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  #1  
Old 10-31-2013, 01:32 PM
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Default Conviction Overturned

A friend of mine's child was injured by shaken baby syndrome, and the person who did this was convicted of Agg. Assault and sentenced to 20yrs in prison in 2002. About 3 weeks ago he won an appeal and his conviction was overturned. The child involved in the case was severely injured and had major medical problems stemming from the incident. The child was not expected to live as long as he did, he was 13 months when this happened in 2002, but did pass away a few months ago. The DA in the case is now deciding if they are going to go forth with a new case. My questions are:

1. Since his conviction was overturned can/will he be released while the DA is deciding how or if to proceed.

2. Can they hold him in prison now that his conviction has been overturned?

3. Since the child has passed away from medical issues resulting from the incident there has been talk of charging the accused with murder. Can they do that years after the fact and after they have already charged him with and convicted him of agg assault on the child (even though the conviction has now been overturned).
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Old 10-31-2013, 02:59 PM
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Read the terms of the appeal court's order. If all it did was having a new trial ordered, then the prosecutor will decide whether to proceed or not. The answers will determine if he can be kept in jail, or possibly be eligible for a release on bond.

Murder is a different charge, and there is no statute of limitations on murder charges, so if the evidence is sufficient, he could be charged for that too.
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Old 10-31-2013, 03:01 PM
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Quote:
Originally Posted by s&talways View Post
1. Since his conviction was overturned can/will he be released while the DA is deciding how or if to proceed.
He can be, yes.

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Originally Posted by s&talways View Post
2. Can they hold him in prison now that his conviction has been overturned?
No. Transfer to county jail possible though.

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Originally Posted by s&talways View Post
3. Since the child has passed away from medical issues resulting from the incident there has been talk of charging the accused with murder. Can they do that years after the fact and after they have already charged him with and convicted him of agg assault on the child (even though the conviction has now been overturned).
Yes.
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Old 10-31-2013, 06:35 PM
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1. yes, provided the courts let him out on bail. Basically, everything that's happened from the point of the conviction on resets, though the time in prison will generally count towards any subsequent sentence.
2. He will be transferred to the county jail. He can be held there if bail is not granted or he cannot come up with the bail money.
3. depends one whether the death is a direct result of the conduct. I would assume that will be a major question in determining whether they can charge him with murder, and a major point of defense should he face trial on the murder charges. Used to be that the person had to die within the time frame of a year and a day of the misconduct, but that may not be the case in your jurisdiction.

He'll get counsel, either private or appointed, and he's now in limbo not knowing what charges he's facing or what kind of time he's looking at. Depending on who's left and available to testify, the State's case may be weaker or stronger than it was when he first went to trial. The strength of the case will inform the plea bargaining.

Also, it should be noted that most murder trials take at least a year to set up, so his time in county or on bail may be substantial.
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Old 10-31-2013, 06:43 PM
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In a case where a conviction is set aside, then one becomes bond eligible as would any other individual awaiting trial. However, the key here is going to be what specifically the Court stated in its Opinion. Not all cases where a sentence is set aside go back to square one...so knowing WHAT has been ordered and WHY it was ordered are critical.

In such a case, if he had not already been moved to the County facility, then they would likely be moving him in the near future.

As to whether they can upgrade the charge, it will all again come back to what specific language applies to the appellate action. If they unwound everything, then the prosecutor is salivating at this rare opportunity to take the case back and get a superseding indictment charging murder. They don't get an opportunity often to correct what they believe was an injustice to the victim and the victim's family...this is potentially one of those opportunities.
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Old 10-31-2013, 09:33 PM
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In a case where a conviction is set aside, then one becomes bond eligible as would any other individual awaiting trial. However, the key here is going to be what specifically the Court stated in its Opinion. Not all cases where a sentence is set aside go back to square one...so knowing WHAT has been ordered and WHY it was ordered are critical.

In such a case, if he had not already been moved to the County facility, then they would likely be moving him in the near future.

As to whether they can upgrade the charge, it will all again come back to what specific language applies to the appellate action. If they unwound everything, then the prosecutor is salivating at this rare opportunity to take the case back and get a superseding indictment charging murder. They don't get an opportunity often to correct what they believe was an injustice to the victim and the victim's family...this is potentially one of those opportunities.
In these types of situations, often has been where a defendant was charged and convicted of assault or some other charge stemming from causation of serious physical injury, where the victim died after conviction as charged, and where superseding indictment was thereafter handed down charging murder, reckless or criminally negligent homicide, or the functional equivalent thereto.

Unfortunately for the accused, rarely does double jeopardy apply in cases such as this.
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Old 10-31-2013, 11:28 PM
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I worked in a long term peds hospital and had patients (brain dead) with ventilator support to maintain life due to the result of shaken baby syndrome. once the child dies the state will pursue murder charges. there is no time limitations on the charge, but the state usually starts the charge of murder within a month or two of the child passing. from the medical side of things, care workers start the care file within 72 hours which all info goes to the state. (at the facility I worked at anyways)
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Old 10-31-2013, 11:45 PM
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All of the babies that ive taken care of that have gone thru these situations becomes 'ward of the state' ive seen family members fight the state in court to keep the patients on life support pretty much to postpone sentencing. Im thinking of one case in particular that the parent who was charged actually served time and was released then charged for the murder of the child once the patient passed away. Hope that sheds light to your questions... And with any new charges, the inmate will be brought back to the county and held for the new charges. Im guessing they will not be released because the da has pretty much an open and ongoing medical file so they have the evidence to proceed with the new charges.
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Old 11-01-2013, 11:52 AM
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Thanks to all of you for your responses. It has definitely shed some light on what could happen in the future. My friend of course is hoping the accused is not released and is charged with murder, she is grieving the loss of her son, and now not even a month after he passes away, the person responsible has his conviction overturned. She is in a very dark place right now and I am desperate to help her in any way I can.
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Old 11-01-2013, 06:22 PM
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Originally Posted by s&talways View Post
Thanks to all of you for your responses. It has definitely shed some light on what could happen in the future. My friend of course is hoping the accused is not released and is charged with murder, she is grieving the loss of her son, and now not even a month after he passes away, the person responsible has his conviction overturned. She is in a very dark place right now and I am desperate to help her in any way I can.
I really hate it when people put too much emphasis on the criminal justice system to validate their feelings. While it's hard, she needs to step away from what's going on with the courts and concern herself with mourning her loss. The loss of a child is one of the greatest tragedies a person can face. Most couples never survive it as a couple. It's horribly isolating and people do not know how to respond. Throw in the crime involved in the loss of a young person's life, and it just compounds the tragedy. I hope she's taking advantage of some grief counseling and if things are too overwhelming, she gets into individual therapy. I'm glad to see she has good friends standing by her as her sense of community and connection will help her find stability as she moves through her grieving process. She's just needs to know; no matter what the courts say or do, it's not a reflection on her or a commentary on her loss.
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  #11  
Old 11-02-2013, 09:19 AM
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I agree, I think she is putting to much emphasis on what is going to happen in the legal system and not on the grieving process. I already see signs of bitterness and resentment, and I am afraid that if the legal process doesn't go the way she would prefer it go it will only get worse and she will become self destructive. I try to do the best I can to help her and just be there for her. I pray it helps.
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Old 11-02-2013, 11:53 AM
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I agree, I think she is putting to much emphasis on what is going to happen in the legal system and not on the grieving process. I already see signs of bitterness and resentment, and I am afraid that if the legal process doesn't go the way she would prefer it go it will only get worse and she will become self destructive. I try to do the best I can to help her and just be there for her. I pray it helps.
encourage her to go to grief support groups or to get into therapy. If money is an issue, you can look around and help find low/no cost options. Lutheran or Catholic charities usually have low/no cost mental health options available. Doing a bit of the scut work for finding appropriate help may help her get into therapy. Switching grief for the court process isn't good. It's understandable, completely understandable, but it gets in the way of the natural grieving process. And, as you've pointed out, too much emphasis can lead to self destruction through obsession, and the nurturing of bitterness and resentment. The court process and punishment of the person responsible is the one place where her son is currently still in a sense "alive", but it is really an unhealthy substitute for bereavement.
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