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When the judge mis-instructs the jury, appeal

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In general, it is best to appeal any felony conviction. However, added caution is needed for appeals that lead automatically to de novo trials, because the Constitution does not prevent the original sentence from limiting any sentence at a de novo trial. Alabama v. Smith, 490 U.S. 794 (1989). For a conviction on a retrial after an appeal on the trial record, the trial judge is prohibited from using vindictiveness in resentencing the defendant. North Carolina v. Pearce, 395 U.S. 711 (1969); Alabama v. Smith, 490 U.S. 794.


Sometimes appeals are won on bad jury instructions. While it is best for a lawyer to persuade the judge at the outset to instruct the jury as beneficially as possible for the client, that does not always work. Recently, the District of Columbia’s highest court reversed a handgun conviction where the trial judge egregiously overstepped the judge’s bounds in addressing a juror who qualified the juror’s vote for guilty. The case is Headspeth v. U.S., D.C. Ct. App. No. 05-CF-16 (2005).

Kudos to the Headspeth jury for showing this defendant so much concern. Fortunately for criminal defendants and for justice, the District of Columbia has a significant percentage of jurors who do not presume the honesty of police — which no juror is permitted to do in the first place.

Due to the resulting number of acquittals in the District of Columbia from fair jurors, in the early 1990’s the City Council and mayor cynically reduced the maximum possible penalty of a whole host of misdemeanors to 180 days to prevent jury trials, after having increased from 91 days to 181 days the potential incarceration penalty that would permit a jury trial. Fortunately, the District of Columbia Court of Appeals has construed D.C. law — D.C. Code § 16-705 — to require a jury trial for any offense permitting six months or more of incarceration, as opposed to 180 days of incarceration. Turner v. Bayly, 673 A.2d 596(D.C. 1996). In federal court, however, a six-month potential penalty ordinarily does not provide the right to a jury trial. Lewis v. U.S. , 518 U.S. 322, 326 (1996). Jon Katz.