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Judge Stripped Me Of All Rights

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memah56

Junior Member
What is the name of your state? Idaho

I went to Court today and wow, I left feeling like I didn't live in this Country. I represented myself because my only income is Social Security. I applied for a Public Defender but there was confusion over that and apparently he hadn't been assigned to me, even though the PD's office had told me that he was. At this point I told the Judge that was okay, I was ready and willing to defend myself. WHAT A MISTAKE! Not only did the Judge make me feel and look like a fool, I lost big time! You know what's funny is I don't mind losing, I still think I was right but I lost anyway. What bothers me is (1) The judge told me later in the trial (very angrily) that he couldn't and wouldn't help me, if I didn't understand the "legal" terminology that was my problem, I chose to represent myself therefore the court expects me to know as much as any attorney so he wasn't going to explain what he meant when he asked me "do you want to lay foundation?". My answer then was, "well, I guess not". The Judge went on to say that he offered me another Public Defender this morning and I declined one.....not true.....when we were discussing the "mix-up" and why a Public Defender had not already been assigned, I said that I could defend my self and his exact words were "fine, lets start." Never did he tell me that I could still have a Public Defender. And here is my real concern (2) After the plantiff's counsel called me to the stand and questioned me......when she was done the Judge told me "okay, now you may state your defense"...... so I did**************along the way the Judge would ask me questions ....then all of a sudden he says, quote "You don't have to answer that.....you don't have to answer or say anything, actually I am very suprised that you even took the stand at all and possiby incriminate yourself...." My question is, shouldn't he have advised me of this before I testified, not during, or is his attitude that I should know as much as a lawyer if I am going to represent myself? Legally, does a Judge have to advise you of your right not to testify?

I would like to appeal this case but there again, limited income and no assests makes it pretty hard to get legal representation.

I appreciate any advice or help or even critizsiam.

Thanks
ps....please overlook the spelling, can't find spell check and it has been a very trying day.
 


HappyHusband

Senior Member
memah56 said:
What is the name of your state? Idaho

I went to Court today and wow, I left feeling like I didn't live in this Country. I represented myself because my only income is Social Security. I applied for a Public Defender but there was confusion over that and apparently he hadn't been assigned to me, even though the PD's office had told me that he was. At this point I told the Judge that was okay, I was ready and willing to defend myself. WHAT A MISTAKE! Not only did the Judge make me feel and look like a fool, I lost big time! You know what's funny is I don't mind losing, I still think I was right but I lost anyway. What bothers me is (1) The judge told me later in the trial (very angrily) that he couldn't and wouldn't help me, if I didn't understand the "legal" terminology that was my problem, I chose to represent myself therefore the court expects me to know as much as any attorney so he wasn't going to explain what he meant when he asked me "do you want to lay foundation?". My answer then was, "well, I guess not". The Judge went on to say that he offered me another Public Defender this morning and I declined one.....not true.....when we were discussing the "mix-up" and why a Public Defender had not already been assigned, I said that I could defend my self and his exact words were "fine, lets start." Never did he tell me that I could still have a Public Defender. And here is my real concern (2) After the plantiff's counsel called me to the stand and questioned me......when she was done the Judge told me "okay, now you may state your defense"...... so I did**************along the way the Judge would ask me questions ....then all of a sudden he says, quote "You don't have to answer that.....you don't have to answer or say anything, actually I am very suprised that you even took the stand at all and possiby incriminate yourself...." My question is, shouldn't he have advised me of this before I testified, not during, or is his attitude that I should know as much as a lawyer if I am going to represent myself? Legally, does a Judge have to advise you of your right not to testify?

I would like to appeal this case but there again, limited income and no assests makes it pretty hard to get legal representation.

I appreciate any advice or help or even critizsiam.

Thanks
ps....please overlook the spelling, can't find spell check and it has been a very trying day.
I appreciate any advice or help or even (criticism).

You should have requested a PD at the arraignment.
You should have requested a PD when the trial was starting.
When you stated you would represent yourself, you were refusing legal counsel when the judge was offering it.

It is not the judge's job to help or advise you. That's what your attorney is for.
It seems like the judge was very lenient when he advised you, "You don't have to answer that.....you don't have to answer or say anything, actually I am very suprised that you even took the stand at all and possiby incriminate yourself...."
 

garrula lingua

Senior Member
Was this a court trial, or was there a jury there (was it a trial to the Judge only, or jury) ?

Did you waive your right to an attorney in writing ?

What was the charge, and what was the sentence (maybe you did as well as an atty coould have done for you) ?

The Prosecution could not have 'called you to the stand'; did you state you were going to testify without realizing that the Prosecutor could, then, cross-examine you ?

You have approx 30 days to appeal this; if you have a limited income, you have to state that in court (in the Motion to Appeal - based on incompetence of counsel, misconduct by the Prosecutor, violation of your rights, or whatever) and ask the court to order the transcripts for you (in other words, pay for your transcripts).

But think - if this were done again (with a diff Judge) maybe the outcome would be the same.
 

memah56

Junior Member
Garrula thank you for answering....

Yes, it was a Court trial, Judge only.

No I did not waive my right to an attorney in writing......but I need to tell you that this was a civil criminal case, if that makes any difference. At the first hearing the Judge asked me if I wanted the Court to appoint me an attorney, I declined. Two days later I called the Judge's secretary and asked if I could change my mind. She said yes, to come down and fill out the application to make sure I qualified, which I do. Two weeks went by with no contact...I called the court....they told me I was assigned to this PD. I spoke with him, he said he wasn't aware that I had been assigned to him...we talked briefly...he said he would see me in court! That was the only contact we had. He showed up the morning of the trial. He called me in the conf. room and told me that he didn't think he had ever been assigned to me. He went to talk to the Judge, came back and said he hadn't. He appologized and left. I went into the Court with the Judge already present. The Judge told the plantiff's counsil that he had asked if I wanted a PD and I declined and then apparently changed my mind after notice of service (not true). I said "your Honor, it's okay, I can just represent myself, I am ready." He said quote "okay, let's proceed." Later in the trial he told me "I have offered you an attorney twice now, once at the hearing and again this morning so you chose to represent yourself so don't ask me to explain anything to you, you need to have as much knowledge as if you were the attorney. I won't quote that, not sure exactly how he said it but he never "offered" me another attorney, I had not given him the chance. I was in contempt for not following my divorce decree. My defense is and was that the Judge before this Judge on another contempt charge that my ex brought against me and lost (he has filed 5 contempt charges against me, total harrassment, and lost all but this one), anyway the last Judge that heard the last case said that my ex had lost all of his rights to any equity in the property due to him filing bankruptcy and that the debt had been discharged. I paid to have that transcript typed up and that was my defense why I didn't give him any of the proceeds, which was only $6,000. This Judge said that the other Judge was not a "bankruptcy" Judge so what he said didn't matter so he found me guilty of contempt. Sentencing is at the end of this month. He said I will get 5 - 10 days in jail and $5,000 - $10,000 fine. (2 counts against me, one was for a lawnmower that I was to return to him if I sold the house, which was also included in his bankruptcy).

It wasn't the prosecution that called me, it was the Plantiff's attorney, that is different isn't it? Anyway, she (the attorney for the plantiff) called me as "their" third witness. I didn't know what to do so I stood up and looked at the Judge....he kept his head down for a second and then had me swear in. After the plantiff's atty. questioned me the Judge then turned to me and said "now you can present your side if you want to." During that testimony the Judge asked me a question and then kind of chuckled and said "you don't have to answer as a matter of fact you don't have to say anything, I am actually suprised that you even took the stand, and then something about incriminating myself.

The bottom line is I don't know if the outcome would be different. One Judge said one thing and then now another Judge said that didn't have anything to do with the property because he wasn't a bankruptcy judge.

The point is I feel totally stripped of my rights, either by my ignorance or the system, BUT you have made me feel better to even possibly think that what they did was wrong, so thank you so very much.

I live on social security disability so no, I don't have the income for an attorney, nor do I have the money to pay the fine nor my ex. The house sold over 9 months ago and all of the proceeds went to pay past bills. I am not saying any of this to feel sorry for me, so please don't, the point I am trying to make is why fight it? I can't pay them anything so why fight? I will spend my time in jail (never been there before) new experience in my 57 years. (smile)

Thank you for making me feel a little better
 

garrula lingua

Senior Member
I think your Judge was horrible.

Most Judges will provide (forcibly, they want both parties represented - it protects the Judge from error) counsel whenever jail is a possibility.
He should have (legally, he did not have to, unless your state law requires) appointed a PD for you.
It's VERY doubtful he will sentence any jail time (because you didn't have an atty).

You can be creative and try to file a Motion: Motion For Reconsideration and also file a Sentencing Memorandum (stating that you only receive disability income, that you did not act in a malicious way - just mistaken, and you are sorry for doing anything wrong. If the reason for your disability affects your judgment, put that in. Keep your tone respectful and remorseful. Tell him you are throwing yourself on the mercy of the Court, you are a law-abiding citizen all your life, you did not understand how yoyo's bankruptcy affected the Family Law orders and you believed, MISTAKENLY, that you were correct and following the law. KISS HIS BUTT as much as you can.

Go to the Law Library near the court and ask the Librarian for help in finding a sample of the format the court requires.

GET THIS FILED, IN WRITING, ASAP.
--Whatever you file, in writing, remains a permanent part of the file. Whatever was spoken in court is lost in transcripts which are rarely ordered or reread.

Get a sweet, groveling Sentencing Memorandum in your file. Don't be judgmental :D ;
don't pay attention to people who say this isn't done - do it; it can't hurt; it might help (especially if you stroke J's ego); and, best of all, you're leaving a mitigating document in your file for the next Judge, or any other person, reading your file.

Good luck. Don't feel bad - you gave it your best shot & the facts or the Judge may have been against you from the get-go. Fight back, a bit, by doing that Sentencing Memorandum, have a friend serve it on yoyo's atty and file it at the court ASAP.

But remember, grovel a bit - say you were confused about the issues and only began realizing things at the hearing.
 

garrula lingua

Senior Member
PS: Between you and I, the Judge was wrong in allowing you to be called to the stand without advising you of your Fifth Amendment right (to remain silent; not to testify agin yourself, when it may expose you to crim consequences).

Most civil Judges are terrible criminal Judges & appear to have forgotten the constitution during the time they sit in Family Law court.

This would tick the J off, majorly, if you bring it up.
You can, gently, in your Motion For Reconsideration, refer to your having been advised, after your conviction, by an attorney, that you should have been advised of your constitutional rights before you testified - that you believed it was an order of the court that you cooperate and take the stand.
I'm not sure of the facts of your contempt charge. Didn't the PD (BTW, what a creep) tell you what your chances were of prevailing based on the facts (when the PD backs out like that, it smells as though s/he figured it would be a guilty verdict) ?

It wouldn't hurt to check with the PD. They have some ownership of the 'lack of representation/knowledge problem. You could have them review the facts and advise you as to whether the Motion For Reconsideration is worthwhile (they know that Judge).

I'd work on the Sentencing Memorandum & follow-up w/PD ASAP as to whether you're wasting your time on the Reconsideration motion.
Be aware - there are strict time constraints as to when you can file the Motion For Reconsideration - it should be almost immediately after the verdict/finding, latest within 10 days usually - ask the PD.
Best of luck.
 

Ohiogal

Queen Bee
GL legally you are wrong.
The judge asked him if he wanted a PD. He waived his right when he said he was going to represent himself. Case law is VERY specific about that. It is also very specific that those who go pro se are expected to know as much as trained and licensed attorneys are. They are not given breaks or cut any slack because they decide to go ahead to save money or time or whatever their excuse is. Based on what OP said, the judge did nothing wrong. The OP made serious mistakes but he has very little to base a defense on -- if anything. He was offered a PD and he refused. He said he would represent himself. The judge actually guided him through far more than any attorney would have been known. he was given hints -- such as lay a foundation. When he didn't know what that was, that was his own problem.
 

garrula lingua

Senior Member
Ohiogal said:
GL legally you are wrong.The judge asked him if he wanted a PD. He waived his right when he said he was going to represent himself. Case law is VERY specific about that. It is also very specific that those who go pro se are expected to know as much as trained and licensed attorneys are. They are not given breaks or cut any slack because they decide to go ahead to save money or time or whatever their excuse is. Based on what OP said, the judge did nothing wrong. The OP made serious mistakes but he has very little to base a defense on -- if anything. He was offered a PD and he refused. He said he would represent himself. The judge actually guided him through far more than any attorney would have been known. he was given hints -- such as lay a foundation. When he didn't know what that was, that was his own problem.
I wrote:
He should have (legally, he did not have to, unless your state law requires) appointed a PD for you.

Legally, I was right. If you read my post, I am not disagreeing with you (or, you are not disagreeing with me).

PS: You do you see two issues here, don't you ?
1. Whether the Judicial Officer legally had to appoint a PD.
subissue....." " Morally " "
2. Whether the Judicial Officer legally had to advise OP of her 5th amendments rights before he allowed her to testify.
**************..same issue re ...morally ......

Pesonally, I think this Judicial Officer was a POS in how he treated OP.

Every Judicial Officer I know bends over backwards for 'pro pers/pro se" (they know who votes for Judges - I bet this wasn't a Judge; it was a Referee or Commissioner or Hearing Officer. )
They all say 'you will be held to the same standard as every other attorney, as you are acting as an attorney" Then everyone bends over backwards to be fair (I've had trials with pro pers, and it was a royal pain - you have to go out of your way to ensure you are being clear and not taking advantage. But that's my (& most attys) standards - not legally required.)

I would note: Contempt is a quasi-criminal hearing. It is a misplaced criminal hearing in a FL setting. Jail is a potential consequence. Loose FL procedures are not adequate.
 

garrula lingua

Senior Member
Idaho Rules:
Rule 75(f). Nonsummary proceedings – initial appearance of respondent.

(1) Advice to respondent. At the respondent’s first appearance in court to answer
to the charge of contempt in nonsummary proceedings, the court shall inform the
respondent of:

a. The charge(s) of contempt against the respondent;
b. The possible sanctions for contempt;
c. That the respondent is not required to make a statement and that any statement
made may be used against the respondent;

d. The respondent’s right to a trial;
e. The respondent’s right to confront the witnesses against the respondent,
including watching the witnesses testify in court and questioning them; and
f. The respondent’s right to bail, if the respondent has been arrested under a
warrant of attachment.

(2) Additional advice in order to impose incarceration as a sanction. If the
respondent appears without counsel and the court desires to have the option of
imposing incarceration as a sanction, the court must inform the respondent that
the respondent has the right to be represented by an attorney and that if the
respondent desires an attorney and cannot afford one, an attorney will be appointed at
public expense.

Rule 75(i). Nonsummary proceedings – trial.

(2) Trial rights required to impose a criminal sanction. The court cannot impose a
criminal sanction following a trial unless the respondent was provided the following
rights: a public trial, compulsory process, the presumption of innocence, the privilege
against self-incrimination, the right to call and cross-examine witnesses, the right to
testify in one’s own behalf, the right to exclude evidence that was obtained in violation
of the respondent’s Fourth Amendment rights, the right to counsel, if applicable, and the
right to a unanimous verdict if there was a jury trial.

Rule 75(j). Nonsummary proceedings – burden of proof.



Rule 75(l). Nonsummary proceedings – imposition of sanctions.

If the respondent admits the contempt or is found in contempt following a trial,
the court may impose sanctions as permitted by law.

(1) Right to counsel. The court cannot impose incarceration as a sanction
unless the contemnor was represented by counsel or had knowingly and voluntarily
waived the right to counsel.
(2) Right to call witnesses and speak regarding the sanction. The court
cannot impose a criminal sanction without first giving the contemnor the right
to call witnesses in mitigation of the sanction and the right to be heard in
order to present matters in mitigation or to otherwise attempt to make amends
with the court.
(3) Written order. The court shall issue a written order reciting the conduct
upon which the contempt conviction rests; adjudging that the contemnor is guilty of
contempt; and setting forth the sanction for that contempt. If the sanction is
civil or includes a conditional provision, the order must specify precisely what
the contemnor must do in order to avoid that sanction or have it cease.

OP: Note the repeated references to the respondent's rights. The right to counsel must be knowingly and voluntarily waived. Also note the repeated reference to required warning re the respondent's rights before criminal sanctions can be imposed.l
 

garrula lingua

Senior Member
OP:
read the requirements for contempt hearings. The procedures are very precise and must be followed exactly.
Go through - note the wording (your act must be willful - do some research on the standard = google 'Idaho contempt standards' etc. )
See if you have grounds to file a Motion For Reconsideration or an Appeal.
 

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