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Old July 15, 2011, 12:49 PM   #166
Join Date: June 8, 2008
Posts: 3,611
Posted by geetarman: I do believe a sharp lawyer will appeal and he will walk.
There will undoubtedly be an appeal. Whether it will result in anything other than a finding that the trial court procedure was proper remains to be seen; personally, I doubt it.

However, should a higher court throw out the verdict of the trial court, Ersland would not "walk" unless (1) the state declines to pursue a retrial, or (2) he is acquitted in a second trial. I think that either one would be a far fetched assumption.

We had a case in Arizona where a man shot and killed another while hiking. The man shot was walking some dogs off leash and the dogs purportedly came after the shooter who shot in front of the dogs to back them off and was set upon by the person walking the dogs, who was shot and killed.
You are referring to the Harold Fish case.

There was a retrial and the shooter is out.
He is out, but not because of a retrial.

Fish's attorneys appealed the conviction on a wide range of issues, mostly related to suppression of evidence and decisions to not allow the testimony of certain expert witnesses. The appellate court rejected most of Fish's arguments, but it did agree with two of Fish's contentions: (1) that the trial court jury had not been instructed properly as to what constitutes "unlawful physical force"; and (2) that the jury should have heard evidence that the decedent had been known to act violently when confronted about dogs in his care. Fortunately for Fish, his attorneys had positioned him to be able to prevail on those grounds.

The Arizona Supreme Court upheld the ruling of the appellate court and ordered a retrial.

The state decided to not pursue a second trial after Fish's conviction was overturned.

I have my doubts about whether any appeal by Ersland will benefit him. One possible ground--improper jury instruction--is probably not likely, because (1) Oklahoma uses a uniform set of very simple jury instructions and (2) the jury was given the option of convicting Ersland either for murder in the first degree or for a lesser charge, or of acquitting him. There really did not seem to be much contention about the admission of any evidence or testimony.

But even if he were to get a second trial, there is no reason that I can think of to expect that he would "walk".

But then, time will tell.
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