Welcome to the Prison Talk Online Community! Take a Minute and Sign Up Today!






Go Back   Prison Talk > RESOURCE CENTER > Prison & Criminal Legal Help!
Register Entertainment FAQ Calendar Mark Forums Read

Prison & Criminal Legal Help! Ask questions, get opinions, and find resources on dealing with criminal justice legal issues, appeals, and more..

Reply
 
Thread Tools Display Modes
  #1  
Old 10-03-2017, 07:39 AM
guardianangel3 guardianangel3 is offline
Registered User
 

Join Date: Nov 2016
Location: PA, USA
Posts: 22
Thanks: 26
Thanked 7 Times in 6 Posts
Unhappy Ineffective conflict attorney has quit...

after a quiet summer with absolutely no activity on my sons case since May, yesterday he called to say they took him to court, and his conflict attorney asked to be removed from the case...the judge then told my son that they'd 'let him know when they assign him another lawyer, but the time it would take to start over would NOT count as time served'...i think my son is caught up in a corrupt county where they are known to play by their own rules. in less than 3 weeks, is the one-year mark of his arrest, with NO progress in the system. i dont know what to do...
Reply With Quote
Sponsored Links
  #2  
Old 10-03-2017, 07:48 AM
CenTexLyn CenTexLyn is offline
Registered User
 

Join Date: Sep 2003
Location: TX-US
Posts: 14,140
Thanks: 524
Thanked 9,854 Times in 5,536 Posts
Default

What was the rationale for the request to be removed?
Reply With Quote
  #3  
Old 10-03-2017, 07:55 AM
missingdee's Avatar
missingdee missingdee is offline
She's Home! Moderator

PTO Moderator 

 

Join Date: Oct 2011
Location: Metro Los Angeles, CA, USA
Posts: 2,649
Thanks: 2,934
Thanked 3,881 Times in 1,650 Posts
Default

Quote:
Originally Posted by guardianangel3 View Post
after a quiet summer with absolutely no activity on my sons case since May, yesterday he called to say they took him to court, and his conflict attorney asked to be removed from the case...the judge then told my son that they'd 'let him know when they assign him another lawyer, but the time it would take to start over would NOT count as time served'...i think my son is caught up in a corrupt county where they are known to play by their own rules. in less than 3 weeks, is the one-year mark of his arrest, with NO progress in the system. i dont know what to do...


If he has remained in jail this entire time then I am not clear how the time it takes to find another attorney would not count as time served. While the amount of access you may have to whatever attorney he has next will likely be limited, Iíd make sure that you have him tell that attorney (when that counsel is retained/assigned) what the judge said and make sure you iterate it yourself. While Pennsylvania Law is different from California Law in some ways, unless this was for an in-prison offense(? Would need to go through some of your older posts to get a better understanding of the case maybe?) Then it doesnít make sense why they would not credit him his county jail time while waiting for new counsel. Maybe the nature of the crime? Maybe something in PA law differs?

It also doesnít make sense to me why they would not have another attorney (a Public Defender?) stand in as representation until new counsel can be appointed. The PDís office presumably canít represent him due to a conflict issue (thus the conflict attorney) but Iím not sure why they would not be available to him to explain whatís happening and answer questions in court until a new conflict panel can be appointed.

If someone from PA comes along with some insight then that would be helpful.
__________________
The Colorblind Moderator (I'm not even going to try to use green down here, I'll embarass myself! LOL!) Currently assisting in all forums and actively monitoring Wives and Girlfriends in Prison and the California forums.

#ByeCDCR #TimesUp #HomeForChristmas
Reply With Quote
The Following User Says Thank You to missingdee For This Useful Post:
guardianangel3 (10-03-2017)
  #4  
Old 10-03-2017, 07:59 AM
missingdee's Avatar
missingdee missingdee is offline
She's Home! Moderator

PTO Moderator 

 

Join Date: Oct 2011
Location: Metro Los Angeles, CA, USA
Posts: 2,649
Thanks: 2,934
Thanked 3,881 Times in 1,650 Posts
Default ineffective conflict attorney has quit...

Quote:
Originally Posted by CenTexLyn View Post
What was the rationale for the request to be removed?


Sounds like this isnít the first issue they have had with this conflict panel. Reference this thread for some background: No representation/son assigned "conflict attorney"

http://prisontalk.com/forums/showthread.php?t=697950

*Edit: original link didnít appear to work properly.
__________________
The Colorblind Moderator (I'm not even going to try to use green down here, I'll embarass myself! LOL!) Currently assisting in all forums and actively monitoring Wives and Girlfriends in Prison and the California forums.

#ByeCDCR #TimesUp #HomeForChristmas

Last edited by missingdee; 10-03-2017 at 08:01 AM..
Reply With Quote
The Following 3 Users Say Thank You to missingdee For This Useful Post:
bmoreicon (10-13-2017), guardianangel3 (10-03-2017), yourself (10-03-2017)
  #5  
Old 10-03-2017, 11:27 AM
yourself yourself is online now
attorney
 

Join Date: May 2010
Location: around
Posts: 11,425
Thanks: 4,003
Thanked 19,798 Times in 7,124 Posts
Default

An attorney can ask to be removed for a variety of reasons. These include conflicts with the client, health reasons, bar reasons, moving to a different part of the state or out of state, changing law offices, and many more.

Just because the attorney has been removed from the case does not mean that the case starts from scratch. The newly assigned attorney will get all discovery, all files, and everything that the prior attorney has done. Much of what that attorney has done won't be visible to a person who is not and attorney working the case. For instance, if the prior attorney was in the process of writing a motion to suppress evidence, the new attorney will get all the work that attorney did on that issue. Instead of having to reinvent the wheel, the attorney reads what's already been done and picks it up from there. Yes, it takes longer than if the first attorney stayed with it, but it is hardly starting over. The new attorney will also get whatever files and information the investigator, if any, produced.

There is no evidence that the county is corrupt in your postings. Removing an attorney because of a conflict is normal. It is the most ethical thing to do when the attorney needs to be removed. It is not a commentary on your son, nor is it a commentary on or assertion of corruption.

Attempt murder is a heavy charge. It needs to be done right as the best way to avoid punishment for such a charge is at trial. Let the new attorney work. Usually, a new attorney will be assigned fairly quickly, but each attorney needs to do their own conflict work before accepting the case. As a result, more than one attorney can be asked to take the case. But it is usually a fairly quick thing. At the next status hearing, that attorney will have an idea of the amount of time it will take to catch up and continue on. Expect a Notice of appearance to be filed before that time by the new attorney once one is chosen and accepts the representation.

I don't get where the time in jail now won't be counted towards any prison sentence, should he be sentenced. Right now, he's an innocent man, and the time he's spending counts towards nothing. Should he be found to be guilty of something, the sentencing judge will look at the time he is spending in jail and determine whether it counts towards the time he may be sentenced to, should a prison sentence be necessary. But generally, time spent in jail will be counted towards a prison term upon a finding of guilt and the necessity of a prison sentence.

A year sucks. But better that it be done right. Hopefully the new lawyer will be more communicative with your son. Aggressive may not be the best course of action at the present, but that is a strategy issue.

I understand that it is better for a person to be in jail/prison with a definitive out date. It makes serving time a lot easier when you know how much a day in jail counts. But, this is a heavy charge. Best it's done right.
Reply With Quote
The Following User Says Thank You to yourself For This Useful Post:
guardianangel3 (10-03-2017)
  #6  
Old 10-03-2017, 12:56 PM
guardianangel3 guardianangel3 is offline
Registered User
 

Join Date: Nov 2016
Location: PA, USA
Posts: 22
Thanks: 26
Thanked 7 Times in 6 Posts
Default

this particular county is known for a lot of corruption, in fact 2 wks ago the prison was shut down while feds came in and downloaded computer hard drives, took paperwork etc.

in this case, the judge was changed 3 times (once due to health reasons), and this particular attorney historically did nothing but a few motions, never gave my son discovery, mostly argumentative and unhelpful (overworked?), etc. i overheard a conversation between the judge and he about 'dont lose this case because you cant do the job...'. IDK why the sudden backing out (after all this time), and unsure whether these guys are making up the rules as they go, but want to make sure I can step in if they arent doing things right.

all comments very helpful...will digest the info and fill my son in, thank you so much!
Reply With Quote
  #7  
Old 10-03-2017, 08:45 PM
CenTexLyn CenTexLyn is offline
Registered User
 

Join Date: Sep 2003
Location: TX-US
Posts: 14,140
Thanks: 524
Thanked 9,854 Times in 5,536 Posts
Default

Quote:
Originally Posted by missingdee View Post
Sounds like this isnít the first issue they have had with this conflict panel. Reference this thread for some background: No representation/son assigned "conflict attorney"

http://prisontalk.com/forums/showthread.php?t=697950

*Edit: original link didnít appear to work properly.
I was familiar with the original thread...but I was curious whether the Motion seeking to be removed cited client difficulties. That would be the only thing that would make the court's statement about custodial time credits make sense, in effect asserting that the delay is attributable to the Defendant.
Reply With Quote
The Following User Says Thank You to CenTexLyn For This Useful Post:
missingdee (10-04-2017)
  #8  
Old 10-03-2017, 08:53 PM
CenTexLyn CenTexLyn is offline
Registered User
 

Join Date: Sep 2003
Location: TX-US
Posts: 14,140
Thanks: 524
Thanked 9,854 Times in 5,536 Posts
Default

Quote:
Originally Posted by guardianangel3 View Post
this particular county is known for a lot of corruption, in fact 2 wks ago the prison was shut down while feds came in and downloaded computer hard drives, took paperwork etc.
The article about that search has nothing to do with administration of court proceedings but rather indicated that human resource records were seized. And even that process is NOT indicia of 'corruption' that has ANYTHING to do with trials...

Quote:
in this case, the judge was changed 3 times (once due to health reasons), and this particular attorney historically did nothing but a few motions, never gave my son discovery, mostly argumentative and unhelpful (overworked?), etc. i overheard a conversation between the judge and he about 'dont lose this case because you cant do the job...'. IDK why the sudden backing out (after all this time), and unsure whether these guys are making up the rules as they go, but want to make sure I can step in if they arent doing things right.

all comments very helpful...will digest the info and fill my son in, thank you so much!
This case really has not been going on for very long in the grand scheme of things. Outside of someone that takes a plea early on, cases simply do not resolve anywhere near as quick as television makes trials out to be. As you have learned in this case, it can be several months to get all of the Brady materials, and even there, not all of that (if any of it) can be given directly to the Defendant.

You don't say WHAT the Motions were...or what the outcome of those Motions might have been. Some are proforma while others are case-specific and are laying the basis for future appellate avenues should the need arise. Also not discussed is whether your son has exerted his right to speedy trial. If not exerted, it is constructively waived...although it is ALSO not often wise to push for that if counsel is not ready for trial.

YOU won't be able to step in because YOU are not the Defendant nor are you able to act on his behalf in court. You CAN get a copy of the Rules of Criminal Procedure either in the library or (likely) by going online. That will at least let you know a little more about why things move at a snail's pace.
Reply With Quote
The Following 2 Users Say Thank You to CenTexLyn For This Useful Post:
guardianangel3 (10-05-2017), xolady (10-20-2017)
  #9  
Old 10-04-2017, 12:10 AM
missingdee's Avatar
missingdee missingdee is offline
She's Home! Moderator

PTO Moderator 

 

Join Date: Oct 2011
Location: Metro Los Angeles, CA, USA
Posts: 2,649
Thanks: 2,934
Thanked 3,881 Times in 1,650 Posts
Default

Quote:
Originally Posted by CenTexLyn View Post
I was familiar with the original thread...but I was curious whether the Motion seeking to be removed cited client difficulties. That would be the only thing that would make the court's statement about custodial time credits make sense, in effect asserting that the delay is attributable to the Defendant.


Wasnít sure, just wanted to make sure you saw it

And that was what I was wondering (in regards to the credits) which is another reason why I linked back.

-E
__________________
The Colorblind Moderator (I'm not even going to try to use green down here, I'll embarass myself! LOL!) Currently assisting in all forums and actively monitoring Wives and Girlfriends in Prison and the California forums.

#ByeCDCR #TimesUp #HomeForChristmas
Reply With Quote
The Following User Says Thank You to missingdee For This Useful Post:
CenTexLyn (10-04-2017)
  #10  
Old 10-05-2017, 04:35 PM
guardianangel3 guardianangel3 is offline
Registered User
 

Join Date: Nov 2016
Location: PA, USA
Posts: 22
Thanks: 26
Thanked 7 Times in 6 Posts
Default

Quote:
Originally Posted by CenTexLyn View Post
I was familiar with the original thread...but I was curious whether the Motion seeking to be removed cited client difficulties. That would be the only thing that would make the court's statement about custodial time credits make sense, in effect asserting that the delay is attributable to the Defendant.
there was apparently no paperwork involved here, tho i was NOT present. my son WAS unhappy with this lawyer and at one time asked to have him replaced, but ONLY because the lawyer did almost nothing for him (no discovery, no communication...) for nearly the whole year. this court hearing came out of the blue, with no notice. ??
Reply With Quote
The Following User Says Thank You to guardianangel3 For This Useful Post:
missingdee (10-05-2017)
  #11  
Old 10-05-2017, 04:46 PM
guardianangel3 guardianangel3 is offline
Registered User
 

Join Date: Nov 2016
Location: PA, USA
Posts: 22
Thanks: 26
Thanked 7 Times in 6 Posts
Default

Quote:
Originally Posted by CenTexLyn View Post
The article about that search has nothing to do with administration of court proceedings but rather indicated that human resource records were seized. And even that process is NOT indicia of 'corruption' that has ANYTHING to do with trials...



This case really has not been going on for very long in the grand scheme of things. Outside of someone that takes a plea early on, cases simply do not resolve anywhere near as quick as television makes trials out to be. As you have learned in this case, it can be several months to get all of the Brady materials, and even there, not all of that (if any of it) can be given directly to the Defendant.

You don't say WHAT the Motions were...or what the outcome of those Motions might have been. Some are proforma while others are case-specific and are laying the basis for future appellate avenues should the need arise. Also not discussed is whether your son has exerted his right to speedy trial. If not exerted, it is constructively waived...although it is ALSO not often wise to push for that if counsel is not ready for trial.

YOU won't be able to step in because YOU are not the Defendant nor are you able to act on his behalf in court. You CAN get a copy of the Rules of Criminal Procedure either in the library or (likely) by going online. That will at least let you know a little more about why things move at a snail's pace.
thank you for your suggestions. motions were for psychiatric eval, motions to suppress evidence (?). none of this was ever addressed.

IF anything were going awry, and possibly i wouldnt know if it were, who then would be the advocate for the defendant?? is there not a checks and balances system built into this? with everything that i know of what has gone on in that county for a very long time (judges accused of ties with criminals etc...) it seems they all cover each others' backs and do what they choose.
Reply With Quote
  #12  
Old 10-05-2017, 05:05 PM
guardianangel3 guardianangel3 is offline
Registered User
 

Join Date: Nov 2016
Location: PA, USA
Posts: 22
Thanks: 26
Thanked 7 Times in 6 Posts
Default

Quote:
Originally Posted by yourself View Post
An attorney can ask to be removed for a variety of reasons. These include conflicts with the client, health reasons, bar reasons, moving to a different part of the state or out of state, changing law offices, and many more.

Just because the attorney has been removed from the case does not mean that the case starts from scratch. The newly assigned attorney will get all discovery, all files, and everything that the prior attorney has done. Much of what that attorney has done won't be visible to a person who is not and attorney working the case. For instance, if the prior attorney was in the process of writing a motion to suppress evidence, the new attorney will get all the work that attorney did on that issue. Instead of having to reinvent the wheel, the attorney reads what's already been done and picks it up from there. Yes, it takes longer than if the first attorney stayed with it, but it is hardly starting over. The new attorney will also get whatever files and information the investigator, if any, produced.

There is no evidence that the county is corrupt in your postings. Removing an attorney because of a conflict is normal. It is the most ethical thing to do when the attorney needs to be removed. It is not a commentary on your son, nor is it a commentary on or assertion of corruption.

Attempt murder is a heavy charge. It needs to be done right as the best way to avoid punishment for such a charge is at trial. Let the new attorney work. Usually, a new attorney will be assigned fairly quickly, but each attorney needs to do their own conflict work before accepting the case. As a result, more than one attorney can be asked to take the case. But it is usually a fairly quick thing. At the next status hearing, that attorney will have an idea of the amount of time it will take to catch up and continue on. Expect a Notice of appearance to be filed before that time by the new attorney once one is chosen and accepts the representation.

I don't get where the time in jail now won't be counted towards any prison sentence, should he be sentenced. Right now, he's an innocent man, and the time he's spending counts towards nothing. Should he be found to be guilty of something, the sentencing judge will look at the time he is spending in jail and determine whether it counts towards the time he may be sentenced to, should a prison sentence be necessary. But generally, time spent in jail will be counted towards a prison term upon a finding of guilt and the necessity of a prison sentence.

A year sucks. But better that it be done right. Hopefully the new lawyer will be more communicative with your son. Aggressive may not be the best course of action at the present, but that is a strategy issue.

I understand that it is better for a person to be in jail/prison with a definitive out date. It makes serving time a lot easier when you know how much a day in jail counts. But, this is a heavy charge. Best it's done right.
thank you for your explanations. it just seemed that this lawyer had no time nor interest in representing my son, very argumentative and basically stated that it looked hopeless...no plan of defense was ever stated. and, why would the judge state to the lawyer 'WE dont want to lose this case because of you'...isnt the judge supposed to be a neutral party?? again, i wonder if there is a checks and balances built into the system in general, or in this county in particular, as i know of many corruption charges across the board...very upsetting.
Reply With Quote
  #13  
Old 10-09-2017, 09:57 PM
yourself yourself is online now
attorney
 

Join Date: May 2010
Location: around
Posts: 11,425
Thanks: 4,003
Thanked 19,798 Times in 7,124 Posts
Default

Quote:
Originally Posted by guardianangel3 View Post
thank you for your explanations. it just seemed that this lawyer had no time nor interest in representing my son, very argumentative and basically stated that it looked hopeless...no plan of defense was ever stated. and, why would the judge state to the lawyer 'WE dont want to lose this case because of you'...isnt the judge supposed to be a neutral party?? again, i wonder if there is a checks and balances built into the system in general, or in this county in particular, as i know of many corruption charges across the board...very upsetting.
The judge wants to see his docket appropriately cleared. This means no injustice on either side. This means the State doesn't take advantage of the defendant, and the defendant doesn't take advantage of the state.

Basically, the judge wants the case tossed for good, solid, legal reasons. This is best for your son, too, as it means nobody can throw the whole, "convicted on a technicality" or "freed on a technicality" at him.
Reply With Quote
The Following 2 Users Say Thank You to yourself For This Useful Post:
guardianangel3 (10-10-2017), xolady (10-20-2017)
  #14  
Old 10-10-2017, 07:02 AM
CenTexLyn CenTexLyn is offline
Registered User
 

Join Date: Sep 2003
Location: TX-US
Posts: 14,140
Thanks: 524
Thanked 9,854 Times in 5,536 Posts
Default

Was looking through a file we received from another attorney recently...ten months after the offense and arrest, there was a letter from counsel to the client advising them that discovery was still not available, adding that such was NOT UNCOMMON in that jurisdiction. While the client was out on bond and not languishing in custody, it was nonetheless a case with a dead body. Complex cases take time. They don't resolve in a few days or even a few weeks like television leads people to believe...

I add this data point simply to reinforce the earlier comments that there is nothing out of the ordinary with the delays seen in this case...they are NOT unique to this prosecution.
Reply With Quote
The Following 4 Users Say Thank You to CenTexLyn For This Useful Post:
bmoreicon (10-13-2017), guardianangel3 (10-10-2017), xolady (10-20-2017), yourself (10-10-2017)
  #15  
Old 10-20-2017, 07:33 AM
berg ice berg ice is offline
Registered User
 

Join Date: Oct 2017
Location: Pennsylvania
Posts: 16
Thanks: 0
Thanked 0 Times in 0 Posts
Cool legal beast

Quote:
Originally Posted by guardianangel3 View Post
after a quiet summer with absolutely no activity on my sons case since May, yesterday he called to say they took him to court, and his conflict attorney asked to be removed from the case...the judge then told my son that they'd 'let him know when they assign him another lawyer, but the time it would take to start over would NOT count as time served'...i think my son is caught up in a corrupt county where they are known to play by their own rules. in less than 3 weeks, is the one-year mark of his arrest, with NO progress in the system. i dont know what to do...
first, any and all time spent in custody must count. second, if his attorney is not the reason for delays in the case, i.e. continuances on his part, then after one year a rule eleven can be filed to dismiss the case for lack of prosecution. this process falls under the right to a speedy trial. as long as your family member did not sign a waver rule 600.
Now as far as Judges and their "comments", i'll just say this, the power of his comment to affect ones [liberties] depends on the ignorance of the recipient. the power is in the pen/books. there is a law library where he is at. he can get clarity for himself by researching his case and every thing they say to him that seems wrong. if you need help just hit me.
Reply With Quote
  #16  
Old 10-20-2017, 07:53 AM
berg ice berg ice is offline
Registered User
 

Join Date: Oct 2017
Location: Pennsylvania
Posts: 16
Thanks: 0
Thanked 0 Times in 0 Posts
Cool legal beast

Quote:
Originally Posted by CenTexLyn View Post
The article about that search has nothing to do with administration of court proceedings but rather indicated that human resource records were seized. And even that process is NOT indicia of 'corruption' that has ANYTHING to do with trials...



This case really has not been going on for very long in the grand scheme of things. Outside of someone that takes a plea early on, cases simply do not resolve anywhere near as quick as television makes trials out to be. As you have learned in this case, it can be several months to get all of the Brady materials, and even there, not all of that (if any of it) can be given directly to the Defendant.

You don't say WHAT the Motions were...or what the outcome of those Motions might have been. Some are proforma while others are case-specific and are laying the basis for future appellate avenues should the need arise. Also not discussed is whether your son has exerted his right to speedy trial. If not exerted, it is constructively waived...although it is ALSO not often wise to push for that if counsel is not ready for trial.

YOU won't be able to step in because YOU are not the Defendant nor are you able to act on his behalf in court. You CAN get a copy of the Rules of Criminal Procedure either in the library or (likely) by going online. That will at least let you know a little more about why things move at a snail's pace.
FRCP--The law is called "next Friend". look it up. all his son has to do is go pro se and some one else other than an attorney can step in.--- the relationship between a prison and the court extends beyond just sentencing but in the back round.
Reply With Quote
  #17  
Old 10-20-2017, 10:32 AM
patchouli's Avatar
patchouli patchouli is offline
PTO Administrator

PTOQ Editorial Team Member Staff Superstar Two Time Winner Staff Superstar Winner 

Donation Award 
 

Join Date: Sep 2006
Location: Kentucky
Posts: 36,944
Thanks: 36,740
Thanked 29,500 Times in 13,744 Posts
Default

Quote:
Originally Posted by berg ice View Post

first, any and all time spent in custody must count. second, if his attorney is not the reason for delays in the case, i.e. continuances on his part, then after one year a rule eleven can be filed to dismiss the case for lack of prosecution. this process falls under the right to a speedy trial. as long as your family member did not sign a waver rule 600.
As I understand it, the right to a speedy trial is not automatic but must be requested (Motion filed) before the clock starts to tic.

Quote:
Originally Posted by berg ice View Post
FRCP--The law is called "next Friend". look it up. all his son has to do is go pro se and some one else other than an attorney can step in.--- the relationship between a prison and the court extends beyond just sentencing but in the back round.
No, no, no. When an inmate files something pro se, the inmate is the one filing and no one else can "handle it" (legally):

Pro Se

For one's own behalf; in person. Appearing for oneself, as in the case of one who does not retain a lawyer and appears for himself or herself in court.

https://legal-dictionary.thefreedictionary.com/Pro+Se


__________________
2017 Holiday Issue of PTO Quarterly now available to download & print.


Reply With Quote
The Following 2 Users Say Thank You to patchouli For This Useful Post:
nimuay (10-20-2017), Patrickj (10-20-2017)
  #18  
Old 10-20-2017, 11:29 AM
yourself yourself is online now
attorney
 

Join Date: May 2010
Location: around
Posts: 11,425
Thanks: 4,003
Thanked 19,798 Times in 7,124 Posts
Default

Next friend parents may work for some children caught in the juvenile system, or mentally disabled caught in the criminal courts or mental health courts, but it won't work without a finding of disability. Such disability would make it impossible for the defendant to go pro se and have that pro se motion taken seriously.

So, a person charged with a crime who has a guardian/custodian (legal guardian or custodian, meaning under long term disability due to mental condition) may act on behalf of the ward - deciding whether to take a plea or not (though the courts will consider the wants and needs to the ward/person charged). This is "next friend".

A person under serious psychiatric disability will not have a best friend take over for him/her for years. Instead, the courts will seek to have the person restored to competence to make his/her own decisions. Should he then go pro se, it's all on him. He can't bow out and have his mother represent him unless Mom has a license to practice law in that jurisdiction. Next friend doesn't work that way.

If you've been practicing law or know somebody practicing law under the guise of "next friend", then you know somebody who has been committing an actionable offense in most states, and a cause to sue in all states. Btw, your "friend" may also be stuck with the results and may not have the ability to claim ineffective assistance of counsel when they screw up your case.

If you haven't passed the bar and been sworn in, you cannot practice law. You cannot practice law if you have a phd in law without passing the bar and being sworn in as a lawyer. You cannot practice law if you are a paralegal. You cannot practice law if you are an accountant. You cannot practice law without passing the bar and being sworn in to that jurisdiction.

A guardian can make legal decisions for you, but cannot argue motions in front of the court. A parent may make legal decisions for a child, but cannot examine witnesses. An attorney in fact can make legal decisions for somebody when there's a POA and a disability, but cannot make an opening statement in front of the court. An agent of a person pursuant to a POA cannot put in a Notice of Appearance with the court and expect to represent that person in court.

Suggesting that a person can decide to go pro se and then have a friend act as a lawyer in court (especially as a next friend) when that person isn't a licensed attorney is totally wrong and totally irresponsible.
Reply With Quote
The Following 3 Users Say Thank You to yourself For This Useful Post:
nimuay (10-20-2017), patchouli (10-20-2017), Patrickj (10-20-2017)
  #19  
Old 10-20-2017, 11:55 AM
Jjx062's Avatar
Jjx062 Jjx062 is offline
Registered User
 

Join Date: Oct 2017
Location: Oklahoma
Posts: 29
Thanks: 0
Thanked 26 Times in 17 Posts
Default Speedy trial

Quote:
Originally Posted by guardianangel3 View Post
after a quiet summer with absolutely no activity on my sons case since May, yesterday he called to say they took him to court, and his conflict attorney asked to be removed from the case...the judge then told my son that they'd 'let him know when they assign him another lawyer, but the time it would take to start over would NOT count as time served'...i think my son is caught up in a corrupt county where they are known to play by their own rules. in less than 3 weeks, is the one-year mark of his arrest, with NO progress in the system. i dont know what to do...
I would simply file a pro se motion for a speedy trial. This means they only have a very limited number of days before they have to have the case resolved. If not then the conviction becomes unconstitutional. It is a little more complicated then that, but thatís the basics. File the motion.
Reply With Quote
The Following User Says Thank You to Jjx062 For This Useful Post:
patchouli (10-20-2017)
  #20  
Old 10-20-2017, 05:56 PM
yourself yourself is online now
attorney
 

Join Date: May 2010
Location: around
Posts: 11,425
Thanks: 4,003
Thanked 19,798 Times in 7,124 Posts
Default

Quote:
Originally Posted by Jjx062 View Post
I would simply file a pro se motion for a speedy trial. This means they only have a very limited number of days before they have to have the case resolved. If not then the conviction becomes unconstitutional. It is a little more complicated then that, but thatís the basics. File the motion.
The court online docket should show whether such a motion has already been filed. Chances are, it has.

This said, all delays attributeable to the defense or defendant toll speedy. So if his attorney is simply not doing anything, it's on him. All motions that must be heard are on him. A psych eval is on him.

Here's what happens if he's got representation and he tries to file a pro se motion (generally, your mileage may vary):

1. You file the motion
2. The motion is scheduled to be heard
3. The state is given time to respond, especially if there's already a motion in the file
4. At the motion hearing, the judge explored why you filed the motion pro se and it didn't come from counsel, especially if such a motion has already been filed by counsel
5. You are a. Allowed to continue pro se for the entire case, b. A new attorney is appointed, c. Your old attorney is retained. If a. You will asked how much time you need before trial (with the understanding that former counsel will give you his files and you will be expected to catch up on the whole thing, the time necessary charged to you), b. A new attorney will be appointed. Time charged to you will be give to finding that new attorney as well as the time necessary to catch up, c. Time, charged to you, will be given to repairing the attorney client relationship.
6. Eventually you'll either go to trial by yourself, or you'll follow the advice of your attorney, probably a new one, depending.

Just so you know. It's not like a traffic ticket where you file a motion pro se because you're not appointed an attorney anyway, and the trial is scheduled on a day when the cop is not on duty and won't show. It's not an easy thing, and you do need to be prepared to go forward on your own. Further, it's not like he's already serving a sentence on a different case and the State is willing to just let the whole thing go.
Reply With Quote
The Following User Says Thank You to yourself For This Useful Post:
nimuay (10-20-2017)
  #21  
Old 10-20-2017, 06:31 PM
Jjx062's Avatar
Jjx062 Jjx062 is offline
Registered User
 

Join Date: Oct 2017
Location: Oklahoma
Posts: 29
Thanks: 0
Thanked 26 Times in 17 Posts
Default

I respectfully disagree with a lot of what you said. Primarily that you will have to proceed without an attorney. The constitution does not grant you one right or the other. You are guaranteed the right to speedy trial as well as counsel. What the motion will do is prevent them from waiting two or three weeks from appointing new counsel. They will do it immediately because this time is on the court not the defendant. Likewise if the new attorney needs more time, then fine let him ask for it. Because in reality it doesnít take very long to do any type of investigation unless the defendant plans on going to trial. Even then most attorneyís are a joke and donít do very much investigation anyway.
Not filing a speedy trial is detrimental to claims of speedy trial violations. One of the factors the Supreme Court ordered other courts to consider when determining this is the defendants expression of his speedy trial right. If you simply sit in county waiting on the courts, donít cry that it took one or two years to get you to trial.
Furthermore if the attorney was ineffective, I would NEVER assume that he filed the Speedy Trial Motion.
Reply With Quote
  #22  
Old 10-20-2017, 07:53 PM
yourself yourself is online now
attorney
 

Join Date: May 2010
Location: around
Posts: 11,425
Thanks: 4,003
Thanked 19,798 Times in 7,124 Posts
Default

Quote:
Originally Posted by Jjx062 View Post
I respectfully disagree with a lot of what you said. Primarily that you will have to proceed without an attorney. The constitution does not grant you one right or the other. You are guaranteed the right to speedy trial as well as counsel. What the motion will do is prevent them from waiting two or three weeks from appointing new counsel. They will do it immediately because this time is on the court not the defendant. Likewise if the new attorney needs more time, then fine let him ask for it. Because in reality it doesnít take very long to do any type of investigation unless the defendant plans on going to trial. Even then most attorneyís are a joke and donít do very much investigation anyway.
Not filing a speedy trial is detrimental to claims of speedy trial violations. One of the factors the Supreme Court ordered other courts to consider when determining this is the defendants expression of his speedy trial right. If you simply sit in county waiting on the courts, donít cry that it took one or two years to get you to trial.
Furthermore if the attorney was ineffective, I would NEVER assume that he filed the Speedy Trial Motion.
Never said you should assume this. Said that you should check the online docket and case history to see what it lists. Speedies can be pro forma for some attorneys. Filing an additional speedy if one has already been filed will just demonstrate that you are not checking, don't know what has been filed, and are probably not the best person to represent yourself.

You're missing the point. If you file somethjing like a speedy pro se, you are representing yourself. You cannot have your own case strategy in addition to the one that your attorney has. It doesn't work that way. You cannot act pro se for this and that, and then hang the attorney with responsibility for everything else. You are abrogating your right to a lawyer by Acting as your own lawyer. It's that simple. You can have an attorney, fire that attorney, act as your own lawyer, then get another attorney in sequence, but you cannot do something simultaneous with an attorney and expect that attorney to represent you.

As stated, filing such a motion can result in 3 different results. You might not think that you could be stuck acting pro se, but an unsophisticated client who doesn't properly advocate for themselves can very easily wind up pro se.

It is a profound conflict of interests to file your own stuff at the same time that you have an attorney filing what s/he thinks is appropriate to accomplish your stated purpose. As such, you easily conflict your original attorney out, provided the court doesn't establish that the relationship can be repaired.

What part of this do you fail to understand? Play attorney on your own in any way can result in big, big problems. The best outcome would be that a new attorney would be appointed, your motion would be rejected, and you're stuck in jail waiting for your new attorney to catch up. Think that's bloody obvious.

But, you're ignoring this. You're also ignoring the fact that it can take 30 days for the court to find an attorney who can and will take the case. It can be a lot faster, but it can take 30 days or longer. Attorneys have conflicts. They take vacations. They may even know the family of the victim. It takes time.

Btw, a speedy may not be the best way to go strategically in terms of fighting the case. Sucks to be in jail, but 6 months in jail is better than some sentences. Advising anybody facing the serious charges the OP's LO is facing is silly and potentially very problematic. You have the right to an attorney until you start acting as your own attorney. There is no, "whoops, I should have used an attorney" moment once you act as your own attorney and if you are near enough to trial when you start doing this, or don't know how to respond, or find out that the state is ready to go to trial yesterday (but if you waited 6 months, one of the chief witnesses would be graduating school and moving away....), then you are totally incompetent and will find out that this is not as easy as a filing a speedy and hoping that the state can't come to trial.

Btw, if you get a new attorney, that attorney is going to get time to get caught up on the case. The more complex the case, like the OP'S LO, the more time. If you think that you can save 3 -4 weeks by filing a silly, inappropriate motion without knowing the full context of the case, you're fooling yourself. All that time to get caught up will be charged to you.
Reply With Quote
  #23  
Old 10-20-2017, 07:56 PM
CenTexLyn CenTexLyn is offline
Registered User
 

Join Date: Sep 2003
Location: TX-US
Posts: 14,140
Thanks: 524
Thanked 9,854 Times in 5,536 Posts
Default

Interesting how our 'speedy trial' proponent fails to advise the OP that their kid needs to be aware of the very adverse consequences that come from rushing cases to trial when the attorney clearly was still working on the defense.

But then again, jjx clearly doesn't give a damn because it isn't his/her ass that will be doing the time and with the inability to pursue a writ on an IAC claim since, as a pro se litigant, IAC does not fly.
Reply With Quote
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off
Forum Jump

Similar Threads
Thread Thread Starter Forum Replies Last Post
Signed plea, served 3 years. Former attorney ineffective assistance? macyf92 Prison & Criminal Legal Help! 13 12-23-2016 05:38 PM
Ineffective Attorney? jojo820 Federal General Prison Talk, Introductions & Chit Chat 5 09-03-2010 12:49 AM
Attorney ever quit or attorney fired? Justice21 Missouri Prison & Jail Visitation, Phones, Packages & Mail 3 11-18-2007 08:58 PM
Attorney conflict of interest JusticeforMike Prison & Criminal Legal Help! 10 06-16-2006 05:41 AM


All times are GMT -6. The time now is 05:26 AM.
Copyright © 2001- 2017 Prison Talk Online
Powered by vBulletin® Version 3.7.4
Copyright ©2000 - 2017, Jelsoft Enterprises Ltd.
Website Design & Custom vBulletin Skins by: Relivo Media
Message Board Statistics