Throwing Waters on the flames

Dave Whamond

Answering your questions about the Chauvin verdict

An hour or so after the guilty verdict came down, I was being interviewed on Gynesis radio about it, and some questions came up there and elsewhere… so here are some quick answers.

Will there be an appeal, and if so, what does that mean? There will absolutely be an appeal. I’ve never heard of a murder conviction where there wouldn’t be one. That doesn’t mean if he wins the appeal, he goes free — that’s not how it works.

To win an appeal, you have to convince the appellate court that there were mistakes made in your trial that affected the outcome. It’s not a brand new trial in an appeal — the lawyers file briefs, and then only the lawyers show up and argue the law with the appellate court, which then can take months to file its Opinion. These Opinions are published and can be used as precedent for other cases in the future.

In this case, his lawyers may argue that the judge denied some pre-trial motion that we know nothing about and had the judge not done that, certain evidence would have been excluded or things would have gone different in the trial and therefore the result would have been different. Or maybe they’ll argue that the jury should have been sequestered, but given all the pre-trial publicity (along with the difficulty of keeping the jurors from looking at their phones at night even if sequestered) that may not be a winning argument. Maybe they’ll say the comments by Representative Waters swayed the jury (which kind of goes along with the sequestering argument). Or perhaps they’ll argue that a jury instruction should have been given that wasn’t, or an objection should have been granted that was denied, or something else happened that was significant enough to challenge the outcome.

And that’s important — if they can’t convince the appeal panel that the defect was significant, then the appellate court could say it’s just “harmless error.”

But if they do agree it was enough, then they don’t throw out the verdict — they send it back for a new trial with orders to do it right this time.

What happens if the appeal is granted? Well, most likely the defense attorney will say to the prosecutor, “Look, you don’t want to try this again, and I don’t want to try this again, so let’s do a deal to a plea to a lesser charge instead.”

What exactly is Second Degree and Third Degree Murder, anyway? Well, First is the worst: That’s a planned murder, like if you hire a hitman or stalk someone with plans to kill them. Second is when the murder is done either in the heat of passion (like you get so mad you kill someone without thinking about it) OR (as here) when you are so reckless in your conduct that you case a death and don’t even care. Only three states have Third Degree Murder (Minnesota and Pennsylvania, where I practice, among them). Here in PA, it’s when there may not have been an intent to murder but there was malice in your action and a death occurred, even if you did not intend it to happen.

These definitions vary from state to state, however, and I am not admitted in Minnesota so don’t hold me to these basic definitions.

Can he serve consecutive sentences on all three charges? Well, I’m no expert on Minnesota law, but generally speaking, the lesser charges are included in the greater charge. In other words, these are all basically the same thing, just different degrees of them, so you pretty much just serve the sentence of the more serious one.

Why is the sentencing two months from now? In order to decide on a sentence, the judge needs information. The probation department prepares a long memo which discusses the facts of the case, the criminal’s prior record, and the options available based on the law. In this report, both sides are allowed to include letters from family, friends, victims, and others who want to give their opinions on what the sentence should be.

The lawyers are also given a chance to file a pre-sentence memorandum, where they can present their arguments as to why the sentence should be what they want, which could include cites to similar cases that are relevant.

You don’t want to rush this process. It’s important. And it’s not like the defendant is going anywhere.

Absolute nonsense

Clay Jones

Why the weak Chauvin defense?

As a criminal defense attorney, I’ve had a couple of people ask me about the trial going on now with Officer Chauvin, accused of murdering George Floyd.

Mainly, people are wondering why, in a case where it is so obvious the officer is guilty, is the defense team even trying?

The apparent theme of the defense’s case

Well, there are a few reasons.

First, you have to understand that you go to trial if your client insists on it, even if you advise otherwise. I’ve had to go to trial on cases before where I had a weak defense but my client wanted his day in court and demanded his right to a trial. And despite what some memes are saying, this is not a sign of a “broken system” but instead proof that our system of justice works. Everyone has the right to their day in court, and you shouldn’t get mad at someone who exercises their Constitutional right to a trial.

Second, you might go to trial because the prosecution isn’t offering you a good deal. I’ve certainly done that before. My attitude is “How am I any worse off by going to trial? What you’ve offered me isn’t any better than what I would get if I go to trial and lose.” So you go to trial, hoping that maybe the prosecution will screw up somewhere, or a witness will be less reliable than you thought, or a jury may do the kind of thing juries sometimes do and surprise everyone with their verdict.

Third, you might go to trial because you have issues you want to appeal. There are often many pre-trial motions you will file in a case and if the judge rules against you, you deal with it and can’t appeal those decisions until after the trial is over, in case those decisions become moot (with certain exceptions). So you have the trial and if you lose, part of your appeal is trying to convince the appeals court that those rulings against you were so bad that you deserve a new trial.

So yeah, the defense seems really weak in this case. This cop should be found guilty of murder. But there may be real, legitimate reasons the defense is taking it to trial instead of working out a deal.

GOP election plan

The mask is only about “freedom” if you’re a selfish bastard

After pointing out how Montana Governor Greg Gianforte got covid after telling everyone in his state they don’t have to wear a mask, the anti-maskers suddenly realized how stupid and selfish they had been and have begun wearing their masks everywhere for everyone’s benefit.

I’m kidding, of course.

They buckled down, screamed about freedom, and looked like the selfish bastards they are.

“But I know people who wore masks and still got it!” some reply.

Well, sure. Nothing is 100%. Sometimes a seat belt doesn’t save you. Not every parachute always works. There are risks in everything.

But mostly, this ignores the main point: It’s not always about you.

I’ve blogged before about how conservativism is all about finding excuses for your selfishness, and this is just another very clear example.

It’s not about you, it’s about whether you are a carrier (which you could be completely unaware of) and about you infecting others.

This is why when you see pictures of crowded spaces in Tokyo, you’ll often see a few people wearing masks. It’s because they are fighting the flu or otherwise feel a bit sick and want to protect others from their sickness. You know, that whole “caring for other people” thing that too many Americans think is a sign of weakness or a violation of their freedom to be assholes to their fellow human beings.

As my friend writer Michael Strauss said, “You wear a mask for the same reason you wear a condom. It doesn’t prevent you from getting pregnant. It prevents her from getting pregnant. It isn’t 100% effective, but it is a hell of lot more effective than spray and pray.’

The only “rights” Republicans care about

The real reason we have more mass shootings than anywhere else

You don’t have to be a genius to get this.

Other countries have angry males. Other countries have religious fanatics, people with mental problems, and violent movies and video games.

What they don’t have is an easy access to guns.

Georgia Governor Jim Crow

Oops, I mean Brian Kemp


Clay Bennett

Mississippi bans voting on Sunday because reasons

Chuck Schumer: Why is Mississippi banning voting on Sundays?

Republican Senator Hyde-Smith of Mississippi: Because Sunday is the Sabbath! We have to keep it holy! It says so in Exodus.

Schumer (highest ranking, most visible Jewish person in government): Oh, Exodus? Which is in the Old Testament, referring to the Jewish sabbath? Which is on Saturday? That Exodus?

Sen. Cindy Hyde-Smith

(Clarification: Hyde-Smith really did say this, but Schumer’s comment was made up by me. I’ll bet he was thinking it, though)