Bob Shell

[copake_ham]

In Canada....

Sometimes the appeal turns on a narrow but critical issue. For example, where the subject of the appeal is the admissibility of a statement, and where that statement is both a confession, and the only evidence that could reasonably result in a conviction.

If the statement is thrown out, and the remaining evidence could not support a conviction beyond a reasonable doubt, the Appeal Court may substitute an acquittal.

It is a similar situation if the Appeal Court finds that the trial court was wrong in law about a fundamental component of the test for what constitutes criminal conduct. If the evidence at trial would not support a finding of criminal conduct, the Appeal Court will substitute an acquittal. An example of this might be something like someone who is charged with theft because they switched price tags on an item in a store, and then only paid the lower, incorrect price. That conduct would support a conviction for fraud, but not for theft, so if the charge is wrong, an acquittal must follow.

Both of these sorts of situations are relatively rare - more cases get sent back for retrial.

In case it isn't clear, if the Crown doesn't get it right in the first place, and the evidence at trial that remains after the Appellate Court finishes their work isn't enough to support a conviction, the Crown doesn't get a second crack at it.

As to the onus on Appeal, it is up to the appellant to satisfy the Appellate Court that the decision which is the subject of the Appeal was in error, and that the error was such that it did or could have affected the result. Despite that, it is still true that the test as to whether it was an error, and whether it matters, is one that must be considered in light of the principle that an accused is innocent until proven guilty.

To say it another way, the Appellate Court looks at the decisions made in the Court below, and determines whether they were consistent with the law, including whether they properly reflect the principal that an accused is innocent until proven guilty.

Appellate Courts show a lot of deference to trial courts' findings respecting facts and the evidence, but only if the evidence was fairly led and properly received.

Matt

Matt,

You have done a much better job of describing the appeals process than I did. Suffice to say, the systems are near-identical in both the US and Canada.

And you did accurately describe the very narrow grounds upon which an Appellate court here could also not only overturn the conviction and remand for a new trial but in fact rule the evidence was insufficient on its face and declare the defendant not guilty. And then, as you note, the prosecutors would have no second crack at it.

 

[ndevlin]

What a sad and poignant case. I 'grew up' in photography reading Bob Shell's camera reviews and envying his mediocre lighting of the girl-next-door. There lie layer upon layer of tragic irony in this case. A man in his waning years, living in a deeply repressed society, reaches sexual self-realization shooting explicit images (arguably much more honest art than the tacky yearbook cheese which was his bread and butter), and lives every man's dream of screwing the hot young model...and it ends up costing both him and his muse their lives... (is that Philip Roth's literary agent I here on the phone?)

As a prosecutor specializing in appellate work (albeit in Canada), I despair for his chances on appeal. If the more detailed of the news stories are even generally accurate, he admitted most of the basic facts in his testimony, consistent with the physical and eye-witness evidence. His story regarding the echinacea drops and the fluctuating time-stamp on the meta-data of his camera ring false and are frankly embarrasing. While there is always more than meets the distanced eye to a criminal case, this appears to have been a very strong one (on the manslaughter charge). Appellate courts don't go out of their to reverse convictions of this sort. He is in a bad situation.

As a human being (and a prosecutor), however, I find the sentence unconscionable. Sentencing a man to a de facto death penalty for involuntarily causing the death of a person he loved is obscene and emblematic of the moral decay which appears to have so profoundly infected civil society in our southern neighbour. This man will live in his own private hell for the rest of his days irrespective of the sentence. Sentencing him to die in jail serves no purpose. This facet of the case has all the hallmarks of a Taliban stoning.

The criminal law has a boundless power to facsinate, but little ability to restore that which is lost...

- N.

 

[Curt]

What would be justice for someone who did what he did? Give him a warning and 30 days in the county jail?

 

[Sparky]

Matt,

You have done a much better job of describing the appeals process than I did. Suffice to say, the systems are near-identical in both the US and Canada.

Except for the fact that the lawyers in canada have to wear dresses*...

*they still wear those black gowns don't they? or am I thinking of judges only?

 

[Curt]

... and powdered wigs?

 

[SchwinnParamount]

...

As a human being (and a prosecutor), however, I find the sentence unconscionable. Sentencing a man to a de facto death penalty for involuntarily causing the death of a person he loved is obscene and emblematic of the moral decay which appears to have so profoundly infected civil society in our southern neighbour. This man will live in his own private hell for the rest of his days irrespective of the sentence. Sentencing him to die in jail serves no purpose. This facet of the case has all the hallmarks of a Taliban stoning.

The criminal law has a boundless power to facsinate, but little ability to restore that which is lost...

- N.

Well said!

 

[jeroldharter]

...

As a human being (and a prosecutor), however, I find the sentence unconscionable. Sentencing a man to a de facto death penalty for involuntarily causing the death of a person he loved is obscene and emblematic of the moral decay which appears to have so profoundly infected civil society in our southern neighbour. This man will live in his own private hell for the rest of his days irrespective of the sentence. Sentencing him to die in jail serves no purpose. This facet of the case has all the hallmarks of a Taliban stoning.

The criminal law has a boundless power to facsinate, but little ability to restore that which is lost...

- N.

Give me a break. If it were my daughter, I would think that the sentence is too lenient (which I do). What if your daughter (or son) were his "muse?" I wonder about whose moral decay you are referring to. He is the "moral decay" to which you refer and I am glad that we have rooted him out.

 

[Sparky]

I'd think that direct family would be the last people who should be meting out the punishment (utter lack of objectivity)..

 

[MattKing]

Except for the fact that the lawyers in canada have to wear dresses*...

*they still wear those black gowns don't they? or am I thinking of judges only?

At trial in the superior courts, and on appeals, we wear trousers, a white shirt with wing collar, a sleeveless vest and over the shoulder robes. We also wear "tabs". Women lawyers may choose between trousers, or a skirt.

Here is a link to an Ontario vendor's "catalogue":

Dead Link Removed

Horsehair wigs were banned in Canada a long time ago (ostensibly because they could only be obtained from overseas, and therefore were unavailable to many members of the bar).

Provincial/magistrate court judges wear black robes similar to the counsel's robes pictured above. Superior court and appellate court justices wear robes which are slightly more ornate.

When appearing in provincial/magistrate's court, or in chambers/motion court, we wear business dress. These courts are where the vast majority of the work in court is done. Only the very most serious matters make it to Supreme Court trials, or the Court of Appeal.

Rules vary slightly from Province to Province - I am only fully familiar with the situation here in British Columbia.

Court here tends to be very different than what we see on TV (which tends to be mostly of American origin). As is the case (I believe) in the United States, only a small percentage of lawyers here appear regularly in court.

The level of formality is, in my opinion, of very great value.

Matt

 

[MattKing]

What a sad and poignant case.

As a human being (and a prosecutor), however, I find the sentence unconscionable. Sentencing a man to a de facto death penalty for involuntarily causing the death of a person he loved is obscene and emblematic of the moral decay which appears to have so profoundly infected civil society in our southern neighbour. This man will live in his own private hell for the rest of his days irrespective of the sentence. Sentencing him to die in jail serves no purpose. This facet of the case has all the hallmarks of a Taliban stoning.

The criminal law has a boundless power to facsinate, but little ability to restore that which is lost...

- N.

N:

This is well said.

And for Jerold and others who are uncomfortable with this thought, you should consider that there is a difference between supporting a heavy punishment, and supporting a heavy prison sentence.

IMHO Prison is an institution that creates way more problems than it solves. For whatever reason, most of the world is moving away from incarceration as a punishment (due to the problems it creates in society), while the United States is increasing its use of incarceration.

Most people who work in our criminal justice system (lawyers, judges, court staff, probation officials and police) know how incredibly unsatisfactory the prison system is. Alternative forms of punishment and correction are desperately needed.

This is a tragic case, and the young woman who died, along with her family and friends, are clearly victims who deserve sympathy, support and, where possible and appropriate, reparation. The criminal law, and in particular the prison system, are unlikely to be the source of any of that.

Matt

 

[Rolleiflexible]

[edited for fear of retribution]

 

[BWGirl]

ok... so we have a creep whom some of you feel was a "victim" who is heartbroken that he broke his favorite toy. Just what the heck do you think should happen to him???

Violent here, Sanders??? Yeah, right... how about a culture where it is ok to stone your wife to death for not covering her head. Give me a break!

Sheesh. What a mixed up world we live in where it's ok for an old fart to take advantage of a young girl and have people actually feel sorry for him.:rolleyes:

 

[Bruce Osgood]

[edited for fear of retribution]

I thought you were making very good points.

 

[bill schwab]

Hmmm... so now we have cowards hiding behind false names... again. Interesting how this is allowed to happen here over and over. With full knowledge of the moderation and council team. What a shame.

 

[Thomas Bertilsson]

A few things that keep my mind occupied:
1. Bob Shell - guilty? Probably. So we need to argue whether his punishment was appropriate or not? Nobody here was on the jury, knowing the full details. Why make enemies over this? It has caused a couple of valuable contributors to this web site to leave already.
2. In your life - what difference does it make besides making a point as if your opinion is the correct one? Jeez, it's like kids fighting over space in a sandbox.
3. Is this really what this web site is all about? A political forum for pissing contests?
- Thomas

 

[ndevlin]

ok... so we have a creep whom some of you feel was a "victim" who is heartbroken that he broke his favorite toy. Just what the heck do you think should happen to him???

Violent here, Sanders??? Yeah, right... how about a culture where it is ok to stone your wife to death for not covering her head. Give me a break!

Sheesh. What a mixed up world we live in where it's ok for an old fart to take advantage of a young girl and have people actually feel sorry for him.:rolleyes:

A fit sentence for a 60+ year old first-time offender who has lived an otherwise blamesless and productive live, who never meant to hurt anyone, but made some awful and criminal lapses of judgment while listening to his dick and ended up causing the death of another person who was a game participant in their mutual follies........would be about 6 years.

Whatever punishment half of the rest of his life spent in a concrete room in the company of actual criminals a third his age fails to deliver, the social ostrasizm and loss of place in the community, the loss of his marriage and many of his friendships (and fsmily?), should pretty much take care of, don't you think?

While what he did (the administering of the illegal drugs) was morally and legally wrong, his actions are deeply human and understandable. Condemnation and compassion are in no way mutually exclusive.

ps. this thread is appropriate and interesting because this case brings into sharp relief the connection between the photographic art and the darker sides of human nature, along with our response to it. Some people just like taking pretty pictures of trees. That's cool. But for many, many practioners of the art, it is much more linked to the erotic than people commonly confess (or even know). Awareness of that, and discussion of it, is interesting as it sheds self-knowledge on fascinating aspects of the human condition.

 

[copake_ham]

....
As a human being (and a prosecutor), however, I find the sentence unconscionable. Sentencing a man to a de facto death penalty for involuntarily causing the death of a person he loved is obscene and emblematic of the moral decay which appears to have so profoundly infected civil society in our southern neighbour. This man will live in his own private hell for the rest of his days irrespective of the sentence. Sentencing him to die in jail serves no purpose. This facet of the case has all the hallmarks of a Taliban stoning.

The criminal law has a boundless power to facsinate, but little ability to restore that which is lost...

- N.

Frankly, I think you overstate your case regarding the sentence.

I generally agree that 32+ years is excessive. Here in NYS we'd probably see a 10 to 15 year term which could probably get you out in around 7-1/2 years.

However, I do not get a sense that Shell has truly expressed remorse for his acts - acts that resulted in the death of another (and vulnerable) individual. Yes he has expressed sorrow - but it seems to be more sorrow for his plight than for his actions.

As a result, I do think a period of incarceration is necessary if for no other reason than to prevent the man from re-committing these acts again.

We can never really know if he is going to live in his own private hell; but his actions have clearly shocked the moral sense of society and are deserving of some form of punishment.

 

[Andy K]

We can never really know if he is going to live in his own private hell; but his actions have clearly shocked the moral sense of society and are deserving of some form of punishment.

Punishment yes, but I get a feeling that there are many (with no connections to Shell or the case) who just have a voyeuristic desire to see plain old revenge.

 

[r-brian]

The initial news article I read concerning sentencing listed the multiple counts and the sentence for each count; 4 years for Count 1, 5 years for Count 2 etc. with the maximum sentence of 8 years for the involuntary manslaughter charge. Added all up, the multiple counts came to the 32+ years. I have yet to see in any other article if the judge imposed the multiple sentences to run consecutively, being Bob Shell will serve one, than the next, then the next for a total of 32 years, or if they are to run concurrently, meaning the max he will serve is the 8 years on the manslaughter charge. Anyone hear actually which way he was sentenced?

 

[mark]

While what he did (the administering of the illegal drugs) was morally and legally wrong, his actions are deeply human and understandable.

WTF! You are joking right. Since when is doping someone and having your way with them deeply human or understandable. Causing the death of another human while you get your rocks off makes a giant leap out of the range of human and understandable. It become animal and inhuman.

You are treating him as the victim. Sorry, but he has the ability to feel this so called horrible torment of losing his family and friends and having to LIVE with the knowledge of what he did. His victim no longer has that luxury.

 

[John Koehrer]

criminal lapses of judgment while listening to his dick

God gave man two heads...........But only enough blood to use one at a time!

 

[copake_ham]

Punishment yes, but I get a feeling that there are many (with no connections to Shell or the case) who just have a voyeuristic desire to see plain old revenge.

I do not have the powers to look into someone else's head to know if they are motivated by an honest desire to see criminal behavior punished; or if, more darkly, they are driven by darker desires to vicariously seek revenge.

I would agree that some of the comments (on both sides of the argument) here are riven with emotion.

For myself, I try to take a more detached view. I can understand, but not agree, with my colleague from Canada who sees only the severity of the punishment but seems to lose sight of the crime. As well I can understand, but certainly not agree, with some of those here who seem to have a blood-lust desire for revenge.

And yes, I am troubled by the fact that, while the conviction would probably have been obtained anywhere on the basis of the evidence presented, and it does very much appear that the trial was a fair one, this jurisdiction (Virginia) seems to have an especially hard approach to punishment.

It is possible for Shell to both appeal his conviction and his sentence. I suspect that the conviction will withstand an appeal. However, he may well be able to obtain a reduction in the sentence if it can be shown that his punishment was "outside the norm" for similar crimes in Virginia. But that great Commonwealth has long been known for very strong sentencing laws so I would not be surprised if he fails.

 

[gminerich]

The horse is dead. Beating it more won’t help! This discussion left the realm of Analog Photography awhile ago.

 

[Sparky]

Get the horse!!! Kill. Kill...!!!

 

[Ole]

Horse? What horse???