Celebrating 10 years! 2007-2017

frustrating end to the week

I just got back from a suppression motion, which I lost of c orange903/03/17
Watch your tone in your briefings. Whether it should matter mrtor03/03/17
So I suppose calling my adversary's arguments "illogical" in orange903/03/17
This stuff happens when the law isn't on your side and the j hankstamper03/03/17
Sometimes a judge becomes the pro se's attorney. retard03/04/17
When I did my first-ever oral argument, the judge came in wi parlance03/04/17
I lost a motion last week, and was able to tell that the jud trollfeeder03/04/17
A month ago I had a motion hearing where the judge ruled aga thirdtierlaw03/04/17
Oh the judge definitely has his mind made up before we ever orange903/04/17
This. I live in an area where the jury pretty much believ qdllc03/06/17
Oh the judge definitely has his mind made up before we ever orange903/04/17
Interesting point as to what the role of the judiciary shoul cargo03/04/17
I have been giving this a lot of thought, and I think a judg orange903/05/17
A judge is required to stay within the law, which is differe dingbat03/06/17
How would that even occur? How could lawyers be arguing rega orange903/06/17
my point is, a case shouldn't be decided by the ineptitude o dingbat03/06/17
orange9 (Mar 3, 2017 - 4:31 pm)

I just got back from a suppression motion, which I lost of course. The State's brief had 2 arguments which made no sense to me. I of course tore her apart in my response. Today, we had a hearing and I caught the cop in multiple lies, including that he never saw the drugs. The judge then denied my motion, using legal theories not argued by the prosecutor. Frustrating...

Anyone live in a jx which does not allow judge's to do this? Maybe this is something I should appeal, but would need some sort of persuasive authority.

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mrtor (Mar 3, 2017 - 4:54 pm)

Watch your tone in your briefings. Whether it should matter or not, tone can be persuasive. If you came across crass or demeaned your opponent, the judge may have simply decided you should lose because he didn't like you. Again, its not right but its human nature.

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orange9 (Mar 3, 2017 - 5:45 pm)

So I suppose calling my adversary's arguments "illogical" in my brief didn't really help my cause. I was debating whether to compare her creative theories of exigency to an Ian Fleming novel ie: she argued in her brief that there could be a secret door with someone hiding who could steal and destroy the drugs while waiting for a warrant.

Truthfully- I think the judge was right in his theory. I just get mad when my adversary doesn't do her job, and the judge backs her up.

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hankstamper (Mar 3, 2017 - 8:29 pm)

This stuff happens when the law isn't on your side and the judge knows it. I do family law and have suffered the indignity of losing to Pro Se opponents just because the law wasn't on my side and the judge knew it. That's life.

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retard (Mar 4, 2017 - 11:29 am)

Sometimes a judge becomes the pro se's attorney.

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parlance (Mar 4, 2017 - 3:19 pm)

When I did my first-ever oral argument, the judge came in with a mind already made up, to rule against me. It wasn't an instance of my doing a bad job or opposing counsel having a brilliant argument. It was just an instance of judicial predisposition. That's just the way it goes down sometimes.

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trollfeeder (Mar 4, 2017 - 3:39 pm)

I lost a motion last week, and was able to tell that the judge had her mind made up before I came to the podium. She gave no reasoning, to which I made record stating that it was in conflict with a recent decision she had made, smiled, said thank you, and sat down. That's life.

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thirdtierlaw (Mar 4, 2017 - 3:46 pm)

A month ago I had a motion hearing where the judge ruled against me because he heard a similar case 3 years. I pointed out the state Supreme court overturned that case and he said, "I don't care, I'm ruling the same way."

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orange9 (Mar 4, 2017 - 9:33 pm)

Oh the judge definitely has his mind made up before we ever even walked in. He had the case law ready to go when he began giving his oral opinion. And like I mentioned- his legal reasoning was not one of the arguments raised in the briefs.

At least I destroyed the cop who testified. He can now tell the same lies in front of 12 strangers.

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qdllc (Mar 6, 2017 - 2:31 pm)

This.

I live in an area where the jury pretty much believes if you're in court, you must have done something wrong, so "presumption of innocence" is laughable at best. God help you if you can't afford one of the best attorneys to defend your case.

I'd honestly consider skipping bail and heading to Mexico before trusting the local courts to give a "fair trial."

It's not so much that the cops are crooked, but everyone gets ahead by closing cases. That means convictions or plea bargains. Most prosecutors aren't willing to NOT prosecute unless it's overwhelmingly clear there is no case. A plea bargain helps them look good even if the accused is innocent.

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orange9 (Mar 4, 2017 - 9:33 pm)

Oh the judge definitely has his mind made up before we ever even walked in. He had the case law ready to go when he began giving his oral opinion. And like I mentioned- his legal reasoning was not one of the arguments raised in the briefs.

At least I destroyed the cop who testified. He can now tell the same lies in front of 12 strangers.

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cargo (Mar 4, 2017 - 11:18 pm)

Interesting point as to what the role of the judiciary should be --

Should they be to judge based upon the law as it is?

Or to judge based upon what parts of the law matters to the parties to the case?

In the latter case, there is risk that justice is not done, for parts of the law might not be thought of by either party. In the former case, there is the risk that justice is not done if neither party knew of the referenced law, and thus could not give the best argument on how to apply it.

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orange9 (Mar 5, 2017 - 10:02 am)

I have been giving this a lot of thought, and I think a judge should be required to stay within the papers. I just want to be clear- this was not the judge citing to a case that was not referenced in the papers. He used an entirely different warrant exception than those mentioned in the papers.

I know my state's rules do not allow for new arguments to be raised in a reply paper, so why should a judge be able to make up for a lawyer's omission.

My bigger issue with my specific case is that it was a suppression hearing. It is up to the prosecutor to prove a warrant exception applied in light of the warrantless intrusion. She failed to do that. So now not only is it the prosecutor, but it is also the judge who is prosecuting the case. At what point will a judge come out and protect a defendant's rights. I know if I made the same mistake as the prosecutor, a judge would never bend over backwards to help out a defendant, and I would be on the hook for being ineffective. I just want to see a prosecutor be called out for bad lawyering. They should have to work as hard as defense lawyers.

To be clear- not all prosecutors are lazy and many are good at their jobs. In my experience though, every large prosecutor's office has its lifers who go unnoticed under the radar and are not motivated to be promoted. They are not the brightest lawyers, but by laying low and staying in line, they manage to keep their jobs. It is just the low standards our system has come to accept.

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dingbat (Mar 6, 2017 - 2:55 pm)

A judge is required to stay within the law, which is different than the papers.
A judge is responsible for meting out justice, not for determining who has a better lawyer.

Let's put this in a different light. Let's say both attorneys are wrong as to a matter of law, and they both (incorrectly) think the defendant is guilty, and are merely arguing over sentencing, whereas according to the law the defendant is actually innocent. Should the judge ignore the law as written, just stick with the lawyers' arguments as to what the sentence should be, and let an innocent person be convicted?

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orange9 (Mar 6, 2017 - 11:11 pm)

How would that even occur? How could lawyers be arguing regarding sentencing without the defendant first being found guilty, whether by plea or trial. And there are procedural safeguards in place to make sure a person does not erroneously plea guilty, for instance, providing a factual basis that satisfies the elements on the offense.

Again, my problem is that the prosecutor was able to haphazardly write a brief and conduct a hearing, and the judge saves her. In the case of a warrantless search, it is the state's burden to prove an exception applies. The prosecutor simply did not do that. I don't think the theory the judge used even crossed her mind. How could she have satisfied her burden when she did not even make the argument?

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dingbat (Mar 6, 2017 - 11:33 pm)

my point is, a case shouldn't be decided by the ineptitude of the attorney, but by the merits of the case. It's the same reason pro se litigants are given considerable leeway.

It's ok for a judge to point out something an attorney missed. that's not changing the facts of the case. It may suck because you're on the other end, but, if the attorney hadn't been inept, and had actually used the appropriate theory, you'd have lost also.

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