We rarely get to point to a story in the New York Post, but I've always enjoyed its business coverage. Anyway, last week Gotham's finest tabloid took a quick look at the fate of those convicted under the pre-Newman standard, using Michael Kimmelman, a part of the Galleon conspiracy, as part of the network, as a case study. The government is uninterested in reopening these cases just because Newman didn't go its way:
the government doesn’t think it matters, in large part because Kimelman never brought up the issue on appeal. His claim has been “procedurally defaulted,” the government said in court papers earlier this month.
During the trial, Judge Richard Sullivan did not tell jurors the government had to show that Kimelman knew the tippers received a substantial benefit.
The same instructions in the trial of Todd Newman and Anthony Chiasson led the appeals court to overturn their case — setting the new standard.
“The procedural default is irrelevant because under Newman, Kimelman is actually innocent,” said Kimelman lawyer Alexandra Shapiro in a recent filing.
Really, this is something that your average death penalty lawyer could answer pretty quickly. If the law changes, does that make you "actually innocent"? You get the idea - but the distance between finality and precision (or legal accuracy, at least) is always something that lawyers can fight about. Kimmelman's judge, by the way, is the tough on white collar crime judge who gave the jury the government's preferred instructions in Newman.
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