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View Full Version : Preparing the Appeal - Ideas and Collaboration are Key!


Theseus
12-20-2009, 12:51 AM
There are some here that have suggested that I not pursue an appeal because there is a good chance it will make bad case law.

Believe me when I say that I have considered the risks and the potential reward.

Here is why I decided to appeal.

If I do nothing than a DA can arbitrarily cite people for 626.9 violations as it suits them, i.e. against open carriers but not against Gun-Buybacks.

If I fight and lose then sure there is some damage done, but only as it effects open carry on private property open to the public. The extremely limited scope of my case would inconvenience few.

If I fight and win then we have at the very least established a limit and prevented the DA from arbirtary enforcement against us or possibly even getting 626.9 ruled unconstitutional.

Also, don't forget that I also have grounds to challenge 12031, 12025 because those were the reasons that the police said they had authority to detain me in the first place.

It has been made pretty clear the "the right people" are not going to provide any support more than they have even after incorporation because it isn't their fight on their terms. I understand they have their agenda and I can't fault them for that. They have facilitated me up until now and for that I am appreciative.

The purpose of this thread though is to ask you. . . I intend to collaborate and draw from the brain trust of Calguns.net. I wish to use you to help develop an appeal that will win. I would like to try and make this so easy for my appeals attorney that all he would need to do is put it in the right order and file it.

This means I will need legal research, collaboration, and basically some sweat equity from you all.

Basically what I am asking is if I can count on you to assist me? And, should this collaboration and brain picking be done here, or should we move it to my web forum?

kf6tac
12-20-2009, 1:11 AM
You should definitely move it elsewhere, preferably someplace where you control who can view the content.

Purple K
12-20-2009, 1:31 AM
Never show your hand.

snobord99
12-20-2009, 1:40 AM
Never show your hand.

He's going to show his hand before the oral argument whether he likes it or not.

kf6tac
12-20-2009, 1:59 AM
He's going to show his hand before the oral argument whether he likes it or not.

Better to show your hand on the day that your brief is due than to show it long beforehand.

snobord99
12-20-2009, 2:13 AM
Better to show your hand on the day that your brief is due than to show it long beforehand.

And you really think that the AG's arguments are going to be that much worse if they "only" have a month to do the research and writing? Enough that the input of, let's say, 20 people who actually post would be less helpful?

sholling
12-20-2009, 2:21 AM
I'll make three comments then shut up.

With all due respect - this appeal isn't a job for amateurs handing off what they think is a "prepackaged can't loose case" to a so-so attorney. If you are going to do this thing then you need to do it right and that means with the services of a top flight specialist in firearms related appeals. He or she won't need or want you doing leg work.
I would discuss with that top flight attorney the pluses and minuses of waiting for resolution of McDonald before proceeding with the appeal. Incorporation could make a huge difference in both cost and the chance of success. I personally would want to wait.
Keep the details of your appeal between you and your attorney, and maybe with the attorney's permission only experts Gene might recommend. He/she might want to keep all discussions covered by attorney-client privilege.

kf6tac
12-20-2009, 2:46 AM
And you really think that the AG's arguments are going to be that much worse if they "only" have a month to do the research and writing? Enough that the input of, let's say, 20 people who actually post would be less helpful?

Who knows? But even if doesn't make a difference, is there really any compelling reason to put into the public domain work that would constitute attorney-client communications and/or attorney work product if it had been conducted by an attorney? As you've implied, it's not likely that we're talking about a large number of people who will actually have useful input; those who are willing to commit to the extent necessary to actually contribute meaningfully will more than likely not be significantly inconvenienced by having to get set up to discuss on a more private forum, so even if there's only a miniscule probability that the opposition will be affected by a time crunch, there isn't exactly much to lose by taking a little extra precaution.

Theseus
12-20-2009, 9:47 AM
I'll make three comments then shut up.

With all due respect - this appeal isn't a job for amateurs handing off what they think is a "prepackaged can't loose case" to a so-so attorney. If you are going to do this thing then you need to do it right and that means with the services of a top flight specialist in firearms related appeals. He or she won't need or want you doing leg work.
I would discuss with that top flight attorney the pluses and minuses of waiting for resolution of McDonald before proceeding with the appeal. Incorporation could make a huge difference in both cost and the chance of success. I personally would want to wait.
Keep the details of your appeal between you and your attorney, and maybe with the attorney's permission only experts Gene might recommend. He/she might want to keep all discussions covered by attorney-client privilege.


I can tell you pretty definitively that #1 won't happen unless I happen to be fortunate enough to either 1. come into large quantities of money, or 2. the court appointed attorney happens to be a top flight specialist in firearms related appeals.

Due to this fact I must prepare what I can for them so that I am not stuck with an uncooperative lawyer that can't handle the case properly. By working together we can help ensure that the case is winnable.

#2 is part of the strategy, but McDonald will have little effect on my case in the direct sense. The real strength McDonald provides for me is the right to sue in Federal court as a civil issue.

RandyD
12-20-2009, 10:16 AM
When litigating a case in the Superior Court, you attempt to disclose your evidence when it is most advantageous to you. On appeal, you will not be admitting new evidence, it is a review of what transpired in the lower court. So, discussing points in this site may be an advantage, especially since it appears you are going in proper. In regards to who represents you, I strongly suggest that you find a way to get an experienced appellate attorney. Many times that makes a significant difference in how your case is perceived, handled and resolved.

bodger
12-20-2009, 10:18 AM
It sounds like you're going to have an attorney handling the appeal.

If you ask that attorney, top flight firearms lawyer or not, whether or not you should post the details of the case on a public forum, I'm sure you'll get an opinion and follow that legal advice and direction.

I don't have much experience with the courts, just my opinion.

sholling
12-20-2009, 11:09 AM
I can tell you pretty definitively that #1 won't happen unless I happen to be fortunate enough to either 1. come into large quantities of money, or 2. the court appointed attorney happens to be a top flight specialist in firearms related appeals.
Then in my opinion you have an unwinnable appeal and will only do damage to others through setting negative precedent. As the old saying goes "any attorney that represents himself has a fool for a client" and that is exactly what you propose to do only by proxy. Frankly it does a disservice to fellow gun owners because when you lose - and you likely will, then you set this ruling in stone. Exactly what the DA wants. It may be exciting to fight the good fight but do you really want to go down in gun rights history as the layman version of Gary Gorski? In my opinion (with all respect) you got yourself into this mess and your probation will be over before you know it.

#2 is part of the strategy, but McDonald will have little effect on my case in the direct sense. The real strength McDonald provides for me is the right to sue in Federal court as a civil issue.
McDonald (if successful) extends the to keep and bear arms to the states. That gives you a leg to stand on. Under current law you had no right to bear arms. The two California RTKBA challenges will follow quickly and further bolster any argument giving you some sort of chance. But that's just my layman's opinion. Take it for what any free opinion is worth - nothing.

Okay I'm out of this thread. Best wishes to you whatever you decide to do.

Steve

wildhawker
12-20-2009, 11:33 AM
I suggest, at a minimum, moving this to an access-controlled forum or Google Wave-type collaboration environment.

snobord99
12-20-2009, 11:42 AM
I suggest, at a minimum, moving this to an access-controlled forum or Google Wave-type collaboration environment.

This may be a good idea.

GrizzlyGuy
12-20-2009, 11:43 AM
I'm willing to donate sweat equity to help, but INAL, so I don't know how much value I could really provide.

Have you searched around to try to find other pro bono legal aid sources? If you could find some, you'd not only get free sweat equity, but it would be from people who are qualified and experienced. Over here (http://www.calguns.net/calgunforum/showpost.php?p=3519091&postcount=893), I mentioned maybe contacting Cato and seeing if they could help (or maybe refer you somewhere).

Anyhoo, it's your case and your call, ping me if you want some unqualified but willing and sympathetic help. :)

snobord99
12-20-2009, 11:48 AM
Who knows? But even if doesn't make a difference, is there really any compelling reason to put into the public domain work that would constitute attorney-client communications and/or attorney work product if it had been conducted by an attorney? As you've implied, it's not likely that we're talking about a large number of people who will actually have useful input; those who are willing to commit to the extent necessary to actually contribute meaningfully will more than likely not be significantly inconvenienced by having to get set up to discuss on a more private forum, so even if there's only a miniscule probability that the opposition will be affected by a time crunch, there isn't exactly much to lose by taking a little extra precaution.

As someone already mentioned, this is now in its appellate stage, not the trial stage. I understand where you're coming from with the a/c communications and work product, but unlike a trial, there's much less "strategy" involved and all the facts that are to be discussed are on the record already. At this point it's just a matter of legal arguments, there's no real "surprise" strategy involved.

As far as people having meaningful input, anyone can have meaningful input. Is everyone an attorney? No. But if he's dealing with only a few attorneys, they could easily overlook an argument that a simple layman may see because the layman is not as clouded by any preconceived notions of what the law may or may not be. One of the best things you can do to prepare for an appeal is to bounce ideas around. Obviously some people will be more helpful than others, but what you're looking for is that one stroke of brilliance that can come from anyone.

At the end of the day, getting your lawyer's input is probably the best way to go before you decide on what to do.

383green
12-20-2009, 11:53 AM
Theseus, I agree with both sholling and wildhawker. I have a number of Google Wave invites that I can donate to the cause, but I don't want to be involved in the conversation otherwise, as I have nothing constructive to add.

Theseus
12-20-2009, 8:33 PM
Then in my opinion you have an unwinnable appeal and will only do damage to others through setting negative precedent. As the old saying goes "any attorney that represents himself has a fool for a client" and that is exactly what you propose to do only by proxy. Frankly it does a disservice to fellow gun owners because when you lose - and you likely will, then you set this ruling in stone. Exactly what the DA wants. It may be exciting to fight the good fight but do you really want to go down in gun rights history as the layman version of Gary Gorski? In my opinion (with all respect) you got yourself into this mess and your probation will be over before you know it.

From this it sounds like you thing that I will not be getting a lawyer? That is not the case. I will have a lawyer.


McDonald (if successful) extends the to keep and bear arms to the states. That gives you a leg to stand on. Under current law you had no right to bear arms. The two California RTKBA challenges will follow quickly and further bolster any argument giving you some sort of chance. But that's just my layman's opinion. Take it for what any free opinion is worth - nothing.

Okay I'm out of this thread. Best wishes to you whatever you decide to do.

Steve[/quote]
Having a right to keep and bear only allows me the 2nd A argument I raised at trial. . . it would be nice to have it at appeal. . . but am pretty sure my case will do just fine without it.

RandyD
12-20-2009, 9:02 PM
I am glad to hear that you will have an attorney. In my experience, as I expressed earlier in this thread, the more experienced your attorney is, the better your chances are for a successful outcome. An attorney's reputation and skill in front of your appellate panel has an affect on the outcome.

Mulay El Raisuli
12-21-2009, 6:45 AM
If I fight and win then we have at the very least established a limit and prevented the DA from arbirtary enforcement against us or possibly even getting 626.9 ruled unconstitutional.

Also, don't forget that I also have grounds to challenge 12031, 12025 because those were the reasons that the police said they had authority to detain me in the first place.




If I were you, I would appeal & I would keep it here. As pointed out already, there aren't any real surprises in appellate law, so 'showing your hand' isn't really a problem.

I see no value in waiting either. You're not going to win in the PRK courts. You need to get to the Federal courts. McDonald will most likely be decided just about the time you're ready to get there. IE, your timing is just about perfect.

I think that there is value in flooding the courts with 2A cases. Just as Brown v. Board of Education didn't answer every question & it took the follow-on cases to do that, Heller & McDonald didn't & won't answer every question either. Most importantly, your case a "and bear" case. More specifically, your case is a "and bear" case that does NOT involve getting any kind of permit. Something that no one else seems to be fighting for. So, while part of the 'flood,' you still stand out & just might be THE case that settles (in a good way) that particular issue.

Just my opinion. Offered for whatever value you see in it.


The Raisuli

Theseus
12-24-2009, 9:38 AM
Remembrance bump. .. let me know what you think!

Theseus
01-11-2010, 11:32 AM
So not a lot of interest in this thread, but the "keep it the hell away from us" votes have it. I will be setting up a communication forum intended expressly for this purpose in a few days.

Grakken
01-11-2010, 12:01 PM
So I take it there is a reason as to why the normal CGN legal beagles aren't touching this?

Theseus
01-11-2010, 12:44 PM
They have made it pretty clear to me their issues and I don't fault them for their decision to not provide any more support than they did. I won't speak for them, but I know they are with me in spirit hoping for a positive outcome.

And to my understanding they can supply a brief or something in support of my case, but there is little they can actually do for me at this point apart from supporting a civil case.

MindBuilder
01-11-2010, 1:31 PM
I think there may not be much to loose by an appeal here. Either the courts will recognize our right to carry loaded in school zones after McDonald, or California will ban open carry in public places and expand school zones out to a hundred miles. Either way, the precedent in this case won't have an effect for long.

The only way I can see a problem is if this is the first public carry case to be appealed, and the fact that it was in a school zone tips an undecided judge the wrong way. That seems unlikely.

If we get shall issue from Sykes, then again this case will be of little importance to the rest of us. I'm a little worried about the Sykes theory of equal protection though. I doubt the courts will give much weight to the idea that if the Sheriff was being paid to give permits to some citizens, then permits should be given to all citizens. That's like saying if the Sheriff was being bribed to let certain people out of jail then every prisoner should be released. You've got to remember that anti-gun judges generally recognize the need for certain people like politicians to get carry permits, but they don't think the general public has the same need.

The best argument in favor of concealed carry that I can think of, is that while legislatures may have thought it reasonable to infringe the 2nd before there was good statistics for them to really know, it is now clear from the legalizations in many states that infringement of the 2nd can no longer be justified. Additionally, while concealed carry was considered devious in the past, it is now open carry that is considered uncivilized by some.

Theseus
01-11-2010, 5:55 PM
The best argument in favor of concealed carry that I can think of, is that while legislatures may have thought it reasonable to infringe the 2nd before there was good statistics for them to really know, it is now clear from the legalizations in many states that infringement of the 2nd can no longer be justified. Additionally, while concealed carry was considered devious in the past, it is now open carry that is considered uncivilized by some.

No. I don't want concealed carry! I want to show off the piece of metal I used to compensate for my small genitalia!

But in all seriousness, the Constitution isn't supposed to apply differently because of the changes in perception of civility. My opinion is that one of the two forms of carry should be unlicensed. Although I would prefer both CC and OC to be unlicensed I do realize that only one can be. I don't care witch, but I believe that at least one should be available without interference from the government.

Meplat
01-11-2010, 9:50 PM
Theseus:

I am not even close to being a lawyer, but. I think your case is important. As I see it the crux of the injustice of your case is the fact that the law says that the perpetrator knew, ‘or should have known’, that he was in a GFSZ. I see from past threads that the DA in no meaningful way addressed this issue of “knowing”. I don’t think they adequately addressed this point. The contacting officers didn’t even ‘know’. Where is it written that the policed need to know more than the police? I think this is an important case for civil liberties.

Have you considered seeking the help of pro 2nd attorneys like Davis? Also, is there some way I could donate (very meagerly) to your appeal?


No. I don't want concealed carry! I want to show off the piece of metal I used to compensate for my small genitalia!

But in all seriousness, the Constitution isn't supposed to apply differently because of the changes in perception of civility. My opinion is that one of the two forms of carry should be unlicensed. Although I would prefer both CC and OC to be unlicensed I do realize that only one can be. I don't care witch, but I believe that at least one should be available without interference from the government.

snobord99
01-12-2010, 1:24 AM
I am not even close to being a lawyer, but. I think your case is important. As I see it the crux of the injustice of your case is the fact that the law says that the perpetrator knew, ‘or should have known’, that he was in a GFSZ. I see from past threads that the DA in no meaningful way addressed this issue of “knowing”. I don’t think they adequately addressed this point. The contacting officers didn’t even ‘know’. Where is it written that the policed need to know more than the police?

How accurate is this statement? From reading the record, my impression is that the officers knew that he was less than 1,000 ft from a school. What they didn't know was that it was a "crime" or which PC made it a crime.

Also, the DA addressed the knowledge issue with photos of the school and the "school" signs in the area. That's more than enough evidence to establish the knowledge element if the jury thinks it is...

JeffM
01-12-2010, 2:22 AM
I'll make three comments then shut up.

With all due respect - this appeal isn't a job for amateurs handing off what they think is a "prepackaged can't loose case" to a so-so attorney. If you are going to do this thing then you need to do it right and that means with the services of a top flight specialist in firearms related appeals. He or she won't need or want you doing leg work.
I would discuss with that top flight attorney the pluses and minuses of waiting for resolution of McDonald before proceeding with the appeal. Incorporation could make a huge difference in both cost and the chance of success. I personally would want to wait.
Keep the details of your appeal between you and your attorney, and maybe with the attorney's permission only experts Gene might recommend. He/she might want to keep all discussions covered by attorney-client privilege.


Then in my opinion you have an unwinnable appeal and will only do damage to others through setting negative precedent. As the old saying goes "any attorney that represents himself has a fool for a client" and that is exactly what you propose to do only by proxy. Frankly it does a disservice to fellow gun owners because when you lose - and you likely will, then you set this ruling in stone. Exactly what the DA wants. It may be exciting to fight the good fight but do you really want to go down in gun rights history as the layman version of Gary Gorski? In my opinion (with all respect) you got yourself into this mess and your probation will be over before you know it.


McDonald (if successful) extends the to keep and bear arms to the states. That gives you a leg to stand on. Under current law you had no right to bear arms. The two California RTKBA challenges will follow quickly and further bolster any argument giving you some sort of chance. But that's just my layman's opinion. Take it for what any free opinion is worth - nothing.

Okay I'm out of this thread. Best wishes to you whatever you decide to do.

Steve

^I Agree. Couldn't have said it better.


Suck it up and do the time. You were ill equipped to step out and OC, were warned against the risks, and did so anyway without the support of "the right people"


The time to listen to the people here for guidance and advice has long since past.


The ability to exercise our Second Amendment rights is moving forward at a set pace. Unfortunately it's moving on without you. Moving forward on your own has got you here. Do you really want to dig the hole deeper?


Sometimes the best one can hope for is to serve as an example to others of what not to do.

Kharn
01-12-2010, 3:29 AM
What is the last day you can file your appeal? June '10 is not far away and McDonald could drastically change your case.

snobord99
01-12-2010, 7:42 AM
What is the last day you can file your appeal? June '10 is not far away and McDonald could drastically change your case.

I believe he had 60 days from the date of conviction to appeal which would mean his deadline to file was a week ago. In either case, he said it's already been filed so this doesn't matter so much.

BobB35
01-12-2010, 8:00 AM
^I Agree. Couldn't have said it better.


Suck it up and do the time. You were ill equipped to step out and OC, were warned against the risks, and did so anyway without the support of "the right people"


The time to listen to the people here for guidance and advice has long since past.


The ability to exercise our Second Amendment rights is moving forward at a set pace. Unfortunately it's moving on without you. Moving forward on your own has got you here. Do you really want to dig the hole deeper?


Sometimes the best one can hope for is to serve as an example to others of what not to do.

Other than saying wow...don't really know how to respond to this.

You are familiar with the way this case played out CORRECT? I mean come on, if the judge can order the jury to ignore the facts of the case the outcome was guaranteed. What do you think would happened in some other case if the judge gets to act the same way.

The holy rollers here with a suck it up attitude really need to think twice about what they are saying. It is almost as bad as the slavish sentiment of the admin when it comes to LEOs. Thought this was a forum about gun rights and how to regain those, not blind obedience to the government, guess I was wrong.

Theseus
01-12-2010, 8:02 AM
^I Agree. Couldn't have said it better.


Suck it up and do the time. You were ill equipped to step out and OC, were warned against the risks, and did so anyway without the support of "the right people"


The time to listen to the people here for guidance and advice has long since past.


The ability to exercise our Second Amendment rights is moving forward at a set pace. Unfortunately it's moving on without you. Moving forward on your own has got you here. Do you really want to dig the hole deeper?


Sometimes the best one can hope for is to serve as an example to others of what not to do.

Thanks, but wasn't asking.

Meplat
01-12-2010, 9:30 PM
How accurate is this statement? From reading the record, my impression is that the officers knew that he was less than 1,000 ft from a school. What they didn't know was that it was a "crime" or which PC made it a crime.

Very easy to claim after the fact. And Mark Ferman never used the N word.:tt2:


Also, the DA addressed the knowledge issue with photos of the school and the "school" signs in the area. That's more than enough evidence to establish the knowledge element if the jury thinks it is...

Ya, right.:p

snobord99
01-12-2010, 10:24 PM
Very easy to claim after the fact. And Mark Ferman never used the N word.:tt2:

Sure, except they presented evidence that Fuhrman did use the N word. There was no evidence contradicting that the officers knew they were within 1,000 feet of a school.

Ya, right.:p

Trust me, the photos were more than enough evidence for the verdict to not be overturned on these grounds. This is what will happen on appeal: "Evidence was submitted that showed signs in the area indicating that a school was nearby. The jury obviously accepted that this was enough to establish that Defendant knew or should have known he was in a school zone because they convicted him."

Theseus
01-12-2010, 10:49 PM
Sure, except they presented evidence that Fuhrman did use the N word. There was no evidence contradicting that the officers knew they were within 1,000 feet of a school.



Trust me, the photos were more than enough evidence for the verdict to not be overturned on these grounds. This is what will happen on appeal: "Evidence was submitted that showed signs in the area indicating that a school was nearby. The jury obviously accepted that this was enough to establish that Defendant knew or should have known he was in a school zone because they convicted him."

But I also have testimony that the police had no idea which way I went, and that of the 6 ways to get to the laundry mat, only one of them was marked in the manner that would indicate to me the presence of a school. We have more testimony that although you might be able to see a school building, there is no indication that it is a school. The police officers even testified that if you didn't know there was a school there it would be hard to tell.

Talk about reasonable doubt! When we pointed this out to the jury the DA rebutted with a charming anecdotal story about where the term "red-herring" came from.

The argument was essentially, "He lives in Alhambra so he HAD to know there was a school there. So there are 6 ways to get there and only 1 indicates a school. You are supposed to infer that he took the one and convict!"

Not that this means anything. . . Apparently a 1 in 6 chance to a jury is beyond a reasonable doubt.

snobord99
01-12-2010, 11:00 PM
But I also have testimony that the police had no idea which way I went, and that of the 6 ways to get to the laundry mat, only one of them was marked in the manner that would indicate to me the presence of a school. We have more testimony that although you might be able to see a school building, there is no indication that it is a school. The police officers even testified that if you didn't know there was a school there it would be hard to tell.

Talk about reasonable doubt! When we pointed this out to the jury the DA rebutted with a charming anecdotal story about where the term "red-herring" came from.

The argument was essentially, "He lives in Alhambra so he HAD to know there was a school there. So there are 6 ways to get there and only 1 indicates a school. You are supposed to infer that he took the one and convict!"

Not that this means anything. . . Apparently a 1 in 6 chance to a jury is beyond a reasonable doubt.

Yup. Sadly, the appeals court is going to say the jury weighed your evidence against theirs and obviously accepted theirs because they convicted you. Courts of appeal aren't allowed to consider the weight of the evidence; only if there was a total lack of evidence.

Theseus
01-12-2010, 11:11 PM
Well, that was a short appeal. My application for appointed counsel was denied. Without the ability to pay for an attorney my appeal is basically done.

That was quick!

artherd
01-12-2010, 11:51 PM
The Appeal will not address the finding of fact on 'knowing' - that was already decided sadly.

This isn't a lower court case, so dropping your pants early isn't that detrimental. There may be some real benefit to discussing it here.

CGF may provide an Amicus - but we don't have the $ to fund this case and it's largely tangental. Theseus is lucky that he has some issues to appeal upon in the first place, that is the job of representation in a Superior court.

GUNPAL would be happy to set up a donation account expressly for this however. I will raise the issue at CGF for making it a pass-thru with exempt status however we are not able to do so yet.

artherd
01-12-2010, 11:53 PM
Well, that was a short appeal. My application for appointed counsel was denied. Without the ability to pay for an attorney my appeal is basically done.

That was quick!

I wouldn't give up - get some bids with worst-case numbers, then raise that. You have an SOL to file so make it quick.

Matt C
01-13-2010, 12:06 AM
Well, that was a short appeal. My application for appointed counsel was denied. Without the ability to pay for an attorney my appeal is basically done.

That was quick!

That is unfortunate. Can that be appealed? If you are able to find representation somehow, I would be happy to collaborate with you on your argument(as a non-attorney of course) and help with any research that I can.

MindBuilder
01-13-2010, 12:23 AM
An appeal can be made as easily as scribbling your argument on a piece of paper and handing it to the judge's clerk. If I recall correctly, it has been ruled that even if a person can't figure out the filing process and can't afford an attorney, they still can't be denied justice, and the court must consider the case. But I think maybe appeals courts can refuse to hear appeals if they don't want, and they may be much more likely to if you represent yourself, which judges are said to hate. And of course if you are going to do your own appeal you should do your best to follow the procedures. You might get some examples at the court house of papers filed by lawyers in similar cases, that you can use as a pattern. I expect it's very likely you'll get some amicus briefs by professional layers to help your side. There are of course books on how to represent yourself.

There is the saying that the person who represents himself has a fool for a client. But that is promoted mostly by lawyers. I heard of a study that in someplace like Mississippi, people who represented themselves actually had better success than those with lawyers. Of course the law is extremely complicated and tricky, so a lawyer is highly advisable if you can afford one. In fact the law is so tricky, it is important that you not only get any old lawyer, but you need to be careful to find a lawyer who is actually a good one. But if you can't afford a lawyer, then who's the fool, the one who represents himself or the one who gives up? If you were still facing conviction, then I'd say you really should get a lawyer, but if you're already convicted, then I don't see you have much more to loose. You should check though to see if you might be on the hook for court costs or if this could go badly for you in some other way. Prisoners sometimes win lawsuits, why shouldn't you?

Even if you loose your appeals, at least you might be able to drag it out till McDonald comes back. Then you may be able to restart the appeals process on the 2nd Amendment issue and drag that out till open carry bans in school zones are struck down. In fact you may not even have to work the system in order to drag it out. If you just ask the judge to delay your appeal until Nordyke comes back, the appeals court may put your case on hold.

I'm not a lawyer and I don't know the law very well, and I don't know all the important details of your case, so I could easily be wrong about all this. Don't take this as legal advice, that would be stupid. Think of it more as food for thought.

N6ATF
01-13-2010, 12:25 AM
Well, that was a short appeal. My application for appointed counsel was denied. Without the ability to pay for an attorney my appeal is basically done.

That was quick!

Sentencing was yesterday.

3 Years summary probation.

No search waiver.

Weapons condition, which is believed to not be enforceable in any state other than California.

Total $1200 fines & assessments, 5 days CalTrans - suspended until June or completion of appeal.

So can you afford to leave the state and assume full self-defense preparedness after all this? (As I think you said you planned post-appeal failure)

Mulay El Raisuli
01-13-2010, 7:42 AM
An appeal can be made as easily as scribbling your argument on a piece of paper and handing it to the judge's clerk. If I recall correctly, it has been ruled that even if a person can't figure out the filing process and can't afford an attorney, they still can't be denied justice, and the court must consider the case. But I think maybe appeals courts can refuse to hear appeals if they don't want, and they may be much more likely to if you represent yourself, which judges are said to hate. And of course if you are going to do your own appeal you should do your best to follow the procedures. You might get some examples at the court house of papers filed by lawyers in similar cases, that you can use as a pattern. I expect it's very likely you'll get some amicus briefs by professional layers to help your side. There are of course books on how to represent yourself.

There is the saying that the person who represents himself has a fool for a client. But that is promoted mostly by lawyers. I heard of a study that in someplace like Mississippi, people who represented themselves actually had better success than those with lawyers. Of course the law is extremely complicated and tricky, so a lawyer is highly advisable if you can afford one. In fact the law is so tricky, it is important that you not only get any old lawyer, but you need to be careful to find a lawyer who is actually a good one. But if you can't afford a lawyer, then who's the fool, the one who represents himself or the one who gives up? If you were still facing conviction, then I'd say you really should get a lawyer, but if you're already convicted, then I don't see you have much more to loose. You should check though to see if you might be on the hook for court costs or if this could go badly for you in some other way. Prisoners sometimes win lawsuits, why shouldn't you?

Even if you loose your appeals, at least you might be able to drag it out till McDonald comes back. Then you may be able to restart the appeals process on the 2nd Amendment issue and drag that out till open carry bans in school zones are struck down. In fact you may not even have to work the system in order to drag it out. If you just ask the judge to delay your appeal until Nordyke comes back, the appeals court may put your case on hold.

I'm not a lawyer and I don't know the law very well, and I don't know all the important details of your case, so I could easily be wrong about all this. Don't take this as legal advice, that would be stupid. Think of it more as food for thought.


All of this is true. The most true part is that you have nothing to lose by trying. Literally & truly, it can't get any worse. So, you have nothing to lose by going pro per.

Also, what I said before is also still true. Incorporation is just around the corner. Even a badly handled appeal can win once that issue is settled.


The Raisuli

Mulay El Raisuli
01-13-2010, 7:44 AM
But in all seriousness, the Constitution isn't supposed to apply differently because of the changes in perception of civility. My opinion is that one of the two forms of carry should be unlicensed. Although I would prefer both CC and OC to be unlicensed I do realize that only one can be. I don't care witch, but I believe that at least one should be available without interference from the government.


And that's my problem with Palmer. OTOH, Gura's concession on this point may just be strategy.


The Raisuli

snobord99
01-13-2010, 7:52 AM
Well, that was a short appeal. My application for appointed counsel was denied. Without the ability to pay for an attorney my appeal is basically done.

That was quick!

Damn. That sucks. Sorry to hear.

AJAX22
01-13-2010, 8:05 AM
What exactly are you looking to argue on appeal?

My comprehension of this aspect of law is limited... but I was under the impression that the facts of the case are decided in lower courts and appeals is limited to procedural issues surrounding the arrest/detention/and subsequent trial.

Theseus
01-13-2010, 10:41 AM
The only reason I considered appeal was to vindicate myself and my lawyer. With a lawyer we believed I stood a fair chance at getting that vindication and making good case law.

If I do fight and lose it could make bad case law and that is not a risk I am willing to take on my own. Contrary to the name calling I am not a Gorski . . . or whatever his name was. There does come a time when you have to accept defeat.

I am still seeking other options, and will not accept defeat yet. It is expected to cost about $15K to hire a respected appellate lawyer and obtain the trial transcripts needed to file a proper appeal.

As for the arguments, I believe the strongest one is basically notice, followed closely by being denied a mistake of fact defense.

AJAX22
01-13-2010, 1:21 PM
could you elaborate on the notice and the being denied a mistake of fact defense?

how does that come into play? what can you cite with regard to prior appellate decisions on the subject?

(I'm not trying to be a dick, I just really have poor comprehension of appellate law)

MindBuilder
01-13-2010, 1:32 PM
I didn't mean to imply that you'd be a quitter by my statement about giving up. If you are not too upset about living with the conviction then it may be a good idea to take one for the team to avoid bad precedent. But you still might want to consider my idea about asking for an extension to file your appeal until Nordyke comes back. The courts have delayed several other cases waiting for Nordyke, so why shouldn't they delay yours? Indeed, your entire appeal at this point could be no more than simply asking for such an extension. I expect it would be cheap or free to ask for such an extension, and I see no down side.

Theseus
01-13-2010, 1:41 PM
could you elaborate on the notice and the being denied a mistake of fact defense?

how does that come into play? what can you cite with regard to prior appellate decisions on the subject?

(I'm not trying to be a dick, I just really have poor comprehension of appellate law)

I will begin addressing that issue elsewhere as we develop arguments for my appeal. I am not prepared to do that at this time.

I didn't mean to imply that you'd be a quitter by my statement about giving up. If you are not too upset about living with the conviction then it may be a good idea to take one for the team to avoid bad precedent. But you still might want to consider my idea about asking for an extension to file your appeal until Nordyke comes back. The courts have delayed several other cases waiting for Nordyke, so why shouldn't they delay yours? Indeed, your entire appeal at this point could be no more than simply asking for such an extension. I expect it would be cheap or free to ask for such an extension, and I see no down side.

Although I am OK with it enough, my lawyer is concerned that if I accept this conviction and the legislature pass a law that makes any GFSZ convictions a permanent prohibition like they did DV convictions I would have been dealt an even larger injustice than what I face now.

I think it is a reasonable concern. I can accept moving out of state or maybe even a 10 year in-state prohibition, but I can't accept a lifetime prohibition for a silly misdemeanor.

Theseus
01-13-2010, 2:45 PM
At this time I will not further discuss my appeal here or elsewhere.

There are several reasons for this, the major one being that I have many other personal things that I need to deal with including renting an extra room, selling some things, and finding a freaking job.

I appreciate all the support up until now, and hope that you can all understand that when and if the time comes we can discuss this issue more, but that right now is not that time.

JeffM
01-14-2010, 12:20 AM
Incorporation is just around the corner. Even a badly handled appeal can win once that issue is settled.

^ This is exactly why he, and the rest of the UOC crowd was told not to UOC until after incorporation... People donated thousands of dollars to Theseus's defense... rather than donating it to WINNING court cases that would put gun owners on the OFFENSE.

This has been a huge waste of time and resources and has accomplished nothing for the good of CA gun owners.

Step one: Make your bed.

Step two: Lay in it.

CaliforniaLiberal
01-14-2010, 2:12 AM
Just wanted to offer moral support to a fellow firearms enthusiast and a Gun Rights Warrior. Hang in there dude and hope for a better tomorrow. Hold close to those you love. Life is pretty damn strange and interesting and you really have no idea what's around the next corner.

Look forward to further discussion of gun law, the court system and possible developments in your case.

CL

Mulay El Raisuli
01-14-2010, 5:52 AM
^ This is exactly why he, and the rest of the UOC crowd was told not to UOC until after incorporation... People donated thousands of dollars to Theseus's defense... rather than donating it to WINNING court cases that would put gun owners on the OFFENSE.

This has been a huge waste of time and resources and has accomplished nothing for the good of CA gun owners.

Step one: Make your bed.

Step two: Lay in it.


OTOH, there's no sense in wasting the opportunity presented. The Law isn't changed in trial courts. The Law gets changed in the appellate courts. The BIGGEST problem with this case is that Theseus didn't have "standing" to challenge 626.9 on 2A grounds, a blatant violation of the 2A. At present, he still doesn't. But, that's going to change come the end of June. Which is to say, it'll change just about the time he gets to a court that can invalidate the statute.

As for his fear of setting bad precedent, the way to avoid that is to file a crappy appeal in the state courts. He'll lose, but the odds of losing in a PRK court is quite high anyway. But, the filing & the waiting for a Ruling will take time. Months even. So, by the time he gets done with all of this, McDonald will be done & then he will have "standing."

Since 626.9 is so blatantly unconstitutional, putting a torpedo in the engine room of that POS shouldn't be all that hard. CGF doesn't have to defend him, just provide him a tiny bit of advice/help with the appeal. Something that should cost little or nothing.

The advantage of this approach is that 626.9 could be gone by the end of the year. We wouldn't have to wait for a 'well crafted civil suit' to be filed. The perfect case to end 626.9 is already before us. All we have to do is pick it up & beat the PRK over the head with it.

The closest analogy I can think of Rosa Parks. Who, while losing the battle in the local trial court, won the war. Theseus is ideally placed to do the same for us.


The Raisuli

anthonyca
03-20-2010, 7:42 AM
I will begin addressing that issue elsewhere as we develop arguments for my appeal. I am not prepared to do that at this time.



Although I am OK with it enough, my lawyer is concerned that if I accept this conviction and the legislature pass a law that makes any GFSZ convictions a permanent prohibition like they did DV convictions I would have been dealt an even larger injustice than what I face now.

I think it is a reasonable concern. I can accept moving out of state or maybe even a 10 year in-state prohibition, but I can't accept a lifetime prohibition for a silly misdemeanor.

This is most likely how the antis will go for more gun control. Even most gun owners don't seem to thing that the DV and restraining order bans are important to take down. People say things such as, I am not going to go through a divorce, and my wife would never lie and do that to me.

One can make a case for a reckless driving charge, or repeated red light violations showing poor decision making and you could fire a gun in public. My goodness, you had a gun in a school zone, that sounds terrible.

Lautenberg has been allowed to be applied retroactively. Remember, the
punishment for possessing even one round is 10 years in prison and
a $250,000 fine. There are cases where the original crime, years before this law was so minor there was NO jail time imposed and the person was never even in hand cuffs.