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  #1  
Old 09-21-2017, 01:05 AM
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Default New trouble, new lawyer, old headaches

I have a case coming up in a month or so, and I have a problem with my public defender. The case is a Felony 2. I did NOT do it, AND I can prove it.

First off, when we first talked he wanted me to plead out, and he had not seen any of the case files yet. Then when he did, he still wanted me to plead out.
When I finally got a hold of the discovery, I found information that, as I said, I can prove my innocence. I told my PD that we need to subpeona certain records and recordings, and subpeona two possibly three expert witnesses.
He said no.

I have since found additional information that shows the PD, as a private lawyer, worked for a collection agency that has a history of harassing me.

When I talked to another lawyer & told him all of this, he said the PD is supposed to have recused himself for conflict of interests.

Utah is in a mess for insufficient public defender representation. Now I ask for prayers that I succeed in getting my PD to recuse himself and get a replacement that actually does understand and have experience with my type of impairments.
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Old 09-21-2017, 05:21 AM
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If the lawyer won't recuse himself from your case, explain the situation to your judge and ask to be allowed to fire him.
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Old 09-21-2017, 07:20 AM
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The mere fact that he represented a collection agency in his capacity as an attorney does not render him incapable of defending you. In order to get the judge to intervene, you are going to have to demonstrate animus BY THE ATTORNEY that renders him incapable of representing you in a manner consistent with Bar Rules, the State Constitution and the Constitution of the United States...
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Old 09-21-2017, 07:32 AM
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I went to the head of the public defenders office in something I was charged with, as my assigned pd wouldn't make time to discuss my stuff, I ended up getting what they call a conflict attorney who had my case dismissed. But it took time and if I didn't fight for my self I'd still probably be in some god forsaken prison. The head PD was the key he was very aware of how a certain police agency was running their cases and arresting people just because they could, most just lay down and take the crap, I wouldn't.
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Old 09-21-2017, 10:04 AM
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Yep, just because the guy's firm represented a collection agency in the past doesn't mean an automatic conflict. You're going to be disappointed if you think you can point this out and get a new lawyer, no problem.

Just because you think certain experts are necessary doesn't mean the state is willing to pay for those experts.

When discovery comes in, there is usually a plea offer that comes along with it. We are required to communicate to you that plea. It may be common for there to be a plea offer before that discovery comes in, and that would be communicated, too. Further, many clients want the whole thing settled at the earliest possible date, before their full background comes in. They want to know what a charge is "worth" and for us to make that plea offer to the state.

Nobody has it out for you because of the communication of or discussion of plea offers.

You aren't entitled to every expert under the sun, and you would need to prove that the expert can actually prove the element of the crime that is needed.

Personally, I don't think you're talking about experts. If I remember your case right, it deals with cyberstalking and a defense of you weren't there so it couldn't be you. What you need in that case are records of events and people to prove up those records from the company.

But then, the facts and circumstances of your defense have changed a bit over time, so....
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Old 09-21-2017, 11:17 AM
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There's a distinction between communicating a plea offer on the one hand and recommending it on the other. OP said PD wanted him to plead out.

How normal is it for a defense attorney to refuse to subpoena potential exculpatory material?
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Old 09-21-2017, 01:39 PM
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There's a distinction between communicating a plea offer on the one hand and recommending it on the other. OP said PD wanted him to plead out.

How normal is it for a defense attorney to refuse to subpoena potential exculpatory material?
Material is one thing, an actual person? If you know the judge is going to refuse the expenditure?

An expert has to review the material, issue a report, and agree to testify. You can't have an expert on the stand who will qualify as an expert if s/he has not reviewed the material/interviewed the client (psychological testimony, medical testimony pertaining to the client), etc. There are clauses that pertain to the procedure to request the appointment of experts, and they have to be cleared by the judge.

I might want the best computer expert I can find come testify about the state of the hard drive of a client's computer, but that expert will want to be paid for his or her time at his or her normal rate. I cannot pay for that expert - it's in the rules.

There are very few experts who are experts, have knowledge of the material in question, and an expectation of testifying. Those are usually medical doctors. The rest expect to be paid before they lay eyes on the material.

And let me clarify - there's a difference between an expert and a lay witness testifying as to business records. OP sounds more like he's asking about business records. Such witnesses get paid by the state the going witness rate that is similar to a juror's daily rate.
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Old 09-21-2017, 01:46 PM
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Btw, what usually gets turned into, "my attorney told me to take the plea" is usually the attorney saying that there's a high likelihood that the person will be convicted in that court with that evidence and this is the plea. Or this is the best plea offer you will get.

And let's face it, most clients want to plea. I don't care if they plea or not, in fact there are a number of cases every month that I'd love to take to trial and I have to bite back my desire to take it to trial as it's the client whose ass is on the line, not mine.

Usually, there's a good reason when there's a recommendation to take the plea.

It's not always a conspiracy between some attorney who has represented a collection business in the past taking the needs of the collection agency and putting it ahead of the needs of a criminal client. Matter of fact, the attorney probably doesn't even know s/he's been in a relationship with a collection agency that has had files open on the OP. As CenTex says, there has to be an actual showing of animus by the attorney to conflict the attorney out.
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  #9  
Old 09-21-2017, 10:44 PM
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Personally, I don't think you're talking about experts. If I remember your case right, it deals with cyberstalking and a defense of you weren't there so it couldn't be you.
Actually, I'm pretty sure that was someone else.

If I recall, cornered's case has to do with "uttering terroristic threats against a protected government employee" or some such, I believe his case is federal.

In which case, I'm not sure what the best defense strategy might be, other than trying to subpoena other witnesses who were there in the room when the alleged "threats" were uttered, so as to confirm that they weren't hostile in nature.

Could be a tough case to disprove though. We all know how the prosecutors love getting up there on their soapbox and making the defendant out to be a monster during trial...

I wish you the best of luck, cornered. It sounds like you're going to need it, if you do take this thing to trial.

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Old 09-22-2017, 11:52 AM
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Actually, I'm pretty sure that was someone else.

If I recall, cornered's case has to do with "uttering terroristic threats against a protected government employee" or some such, I believe his case is federal.

In which case, I'm not sure what the best defense strategy might be, other than trying to subpoena other witnesses who were there in the room when the alleged "threats" were uttered, so as to confirm that they weren't hostile in nature.

Could be a tough case to disprove though. We all know how the prosecutors love getting up there on their soapbox and making the defendant out to be a monster during trial...

I wish you the best of luck, cornered. It sounds like you're going to need it, if you do take this thing to trial.
Ah, yes, thank you.

Yeah, this is going to be a difficult case. I can see an expert or two ( one for each side) being relevant at the sentencing phase, but it really comes down to how the victim felt about the utterances. He's not going to get an expert to say that the victim shouldn't have felt a specific way. He may get those there to testify how they perceived events, but that's hardly expert testimony, no matter who those people were or their specialties in life.

Thanks for the reminder, Nickel.
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Old 09-22-2017, 01:29 PM
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Being as it's a federal case that is why they are probably recommending to take a plea. I think its something like 98 or 99% of fed cases are plead out. And in the other 1 or 2 % of cases that do go to trial prob 90 % of those or more are found guilty and given way more time than the plea. I don't for a fact about that second part but I do know that the guys I was locked up with who went to court and lost got way longer than the ones who took the plea deal.
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Old 09-22-2017, 02:16 PM
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Yes, I've heard of that over 90% figure before -- the feds do have a very high conviction rate of those who dare take it to trial.

Even in most state courts, I think it's like over 80% of those who take it to trial are ultimately convicted. Utah itself boasts of a 95% conviction rate:

For all the charges in 2009 that defendants fought all the way to a bench trial, only 154 out of 2,411 were found not guilty—a nearly 95 percent conviction rate.

https://www.cityweekly.net/utah/nick...nt?oid=2145833

Definitely not good odds, once you are targeted by the system.
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Old 09-22-2017, 02:21 PM
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"I do know that the guys I was locked up with who went to court and lost got way longer than the ones who took the plea deal."

Going to trial also lessens your chances for a camp - the BoP seems to think that somebody that insists they are innocent has a higher risk of fleeing so house them in a low even for shorter sentences.

That might not matter in this case though since there is a chance the accusation might be considered violent which would block placement in a camp anyway.

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Old 09-23-2017, 02:33 AM
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1. No it's not cyberstalking.
2. It is state, not federal.
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Old 09-23-2017, 08:36 AM
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Originally Posted by Nickel Timer View Post
Yes, I've heard of that over 90% figure before -- the feds do have a very high conviction rate of those who dare take it to trial.

Even in most state courts, I think it's like over 80% of those who take it to trial are ultimately convicted. Utah itself boasts of a 95% conviction rate:

For all the charges in 2009 that defendants fought all the way to a bench trial, only 154 out of 2,411 were found not guilty—a nearly 95 percent conviction rate.

https://www.cityweekly.net/utah/nick...nt?oid=2145833

Definitely not good odds, once you are targeted by the system.
The reality is that the evidence is generally there in all cases that move forward...and juries get to ALSO hear about the extraneous bad acts, which increases the amount of time they are apt to give following conviction.

Even the best counsel does not always have a magic wand to make damning evidence go away...
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Old 09-23-2017, 09:03 AM
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"Even the best counsel does not always have a magic wand to make damning evidence go away..."

Not even Hogwarts alumni can make guilt go away. The accused many not think they are guilty, they may not think what they said or did should be illegal, but facts remain facts and in federal courts most accused are indeed guilty.

I think very few are "targeted by the system" - I do think many make themselves targets by inane and often repeated actions. Once you put yourself on the radar you'd be naive to think they won't be looking.
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Old 09-23-2017, 11:57 AM
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Originally Posted by cornered View Post
1. No it's not cyberstalking.
2. It is state, not federal.
cornered, what is the actual statute (Utah State Code) you are being charged under?

Perhaps if we could read the actual language of the law, we could help better advise you on possible defense strategies.
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Old 09-23-2017, 01:07 PM
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Let me hazard a guess just from quick perusal...

Is it Utah State Code § 76-5-107.3?

I assume you are being charged under subsection (1)(b)(i) since you said above it was Felony 2:

Quote:
Threat of terrorism -- Penalty.

(1) A person commits a threat of terrorism if the person threatens to commit any offense involving bodily injury, death, or substantial property damage, and:

(b) acts with intent to:

(i) intimidate or coerce a civilian population or to influence or affect the conduct of a government or a unit of government;

(2) (a) A violation of Subsection (1)(a) or (1)(b)(i) is a second degree felony.
https://le.utah.gov/xcode/Title76/Ch...-5-S107.3.html

Am I correct?

I noticed down below:

Quote:
(3) It is not a defense under this section that the person did not attempt to carry out or was incapable of carrying out the threat.

(4) A threat under this section may be express or implied.
In which case, I'm not sure you're going to be able to leverage the fact that you have any disabilities to aid in your defense, since it doesn't seem to matter if you really intended on carrying anything out.

Also, the threat doesn't have to be expressed, it could just be implied. In other words, just going in there talking about it could be all it takes to convict under that statute.

Doesn't look too good, my friend.

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Old 09-23-2017, 01:28 PM
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Nickel, USC is the US code - federal. If it's state, then the USC doesn't apply. There is a lot of variation in states when it comes to the ability to actually act on the threat, though it usually goes to the perceptions of the victim. If the victim doesn't know that the person is disabled and therefor unable to act, then the disability isn't a defense. This would be especially obvious with cyberstalking.

If however, the defense is that it wasn't the defendant because the defendant wasn't available at the IP, but was instead at a verifiable address far away from the IP, then there's a defense - they are prosecuting the wrong person. The business records of the internet provider, the cell towers that the signal bounced off, and the records of the place where the defendant actually was would make for enough evidence to call into question whether the defendant actually uttered the threats. Most of it is business records, not the testimony of an expert however.
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Old 09-23-2017, 02:02 PM
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Nickel, USC is the US code - federal. If it's state, then the USC doesn't apply.
Yes, I meant Utah State Code, or Utah Revised Statutes -- whatever they call their collection of state laws on the books. I edited my post to make that more clear.

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Old 09-24-2017, 01:49 AM
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Nickle, others, the thing is...I did not make any threats.
As fopr the guy I allegedly threatened, he's a state officer. He records EVERYTHING. Well, everything except the conversation is which he said I made a threat. I find that rather...dang. What's the word for it? "Odd"? I dunno. His word against mine, now.
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Old 09-24-2017, 02:01 AM
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Nickle, others, the thing is...I did not make any threats.
As fopr the guy I allegedly threatened, he's a state officer. He records EVERYTHING. Well, everything except the conversation is which he said I made a threat. I find that rather...dang. What's the word for it? "Odd"? I dunno. His word against mine, now.
I believe you, my friend.

But you said in your other thread that you made a passing comment about "domestic terrorism."

Even if it was done in a purely academic manner, I'm just afraid with the language of the statute as it stands, it could be very hard to defend against that charge, especially if he's able to get any other witnesses to take the stand and confirm that you did indeed bring the topic up, regardless of context.

After all, all that state officer has to do is take the stand and say that you made an IMPLIED threat by bringing the topic up while trying to influence him on some matter. (Weren't you there in the first place protesting unfair treatment by the police against your residence?)

It doesn't matter that you didn't bring it up in a threatening manner, nor that you had no intention of actually committing any sort of violent act, but just the IMPLIED threat of bringing that topic up in conversation at all in that setting, while you were apparently there to influence him on some other matter is not going to look too good before a jury, IMHO.

Just out of curiosity... I know Felony 2 in Utah commands a sentence of no less than 1 and no more than 15 years state prison maximum, but what are they offering you as far as plea bargain goes right now? Just probation? Or are they wanting you to do at least a few years time? (Of course, they're probably going to want you to be on-paper for the full 15 years regardless...)

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Old 09-24-2017, 10:50 PM
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I believe you, my friend.

But you said in your other thread that you made a passing comment about "domestic terrorism."

Even if it was done in a purely academic manner, I'm just afraid with the language of the statute as it stands, it could be very hard to defend against that charge, especially if he's able to get any other witnesses to take the stand and confirm that you did indeed bring the topic up, regardless of context.
Two separate cases. The one regarding terrorism, I was accussed of supporting terrorism. I was in custody, nose to nose with federal agents and I told them to go fuck themselves. “Understanding the concept of” is by no means saying that I support them. They agreed. I can say “I understand them”, but that is no where near the galaxy of “I support” or “I agree”.


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Originally Posted by Nickel Timer View Post
After all, all that state officer has to do is take the stand and say that you made an IMPLIED threat by bringing the topic up while trying to influence him on some matter. (Weren't you there in the first place protesting unfair treatment by the police against your residence?)
No, but it is getting to the point that information about this case is getting too detailed to be discussed here.
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Old 09-25-2017, 12:26 AM
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Fair enough, my friend. Definitely don't divulge too much info online if you feel it might hurt your case. We all know how the police and prosecutors like to trawl these forums for any leverage they might be able to use against defendants.

I take you at your word that you didn't mean to imply anything hostile in nature in your interactions with those government employees, and that this is indeed a big overreaction by the authorities.

I hope you are able to come to a favorable resolution in your case. If indeed you do decide to take it to trial and defy all odds and prevail, please do come back here and post more details about how it all went down, as one thing we don't hear too often around here are success stories, especially those who have been acquitted after trial.
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Old 09-26-2017, 03:25 AM
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I'm going all the way on this one. IF my public defender really does push my defense theory, I just might lose. But I won't go down without a fight and I won't be the only one with proverbial injuries.
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