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Hot Dog Day #91 posted:Having never touched criminal law, I'm not very familiar with IAC claims. I always imagine the majority of them are based on something that the lawyer could have done, and maybe some other lawyers would have done, but it's not IAC for the trial counsel to not have done. 99.9% of them are complete and utter bullshit. A favorite is "my attorney didn't put on my obviously fabricated alibi defense." However, the frustrating thing about habeas is it tends to be where they warehouse lovely judges, so sometimes you get some really stupid decisions.
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Nov 11, 2014 14:42
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Hot Dog Day #91 posted:Having never touched criminal law, I'm not very familiar with IAC claims. I always imagine the majority of them are based on something that the lawyer could have done, and maybe some other lawyers would have done, but it's not IAC for the trial counsel to not have done. A claim doesn't have to have merit to be a pain in the rear end to deal with.
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Nov 11, 2014 14:42
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evilweasel posted:A claim doesn't have to have merit to be a pain in the rear end to deal with. I was thinking of it from the defense attorneys side. Do they actually get offended or is it usually just rolling your eyes at the claim? It doesn't usually go to the bar right? I don't care about the prosecutors having to deal with it (sorry y'all).
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Nov 11, 2014 14:45
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Hot Dog Day #91 posted:I was thinking of it from the defense attorneys side. Do they actually get offended or is it usually just rolling your eyes at the claim? It doesn't usually go to the bar right? In Canada prosecutors are basically teflon with their prosecutorial discretion. e: http://www.canlii.org/en/mb/mbqb/doc/2014/2014mbqb179/2014mbqb179.html Zarkov Cortez fucked around with this message at 15:31 on Nov 11, 2014 |
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Nov 11, 2014 15:29
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Hot Dog Day #91 posted:usually just rolling your eyes at the claim? It doesn't usually go to the bar right? Yes to eye rolling...it's pretty much seen as an occupational hazard. And no, grievance is a separate process. There's actually case law that says a professional responsibility finding is not per se grounds for a 6th amendment IAC claim. They're treated pretty distinctly. However, the dickwad client who files an IAC habeas claim also is likely to file a grievance (or several) quote:I don't care about the prosecutors having to deal with it (sorry y'all). Don't be sorry. I like my continued employment. I'm in the business of stupid people. And business is good.
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Nov 11, 2014 15:45
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Hot Dog Day #91 posted:I was thinking of it from the defense attorneys side. Do they actually get offended or is it usually just rolling your eyes at the claim? It doesn't usually go to the bar right? Some get offended, but most understand they aren't perfect. The one I know who was the most offended was a trial counsel/prosecutor who didn't want to be a defense counsel in the first place. It always stings the first time. It doesn't go the bar. Client-raised IAC is 23% crazy, 2% you screwed up and 75% you failed to tell your client how the process works and how he/she's screwed. It might go to the bar, but the client is starting in a hole. RE: the 23%; The crazy will out themselves. 2%; When you screw up, try to fix it. The bar understands that attorneys make mistakes. It's bad intent or consistent incompetence over many clients and many years (or blowing off the bar) that gets punished. 75%; Explain to the bar why your client is screwed. Done. Next time, explain it to your client, dummy. It's a lot easier that way. Appellate counsel-raised IAC is 75% plain error/failure to object, 23% extra-record evidence and 2% you screwed up. It doesn't go to the bar. It also rarely helps your client. Making a mistake won't get you censured by the bar. Stealing/comingling your clients money, having sex with your clients, abandoning (i.e. more than neglecting) their cases, and committing crimes yourself will get you censured by the bar. Look at it sociologically. If the folks on the PR committee at the bar are defense counsel, they'll understand (unless you fall into the bad intent/consistently incompetent category) If they're prosecutors (they're not) they want to protect their brethren's convictions. If they're civil counsel, they want those icky criminals who don't have any money off the streets. You can be a really, really, really, really bad defense counsel and never be censured. You would not believe how bad you can be and never be censured.
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Nov 11, 2014 16:22
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What's arguably worse than a claim of IAC is when the trial judge calls you out on it and thanks the Crown for getting your client an acquittal.
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Nov 11, 2014 16:32
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CmdrSmirnoff posted:What's arguably worse than a claim of IAC is when the trial judge calls you out on it and thanks the Crown for getting your client an acquittal. [2] At the outset of this judgment, because I am fully aware of Mr. McFarlane’s anxiety difficulties, I wish to advise him that I am dismissing this charge and therefore finding him not guilty of the offence. That judge is a bro. edit: Wow this is brutal. Apparently not all prosecutors are garbage? Soothing Vapors fucked around with this message at 16:56 on Nov 11, 2014 |
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Nov 11, 2014 16:51
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Green Crayons posted:Doesn't just about every convicted defendant file an IAC habeas pleading? I don't see how it could be a professional slight just because the claim is made. Thats appeals attorneys. Another weird group. 95% will claim iac 2% will just threaten you 2% will be sad and pathetic 1% will think you are awesome (Not eeally true, 75% of my client like me despite my failing).
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Nov 11, 2014 16:56
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CmdrSmirnoff posted:What's arguably worse than a claim of IAC is when the trial judge calls you out on it and thanks the Crown for getting your client an acquittal. 
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Nov 11, 2014 17:05
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Just found out an Attorney/Pro Se Defendant on a case has been suspended from the practice of law for 2 years, and goddamn Bar Disciplinary office is closed for Veterans day, so I have to wait till tomorrow to get the juicy details. This is the Attorney who's paralegal called mine asking for documents a couple months ago, and said, "Yeah, I'm sorry about this - this office and X attorney sucks; I'm leaving soon anyways."
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Nov 11, 2014 18:21
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If I represent someone who gets a long prison sentence, which happens when you do a tons of criminal defense work in a prison happy state and you tend to get the most hardcore defendants, I actively advise them to IAC me. They have literally nothing to lose if it doesn't work and if I screwed up I should be held accountable and more importantly my client shouldn't be in prison. That being said, most of them don't. And the only one that ever has I just sort of had to stare at for a while because the doofus lawyer who wrote it probably made the worst possible IAC claim he could have (claimed I didn't do things that are clearly documented that I did...like...you have my file...you know I did these things...what...). But I'm sure more will add up as time goes on. e: Oh and I did get one bar complaint, but luckily it was after the state bar revised their bar complaint procedures and added a "bullshit filter" to incoming claims. So all I got was a call that said "Hey so and so filed a bar complaint, uh, it's bullshit we're throwing it away." And I was like. "Oh okay." And that was the end of that. Previous to this change every bar complaint required a full response. I remember a friend freaking out trying to write a response to one she got, because the complaint was such disjointed gibberish that she actually was having a hard time figuring out what she was responding to (and it was filed by someone she never represented). Man I'm glad they don't do it like that anymore. SlothBear fucked around with this message at 18:54 on Nov 11, 2014 |
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Nov 11, 2014 18:51
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The loving irony of these last posts is that I got a call today from a lawyer giving me a heads up that a former client is looking to appeal a recent conviction ("a" conviction because the other count was an acquittal), and heavily insinuating that it's IAC. loving fraudsters man. I'd rather have a 100% legal aid pedophile practice.
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Nov 11, 2014 19:08
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CmdrSmirnoff posted:What's arguably worse than a claim of IAC is when the trial judge calls you out on it and thanks the Crown for getting your client an acquittal. That was a pretty good read.
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Nov 11, 2014 19:47
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In Utah you have to bring IAC on direct appeal unless you have the same counsel as you did at the trial level, so it's pretty common for people to switch appellate counsel and raise IAC quickly.
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Nov 11, 2014 22:16
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Arcturas posted:In Utah you have to bring IAC on direct appeal unless you have the same counsel as you did at the trial level, so it's pretty common for people to switch appellate counsel and raise IAC quickly.
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Nov 11, 2014 22:19
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Okay, so I told my staff today I was leaving for a new job. Two cried amd two cheered, and not the way I thought that would go. The other sat blankly and wondered how many of my recently demanded jury trials would fall to him to cover (all of them). I feel like a kid waiting for the last day of school, because my boss is on vacation until my last week here.
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Nov 11, 2014 22:56
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Arcturas posted:In Utah you have to bring IAC on direct appeal unless you have the same counsel as you did at the trial level, so it's pretty common for people to switch appellate counsel and raise IAC quickly. Oh snap. In our state you almost always have to bring it in habeas.
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Nov 12, 2014 00:13
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Yeah in AZ you can't bring it up on direct appeal except for a very limited set of circumstances.
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Nov 12, 2014 01:46
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Soothing Vapors posted:[2] At the outset of this judgment, because I am fully aware of Mr. McFarlane’s anxiety difficulties, I wish to advise him that I am dismissing this charge and therefore finding him not guilty of the offence. I couldn't find the exact provision in the Crown's Policy Manual but they're seen as a Minister of Justice, rather than part of an adversarial system, so they're not looking to 'win', but to ensure that the search for truth takes place, and that justice is done. Hence results like this. That judge is great though. That poor bastard though. Guy lives in Markham, probably in some poo poo basement apartment, and has to get to Brampton without a car?
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Nov 12, 2014 02:22
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olylifter posted:I couldn't find the exact provision in the Crown's Policy Manual but they're seen as a Minister of Justice, rather than part of an adversarial system, so they're not looking to 'win', but to ensure that the search for truth takes place, and that justice is done. It's in the preamble of the Ontario Crown policy manual: quote:Public confidence in the administration of criminal justice is bolstered by a system where Crown counsel are not only strong and effective advocates for the prosecution, but also Ministers of Justice with a duty to ensure that the criminal justice system operates fairly to all: the accused, victims of crime, and the public. The role of Crown counsel has been described on many occasions. The following observations from the Supreme Court of Canada provide a summary of our complex function within the criminal justice system: quote:Crown Counsel as an Advocate Zarkov Cortez fucked around with this message at 02:53 on Nov 12, 2014 |
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Nov 12, 2014 02:49
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Yes, Crowns are all perfect people. I'm glad you guys have noticed.
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Nov 12, 2014 03:27
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Gleri posted:Yes, Crowns are all perfect people. I'm glad you guys have noticed. We should all aspire to be like Vic Toews and Peter MacKay.
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Nov 12, 2014 03:34
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Zarkov Cortez posted:In Canada prosecutors are basically teflon with their prosecutorial discretion. Wow that is absurd.
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Nov 12, 2014 07:30
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http://www.thestar.com/news/gta/2014/11/05/jian_ghomeshi_hires_lawyer_who_defended_exattorney_general_michael_bryant.htmlquote:Former CBC radio host Jian Ghomeshi has hired prominent criminal lawyer Marie Henein amid allegations he assaulted and sexually abused nine women and a man.
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Nov 12, 2014 14:39
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SlothBear posted:Yeah in AZ you can't bring it up on direct appeal except for a very limited set of circumstances. In OK you've got to bring it up on direct appeal. olylifter posted:I couldn't find the exact provision in the Crown's Policy Manual but they're seen as a Minister of Justice, rather than part of an adversarial system, so they're not looking to 'win', but to ensure that the search for truth takes place, and that justice is done. Hence why it's newsworthy. It's like a calf with two heads. Sure it's a marvel, but it's not going to survive. To be fair, as a practical, psychological and political matter it's an impossible balance to achieve. But this: Zarkov Cortez posted:In Canada prosecutors are basically teflon with their prosecutorial discretion. gives you the answer to the question, are prosecutors required to do justice?
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Nov 12, 2014 15:37
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Hot Dog Day #91 posted:Having never touched criminal law, I'm not very familiar with IAC claims. I always imagine the majority of them are based on something that the lawyer could have done, and maybe some other lawyers would have done, but it's not IAC for the trial counsel to not have done. It's stupid hard to win an IAC argument. The only IAC arguments that have even made it past the initial frivolity screening usually involve allegations that the lawyer failed to file an appeal despite a direct request to do so. Basically everything else is "trial strategy." Trial strategy can also include things like falling asleep during the trial. Omerta fucked around with this message at 16:02 on Nov 12, 2014 |
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Nov 12, 2014 15:47
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Frivolity screening...oh I envy you and your jurisdiction. We have to do a full bench trial...even when habeas counsel is saying "look, judge, there's no case here. I don't even know what evidence to put on because it's all bullshit." And then we allow habeas on habeas. Ugh. In other news, via a motion to strike I just got half of the defense's appellate brief, 75% of their appendix, and pretty much their entire reply brief booted. Think I'll go get a cookie. Oppressing the masses makes for hungry work.
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Nov 12, 2014 16:06
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ActusRhesus posted:In other news, via a motion to strike I just got half of the defense's appellate brief, 75% of their appendix, and pretty much their entire reply brief booted. Think I'll go get a cookie. Oppressing the masses makes for hungry work. Motions to strike apply only to pleadings, motions and exhibits don't count  Gj getting that poo poo excluded though. Speaking of briefs, I'm really enjoying work today. Counsel on this case, a dumbass, is floundering around on appeal because he can't read/follow the circuit court's local rules. His appeal has been dismissed and he can't figure out how to cure the procedural defects. He's up to 4 motions that were returned unfiled because he can't comply with the rules.
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Nov 12, 2014 19:21
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Zarkov Cortez posted:http://www.thestar.com/news/gta/2014/11/05/jian_ghomeshi_hires_lawyer_who_defended_exattorney_general_michael_bryant.html Holy poo poo
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Nov 12, 2014 19:34
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Omerta posted:Motions to strike apply only to pleadings, motions and exhibits don't count Not in this jurisdiction. Motion to Strike = my lazy shorthand for "Motion to Strike Portions of the Defendant's Brief, Appendix, and Reply Brief." Which is allowed here if an appellate brief goes outside the record.
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Nov 12, 2014 20:22
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Phil Moscowitz posted:Holy poo poo He hired the same PR firm as Bryant as well. Maybe he'll do something horrible to this woman and she'll cut him loose as well.
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Nov 12, 2014 20:32
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ActusRhesus posted:Not in this jurisdiction. Motion to Strike = my lazy shorthand for "Motion to Strike Portions of the Defendant's Brief, Appendix, and Reply Brief." Which is allowed here if an appellate brief goes outside the record. I just got owned. Thank god my state basically copy/pasted the federal rules of evidence and procedure.
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Nov 12, 2014 20:38
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It's ok. We're weird. Our Rules of Appellate Practice allow for filing of unspecified "motions" as long as there's specific "legal basis" so you can pretty much move for the court to do just about anything you want as long as you can cite a case for it and there's some tangible relief in their power to grant. I could have also just made the point during argument, but there are some "other issues" afoot in this case that warranted a warning shot at opposing counsel to keep their poo poo on point.
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Nov 12, 2014 20:51
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FRCP 12(f) definitely grants the court the discretion to strike material from pleadings, but there's no reason a motion to strike would be limited to pleadings. I've seen it a couple times in regards to non-pleading filings in federal jurisdictions.
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Nov 12, 2014 20:52
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Guardian Ad Litem friend of mine filed a "Motion to Get Paid" from the estate. [Also known as "motion for payment of Ad Litem fees]
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Nov 12, 2014 20:57
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woop woop i'm a primary examiner as of next monday time to look for a new job
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Nov 12, 2014 20:57
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WhiskeyJuvenile posted:time to look for a new job It must be a day ending in y.
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Nov 12, 2014 21:08
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blarzgh posted:Guardian Ad Litem friend of mine filed a "Motion to Get Paid" from the estate. [Also known as "motion for payment of Ad Litem fees] I think their phrasing has a better ring to it. alternate suggestion: "Motion for Where's my Money, Bitch?"
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Nov 12, 2014 21:10
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Yeah, the Courts last year started bumping the ad litem fee in tax cases from $250 to at least $450 dollars, because we had guys coming in saying they spent 4-5 hours looking for potential heirs and things, and it was lovely to pay them $50/hour - and then we had guys who knew how little the work was worth, coming in saying, "Your honor, I performed a search for potential heirs on Google, and PeopleSearch.com, and was unable to locate any."
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Nov 12, 2014 21:31
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