Criminal

appealing a criminal case part 7

By February 21, 2017 No Comments

For those of you who handle cases with blood evidence, you want to find out; how was that blood stored! Who took it? Did it ride around in deputy bob’s truck for 3 days? And spill allover a uniform! There is an actual innocence case on that where, the blood spilled in the back of law enforcements car when he drove for 3 days. Do you remember which one I’m talking about? I can’t remember name of it. But, that’s how the blood got on the clothes. Ok? That’s how somebody was convicted coz the blood spilled on the clothing in the back of the deputy’s jeep or whatever it was. Ok? Have any of you have been to a property room at the sheriff’s office? Ok, it looks like my teenage daughters room! Which is really scary, looks like my room, basically, you know. It’s just junk piled in there, maybe some tags, maybe in brown bags and, and I’m talking larger jurisdictions. Ok. Find out how it was stored! How did it get from point A to point B. and not just, not just TWI cases, I’m talking any kind of tangible evidence.

Where is it? Who handled it? What happened to it? Because, the character of that evidence could change by the time you get to trial. And sometimes, I know this is a little bit shocking, but the court reporters also think they’re friends of the prosecution. Has that ever happened to anybody? No! Ok Spen’s going no! Yes! You’ll notice sometimes when, when judges, and their court reporters are very protective of them I understand that. But if judges go off on the rant the court reporter may just stop typing. And none of that’s on the record. Ok? Or if the judge tells you to come up there and that chastising both of you for litigating your case or whatnot! Make sure the court reporters taking that down because a lot of times they’ll just stop typing…

A way to ensure that is you file a motion pretrial that says I want every conversation at the bench, everything said in the court room taken down. Because if you don’t as the defense then you’re, you’ve lost it on appeal. So make sure of that! Read the police report. Ok? Don’t be lazy and plead your client something that wasn’t even proving, like in the case I talked about a minute ago. Where all 3 of the players are these fantastic lawyers, they’re now district judges and somebody was asleep at the wheel! It was a murder case. He was pleading to murder but he they left out cause of the death. Ok? So you want to make sure, don’t let Barney 5 convict your client just based on speculation. Make sure they approve it. Don’t promise something to the client that you can’t deliver.

Now I’ve seen this over and over and over and it, it just drives me nuts. In state court, where people are doing just very very basic pleads and they, and, they actually get the trial court to agree that the state time will run concurrent to the federal time. You can’t promise that. Ok? Only the feds can promise that. You cannot promise that! Even if your state trial court orders that, the feds don’t care! They don’t care what your trial court ordered. That will make the plea involuntary. You can’t promise things like that. And you can’t promise where the client will be housed. And you can’t promise parole date or good time. You can, suggest or have an idea but you cannot promise, when they’ll be out like, you’ll be home by Christmas. You can’t promise that, you don’t know! Jury charges, I’m doing a full talk on that this afternoon. Request everything you want. Oops! Request everything you want in your jury charge. Use McClungs.

Don’t assume that the, the charge that the trial court has prepared for you is correct. A lot of times it says a very young attorney who has not actually practiced law out in the world, and they’re not even clear on what should go in a jury charge. Sometimes the pages get left out. Or they cut and paste and maybe they’ll paste the wrong thing in there. Maybe the law parties isn’t in there. And it’s not applicable to your case. Ask for your jury charge I had a time hopefully the night before.

Look through it anything you don’t agree with you has to object to and submit your own instruction in writing. Ok? You have to do both. Here’s a, obviously you want to object to hear or say and again in, in Bexar county and some other counties coz they, are probably mimicking Bexar county’s bad habits but they’ll say,” well were not asserting for the truth that it matters” and the trial court goes,” ok admit it” then why are they putting it in? Ok? Why are they putting it in? Challenge them! Make them tale the trial court; why they’re putting this evidence in if it’s not just pure hearsay! And I bet you lawyer young prosecutors aren’t going to be able to articulate a reason! They’re not going to be able to articulate for what purpose it admitted. For example, Impeachment. Restitution. Another court in Bear County, the same one with the translator issue, last order massive [giggles] warrens laughing over here, massive restitution! I’m talking hundreds of thousands of dollars, for everything. I’ve seen cases come out of her court where a one , a woman’s car, was, you know stolen and driven and she claims all her modeling photos and all her makeup was in the trunk. And it was worth 4 thousand dollars.

Francisco Hernandez

Author Francisco Hernandez

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