FEINBERG RECANTATION MADE AFTER TRIAL, IN CLOSED ROOM, WITHOUT CROSS-EXAMINATION – WILL THIS BE BASIS FOR NEW LEGAL THEORY ALLOWING POST TRIAL RECANTATIONS
The recantation by Feinberg reportedly occurred during a closed hearing where neither party to the appeal were present. No party was given the opportunity to cross-examine Feinberg on his recantation.
It is puzzling how such an extrajudicial recantation by itself could be the basis for appellate review. The Court of Appeals ruled that the case should go back to the trial judge and he could consider the recantation.
The Supreme Court has frequently educated the Bar on legal theories and they will no doubt expand our knowledge in their decision in this case. They have the power to make new law and perhaps that is their intent in granting
Discretionary Review in this case.
But we would suggest that basing an appellate reversal on an extrajudicial statement would open the floodgates, and litigants would be encouraged to seek to introduce all types of extrajudicial and post-trial statements by witnesses and jurors.
Ms. Ford will file her brief on Feb. 15, 2012. Only then will we know her legal arguments for sure. But the quotes from her 6th. Cirt. Brief strongly suggests that her appeal is based solely on the Feinberg recantation.