Court Staffer Fired for Helping Wrongfully Convicted Man

[tokugawa]

VA, no doubt you are correct- absolutely correct in your analysis- but- you are discussing the trees, I am talking about the forest.

  This country cannot throw out the rule of law for the connected, throw out the rule of law for "designated victims" (GZ, for example) and expect everyone else to dutifully follow along.

 When the rule of law is gone, it is gone for all. That is the cumulative damage done by by willful failures to follow the law by the system-eventually EVERYONE realizes it is a suckers game.

 The sea change here is the solid middle class who have largely been on the periphery of law enforcement and criminal matters generally, are starting to have the same mindset concerning the "system" that ghetto dwellers have had for decades. They don't trust them, they don't want to have any interaction with them, and they believe their own interests are diametrically opposed to the systems. Ask a cop for help? Are you kidding me? He will search your car, give you a breath test and lock you up for some "offense" you did not even know existed
 Sure, the above is an exaggeration-somewhat, maybe, possibly-- the point is it only has to be true enough times that the public confidence is lost.

[vaskidmark]

Of course I'm less wrong than the rest of you.  It's a curse that I must learn to live with.

As for the trees vs forest thing - I'm still trying to see where a forest exists.  It's been repeatedly suggested that there was some sort of conspiracy to keep this guy from getting his rape conviction overturned by denying him DNA analysis.  That would hold up exept for a few minor points - like he did get the DNA analyzed and it did show that he could not have committed the crime and he was exonerated.

Oh, yeah - and that I have expressed absolutely no concern with the clerk giving his family that copy of a motion for DNA testing that was successful for someone else.  As a matter of fact I have stated that I consider that within the duties of the court clerk to provide education to the public.  The judge got his psnties all wadded up about that being the illegal practice of law; I said I had no problem with what she did.

I even pretty much gave a pass to the clerk discussing specifics of the case with the guy's family.

I drew a line at the clerk discussing sealed information with people who had nothing to do with the case (except that they were probably very curious gossips).

I'm just not seeing the forest you talk about.  There's no need to pretend I'm as thick as two bricks - it's obvious I am.  But for the sake of all that is holy and proper, would someone please show me/put my hands on/rub my nose in this forest that I am not seeing?  Please.

stay safe.

[MechAg94]

First, I don't think the middle class is just waking up or anything.  People have known the law can be arbitrary for some time especially when it comes to civil matters.  The difference is more and more people are on the internet seeing and discussing these articles and stating their opinion.  I remember all the talk in the 70's and early 80's about crime, lack of punishment, and revolving door prisons and normal people getting the book thrown at them while career criminals get a slap on wrist.  That was why Dirty Harry and the Death Wish movies were so popular.  I can't imagine what the internet would have been like back then. 

On the DNA testing, I was just curious why it wasn't done in the original trial.  I didn't know how long ago that was or what the circumstances were.  Not trying to make accusations, just information I would be curious to know if it was available.  If it was a 20 year old case, I understand.  If it was 3 years old, then I am really curious. 

[MechAg94]

That reminds of a scifi book series I read where they have these DNA sniffers that can sniff or scan through an area and tell you who has been in an area almost instantaneously.  It was pretty cool.  I guess we are still a long way away from instantaneous DNA tests. 

[zxcvbob]

That reminds of a scifi book series I read where they have these DNA sniffers that can sniff or scan through an area and tell you who has been in an area almost instantaneously.  It was pretty cool.  I guess we are still a long way away from instantaneous DNA tests. 

An electronic hound dawg?   

[vaskidmark]

.... 

On the DNA testing, I was just curious why it wasn't done in the original trial.  I didn't know how long ago that was or what the circumstances were.  Not trying to make accusations, just information I would be curious to know if it was available.  If it was a 20 year old case, I understand.  If it was 3 years old, then I am really curious. 

The guy was convicted one year before DNA analysis was "ruled" to be scientifically reliable and thus admissable as evidence (SCOTUS settled a dispute between Circuits by deciding in favor of allowing DNA analysis).  Of course it had been used before then, but there was a hodge-podge of decisions on whether or not is was reliable, repeatable, accurate, and could be accepted as evidence at the same level as, for example, blood type matching.  In the years intervening the defendant/appellant had tried iirc three times to get DNA analysis of biologic samples from the crime scene, and his requests had been shot down for technical deficiencies in the motions submitted.

The clerk found a motion submitted by someone whose case was closely similar to this guy's - with the exception that his motion for analysis had been granted.  the clerk passed on a copy of the succesful motion to the guy's family, who got the current attorney to massage it to reflect his particulars and submitted it   In spite of the judge's ire at the clerk having done the legal research for the family he approved the motion and ordered DNA analysis. (And it is not clear if he was irked before or after the motion was granted.)

Part of the judge's ire seems to be that a first year law student could have Shepardized* the case and come up with that very motion and had it massaged without the court clerk needing to be involved in locating the motion, getting it to the defendant/his family to give to his lawyer(s), or appearing to be offering lregal advice or strategy.  One of the procedural problems with a judge being irked in that way/about that subject is that they cannot sua sponte bring up the issue of ineffective provision of counsel.  So the judge has to take his ire out on somebody, and the clerk is the only one available.

stay safe.

* - http://library.law.unh.edu/Shepardize

[tokugawa]

The forest is the the giant swell of criminal activity coming from the ruling class that is not prosecuted.
 "laws are for the little people" -that is the forest. An avalanche has wiped out the mountainside, and we are to be concerned about the guy sawing limbs for firewood.

 To be honest, I have no desire to try to run through 5000 examples. Just for starters, try the JD dropping the Black Panther voter intimidation case. Or Fast and Furious. Or the banks laundering drug cartel money.
 Or the prez refusing to enforce laws he does not agree with. Or all the whistleblowers who immediately get fired. Seriously, the list is huge. Or a county Prosecutor persecuting my gun club xo for 13 years, and four dismissals,only to have the PROSECUTION request a dismissal at the end- whereupon he asked for it to be with prejudice. All on a victimless crime.

 The forest is , the rule of law no longer exists. The law is being used as a club to bash selected victims. I am not saying that reporter did not do something wrong. I know nothing of the law and  will happily accept your analysis. I am saying the reason people don't care, or even applaude her actions, is there is NO TRUST LEFT-that is the forest.

[MechAg94]

vaskidmark's post sort of brings up another question:  What caliber of technical deficiences would get a motion thrown out?  Is it referencing the wrong statute for precendent?  Using an "x" when it is supposed to be checked?  Is is misspelling the Judge's name?  Maybe Chris or others can speak to that.

1.  What sort of deficiencies get the motion thrown out?  Does the Judge typically say why the motion is denied?
2.  Is this sort of "deficiency" common from court to court, judge to judge?
3.  Why aren't examples of good motions printed in every law textbook around?  Why couldn't the lawyer get it right the first time?  You would think there would be a "Motions for Dummies" book to look up.

[Levant]

The judge didn't get mad until the prosecutor AND attorney got mad. Those two got their feelings hurt and got the lady fired. Even the appointed defense attorney didn't want the guy freed unless the attorney got him freed. They all cared for their pocketbooks over justice.

Sent from my SAMSUNG-SGH-I727 using Tapatalk 2

[T.O.M.]

1.  What sort of deficiencies get the motion thrown out?  Does the Judge typically say why the motion is denied?
2.  Is this sort of "deficiency" common from court to court, judge to judge?
3.  Why aren't examples of good motions printed in every law textbook around?  Why couldn't the lawyer get it right the first time?  You would think there would be a "Motions for Dummies" book to look up.

I'll try.  Usually, a motion is denied on the merits.  It is pretty rare that a motion gets thrown out for form or procedure .  A few examples come to mind, like failing to serve a copy on all parties to the case.  In my experience, it is rare that a judge will throw out a motion without putting something on record as to why.  CYA withbthe appellate courts.  These kinds of procedural deficiencies would,  or at least should, be treated the same from court to court.  I know some judges and magistrates that will bend the rules a bit to help a pro se litigant.  For example, Ohio rules require that a motion site to the authority it's based on, but we routinely accept motions from pro se parties, as long as we can understand what they are asking for.  I can look upnthe law if I need to readnit.

As to forms, there are tons of resources available in print or online where you can find example motions.  In my experience,  attorneys will give young or inexperienced lawyers examples to work from.

To be honest, I cannot think of any procedural issue on an issue like DNA testing that would get a motion tossed, absent incompetent counsel.  The merits should be well known to the members of the bar. Can't for the life of me figure out why an attorney would need a motion from a sealed file to know what to do.

[cassandra and sara's daddy]

That reminds of a scifi book series I read where they have these DNA sniffers that can sniff or scan through an area and tell you who has been in an area almost instantaneously.  It was pretty cool.  I guess we are still a long way away from instantaneous DNA tests.

Fahrenheit  451


Sent from my iPad using Tapatalk HD

[vaskidmark]

..... Can't for the life of me figure out why an attorney would need a motion from a sealed file to know what to do.

The motion was not from the sealed portion of any file - the defendant/appellant's or anybody else's.  (It all goes back to the judge's comment that te lawyer would have eventuially found the motion on their own efforts, thus the ire at the clerk for "suggesting legal strategy" when she gave them a copy of the other guy's motion.)

What was sealed was a portion of the defendant/appellant's file, and the clerk gossipped about what was under seal with attorneys who were not involved i the case except as curious bystanders.

And like you I am contiuing to have difficulty understanding why any attorney would need to copy a motion for DNA analysis from a closed case file, as opposed to using any of the myriad of forms and examplars already out there in copybooks and formbooks.  Why the family needed the clerk to pull a copy of a successful motion, as opposed to the attorney finding that motion and several like it via Shepardizing the case, also eludes me.  The continuing reference to "neffective counsel" is also, at this point, strange since the guy did in fact get the DNA analysis and it did prove he was not the guikty party and he was exonerated on that charge.

stay safe.

[vaskidmark]

The forest is the the giant swell of criminal activity coming from the ruling class that is not prosecuted.
 "laws are for the little people" -that is the forest. An avalanche has wiped out the mountainside, and we are to be concerned about the guy sawing limbs for firewood.

 To be honest, I have no desire to try to run through 5000 examples. Just for starters, try the JD dropping the Black Panther voter intimidation case. Or Fast and Furious. Or the banks laundering drug cartel money.
 Or the prez refusing to enforce laws he does not agree with. Or all the whistleblowers who immediately get fired. Seriously, the list is huge. Or a county Prosecutor persecuting my gun club xo for 13 years, and four dismissals,only to have the PROSECUTION request a dismissal at the end- whereupon he asked for it to be with prejudice. All on a victimless crime.

 The forest is , the rule of law no longer exists. The law is being used as a club to bash selected victims. I am not saying that reporter did not do something wrong. I know nothing of the law and  will happily accept your analysis. I am saying the reason people don't care, or even applaude her actions, is there is NO TRUST LEFT-that is the forest.

I recognize, admit and aver that the condition you point to does exist, and that it is disgusting that it exists and persists and is in fact growing.

However, it is an apple to the orange of what I have been trying to get focus on.

Were we to use your line of resoning, no crmes would be prosecuted because somewhere someone got off without being prosecuted.  Instead, look at this as the "broken window in a vacant building" theory of community policing.  Sure it is starting at the "little" end of the problem, but then in order to eat the elephant you have to take that first bite somewhere.  Is it not better to begin where there is a greater liklihood of both getting that first bite down and convincing the diner to take the second one?  That does not, by any means, suiggest that the NBP, or bankers, or BATFE, or your local persucutor [sic] get a pass on their egregiousness.  But while you are going after them (possibly a lifetime's endeavor) why not set up a base, a foundation, upon which to build?

Fiurther, I thought we had agreed to focus on the clerk gossipping about the material under court seal and not return to getting bogged down on what, at least for the defendant/appellant, is a moot issue.

stay safe.

[MechAg94]

Fahrenheit  451


Sent from my iPad using Tapatalk HD

I was thinking of one of the Honor Harrington books.  I haven't read 451 in decades. 

[MechAg94]

I'll try.  Usually, a motion is denied on the merits.  It is pretty rare that a motion gets thrown out for form or procedure .  A few examples come to mind, like failing to serve a copy on all parties to the case.  In my experience, it is rare that a judge will throw out a motion without putting something on record as to why.  CYA withbthe appellate courts.  These kinds of procedural deficiencies would,  or at least should, be treated the same from court to court.  I know some judges and magistrates that will bend the rules a bit to help a pro se litigant.  For example, Ohio rules require that a motion site to the authority it's based on, but we routinely accept motions from pro se parties, as long as we can understand what they are asking for.  I can look upnthe law if I need to readnit.

As to forms, there are tons of resources available in print or online where you can find example motions.  In my experience,  attorneys will give young or inexperienced lawyers examples to work from.

To be honest, I cannot think of any procedural issue on an issue like DNA testing that would get a motion tossed, absent incompetent counsel.  The merits should be well known to the members of the bar. Can't for the life of me figure out why an attorney would need a motion from a sealed file to know what to do.

Thanks Chris.  I think that answers my questions.  Makes me want to interview their lawyer.

[tokugawa]

I recognize, admit and aver that the condition you point to does exist, and that it is disgusting that it exists and persists and is in fact growing.

However, it is an apple to the orange of what I have been trying to get focus on.

Were we to use your line of resoning, no crmes would be prosecuted because somewhere someone got off without being prosecuted.  Instead, look at this as the "broken window in a vacant building" theory of community policing.  Sure it is starting at the "little" end of the problem, but then in order to eat the elephant you have to take that first bite somewhere.  Is it not better to begin where there is a greater liklihood of both getting that first bite down and convincing the diner to take the second one?  That does not, by any means, suiggest that the NBP, or bankers, or BATFE, or your local persucutor [sic] get a pass on their egregiousness.  But while you are going after them (possibly a lifetime's endeavor) why not set up a base, a foundation, upon which to build?

Fiurther, I thought we had agreed to focus on the clerk gossipping about the material under court seal and not return to getting bogged down on what, at least for the defendant/appellant, is a moot issue.

stay safe.

 My response was a reply to your question about why people think the way they do about this stuff. Admittedly it is is tangential to the specific question. I appreciate the broken window policing metaphor but again, I believe it will have no influence unless it starts at the top. We need to convict a few big boys for the populace to start regaining trust. Otherwise it is the same old story-laws are for little people.

[Balog]

I'm not sure the first step to holding institutional corruption to account is prsecuting people who try to get around that institutional corruption.