legal question and answer thread **no discussion**

Hi everyone,
Gritguy has been verified as a lawyer and this new thread is a place to ask your legal questions.

This is a **no discussion** thread.

thank you so much for your willingness to help us out gritguy!

There's lots of good information on this blog. Here's an article on using defendant's pre-trial silence in court, written just this week (!), including a handy reference chart.

http://sogweb.sog.unc.edu/blogs/ncclaw/?cat=11

gritguy,
what are some of the general rules about retrial? Can JY's previous testimony be used against him? Do you think he will take the stand again?

tia

It can.

I don't know if he will, but he's done it once and it seems to have worked before.

See the Cooper case as an example of using sworn testimony (deposition) in a separate matter against a defendant, and of course in that case he did not testify in the criminal trial.

do you know if they could have done additional forensic testing/interviewing with CY before the retrial?

do they have to stick with the same witnesses or is the new trial like a blank slate if you will?

also, could JY have cooperated to an extent with LE despite having a lawyer? (for example walking thru the house to determine if there was any evidence of a robbery?)

They can use new witnesses or new evidence. It is a blank slate, though prior sworn testimony remains evidence.

JY could have done anything he wanted. The police should not question him if he says he doesn't want to talk to them and has a lawyer. If they did, they couldn't use what he said against him. He could also have had his lawyer come over and go through the house with them.

gritguy, another option could have been to have the police submit a list of questions to the attorney, right? Like in Cooper, I know the police submitted interrogatories to the defense attorney, and BC answered them through counsel, instead of appearing in person. In your opinion, are there any drawbacks to the defendant to doing it this way (from the defendant's perspective)?

Well the person (in this case now defendant) could make the judgment the police will not look anywhere else so it will in no way assist in the investigation into other people or reduce the police interest in the person of interest. If the police lock in like that, the person of interest and counsel could make the reasonable decision not to answer questions that way.

Of course, lawyers like written answers b/c they have total control over what goes in them.

For purposes of this thread, I will try as hard as I can not to let my opinion of the case leak into any answer.

Also, there could be delay in an answer if I need to look something up or of course if I'm doing my day job. I don't go to court any more and it's been years since I have so I'm rusty to say the least. On top of that my practice focus was commercial litigation, though I did represent a major police department in an NC city, and also worked every once in a while on the criminal side. I was never trial counsel though for jury criminal cases, just civil.

In murder trials, do you know if there have been cases where has been 2 mistrials on a murder one and yet the prosecution continued with a third trial? Has there ever been an instance with a forth trial (3 mistrials)? I'm asking specifically about criminal murder trials.

In your opinion, if you were the lead prosecutor in this case, would you retry if there was another mistrial?

I remember 3 mistrials in the murder case against Jim Williams in Savannah. After a change in venue, the 4th attempt ended in aquittal.

Please delete this butt-in-sky if my post is not allowed here.

cityslick said:

In murder trials, do you know if there have been cases where has been 2 mistrials on a murder one and yet the prosecution continued with a third trial? Has there ever been an instance with a forth trial (3 mistrials)? I'm asking specifically about criminal murder trials.

In your opinion, if you were the lead prosecutor in this case, would you retry if there was another mistrial?

Click to expand...

Ryan Widmer - he was accused of drowning his newlywed wife. Had had 3 trials and is appealing for a 4th.

BrownRice said:

Ryan Widmer - he was accused of drowning his newlywed wife. Had had 3 trials and is appealing for a 4th.

Click to expand...

Was he found guilty in the 3rd one?

noZme said:

I remember 3 mistrials in the murder case against Jim Williams in Savannah. After a change in venue, the 4th attempt ended in aquittal.

Please delete this butt-in-sky if my post is not allowed here.

Click to expand...

I questioned my own facts & looked it up... correction:

"-- His first murder conviction came in February 1982. He appealed.
-- A re-trial brought another conviction. He was sentenced to life in prison Oct. 8, 1983.
-- The Georgia Supreme Court ordered a new (third) trial, which ended in a June 1987 mistrial.
-- A May 1989 trial in Augusta ended in his acquittal.

Williams would become the first person to be tried four times for murder in the state of Georgia, according to John Berendt's book "Midnight in the Garden of Good and Evil.""
http://savannahnow.com/1900s-anniversary-stories/2010-03-25/jim-williams-center-garden

On the question of alternate jurors and when they are dismissed, this is from NC Gen Stat 15A-1215

(b) In all criminal actions in which one or more defendants is to be tried for a capital offense, or enter a plea of guilty to a capital offense, the presiding judge shall provide for the selection of at least two alternate jurors, or more as he deems appropriate. The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct. In case of sequestration of a jury during deliberations in a capital case, alternates shall be sequestered in the same manner as is the trial jury, but such alternates shall also be sequestered from the trial jury. In no event shall more than 12 jurors participate in the jury's deliberations. (1977, c. 711, s. 1; 1979, c. 711, s. 1.)

http://law.onecle.com/north-carolina/15a-criminal-procedure-act/15a-1215.html

Alternate Jurors:

Is the following statement accurate for jurors in a criminal trial:

§ 15A-1215. Alternate jurors.
(a) The judge may permit the seating of one or more alternate jurors. Alternate jurors must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge. When the jurors are ordered kept together, the alternate jurors must be kept with them. If before final submission of the case to the jury, any juror dies, becomes incapacitated or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged upon the final submission of the case to the jury.
(b) In all criminal actions in which one or more defendants is to be tried for a capital offense, or enter a plea of guilty to a capital offense, the presiding judge shall provide for the selection of at least two alternate jurors, or more as he deems appropriate. The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct. In case of sequestration of a jury during deliberations in a capital case, alternates shall be sequestered in the same manner as is the trial jury, but such alternates shall also be sequestered from the trial jury. In no event shall more than 12 jurors participate in the jury's deliberations. (1977, c. 711, s. 1; 1979, c. 711, s. 1.)

I thin the difference here is that this is not a capital case - where the jurors (alternates) would stick around....

Thanks!

Link: http://www.sog.unc.edu/sites/www.sog.unc.edu/files/Spivey_2JUROR_STATUTES.pdf

RaleighNC said:

Alternate Jurors:

Is the following statement accurate for jurors in a criminal trial:

§ 15A-1215. Alternate jurors.
(a) The judge may permit the seating of one or more alternate jurors. Alternate jurors must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge. When the jurors are ordered kept together, the alternate jurors must be kept with them. If before final submission of the case to the jury, any juror dies, becomes incapacitated or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged upon the final submission of the case to the jury.
(b) In all criminal actions in which one or more defendants is to be tried for a capital offense, or enter a plea of guilty to a capital offense, the presiding judge shall provide for the selection of at least two alternate jurors, or more as he deems appropriate. The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct. In case of sequestration of a jury during deliberations in a capital case, alternates shall be sequestered in the same manner as is the trial jury, but such alternates shall also be sequestered from the trial jury. In no event shall more than 12 jurors participate in the jury's deliberations. (1977, c. 711, s. 1; 1979, c. 711, s. 1.)

I thin the difference here is that this is not a capital case - where the jurors (alternates) would stick around....

Thanks!

Link: http://www.sog.unc.edu/sites/www.sog.unc.edu/files/Spivey_2JUROR_STATUTES.pdf

Click to expand...

I always thought murder in the 1st degree was a capital offense, but perhaps you are correct as far as it pertains to trials. Gritguy will have to weigh in.

NC Gen Stat 15A-1215 on alternate jurors in criminal cases and criminal capital cases:

(a) The judge may permit the seating of one or more alternate jurors. Alternate jurors must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge. When the jurors are ordered kept together, the alternate jurors must be kept with them. If before final submission of the case to the jury, any juror dies, becomes incapacitated or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. Alternate jurors receive the same compensation as other jurors and, unless they become jurors, must be discharged upon the final submission of the case to the jury.
(b) In all criminal actions in which one or more defendants is to be tried for a capital offense, or enter a plea of guilty to a capital offense, the presiding judge shall provide for the selection of at least two alternate jurors, or more as he deems appropriate. The alternate jurors shall be retained during the deliberations of the jury on the issue of guilt or innocence under such restrictions, regulations and instructions as the presiding judge shall direct. In case of sequestration of a jury during deliberations in a capital case, alternates shall be sequestered in the same manner as is the trial jury, but such alternates shall also be sequestered from the trial jury. In no event shall more than 12 jurors participate in the jury's deliberations. (1977, c. 711, s. 1; 1979, c. 711, s. 1.)

The North Carolina Supreme Court’s position on alternate jurors being subbed in after deliberations (case involved sentencing deliberations, quoted part IMO on juror subbing in general):

"In this case, the jury verdict was reached by more than twelve persons. The juror who was excused participated in the deliberations for half a day. We cannot say what influence she had on the other jurors, but we have to assume she made some contribution to the verdict. The alternate juror did not have the benefit of the discussion by the other jurors which occurred before he was put on the jury. We cannot say he fully participated in reaching a verdict. In this case, eleven jurors fully participated in reaching a verdict, and two jurors participated partially in reaching a verdict. This is not the twelve jurors required to reach a valid verdict in a criminal case." State v. bunning

I wonder why the statute allows them to still be retained for capital cases but not anything else? I would think the issue of not fully participating in the discussion would apply no matter the type of case.