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One of the things Americans are proudest of is our commitment to Rule of Law.  Unfortunately, little attention is devoted to whether people can actually apply laws on the books designed to protect their citizens' rights.  I have had an ordinarily forgettable experience recently that seems to me to indicate the tip of an iceberg that needs attention: the inability of an accused to pursue one's VI amendment rights, not because lacking competence, but because only attorneys are allowed access to materials crucial to one's defense. Granted, it may seem a stretch to equate a trivial driving infraction, the Bill of Rights and a major national disaster - but check out the following and see if you don't agree with me that such a connection might indeed exist.

August 29, 2006:  I left early to teach my sociology class this morning, I had a craving for one of the excellent breakfast tacos they make in the little kiosk in the student center on the campus where I teach.  On Route 1 it began to rain.  It hadn't rained in months, and I knew the road might be slippery.  Especially for pick-up trucks, and black SUV's like mine.  I tested the brakes a few times.  No problems.  Nevertheless, I exited the freeway at well under the 35mph speed limit.  About ten car lengths from the light, where a car was waiting, I braked to about twenty and by five car lengths was going nor more than ten.  That's when I started to skid.  

It was a long skid.  On my right, cars were passing; on my left a wooded median.  I pumped the brakes and considered jumping the curb -- the car at the light was a County Sheriff's vehicle.  But there were trees and guy wires I might hit, and it was clear I wasn't going to impact hard.  Hard enough, however, for the driver to jerk back against the seat, wrench the door open and stride towards me with a  pissed-off glare.

I apologized immediately, genuinely convinced that my tires must have deteriorated over the summer, even though I'd recently passed inspection.  The deputy informed me that I was driving too fast for the conditions, popped open his cell phone and called for reinforcements.  I asked if he felt okay, and again told him I was sure I'd been driving safely; it must be my tires.  He walked over and gazed for awhile at the road behind my car, which still showed signs of very long, though faint, skid marks.  A Department of Public Safety (DPS) officer once taught a group of science teachers at my high school, myself included, how reliably skid marks indicate speed at the point of braking, even on rainy or icy roads.  The deputy's face softened and he took my concern about how he felt seriously.  He said he was okay, and looked for dent marks on his car.  Neither he nor any of the officers who came to the scene could find any damage- to either of our cars.

When the local Police Department (PD) officer arrived, he patiently listened to me worry about my bad tires.  Maybe I should not even drive to my class, but go have my tires changed immediately.  I didn't imagine that my bad tires exonerated me for nudging the deputy (I only later learned that equipment failure and road hazards constitute valid collision excuses, according to the Traffic Code).  I had already been instructed to pull off the road onto the wooded median so that rush hour traffic could pass, but the PD officer walked over and looked at the part of the road I had skidded on.  Then he told me kindly that it wasn't my tires.  It was just bad luck.  He'd seen this sort of thing occur many times.  If a car hits a spot where the oil has just been softened by the rain there's not much a driver can do.  Nevertheless, he gave me a ticket for not maintaining proper distance, and indicating there had been a collision.  He said that that my signing the ticket  was not an admission of guilt, just an agreement to appear in court.

That afternoon, my tire dealer and auto mechanic, a man well known and well regarded in our community, verified the PD officer's conclusion: nothing wrong with my tires.

August 30: I went to the Municipal Court (MC) building all set to pay my fine and sign up for defensive driving.  I had, after all, rear-ended a sheriff's car.  No way a judge was going to let me totally off the hook.  Even if he reduced my fine the ticket would stay on my record.  The very nice clerk at the window asked if I was aware that  I had another option.  I said I didn't think going to a jury trial was going to help much.  People would just be pissed that I wasted their time over something so trivial.  She said no, I could plead for mercy from the city prosecutor.  He could dismiss the ticket if he felt it unwarranted.  If he refused, I could still defer it and take defensive driving.  She made him sound like a real nice guy.  She scheduled me for a September 22 meeting, and attached the appropriate documents to my ticket.

September 1 - 21:  I called Oscar (not his real name), a friend who is a trial lawyer but has never dealt with traffic tickets, for advice about how to talk to the city prosecutor.  He said it wouldn't be a bad idea to look up the statute involved in my citation - failure to maintain assured clear distance -  resulting in a collision - in the State transportation code, just to be clear on what I might be facing.

 It looked like a fine of $200 max for failure to maintain distance,  and I couldn't find anything about how a collision changed things.  As far as I could tell one could collide with a sheriff's, or anyone's car without it being an infraction, under a number of circumstances.  If one had a collision and left the scene, well that was a whole different matter.  But I didn't do that.  Oscar said nevertheless to ask the prosecutor if the collision automatically constituted an infraction, or if the PD officer had discretion in this matter.  If it was automatic, then there wouldn't be anything to discuss.  If not, the prosecutor might cut me some slack.

September 22:   At 10:15 AM I was in MC courtroom #1 for my 10:30 appointment with the city prosecutor on duty, Martin Winters (not his real name). and at 10:50 my name was called.  I took the seat across from his desk.  Immediately, before I could utter a word, attorney Winters  matter-of-factly stated  that he did not intend to dismiss my ticket, that I could go to trial if I wished, and that anything  I said to him now could be used against me at trial.  I tried to explain that I had only come in hopes of describing what happened, in hopes of some consideration, but he cut me short.  Waving a sheet of white paper with some typing on it in front of me he asked if I recognized this document indicating that I had already confessed to the charges against me.  My wife, who had come along for moral support heard this clearly from the gallery and was as stunned as I.  I said that I had not been aware of having confessed to anything.  The officer had told me I was only signing a promise to appear in court.  Still holding the paper he said that these days juries were coming down hard on offenders such as myself.  I heard myself asking how, hard, how much might it cost me if I lost at trial.  

Suddenly I felt angry.  Very angry.  I had had no intention of seeking a trial when I walked into the courtroom, but now I felt differently.  This man was disinterested in weighing evidence, his sole goal was to intimidate me.  Even as I felt abused and infuriated, I knew that Prosecutor Winters manner was nothing but standard procedure. He did this with everyone.  Most of these everyones, I also realized, were people far worse off status-wise than me.

He told me that it could cost at least $300 plus court costs.  The nice MC clerk had already told me that if I did for some reason decide to go to trial, the fine would be higher than if I paid the ticket immediately, plus court costs of around $100.  A total of around $300, perhaps -- not $300 plus.  I tried to explore this question with the prosecutor, but he again interrupted with the piece of white paper and reminded me that I had already confessed.  What did I want to do: pay the ticket or go to trial.  I said I would go to trial.  He turned and tapped on his computer,  scribbled something on a form and  told me I'd be advised when to report for my arraignment.  I asked when that might be.  Maybe a week or so,  maybe longer.  

Finally, almost forgetting, I asked Oscar's question:  Was the collision automatically an infraction no matter what?  Attorney Winters said, no, it was the officer's call.  He didn't have to ticket me, but he had -- again holding up the sheet of white paper.

I called Oscar, who is a trial lawyer and has dealt with many prosecutors, but always as an attorney.  He has never observed how prosecutors deal with the accused in the absence of an attorney, and would never allow a client of his to speak with a prosecutor alone. Nevertheless, he thought that the prosecutor's behavior sounded extreme.  He suggested that I speak with Winter's supervisor.  The ambiguity around potential fines bothered Oscar even more than the prosecutor's intimidation tactics.  

It was possible that the statue I had found in the Transportation Code might not be the one, or the only one involved. He had a hunch, the collision implied a Class C Misdemeanor, which could be serious.   I was entitled to know exactly what statutes I was accused of infracting.  The statement on the ticket, or on the sheet the prosecutor had waved in front of me was not good enough.
  .
I asked Oscar how much he would be charging for the help and advice he had already given me, if I were a client.  He said he would have sent me to someone who specializes in cases like mine, but that he charged several hundred dollars an hour, normally -- except when doing pro-bono work.  We agreed that most people that come before prosecutors can't afford such help and have no resources who will provide it for free.  If dealt with as I was dealt with, most likely the average person would not go to trial under any circumstances.  

He said that it might not be much better for people accused of crimes that entitle them to public defenders - depending upon whom the court appointed to represent them.  Prosecutors are tough.  We were both aware of a recent study indicating that poor people of color tend to draw lawyers who sleep through trials, never visit their clients in jail, come to court intoxicated, etc.

September 25:  I called the local City Prosecutor's office and reached legal secretary  Tilsom (not her real name).   I described my situation, and posed the questions I needed answers to.  Ms. Tilsom informed me that their office could not offer legal advice, but acknowledged that because there was a collision I might be accused of a Class C Misdemeanor - potentially a crime with penalties far more severe than those associated with the statute I had found in the Transportation code.  But this was her opinion, and I was welcome to seek more official feedback from the City Prosecutor if this was my wish.  

Camilla Millbury (not her real name) called me back within a few hours.    I repeated what I had told Ms. Tilsom, since Attorney Millbury said that she had not been briefed by her legal secretary.   I said that I had decided to represent myself at trial, and needed certain basic information in order to conduct my defense.  I also described how prosecutor Winters had indicated to me that by signing my traffic ticket I had already confessed to the traffic infraction I was cited for.  Attorney Millbury told me that she could not comment on Attorney Winter's actions and could not give me legal advice.  The process was adversarial and I should probably seek the aid of my own attorney.  

I told her that I wasn't asking for legal advice, only to know exactly what I was accused of - what specific statutes I had allegedly violated?  She repeated firmly that she could not give me legal advice, that the ethical guidelines of her office forbad her doing so.  I asked if I could read those ethical guidelines for myself. She directed me to the Texas State Bar for this document.   I asked if she was obliged to give me even this much information, or was this simply an act of good will.  

She said that she was not obligated to speak with me at all.  We were both polite and friendly.  I had no feeling that I was been treated specially.  I told her so and thanked her for speaking with me.  She said that she sympathized with me, and urged me to hire an attorney.

September  26:  I awoke today with the sudden, powerful insight that the "justice system" is not designed to pursue justice, but only victory.   Essentially, prosecutors approach the accused with a kind of hatred - a depersonalized hatred, which makes it even more chilling.  I'm feeling dirty, guilty, raped already, and what I'm experiencing is extremely mild in comparison with what most who interact with the legal system must feel.

I called the MC and asked the clerk who answered if there was an agency that could advise someone like me concerning court procedures; how to obtain basic information about my offense, fine,  rights, the prosecutor's rights, etc. pursuant to seeking justice for myself..  The clerk suggested I call the City Prosecutor's office.  I said that I'd already done this, and gotten nowhere.  The clerk said in that case I should call the Austin City Attorney, and gave me her phone number.  The clerk also recommended  an agency called Legal Aid, and gave me their phone number as well.

I left a detailed message for the City Attorney.  At Legal Aid I reached a live person immediately, only to learn that only low income applicants are eligible for their assistance.  If I felt I might qualify, the application process would take several weeks.  However, twice a week, at specific locations, I could attend a free clinic and present questions to an attorney.  Legal Aid had no other resources for one seeking to know how to prepare for and handle him/herself at trial.  The receptionist said that the people at the Clinic might be able to offer some referral for that purpose, but she did not know where such services might be found.

Early in the afternoon I received a callback from Assistant City Attorney Catherine Conrad (not her real name).  She informed me that she had already heard about my queries from the City Prosecutor, who works for the City Attorney. Attorney Conrad repeated almost word for word what Attorney  Millbury  had told me. I said that I took this to mean that the my city government, who was accusing me of an infraction, maybe even a crime, would not tell me (1) whether a prosecutor was allowed to mislead  a defendant  representing himself, (2) to deny such a defendant even the numbers of the statute(s) he was accused of infracting, (3) or even the procedural rules of the game that prosecutor and defendant were engaged in.

Assistant City Attorney Conrad said that she could discuss none of these things, for the same ethical reasons that precluded the Assistant City Prosecutor from doing so.  She sympathized with my concern that people who could not afford lawyers, and were not entitled to have them provided by the court,  apparently had no official address they could turn to for the information I was seeking which was absolutely essential to my being able to defend myself at trial..

September 27:  The last MC clerk I had spoken with also instructed me concerning how to follow my case on-line and how to ask for certain records that I was entitled to based on the MC's web page: (1) my police accident report, and (2) my official case file - or at least that part of it a defendant is allowed to view.  She also told me, unofficially, that the DPS might be able to link citations numbers and statutes for me.  I called DPS but could only reach a message answering service. I left a detailed message and urgently requested a callback.  
Next I went on-line and found a copy of our Federal Constitution.  

I scrolled down to the Bill of Rights and found the VI Amendment.  It says, in part that

 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

I called Oscar.  He said that traffic tickets fell in a  gray area.  If defined as a violation it might or might not, technically, be covered by the VIth.  But if a  Class C Misdemeanor, defined as a minor crime, it would seem to be covered.  He could find out for me if the prosecutor was planning to define my alleged infraction as a Class C.  I replied, feeling angrier by the moment at how the system was treating me,  that the constitution didn't say that the attorney of the accused is entitled to know what he is accused of; the accused - myself -- has that right. Oscar didn't disagree.  He suggested I call the Municipal Court Clerk,  and if that didn't work, the MC Judge;  and if that didn't work,  the City Council.  He also said "Good luck," with sympathy but little optimism.

September  28:  This morning I called the State Bar and finally reached Investigator Richards.  He told me immediately how to find the ethics code I was seeking; which contained a statement to the effect that a prosecutor is obliged to see that justice is done, not simply to act as an advocate for the State, and in particular is "obliged to see that the defendant is accorded procedural justice".  

Mr. Richards, while entirely sympathetic with my concerns, was not at all surprised at what I had experienced so far.  He didn't think that appealing directly to the MC Clerk would do much good.  He was right.  That afternoon when I took a formal letter to the MC, addressed to the Municipal Court Clerk herself, formally citing my ticket and case number, and requesting

 "The specific statutes governing the violation(s) I am charged with, including the statutes governing fines and penalties if these are different from those governing the actual violations"

adding at the end that

"These requests constitute nothing more nor less than an effort on my part to know exactly what charges are levied against me.  I understand that this is my constitutional right as a citizen. This should not to be construed as a complaint against your office.  Your personnel have dealt with me cordially and responsively, if on occasion a bit confusingly."

and concluding

"Thank you so much for your attention to this matter."

the desk clerk looked it over and handed it back to me suggesting that I head for the Law Library.  When I asked for a written acknowledgement of her refusal to accept my letter, she took it back, scanned it into the system, and handed it back to me with a notation indicating that she had received it.  She also advised me not to expect a reply.  She was not in the least unfriendly, just matter of fact.  She knew how the system worked far better than I did.

While at the MC I filled out the necessary forms to obtain my case file, which would be mailed in a few days.  I also paid for a police accident report, which was handed to me within a few minutes.  

September 29:  Studying the accident report I realized that none of the diagrams included indicated skid mark measurements.  I phoned the PD and finally reached an officer who could tell me if there might be other documents that had not been included with the accident report that pertained to my case, and if and how to obtain them.  He said that my lawyer could have that information, but that I could not.  

I said that I was representing myself.  The PD official had nothing further to offer, and suggested that I call the MC. I did so and was advised to contact the City Prosecutor. I said this didn't help, nor did calling the City Attorney.  Did the MC clerk have any other suggestions.  He said I might call the MC Judge, and gave me the number.

At the MC Judge's office I reached Administrative Secretary Frances (not her real name). She heard me out and told me that neither she nor The Judge could offer legal advice. I could however submit a motion requesting information.  I described my letter submitted the previous day to the MC Clerk and asked whether this seemed to fit the bill.  Secretary Frances said that it did.  I told her what had happened when I tried to submit it and what I had been told by the desk clerk.  The Secretary repeated that neither she nor The Judge could offer me legal advice. I asked if an attorney could easily obtain the information I was seeking.  She acknowledged this to be the case.

September  30:  I phoned Oscar and told him that for the first time I felt I really understood how the  game was rigged.  Without a lawyer I could not obtain local due process, or even assert my VI amendment rights.  The prosecution could apparently play dirty, break rules, even ignore their own code of ethics and I could not, without an attorney hold them accountable.  

It was as though in a certain sports event the official referee only enforced the rules of the game when an opponent's employed sub-referee brought infractions to the official referee's attention.  If professional football operated this way, the game referee could closely observe a line-backer grab a quarter-back's face mask and  rip his head off, but would not throw a flag unless one of the sub-referees hired by the offense called attention to this misbehavior.

Oscar agreed.  We discussed my going to trial, probably loosing and then appealing.  Even then, only a  lawyer could successfully raise the issue of my fair treatment, and if I was exonerated on this basis I would have won my battle but lost the war.  I would have accepted the fundamental premise that only with a lawyer could I be protected.  Most people cannot afford lawyers, and as we had already discussed, lawyers appointed for the indigent are often minimally competent.  

Oscar also agreed, that without counsel,  my vulnerability to dirty tricks was considerable if the prosecution really got it in for me.  My violation could be defined as a Class C misdemeanor, subjecting me to a potentially heavy fine and even, in the extreme case, jail time.  

October  15:  Having received no response from the Municipal Court Clerk, or DPS, for that matter,  I  realized that there never would be any.  I paid my ticket  and opted for a defensive driving deferral.  I was given 90 days to complete the course.  

I feel sad for myself for caving in.  I feel sadder for people less privileged than I, citizens far more at the mercy of a system which contains laws to protect people but makes it very difficult for people to see those laws enforced.  Many victims of Katrina are finding themselves in limbo because of insufficient legal assistance at this crucial moment.  

I understand now how truly significant this lack is for them.  No matter how well versed in the law, no matter how diligent, no matter how smart, those forced to deal with official bureaucracy are routinely denied basic access unless accompanied by an attorney.  This process is not codified anywhere that I can discover;  nevertheless it exists, and, in my view, it has  powerful anti-democratic consequences.

Originally posted to daw13 on Sun Oct 15, 2006 at 11:10 AM PDT.

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Comment Preferences

  •  This rigging is true of most of our "services". (6+ / 0-)
    Recommended by:
    joynow, exmearden, Brian B, ER Doc, theark, kath25

    I have begun to think that we need a child's advocate to help a child when both home and school betray them.  I think there is a "CASA"  child advocate when legal entities are involved, but I don't think it would have an effect if just school was involved.  We do not have a true civilian review board over cops in most cities and that is a thing that is desperately needed.  Otherwise cops are what my husband would call "supercops" invulnerable to all.  Why we have become so enamored of authority figures may be found in a document sent home by my school to parents: "Teach your child to respect authority".  Those of us who lived around the 60's wonder if it SHOULD read "Teach your child to suspect authority"!

  •  detailed and length (5+ / 0-)
    Recommended by:
    joynow, esquimaux, ER Doc, theark, SassyFrass

    which most won't read - but quite true and a very important - the system is rigged so that you have to buy democracy.  In our elections, in our courts.

    Shame.

    In loving memory of Sadie, my camping, hiking & swimming friend. August 9, 1995 - January 23, 2006. She was the very best.

    by jhwygirl on Sun Oct 15, 2006 at 11:49:17 AM PDT

  •  i have a different perspective... (3+ / 0-)
    Recommended by:
    teacherken, ladybug53, ER Doc

    i have on multiple occasions done my own in pro per work - in civil and in landlord tenant court.  it takes persistence and determination and a good ability to read "laws" - access to a law library, findlaw and sitting in a courtroom and watching procedure.

    in most instances, i have gotten what i sought.  in one glaring one, i lost in a major way - it was when i had an attorney with me who was so confident of our case, we got blindsided in the binding arbitration hearing (which he agreed to without my permission) before a retired republican rightwing judge.  this judge stretch the legal interpretation so far, it reached to china - he wanted to punish the old hag who didn't pay her board bill in favor of the rich blonde who had just had a baby.... the decision was so egregious, my attorney refused to bill me for his services - immediately after the hearing and before the judgement came down.

    to this day, i prefer my own work to attorneys for the most part.  the result is that i am more aware of laws relating to my issues than most attorneys because i don't cost myself hundreds of dollars an hour - and i put the time into knowing how to file motions, briefs, etc.  it is hard and it isn't everyone's cup of tea - but it is extremely satisfying to find such caveats in law such as gruzen v. henry - the landlord tenant law in california that states if a dwelling is not "legal" (zoned, permitted, etc.), the landlord is not entitled to one single penny, since ca appellate courts ruled that to give the landlord money would be to reward illegal behavior.

    also, in civil cases, two people cannot legally agree to circumvent the law - such contracts are not binding.

    now for traffic, yes - it IS a different ballgame.  recently, i was ticketed for taking an offramp where there was a patrol car with orange flashers on sitting behind a fire truck with light.  looked like the ordinary wrap-up of a traffic accident.  it wasn't until i entered the ramp, i realized there had been a shoulder fire - but the fire was out, no smoke, nothing.  the officer who chased me at high speed and angrily read me the riot act ticketed me for travelling through a "cone zone" - triple fine.  when i asked how this was a "cone zone" since none were present, he replied the trucks were parked in a "cone pattern".

    in the traffic arraignment, i was also offered "traffic school" (same fine, points on license, etc.).  i declined and chose to go to trial.  after three trips to san jose and setting the trial date, the officer not only didn't show up, the dept never answered the notification to trial.  the case was dismissed and i was only out time and gas.  had i chosen to be pushed into "traffic school" - i would have fared much worse.

    at trial, you are allowed to question the accuser - the officer.  at that time, you can ask questions regarding the accident scene, bring into the case the road conditions, skid marks, etc.  but to do so, you need to know trial procedure and how to ask a question without leading.  this is where those "dumb" tv shows come in handy - they can give you some real direction, but much artistic license is taken.  to get a real sense, go to a courtroom and sit and take notes.  watch how lawyers conduct themselves.  take it seriously and take it professionally - typing the brief and evidence and motions correctly on proper forms signal to the other side that you are knowledgeable.

    recently, when i went to the unlawful detainer proceeding, my landlord's lawyer started out "bullying" to win - until i countered him with case law - and a 20 pg answer... he looked startled and asked "you've had legal experience, haven't you" - i smiled and said, "yes".  by the end of the hearing, he was spending more time with me chatting about legal issues than with my landlord - AND he wrote our "settlement" to take money issues to a civil court WITHOUT limiting them to the issues in the unlawful detainer (after explaining that the original legal filing drawn up by a legal service was defective and would prevent me from recovering MY damages - heh heh heh - so he "fixed" that little problem in my favor) - i walked away with his respect and the outcome i had sought!

    it takes "hard work" and taking your own abilities seriously and doing your homework - and not being afraid to lose.  already, i knew that i had grounds for reversal if i lost the money issues... but now i have more time to gather more solid evidence to win outright (like the results of the planning commission complaint that verifies the dwelling is illegal).

    ok, probably more than you wanted to know - just remember this - findlaw and google are your friend - there are precedent cases - and that is what the law is based upon - precedent and paper - photos, witness statements, experts, etc.  it helps to travel with a disposable camera onhand in your car for future issues - or a good digital camera AND a disposable to prove no tampering.  and get names and witness info - the more "witnesses" and "paper" and "experts" you have, the better chance of winning.

    it is all about impartial "fact" - not "he said/(s)he said... the court wants clear "fact" that can be presented and argued.  unfortunately, an officer's word carries more weight, that is where witnesses come into play.  for example, how many "collisions" were there on that first rainy day - how many were "oil skid" related - documentation from the traffic dept. adds credibility....

    got the idea yet?  next time, go boldly forth where no one dares to go!  all that happens is you might lose some money and time, but you'll feel a hell of a lot better for it!  vindication is a great thing!

    •  It sounds to me (2+ / 0-)
      Recommended by:
      joynow, ER Doc

      that perhaps he/she isn't getting the service from his County Prosecutor's office as he should.  I mean, they certainly should be disclosing the section/code (whatever) that he's being charged with.

      I can imagine my County Attorney's office behaving this way, frankly. (and know that I used to work with that office on a semi-regular basis, so I make that comment with some experience)

      daw13 sounds pretty smart.  I think he/she isn't getting even the minimal amount of cooperation regarding basic information that he/she is due.

      In loving memory of Sadie, my camping, hiking & swimming friend. August 9, 1995 - January 23, 2006. She was the very best.

      by jhwygirl on Sun Oct 15, 2006 at 12:31:45 PM PDT

      [ Parent ]

      •  that's when becoming the "squeaky wheel" (2+ / 0-)
        Recommended by:
        jhwygirl, Halcyon

        pays off.  it is all in HOW you ask the question:  for example:  i am in pro per and would like to see the charges filed on the following case:  

        take a friggin' tape recorder and inform the clerk you are recording the conversation (for memory and assistance) - then be sure to frame the question in a manner that does not seem like asking for help.

        i've encountered resistence at the window as well when i've asked for forms - was told that old "can't give legal advice" etc - so i pull relevant cases and then copy the format and check to see if the form is the correct one.  it is a huge pain in the derriere, but even then, i get the wrong one and THEN the clerk says so... duh!  

        finding a lawyer who will do pro bono work to review YOUR work is easier than asking one to do pro bono work and do ALL the work!  when you do the ground and background work, it is easier to get a review than going and asking for "start from scratch" assistance.  the real key is not to get discouraged and give up - persistence is the key.

      •  This was in Texas. That explains a lot. (2+ / 0-)
        Recommended by:
        jhwygirl, Gegner

        Can we say 'Kafakaesque'?

        Unfortunately, this tale feeds in to those 'libertarians' who hate government. But what we really learn from this is that Texas seems to operate on the premise of 'might makes right.' The authority invested in civil servants by the power and laws of government is being subverted to oppress those who have no means with which to assert their rights. The bar association may also be seeking to protect its turf and livelihood. Anyone who dares to represent themselves 'pro se' is obviously an uppity subversive.
        ...
        daw13: This is an excellent diary. Thank you for going to such great lengths to share your experience with us. I don't blame you in the least for 'taking the easy way out.' These people are despicable. You really don't want to attempt to pursue justice in the face of venal civil servants intent on giving you the shaft 'because they can.'  Here's why:

        I am experiencing another aspect of 'abuse of power.' I am four years (with no end in sight) into a (by now) very complicated court case against my city government involving a fraud perpetrated against me in which a part of my property was appropriated (in violation of my Fifth Amendment rights, without due process or any notice) and awarded to a neighbor so that he could build a large house in violation of zoning and setback requirements, part of a larger effort to increase property taxes, thus generating more revenue. The D.A. is colluding with the perpetrators of the fraud, refusing to indict on five felonies which were referred by the Sheriff after a thorough investigation (including admission of perjury and falsified documents under oath). The Bar Association refused to pursue an investigation of the city attorney who admitted to the fraud under oath to the sherrif's investigator! My first case was dismissed on a technicality. My second case for fraud is in its infancy. Needless to say, I'm represented by a lawyer. So, even when one has a lawyer, it can be very difficult to obtain justice when the system is populated by cronies.
        ....
        I'm changing your Tags:

        bill of rights, race, katrina

        to:

        legal system, criminal justice, access to justice

    •  You miss my point entirey (2+ / 0-)
      Recommended by:
      jhwygirl, Gegner

      I could not get a straight answer concerning what I was accused of, I could not obtain records I needed for my defense, but I was told repeatedly that my attorney could obtain both.  Maybe it's different in your city and state.  My diary only has value if others are experiencing the same thing I did, and if the cumulative data indicate a widespread problem. For what it's worth, some prominent attorneys have found my material interesting and in addition feel it to be important.

      •  please forgive me if i appeared to miss (0+ / 0-)

        your point i realize you were trying to take this to the courts my point was that there is this elaborate game of "may i" - and if you don't frame it correctly (as you found out), it is an horrific game of "gotcha"!

        the way to resolve that issue would have been risky - but you could have gone to the arraignment and filed a motion to dismiss based on the lack of cooperation and not being given charges - you could have filed a "discovery" request and much more - but, as you realized, it was extremely risky with the real possibility of losing... or the other possibility is that they would have dropped the entire issue because of the legal violations you encountered.

        my point, which i guess i made poorly, was that by taking it in front of the judge, you CAN confront the system and win - or at least, have grounds for a good appeal.  it is time consuming, scary as friggin'hell, and risky - but if you go armed to the teeth with the correct "points and authorities", you CAN do it.  unfortunately, you need to have a schedule that allows you to practically LIVE in a law library or time to live in findlaw for significant time period to go adequately prepared.

        i'm so sorry you went through that - and believe me, more than just lawyers found it interesting.

        i guess i am "libran" enough to simply refuse to bend - some day it is seriously going to bite me in the butt - but, i just can't do it~   i'd be a lot better off if i learned how!  but in the meantime, mine was a posting to send people in the direction of what and where to do and go if you need to fight on...  flailing at windmills is a libran specialty, btw...

        thanks for sharing your story.

        •  oops, strike out that striking out... mistake (0+ / 0-)
          in typing...
          •  Thanks, edrie (0+ / 0-)

            I appreciate this dialogue.  You kind of make my point.  The average person beaten up by the system lacks the resources -- financial, status, intellectual -- to do what's necessary.  And has no place to turn for help.  I suffered very little, and actually risked relatively little, because of who I am.  But most of those faced with the challenges you described are seriously intimidated by them.  They constitute an unwritten extra paragraph in the VI amendment, to the effect that an accused citizen has certain rights which apply automatically if s/he is wealthy; but if not, s/he must successfully negotiate a formidable obstacle course in order to effect these rights, and even then probably not all of them.

  •  welcome to the "justice" system (6+ / 0-)
    Recommended by:
    joynow, jhwygirl, Halcyon, esquimaux, ER Doc, theark

    thousands of folks are incarcerated, their lives ruined, simply because prosecutors see their convictions as victories. This is not to say they are innocent; just like you, they may be guilty of something, but most DAs typically charge defendants with several crimes that reach beyond the facts just to have bargaining power. And if the defendant refuses to bargain, ie plead guilty to a reduced (from the trumped up charges) charge, the prosecutor will do whatever he or she can to get a conviction. We've seen so many people released from life sentences after decades based on new DNA evidence. These are extreme examples, but really the tip of the iceberg. Justice is available, but you have to fight for it, and having a good attorney is absolutely necessary. A friend of mine pled guilty to a homicide he didn't commit because his public defender came to trial totally unprepared, called none of my friend's ten alibi  withesses, and left him with no choice but to plead to a ten instead of facing life. A million stories out there like that.

    •  My sympathies to you friend, relapse (6+ / 0-)

      One of the million stories, though not as serious: My sister spent a year in jail for a traffic infraction because, from what I can gather, she made an ill-timed U-turn and hit a police officer speeding toward her from the other direction.  She had terrible legal representation and pled to aggravated assault (with her vehicle being the "deadly weapon.")  I groaned that she was an idiot for taking the plea, but she said that every time she'd had a hearing, the courtroom had been a sea of blue uniforms and she was afraid of the five years they claimed she would have gotten had she been found guilty at trial.  What good did it do her state to lock her up for a year?  Was she a menace to society?  Was she drunk?  Apparently not--she wasn't even charged as such.  Had she gone to trial, she could have brought up the fact that this was this police officer's fifth accident in two years.      

      We are brought up taught that the police and the justice system are there for us when someone is doing wrong.  Who do we tell when the wrongdoers are the ones who are supposed to protect us?  

  •  It's about MONEY - nothing more (5+ / 0-)
    Recommended by:
    jhwygirl, Halcyon, Gegner, ER Doc, theark

    Traffic enforcement is about REVENUE in most localities.  Cops have quotas (a truth which nobody will officially admit) and will use any opportunity to write a summons - valid or not.

    I came upon an intersection in a neighboring locality a few months back - surprised to find FOUR officers pulling over EVERYONE that came by.  Now this is a "high crime" locality with more than enough serious crime on a daily basis but they've got FOUR cops here - probably a federral grant paying for seatbelt enforcement (and one requiring that a certain number of summonses be written to qualify).

    I was told that I had put my seat belt on while approaching the intersection and issued a summons. Apparently having made HIS quota the officer actually crossed out HIS signature after completing the summons and went over to another officer who signed the summons.

    I protested that I was wearing my seatbelt, had not doen as claimed and noted that even if I had done as the officer claimed - there was no way he could make such a claim.  Simply looking down the road, the sun glare on the windshield of ALL cars approaching the intersectrion made it impossible to see ANYTHING in the vehicle - you couldn't even see the driver or passengers.  

    Going to court it was clear what was happening. First of all, NONE of the officers showed up for any of the people appearing in court that day.  A number of cases were the second time this occurred and the cases were dismissed (however this means the people involved had taken time off from work TWICE to appear so the episode STILL cost them financially).

    For ALL other cases the judge offerred a "no points" on you liscense deal - plead guilty, pay the $$$$ and get off with no points.   This even included a case where the person (rightfully or wrongly) had a speeding ticket (issued on the officer's VISUAL interpretation of the driver's speed - hence the "rightfully or wrongly" codicil).  Now according to state law, quoting the judge, this person ALREADY had enough points on his liscense to require that it be suspended.  THe judge openly wondered why it had not been.  But the judge still offerred to change the offense to "abandoned vehicle" because "it had a high minimum fine" - the total being around $400 - a "no points" offense if the person pled guilty.  Frankly, the whole thing smelled - a "visual" claim of speeding, no officer in court and an offer to plea down......

    Another woman was issued a summons AFTER an accident for running a red light - by an officer that did NOT see the accident, based only on the word of the other party involved.  Now I know a case where the same thing happened with the guilty party NOT having insurance as well - but the police did nothing.  When the party hit asked why no summons was issued, the officer said "I didn't see what happened"  It is absurd that no summons was issued for the lack of insurance since that was readily confirmed by computer IN THE OFFICER's CAR.

    This woman was given a choice of a "no points" deal and paying a $100 fine PLUS a surcharge $100 I think.....  the judge had the attitude that "that's not a lot" .... well, talking with the woman outside later, it's clear that WAS "a lot of money" to her AND she was taking oiff time from work to be there....

    In another case - a serious one since the person had gone to the trouble fo hiring an attorney - a driver was accused of not having insurance, NOT because he didn't have proof of insurance but because (?????) the officer could not find the VIN number on the car...... the insurance matched the description of the car which is why the judge dismissed.... I have to wonder WTF? on this one...... since there are enough VIN numbers on cars and if the officer had some real question as to whether or not the car was stolen he damn well SHOULD have investigated further... frankly, it sounds like the cop was being a pain and busting chops...

    In my case the judge was astounded that I appeared in court - This is a no points offense - the fine is $50 plus a surcharge...... The judge wondered aloud why I was even there "Because I WAS wearing a seat belt..."  

    case rescheduled.....

    Hell- if the officer didn't show the first time, I'll bet he doesn't show the second..... then case dismissed.  If the officer DOES show, it won't be the one that WROTE the summons - a point I intend to make clear AND I have photos of cars approaching that intersection on the following day at the same time under the same weather conditions.... you can't see a thing inside any of those cars....

    now - courts being what they are I suppose I'll STILL get found guilty but the odds make it worth fighting.....

    this is the game

    Figure that an officer writes 100 tickets

    95 people will simply pay - being guilty or not having the time to take off from work

    5 will show up in court
    of those 3 will take the deal for no points right off

    2 will come back
    the officer may or may not show up the second time
    figure he shows up half the time so 1 is dismissed since the cop didn't show

    1 may or may not be found guilty if the officer shows up

    so...... out of 100 summonses

    98 or 99  end up paying the $$$$ guilty or not

    WHATEVER HAPPENS

    MOST people get screwed.  They have to take time off from work simply to appear.  The officer gets ONE chance not to show and gets paid anyway if he does.

    It's all about the money - and NOT about justice  and that's true about far too much.....

    a NY Times series on NY state village courts was downright scary - non-attorneys serving as judges that don't even know the law...... rights of defendents ignored...... people held in jail for months awaiting trial.... all over minor offenses/////

  •  Similar to what has already been said... (3+ / 0-)
    Recommended by:
    jhwygirl, Gegner, ER Doc

    any justice system that takes money as a punishment is inherently unfair.  One Hundred dollars may be a typical evening's dinning for one person and make up the entire months groceries for another.  How can that fine be fair or equally punishing?  If you can hire someone to represent you so much the better.  If you can't hire someone to represent you, tough luck.  The obvious message is you can do what you want if you have the money to pay for it.  

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