[beerandt]

Except a state judge had already given them the option to a retrial (based on ineffective counsel, not "evidence of innocence") before the appeal was made to the federal courts.

They apparently didn't like their chances at retrial, even with "effective counsel".

[Retric]

That’s irrelevant, I expect the both the guilty and innocent to try any argument to get free. Saying you don’t get to make an argument is problematic independent of any specifics because making the argument isn’t winning the argument.

[beerandt]

Of course it's relevant.

"We couldn't simultaneously argue two conflicting theories of defense"...

Isn't quite the same argument when your revealed preference shows you not to believe either theory to stand on its own (or together).

"Your honor, we'd like this conviction thrown out because we couldve/shouldve claimed 'defense option B'." Retrial granted. "No! We don't actually want to retry with 'defense option B'! We just needed a reason to throw out conviction based on 'defense option A'!"

[Retric]

It’s perfectly reasonable to argue you don’t want to waste time in prison waiting for a trial if you think the evidence is clear enough.

An appeals judge should be able to make that call the same way a trial judge can dismiss charges before trial. That appeals judge can easily say, it’s relevant but not clear enough for me to dismiss the case.

PS: Thus various standards of evidence “beyond reasonable doubt” vs “clear and convincing” vs “preponderance” etc.

[abduhl]

What is the standard to be used by a court sitting in appeal on issues of fact not presented at trial to a jury of a defendant’s peers when throwing away that jury’s verdict?