I’m in with Cliffy (who I want to be when I grow up) and Northern Piper (who I want to be if I grow up Canadian). Retrials generally seem to favor the prosecution, if for no other reason than because the defense has revealed their strategy (something they didn’t need to do ahead of trial, or sometimes, even during the first half of trial), and forewarned is forearmed. Knowing what the defense plans to argue (the man with one arm did it, for example), the prosecution can be much more proactive in rebutting the defense theory, by introducing more “rebuttal” evidence in their case in chief.
Northern Piper adds a good point, however: if the appellate court rules that the government’s interpretation of the law, or their “novel” legal theory doesn’t hold water, the defense could be in an even stronger position. Also because stale evidence favors the party without the burden, lapse of time while an appeal works through the system favors the defense in general.
I should add a caveat. For those not following my stellar career as a criminal defense attorney, I must reiterate that my only experience thus far is in defending family members, which (fortunately) means that I have almost no experience in the criminal courts. Nevertheless, I soldier on.
Stranger, a couple of points of clarification. First, the Fifth Amendment protects one only from “testimentary” self-incrimination. For example, although a blood sample would tend to incriminate a drunk driver, a suspect/defendant can still be compelled to give blood. This is not testimony, and does require the defendant, potentially, to self-incriminate. Nevertheless, it is constitutional.
Also, you are correct that neither side – the defense nor the prosecution – can put on a case or present a theory they know to be false. Recently, this caused problems for a prosecution for the murder of a man killed with one bullet. Not knowing which of two men killed the victim, the prosecution prosecuted each separately as the lone gunman. The appellate court noted that the prosecution had to know that at least one prosecution was false (because they knew there could only have been one gunman) and therefore ordered a retrial. Notably, the prosecution has a greater burden in this regard than the defense. If defense counsel knows the defendant killed the victim, a vigorous defense can still be mounted (you just can’t suggest someone else did it – but you can argue that the prosecution can’t prove your guy did). The prosecution, by contrast, must actually believe in what they’re presenting; if they’re uncertain of guilt, they can’t present.
One last thing, Stranger: there was an intimation in your post that a defendant bankrupted by an initial trial, and forced to use a public defender in a retrial, may be worse off because of a decline in quality of representation at the retrial. Studies have shown that PDs are in general as good as their private counterparts: some are good, and some are bad. In addition, we’re spoiled a bit with the recent spate of celebrity trials in California (yes, I’m a bit bereft right now – not even a jaywalker to try? could Tom Sneddon develop a new bete noir?) and the concomitant celebrity attorneys. Mark Geragos and Tom Mesereau are superb attorneys, but most people can’t afford them. Most people with some money will hire just some guy to defend them. The guy may be good, or not. It really is a crapshoot unless you are fabulously wealthy and can command the top tier of talent.
Finally, as to my favorite documentary, Law and Order, I suspect McCoy looks pissed because he just wasted X number of days on this crap, and now he’s going to have to do it all over again. He may win, but what about all the other cases on his desk he has to deal with? Oh, wait. He only has one at a time. That he can spend months on. To the exclusion of all other work. Never mind.