Nothing like being the weak link in an otherwise strong case.
I have 30 days to become a criminal prosecutor.
Jim Plowman the Commonwealth Attorney is an intimidated proud stubborn coward for not allowing me legal representation through private prosecution.
You'll do your best with a shit situation. The justice system is not looking very just here, for sure. Get plenty of sleep, that's paramount. Take some walks to help de-stress. You're doing everything you can!
ReplyDeleteCan you talk with a lawyer to lay out an outline or to generally help get your ducks in a row?
ReplyDeleteEither way....you know what you're doing. You've been living this for a long time.
You'll do great.
My lawyer is busy with a murder case so I wont be able to meet with her until a week before trial.
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DeleteI had no idea individuals could act as prosecutor. Is this common? Never heard of it.
ReplyDeleteI think only a few states allow it.
DeleteOptions for a "Commonwealth v. " case (remember I'm not suing, I made a complaint about criminal activity to the magistrate in Loudoun County)
1. A Commonwealth Attorney prosecutes (or assistant commonwealth attorney)
2. The Commonwealth Attorneys office grants private prosecution which means a private attorney/lawyer will prosecute
3. None of the above and it falls on the complainant
The commonwealth won't prosecute the case and won't grant my lawyer the ability to privately prosecute.
They want me to stumble through it on my own.
The Commonwealth and County stand to lose quite a bit if Sandy Lerner is found guilty.
You need to petition for a writ of mandamus
ReplyDeletehttps://www.law.cornell.edu/wex/mandamus
A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. (See, e.g. Cheney v. United States Dist. Court For D.C. (03-475) 542 U.S. 367 (2004) 334 F.3d 1096.)
Contemporaneously you need a change of venue because the commonwealth won't prosecute the case. Or removal to federal court.
"The Commonwealth and County stand to lose quite a bit if Sandy Lerner is found guilty." How so?
"....won't grant my lawyer the ability to privately prosecute". Looks like your lawyer gave up, unless there is more to the story. Ask for standby counsel instead.
You have a right to "due process". Fifth Amendment, Fourteenth Amendment, Powell vs. Alabama, 287 U.S. 45, 69 (1932) [US Supreme Court Case].
"The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures...."
https://www.law.cornell.edu/wex/due_process
Anything less than representation by counsel, in a civil or criminal case, is a denial "...of due process in the constitutional sense…" Powell vs. Alabama, 287 U.S. 45, 69 (1932). This case is monumental beyond its narrow reading by the bench and bar as a criminal case.
https://www.law.cornell.edu/supremecourt/text/287/45
"The right [p69] to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."
Read up on private prosecution in VA. My lawyer didn't give up. Standing before a judge with the an assistant commonwealth attorney to our right we were denied our request for private prosecution.
Deletehttp://crimlaw.blogspot.com/2014/02/private-prosecutors.html?m=1
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DeleteThe parameters within which the Commonwealth attorney operates are generally laid out in Va. Code Sec. 15.2-1627 - most specifically in subsection (B):
DeleteB. The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.
So, the CWA has power over all charges starting at class 3 misdemeanors (maximum punishment $500).
One argument is the CA doesn't have jurisdiction over a misdemeanor 4...my lawyer argued they can't move to dismiss a case they don't have jurisdiction over.
I don't want the CA office to prosecute this case even if they could. They didn't bring charges and then moved to have the charges dismissed...what type of half ass prosecuting would that result in?
They can allow private prosecution, they denied my request and it is in their power to do so...though maybe not for a misdemeanor 4.
You need to petition for a writ of mandamus
Deletehttps://www.law.cornell.edu/wex/mandamus
A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. (See, e.g. Cheney v. United States Dist. Court For D.C. (03-475) 542 U.S. 367 (2004) 334 F.3d 1096.)
BTW, I don't have time to read up on "private prosecution in VA".
"My lawyer didn't give up. Standing before a judge with the an assistant commonwealth attorney to our right we were denied our request for private prosecution."
FYI: Judges always talk shit. Did lawyer preserve the issue for appeal, or file a petition for writ of mandamus? Or is lawyer a "one trick pony"?
Rules for a private prosecutor as laid out in Riner v. Commonwealth, 268 Va. 296 (2004):
Delete1. He may not initiate a prosecution.
2. He may not appear before the grand jury.
3. He may appear only by leave of the trial court.
4. He may participate only with the express consent of the public prosecutor.
5. He may make a closing jury argument only in the court's discretion.
6. He may take no part in a decision to engage in plea bargaining.
7. He may take no part in deciding the terms of a plea bargain.
8. He may not make the decision to accept a plea of guilty to a lesser crime.
9. He may not make the decision to enter a nolle prosequi.
10. Automatic disqualification: A private prosecutor who has a civil interest in the case so infects the prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. Allowing that private prosecutor violates the defendant's due process rights under Article I, §11 of the Constitution of Virginia.
11. Work Allowed to Do: (a) There is no arbitrary limitation as to the proportion of work which may be done by a private prosecutor. (b) Limiting private prosecutors to innocuous witnesses and evidentiary matters would effectively abrogate the common-law principle that still permits their appointment.
12. ULTIMATE RULE: The public prosecutor must remain in continuous control of the case.
https://www.law.cornell.edu/supremecourt/text/287/45
DeleteThat references a defendants right to council. Not a complainants.
You have a reading problem Meredith. You are WRONG!
Delete"If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party [a PARTY Meredith] by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."
https://www.law.cornell.edu/supremecourt/text/287/45
PARTIES "The persons who are directly involved or interested in any act, affair, contract, transaction, or legal proceeding; opposing litigants."
http://legal-dictionary.thefreedictionary.com/Parties
Okay Meredith, admit you are WRONG!
Again Meredith, read carefully,
Delete"(2) the fact that hiring a private attorney to prosecute"
at the link you provided,
http://crimlaw.blogspot.com/2014/02/private-prosecutors.html?m=1
talks about hiring a private attorney to act as a private prosecutor, which can be denied. Okay, you got denied. That's the law as quoted at your link. So what's the big stink about me reading it, or me not reading it? You don't understand what it means!
YOU are not an attorney.
YOU are not a private prosecutor.
YOU are a non-lawyer appearing pro se.
The law is unconstitutional because you are a non-lawyer "party" and have been denied assistance of counsel.
"If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party [a PARTY Meredith] by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."
Powell vs. Alabama, 287 U.S. 45, 69 (1932)
https://www.law.cornell.edu/supremecourt/text/287/45
Maybe the Virginia law is unconstitutional? I can't pay a lawyer to investigate that. Perhaps that can be someone else's passion project. Maybe if I drown representing this case myself I'll make it mine.
DeleteRight now with the resources I have Sandys trial is occurring in 3 weeks and I need to prepare the best I can.
Maybe the Virginia law is unconstitutional? I can't pay a lawyer to investigate that. Perhaps that can be someone else's passion project. Maybe if I drown representing this case myself I'll make it mine.
DeleteRight now with the resources I have Sandys trial is occurring in 3 weeks and I need to prepare the best I can.
You are acting as a private attorney general (with counsel) in the public interest. Crimes are an affront to society, and if not prosecuted, are the equivalent of being "deprived of life, liberty or property without due process of law."
ReplyDeletehttps://en.wikipedia.org/wiki/Private_attorney_general
Law Review, Important Rights, and the Private Attorney General Doctrine.
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2033&context=californialawreview
ANIMALES CHILENOS.
ReplyDeletehttp://www.animaleschilenos.org/
Eternal Treblinka in Chile.
https://youtu.be/AZkMBcGj08Y
A short and minimal film about my experience with animals condemned to death in Chile. The most perfect creatures sent to their deaths after a short painful life in captivity. The reason I think for our violent political past and the reason we cannot ever be happy as a nation. The perpetual abuse and cruelty towards our animal brothers and sisters. The short piece carries the name of the book by Charles Patterson, "Eternal Treblinka" a book that has changed my life.
http://www.charleswpatterson.com/
http://adrianadelagarza.blogspot.com/
Veterinaria en Feria de Melipilla.
https://youtu.be/V16YEk2L3Zk
Futuro Vega Pop - Quiero vivir (nice pig video)
https://youtu.be/6xOOoQU015A
Don't have time to watch movies about your experiences in Chile. Thanks for sharing. Maybe another time.
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