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The necessity of a trial flowchart and preserving the record for appeal

Highly-rated Northern Virginia criminal defense attorney on the necessity of using a trial flowchart and preserving issues for appeal

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Congratulations to Kenneth Lee Bailey, Jr., and his legal team for getting his federal carjacking appeal reversed this week for insufficient evidence to prove beyond a reasonable doubt that  “Bailey possessed the specific intent, conditional or otherwise, to kill or seriously harm his victim when he took control of the vehicle.” U.S. v. Bailey, ___ F.3d ___ (4th Cir., April 12, 2016).

Here, the bloodied Bailey approached the victim pickup truck driver, offering to pay the driver for a ride. The driver refused, and Bailey then got into the car, held something cold and metallic against the driver’s neck (which the driver reasonably believed to have been a handgun), and ordered the driver to drive. While certainly the driver felt under the threat of death if he did not drive, Bailey confirms that a federal carjacking conviction looks at whether the carjacking defendant had the state of mind, at the time of the alleged crime, to kill or do serious harm with or without a refusal by the victim to comply with the defendant’s demands. Here, Bailey won both because insufficient evidence was presented to show that it was a handgun versus another object that he pressed against the driver’s neck, and also because Bailey had first offered to pay for a ride and did not make any verbal threats of violence.

Bailey includes a summary of numerous other federal carjacking opinions that had much stronger trial evidence against the defendants therein, than in Bailey’s case, yet Bailey’s trial judge still found sufficient evidence to convict.

Bailey underlines the necessity of going to trial with a flowchart listing the elements needed to prove the case, and to preserve issues for appeal, which Bailey’s trial lawyer here accomplished by timely arguing that the evidence was insufficient to convict.

While a criminal trial lawyer always must balance between preserving issues for appeal and risking harm of a jury conviction by objecting at various stages of trial, a criminal defendant incurs no such harm by arguing insufficiency of the evidence, because such an argument is always made to the trial judge outside of the jury’s hearing.

Congratulations again to Kennety Lee Bailey, Jr., and his legal team.