Normally Thursday is just a marking time kind of day. This is the second/third day of trials in both "adult" courts and the second pre-trial hearing day in the juvenile court. Today, however, sucks.
I get into the office about 8:10 and find a message on voice mail from one of the senior trial attorneys. Have I heard anything about the O'Brian case? O'Brian was the defendant in a double murder case he tried a couple of years ago. It had been pending in our intermediate appellate court for almost a year when we finally had oral argument just over two weeks ago. And, no, I have heard nothing. So I track him down to find out what' on his mind. Instead of answering me, he plays be a message he found on his voice mail when he got in just before 8:00.
The message is from the court beat reporter at the local newspaper. It was recorded, according to the time stamp, at 10:30 the previous morning. She'd like a comment on the reversal of O'Brian and if he calls her back by 5:00 it'll be in the story she's doing for Thursday's morning edition. Wonderful! My colleague goes down to the lobby to get a paper and check my interoffice mail to see if anything, like a copy of the opinion, got dropped off early this morning. (Our county has the most half-assed mail system you're likely to see, but that's a story for another day.) Empty. Just like I left it.
I get on the court's website to see if the opinion has been posted yet, and, sure enough, there it is, in all it's evil glory. Unpublished, un-authored, and released Tuesday! What the Hell? I print off the slip and skim the high (low) points. Wonderful. Two of the three judges appear to have lost track of what is and what is not a jury question. Not to mention the concept of separation of powers and the basic meaning of "rational view of the evidence." Sigh.
Damage control time - I brief our victims' rights coordinator on just what this all means. (Not to brag [well, maybe just a little] but reversals are few and far between for our office) With just a little bit of luck, we'll be the ones to tell the families of the victims, before they see it in the paper.
The only bright spot? The smartest judge of the three dissents on the two key issues and writes a solid opinion explaining why the majority is wrong. This is useful in framing the issues for the petition to our Supreme Court.
We will be asking the supremes to take the matter up. Both a petition and a motion for peremptory reversal. That's a long shot, but I've had it happen before, when the lower court just plain gets it wrong. Anyway, the rest of the day is spent fly-specking the opinion and bouncing the alleged case law support for the evil holdings off the law as we know it.
I'm able to come to a couple of conclusions. Before I go into that, you should know this was a double felony-murder charge that involved a breaking and entering and a police pursuit, ending up with the deaths of two innocent bystanders when the defendant went the wrong way on a series of one-way streets attempting to shake off the officers. So, lots of issue were decided by the trial court and the appellate court is really reviewing the trial judge's decisions.
First, on the felony-murder question, it appears the majority really did overstep by holding that the trial court abused its discretion in not dismissing the charges as a matter of law.
Second, on the instructional issue, whether the jury should have been instructed on manslaughter as well as murder, it seems clear the majority really did misread a recent opinion by our Supreme Court on when such an instruction should not be given.
And that takes care of Thursday.