nature on trial:  fighting for freedom of choice in landscaping
Village Appeals My Acquittal
by jcr13Friday, July 21, 2006 [11:04 am]

After I received the decision of "not guilty" from the court, I knew that the long process (nearly a year) of fighting a court battle was finally over. After all, the government cannot appeal an acquittal---such an appeal is forbidden by the double jeopardy clause of the Constition. Jeopardy attaches when the trial starts, and it ends when a verdict of acquittal is issued. An appeal, therefore, would start a second round of jeopardy.

Many people that I talked to after the decision, including village officials, were suprised when I told them that an appeal was impossible. Of course, most people are not all that familar with constituional law or court precedents (nor was I before I got pulled into this ordeal).

You can imagine my shock when, on July 14, 2006, I received a large envelope in the mail from the Village Attorney. That envelope contained a notice of appeal to county court of the "dismissal" and an affidavit of errors.

Note that orders of dismissal (when a judge drops charges before a trial begins) are appealable by the government, but acquittals are not. I suspect that this "mistake" in wording in the notice of appeal was intentional on the part of the Village Attorney---he may be trying to make a unappealable ruling look like an appealable ruling. However, I will probably never know for sure.

On July 17, 2006, I appeared to speak at a meeting of the Village Board.

Before I spoke, I had a brief meeting with the Village Attorney in the hallway. I said that I was suprised about his appeal, given all the caselaw forbidding it on double jeopardy grounds. He said this was not double jeopardy and that the people appeal "dismissals" all the time. I corrected him, saying this was an acquittal, not a dismissal. He said that he thinks the judge was wrong and that it is common practice for county courts to review errors committed in justice courts. He said I could try arguing on double jeopardy grounds if I wanted, but that it was not double jeopardy. I asked for a precedent case on the matter, and he said he was not going to argue about it. I read a few Supreme Court quotes to him about acquittals, and he refused to comment.

I then spoke in front of the Board, explaining double jeopardy to them, and reading lots of Supreme Court quotes about acquittals. I finished by asking them to abide by their oath of office and uphold the Constitution. I asked them to drop their frivolous appeal. My request was covered on Page 2 of the July 18th edition of the Potsdam Massena Courier Observer. The Board seemed to ignore me.

On July 19, I filed a motion with the Village Court that it reject the notice of appeal as defective (since it refers to a "dismissal" which never was issued). After the fact (today), I talked to a lawyer who does not think this motion will fly---the Village Court operates in a relatively mechanical fashion after an appeal is filed. The Court will send its return and the record to the County Court even if the notice of appeal is defective.

So, I may end up arguing in the County Court after all. My initial defense will be relatively easy to argue: double jeopardy forbids this appeal. Every lawyer that I have talked to agrees that this appeal violates double jeopardy protections.

And here I thought that this round of my fight was over.

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