Criminal

appealing a criminal case part 5

By February 19, 2017 No Comments

Daubert challenges; This is another problem’. Cops think they’re experts on everything. Have you all noticed that? They’re experts on everything, from sex to traffic. You know reconstruction, for accidents. I’m sure they’re experts on cellphones, they’re experts on guns, you name it, they’re experts. No they’re not! Ok? No they’re not! So you make sure whenever a state proffers a cop, or any expert for that matter. You put em’ through the hoops. You litigate your Daubert motions. You find out what exactly is this person’s expertise and what are you trying to put on? What is the state trying to prove with this witness? Ok? Or they are usurping the function of the jury? Ok? For example if a child victim witness is; telling the truth. No they can’t do that. They can’t do that. So you litigate your experts. I’ve seen all kinds of experts in records that, Sim Trocker saying,” if you’re in uniform, you are an expert.” Ok? So challenge em’. Ask em’. Do, hearing outside the presence of the jury. Make them testify to all their training and their experience and their degrees and all those stuff. And you challenge those experts because that can mean the entire case…

Read the indictment; Ok, this is very very basic. Sometimes we get so caught up in our cases we forget to go back and look at the very basic things. Watch the offence. Does it track the statute? What date is alleged? I had a case, I’m not going to say names but, it was several years ago and all 3 of the main players are district judges now. Ok? And it was a plea bargain agreement. This is back when we used to have a cut out the steps and tape em’ on. Ok? Before we had all of our computers and stuff. And so the client plead to a perfectly good aggravated assault instead of murder. Because it didn’t allege that a death occurred! Caused a death, it didn’t alleged that. Ok? That’s kind of fatal.

You know the, the idea of, well he knows what he did, he knows what we’re accusing him off. Doesn’t work! Ok? Doesn’t work! In my paper I also talked about a case called, ”bird” which was just so much fun. And was that your case Mike? Was that, that was Mikey’s case. Mike Robin’s. Ok? It was great because what they alleged was that this woman who was just a real character stole from somebody named Mike Morales. Right? But in trial they proved Wal-Mart. Right? Ok! So we, we never got, the connection between Mike Morales and Wal-Mart.

Ya’ll this went all the way up to the court of criminal appeals. Brilliant opinion by Kathy Cochran. And she said, “a rose is a rose, but it is not a pickle” that’s what written in the opinion. So, so you have to allege who it is and you have to prove who it is! So go back to your basics. Ok? If you have a law clerk or young attorney working for you, they’re probably really good at that. Go back and just compare to this statue and see what was proven. Finding of facts and conclusions of law in the paper, I’ve listed Collin versus state. If you ask for them, when you lose the motion, the trial court has to make them. And this is a beautiful thing ya’ll. Because sometimes the judge will just roll, “denied!” ok. Well you get to find out why they are denying it. Ok? You get to have them put down verbatim, why they’re ruling the way they ruled.

Person 1: afterwards they refused!

If they refused to come, mandamus them.

Ok. Which I know is a big risk. Do you really want to mandamus them? But what I would is prepare you know, a memorandum of law with your motion warrant and urge them that they have to do this. They have to do this. And you can always proffer. You know that states back their writing their findings of facts and conclusions of law. Am I right? Write your own. Put em’ in front of the judge, to see what you can get out of that. DVD and CD evidence. We had a huge problem’ again here in Bear County and especially with smaller Counties that, that I’ve practiced in as, as defense counsel getting statements that are recorded, getting interrogations that are recorded. For some reason the district clerk’s office thinks they work for the prosecutor! Have you all ever faced that? Yeah, maybe? [Giggles] for some reason they think that they are a part of the prosecution team and they may not want to give you your CDs or DVDs to look at. Ok. Well they have to! In some counties the court reporter still hangs on to them.

No, no, no, no, no! Under the court reporter manual and the rules of the appellate procedure it’s supposed to be handled by the district clerk, not the court reporter! Now those of us who are older we’ve had cases where the court reporter, you know, Emmy Lou might have it in her garage enabling taxes! Ok? And If Emmy Lou dies nobody’s going to know who that is! We have had those cases y’all! So you, as soon as you get assigned to a case if you’re doing the appeal you find out where those DVD are or CDs or VHS or cassessettees or whatever the hell they are and you make sure you have them.

Francisco Hernandez

Author Francisco Hernandez

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