THUS SPAKE ZARATHUSTRA....AND HIRSCH AND REBULL

Ms. Harrell was arrested for DUI and resisting without violence. Things went downhill from there. She won the battle (acquitted of DUI) but lost the war (convicted of resisting without violence).  The conviction was upheld on appeal by an appellate panel of the 11th Judicial Circuit. 

The opinion cites to John Marshall's closing argument in Commonwealth v. Randolph,  cites approvingly to the common law circumstantial evidence rule, and includes an old lawyer's ditty on circumstantial evidence.  All clues which would lead the  "aporetic"* reader to conclude s/he was holding in her hands nothing less than a Judge Milt Hirsch appellate opinion. 

The opinion is well worth a read and indeed a careful study for its elucidation of the common law circumstantial evidence rule (something every trial lawyer should know), a careful recitation of what lawyers need to do and say during the all important motions for judgment of acquittal, and an excellent primer on the difference between direct evidence and circumstantial evidence. 


With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was
not proven otherwise than circumstantially.
But this bifurcation has no place in the application of the common-law circumstantial evidence rule...

Notable in this opinion is the concurrence of Judge Rebull in which he very clearly signals his distaste for the use of the common law circumstantial evidence jury instruction. Rebull is not alone in his antipathy towards the instruction; he cites to a Florida Supreme Court decision calling the instruction "confusing, and incorrect" and "unnecessary." 




A warning: read the penultimate paragraph of the opinion, in which the court opines that rarely if ever, should a court grant a motion for a judgment of acquittal based on application of the common law circumstantial evidence case. The court likens the successful application of the law as to the existence of a quark- we know it exists, but it hasn't yet been seen. This is an ominous conclusion for the defense bar. It is supposedly supported by logic. See FN5, which we believe will become infamous in its erroneous application of circuitous logic, or more precisely:  a dangerous informal fallacy.   Such conclusions (a court should never grant a motion for judgment of acquittal in a purely circumstantial evidence case) have no place in this, or any opinion. 

Lesson from all of this falderal? Thus Spake Zarathustra, A book For None and All:

O man, take care!
What does the deep midnight declare?
"I was asleep—
From a deep dream I woke and swear:—
The world is deep,
Deeper than day had been aware.
Deep is its woe—
Joy—deeper yet than agony:
Woe implores: Go!
But all joy wants eternity—
Wants deep, wants deep eternity

Thus Spake Hirsch and Rebull in Harrell v. State. An opinion for None and All. 

*Borrowed, without permission, from the opinion. The term describes a person who has doubt, is puzzled,  or is otherwise at a loss...