Constitutional error occurs when a jury is instructed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory.
What does that mean in everyday language? Here's how we put it in an earlier post:
It's undisputed that the Siegelman jury was instructed on theories involving honest-services fraud. But the U.S. Supreme Court has found that theory now is legally invalid. Yates states that such an instruction, in essence, "muddies the water" of a case and raises issues of constitutional error.
If the jury was tainted by an instruction that now is unlawful, what happens next? Well, that is where Yates presents a mixed bag. Yates involved 14 defendants who had been convicted of conspiring to advocate the overthrow of the U.S. government. The U.S. Supreme Court wound up ordering acquittals for five defendants and new trials for the other nine.
The 11th Circuit already has shown that it is quite capable of botching any ruling on the Siegelman case. It's possible that the Atlanta-based court will find "harmless error" in light of the Skilling ruling and grant Siegelman/Scrushy neither an acquittal nor a new trial.
Our guess is that Robert Hinkle hopes the 11th Circuit will take the legal monkey off his berobed back by granting an acquittal. That way, he won't have to address all of the evidence that suggests Mark Fuller never should have presided over the Siegelman case in the first place.
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