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.