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.
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?
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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Sadly that would mean the victim would have to go through cross examination again.
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 allto 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.
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.
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:
I am curious about this:
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.
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.
Thank you for this post. It fought my ignorance.
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.”
Got it. Thank you for the clarification.
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.
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.
Not necessarily. If the Court decides to reverse of sufficieny of evidence grounds, then a retrial is barred.
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.
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).
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 Provisions of California Penal Code under which Brock Turner was convicted: Title 9 secs. 220(a)(1), 289(e), and 289(d) (2013). 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.
That may be a point, but I’m not sure where they are going with it.
One of the lawyers also claimed that be describing it as a dumpster he prejduced the jury since dumpsters are filthy things.
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.
It can happen: and appeal is no assurance of a lesser or equal sentence. You do have the right to appeal, absolutely, but:
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.