[PROPOSAL] Appeals and Mistrials Act

The Magisterium
1

WHEREAS, Article E, Section 4.4 of the Concordat of the East Pacific states, in part, “Each Resident shall not be tried twice for the same offence … unless new and compelling evidence has been presented to the Conclave,” and;

WHEREAS, the Standing Orders of the Conclave as in force at the time of the passage of this act permit any party in a trial, as well as the Delegate or any Arbiter of the Conclave, to appeal any verdict in any trial, and;

WHEREAS, to appeal a verdict of not guilty has the very same effect as to try a Resident a second time on the same offence, and;

WHEREAS, it is in the interest of justice in a community that values the rule of law as well as in the spirit of the restrictions laid out in the Concordat to limit appeals of not guilty verdicts to the absolute minimum possible;

THEREFORE, be it enacted by the Magisterium of the East Pacific:

SECTION I. CITATION

…1.1. This Act shall be known as the Appeals and Mistrials Act.

SECTION II. DEFINITIONS

…2.1. For the purposes of this act, an appeal shall be defined as a request submitted to the Conclave to reconsider a verdict previously issued in a trial.
…2.2. For the purposes of this act, a mistrial shall be defined as a declaration by the Conclave that a trial in progress, or a verdict in a trial, is invalid due to a legal error and which calls for that trial to be voided and a new trial on the same question to be held.

SECTION III. APPEALS

…3.1. In a trial before the Conclave a verdict of Not Guilty has been returned, the only circumstance in which an appeal may be granted is in the event that new and compelling evidence has been presented to the Conclave.
…3.1.1. The Conclave shall consider the question of whether to grant or deny the appeal in a hearing held separately from that trial.
…3.2. In any circumstance in which the Conclave considers the question of granting an appeal due to new and compelling evidence, in order for that new and compelling evidence to be considered valid grounds for an appeal, it must:
…3.2.1. Not have been introduced in the trial in question or any concurrent or previous trial.
…3.2.2. Not have been in the possession of The East Pacific or any official thereof, nor accessible to The East Pacific or any official thereof, before the trial in question began.
…3.2.3. According to the judgment of at least two Arbiters, present in a clear and convincing argument that there is a significant possibility the previous verdict could be incorrect.
…3.3. Nothing in this section shall prohibit the Conclave from accepting a petition to declare a mistrial.

SECTION IV. MISTRIALS

…4.1. The Conclave may, upon receipt of a petition to declare a mistrial from any party in a trial currently before the Conclave, or a trial that has been concluded within the preceding thirty (30) calendar days, decide in a hearing held separately from that trial to grant or deny the petition.
…4.1.1. A petition for mistrial may be granted on the following grounds:
…4.1.1.1. Procedural error.
…4.1.1.2. Misconduct, bias, or prejudice on the part of an Arbiter, prosecutor, or legal counsel.
…4.1.1.3. The usage of inadmissible evidence.
…4.1.2. An affirmative vote of at least two Arbiters may grant the petition for mistrial.
…4.1.3. A petition for mistrial filed more than thirty (30) calendar days after the Conclave has delivered a verdict in the trial shall be invalid and may not be granted.

SECTION V. SEVERABILITY

…5.1. In the event that any individual part of this Act is declared invalid or unenforceable, this shall not affect the validity of any other part of the Act that is operable without the invalid or unenforceable part.

I am proposing this bill to close what I believe to be an injustice in the current Standing Orders of the Conclave. I am embarrassed that I did not notice this during my own time on the Conclave, but currently, it is possible for the prosecution to appeal a verdict of not guilty.

I am not a lawyer in any jurisdiction, but I understand the concept of appealing a verdict of not guilty to be what is known as “double jeopardy,” or being tried more than once on the same question. I reviewed the Concordat and found that Article E, Section 4.4. prohibits double jeopardy with one exception: in the event that new and compelling evidence comes to the attention of the Conclave. I am also submitting a proposed amendment to the Concordat to change this, but I seek to address the issue on the level of statute law as well so that such cases are restricted to the maximum extent permissible even under the current Concordat.

Fundamentally, as I see it, the notion of the prosecution or plaintiff being able to appeal a verdict of not guilty is, quite literally, a second chance to get their argument heard before a court. It means that the defendant attained a verdict of not guilty but will have to go before a court a second time in order to ensure their innocence. I don’t think that’s wise. I think it presents the opportunity for the abuse of power by the government. In any circumstance where regional security is at stake, there are tools and procedures outside the judicial system that the Praesidium may use to address threats and ensure continued security.

The Concordat as currently constituted does permit double jeopardy in one circumstance, so this legislation seeks to respect that but impose safeguards. I dislike the notion that, currently, the endorsement of just one Arbiter may grant an appeal. The law changes this two two arbiters for a mistrial and three for an appeal of a not guilty verdict specifically, but does not mention other circumstances to permit the Conclave to continue to govern these procedures under its standing orders. It also limits the time a mistrial can be declared to before a verdict is reached, and states specifically what is permissible grounds for a mistrial. Again, I am not a lawyer, so while I am eager for any questions/concerns/edits anywhere in the draft, I am particularly interested in comments about the permissible grounds for mistrial, as well as the definition of “new and compelling.”

In general, this Act seeks to protect the rights of the accused, who or at the very least ought to be presumed innocent until proven guilty.

2

I will deliver some feedback on this further tomorrow, but for now:

I don’t believe a civilized jurisdiction that respects the rule of law should permit this.

Europe’s civil system of law would like a word.

I don’t see any problem at all with this. An appeal is not double jeopardy. That’s just not a thing.

3

I said this on Discord but to have it here on the forum as well: I am, in fact, surprised to learn that it is the case elsewhere that appeals by the prosecution are possible. Please pardon my Americocentrism. I retract my comment regarding “civilized jurisdictions,” with apologies. That is a charged term I shouldn’t have used, I will edit it out of my post shortly.

I hope to avoid making too many real world comparisons, if possible. But to take a moment to explain my perspective, the Fifth Amendment to the US Constitution states in part “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Twice put in jeopardy is understood to mean precisely that: the first time put in jeopardy is the trial in the court of first instance, and an appeal of an acquittal would represent a second time placed in jeopardy. I now understand that other jurisdictions understand jeopardy to include the entire process including appeals to the highest level, so that an appeal would not represent being “twice” put in jeopardy. Upon consideration of both perspectives, I find that I personally still prefer the former.

I agree that what I am about to say is subjective, but personally, I believe that the more the law allows for the prosecution/plaintiff/government (I’ll just say “government”) to try again, the more that presents an opportunity for the government to game the system to get a verdict that it wants, and that this represents an opportunity for government overreach that ought to be avoided. High crimes that are heard by the Conclave entail severe penalties. I am willing to entertain reasons why I should change my mind, but fundamentally, I believe the government’s power to get these severe penalties imposed should be restricted as much as is reasonable. I believe it is and should be incumbent on the government to make its case in the trial and that, should they not convince the Presiding Arbiter, then they have failed, and the avenue for judicial relief should then be closed. I don’t believe it’s fair for the government to have the chance to try and game it to get the whole Conclave to hear it because the Presiding Arbiter happened to be someone the current Delegate doesn’t like, or to try and wear out the accused by dragging out the process when they know they have a weak case, or any number of other potential abuses of the judicial system. When you only get one shot, your evidence had better be sound, everyone had better be taking it seriously, and you had better be sure the person is guilty. I like this because it reduces the chance of using prosecution for political purposes as opposed to seeking justice or regional security. (Pinging @Aivintis as this also serves to response to his point on Discord about what might constitute a compelling reason for the TEP judicial system to differ from real world judicial systems in this case.)

This proposal still allows for appeals of a verdict of not guilty (notwithstanding my proposed Concordat amendment) but imposes a high bar to be cleared. This addresses my concerns about government overreach or misuse of the judicial system to seek political goals. The Concordat permits double jeopardy if there is “new and compelling evidence” but does not define what “new and compelling evidence” is, so this proposal seeks to do so. Again, I am seeking safeguards to protect the rights of the accused. I think current law makes it easier than it could be for the government to secure a verdict it wants. I am especially skeptical of SOC 2.19d and 2.19e. I don’t like that “the Delegate wants an appeal” or “one Arbiter thinks there should be an appeal” are, on their own, valid reasons to grant an appeal.

As I write this, @Aurora_Yukihime raised a point on Discord that I hadn’t considered: while I have been focused on the potential for abuse of power by the prosecution/executive branch, there also exists the potential for abuse of power by an Arbiter. There is only one Arbiter and no jury in a case in our system. So that does indeed present a compelling case to me why we might want to have appeals of not guilty verdicts. I will wait for Bach’s further points, but I expect I will be toning down my proposal in at least some respect. But I still think there’s opportunity for more clarity, and more safeguards for the accused, in this area.

4

On a first very cursory read, I think this generally makes sense.

However, I do not agree with prohibiting mistrial appeals for non-guilty verdicts. I think the intention (including the elaborations) behind it is solid, but the fact is mistrial can indeed lead to a defendant walking free who otherwise might truly be guilty. Bias against the prosecution is possible, a procedural error that ends up invalidating the prosecution’s error is possible, usage of inadmissible evidence by the defense is (theoretically) possible.

In short, the proposed changes do well to protect the defendant, but in doing so I don’t think they allow for true justice to be as easily reached should the defendant truly be guilty of the crime. It’s one thing to presume innocence to give the defendant a fair trial, it’s another thing to let someone who may very well be guilty walk away free because of a bungled trial.

5

I have made some edits to the draft. In addition to some formatting changes and changes of some instances of awkward phrasing, I have:

  1. allowed mistrials within 30 days of a verdict being issued, per @Zukchiva, though I still feel there should be a limit. Mistrials deal strictly with procedural issues. A procedural issue should be pretty obvious, I don’t think you need much time to determine if there has been an error or not. I don’t want the mistrial procedure to present a way to get around the limitation on appeals.
  2. Per comments from @Kingdom_of_Napels, I have lowered the number of Arbiters whose agreement is required for an appeal from 3 to 2. I have also changed 3.2.3 to require “a significant possibility that the previous verdict could be incorrect,” as opposed to previously, where Arbiters were to determine if it is incorrect. It feels like a small change, but it now allows for some wiggle room. Arbiters need not be convinced that it definitely IS incorrect, just that it might be.
6

My comments as to the text, so far:

WHEREAS, Article E, Section 4.4 of the Concordat of the East Pacific states, in part, “Each Resident shall not be tried twice for the same offence … unless new and compelling evidence has been presented to the Conclave,” and;
[This needs to be updated depending on the outcome of the proposed amendment to this section of the Concordat.]

WHEREAS, the Standing Orders of the Conclave as in force at the time of the passage of this act permit any party in a trial, as well as the Delegate or any Arbiter of the Conclave, to appeal any verdict in any trial, and;

WHEREAS, to appeal a verdict of not guilty has the very same effect as to try a Resident a second time on the same offence, and;
[As discussed, I do not agree that this is the case. Retrying a resident (why only a Resident?) would mean beginning a whole new trial, whereas an appeal is an extension of the same, original trial, and an integral part of it.]

WHEREAS, it is in the interest of justice in a community that values the rule of law as well as in the spirit of the restrictions laid out in the Concordat to limit appeals of not guilty verdicts to the absolute minimum possible;
[Why though? This statement as such is not explained. Why would it be in the interest of justice and the rule of law to LIMIT appeals?]

THEREFORE, be it enacted by the Magisterium of the East Pacific:

SECTION I. CITATION

…1.1. This Act shall be known as the Appeals and Mistrials Act.

SECTION II. DEFINITIONS

…2.1. For the purposes of this act, an appeal shall be defined as a request submitted to the Conclave to reconsider a verdict previously issued in a trial.

[Why define an appeal as a request? What’s the added value? Moreover, it is not the Conclave that renders a verdict in this situation, but the Presiding Arbiter. So the Conclave can’t “reconsider” something they haven’t decided in the first place.]

…2.2. For the purposes of this act, a mistrial shall be defined as a declaration by the Conclave that a trial in progress, or a verdict in a trial, is invalid due to a legal error and which calls for that trial to be voided and a new trial on the same question to be held.

[The “and which” reads awkward to me here, I recommend deleting the “and”. The “on the same question” is questionable to me - no pun intended – because criminal trials are held regarding criminal charges, not about questions, and typically not a single question either.
You define a mistrial as a “declaration” that a trial or verdict is “invalid”. And that declaration “calls” for the trial or verdict to “be voided”. Does that mean that a mistrial needs TWO decisions by the Conclave: 1) to issue the declaration 2) to actually void the trial or verdict after the declaration? And nothing is mentioned, in that case, how the actual voiding needs to happen.
In my view, trying to use these definitions really overcomplicates things.]

SECTION III. APPEALS

…3.1. In a trial before the Conclave a verdict of Not Guilty has been returned, the only circumstance in which an appeal may be granted is in the event that new and compelling evidence has been presented to the Conclave.
[Some words seem to be missing here. “If”? And “the only circumstance in which (…)” is a convoluted way for saying that an appeal is only possible in case of new and compelling evidence.]

…3.1.1. The Conclave shall consider the question of whether to grant or deny the appeal in a hearing held separately from that trial.
[“A separate hearing shall be held before the grant or denial of an appeal by the Conclave.”]

…3.2. In any circumstance in which the Conclave considers the question of granting an appeal due to new and compelling evidence, in order for that new and compelling evidence to be considered valid grounds for an appeal [Most of this introduction is really unnecessary.], it must:
…3.2.1. Not have been introduced in the trial in question or any concurrent or previous trial.
…3.2.2. Not have been in the possession of The East Pacific or any official thereof, nor accessible to The East Pacific or any official thereof, before the trial in question began.
…3.2.3. According to the judgment of at least two Arbiters, present in a clear and convincing argument that there is a significant possibility the previous verdict could be incorrect.

[This whole Section 3.2 has a weird logic to me.

In order for “new and compelling evidence” to be “valid grounds for appeal” – so contrary to Section 3.1, it doesn’t suffice to have new and compelling evidence? It needs to be “valid” as well? Why the two layers?

I could understand that “a significant possibility the previous verdict could be incorrect” being a second condition, but why shoe that in to the definition of “new and compelling”? Something can be new and compelling, and not likely lead to a reversal. Those are two separate things.

And, ‘a significant possibility the previous verdict could be incorrect’ isn’t very useful. What is “incorrect”? And what about partly incorrect? What about a single motion for new evidence that was injustly granted or denied, influencing the evidence the verdict relies on in its text? Is that “incorrect” in the sense of this section? Or not? What if it’s only a point of law, but the evidence establishes guilt on other charges or establishes guilt on separate grounds? So many questions.

“Present in a clear argument” – Section 3.1 only requires “new and compelling” evidence to be presented. But here 3.2.3 requires additionally a “clear and convincing argument”. So evidence that is new and compelling, and would likely lead to a change in the verdict, isn’t enough?

Lastly, 3.2.2 is really far-reaching. The evidence must not have been in the possession of “The East Pacific” or “any official thereof”. What does “The East Pacific” mean here? The entire region and Citizenry? The Executive? All branches of government, but not the Citizens? Residents? And “any official” – so if a Vizier brings charges, and later on it is revealed that the deputy provost found some information in a stray Discord message he or she didn’t notice at first, which is impossible to know for the prosecution, that evidence can’t be brought as new?

And don’t get me started on “accessible”.

By the way, under our system, ANY CITIZEN can bring a prosecution. This whole law assumes only the Viziers or Executive would.]

…3.3. Nothing in this section shall prohibit the Conclave from accepting a petition to declare a mistrial.
[“Accepting” a petition doesn’t mean anything. Any application is always “accepted”. What we do is rule on it, and grant or deny the application.]

SECTION IV. MISTRIALS

…4.1. The Conclave may, upon receipt of a petition to declare a mistrial from any party in a trial currently before the Conclave, or a trial that has been concluded within the preceding thirty (30) calendar days, decide in a hearing held separately from that trial to grant or deny the petition. [Nothing about acceptance, see?]
…4.1.1. A petition for mistrial may be granted on the following grounds:
…4.1.1.1. Procedural error.
…4.1.1.2. Misconduct, bias, or prejudice on the part of an Arbiter, prosecutor, or legal counsel.
…4.1.1.3. The usage of inadmissible evidence.

[All three scenarios seem like procedural error to me.]

…4.1.2. An affirmative vote of at least two Arbiters may grant the petition for mistrial.[So contrary to literally ALL other decisions by the whole Conclave, including pre-trial and the decision on the merits of having a trial, you DON’T require a majority?]
…4.1.3. A petition for mistrial filed more than thirty (30) calendar days after the Conclave has delivered a verdict in the trial shall be invalid and may not be granted.
[This is not necessary, as 4.1. already clearly sets this limit.]

SECTION V. SEVERABILITY

…5.1. In the event that any individual part of this Act is declared invalid or unenforceable, this shall not affect the validity of any other part of the Act that is operable without the invalid or unenforceable part.

[This does not work that way and would be Unconcordatial, see: https://forum.theeastpacific.com/t/judicial-review-public-thread-extent-of-jr-nullification/17180/3]

Now, my more fundamental gripe with this is that it is unnecessary.

I believe we have currently the first ever appeal application ever before the Conclave. We have no actual issue to solve here. It is not an abused process.

We already have a procedure that provides for a preliminary hearing, and limited reasons for appeal (§ 2.19 SOC), namely substantively compelling new evidence, breach of protocol, mistrial, delegate request for appeal or Arbiter endorsement of the appeal application). In other words, only in these five cases can the Conclave consider whether or not to even grant an appeal trial. The Conclave can decide for each individual appeal application, brought by the prosecution or the defense, whether having an appeal is warranted. We have the option, in each of these cases, to not grant it. This is a much fairer system than the restrictive mess that this law would provide for.

An appeal, given the above, is an integral – optional – part of trial proceedings as defined by the Standing Orders, and not a new trial on the same charges. If, after a final verdict (because no appeal was brought or an application for appeal was denied) or a final verdict on appeal, the same charges are brought again, that would be double jeopardy.

7

Honestly, fair, but let’s consider this from the perspective of the current trial: The Viziers considered evidence against Jo to be sound, we took it seriously, and the prosecutors we appointed were sure of Jo’s guilt. None of us could have expected the TSP-TEP switcheroo evidence or the citizenship argument. I think your current draft works given edits you’ve made since, but I wanted that to just be a point that’s out there.