The McMichael/Bryan trial

Did a search for any update; Grand Jury indictment in November:

From the article,

I am at least heartened by the label “Ex-Glynn County District Attorney”; not sure when (if?) that will become “Convicted ex-Glynn County District Attorney”. Of course,

The severity of sentencing is not something appeals courts get involved in. The sentencing ranges are established by law.

Trial courts establish the facts. Appeals courts simply review whether the trial court correctly interpreted and applied the law under the facts as they were established. Appeals courts would not change a sentence as it was imposed unless there was a good reason to show the judge disregarded the law in applying that sentence.

As I pointed out in an earlier post, this judge did a fantastic job of appeal-proofing the sentences he imposed.

And again, in my opinion, the harsh sentences had more to do with making a strong statement against vigilantism than with any rehabilitation potential demonstrated by these defendants.


In theory that’s how it’s supposed to work. But if an appeals court judge thinks allowing the current sentence to stand would be a travesty, and his only option in overturning the sentence is overturning the verdict, then I would think he might be more sympathetic to appeals of the verdict, even though technically these are separate issues.

That’s how human nature tends to work. Though it’s possible that appeals court judges are an exception to that.

Appeals courts are made up of panels of judges. Cases are not heard by a single judge. Usually it has the effect of diluting renegade rulings.

It would pretty hard to establish “travesty” here. Georgia sentencing guidelines for murder are harsh. Once the accused were convicted the judge had no option but to give them life and even if the possibility of parole was allowed, the law requires them to serve 30 years minimum before they can become eligible. Bryan and Gregory McMichael were always going to be slightly unlikely to very unlikely to emerge from prison once convicted no matter what (they would be 82 and 94 respectively before they would be eligible for parole). The only one that would have had a realistic shot was Travis McMichael who at 35 could have potentially gotten out at a minimum of 65.

But the judge laid out pretty clearly just why Travis McMichael was given the stronger sentence. Among other things Travis is the one who pulled the trigger. I think Aspenglow is correct, it would be frankly incredibly unlikely for the sentencing alone to be overturned.

Bryan and the McMichaels aren’t going to lay their hats on sentencing in an appeal. It does them very little practical good. They have to overturn the convictions period or they’re pretty much fucked regardless. And I think it is very, very likely they are fucked - I doubt they can win any appeal.

Would I be mistaken in suggesting that the reason sentencing guidelines are so harsh may have something to do with the demographic usually being charged with murder in Georgia?

You appear to have misunderstood what I was saying.

What you are saying is that you think that an appeals court judge will think that the sentences are too harsh, and overturn the conviction based on that.

No chance. Both for reasons already given above, as well as many others. Your have no need to be concerned (or hopeful, depending on your preferences) here.

Whether or not an appeals court might want to do that, it is not within the power of an appeals court judge to do that. There is a very high standard for an appeals court to overturn a trial court. Generally speaking, they must find an error of law.

If you are saying that an appeals court judge would be motivated to manufacture some bogus finding of an error of law, then one would hope that most appeals court judges would be above that.

I wrote in my original post on the subject “Though of course, those judges might find the sentences to be just fine, and/or think there’s no basis to overturn the verdicts anyway.

So no, I’m not suggesting that an appeals court judge would be “motivated to manufacture some bogus finding of an error of law”.

However, it’s frequently the case that there’s some ambiguity as to whether or not there are grounds to overturn the verdict based on a supposed error of law by the trial judge. That’s what appeals lawyers are paid big bucks to argue about. And my suggestion is that to the extent that there is some ambiguity about it, that the severity of the sentence might make an appeals court judge more sympathetic to overturning the verdict than he would otherwise be.

I doubt it, it is in fact completely in line with Georgia’s sentencing guidelines. There is no reason for an appeals judge to find fault with it.

Now, I suppose, it being Georgia, there’s a chance that a judge may find the color of the skin of the defendants and the color of the skin of their victim something that he feels sympathetic to. Fortunately, a single judge doesn’t really have that power, so we’d have to have a majority of judges on the appeals court be racist.

I don’t know why people are having such difficulty with this.

I’ve not suggested that appeals court justices will be inclined to overturn the sentences, whether based on sentencing guidelines or anything else. What I suggested is that they might be inclined to overturn the verdict, based on it possibly being the easiest way to reverse the sentences.

Perhaps this confusion will persist and perhaps it won’t, but I’m not going to keep on clarifying it.

I understand completely what you are saying. You are suggesting that the appeals judges might overturn try verdict for the bogus reason that they don’t agree with the sentence set out by Georgia law.

That would be a major dereliction of duty by the appeals judges, in my opinion. You would need a majority of the panel onboard with it. You would also need them to explain why the guilty verdict is to be set aside, for reasons unrelated to the sentence.

Yes and no. Imagine a defendant getting a 40 year sentence for growing marijuana. The appellate panel might look real hard at the search warrant issues, to make sure everything was proper if they were really bothered by the sentence. (a lot of cases can go either way on technical legal issues). If the guy was sentenced to 6 months, maybe they wouldn’t find the search quite as unconstitutional.

The reverse can be true too. I had a murder case where the search was completely improper, but they found a murdered body. It would be a very rare case where they threw out such a case, so they found an “exception” and forced the facts into it. (bad facts make bad law) As luck would have it, I had another case with a very similar justification for a search where no body was found, but only 15 marijuana plants. The judge had no trouble granting my suppression motion.

I’m not sure where your difficulty lies here either.

and I said nothing that would suggest that.

Right, and that is what I responded to, that that’s not going to happen.

Maybe instead of getting upset that others aren’t understanding you, you should try reading a bit closer, and get that they are, they just disagree with your entire premise that a judge will see a sentence within normal guidelines, and choose to vacate the verdict based on that.

Perhaps you will continue to be confused, but if you spent as much time getting mad at other people because you thought that they didn’t understand you actually reading what they said and seeing that they do, then you’d get much, much further.

That would suck, but if that were within normal sentencing guidelines, the effort should be in changing those guidelines, rather than coming up with bogus reasons to vacate the verdict because you think the sentence is too long.

If the guidelines call for 6 months, and the judge gives 40 years, then that alone may be grounds for appeal.

Personally, I’d prefer if the appeals court just looked at the facts of the case, and didn’t consider the sentence as part of the factors that go into their decision.

I’d find that pretty iffy, and seems pretty much like prosecutorial misconduct. Obviously, the fact of the murdered body should be admissible, but any evidence that could point to the perpetrator that was come up with in that search shouldn’t be. If someone got put in jail over evidence found in an improper search, I find that far more problematic than a murderer going free because the evidence against him can’t be used.

That’s the way it’s supposed to work. I’m just saying, when the case involves something serious like a murder, the courts err on the side of the state. Sure, you’ll see the death penalty thrown out, or a case remanded for a new trial. An opinion that guts the case by suppressing crucial evidence because of an illegal search, that’s pretty rare.

Governors can and do modify sentencing in various cases as a matter of record. See the Colorado Governor’s reduction of the truck driver’s recent sentence on vehicular homicide from 110 years to 10 years.

Depending on the amount, I could see that either (a) being a perfectly normal—if not appropriate—sentence for growing a large amount of marijuana under our draconian drug laws or (b) being grounds for an 8th amendment appeal if for a very small amount. Not that 8th amendment appeals for lengthy prison sentences are particularly successful (I believe there is some case law on the matter), but 40 years for a first offense of growing a very small amount of marijuana (if any states allow such a thing) might stand a chance.

What you describe seems to be the way it often works here in Canada. I recall a case a few years ago about which I only dimly remember the details, but the basics were the following. A police officer pulled over a vehicle for a traffic infraction, and became suspicious of the driver. He demanded to examine the trunk. The driver refused, stating (correctly) that there was no probable cause, and he wasn’t giving consent. The officer searched the trunk anyway, and found a very large amount of cocaine obviously intended for high-level trafficking, as well as illegal weapons.

The guy was arrested, charged, and convicted. I remember the conviction being appealed on the grounds of evidence being obtained by an illegal search. The appeals court upheld the conviction, the Superior Court judge ruling that the public interest overruled the matter of illegal search.

I suspect that in the US, where constitutional protections are regarded in more absolute terms, it might have been a lot harder to uphold the conviction. I think this stems from a basic historical and cultural distrust of government, and reliance instead on a more absolutist view of constitutional rights. Where governments and their institutions are more trusted, there can be more flexibility. Indeed, our constitution states right in the preamble that certain aspects of the Charter of Rights and Freedoms can be overruled by a sufficiently compelling public interest.