The FAMU case, redux

Moderator: Here are a few wise observations by a friend named Dave who has kindly supplied the following comments with regard to the Florida A & M retrial, after the judge was ruled by an appeals court to have erred in not offering the jury a wider definition of injury sustained by the victim in the case, Marcus Jones

• It is not unusual for there to be some reversals and remands for cases decided under relatively new legislation.  No matter how carefully legislators and others wordsmith and craft statutory language, the real test comes at the trial court level.

• It appears to me from the articles that the appellate court was very specific in its ruling about the jury instructions.  Instructions are a very valid basis for appeal.  In most criminal cases the instructions have been standardized and published.  Any variation from those is frowned upon and most of the judges I practiced before were very careful to follow the standard instructions. If one side or the other wanted to expand or elaborate upon the instructions, that could be done but only after review beforehand.  It was not clear to me here if there were standardized instructions or if the trial court “Freelanced” with the language.  If she did freelance, then the reversal is understandable.  And, reversals occur with jury instructions because of the significant impact or effect the instructions have upon jurors.

• As usual, each decision these days prompts a reaction from counsel–the proverbial “Can you can top this?”  While the defense attorneys for the civil cases are correct in noting that a reversal of the criminal cases means that the convictions cannot be used at this time, the plaintiffs certainly have an advantage in terms of case preparation–they now have a lot of evidence, much of the work has been done for them, and they have witnesses on the record (under oath).  The fact that the criminal case was reversed has no effect upon prior testimony under oath being used, especially in cross examination.  I don’t recall if the defendants took the stand in the criminal case, but if they did, that testimony can be used to impeach them at the civil trial.

• It is my hope that the prosecutor will pursue the cases again.  It is usually easier to obtain a conviction the second time around–witnesses are more comfortable in the courtroom, attorneys know what will be said (in general) and most of the key objections and issues have been decided.