Sam Redman's Musings

Random thoughts on a variety of subjects

Don’t count him out yet…

There has been a lot of discussion about the prospects of an appeal in the Wayne Bent case. If you recall, he is the would be messiah who started a strange religion based on his belief that he was the returning Jesus and that his modern day “crucifixion” was that he was commanded (he said he didn’t want to, but God just made him do it) to have sex with six or seven women from his group of about sixty followers. He is now a convicted sex offender (because he also chose to lay naked with a couple of teenaged girls and put his hand on their exposed chests) and he is currently serving a ten year sentence in a New Mexico prison. Earlier, I had posted a discussion about his chances of an appeal based on the defense contention (expressed during the trial) that the law he was convicted under was meant to be interpreted differently than the judge in the trial allowed the the jury to decide (and the defense wanted either, a directed verdict to dismiss, or that his instructions to the jury about that be phrased differentlY).

My earlier thoughts and discussion about the prospects of an appeal were based merely on my opinions and consideration of the viability of that particular facet, the prosecution’s versus the defense’s interpretation of the term “intimate” in the wording of the criminal statute under which Bent was convicted. I said (and I still believe) that there was a sufficient appeals precedent (State of NM v Trevino) which would warrant or justify the judge’s ruling that such a definition should be decided by the jury based on community standards of decency and propriety.

However, in spite of those arguments, this particular issue (about the definition of “intimate”) could possibly go Bent’s way, depending on how the appeals court views it and how convincing the arguments are that the defense’s view that only touching the nipple area should be considered as criminal (which the evidence shows, he didn’t do). I think that such an argument could be made quite convincingly either way and I wouldn’t count that one out, because they may decide that the precedent appeals opinion, State v Trevino, doesn’t exactly apply in this situation.

In addition, there are many other avenues available than having to depend on that single issue. A good appeals attorney might well succeed, because the trial transcript does demonstrate several irregularities which might enable them to prevail. And, so, while the prospects of an appeal might, on the surface, have seemed “slim” to me, that was based on a cursory reading of the transcript. In the history of appeals, there have often been surprises to casual observers (such as internet wags). An appeal’s success depends on how well the case is presented (and what trial irregularities the professional appeals attorneys are able to find and argue). It ain’t over yet.

Other examples of appeal possibilities:
If the appeals court decides that the several irregularities (which we know did occur) caused the jury to erroneously arrive at the decision for conviction, which they otherwise might not have, if circumstances been different, an appeal will be successful.

1. For example, the instructions to the jury might not have been complete enough (or correctly stated) where the jury would have known that there were circumstances which they could have considered that would have resulted in a not guilty verdict.

2. Allowing testimony, which may have unfairly prejudiced the jury and caused them to lose the presumption of innocence, can be grounds for a new trial. Those prejudicial statements on the stand from the New Mexico State police “officer” and the “agent,” might be questionable enough to warrant a favorable opinion by the appeals court.

3. Mistakes made by police and prosecutors in charging the accused are grounds for appeal if it can be shown that such mistakes affected the outcome. For example, perhaps he could or should have been charged with a lesser crime (or not at all).

4. Probably, most significant is that if witnesses are unfairly biased or mistaken or have presented erroneous conclusions or opinions which should not have been allowed, those are strong grounds for appeal. As good as Dinsmore and Melton seemed, they may have been offering to the jury improper information, which jurors should not have been permitted to hear. For example, Montoya had already succeeded in getting a ruling from the judge that internet documents could not be admitted as evidence and yet Melton primarily (that was in his testimony) based his opinions on and quoted from the very documents which had been specifically excluded. It could also be argued that Dinsmore based her opinions on faulty and biased sources, such as angry former members, who had no knowledge of the conditions at the time of the offense, and she did not interview any current residents (who were there at the time). Or, perhaps she relied on reading the journal or other information, which had been ruled not admissible.

5. Constitutional rights are too often belittled as “legal technicalities, but the possibility that the trial itself was a religious “witch hunt” and that rights of religions freedom were violated should not be underestimated. A creative appeal might make a strong argument that there were enough instances in the trial (from expert witnesses and the prosecution attorneys), which showed that this case was about denying those constitutional rights.

6. Often the very best appeals stance is to argue that the defense attorney was incompetent in presenting the case and that mistakes were made by the defense, which caused the jury to reach a verdict they would not have, if the defendant had enjoyed the benefit of a competent attorney. For example, she failed to object or present an adequate argument to the judge, regarding limiting the testimony of Melton and Dinsmore (or the questionable statements on the stand by the police). Or it might be argued that she called defense witnesses who were not competent and who’s testimony unfairly prejudiced the case against her client. Another argument is that she was ill-prepared and had not studied the circumstances of the accused environment and history and therefore presented erroneous conclusions in her statement to the jury. A very good case could be presented that Montoya didn’t represent her client appropriately.

So, don’t count out the chances for a successful appeal. There are surprises every week in appeals all over the country. And while overturning a jury’s verdict and deciding that a defendant is not guilty stands a statistically weak chance (unless new exculpatory evidence appears), the chances of being granted a new trial based on irregularities are much better. Of course, a new trial doesn’t mean the defendant has been declared not guilty (it just means that the case will be tried again with a new jury and in this situation, a new judge)… and so, appeals courts will often allow a new trial if there are merely sufficient irregularities to raise doubts about the fairness of the verdict. There is still hope for Wayne Bent. So, don’t be too surprised if he gets a favorable appeals ruling

— Sam

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This entry was posted on February 28, 2009 by and tagged , , , , , , .