Confusion Ensues in Sentencing of Anna Nicole Smith’s Boyfriend-Lawyer

Here’s a roundup of recent news related to Anna Nicole Smith’s afterlife. Recently, her lawyer/boyfriend, Howard K. Stern (not Howard Stern the DJ), received a ruling on the prosecution’s appeal of the dismissal of charges against him. Interestingly, it’s not clear what the appellate order means since the court of appeals agreed with the prosecution that “Mr. Stern’s new trial motion could not be granted…[b]ut…what can occur to Mr. Stern once the remittur issues is limited by the double jeopardy provisions of our Constitutions.” (Order, p. 2)

As the court notes in its summary of the order, an acquittal can issue either when a jury returns a not-guilty verdict, or “when a trial court grants a defendant’s new trial motion for evidentiary insufficiency…or dismisses a case…for evidentiary insufficiency” (Id., pp. 2–3) The essence of the court’s decision is in two parts: (1) The new trial motion should not have been granted because there was sufficient evidence to convict Mr. Stern on counts of conspiracy; and (2) Because the trial court did not rule on the majority of the issues raised in Stern’s motion for a new trial, those issues have yet to be decided, and should be addressed on remand by the court of appeals.

The court of appeals therefore allows that a number of outcomes are possible.

Conceivably, the trial court could deny the new trial motion and sentence Mr. Stern to prison, place him on probation or reduce the two conspiracy counts to misdemeanors. Or the trial court could deny the new trial motion but dismiss the case pursuant to section 1385 on some ground other than evidentiary insufficiency. Or the trial court could grant the new trial motion after reweighing the evidence (acting as the so-called “13th juror”) subject to [our] double jeopardy analysis. Or the trial court could dismiss [the conspiracy charges] on other than legal insufficiency grounds in connection with the good faith issue.

(Order, p. 29) “But,” the court notes, “under no circumstances may a retrial occur.” (Id.)

The precedent as held by the Supreme Court of the United States is that “an order granting a new trial motion on the ground of evidentiary insufficiency bars a retrial.” (Order, p. 30, citing Hudson v. Louisiana, 450 U.S. 40, 44 (1981)) In Hudson the court also held that “a reversal due to failure of proof at trial, where the State received a fair opportunity to offer whatever proof it could assemble, bars retrial on the same charge.” (Id.) And it doesn’t matter whether the reviewing court rather than the trial court makes this finding.The crux of the decision lies in the fact that “the State failed to prove its case as a matter of law, not merely because [the judge], as a 13th juror, would have decided it differently from the other 12 jurors.” (Order, p. 31)

So the case is going back to the trial court to determine what to do with the two conspiracy charges, but not to be retried.

(photo: Shutterstock: 30862354)