From: tcmay@got.net (Timothy C. May)
Date: Wed, 15 May 1996 11:42:53 +0800
To: cypherpunks@toad.com
Subject: Re: (legal) Re: CDA Dispatch #10: Last Day in Court
Message-ID: <adbe0243050210040483@[205.199.118.202]>
MIME-Version: 1.0
Content-Type: text/plain


At 2:30 PM 5/14/96, Joseph M. Reagle Jr. wrote:

>        Perhaps someone with a better legal understanding of court cases
>could help me out. I understood from a law course I took that appeals could
>only be filed with respect to process rather than result. One cannot appeal
>a decision, rather one has to appeal the manner in which it was reached (if
>witnesses were biased, important evidence was suppressed, etc.) I was rather
>surprised by this, but obviously this doesn't prevent people from appealing
>willy-nilly because they just fabricate some reason why the process was
>corrupted.
>
>        However, in a venue such as this, what basis can one appeal on? On
>the ACLU side I can actually see an appeal with respect to the
>constitutionality (but I'm not quite sure what) and on the Reno side I don't
>see what they could appeal. Was some evidence poorly presented? It isn't
>like there are any witnesses to lead.

IANALBIGCTV (I am not a lawyer but I get Court TV), but _Constitutional_
issues are always available for appeal (though of course not always
accepted for appeal). For instance, if the lowest level of the court system
tells a newspaper it may not publish a story, this is automatically
appealable to the next level up, even if all sides agree the first trial
was a model of proper trial procedure.

To a large extent, this is what the Appeals process, including the Supreme
Court, is all about. The Supreme Court does more than just clean up sloppy
mistakes made by lower courts, it establishes the "basic interpretation" of
the Constitution and legislation.

In this case, it is the basic constitutionality of the Communications
Decency Act itself that is at issue, not the specific application of it to
a specific case (and even then, it could be challenged on constitutional
issues...in this case, it is going directly through the process to the
Supreme Court for review).

(Another way this case is not like a simple court case is that the
government side gets to appeal a loss; in a conventional criminal trial, a
la OJ, the government does not get to appeal a loss. I'm sure the lawyers
and law professors out there can say more about the distinction, about when
and under what circumstances the prosecution side gets "another bite of the
apple," and about what the terms of appeals may be.)

--Tim May


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