Appealing a Criminal Case Part 8

Was that your case T? And then the trial court ordered, yeah that, that our client had to pay for that, when there’s no proof of anything! Make them prove restitution. And not just to be determined at a later date. Don’t let probation do that to you. At the time of your plea you, you ask for the full amount of restitution that your clients going to have to pay. And don’t allow the prosecutors comments to serve his proof. Coz a lot of times they’re not sure.

They’re just going based on what in their file. You know have a hearing if you need to. If you don’t, the judge is going to make your client pay for his funeral pretty much! Ok motions for new trial! File pretrial motions for prosecutors not to badger the jurors after the verdict. That’s the motion that I’ve included with this paper in for this afternoon. I can’t take full credit for it. I’m sure I brought bits of pieces probably from Cynthiana, I know Jamie Blajea and different people in the community, to come up with this motion. So what it is, is that the prosecutor sometimes at the end of trial I don’t know if you all have seen this or not. But they will go back to the jurors and they will tell them; let me tell you what you don’t, you didn’t get to hear! Let me tell you what a bad creep this guy is and, and you just didn’t convict them. Well they’re poisoning those jurors for future service. Ok? So that’s what my motion is that I have with my paper today. And I believe it’s on your materials on your little thumb drives. If you file that motion. Yes sir?

I believe that is. Yes! It is, it is an ethical violation for prosecutors to do that. File your motion, assert your motion. If you see them doing it, go up to the trial court and make a record. Ok? Make a record! [Someone in audience coughs] ok, file your motion for new trial alleging facts and it must be verified. use the magic words of Giglio, Brady and duo process. Make bills of proof. This is kind of a interesting idea that I don’t see that often. But the court of criminal appeals again reminds us that hey! If there’s nothing in the record for us to review, we can’t reach a decision.

So, if, if, the trial court will not let you put a witness on or put on proof of something, then you can do what’s called a bi standards bill. And you literally just dictated in the record. You know, not for in the jury but, you make assure proof. Now that’s just kind of a clever way to put what you would think the witness would say. Go ahead and put that in the record if the judge won’t let you do, a hearing with that witness outside the presence of jury. Read your proffer into the record or call the witness for the proffer that they will not let you confront the jury. Ok, don’t open the door that may be the door to hell. Ok? I hate to admit it but sometimes our clients are totally forthcoming. Don’t know if you ever had that, problem’. Ok? It’s kind of like having teenagers. Ok? You any of you have teenagers or collegiate kids or no? Ok! Well I do, I have one of each and its interesting how they leave parts out of what happened. Oh you got arrested well what happened. I don’t know, I wasn’t doing anything! Ok? And your client says I wasn’t doing anything, I was just there.

Oh but the big joint you were smoking you know didn’t have anything to do with anything! [Audience laughs] ok? Or the bong in your car, or the fact that the interior of your car smelled like marijuana and you had a big pot leaf thing hanging off your, mirror. You know sometimes they leave things out.

So don’t put on broad categories of, of my clients never been in trouble before, they’re this great person like take care of their mom. Be careful with that! Because if there’s anything on your client. Ok? Any dirt on your client that you felt to find out, and it is your duty, it is your duty to find out. Ok? If there’s stuff like that then you’ve open the door. Ok? What if yours is a, sex predator from another state and you didn’t know that? And he didn’t tell you. Well that kind of blows it all out of water, didn’t that? So don’t open the door to real general things. Sex cases, Cynthia’s going to talk about that in a minute. Make the state elect which dates or acts they’re relying upon.

Ok? I’ve had cases where there like 32 different counts, of this kid getting, abused every which way possible, on every date possible. Ok? Make them elect! Make them prove it! Oh good, I’m running a little bit ahead! If you need help with things I’m always on the list serve probably more than I should be, you know I’m in my office and like, I wonder what’s on the list serve. But there are so many nuggets of wisdom on there. You’re free to email me; any of our membership will help you if you have a question. The list serve is a good way to do it or if there’s just, something you’d like to discuss more privately email one of us. If we don’t know well tell you but we can at least throw out some ideas and help you think about, you know strategy or how to attack things or where to go with things. I kind of rushed through since we’re running bit behind but if you have any questions, I’m happy to answer them.