Note on Jackson II

Shortly after the Jackson appellate case you just read, the Supreme Court changed the rules for appellate review. In particular, it made it easier for an appellate court to affirm a trial conviction, even if there were an erroneous jury instruction, if that error is "harmless." 

As a result, the Second Circuit revisited its decision to determine whether the error it identified in the jury instructions required a new trial, or whether it could nevertheless affirm the conviction because the error was harmless. United States v. Jackson, 196 F.3d 383 (2d Cir. 1999) [Jackson II]. (You do not need to understand harmless error standard. It usually boils down to whether the appellate court can conclude beyond a reasonable doubt, based on all the evidence in the record, that the jury would still have convicted under a correct jury instruction). 

The Second Circuit in Jackson II determined that the failure to provide the correct instruction on "wrongfulness" was harmless error and it affirmed the conviction.

As to the rightful claim portion of wrongfulness, it held that Jackson did not have a rightful claim to $40 million from Cosby. She was an adult, she had not filed a paternity action, and any such paternity action would be questionable. It also held that even were she entitled to some money, $40 million was competely beyond what any court would grant her. 

As to the nexus portion, this too was not met. She was not saying, "pay me or I will sue for paternity," or, "pay me to settle a pending paternity claim." That would be a nexus. Rather, she was saying, "pay me or I'll publicize your extra marital affair and that I'm your child." That threat of publicity, the court held, had no nexus to obtaining any purpported rightful claim to money as Cosby's daughter. That's because publicizing these facts would not further her goal of making money; in fact, once she publicizes the facts, she would lose the very leverage she needed to get the money.

The Second Circuit said this scenario different from one that involved a rightful claim with a nexus, such as a club that posts a list of members who are delinquent in their dues. The club has a rightful claim to those dues, and posting the names will shame them into paying.