Don't be silly.
When you're put on trial for murder or rape, you're put on trial for the specific act(s) of murder or rape that you are charged with committing.
You're not put on trial for the fact that you happened to remain alive and in the area after having committed the crimes with which you're charged.
An activist judge would have ruled differently using common sense rather than interpreting the law. That is why people on Free Republic are always calling for activist judges to be placed on the SCOTUS. /s