Do you know the chances of this appeal?
I am not conversant with the intricacies of Federal election law, nor the personal dispositions of the SCOTUS judges in this controversial area.
What I found interesting was the fact disclosed in the discussion of the third issue, that Stockman’s lawyers did not object to the instructions as given. The court instead gave the standard instructions, minus the “political activity” component Stockman now says should have been given sua sponte.
I wonder why Stockman’s lawyers did not make a request to charge on the issue given it’s seeming importance. Did Stockman’s appellate lawyers argue that his trial lawyers were ineffective by failing to request a specific instruction?
One reason I find this significant is that a part of the trial strategy I ASSUME would have been that Stockman was just exercising his protected rights. A request to charge to that effect should have then been an object of that strategy. Why was it not requested? I don’t know, but it put Stockman at a distinct disadvantage on appeal, changing the standard of appellate review to a less favorable one.
The first issue sounds very promising based just on the brief alone. The Fifth Circuit may very well have been over-inclusive in its interpretation of McConnell, reading too much into that decision. Having no familiarity with that law or those cases, it made good sense to me.
The second issue struck me as flailing around. Jury findings are very, very hard to overturn just to begin with. Some of the hardest cases are the ones where the guy promises to put in a new concrete driveway and then takes your money and runs. The concrete guy is not protected by the First Amendment, but I wonder how different this case is even with the First Amendment considerations. Certainly, what Stockman did, as the brief concedes, sounds sleazy. That is just a subjective impression based on the brief, which did not otherwise strike me as conclusively persuasive on the issue.
On an issue I do know about, the brief was twice as long as it had to be. It could have been and should have been far more effective at half the length, but that requires a lot of work to do.