[Special Chambers] Review: Flem v Grosse

Crushing Our Enemies

Crushing Our Enemies

TNPer
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Discord
COE#7110
flemingovia:
Request for legal review, Flemingovia vs Grosse

Justices,

I understand that our rules on double jeopardy do not allow the case of Flemingovia vs Grosse to be reopened. I am not seeking that.

However, I do feel that the conduct of the case by the court was unsound, and I would request a legal review of the conduct of the case and the officials concerned, and whether a safe verdict was reached in that case.

Naturally, I will be recused as a justice, but if the court wishes to hear my reasoning further, I would be happy to oblige.
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flemingovia:
In the case of Flemingovia vs Grosse, I believe the court acted illegally and in disregard of it's own rules and procedures, in delivering a summary and cursory judgement without considering at all the evidence or the arguments of the case. This was prejudicial both to the plaintiff and the defendant.

Yes, I do believe the officials in this case acted improperly, and I would like some acknowledgement of the fact.

In an ideal world, I would like a mistrial to be declared and the whole proceedings restarted. But our world is not ideal, so the best I am hoping for is for lessons to be learned through a judicial review, and guidance issued to future court officials to prevent such a travesty happening again.
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flemingovia:
Thank you to the court for its understanding during this period of high workload IRL.

BACKGROUND

On 15th January 2013 civil charges were filed against Grosse pertaining to certain baseless comments he had made about me, alleged abuse of moderation/administration privileges, and bias that I had allegedly shown in order to favour my "ally" blue wolf.

these comments injured me deeply, since I pride myself on my impartiality when it comes to administration duties. These comments were all the worse since they came from a fellow administrator on the forum.

I was advised by the court that I had no grounds for criminal complaint, but could pursue a civil complaint through the courts, which I duly did.

From the outset, the court hearing was beset by problems, mainly caused by Grossse's leave of absence from certain aspects of the forum.

On February 26th a decision was made in favour of myself. This seems to have been reached simply to clear the case from the books, rather than on examination of evidence. The court promised to issue an fuller opinion, but this was never delivered.

At this point I expect little satisfaction from Grosse. It is my belief that he lacks the maturity of character to admit that he was in the wrong, and that he lacks the common decency to apologise. That is a given. I believe that many who have known Grosse as long as I have would agree with that assessment.

My main concern is for the court system, to make it more robust and to ensure that verdicts like this are not delivered in the future.

I was asked to phrase in questions, so here we go:

1. Will the court please give opinion on the conduct of the case Flemingovia vs Grosse, giving special attention as to whether the evidence was adequately examined and the verdict was delivered in light of that evidence.
2. Should the court decide that the verdict was not reached after due process, will the court declare that a mistrial took place.
3. Since Grosse was found guilty, does double jeopardy apply, or could the case be reopened so that a proper verdict can be reached?
4. in legal opinion, what lessons can be learned so that future cases are not handled as shoddily as this one was (in my opinion).

thank you. If anything in this is clumsily phrased it is because I am in a rush work-wise. If you need clarification I will happily provide it.
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For reference:

Original indictment

Original trial thread

flemingovia:
If this is done, it will be seen as a continuation of your ongoing feud with Blue Wolf, rather than a legitimate moderation decision.

I want to de-escalate this issue, rather than increasing the problem.
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Grosseschnauzer:
So you are giving your political ally carte blanche to get away with whatever misbehavior he chooses to engage in on the forums?

Is that the bottom line of your comment, Flem?
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flemingovia:
I Don't think i can let this slide without comment.

in the first instance, Blue Wolf and I are about as far apart as it is possible to get on the NS political spectrum, so I do not see where you are coming from describing him as my "political ally"

Secondly, as I think my comments clearly show, my suggestion was based on a possible negative fallout from moderator actions, when I was trying to de-escalate the situation. That was the "bottom line". There was no hidden bias in favour or against any individuals.

There IS, however, a bottom line to this post. To save you hunting for it, Grosse, I will spell it out: Your desccent into paranoia is getting painful to watch and unedifying. When you start linking myself and Blue Wolf in your mind you begin to look absurd.
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Grosseschnauzer:
Flem, the point of my post is that your objection to issuing any warnings for those who have been flamebaiting Gov came across as being blantantly political and a seeming exercise in being tolerant of anything that has the smell of achieving your own aims. And to criticize me about Blue Wolf when his behavior towards me has been even more outrageous than he's been toward Gov does suggest to me that you have taken his side on a lot of things.

You have been on a relently never-ending campaign to punish me for doing the right thing when you quit the region and the forum admin team at the end of your term of Delegate. I'm not going to count the number of times you've expressed, or implied, that I "stole" the root admin account from you.

And we won't get into the unilateral abuse of your admin powers in setting up your temple in the wrong place without even consulting anyone. That was an ego trip on your part that was without parallel here. Had you asked the other admin at the time (me, Elu, and Ator) beforehand at least we could have discussed it and avoid misunderstandings.

Getting back to the topic at hand, the consensus appears to be to: (1) issue 20% warning to the most visible offenders of flamebaiting Gov and (2) give a public pat on the back to Gov for now. It's not clear to me yet whether the consensus is whether we should also give him a 20% reduction.

I won't be the one to implement this, maybe Elu you should so as to keep complaints and criticisms down to a minimum.
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Court rules in effect during the trial (Note the absence of civil trial procedures.)

Court rules adopted ~6 hours after the ruling was issued (Note the addtion of civil trial procedures.)

The Court at the time consisted of Hileville, Gaspo, and Sanctaria.

While Roman and I have access to the private court thread(s) that were created regarding Flem v Grosse and surrounding events, I don't think it would be proper to take them into consideration. If anyone has any thoughts on this, let me know.

I think we should deliberate on this matter on IRC sometime this weekend. The best times for me would be Saturday evening after 8 PM EST, or Sunday before 6 PM EST. Please read through all the spoilered and linked material before deliberation. Let me know what times are best for you this weekend. If this weekend isn't an option, can we shoot for Tuesday evening? EDIT: I almost forgot, I can also be available today after 5 PM.
 
I'm free basically whenever, so just let me know when to be around.

Apologies to the Chief Justice if this is presumptuous, but I think it might be helpful to also take into account a couple specific things from the Constibillocode.

From the Constitution:
1. The Court will try all criminal and civil cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party.
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3. The Chief Justice will administer the rules of the Court. Where no rules exist, the Chief Justice may use their discretion.
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4. The official opinion of the Court in any trial or review will be binding on all Government bodies and officials.
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And from the Bill of Rights:
9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution.
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Those are all quite relevant! I hadn't thought of looking into the Bill of Rights. Thanks! Both of you, feel free to provide any other text you think will be relevant to our decision.
 
Saturday after 8 PM, EST is good for me to be on IRC.

Let me read the trial transcripts so that I am familiar with that aspect of the matter and weigh in on it all.
 
That took me all of one minute to read the trial thread. That's if it can be called a trial thread at all.

Where are all the proper steps in the procedure? Where is the evidence presented?

Very irregular (to say the least) and very strange (to say the least). :blink:


You know, since the court found in favor of the Plaintiff, and the Defendant was found in equivalent terms 'guilty' or rather liable for his actions, and since double jeopardy only comes into play if a defendant is found not-guilty, double jeopardy isn't really an issue at all.

In terms of this being a civil issue and not a criminal issue, the court did technically rule based upon the preponderance of evidence presented by the Plaintiff and in light of the fact that the Defendant never responded at all to the charges, the preponderance of evidence ball is clearly in the Plaintiff's court in the absolute. Such ruling commonly occur in civil matters where preponderance of evidence is generally and usually considered to determine the balance of equity and liability.

But - nothing resembling a hearing in any regular form occurred.

Which brings up an interesting situation, and that would be a Plaintiff who won a civil case is essentially appealing that decision on the grounds of a mistrial by very odd procedure. This is a real first!

I don't think 'double jeopardy' is an issue at all because the Defendant was not found guilty in which case at least the Defendant could appeal the decision.

But what really puzzles me is that the Court never prescribed a penalty at all against the Defendant which, by all logic should occur.
 
I've had some unexpected travel plans come up. Shall we say 9 PM? I might be only slightly earlier, but that's the earliest I can be *sure* of.
 
Here is the log of the deliberations on this review:
[21:30] <COE> Alright, let's start here: did the previous court actually break any laws, or violate any provisions of the bill of rights in Flem v Grosse?
[21:30] <Romanoffia> Hard to say.
[21:30] <Romanoffia> I think its more of a case of slip-shod procedure...
[21:31] <Asta> I think they did.
[21:31] <Romanoffia> and the desire to dispense with a case as quickly as possible which would imply a violation of due process, so yes.
[21:31] <Asta> I think roman's right, they absolutely failed to follow their own procedures, and as a result, they violated the right to due process.
[21:31] <Asta> I think they also violated the basic principles of transparency and accountability in the manner in which the verdict was issued
[21:32] <COE> Let's back up to the court procedures, cause this is an important point
[21:32] <Romanoffia> They didn't even follow up with a supposed sentencing within the required amount of time in their own rules.
[21:32] <Asta> the court rules, as written, applied to all trials
[21:32] <Romanoffia> Indeed.
[21:32] <COE> The court rules at the time did not have separate processes for criminal and civil trials - same rules for all trials
[21:32] <Asta> the procedure was not specified as "criminal" - and the procedure they did follow, if we cna call it that, was also not the same as the ones they published a few hours later
[21:32] <Asta> *can
[21:33] <COE> So I think we need to examine the scope of this clause: "This timetable may be altered by the Moderating Justice as required."
[21:33] <Romanoffia> No evidence beyond the complaint was ever presented.
[21:33] <COE> OK, everyone is talking about different things. Hang on a sec. Look at that clause. Decide what it means
[21:33] <Romanoffia> Time table can be changed, but generally the actual steps in procedure must follow in a sequential order.
[21:33] <Asta> okay
[21:33] <Asta> the specif - yes
[21:34] <Asta> choosing to use the word "altered", to me, indicates flexibility in allotted time, but not flexibility in stages.
[21:34] <Romanoffia> Exactly.
[21:35] <COE> Alright, so we're agreed that the previous court broke their own rules by skipping stages of the trial
[21:36] <COE> Moving on to the bill of rights - violation of due process?
[21:36] <Asta> I would say yes
[21:36] <Romanoffia> I would concur.
[21:36] <Asta> process was not followed
[21:36] <COE> Me too
[21:36] <Asta> Also
[21:37] <Asta> I think EVEN IF we accepted that the previous court thought it had no rules for civil trials, that its rules were only for criminal, finding a defendant guilty without even the presentation of evidence simply must be a violation of their right to be heard and defend themselves.
[21:37] <Asta> that is
[21:37] <COE> So, Grosse's rights were violated by the court
[21:37] <Asta> EVEN IF they had followed a procedure invented on the spot, that procedure cannot possibly be legal
[21:37] <COE> Yeah
[21:39] <COE> Roman, do you think it would be appropriate for us to consider the old private thread regarding this case?
[21:39] <COE> Or should we leave that out entirely?
[21:39] * Romanoffia_ (~chatzilla@h84.41.29.71.dynamic.ip.windstream.net) has joined
[21:40] <Romanoffia_> dammit
[21:40] <Asta> what was the last thing you saw?
[21:40] <Romanoffia_> what's the command to kill a ghost session?
[21:40] <Asta> /ns ghost password
[21:40] <Romanoffia_> K.
[21:40] <COE> What was the last you read?
[21:41] <Romanoffia_> won't let me kill the ghost.
[21:41] <Asta> try /msg nickserv instead of /ns?
[21:41] <Asta> what's it saying?
[21:41] * Romanoffia has quit (Ping timeout: 186 seconds)
[21:41] <Asta> oop, there it goes
[21:41] <Romanoffia_> Let me try that.
[21:41] <Asta> [21:36] <@Romanoffia> I would concur. <--- did you see anything after you said this?
[21:41] * Romanoffia_ is now known as Romanoffia
[21:42] * ChanServ gives channel operator status to Romanoffia
[21:42] <Romanoffia> K, back again.
[21:42] <Asta> ok, so.. did you? :P
[21:43] <Romanoffia> Oh, I said, "The court at that time did, however, adhere to a Common Law principle in terms of a civil case - preponderance of evidence, insofar as Grosse never even responded to the charges,but, that said, they needed to properly state that reasoning in a decision."
[21:43] <Asta> ok, we never got that
[21:43] <Asta> [21:36] <@Romanoffia> I would concur.
[21:43] <Asta> [21:36] <Asta> process was not followed
[21:43] <Asta> [21:36] <@COE> Me too
[21:43] <Asta> [21:37] <Asta> Also
[21:43] <Asta> [21:37] <Asta> I think EVEN IF we accepted that the previous court thought it had no rules for civil trials, that its rules were only for criminal, finding a defendant guilty without even the presentation of evidence simply must be a violation of their right to be heard and defend themselves.
[21:43] <Asta> [21:37] <Asta> that is
[21:43] <Asta> [21:38] <@COE> So, Grosse's rights were violated by the court
[21:43] <Asta> [21:38] <Asta> EVEN IF they had followed a procedure invented on the spot, that procedure cannot possibly be legal
[21:43] <Asta> [21:38] <@COE> Yeah
[21:43] <Asta> [21:39] <@COE> Roman, do you think it would be appropriate for us to consider the old private thread regarding this case?
[21:43] <Asta> [21:39] <@COE> Or should we leave that out entirely?
[21:43] <Romanoffia> And since there was no rule delineation between criminal and civil procedures, the process was all buggered up.
[21:44] <Romanoffia> <Asta> I think EVEN IF we accepted that the previous court thought it had no rules for civil trials, that its rules were only for criminal, finding a defendant guilty without even the presentation of evidence simply must be a violation of their right to be heard and defend themselves. <<<<<< That would be a logical conclusion in any event.
[21:45] <Romanoffia> Since the defendant was found guilty, Double Jeopardy would not be an issue were the trial to be re-opened or set aside and re-tried as a civil case.
[21:45] <COE> I will note that within 48 hours of the trial being opened, it was postponed due to grosse's health reasons, and was never declared to be in session again until the ruling was given
[21:45] <Romanoffia> True.
[21:45] <Asta> another procedural issue
[21:45] <COE> So grosse never even got his full chance to enter a plea
[21:45] <Asta> yeah
[21:45] <Asta> but even if he did
[21:45] <Asta> the default is not guilty
[21:45] <COE> Yeah
[21:45] <Romanoffia> But the Double Jeopardy issue is null and void.
[21:45] <Asta> and there was no evidentiary period for either to submit
[21:45] <Romanoffia> That is also true.
[21:46] <Asta> I have a question, btw
[21:46] <COE> Yeah, I think we're all agreed that double jeopardy is not an issue
[21:46] <Asta> once roman's answered COE"s
[21:46] <COE> [21:43] <Asta> [21:39] <@COE> Roman, do you think it would be appropriate for us to consider the old private thread regarding this case?
[21:46] <COE> [21:43] <Asta> [21:39] <@COE> Or should we leave that out entirely?
[21:46] <Romanoffia> I'd consider it because there is no case at all without it.
[21:47] <Romanoffia> But, if it was a private conversation, ethics would err on the side of caution.
[21:47] <Asta> personally, not having read it, I don't think we need to
[21:47] <Asta> iit doesn't really have bearing on the procedural issues
[21:47] <COE> Fair enough, I'll leave it out of our deliberation
[21:47] <Romanoffia> Do we want to set a precedent that allows private communications between two people in a non-public means to be admitted as evidence.
[21:47] <Romanoffia> We can leave it out.
[21:47] <COE> I wouldn't publish or reference any portion of it in the actual ruling
[21:48] <COE> Even if we decided to look at it
[21:48] <Asta> I don't think it has real bearing on our deliberations either, though
[21:48] <Romanoffia> True.
[21:48] <COE> But I agree, it's not really necessary
[21:48] <COE> OK, so far I have 2 findings. Let's make sure we all agree on both of them before continuing
[21:48] <Romanoffia> Oh, in this context, it would be irrelevant because we are only deciding if due process was violated, etc.
[21:48] <COE> 1. The court broke its own procedures by skipping stages of the trial. The discretion of the moderating justice only extends to modifying the length of the various stages. It does not allow them to skip stages or proceed through them out of order.
[21:48] <COE> All agreed?
[21:48] <Asta> Yes.
[21:48] <Romanoffia> Agreed.
[21:49] <COE> 2. The court violated Grosseschnauzer’s right to due process by not giving him an adequate opportunity to be heard and defend himself. The trial was declared postponed within 48 hours of opening, and did not go into session again until the ruling was delivered. Thus, Grosseschnauzer was not even given a full opportunity to enter a plea.
[21:49] <Romanoffia> Agreed.
[21:49] <COE> I feel like there's more that can be said there
[21:49] <Asta> agreed with both points
[21:49] <COE> I think we ought to define what due process means in terms of court proceedings
[21:49] <Romanoffia> We could add in something about Double Jeopard not being an issue.
[21:49] <COE> Does it merely mean that the procedure needs to be followed?
[21:50] <Asta> I think we ought to address that, yes, COE
[21:50] <Asta> was double jeapordy brought up in flem's filing?
[21:50] <COE> Does it mean that all justices have no conflicts of interest?
[21:50] <Asta> I can't recall if it was
[21:50] <COE> Yeah, it was
[21:50] <Asta> ok
[21:50] <Asta> then yes, we should answer that it isn't an issue
[21:50] <COE> Let's stick to due process for the moment
[21:51] <Romanoffia> Since the defendant was found guilty, it would not be double jeopardy as it would be tantamount to an appeal on the defendant's part.
[21:51] <COE> What's the minimum requirement for due process to be followed?
[21:51] <Romanoffia> Heh, let me think about that...
[21:51] <Asta> I think there are two requirements - that all procedures outlined in law were followed, and that those procedures are not illegal, unconstitutional, or un..bill o' rightsical
[21:52] <Romanoffia> due process of law... Hummm.
[21:52] <Romanoffia> 1. fair treatment through the normal judicial system, esp. as a citizen's entitlement.
[21:52] <COE> [21:51] <Asta> I think there are two requirements - that all procedures outlined in law were followed, and that those procedures are not illegal, unconstitutional, or un..bill o' rightsical <<< but if the only part of the bill of rights they break is due process, that argument can turn into a circle pretty quickly
[21:53] <Asta> right
[21:53] <Asta> but it wasn't.
[21:53] <Asta> and I was speaking broadly
[21:53] <Asta> that is
[21:53] <Asta> if there is a procedure defined in law that violates a nation's right to, say, not have to join the WA
[21:53] <Asta> even following that procedure is not due process.
[21:53] <Asta> naturally I am not suggesting a circular definition
[21:54] <Romanoffia> Due process under Common Law: The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves.
[21:54] <COE> Ok, so in the case of Flem v Grosse, it wasn't that the procedures were unconstitutional, but that they were not followed
[21:54] <Asta> Well
[21:54] <Asta> yes
[21:54] <Asta> it was that process was not followed
[21:54] <Asta> and if process had been followed, such process would have been unconstitutional
[21:55] <COE> In what way would it have been?
[21:55] <Romanoffia> The fact that the process was not followed as in "The rule that individuals shall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves" made the trial/hearing unconstitutional in and of itself.
[21:55] <Asta> nations have the right to be heard, and the right to defend themselves
[21:55] <COE> Cool beans
[21:56] <Romanoffia> and to be properly notified of proceedings against them.
[21:57] <COE> Roman, would you be ok with including a definition of due process in our ruling requiring all adopted court rules be followed, and that those rules be legal, consitutional, and free of BoR violations?
[21:57] <COE> requiring that*
[21:58] <Romanoffia> Meh - because....
[21:58] <Romanoffia> as long as the principle of due process exists as such, the procedure of the Court would be binding on the Court as long as those rules didn't violate Due Process in principle.
[21:59] <Asta> I think it might be worthwhile to state that outright, so this kind of thing can't happen again
[21:59] <Romanoffia> The cuts out any circular arguments that can be used to thwart due process and procedure.
[21:59] <Romanoffia> We can state it.
[21:59] <COE> Cool
[21:59] <Romanoffia> It would have the effect of forcing the court to follow it's own rules. :D
[22:00] <Asta> (HOW AWFUL)
[22:00] <Asta> :P
[22:00] <COE> So, I'm rewording (2) real quick. In a sec I'll have the revised version
[22:00] <Romanoffia> God forbid! LOL!
[22:00] <Romanoffia> At last, we have a real Court in TNP!
[22:02] <COE> 2. In order to satisfy the right to due process, all adopted court rules must be followed, and those rules must be legal, constitutional, and free of Bill of Rights violations. Thus, the court violated Grosseschnauzer’s right to due process by failing to follow its adopted rules. Even if those rules were interpreted as inapplicable to civil trials, that interpretation denied Grosseschnauzer is right to b
[22:02] <COE> e heard and defend himself. The trial was declared postponed within 48 hours of opening, and did not go into session again until the ruling was delivered. Thus, Grosseschnauzer was not even given a full opportunity to enter a plea.
[22:03] <COE> his* right
[22:03] <COE> If we're agreed on that, Asta's question is next
[22:03] <Romanoffia> Correct, I would also define 'due process'
[22:03] <COE> Uh, re-read the first sentence of that :P
[22:04] <Romanoffia> OH, OK, I see what you mean.
[22:04] <Romanoffia> Agreed.
[22:05] <COE> Asta?
[22:05] <Asta> sorry
[22:05] <Asta> yes
[22:05] <Asta> hang on
[22:06] <Asta> ok, I agree with your new #2
[22:06] <COE> Cool. You have a question now, right?
[22:06] <Asta> yes
[22:07] <Asta> my question relates to the constitution, which states that all official opinions of the court are binding on the region. Do we want to rule on what counts as official in this review? (Something like, "Rulings which violate due process/etc are not official")
[22:07] <Asta> I'm not sure if it's necessary to do so, or if we wish to even if it's not necessary
[22:08] <COE> I'm not sure if that's within the scope of this review, since the official opinion of the court in this case wasn't even operative. It didn't bind anyone to do anything
[22:08] <Romanoffia> That would be implied.
[22:09] <Asta> Okay. I thought it might be implied, but wasn't sure
[22:09] <COE> I'm missing something - what's implied?
[22:10] <COE> That rulings which violate due process are not official?
[22:10] <Asta> that the ruling was not official
[22:10] <Asta> or that, yes
[22:10] <COE> I don't mind explicitly stating it
[22:10] * Asta nods
[22:10] <Romanoffia> It can be stated.
[22:10] <Asta> the word official *could* be interpreted to mean that anything stamped with the seal of the court or w/e is official
[22:10] <COE> Let's make sure we stick it somewhere once we're done with everything, so we can see where the best place for it would be
[22:11] <Asta> which is why I thought it might make sense to explicitly rule that merely calling something official doesn't make it so
[22:11] <COE> Yeah, definitely
[22:11] <Romanoffia> Correct.
[22:11] <COE> I mean, I don't want a ruling to be nonbinding if I forget to put the damn seal at the top :P
[22:11] <Romanoffia> Hehe.
[22:11] <Romanoffia> Yes, some people would simply defecate all over the place in such an event. :P
[22:12] <COE> So, we're ok with "Rulings which violate due process are not official, and are not binding on the region"
[22:12] <Romanoffia> Correct.
[22:12] <Asta> yes
[22:13] <COE> Alrighty, cool
[22:13] <COE> Next up: double jeopardy
[22:14] <COE> First, let's look at the whole clause
[22:14] <COE> 6. No Nation shall be held to answer for a crime in a manner not prescribed by the Constitution or the Legal Code. No Nation shall be subjected to being twice put in jeopardy for the same offense. No Nation shall ever be compelled in any criminal case to be a witness against itself.
[22:14] <COE> Reading that from start to finish, it looks to me like double jeopardy *might* could be interpreted to only apply to criminal trials
[22:14] <Romanoffia> OK, here's my take: "No Nation shall be subjected to being twice put in jeopardy for the same offense.".....
[22:15] <Asta> I'm not sure, COE. it doesn't say "criminal offense"
[22:15] <COE> Yeah, but it's sandwiched between two sentences that can only apply to criminal cases..
[22:15] <COE> I dunno
[22:15] <Romanoffia> If someone is found not guilty, they cannot be once again put in jeopardy for that offense; if they are found guilty, re-opening a trial or setting aside a decision is tantamount to an appeal or reversal of a guilty verdict.
[22:16] <Romanoffia> If someone is found guilty and then re-tried, what's the worst that can happen? Be found guilty again? The same is true of an appeal.
[22:17] <Romanoffia> Now, if they are found not-guilty, then the verdict can never be re-examined ever again.
[22:17] <COE> Well, they could be found guilty again, and then punished again
[22:17] <Asta> Eh.
[22:17] <Asta> I don't think jeopardy attaches either way - there was no *trial*
[22:17] <Romanoffia> No, it would not inflict a new or additional punishment.
[22:17] <Asta> the verdict was never legal
[22:17] <Romanoffia> True.
[22:17] <Romanoffia> That's a good way of looking at it.
[22:17] <Asta> so even if he'd been found not-guilty, that verdict wouldn't have been a legal one
[22:17] <COE> Yeah, I agree with that. That's a good argument for bypassing double jeopardy *comepletely* in this review
[22:18] <Romanoffia> True, since in essence, no legitimate trial or hearing ever happened in the first place.
[22:18] <Asta> yeah, exactly
[22:18] <COE> I think we should just say that double jeopardy is not an issue, because Grosse was never placed in jeopardy in the first place. No official ruling was issued
[22:18] <COE> And lay aside issues of what exactly double jeopardy means
[22:18] <Romanoffia> Good idea.
[22:19] <Asta> I do find myself wondering what we would be doing now if they had handed down a sentence for him then... you know, for fun :P
[22:19] <COE> Asta, can you type that up into finding #3?
[22:19] <Asta> Sure
[22:19] <COE> [22:19] <Asta> I do find myself wondering what we would be doing now if they had handed down a sentence for him then... you know, for fun :P <<< we'd be paying reparations :P
[22:20] <Romanoffia> Hehe.
[22:20] <Asta> xD
[22:20] <Romanoffia> What would the form of reparations be? Dog bones?
[22:20] <Asta> Make him sole admin for a month? :P
[22:20] <Asta> ban blue wolf for the amount of time he was banned?
[22:20] <Asta> :P
[22:20] <COE> Allow votes in purple text
[22:20] <Asta> oh god.
[22:21] <COE> :P
[22:21] <Romanoffia> Oh, shit. LOL!
[22:21] <Asta> no, no
[22:21] <Asta> MANDATE votes in purple text
[22:21] <COE> xD
[22:21] <COE> Yes, fight rights violation with rights violation
[22:21] <Romanoffia> And then tax those people who refuse to buy purple ink!
[22:22] <COE> brb
[22:24] <Asta> 3) Jeopardy can only apply to matters where there has been a trial and a verdict. Given the opinion of the court that in the absence of a trial there was never any legal verdict, jeopardy has not attached.
[22:25] <Romanoffia> Cool.
[22:26] <COE> Agreed
[22:26] <Romanoffia> agreed
[22:26] <Asta> yay
[22:26] <Asta> that was hard :P
[22:27] <COE> Yeah, that's why I handed it to you - I gave up quick :P
[22:27] <Romanoffia> LOL!
[22:27] <COE> OK, what's next?
[22:27] <Romanoffia> Yeah, and I would use about 1000 words so that there is no wiggle room.
[22:27] <Asta> xD
[22:28] <Romanoffia> Do we provide for the option for Flem to re-file on the same evidence?
[22:28] <Romanoffia> If he so chooses?
[22:28] <COE> That's implied by the finding that jeopardy has not attached, but I don't mind stating it explicitly
[22:29] <COE> So maybe add a sentence to (3) including it?
[22:29] <Romanoffia> I'd state it.
[22:29] <Asta> sure
[22:29] <COE> I can write that up if you'd like
[22:29] <Asta> "Accordingly, the plaintiff is free to refile charges"?
[22:29] <COE> Ooh, there we go
[22:29] <Romanoffia> LOL!
[22:29] <COE> I was gonna go with "as such" but "accordingly" leaves a nice taste in my mouth
[22:30] <Romanoffia> "As long as it doesn't constitute a mental health threat to the Court Justices" :D
[22:31] <COE> I think by the end of this term, rulings with THOs are going to outnumber rulings of the full court at least 3:1
[22:31] <Romanoffia> We are a litigious society. Why expect anything else? :D
[22:32] <COE> Is there anything else we haven't addressed?
[22:32] <Asta> litigious and *conflicted* xD
[22:32] <Asta> let me check the thread, 1 sec
[22:32] <Romanoffia> I think we've probably covered it all.
[22:33] <COE> Should we specify that re-filed charges would proceed under the new rules?
[22:33] <Asta> perhaps, yes
[22:33] <Asta> "In an ideal world, I would like a mistrial to be declared and the whole proceedings restarted. But our world is not ideal, so the best I am hoping for is for lessons to be learned through a judicial review, and guidance issued to future court officials to prevent such a travesty happening again." <-- do you think what we have adequately guides future officials?
[22:34] <COE> I think the due process definition will be very useful to future courts
[22:34] <Asta> ok
[22:34] <Asta> "1. Will the court please give opinion on the conduct of the case Flemingovia vs Grosse, giving special attention as to whether the evidence was adequately examined and the verdict was delivered in light of that evidence." <-- I believe we did this?
[22:34] <COE> But I wouldn't mind having a paragraph about how fucked up it is to skip the whole trial to clear it from the docket, and then publish brand new rules 6 hours later
[22:34] <Asta> in mentioning that there *was* no examination of the evidence?
[22:34] <Asta> ok
[22:35] <Asta> we're declaring a mistrial, essentially - tossing the verdict, so that hits Q2
[22:35] <COE> Well, we can't assume there wasn't any examination of the evidence
[22:35] <Asta> There wasn't any evidence presented
[22:35] <COE> I think there was some in the indictment
[22:35] <Asta> Still - I think we can say inadequate
[22:35] <Asta> We're answering about jeopardy, so that hits Q3
[22:35] <COE> yeah
[22:36] <Asta> I think that's everything - if we want to include a paragraph essentially chastising the old court, we can, but I'd be careful with tone
[22:36] <Romanoffia> "No nation shall be deprived of their rights nor otherwise penalized without notice and an opportunity to defend themselves".
[22:36] <COE> Ok, so let's come up with a good "lesson learned"
[22:36] <Romanoffia> I like the word travesty.
[22:36] <COE> Actually, here's what we should do: come up with a finding on how to proceed in a trial where the defendent does not appear
[22:37] <COE> Do you think we should address that?
[22:37] <Asta> Might be a good idea, yeah
[22:37] <COE> Cause I have a feeling that was the main reason why the trial was dispensed with
[22:37] <Asta> my first thought is
[22:37] <COE> The court didn't know what to do with it
[22:37] <Asta> the court should appoint a defense attorney
[22:37] <Romanoffia> In a civil case, if a defendant doesn't show up and the plaintiff has the preponderance of evidence, the plaintiff wins (but the defendant could file for a appeal).
[22:38] <Asta> I don't know if I'm comfortable with that
[22:38] <Romanoffia> IOW, we would have to come up with an 'in absentia' rule for cases.
[22:38] <COE> I think Asta is on the right track
[22:38] <Asta> people can have very valid reasons not to show up in game, whereas not showing up for court IRL is different
[22:39] <Romanoffia> OK, make a special case for nations that either flee the region to avoid prosecution or otherwise thumb their nose at the court.
[22:39] <COE> We might say it would be prudent for the court to appoint a defense attorney, but I don't see anything that gives us the grounds to require it
[22:39] <Asta> I think, ideally, there's two cases - either the trial is postponed because the defendant has valid reasons to not show, or the trial proceeds with a "public defender" of sorts
[22:40] <Romanoffia> True. That could be added to the court rules.
[22:40] <COE> Well, even if it isn't, it's still a good idea that we should suggest in our ruling
[22:40] <Romanoffia> It's generally best to make court opinions as narrow and specific as possible.
[22:41] <COE> We might say "these are two legal and constutional ways to proceed. There may be others."
[22:41] * Asta nods
[22:41] * Romanoffia nods
[22:42] <COE> That way, if another case like Flem v Grosse comes up, future courts will have at least a couple ways they can rely on to be good options
[22:42] <COE> And not reinvent the wheel
[22:42] <COE> Cause right now, the only precedent for what to do is "rule in favor of the plaintiff without having a trial, and then wait for the plaintiff to file a request for review saying we can't do that"
[22:43] <COE> "and hope we're all out of office by then and don't have to deal with it"
[22:44] <Romanoffia> LOL!
[22:44] <Romanoffia> True.
[22:45] <COE> I'm working on typing it up
[22:45] <Romanoffia> I think that's what happened in Flem v. Grosse and why we are now here. :D
[22:46] <Romanoffia> Incidentally, thank you COE: http://forum.thenorthpacific.org/single/?p=8125985&t=7143302 :D
[22:46] <Romanoffia> Exactly what I would have done!
[22:47] <COE> Good :P
[22:49] <Asta> haha yeah
[22:49] <Asta> hmmm
[22:49] <COE> Ugh, I'm not getting anywhere with this finding
[22:50] <COE> I mean, I know I'm gonna expand it later, but it's really hard to boil it down to a couple sentences
[22:51] <COE> Does TNP's bill of rights include habeas corpus?
[22:51] <Asta> well
[22:51] <Asta> lacking any corpi...
[22:51] <COE> "opportunity to be heard"
[22:51] <COE> Hmm...
[22:51] <Romanoffia> I would assume it is implied under Due Process.
[22:52] <Romanoffia> Actually, it would be implied.
[22:52] <Asta> it's close to opportunity to be heard
[22:52] <COE> If an attorney was appointed by the court and a trial was held in the absense of the defendent, that might violate a couple rights :/
[22:52] <Asta> actually no.
[22:52] <Asta> "A writ of habeas corpus (English pronunciation: /?he?bi?s ?k?rp?s/; Latin: "you may have the body") is a writ (court order) that requires a person under arrest to be brought before a judge or into court.[1][2] The principle of habeas corpus ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence."
[22:52] <Asta> it's due process
[22:52] <Asta> not opportunity
[22:52] <Romanoffia> "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
[22:53] <COE> Asta, I'm not following what you're talking about anymore
[22:53] <Romanoffia> Asta nails it.
[22:53] <COE> Forget I said habeas corpus
[22:53] <Romanoffia> LOL!
[22:53] <COE> I want to know if our idea of appointing a defense attorney violates any rights
[22:54] <Romanoffia> Well, the court could do so if the defendant was a total nutter and incompetent to defend himself.
[22:54] <Asta> hmm
[22:54] <Asta> well
[22:54] <COE> It seems like if the defendant is unable to participate in the trial from start to finish, they haven't been given an opportunity to be heard
[22:54] <Asta> " A Nation may be represented by any counsel of the Nation's choosing"
[22:54] <Asta> unable yes
[22:54] <Asta> what about unwilling?
[22:55] <Asta> if they simply refuse to participate?
[22:55] <Romanoffia> Unwilling would be contempt of court.
[22:55] <Asta> they are freely able to name their own counsel at any point, I think
[22:55] <COE> I think it would be fine to hold the trial in their absense then, since they have the opportunity to be heard, but are declining to make use of it
[22:55] <Romanoffia> True.
[22:55] <COE> But in the case of Flem v Grosse, where grosse was gone for health reasons
[22:55] <Asta> I think it'd be preferable to appoint an attorney
[22:55] <Asta> yes
[22:55] <Asta> in fvg, it should have simply been delayed until grosse could be present
[22:55] <Asta> actually
[22:55] <Asta> flem had a point
[22:55] <COE> Alrighty
[22:55] <COE> Hm?
[22:55] <Asta> he was on the forums and posting
[22:56] <COE> Yeahhhh, but he was posting in a very limited fashion.
[22:56] <COE> He wasn't really *back*
[22:56] <COE> Unwilling/unable can be a pretty fine line
[22:57] <Romanoffia> True.
[22:57] <Asta> true
[22:57] <Asta> anyway
[22:57] <Asta> I don't think it's less of a problem to hold a trial in complete absentia
[22:58] <Asta> than to name a public defender
[22:58] <COE> Cause like, I'm sure he *could* have participated in the trial, but his health problems created a situation where he really didn't want to :P
[22:58] <Asta> so long as the defendant is still free to request a replacement at any time
[22:58] <Asta> Ehh. He could've picked an attorney? I dunno. It's a fine line.
[22:59] <COE> I dunno if we should come out and say "the court can appoint an attorney for someone who doesn't appear in court"
[22:59] <COE> Maybe we could qualify it with "if it can be demonstrated to the court that the defendant is able to appear, and chooses not to do so"
[22:59] <COE> or something like that
[23:01] <Romanoffia> Sounds good to me.
[23:02] <COE> Asta?
[23:02] <Asta> hmmm
[23:02] <Asta> ok
[23:02] <COE> Maybe substitute "participate" for "appear"? To cover situations where they just pick an attorney to appear for them?
[23:04] <Romanoffia> That would work.
[23:04] <Asta> ok
[23:05] <COE> Alrighty
[23:06] <Romanoffia> See? Now wasn't that easy? :P
[23:07] <Asta> haha
[23:09] <COE> 4. In cases where the defendant is unable to participate in trial proceedings, or even select their defense attorney, it would be appropriate for the court to delay the trial until the defendant is able to appear. However, if it can be demonstrated to the court that the defendant is able to participate, but chooses not to do so, it would be appropriate for the court to appoint a defense attorney and contin
[23:09] <COE> ue the trial in their absence. There may be other legal and constitutional ways to handle an absentee defendant.
[23:09] <COE> All good?
[23:10] <Asta> yes
[23:10] <COE> Alright, I'
[23:10] <COE> I'll expand those four findings into a complete ruling tomorrow, and post it in the special chambers for your review and approval
[23:11] <COE> Oh, I didn't wait for roman to weigh in on that last one :P
[23:11] <COE> Roman? Good with 4?
 
How's this for the text of the ruling? I didn't format it to include all the text we took into consideration, etc, but this would be the full text of our findings:
On January 15th, 2013, the civil trial of Flemingovia v Grosseschnauzer began. Within 48 hours of the trial opening, it was postponed because the defendant was unable to appear in court. On February 26th, the court ruled in favor of Flemingovia, citing Grosseschauzer's failure to respond to the charges as the only reason for ruling as they did. No further action was taken by the court.

The court rules in effect for the duration of the incident did not distinguish between procedures for civil trials and criminal trials, as the adopted court rules do at present. There is nothing in the rules at the time that specified that they were inapplicable to civil trials. Thus, it is the judgment of this court that those procedures did apply to civil trials and that they ought to have been followed in the matter of Flemingovia v Grosseschnauzer.

Decision
The discretion of the moderating justice only extends to modifying the length of the various stages. It does not allow them to skip stages or proceed through them out of order.

The court turns now to the question of whether Grosseschnauzer's right to due process was violated. The court finds that in order to satisfy the right to due process, all adopted court rules must be followed, and those rules must be legal, constitutional, and free of Bill of Rights violations. Thus, the court violated Grosseschnauzer's right to due process by failing to follow its adopted rules. Even if those rules were interpreted as inapplicable to civil trials, that interpretation denied Grosseschnauzer his right to be heard and defend himself. The trial was declared postponed within 48 hours of opening, and did not go into session again until the ruling was delivered. Thus, Grosseschnauzer was not even given a full opportunity to enter a plea.

Decision
The court must follow its adopted rules with regard to trial proceedings to avoid violating the defendant's right to due process. Additionally, those rules must be legal, constitutional, and free of Bill of Rights violations.

With regard to the double jeopardy question, the court does not agree with the premise that Grosseschnauzer was ever in jeopardy to begin with. Jeopardy can only apply to matters where there has been a trial and a verdict. Given the opinion of the court that in the absence of a trial there was never any legal verdict, jeopardy has not attached. Accordingly, the plaintiff is free to refile charges.

Decision
Jeopardy only attaches to a case when an official and binding verdict has been delivered. Verdicts of the court are only official and binding when the trial has been conducted in a legal and constitutional way, without violating any of the defendant's rights.

The court realizes the difficulty of moderating a trial in which the defendant does not participate, but it is not appropriate to issue a default ruling in favor of the plaintiff when that occurs. In cases where the defendant is unable to participate in trial proceedings, or even select their defense attorney, it would be appropriate for the court to delay the trial until the defendant is able to appear. However, if it can be demonstrated to the court that the defendant is able to participate, but chooses not to do so, it would be appropriate for the court to appoint a defense attorney and continue the trial in their absence. There may be other legal and constitutional ways to handle an absentee defendant.

The court apologizes to Grosseschnauzer for violating his rights in the matter of Flemingovia v Grosseschnauzer, and to Flemingovia for mishandling his charges.
Click to expand...
How does that look?
 
You're missing a full stop after "free to refile charges", and I believe you meant to say "violating" instead of "violated".

In terms of jeopardy, I have been thinking - given that this is NS, not RL, are there ever situations where it is appropriate for the court to dismiss charges without finding a defendant guilty or not guilty, and to attach jeopardy?

I cannot, personally, imagine any, and there are only two cases I know of where that has occurred - The charges against Eluvatar, which as I recall never even got past preliminary motions and were rather illogically dismissed with prejudice to Elu's own great dismay (he wanted his day in court!), and one of the numerous cases against JAL, which was dismissed with prejudice merely to get the whole thing over with - exactly the reasoning that led to the ruling we're overturning in this decision.

Accordingly, I think it would be completely appropriate for us to explicitly rule that jeopardy may not be applied without a guilty/not guilty finding, and without such a finding any charges may be brought again in the future.

What do the two of you think?
 
I'll fix the typos, and I agree with your finding, SillyString. How does this look?
Crushing Our Enemies:
With regard to the double jeopardy question, the court does not agree with the premise that Grosseschnauzer was ever in jeopardy to begin with. Jeopardy can only apply to matters where there has been a trial and a verdict of Guilty or Not Guilty. Given the opinion of the court that in the absence of a trial there was never any legal verdict, jeopardy has not attached. Accordingly, the plaintiff is free to refile charges

Decision
Jeopardy only attaches to a case when an official and binding verdict of Guilty or Not Guilty has been delivered. Verdicts of the court are only official and binding when the trial has been conducted in a legal and constitutional way, without violated any of the defendant's rights.
Click to expand...
 
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