Once these is an acquittal - there is no recourse.

But if the judge is blatantly pro-defense as the pre-trial evidentiary rulings are made and during the the trial itself - can that be appealed by the prosecution even as the case is ongoing?

the judge in the Kyle Rittenhouse case is giving every indication of railroading the prosecution.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

S K <skpflex1@gmail.com> wrote:

Once these is an acquittal - there is no recourse.

But if the judge is blatantly pro-defense as the pre-trial
evidentiary rulings are made and during the the trial itself - can
that be appealed by the prosecution even as the case is ongoing?

the judge in the Kyle Rittenhouse case is giving every indication
of railroading the prosecution.

If it's caught during the trial, the prosecution can ask the judge to
recuse himself for bias. In theory an appearls court can force the
judge to do that. But finding bias will be a difficult hill to
climb.

When the trial is over, if actual bias is found, in theory an appeals
court could overturn an acquittal on the basis that the trial was, in
effect, fixed and the defendant was never, in fact, "in jeopardy."
That is also very unlikely to happen unless there is clear evidence
that the judge (or jury) was determined never to convict in the first
place.

In a high profile case like this a judge may want to give the defense
a lot of latitude to reduce the chances of a successful defense
appeal. But that doesn't mean the judge, or the case, is actually
being tilted in the defendant's behavior.


--
Stu
http://DownToEarthLawyer.com

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 9/26/2021 8:36 PM, S K wrote:

Once these is an acquittal - there is no recourse.

But if the judge is blatantly pro-defense as the pre-trial evidentiary rulings are made and during the the trial itself - can that be appealed by the prosecution even as the case is ongoing?

the judge in the Kyle Rittenhouse case is giving every indication of railroading the prosecution.

Based on reading a few news articles and the Wikipedia article, it looks
to me as if Rittenhouse has a legitimate self-defense claim.

However, he may be guilty of unlawful possession of a firearm (he was
underage at the time). But that is a misdemeanor, so he should be tried
as a juvenile, with correspondingly less punishment.

As a general rule, the time for either side to challenge a judge --
assuming that state law allows for that (California does) -- is before
the trial starts.

Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
was chosen. So it is too late for the prosecution to request a new
trial, and the only reasons I can imagine for changing judges in the
middle of a trial are (1) the judge dies, (2) the judge is found legally incompetent, (3) the judge becomes incapable of performing his duties
for an extended period of time (too long for the trial to be kept in
recess) -- e.g., he has a massive heart attack and must be kept in an
ICU for multiple weeks..


From Wikipedia:

At the first location, Rittenhouse was pursued by a group, a gunshot

was fired into the air by a third party, and Kenosha resident Joseph
Rosenbaum lunged at Rittenhouse and attempted to take his rifle.
Rittenhouse then fired at Rosenbaum four times, who died shortly
afterwards. At the second location, Rittenhouse tripped while fleeing, a
man kicked him, and Rittenhouse fired at the man twice but missed. While
still on the ground, protestors approached Rittenhouse, and Silver Lake resident Anthony Huber struck Rittenhouse with a skateboard and
struggled for control of his rifle. Rittenhouse then fired at Huber
once, killing him. West Allis resident Gaige Grosskreutz then approached Rittenhouse while holding a handgun, and Rittenhouse shot him once,
severing his bicep.


--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 9/28/2021 8:25 AM, Barry Gold wrote:

As a general rule, the time for either side to challenge a judge --
assuming that state law allows for that (California does) -- is before
the trial starts.

I'd be very surprised if any state did NOT allow such a challenge at
some point in the proceedings. The requirements for such may vary but I
just can't see it being forbidden completely.

Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
was chosen. So it is too late for the prosecution to request a new
trial, and the only reasons I can imagine for changing judges in the
middle of a trial are (1) the judge dies, (2) the judge is found legally incompetent, (3) the judge becomes incapable of performing his duties
for an extended period of time (too long for the trial to be kept in
recess) -- e.g., he has a massive heart attack and must be kept in an
ICU for multiple weeks..

I could see a judge recusing himself partway through if he found there
was a conflict-of-interest that he wasn't aware of sooner or if he
simply decided he couldn't be impartial. All of your scenarios assume
it's involuntary but just as a lawyer could request to step down
mid-trial (but sometimes told "nope, you're here for the duration"), I'd
think a judge could request the same.

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)

On 9/29/2021 9:39 AM, Mike Anderson wrote:

On 9/28/2021 8:25 AM, Barry Gold wrote:

As a general rule, the time for either side to challenge a judge --
assuming that state law allows for that (California does) -- is before
the trial starts.

I'd be very surprised if any state did NOT allow such a challenge at
some point in the proceedings. The requirements for such may vary but I
just can't see it being forbidden completely.

Based on past SCOTUS rulings, "jeopardy" attached as soon as the jury
was chosen. So it is too late for the prosecution to request a new
trial, and the only reasons I can imagine for changing judges in the
middle of a trial are (1) the judge dies, (2) the judge is found
legally incompetent, (3) the judge becomes incapable of performing his
duties for an extended period of time (too long for the trial to be
kept in recess) -- e.g., he has a massive heart attack and must be
kept in an ICU for multiple weeks..

I could see a judge recusing himself partway through if he found there
was a conflict-of-interest that he wasn't aware of sooner or if he
simply decided he couldn't be impartial. All of your scenarios assume
it's involuntary but just as a lawyer could request to step down
mid-trial (but sometimes told "nope, you're here for the duration"), I'd think a judge could request the same.

Yes, I think a judge could do it. But if the prosecution requests it,
all they will accomplish is to make the judge angry, which is almost
never something a lawyer wants to do.




--
I do so have a memory. It's backed up on DVD... somewhere...

--- SoupGate-Win32 v1.05
* Origin: fsxNet Usenet Gateway (21:1/5)