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There are now 37 comments... what are your thoughts?
  1. Jeff B says

    That poor judge. The deer-in-the-headlights look is kind of perfect.

  2. Taleweaver says

    So it was Sticky who didn’t see justice served here. Bummer.

    • Hard to say. The only case we saw that wasn’t exactly cut and dry was Bartholomew. We don’t know whether Bart actually did anything wrong or not, we just know that Sticky woke up after the fact and wasn’t on-board with what happened the night before.

      We don’t know one way or the other whether it was consensual or not, and from what we saw, it was purely a he-said she-said case. This way Bartholomew doesn’t get sent to trial for a rape without sufficient evidence to justify it, and the state can make a second attempt at an indictment if new evidence surfaces that *does* indicate a crime was committed.

      • Didn’t the jury return a verdict of not-guilty? So wouldn’t that make it unconstitutional to charge the defendant again because of the double-jeopardy clause of the 5th amendment?

        • Absolutely. The jury was selected, and witnesses were sworn in. Jeopardy was attached. Now, if the crime fit under Federal rape laws, the Feds could prosecute him, but they probably wouldn’t, unless there was some evidence the trial was tainted.

          • Are there federal rape laws? I know that military justice code punishes rape. However, I don’t think that Bartholomew was in the military. If he was, then he would have been tried by a martial court and not a civilian court.

            • There are. There would need to be a reason for the federal government to look at it, though (for example, if she was transported across state lines).

              And no, no, absolutely not, you cannot try it in another court after an acquittal. Nor can you retry the case, if new evidence shows up. Once you get a Not Guilty verdict, you cannot be tried for that crime ever again. The only exception I can think of is if the jury itself is tainted (bribing a juror, for example), and even then, only if the defendant is at fault. Bart could climb on top of the courthouse at this point and scream that he did it, and they couldn’t touch him.

              • …okay, climbing on the courthouse roof would likely get him a trespassing charge. But he’s clear of the rape charges for good.

              • Kinda sucks but it’s far better than the government just being able to “rebuy” on each and every case they lose. “Oh, we couldn’t prove it? Give me a new 12 jurors and we’ll try again.”

                • It also keeps the government from using repeated trials as a punishment. The case may be a loser, but the government can still cost you everything you own in defense if they’re willing to spend the money to make you defend yourself over and over and over again.

              • Actually, if you were acquitted in state court, you can still be prosecuted in federal court, or in a military court. They are separate sovereigns, with separate laws and courts. (And vice-versa, an acquittal in federal court doesn’t preclude prosecution for the same act in state court, unless you live in one of the states that specifically prohibits it.)

                If you’re prosecuted for a crime in State A, and jeopardy has “attached” (a jury was sworn in, or in a judge trial the first witness was sworn in, or you took a plea), and the case somehow concluded (it doesn’t have to be an acquittal), then you cannot again be prosecuted for the same offense in State A. That’s all. State B can still go after you for it, as can the feds or the military.

                It’s been a thing for new federal prosecutors, for example, to cut their teeth by prosecuting people who were already convicted in state court… prosecuting them for the federal crime of being armed while committing that offense. It’s an easy win: here’s the judgment of conviction, here’s the proof you had a gun, here’s your new federal conviction (with a lengthy mandatory minimum sentence) on top of the state one for the same offence. No double jeopardy.

                • “You pleaded guilty to possessing marijuana while black…err, with intent to sell…to avoid jail time, and had a handgun on you? Enjoy your stay in federal prison!”

                  What kind of conclusions to a case are there without an acquittal? Can’t a mistrial be retried without double jeopardy?

                  • Acquittal, conviction by guilty plea, conviction by verdict, dismissal, mistrial, are all ways to conclude a case.

                    Mistrial’s complicated. If the defendant asked for it or caused it, he’s probably going to be tried again. If the government asked for it, and could have avoided the problem, Double Jeopardy will prevent retrial. Likewise when the prosecution is trying to game the system, seeking a mistrial (or trying to goad the defense into asking for one) because this trial’s going poorly and they want a do-over, DJ won’t let them re-try the case. When the judge did it sua sponte (without being asked) the cases are all higgledy-piggledy, but in general if the judge acted irrationally or irresponsibly DJ protects you, but if the judge let everyone have a say first then there can be another trial.

                    The cases are trying to draw a balance between the defendant’s interest in finality — in not having to go through the horror of fearing conviction after the relief of it all being over — against society’s interest in a full and fair hearing. Most of the time in a mistrial case, the latter is going to win out. But not always. Once when I was a young prosecutor, I was in the middle of a trial of a truly bad person when I nearly died in a bad motorcycle accident and wound up in the ICU for a while. The next day, nobody could locate me (the hospital was refusing to acknowledge I was there, confusing me with another guy who had hit men after him or something) and my bureau chief said he’d send another ADA to finish trying the case for me, on the (accurate) theory that we were all fungible. But the judge would have none of it, wouldn’t even wait for lunch to see if I might show up, and declared a mistrial. That was irrational as hell, and because it was irrational as hell the bad guy couldn’t be prosecuted again. Double Jeopardy.

                  • First, not the answer yet, but you should know that the Petite Policy is not an entitlement. It is not judicially enforceable. It can be waived, and such waiver does not have any Constitutional implications, and does not confer any rights on the defendant. And a better link is the USAM itself:

                    The Petite Policy allows federal prosecutions when the prior state case left a “substantial federal interest” unvindicated, and where the federal prosecution will get a longer prison sentence. That encompasses a broad range of cases. It has been argued that the policy in effect leaves the federal reprosecution power almost entirely intact.

                    The answer, however, is short: The gun-possession charge is seen as a different crime, separate and distinct from the underlying state crime. So there’s no double jeopardy issue.

                    (By the way, its purpose is seen as a way to ensure that potentially violent people stay off the street for a very long time. Removal, not retribution or rehabilitation or even deterrence. That’s in the Manual. Its usefulness as a way to give new AUSAs quick and easy experience getting convictions is seen more as taking advantage of this unique opportunity. This “hey, look what we can do — let’s do it!” attitude explains a lot of prosecutions in the overcriminalization realm, and to my mind is an unethical abuse of prosecutorial discretion, but that’s a whole nother rant.)

  3. SeanR says

    Third try? Was your computer giving you fits? Or your digital tablet?

  4. Gabriel Russell says

    You know, the thought occurs: Pi went into a field where she would be in a directly adversarial role against her father. That doesn’t seem like it would happen in a family with functional relationships.
    Did something happen between them? They seem like they’re on good terms now.
    Was there an argument about Marv defending someone Pi thought he shouldn’t?

    On an unrelated note: What ever happened to Blonde-Buzz-Cut (Henceforth BBC) prosecutor, judge sexy pose, and bland-bald-DC?

    • Actually, a lot of defense lawyers start out as prosecutors. It’s a great way to get a ton of experience at the start of your career, as opposed to working at a law firm where you’d be lucky to see the inside of a courtroom during those years.

      And I’m pretty sure his name isn’t Marv. People call him by his initials: D.C. (More than that, though, I never learned.)

      • Since he doesn’t have an official name, I’m trying to get Marv to stick, and will continue calling him Marv until other people do as well.
        It’s fairly simple rationale: Defense Counsel = DC = DC comics = Marvel comics = Marvin = Marv.

        • The fact that your nickname explanation has to include

          “DC comics = Marvel comics”

          is going to keep the nickname from catching on with a lot of people.

          Personally, I’m going to keep calling him D.C. just ‘cuz he’s already got a name, so why change it? ;) Besides, it’s been used in the comic by now, so pretty much canon. Don’t worry, though, there’s still plenty of other characters to name. You could even try to nickname Bro and Sis, but ever since Sis came to be, I’m pretty sure Bro’s been doomed to eventually be called “Bro.”

          • Originally, before turning into the narrator, I was going to have him be the average Joe that the law happens “to.” The character who’d get put through each of the various situations. But I almost immediately abandoned that idea in favor of using different characters for each scenario. But in my mind I still think of him as “Average Joe.” He’s never been called that or anything else in the comic itself, though.

  5. MikeA says

    A bit Off Topic, but it amused me. got a shout-out in the comments at but the guy who posted it apparently didn’t check for autocorrect errors, so the first reference (not the URL) calls it I don’t really think of Nathan as laconic.

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