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Chapter 3 Pre-trialNow things start to get difficult. The game is afoot and the war begins in earnest. Everything now becomes a test of your endurance, strength of mind and willpower. You will never experience a more powerful test of your character in civilian life. It definitely equates to being a P.O.W. Being told you have a terminal disease doesn't come close to this. With a terminal disease you can count on the pain going away at some point. Prison however is the gift that keeps on giving, where nothing is certain except that you will be behind bars tomorrow somewhere. What happens to you during the pre-trial phase and what you can do to assist in fighting your own case is going to be determined primarily by where you are living during the pre-trial phase. If you are able to stay at home than you have all the resources of the outside world at your fingertips. If you are incarcerated in a jail that's a different story. If you are incarcerated in a jail during the pre-trial phase whether or not you have access to the jail law library will be determined by whether or not you are representing yourself. If you are representing yourself than you have whatever access to the jail wall library you are allowed. If you are not representing yourself you have only the resources of your own attorney and will not be permitted to go to the jail law library. If you're incarcerated during the pre-trial phase it is important that you use this time to socialize with the other inmates. You're probably thinking that I'm nuts for even suggesting this but it's true. There are a lot of people out there who are making false accusations against people for sexual molestation and they are using court ordered restitution to augment their income. Consequently it is not uncommon for two inmates to get together and discuss their case only to find that they have the same accuser for two or more separate incidents. I know of one person who found when he was incarcerated in the county jail, five other inmates who all had the same accuser he had. There's only one word for this and it's called FRAUD! If you don't get out there and socialize you may be missing something important to you. Being incarcerated prior to trial is a handicap and you are not going to win if you don’t attempt to turn every handicap into an advantage through your own actions. There's something else going on of a similar nature that I need to relate to everyone. You will find people in the post-trial phase making a tidy profit too, and I will have to relate a personal story in order to show you how it's done. When I was in prison I was a member of a legal club and when it became obvious to me that I was going to be released I promise all its members that I would do whatever I could to help them with their battle in the courts. To this day the fight continues. I decided that it was in my best interests, as well as theirs to go back to college and get a bachelor of science in paralegal studies. When I did this I was given the opportunity to have access to LEXIS-NEXIS which is a legal research database of case law and just about everything else you could think of that you might need as an attorney. One of the things that I immediately saw a need for was an index of reversed sex offender cases which you can download from the SO Combat Manual online. So I decided to produce just such an index. When I did this I discovered that there were numerous lawsuits in the ninth circuit involving insurance companies. I thought this was extremely odd because I knew there was no way that you could obtain an insurance policy against sexual assault. So what reason would an insurance company have to even be involved with a subject like this? Below are some examples of what I found.
Allstate Ins. Co. v. Izzo, CV 90-4073 (ADS), UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK, 1993 U.S. Dist. LEXIS 16421, November 13,
1993, Decided
Western Protectors Ins. Co. v. Shaffer, CASE NO. C08-5316BHS, UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, 624 F. Supp. 2d 1292;
2009 U.S. Dist. LEXIS 1731, January 9, 2009, Decided, January 9, 2009,
Filed, Reconsideration denied by Western Protectors Ins. Co. v. Shaffer, 2009
U.S. Dist. LEXIS 4916 (W.D. Wash., Jan. 23, 2009)
Prudential
Prop. & Cas. Ins. Co. v. Emmert, No. 96APE01-76 (REGULAR CALENDAR), COURT OF
APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY, 1996 Ohio App. LEXIS
2757, June 27, 1996, Rendered , THE LEXIS PAGINATION OF THIS DOCUMENT IS
SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. It should be noted that the above referenced cases came up in a search for criminal cases in citation mode on LEXIS NEXIS where 50 cases at a time are displayed. Thus, these insurance cases are representative of 6% of all the cases listed. It should also be noted that these are only the cases that went to trial. Cases that settle out of court will not show up in a case law search. It wasn't until about a year later when I was speaking with the parent of another incarcerated sex offender that I discovered the reason why this was happening. It would appear that it is common knowledge to some, that all you have to do is falsely accuse someone of sexual assault, be willing to testify in trial against them and sue your insurance company and you too can have a, "Fuck Palace", (that's what the false accuser calls his home), a Mitsubishi Eclipse, and a Cadillac Escalade just like the ones pictured below. These are photos of an actual false accuser and the house his family built after the trial.
Pre-trial is the time to interview witnesses, gather evidence for your defense, research case law and plan a strategy for your defense. Interviewing witnesses is a key event and it is here you'll learn what the witnesses are going to say on the witness stand. When it comes to the detectives you should assume that they are not going to tell you everything. They didn’t in my trial. They will always try to spring something they never mentioned during pre-trial interviews if the trial is going badly. Another factor to consider in regard to pre-trial interviews is whether or not they are deposed. In my home state of Illinois, in criminal trials, all of the witnesses are deposed. This means that during the pre-trial interviews the witnesses make statements under oath with a court reporter present. In Arizona however they do not. What's the difference? The difference is that when actual depositions are taken during the pre-trial stage the statements made by the witnesses are under oath and a witness is capable of perjuring themselves as a result of the statements they make at the pre-trial interview of witnesses if their statements don't match. It's a very effective way of catching a witness in a lie and serves as a very good deterrent against lying during the pre-trial questioning of witnesses. In short it makes the testimony of witnesses during the pre-trial stage much more reliable. In Arizona they can say anything they want during pre-trial and nothing will happen to them, which can result in the defense being led astray by pre-trial testimony. It is important for you to attend these pre-trial interviews with your attorney. At this stage, nobody, especially your attorney, knows anything about what happened beyond the general story except you. You are there to assist your attorney with the questioning of witnesses. It is part of the attorney/client relationship and can’t be interfered with by anyone. But the prosecutor will try to. They will try to take you out of the meeting, especially if the meeting occurs in the county attorney's office. They did it to me. If possible have the meeting take place anywhere except the county attorney's office. The reason is that this office is regarded by them as their own little kingdom and they feel they can do anything they want in it. If they refuse your participation don’t get upset. You object to their action, you bring it up on the record in a status conference, you record the date and time and who threw you out of the meeting and move on. If you don't object to this in court you can’t list it as an argument on appeal. This is how the process works. If you believe a wrong has been done to you, record all the information about the event you can. Then you object to it in court. If the court denies your argument the responsibility for the denial is then blood on the judge’s hands. If it is a serious matter you can always go over the judge by filing a special action along with an order to show cause. Both of these are fancy names for a type of motion. They are written a little differently than an ordinary motion and examples are given in the book. During the pre-trial stage it is important to do a check on the prosecutor's bond and oath of office as well as the judges bond and oath of office. If the state government has no record of the judges or the prosecutor's bond and oath of office, then both of them, or either of them, is holding office illegally and the court has no jurisdiction to proceed until the matter is corrected. It’s also important for you to do research on your victim. Many of these victims have reported numerous instances of sexual abuse against a great many number of people. They have developed it into a profession and are using court-appointed restitution to augment their income or to obtain welfare. I am personally aware of several people, who when they were placed in jail, found other inmates who supposedly molested the same person in different crimes. As you progress along the trial process your number one objective is to preserve every possible claim you can for appeal by objecting in court to the perceived wrong done to you. This is where things get a little tricky because you ideally should have your attorney do this for you. If your attorney is a dud and sits there like a bump on a log give him a quick kick in the shins underneath table. I'm serious. Just a little kick under the table and then tell him what he should do. If he doesn't, you have a problem. If this happens, raise your hand and wait for the judge to recognize you. Then ask the judge to order your attorney to provide you with effective assistance counsel after you explain the perceived wrong and that your attorney is refusing to take action on the matter. This automatically places a complaint by you of an incidence of ineffective assistance on the record which can be used by you on appeal. You should not do this for something small and insignificant. Only for something major. If in your trial something huge happens (huge is bigger than major) you have the right under the Arizona rules of court rule 81 to address the court directly, thus sidestepping your attorney on a particular issue. The best time to do this is if your attorney fails to pursue something in your trial involving a specific violation of state law, rule of court or evidence, or a violation that is as plain as the nose on your face. Never mind that you might piss somebody off, this is your life on the line, which seems to be a fact everyone but you doesn't understand. By the time they drive home for dinner you'll be a fading memory so don't worry about it. Pre-trial is the time for filing motions. Generally you can file motions up to 20 days before the scheduled date of trial. As continuances are granted the 20 days are automatically adjusted to the new trial date. It is vitally important that you learn how to write motions. An example is included in the download file. It's not difficult to do and any documents submitted to the court by you will not be held to the same standard as an attorney. You need to make it clear to your attorney that you demand to be present at all court proceedings, that you want copies of every document he files and that if he refuses to file a motion you tell him to without a sound legal explanation you will file a motion on your own. That's why you need to learn to write motions. Although the details of every case are different they are still composed of similar parts or issues. Consequently a motion written for one case will apply to another once it is adjusted for the details in the other case. If you know a motion that worked for somebody else then there is no need to re-invent the wheel, use that motion as a model for your own case and adjust it to fit the details of your case. No need to worry about legalese and the case law research that supports the motion will already have been done for you. When you submit a motion you'll need to send to the clerk of the court the appropriate number of copies. In Superior Court you send 4 copies, appellate court you send 6, state Supreme Court you send 8, for U.S. District Court and the Ninth Circuit Court of Appeals you send 10 copies. In your state this may be different so you need to check in the revised statutes of your state for the number of copies you'll need to send. As you can see the expense of copies can add up quickly. In the system you're either indigent and get free copies or if you have $12 or more on your account you'll have to pay for them with your own money. Be sure somebody on the outside can help you and knows about this. Asking for an attorney before questioning should eliminate the good cop bad cop interrogation routine so loved by movies and television. You should know that once you ask for an attorney all questioning by the police is supposed to stop until your appointed attorney arrives and/or they decide to arrest you. If that doesn't happen remain calm and keep your mouth shut. During interrogation they may tell you that the child involved was put through what is called a safe child interview and that he/she admitted that you're guilty, that they have it on videotape and will use it in trial. The police often use tactics like this to break a person to confess just to get the madness over with if for no other reason. In regard to safe child interviews in court, they are inadmissible except when performed by medical personnel for diagnostic and treatment purposes. (See State vs. Thompson). Of course you and most of the public are ignorant of the law and the police use it is to their advantage in custodial interrogations. That's why this book was written. Another trick they use in interrogation is that they have the victim on videotape and they don't even need to call her or him as a witness. They're just going to play the tape in court. Not true! The confrontation clause of the sixth amendment to the United States Constitution secures the right of the accused to confront his or her accusers in an open court of law. The age of the accuser makes no difference to this right. Make no mistake about it, your accuser will be in the courtroom or there will be no trial. And about that videotape? Videotape interviews have been successfully attacked in court because it allows the victim to testify twice which adds more weight and reinforcement of the victim's testimony over others in the trial. The detectives in these cases are mostly scurrilous individuals who will tell you anything to get you to confess. They will tell you they have DNA evidence when none exists, fingerprint evidence when none exists. They will lie about computer forensics reports that haven't been done yet. Remain calm pay attention to nothing they tell you and maintain your innocence. This is not the time to think about plea bargains or going to trial. This is the time for damage control. This is the time to preserve your position and cut your losses by keeping your mouth shut. The cops many even offer you a sweet deal in exchange for your confession. You should know that only the prosecutor can offer deals, not the cops. During pre-trial, since your initial plea is not guilty, you'll begin to receive discovery that you were not aware of before. Discovery is evidence found and/or testimony obtained in your case. Had you cracked and confessed before this stage of the game you would never know what this discovery is and the prosecutor would never have had to produce it. Discovery is submitted in increments as it is aquired. There is initial discovery which contains all the police reports from the victim or the victim's parents in contact crimes, along with any forensic evidence obtained. In noncontact crimes the initial disclosure may include a fingerprint report, but even this much evidence would be unusual at this time. This is where the prosecutors and police make their biggest mistakes. In their rush to throw someone in prison they file an information or go to a grand jury against someone before the forensics has been completed. They do this because most prosecutors know that few cases go to trial and with the ones that do, they can get a guilty verdict more times than not, because juries are so stupid and are prone to verdicts based on emotion, sympathy and horror. All the prosecutor wants is a body in prison he doesn't care who it is as long as it's not his own. The trial is not about finding the truth, it’s all about convicting YOU! The initial disclosure is going to show you what they've done and what they haven't. Don't think for a moment that all of their forensic work has been completed. This is especially important with computer cases because in nearly all of them the computer forensics has not been done yet and you've already been charged and arrested. In my case it took six months to get the computer forensics report after I was arrested because it had been done yet. The evidence that has not been evaluated can save your butt, and by giving up and giving in, without having this information, you are insuring that you will NEVER have it. As well as making the work of the police and the prosecutor so much easier. Make them work for a living, don't submit to them. By giving up you only allow them to start working early on the next guy behind you, which is another thing to consider. Prosecutors know that the public is so terrorized from news reports about sex offenders and that a jury will convict with hardly any evidence at all. As a result most people are so afraid of a possible life sentence they will say anything to avoid it, even if it is untrue. The work of a prosecutor is easy and the public is so willing to oblige them. By demanding a jury trial you're making it less likely for them to prosecute the case coming up behind yours due to the expense and the time it takes to conduct trial. It cost the state $240,000 to conduct trial. If everyone accused demanded a trial the state does not have the money or the resources to handle it. This would force the state to pick only cases they were sure about winning and drop all the bogus cases they now enjoy so much. In addition if everyone wanted a trial there would be a massive backlog of forensic work to be done before trial could commence. Again not enough resources or money to handle it. By waiting for full disclosure you are not losing a thing and not allowing a conviction on your record when the state all along never had sufficient evidence to convict you. At least if your ship is sunk, you'll know it’s sunk and know the reasons why. You will have made the state do the homework they should have done before coming after you. In my case the computer forensics report exonerated me because there was no evidence of viewing or downloading. Had the state done its homework before arresting me it would have seen that and never charged me. Had I given up early I never would have known that. There are ways to deal with a guilty verdict that I had to use that I will discuss in the post-trial chapter concerning appeals. During the pre-trial phase there will be some evidence the state does not want to process because if they did, that evidence could exclude you as a guilty party and point to someone else. Such was the case in my trial. Such evidence is referred to as Brady Material. Brady Material refers to a case where the prosecutor accused Mr. Brady of a crime and then refused to hand over evidence that it had at trial that exonerated him. Mr. Brady found out about it and brought it up successfully on appeal. Now his name is forever attached to this type of evidence. If this kind of evidence is the only evidence the state has to support their claim that a crime was committed the state has no choice but to drop the charges. The judge can also dismiss the case on his own, with or without prejudice. With prejudice means your constitutional rights were violated, the state prejudiced you and as a result you can’t be tried again. Without prejudice means the state can try you again. Most sex offender cases involve some kind of informant. Many times the informant is also guilty of committing a crime just in reporting the event. Often the prosecutor will choose not to charge them and charge you instead. This is called selective prosecution and it is a crime. This type of misconduct can get you a new trial if you have proof that this happened. Then there is the situation where the prosecutor offers immunity to the person in exchange for his testimony against you in trial. This also is a crime and testimony acquired in this manner is inadmissible because it is obtained under coercion and duress and is therefore tainted. With every trial involving an informant a motion should be filed demanding the prosecutor disclose if the witness was offered immunity in exchange for his or her testimony. Once you have reviewed all of the evidence and testimony that is to be used against you, have formulated your defense strategy, then it is time to determine if there is sufficient evidence to convict you. If you feel there is not enough evidence to convict you it is important to file a motion for an omnibus hearing to determine the sufficiency of evidence to be used at trial. Many times the judge is a better jury than a jury. Judges hear trials just like yours day in and day out to the point they’re board to tears, but if you've got an approach to the evidence that is unique, when the evidence points to someone else and not you, there's a great chance the judge will listen to what you have to say. It is also important to size up the judge beforehand because not all judges are open minded. In such an evidentiary hearing the whole trial can come to an end right there. Another type of document you can present to the court is called an Amicus Curiae Brief. There are certain people who are qualified to submit an Amicus brief. People with expert knowledge of a particular field of study relevant to your case or any person with direct knowledge of the evidence of your case can submit an Amicus brief. Amicus Curiae is Latin for a "friend of the court". As a friend of the court, in the interest of justice, a brief is submitted by an expert on your behalf. For an example of an Amicus brief see the download file, there is a brief submitted in a New Jersey case that got a man freed. An Amicus brief from other states can be referenced in any motion, but they don't carry the same weight as those submitted in your own home state. An Amicus brief submitted in similar cases in your state can be used like case law in your own case even though it wasn't written for you. There is one last document to be covered called an affidavit. An affidavit is a written statement from an expert or a person of interest in your case made under the penalty of perjury. It is a written statement that is the equivalent of testimony given on the witness stand. If you use one, the prosecutor will no doubt be opposed to it and try to stop its admittance into trial. The usual complaint is that an affidavit does not allow the opposing party to cross-examine the witness, similar to complaints about videotaped interviews. Sometimes you can get them admitted and sometimes you can't, but you never know till you try. Careful planning and the proper use of motions in the pre-trial phase can stop a trial before it begins. It is the most important part of any trial and one where information that can save your life is lost forever if not done right. Don't rely on your attorney to do this work for you. He may not. If that happens you'll know what to do. Just prior to trial you'll need to evaluate your position and ask yourself, "Can I win?" If the answer is I think I can or yes, I would press on with pride. If not, take a plea bargain, which by now should have gotten a lot better than the first offer. My position for those who are innocent, is to never take a plea bargain. If you take a plea bargain here's what you lose: The chance that the prosecutor will make a mistake in trial so severe you get a mistrial, your verdict overturned or reversed on appeal. That the judge will do the same as above. The right for a direct appeal (rule 31). Prosecutors today are so sloppy, so careless in regard to rules of court and ethics they couldn't try a fair trial to save their lives. You lose out on all of this by taking a plea. Overturning or vacating a plea bargain is next to impossible, because it is a voluntary admission of guilt, that once is made can rarely be unmade. It is easier to get rid of cancer than it is to get rid of a plea bargain. Each state has its own judicial system, with each judicial system having its own set of rules and regulations, so it is impossible to give regulations which will apply to all of them; however, a general thread of structuring flows thru them all. The United States is divided into 10 judicial districts.
Most state systems have two initial courts consisting of a district court and, probate court. District courts hear misdemeanor cases and preliminary evidence in felony cases which includes arrest and search warrants. Most district courts hear only civil cases where the amount in dispute is under $10,000.
The majority of probate court matters involves juvenile cases but spills over into parental abuse, child neglect, and custody cases. Probate court does not handle cases which arise out of a divorce or paternity action. This court also addresses problems of children and mental incompetents and appoints guardians if needed. In addition to juvenile matters a probate court also handles wills and distribution of property for the deceased. Since we are dealing with state courts here, the age of a "juvenile" will vary according to that state's laws. Stepping up the rung to the next ladder of appeal, one runs into the circuit courts. Circuit courts handle all cases which include felony prosecutions, injunctions, mandamus from a higher court, divorce, paternity actions, and civil matters which involve amounts over $10,000. Remember, misdemeanor cases usually start their journey in district court while felony cases commence in circuit court. From this rung of the judicial ladder we move to the court of appeals, then to the state supreme court. Most state systems mirror the federal judicial system with the exception that state courts only address state matters. If a substantial federal issue is involved, it will usually be kicked from the state supreme court level to the United States Supreme Court. Since we are dealing with diverse states, exceptions exist, to all of the above. It is incumbent upon anyone contemplating petitioning these courts to check your state's structure to be sure which judicial ladder you will be climbing. Don't forget to secure addresses and phone numbers for all clerks of the courts along the way as this is where you will be mailing your pleadings. Some states have police courts and local magistrates/justice of the peace courts. These courts are the lowest rung of the judicial ladder, and any case heard is usually reviewed de novo by a higher state court. De novo (see Legal Latin in the Ancillary Index) simply means to hear anew, so all decisions handed down by these courts are ignored and heard 'over again. Take your best shot at the state levels, but prepare your case as if you were going to be in federal court from square one. Factually, in most legal pleadings prepared at the state level, the majority of law utilized is federal. Lawyers aren't ignorant; they understand Teddy Roosevelt's rationale of "carrying a big stick." That guy with the black robe up there behind the bench might not care what another local or state judge has to say, but if you beat him over the head with a United States Supreme Court ruling, he'll snap to attention instantly.... if not sooner!
INTERACTION OF STATE AND FEDERAL COURTS
In most instances you will find that the state and federal courts act as separate systems with the exception being when the U.S. Supreme Court reviews a federal question decided in a state court. From this point onward the overview becomes a bit more complicated due (again!) to the fact that we are dealing with 50 separate sovereigns and a federal system which attempts to maintain some semblance of continuity.
We will first examine instances of state courts hearing federal issues, then shift over to federal courts hearing state issues. As a rule of thumb federal constitutional claims can be litigated in state courts, and, while most courts will hear civil rights claims brought Linder §1983, some will not. Further complicating this already insoluble mish-mash of near incomprehensible state laws is the fact that some states will allow a federal constitutional claim to proceed without invoking § 1983. The wisdom of this move is questionable as your rights under §1983 are well settled while what you might secure for "rights" by proceeding under a state statute could be ambiguous at best. Your best Course of action is to always check your state's jurisdictional statutes before proceeding. A dilemma here must be resolved before proceeding to your next course of action, and that is whether to proceed in a state or federal court. Both have their advantages and disadvantages; below listed you will find a few of the factors you should consider before making that decision: One of the first actions should be a call to both the federal and state clerks of Courts to determine how backed up they are with over 20 million cases Currently being litigated, they will be backed up. And while you're conversing with the clerk of court, try to get a "feel" for the type of case you're litigating. Most clerks will know which judges are sympathetic to which types of cases. 1) Don't be afraid to ask questions or pick their brains; it is your carcass they are going to be chewing on if you chose the incorrect court or judge. Most judges have an established "track record" that will steer you in the right direction. If the clerk can't assist you (or doesn't want to hang their own carcass out in the wind), then spend a few hours sifting thru the law books for nuggets .of information. Most cites are written in an easy-to-read format that anyone can understand. 2) Which is your stronger claim: state or federal? Be honest with yourself and don't fudge on this issue. If you have a federal claim that is not that strong oil the law the chances are more than even the federal court will hold that you have only a state claim and relegate your action to a state court for review. Your loss here is clear; you could spend literally years wasting your time in the federal court while a state court could have issued a final decision. Always remember that in a state civil action suit the doctrine of "collateral estoppel" and "res judicata" (see "Commonly Used Legal Words" in the Ancillary Index for a full explanation of these terms) prevent you from relitigating your suit in federal court.
3) Are you mixing up your issues? A good percentage of cases filed in the courts contain both federal and state issues which are complex in nature. You might have a valid constitutional complaint, but it will be buried, mixed up, and glossed over by numerous state issues. Don't be afraid to let the state take a shot at resolving it first. States are usually qualified to resolve the issues presented, and this course of action will provide you with two avenues of attack (state and federal) instead of one (federal). There is always the chance you can secure the relief sought at the state court level. Another factor to take into consideration is the "discovery" permitted in your state. One advantage of the federal courts is their liberal discovery rules. Before making a final decision whether to go state or federal, you should review your state's discovery rules."
4) Last but not least is the party you are going to be slapping with a suit. This is a critical point because if you don't sue the guilty party or the guilty party in an incorrect manner, you face an immediate dismissal of your action. In federal court you can sue individual officials (including prison officials), and, under some circumstances, you can also litigate against cities and counties. You cannot sue a state, but some states provide a legal vehicle where you can sue the state, city, or county under a theory titled RESPONDENT SUPERIOR. Some restrictions apply: 1) you may not have the right to a jury trial; 2) you may find that punitive damages may not be available; and 3) you may have to pursue your action in the court of claims. If you're looking for naked revenge, the federal courts may be more to your liking; but if you're looking for some compensation (see "Types of Relief" in the Ancillary Index), then pursue your quest in the state courts.
ADMINISTRATIVE AGENCIES
It is impossible to go thru a discourse on courts without rendering the administrative agencies their tribute. Factually, there is more agency "code" in the Internal Revenue Service (federal) than in most states' entire statutes. Clearly, a basic understanding of the administrative agencies is mandatory if you are to get a better overall view of the system. All government in the United States, both federal and state, is segmented into three branches: legislative, executive, and judicial. In theory administrative agencies come under the control of the executive branch which means they have either a governor or President at their head. But that is only in theory; in reality way are separate entities and represent the purest form of bureaucracy. They are more than vaguely reminiscent of the hydra monster in ancient Greek mythology in that for every rule or regulation deleted two more appear. Fact! Administrative agencies come into existence thru the legislative creation of a statute which authorizes their existence. Depending on how the statute is worded, it will define what the powers of that agency are, what its jurisdiction is, and for what those powers are to be used. All agencies may be sued and forced to comply with the statutes which originally brought them into existence. Federal agencies are litigated in federal court while state agencies are sued in state courts. As a part of their administrative functions, administrative agencies are required to formulate and promulgate rules and regulations governing their activities and the activities of the individuals they are regulating. Therein lies the catch almost all agencies formulate these internal rules and regulations pretty much on their own with only a cursory wink from their controlling authority, i.e. the President or governor. The final result is predictable in that they become the multi-headed monster which does nothing but grow and grow. The Administrative Procedures Act (APA) establishes the procedures for enacting rules with the federal APA being found at 5 U.S.C. §§551 et seq. Federal procedures are also published in a separate book titled the Code of Federal Regulations (CFR) which is very informative and can be obtained by writing the Library of Congress in Washington, D.C. Regulations can also be secured by writing the agency direct or from ancillary publications which contain said regulations. Many states have their own Administrative Code but whether you can obtain them depends on who publishes them. Again, we are dealing with 50 separate entities which means you will have to slog thru this or that inquiry in the hopes of securing a copy of your state's Administrative Code. All prisons, be they federal or state, are administrative agencies, but there is a loophole here in that most local jails are technically exempt from the Administrative Procedures Act because most are an agency of a county or city and not the state. Most agencies are required to follow the rules applicable to their agency. The court’s current mind set appears to reinforce the trend of making these agencies follow their own rules with numerous court orders and directives being issued, directing these agencies to follow their own rules and regulations. When you have a basic understanding of what the states and administrative agencies have to offer, you are ready to dig into that upper three per cent of the law which is federal in origin. Once there, it is a stroll down the boulevard. Basically there are Basically there are five (5) sections of books one must rummage around in. All have a specific purpose and are easily identifiable. We'll start with the least important and work up the ladder from there Congress and General Provisions are under the first five titles. All United, States Code is also "Sheped" by Shepard's so, if you're looking for another way to attack your charges, it might prove fruitful to check the most recent release of the Sheps. There is always the possibility the prosecutor was too busy to do so and wasn't aware that he or she charged you under the incorrect statute. STEP 3 - THE DISTRICT COURTS This is the first tier, or step, in the federal courts system of "justice." It consists of one federal judge sitting on his bench and uttering a "Memorandum Decision." Don't let the big name scare you. A Memorandum Decision may be placed in the Federal Supplement for any reason, or, sometimes, for no reason at all. Usually a decision is placed there due to unique circumstances which exist in a specific case, or, some quirk in the law which the judges' decision might have a bearing on. Always bear in mind that it is no more than one judge sitting in one particular court and that decision has no precedent beyond that judge in that court. His ruling is very seldom applicable to another case unless you happen to be standing in front of that very same judge with the same set of circumstances surrounding your case. Possible but surely not probable. A basic overview is necessary at this point as the "filing system" for this and the following two levels are identical. Take a common cite -Benny v. Pipes, 799 F2d 789 (9th Cir. 1986)" Benny v. Pipes" are the litigants. In this case Benny is bringing a grievance against Pipes. The "799 F2d 789" is even easier .... 799 means this particular case is found in book number 799 of the Federal Reporter, 2nd Series, and that number is prominently engraved on the binding of the book. Page 789 is where the case itself is located in book 799. Super easy. Benny was heard in the 9th Circuit and the decision rendered in 1986 which are the numbers inside the punctuation marks. All memorandum cases at the district level are published in the Federal Supplement which presently comprises a little over 730 volumes. If you lose at this level, your next step will surely be your most meaningful: the Appellate Courts. STEP 4 - THE APPEALS COURTS This is the biggie. Why? For a number of important reasons every case heard in the district court has an automatic right of first appeal to one of the twelve Federal Judicial Circuits. Jurisdiction is conferred on the appellate courts thru 28 U.S.C. §1291-1294 with final decisions from the district courts being heard by the designated appellate court for that region. Other areas of law are also covered by the appellate courts. 1) granting of leave to file an appeal to a non-final lower court order (interlocutory appeal); and 2) issuing orders regarding a denial or grant from an injunction. Some actions by the district courts cannot be appealed until final disposition, i.e.; 1) decisions on discovery issues; and 2) orders granting or denying class actions. Usually between 12 and 18 judges regularly sit on the appellate courts with temporary appointments from the district courts as needed to fill in vacancies. Three judges will comprise a panel which hears cases from the district courts with decisions from one three judge panel binding on other three judge panels from the same circuit. On occasion, when the law of the circuit is being challenged or the United States Supreme Court has ordered it so, all judges will sit "en banc" a fancy French term meaning "The court with all the qualified judges sitting in a case." Both the district and appellate courts are bound by decisions by the United States Supreme Court. The Federal Rules of Appellate Procedure govern all decisions rendered by the appellate courts. If you're found guilty or have an issue on appeal you're going to end up in one of these courts. Even more important is the fact that in most cases this is your last shot at securing meaningful relief. Your chances of the United States Supreme Court granting you "certiorari" are approximately one out of 150. A slim shot for sure so take your best shot at the appellate level. Another important fact to remember is that if you've been represented by either a court appointed attorney or a public defender at the local level you're entitled, as a matter of right, to a meaningful appeal in the appellate circuit. With the exception of the cases "non-published," almost every case making it to this level receives the royal treatment, i.e.: it appears in the Federal Reporter. Opinions coming out of your circuit are the ones to research carefully as they will be the ones you'll base your pleadings on, and the more "circuit" law you have in them, the closer the appellate court will pay attention to it: fact. Assuming you've made it to this level, and you are now ready to do battle; let's take a closer look at what is going on. Upon arrival at this level your case is given an appellate "docket number", then assigned to a panel of three judges who will eventually decide the issues you've raised on your appeal. Be sure to raise every available issue because any issue not raised here is deemed moot. Although you can utilize a "Motion to Vacate" under Title 18, 2255 to attack your sentence after appeal you must remember this legal vehicle is channeled back to your original judge. Not the way to go since you're in the appeals court because that very same judge originally denied you the relief you sought. Focus on the appeals courts and you'll come out ahead in the end. Depending on the complexity of your appeal and the overloading, the appellate court is experiencing when your appeal is docketed, it will take between 2 to 24 months for a decision to be rendered sometimes longer. The time it takes an appeal to be returned by the court appears to have no bearing on whether your appeal is affirmed or denied, but it does on the length of the decision rendered. The longer and more rambling the decision, the longer it takes to get it to the appellant.
All cases published at the appellate level are done so in the Federal Reporter 2nd Series" which presently consists of over 900 books. They use the same filing system as the other volumes referenced, so you should have no 'opportunities' finding your cites. This one set of books is, in all likelihood, the most used in any law library.
If an adverse decision is handed down, a timely "Suggestion for hearing en bane" may be submitted to the full court suggesting they incorrectly applied the circuit law. Be specific and to the point. Cite the case law you feel they have erred on and make every effort to stay within the circuit's prior rulings. If an "en banc" hearing is granted, all judges of that circuit will hear your case. When this happens, the circuit is usually preparing to make a major shift in its position. As in the United States Supreme Court, you're bucking the odds. Depending on which circuit you're in, your chances are approximately 1 in 150. If you're handed an adverse decision by the full court. you have one more avenue of relief: the United States Supreme Court. STEP 5 - THE SUPREME COURT Any decisions handed down by the United States Supreme Court are the law of the land. Jurisdiction of the Supreme Court is defined by Article III of the Constitution and by 28 U.S.C. §1251-1258. Actions in the Supreme Court are regulated in accord with the Rules of the United States Supreme Court and are published in both the USCA [United States Code Annotated]. Needless to say, the Supreme Court is not bound by any other court's rulings. Usually, but not always, our highest court will adhere to its prior rulings. This practice is known as the rule of "stare decisis". In reality there are two legal vehicles with which you can petition the Supreme Court; appeal and certiorari. When you appeal a case in which a state statute is being challenged as violating the federal Constitution, it is termed an "appeal". You are entitled to present a constitutional question to the United States Supreme Court even though your state's highest court will not hear the case. However, in order to present this question to the United States Supreme Court, you must first apply for review in your state. Review of state court decisions is mandated under 28 U.S.C. §1257, and in order for the Supreme Court to hear a state court decision, it must present some question of federal law. The Supreme Court is obligated to hear this type of appeal but can also dismiss it on grounds that the question involved is "insubstantial."
"Certiorari" is the other legal vehicle provided for a review by the United States Supreme Court. Technically it is termed a "Petition for a Writ of Certiorari." When you petition the Supreme Court to review your case thru certiorari, they have total discretion as to whether it will be heard. Review from lower federal court decisions is granted via 28 U.S.C. §1254.
There is a third option, but it has been exercised only 5 times in 200 years and that is in a case of original jurisdiction. Issuance of these writs are extremely rare and only on issues of extreme importance. However, don't get your hopes up as it seems our highest court is only interested in hearing major cases these days, and the twenty thousand pounds of marijuana found in your basement which you claim to know nothing about would not merit a raised eyebrow in this legal forum. Yes, they will, from time to time, address a minor issue, but only if it is a case they are looking to change the law. With everything running to the conservative extreme these days, the granting of "cert" by the Supreme Court could be the kiss of death to any relief you seek. How extreme is extreme consider this in 1988 the Supreme Court heard 27 cases out of the 9th Circuit, our most liberal circuit,AND REVERSED 26 OF THE 27! Not the court to roll your dice in, my friend. The Supreme Court is covered by several publications, but the most prominent is a set of books published by The Lawyers Co-Operative Publishing Company and styled as the United States Supreme Court Reports Lawyers Edition 2nd - LEd2d for short. There are currently 113 volumes in publication with the last nine being of the soft cover variety. For some reason the Supreme Court consumes an extended period of time before its cases are published, which means you will be waiting up to three years before a hardback edition is published. This should present no "opportunities" for the enterprising individual as the advance sheets are usually published by the aforesaid Lawyers Co-Op within three to six weeks of issuance. They follow the same format as the previously described editions, so you should be able to find your way thru them without difficulty.
In theory there exists two higher levels of relief. You could always petition the World Court in Hague, Netherlands, but when the United States received an adverse decision regarding Nicaragua it refused to accept the ruling and has since declined to recognize this body. You form your own conclusions. Finally, and we do mean FINALLY(!), you can have any decision by the Supreme Court overruled by statute or constitutional amendment, but this involves an effort far beyond the means of any individual presently known to exist on this planet.
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