Constitutional and Statutory Bases
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.
These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.
The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.
Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.
It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.
Choice of Counsel
The right to counsel gives rise to a no indigent's right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.
Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:
1. The length of the delay requested;
2. Whether other continuances were requested and the court's rulings on them;
3. The length of time that trial counsel had to prepare;
4. Whether another competent attorney was prepared to try the case;
5. The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;
6. Whether the delay was for legitimate or contrived reasons;
7. Whether the case was complex or simple;
8. Whether the denial of the motion resulted in some identifiable harm to the defendant; and
9. The quality of the legal representation actually provided.
Under some circumstances, a defendant who has failed to secure counsel after being afforded a reasonable opportunity to do so may be forced to proceed without representation. A court may proceed with a matter in the absence of counsel when a nonindigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears at a proceeding without counsel after having been afforded the opportunity to arrange representation. A court may take this action without securing a written waiver of counsel or appointing counsel. However, the defendant must have been provided with 10 days' notice that a dispositive setting was to take place.
Retroactivity of Right
The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.
The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.
However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.
Hybrid Representation
Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.
If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.
In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.
If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance. For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.
When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.
Waiver of Counsel
Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.
The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.
After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.
The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.
A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.
Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.
The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.
Tuesday, June 17, 2008
Sunday, June 15, 2008
(6) to provide a simple judicial procedure ,yeah right...........
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
§ 51.01. PURPOSE AND INTERPRETATION. This title shall
be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and
public safety;
(2) consistent with the protection of the public and
public safety:
(A) to promote the concept of punishment for
criminal acts;
(B) to remove, where appropriate, the taint of
criminality from children committing certain unlawful acts; and
(C) to provide treatment, training, and
rehabilitation that emphasizes the accountability and
responsibility of both the parent and the child for the child's
conduct;
(3) to provide for the care, the protection, and the
wholesome moral, mental, and physical development of children
coming within its provisions;
(4) to protect the welfare of the community and to
control the commission of unlawful acts by children;
(5) to achieve the foregoing purposes in a family
environment whenever possible, separating the child from the
child's parents only when necessary for the child's welfare or in
the interest of public safety and when a child is removed from the
child's family, to give the child the care that should be provided
by parents; and
(6) to provide a simple judicial procedure through
which the provisions of this title are executed and enforced and in
which the parties are assured a fair hearing and their
constitutional and other legal rights recognized and enforced.
Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973.
Amended by Acts 1995, 74th Leg., ch. 262, § 2, eff. Jan. 1, 1996.
or read Ezekiel 25:17
§ 51.01. PURPOSE AND INTERPRETATION. This title shall
be construed to effectuate the following public purposes:
(1) to provide for the protection of the public and
public safety;
(2) consistent with the protection of the public and
public safety:
(A) to promote the concept of punishment for
criminal acts;
(B) to remove, where appropriate, the taint of
criminality from children committing certain unlawful acts; and
(C) to provide treatment, training, and
rehabilitation that emphasizes the accountability and
responsibility of both the parent and the child for the child's
conduct;
(3) to provide for the care, the protection, and the
wholesome moral, mental, and physical development of children
coming within its provisions;
(4) to protect the welfare of the community and to
control the commission of unlawful acts by children;
(5) to achieve the foregoing purposes in a family
environment whenever possible, separating the child from the
child's parents only when necessary for the child's welfare or in
the interest of public safety and when a child is removed from the
child's family, to give the child the care that should be provided
by parents; and
(6) to provide a simple judicial procedure through
which the provisions of this title are executed and enforced and in
which the parties are assured a fair hearing and their
constitutional and other legal rights recognized and enforced.
Acts 1973, 63rd Leg., p. 1460, ch. 544, § 1, eff. Sept. 1, 1973.
Amended by Acts 1995, 74th Leg., ch. 262, § 2, eff. Jan. 1, 1996.
Monday, June 2, 2008
Ipsa scientia potestas est. ~ Knowledge itself is power.----Bacon
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
Aut viam inveniam aut faciam - I will either find a way or make one
or read Ezekiel 25:17
Aut viam inveniam aut faciam - I will either find a way or make one
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ..
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
originally published on the http://texasfairdefenseact.blogspot.com/
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...
the actions and demeanor of prosecuting attorney Melissa Daylong.
All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.
A child suspended and subsequently charged in court is double jeopardy and violates federal law.
Thank you,
CCISD TAXPAYERS ASSOCIATION
originally published on the http://texasfairdefenseact.blogspot.com/
D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...
the actions and demeanor of prosecuting attorney Melissa Daylong.
All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.
A child suspended and subsequently charged in court is double jeopardy and violates federal law.
Thank you,
CCISD TAXPAYERS ASSOCIATION
Monday, May 19, 2008
conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior
Any employee of the State of Texas that lies to a parent regarding their child should remember....ab abusu ad usum non valet consequentia ~"a consequence from an abuse to a use is not valid"
or read Ezekiel 25:17
Cory Mashburn and Ryan Cornelison, two 13-year-old boys ran down the hallway of Patton Middle School after lunch, slapping as many girl’s butts as they could get their hands on along the way. A teacher’s aid caught them and sent them to the office. The vice principal, Steve Tillery, and a police officer, Marshall Roache, stationed at the school, questioned the boys and some of the girls involved in the incident. Apparently convinced that a crime had been committed, the officer read the boys their Miranda rights and hauled them off in handcuffs to juvenile jail, where they spent the next five days. Now, Cory Mashburn and Ryan Cornelison, face the prospect of 10 years in juvenile detention and a lifetime on the sex offender registry. Read the Original Charges here. The charges against both Cory Mashburn and Ryan Cornelison were later amended and the felony charges against Cory were dropped.
Bradley Berry, the McMinnville district attorney, said his office “aggressively” pursues sex crimes that involve children. “These cases are devastating to children,” he said. “They are life-altering cases.”
“The disproportionality of the charges is absurd,” said Phillip Esplin, a forensic psychologist who has researched child sex abuse for the National Institutes of Health.
“My question is, why this would constitute a sexual offense, as opposed to something inappropriate that should have been dealt with within the school — not within the criminal justice system.”
To Rhonda Pope, mother of Christian Richter, 13, a girl named in the court papers as one of the victims, the charges are justified.
“Slapping somebody on the butt is sexual harassment, and it is a crime,” she said. “Considering what was going on and that my daughter was offended, it is a crime. And it’s not OK.”
Insisting that the charges are an overreaction, Mashburn’s attorney, Mark Lawrence, has worked to bring as much public attention as possible to the story. Lawrence, himself a former Yamhill County prosecutor, and his client briefly appeared on commentator Bill O’Reilly’s cable TV show.
“I look at this from a prosecutor’s perspective and a defense attorney’s perspective, and believe this is truly insane. I do not condone this behavior — it was inappropriate. But it is not criminal.”
Marshall Roache, the police officer, after conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior including one girl who described it as “a handshake we do.” Two of the alleged victims said they had swatted boys’ buttocks themselves. No one claimed to be offended by the horseplay. At this point the two boys were still locked up.
The next day the juvenile court held a hearing on whether the boys should be released. The courtroom was packed with Patton students and families of both boys — many were crying. The boys were there, too, in shackles and jail outfits. Two of the alleged victims spontaneously offered to testify on behalf of the boys. Under oath, they told the judge they were friends and did not feel threatened by them. The two girls also testified they felt compelled, during the initial interviews with Tillery and Roache, to say things that weren’t true. Read a copy of the court transcript here.
“Well, when the (vice) principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn’t,” the girl said, explaining that she didn’t think anything sexual went on.
The boys were released. But the judge ordered them out of school, required constant parental supervision and barred them from contacting friends. Any deviation, he said, would result in more time in juvenile jail. The boys and their parents were interviewed about the experience. Watch the Video Clip Here
The only “victims” in this entire incident were the two boys and their families. Because of their horseplay, two boys have been thrown in jail for days, enduring what must have been a nightmare for both of them. Now their parents are suffering under the expense of having to hire lawyers to defend their children. Both boys are under house arrest and are not able to return to school. They are facing some very serious charges that could land them in jail for a very long time. And in addition they may have to register as sex offenders and be included in that registry for the rest of their lives. All this over an incident in which no one claims to be a victim and no one is afraid of these two 13-year-olds, who were just having some fun with their friends during the lunch break at school. When will some sanity return to the “adults” who try to make young sexual predators out of boys just having fun??? Can someone tell them to BUTT out and let kids be kids!!!
or read Ezekiel 25:17
Cory Mashburn and Ryan Cornelison, two 13-year-old boys ran down the hallway of Patton Middle School after lunch, slapping as many girl’s butts as they could get their hands on along the way. A teacher’s aid caught them and sent them to the office. The vice principal, Steve Tillery, and a police officer, Marshall Roache, stationed at the school, questioned the boys and some of the girls involved in the incident. Apparently convinced that a crime had been committed, the officer read the boys their Miranda rights and hauled them off in handcuffs to juvenile jail, where they spent the next five days. Now, Cory Mashburn and Ryan Cornelison, face the prospect of 10 years in juvenile detention and a lifetime on the sex offender registry. Read the Original Charges here. The charges against both Cory Mashburn and Ryan Cornelison were later amended and the felony charges against Cory were dropped.
Bradley Berry, the McMinnville district attorney, said his office “aggressively” pursues sex crimes that involve children. “These cases are devastating to children,” he said. “They are life-altering cases.”
“The disproportionality of the charges is absurd,” said Phillip Esplin, a forensic psychologist who has researched child sex abuse for the National Institutes of Health.
“My question is, why this would constitute a sexual offense, as opposed to something inappropriate that should have been dealt with within the school — not within the criminal justice system.”
To Rhonda Pope, mother of Christian Richter, 13, a girl named in the court papers as one of the victims, the charges are justified.
“Slapping somebody on the butt is sexual harassment, and it is a crime,” she said. “Considering what was going on and that my daughter was offended, it is a crime. And it’s not OK.”
Insisting that the charges are an overreaction, Mashburn’s attorney, Mark Lawrence, has worked to bring as much public attention as possible to the story. Lawrence, himself a former Yamhill County prosecutor, and his client briefly appeared on commentator Bill O’Reilly’s cable TV show.
“I look at this from a prosecutor’s perspective and a defense attorney’s perspective, and believe this is truly insane. I do not condone this behavior — it was inappropriate. But it is not criminal.”
Marshall Roache, the police officer, after conducting a follow up interview with many of the girls was told that it was “slap butt day” and many of them were involved in the same behavior including one girl who described it as “a handshake we do.” Two of the alleged victims said they had swatted boys’ buttocks themselves. No one claimed to be offended by the horseplay. At this point the two boys were still locked up.
The next day the juvenile court held a hearing on whether the boys should be released. The courtroom was packed with Patton students and families of both boys — many were crying. The boys were there, too, in shackles and jail outfits. Two of the alleged victims spontaneously offered to testify on behalf of the boys. Under oath, they told the judge they were friends and did not feel threatened by them. The two girls also testified they felt compelled, during the initial interviews with Tillery and Roache, to say things that weren’t true. Read a copy of the court transcript here.
“Well, when the (vice) principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn’t,” the girl said, explaining that she didn’t think anything sexual went on.
The boys were released. But the judge ordered them out of school, required constant parental supervision and barred them from contacting friends. Any deviation, he said, would result in more time in juvenile jail. The boys and their parents were interviewed about the experience. Watch the Video Clip Here
The only “victims” in this entire incident were the two boys and their families. Because of their horseplay, two boys have been thrown in jail for days, enduring what must have been a nightmare for both of them. Now their parents are suffering under the expense of having to hire lawyers to defend their children. Both boys are under house arrest and are not able to return to school. They are facing some very serious charges that could land them in jail for a very long time. And in addition they may have to register as sex offenders and be included in that registry for the rest of their lives. All this over an incident in which no one claims to be a victim and no one is afraid of these two 13-year-olds, who were just having some fun with their friends during the lunch break at school. When will some sanity return to the “adults” who try to make young sexual predators out of boys just having fun??? Can someone tell them to BUTT out and let kids be kids!!!
Thursday, April 17, 2008
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
An "XML Schema" defines the rules and constraints for the characteristics of the data......intangible IRL.......
The Virginian-Pilot
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, October 3, 1995 TAG: 9510030252
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: PORTSMOUTH LENGTH: Long : 178 lines
``I LOST EVERYTHING.'' ATTORNEY'S MISTAKES, LIES HELP COST COUPLE THEIR HOME AND BUSINESS
When Frank and Gayle Galiney found themselves victims of a bad lawyer, their first reaction was to try to get compensation.
The lawyer, Joseph James Basgier Jr. of Virginia Beach - who has surrendered his license and is awaiting sentencing on embezzlement charges - had botched the Galineys' lawsuit. He missed a filing deadline, then covered up by telling the Galineys their case was still pending.
The deception went on for years. Over time, the Galineys lost their home, their business and their credit, in part because of Basgier's mistakes. When they finally discovered the lie, they convinced Basgier to pay them $50,000 for his mistake, plus another $131,000 over 10 years.
But when the monthly payments stopped, the Galineys found themselves up a creek.
They couldn't collect from Basgier's legal malpractice insurance. He had none.
They probably can't collect criminal restitution, even though Basgier has pleaded guilty to embezzling $80,000 from his former law firm and other clients. He didn't embezzle from the Galineys.
Finally, they can't collect from a State Bar fund that pays victims of crooked lawyers. That's because Basgier didn't steal anything from them. He just loused up their case.
And so the Galineys have learned a lesson that victims of Peninsula lawyer David Murray learned in 1992, after Murray stole $42 million from clients, then killed himself:
In Virginia, neither the State Bar nor the state courts guarantees that victims of dishonest or incompetent lawyers are fully protected.
``I thought,'' Gayle Galiney says, ``there are supposed to be systems in place to keep these sort of things from happening.''
Frank Galiney is angrier. ``The bar is definitely there for the good of the attorneys and not the good of the public,'' he says. ``They should have better checks and balances somewhere along the line.''
What went wrong?
It began with a lawsuit filed late.
Galiney owned four bowling alleys and three used-car lots, but he had a problem. He owed a lot of money to a finance company. He had guaranteed many loans from the finance company to his customers, so they could buy his cars.
But then the customers started defaulting on the loans, and Galiney was on the hook.
That was trouble. Over two years, the bad debts ran into serious money. Galiney paid back $125,000 in 1986 and 1987, according to court papers.
Galiney thought this was a fraud. He thought the finance company was making him pay off loans that had nothing to do with his car business. And the debts were threatening his businesses and his home.
So Galiney sued.
``I thought it was a simple matter,'' Galiney says. ``I was going to get my money back.''
Galiney went to a lawyer friend, Robert Steinhilber of Virginia Beach. Steinhilber passed the case to a partner, Jim Basgier, who drew up the lawsuit and filed it in Norfolk Circuit Court. That was in 1988.
For three years, the case bounced from court to court.
By the final bounce, it was too late. The last lawsuit was filed in 1991, beyond the three-year limit.
A judge threw it out. Galiney would get no money.
After an angry confrontation, the Galineys say, Basgier admitted his mistake. ``He laid it on the line,'' Gayle Galiney recalls. ``He could not find a legal remedy for the situation. He started begging and crying.''
So the Galineys struck a deal: To remedy the error, Basgier paid them $50,000 cash and agreed to pay another $131,000 over 10 years. He even signed a promissory note.
But by then, the Galineys had lost their bowling alleys, their car lots and their fancy home in Point Elizabeth. ``I lost everything over this mess,'' Frank Galiney says.
Basgier and his attorney could not be reached for comment. Basgier declined to comment after his criminal hearing in August.
Galiney acknowledges that not everything was the lawyer's fault. Galiney admits making some business mistakes that contributed to his own financial downfall. And he did not really lose everything. He and his wife still live in a comfortable house with a swimming pool near Craney Island.
Still, Galiney says, if he had known the truth about his lawsuit, he might have made different business decisions.
``Maybe I should have been smarter,'' Galiney says, ``but I relied on (him) as an officer of the court.''
After the shock wore off, the Galineys went after Basgier's legal malpractice insurance.
Nine of 10 Virginia lawyers have it. It protects them from a client's claim of injury arising from a mistake, just like a doctor's medical malpractice insurance.
But Basgier didn't have it. He had let his policy lapse, Galiney said.
That was possible because the Virginia State Bar and the Virginia Supreme Court do not require lawyers to have malpractice insurance. They simply hope that most lawyers realize the wisdom of insurance.
``We want all of our lawyers to have malpractice coverage,'' says Michael W. Smith, a Richmond attorney who is president of the State Bar. ``It doesn't make any sense not to have it. It would be similar to driving your automobile without insurance. It wouldn't be a very smart idea.''
For a while last year, in response to the Murray disaster, the bar considered requiring malpractice insurance of all lawyers. But a committee rejected the idea, saying it would ``lull the public into a false sense of security.''
``The key point here,'' the committee wrote, ``is that malpractice insurance policies currently exclude dishonest and intentional acts. Thus, mandatory malpractice insurance would have offered no protection to clients against losses like those involved in the Murray case.''
It would, however, have protected clients like Frank Galiney against sloppiness like Basgier's.
``Why don't they require lawyers to have malpractice insurance?'' Galiney asks. ``That at least would be some little benefit to the public.''
Next, the Galineys turned to a little-known State Bar fund. It is called the Client Protection Fund and it pays people who have lost money to dishonest lawyers.
But that has problems, too.
Mainly, the fund is too small - it would go broke if it paid every valid claim. So the State Bar limits how much each wronged client can collect. The cap is $25,000, no matter how big the claim.
The State Bar also will not pay more than 10 percent of the total fund to clients of any single bad lawyer. That way, one attorney's many criminal acts, like Murray's, can't break the bank.
Unfortunately, it also means that victims of one lawyer get very little compensation.
Murray's clients, for example, filed claims for millions of dollars. In the end, 23 clients split $55,000 because the fund had just $550,000 in the bank.
Bar officials know the fund is too small. ``Demands upon the fund will continue to be unmet in significant part, so long as the 10 percent limit remains in force,'' the fund's chairman wrote last year.
So the bar is trying to make it bigger. Every year, the bar is chipping in an extra $200,000 until the fund reaches $3 million. At that rate, it could take a while because the fund also is paying out about $200,000 in claims.
Still, the fund today is triple the size it was during the Murray scandal - $1.5 million, as of last month. That means it can pay up to $150,000 for one bad lawyer.
To victims of Basgier's embezzlements, the fund has already paid a total of $30,080, including one payment for the maximum $25,000. Another claim is pending.
But the Galineys got nothing.
``They told us we're not eligible,'' Gayle Galiney says. ``It's only for people that lawyers actually took money away from.''
Finally, the Galineys sought criminal restitution from Basgier.
That probably will fail, too.
In August, Basgier pleaded guilty to three counts of embezzlement. In return, prosecutors dropped one count of forgery - the only count related to the Galiney matter.
Technically, that means the Galineys are not victims of Basgier's crimes.
Despite this, a prosecutor asked Judge Edward Hanson in August to order $50,000 restitution from Basgier to Frank Galiney. ``He lost his business as a result of the defendant's actions,'' prosecutor William Monroe argued.
The judge disagreed. If the Galineys want their money, Hanson said, they will have to sue Basgier.
Hanson will officially rule on the restitution issue Oct. 10, when Basgier is formally sentenced. The plea agreement calls for no jail time, but 10 years of court-ordered good behavior.
Basgier, 44, has already lost his law license. He surrendered it in March 1993 with disciplinary charges pending at the State Bar. He now works as a title searcher.
``I really have no desire to see Jim (Basgier) go to jail,'' Frank Galiney says. ``He's going to be punished enough in life with what he's lost. In essence, he's lost more than I have. . .
``But if nothing else, he should be held accountable to everyone. I would be happy with one-third of what he owes me. Just something.'' ILLUSTRATION: MOTOYA NAKAMURA
Staff
[Color Photo]
Gayle and Frank Galiney probably won't be able to collect much from
the lawyer who misled them. He had no malpractice insurance.
PAYING FOR LAWYERS' MISDEEDS
Year-by-year payouts from the Virginia State Bar's Client Protection
Fund, in thousands of dollars.
STAFF Chart
SOURCE: Virginia State Bar
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