Friday, December 16, 2011

Man Bites Dog, Hell Freezes Over, Fifth Circuit Reverses Child Porn Conviction For Insufficient Evidence

The decision was handed down earlier this week in U.S. v. Moreland. The majority opinion was written by Judge Dennis, who was joined by Judge DeMoss. From a practitioner's viewpoint, it is most notable for its discussion of every conceivable mitigating gloss on Jackson v. Virginia. The dissent, by Judge Jolly, had some fun with this: "The record does not reflect whether the jury box had more than twelve chairs, but we do know—and we know for sure—that two more jurors are trying to crowd into the box." The case involved two computers that three different people, including the Defendant, had access to.

 (wisenberg)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2011/12/man-bites-dog-hell-freezes-over-fifth-circuit-reverses-child-porn-conviction-for-insufficient-eviden.html

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Comments

What Judge Jolly's dissent fails to recognize--and this is a common error even by those less intelligent than he--is that disbelief in the testimony of numerous witnesses does not equal affirmative evidence to the contrary of that testimony. The majority recognized this here. Numerous people said what they said--and it all favored an aquittal (it did not support guilt beyond a reasonable doubt). The jury disbelieved it. Judge Jolly might to. The problem, however, is that the jury had no affirmative evidence to the contrary--nor did J. Jolly. At the end of the day, the jury was left with two equally plausible possibilities. One led to guilt, and the jury chose it. This does nothing to change the fact that another possibility, one leading to aquittal, existed. Under the case law--and common sense and little technicalities like the Constitution--this requires reversal.

Posted by: anonymous | Dec 16, 2011 4:13:24 PM

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