From: Michael Froomkin <froomkin@law.miami.edu>
Date: Wed, 15 May 1996 16:27:47 +0800
To: "Joseph M. Reagle Jr." <reagle@MIT.EDU>
Subject: Re: (legal) Re: CDA Dispatch #10: Last Day in Court
In-Reply-To: <9605141430.AA20216@rpcp.mit.edu>
Message-ID: <Pine.SUN.3.91.960514175706.8693B-100000@viper.law.miami.edu>
MIME-Version: 1.0
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On Tue, 14 May 1996, Joseph M. Reagle Jr. wrote:

> [Regarding ACLU v. Reno]
> 
>         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

False.

> 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.

I have no idea how you got this idea.  It is not so.  It sounds like a 
highly garbled version of the rule for the appeal from a **jury 
verdict**.  In such cases you can only appeal the result absent a claim 
of procedural or substantive legal error  if it is so obviously and horribly 
wrong that no rational jury could possibly have come to that conclusion 
on the evidence.  In a jury trial therefore the usual method of appeal is 
to find either an error in the procedure or an error of law in the jury 
instruction, or in the rare case to challenge the law itself as 
unconstitutional.

None of this, however, applies to the CDA case, which is a direct 
challenge to the Constitutional validity of the law, and which is being 
tried before a special three-judge panel of the district court, sitting 
without a jury, pursuant to the special procedure set out in the bill 
itself.  This procedure is used with some regularity for caseds where 
congress realizes that the validity of the law is likely to be questioned.

> 
>         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.

You can appeal directly on the merits.  And you do so.  The higher court 
decides all questions of law de novo (ie pays no deference ot tyhe 
decision of the court below beyond whatever persuasive power it may 
have), but must accept the factual record as presented ("found") by the 
court below.  Thus the importance of the trial testimony at this stage.

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.