The crux of the complaint hinges around the DA calling the assault taking place 'behind a dumpster' when it was merely a in a 3 sided shed that normally housed a dumpster. The lawyer thus say it was therefore 'in the open' since you could see in one side (that faced a basktball court).

This almost has the look at of a lawyer being told he has to 'do something' and the lawyer explaining the risks of a retrial but the kid or his Dad not accepting that as a answer.

(Note: the last two paragraphs I am not relaying anything said lawyer told me but I am talking out of pure IMHO).
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Last edited by Mr. Miskatonic; 12-04-2017 at 10:08 AM.
  #719  
Old 12-04-2017, 10:36 AM
AK84 AK84 is offline
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Hmmm. The level of drunkenness can absolutely be an issue. Drunken consent is still consent. If the Appellant can show that no reasonable jury could have have concluded based on the record that the victim was too drunk to consent. Being too drunk to consent is one of the requirements of the section https://h2o.law.harvard.edu/text_blocks/30058 he was convicted under.

The dumpster/garbage can is more straight forward. He claims that the Prosecutor told the jury the deed was done behind a garbage dumpster. They are claiming the record did not show that and the statement was unfairly prejudicial since it would make the jury draw an inference; i.e he was trying to hide, when in fact the area was visible and he was not trying to hide, and as he was not trying to hide he clearly always believed h had consent, or the jury could have considered.

I am not saying BTW, that is true, only that it is the reason why they placed it there. I have only read parts of the brief, not seen the record, cannot comment if they have a point.

I also don’t think your explanation for an increased quantum of sentence will pass muster. It’s his statutory right to appeal. As is his right to maintain his innocence.
  #720  
Old 12-04-2017, 11:22 AM
Mr. Miskatonic Mr. Miskatonic is offline
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Hmmm. The level of drunkenness can absolutely be an issue. Drunken consent is still consent. If the Appellant can show that no reasonable jury could have have concluded based on the record that the victim was too drunk to consent. Being too drunk to consent is one of the requirements of the section https://h2o.law.harvard.edu/text_blocks/30058 he was convicted under.
That may be a point, but I'm not sure where they are going with it.

Quote:
The dumpster/garbage can is more straight forward. He claims that the Prosecutor told the jury the deed was done behind a garbage dumpster. They are claiming the record did not show that and the statement was unfairly prejudicial since it would make the jury draw an inference; i.e he was trying to hide, when in fact the area was visible and he was not trying to hide, and as he was not trying to hide he clearly always believed h had consent, or the jury could have considered.
One of the lawyers also claimed that be describing it as a dumpster he prejduced the jury since dumpsters are filthy things.

Quote:
I am not saying BTW, that is true, only that it is the reason why they placed it there. I have only read parts of the brief, not seen the record, cannot comment if they have a point.
If they are going for gross misconduct on the part of the DA with the dumpster they seem mighty short. The drunken consent angle might have a nibble but it sounds like they are fighting a 'he said, she was incapacitated' hill.

Quote:
I also donít think your explanation for an increased quantum of sentence will pass muster. Itís his statutory right to appeal. As is his right to maintain his innocence.
It can happen: and appeal is no assurance of a lesser or equal sentence. You do have the right to appeal, absolutely, but:

https://law.justia.com/constitution/...onviction.html

Quote:
Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the double jeopardy clause against receiving a greater sentence upon his second conviction.133 An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on re-trial when on the first trial the jury had declined to impose a death sentence.134
This happens in civil cases as well: if one side was charged court costs and tries to appea, those court costs will go up. Bit more automatic there, however.
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  #721  
Old 12-04-2017, 12:48 PM
Dewey Finn Dewey Finn is offline
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Originally Posted by Procrustus View Post
Quote:
Originally Posted by Mr. Miskatonic View Post
Talking with a defense lawyer about this and he stated: "Pearce is about judicial vindictiveness. The general rule is you only can get a harsher sentence if the judge states reasons on the record. Wouldn't be hard to justify here."
Reasons that the judge didn't know when the first sentence was handed down.
As I recall, the defendant/convicted rapist claimed that he was an innocent, corrupted by the big city folks after arriving at Stanford. But someone showed emails and text messages he sent as a high school student talking about extensive alcohol and drug usage. So the claims of innocence were bullshit. I don't know if this information was considered by the original judge.
  #722  
Old 12-07-2017, 08:46 PM
Spice Weasel Spice Weasel is online now
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Originally Posted by Merneith View Post
The victim in this case is made of steel. She told the first judge that he'd "ignited a tiny fire" and that was reason for us all to speak louder.

She might actually welcome this.
I can relate to the victim on some level with regard to feeling that need to speak louder. What is likely the case, and that she is unlikely to articulate, is that it is exhausting, painful, emotional labor to speak at all. I'm not inside her brain but I find it unlikely she would look forward to another cross-examination. Especially as her main point to this fucktard in that very courageous letter was that she found the cross-examination to be extraordinarily painful and a huge factor in her anger toward him. Basically, after all that, he didn't hear her at all. He genuinely does not give a fuck about the pain he caused, and is all too happy to cause some more. There isn't a pit of hellfire deep enough for this jackass.
  #723  
Old 12-07-2017, 09:29 PM
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I would like to add in that the area behind the dumpster enclosure is not very visible. The path between the domiciles is not often traveled, and the path on the other side of the basketball court is just distant enough, especially given all of the trees in the area:

https://www.google.com/maps/@37.4207.../data=!3m1!1e3

Claiming that he raped in plain sight could be easily disproven IMHO.
  #724  
Old 12-07-2017, 10:22 PM
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I don't understand the argument about the dumpster. If it was rape he would want to avoid being detected. But if it was consensual people usually want privacy when engaging in sex. So in both situations the sex would likely occur in a hard-to-see place.
  #725  
Old 12-07-2017, 10:51 PM
Mr. Miskatonic Mr. Miskatonic is offline
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The first brief was rejected as being overlarge. Brock’s attorney has 15 days to trim it down.
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  #726  
Old 12-08-2017, 06:07 PM
SteveG1 SteveG1 is offline
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Let's just disabuse this bullshit right now: fuck that. He's not trying to "protect" his son, he's trying to help his son escape the consequences of his actions. He's a fucking douchebag who's unable to place "right & wrong" above "family" and I say that being a blood relation is no excuse for ignoring criminal "action"s. If his son had murdered a bus full of nuns, would you still give his father a pass? At some point, a person's actions are so reprehensible that any ties of blood or friendship should not matter when assessing a person's guilt and/or punishment.

No one is above the law, not even those we love.
I agree. Fuck that bullshit.
  #727  
Old 12-08-2017, 06:44 PM
Spice Weasel Spice Weasel is online now
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I don't understand the argument about the dumpster. If it was rape he would want to avoid being detected. But if it was consensual people usually want privacy when engaging in sex. So in both situations the sex would likely occur in a hard-to-see place.
But who would willingly have sex behind a dumpster?
  #728  
Old 12-08-2017, 06:57 PM
Sunny Daze Sunny Daze is offline
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Drunk college kids, I guess?
  #729  
Old 12-08-2017, 07:02 PM
Spice Weasel Spice Weasel is online now
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Drunk college kids, I guess?
It seems unlikely to me that a pair of drunk college kids would lie down on the ground behind a dumpster and have sex. Like not completely out of the realm of possibility, but highly unlikely.

On the flip side, I have heard multiple survivor stories of being raped behind a dumpster.

Not that it matters a whit in this case, given he was witnessed by two other people penetrating an unconscious woman.
  #730  
Old 12-08-2017, 07:05 PM
Morgenstern Morgenstern is online now
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But who would willingly have sex behind a dumpster?
When you're 18 or 19, any port in a storm.
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  #731  
Old 12-08-2017, 07:32 PM
Spice Weasel Spice Weasel is online now
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When you're 18 or 19, any port in a storm.
I'll take your word for it... but eww.
  #732  
Old 12-08-2017, 08:07 PM
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But who would willingly have sex behind a dumpster?
Frank Reyolds?
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