should I appeal my conviction if subpoena was ignored

[debug22]

I live near Philadelphia and was cited in Baltimore for going 82/55 at the place where I-895S splits off from I-95S. After one continuance I had a trial on 8/13/07 which ended with a guilty verdict. My question is: is it worth my time & expense to appeal to circuit court for a trial de novo, and hope for the case to be thrown out or the speed reduced? Below I'll describe how the trial went.

My main defense was that there were no speed limit signs visible for 5-6 miles before I was cited to warn me that the speed limit had dropped to 55 (I took pictures every 10 seconds), which wasn't even allowed to be admitted. I also subpoenaed the officer's copy of the citation, his daily log for that day, his radar operator training certification and records of instrument calibration (as I was advised to do in some book). The officer didn't have those things and said he got a copy of the subpoena with the attachment page missing, though I got a delivery receipt in the mail with a copy of the entire document (i.e. he was probably lying). I asked for dismissal, but the judge instead ordered a voir dire, i.e. the officer to show me as many of the things I asked for as he could. He showed all except for his daily log and radar log, and the case proceeded. He read from his notes when presenting details of the case, which I objected to and was overruled. My cross-examination of him (a list of questions from the book) took so long that the judge cut it short before I could get to any searching questions. I didn't dare say I had a clean record when the judge asked about my driving record (I had a reckless by speed conviction with no time served) so I admitted to one "speeding" violation. Also when asked about my demeanor the cop sad "argumentative", though I remember sitting quietly most of the time. Basically I made a hash of the trial. I got a guilty verdict and also a determination not to follow the advice of that book again (I know several here would be remembering one of the founding fathers quote that "he who represents himself has a fool for a client").

My question is: a lawyer I talked to after the case said that I could try to appeal since 90% of judges would have thrown out the case after my subpoena was ignored, and thus I was not given the chance to examine the documents and properly prepare my defense. Is this worth the risk, effort and expense? Each time I go to trial in Baltimore I end up booking a hotel since I don't want to risk early morning traffic jams. So far I am blessed that the insurance company hasn't raised my rates for the RD, but once they see two tickets (or once I move to another state, which could be soon) they might hit me hard. In an appeal I would certainly try to go by procedure and just hope for either dismissal or speed reduction, not try the cross-examination thing again. Problem is the same police officer would appear there and may remember/say the same things again. Confused, please help!

 

[seniorjudge]

You are confused. An appeal is not a trial de novo and a trial de novo is not an appeal.

But, hey, go for it.

 

[Maestro64]

It sounds like you did everything right as most self help books and sites will tell you.

However, when asked if you had a clear record, you should not have answered, you have a right not to incriminate yourself, plus you can object and say it is not relevant to the current situation. Also, when the officer said you were argumentative, again you should have objective since it was irrelevant to why the ticket was issued and had no bearing on the case.

That was just some feedback for the next time.

Just so you know, most of the reason for doing discovery and such is for the exact thing that happen to you, most local courts and police will ignore them for as many reasons as people have for speeding. Most are not legal reasons but most people do not know what are the real rules. However, now that court has plowed ahead and found you guilty and ran right over your rights in the process, you can now request a trial de novo with all the trimming and processes. This could be more formal and most likely the judge will follow the process and the rules of the court, but no guaranty for a dismissal unless the police ignore the request again or you able to show the facts are not what the officer has stated.

Also, keep in mind some court required that the court issue the subpoena of discovery and the officer is not obligate unless it demanded by the court.

Anyway, the idea when fighting the ticket is to get the hearing out the local court since most are about making money and not seeing justice being done. Now that they ran over your rights you can request a new hearing.

I fought a ticket using all these tactics and won, but the judge appear to be fair and was willing to listen and when I explained why I was objecting to the officer's testimony and he realize there were many irregularities so he tossed the ticket. The judge realize where I was heading even though I did not get through my entire defense, if he was in a bad mood that day it could have gone the other way.

One last point, since you are from PA the Maryland ticket will not show up on you record since PA does not except points from any other states.

 

[debug22]

thanks!

Thank you, this is great advice!

Seniorjudge, my request for a trial de novo at the district court was rejected, so appeal is the only avenue left. I plead confusion about legal vocabulary; I should have said simply an appeal.

Maestro64, I didn't know that I could be this forward in court. The guy before me said "I have a good enough record" or something, and the judge immediately had the clerk pull it up, found lots of tickets, and found him guilty. When I objected to other procedural matters, I was overruled as well. I don't know if by saying it is irrelevant, I achieve the same outcome as by saying I have a bad record. Similarly my heart sank when he said argumentative, but I'd already argued so much in court that I didn't have the heart to argue that I wasn't argumentative, or try to contradict him.

The subpoena was delivered by the court, not by me. One of those trips to Baltimore was for the purpose of filing this subpoena in person.

The officer couldn't remember basic things about the stop, he had no real memory of it and was only reading from notes. The judge found this to be OK, rather than stopping him, since my original ticket was in Feb'07 and it was heard in Aug'07 since they wait for a while for me to pay, and then I continued once. The entire affair was sickening. I don't know if to expect better from an appeal.

It is indeed a relief that PA doesn't record violations from other states (I didn't believe it, so I pulled my record). So I've wasted a lot of money and travel time fighting a ticket I could have paid.

What happens if for some reason I find myself moving to MD? Does that offense show up as soon as I have to turn in my PA license for an MD one? One of the job offers I may have is in Rockville, MD. If I take it, should I commute from the VA side in order to save on insurance ? This otherwise defies logic, given the outrageous speed laws they have in VA, esp. for VA residents...

Based on all this, I'll decide if an appeal is worth it (certainly seems so on legal grounds if I can defend myself competently next time; may not be on practical grounds especially if it will never trouble me in the future).

 

[seniorjudge]

...
It sounds like you did everything right as most self help books and sites will tell you.
....

That's not encouraging.

Anyway, read on:

Based on all this, I'll decide if an appeal is worth it (certainly seems so on legal grounds if I can defend myself competently next time; may not be on practical grounds especially if it will never trouble me in the future).

An appeal means that the trial court made a legal error. You must prove that the court made an error and you want relief (new trial, dismissal, reversal, whatever.}

 

[Ozark_Sophist]

An appeal means that the trial court made a legal error. You must prove that the court made an error and you want relief (new trial, dismissal, reversal, whatever.}

Would the admission of the officer's testimony be a legal error because he failed to provide what may have been exculpatory evidence? i.e. lack of certification for use of the radar device.

 

[seniorjudge]

Would the admission of the officer's testimony be a legal error because he failed to provide what may have been exculpatory evidence? i.e. lack of certification for use of the radar device.

You need to ask the court of appeals.

Their job is to go to the battlefield and shoot the wounded.

 

[Maestro64]

Here is the information on Point sharing between states

http://en.wikipedia.org/wiki/Driver_License_Compact#States_that_are_members

You can find the specific PA stuff there, I am not sure how it works if you move to MD if the ticket you have will show up on your new MD license. You will have to research that to find out how it works.

Did they say why your trial de novo was denied, again this various by states, some will automatically allow a trial de novo if you request it an it does not require a legal error, since it will be whole trial over again with everything that is said is recorded unlike the local court you were at.

As seniorjudge point out in order to do an appeal you have to show some legal error, it could be the fact that the officer refused to comply with the supoena, however, I can tell you this much form my own experience, when a request is made it is a word game, you asked for the radar log and they claim they do not have one since they might call it a speeder log or some other name. If you ever see a subpoena that lawyers do, they will call out all sort of commonly know names for something so the person can not play the word game.

I made one and followed up with the local police chief why they would not provide the information. He was very nice and we had a long conversation why they would not or could not provide what I asked for. Most of the conversation centered around what they do and do not do and what something is called. He was very good at not letting me know what they call the log file they use to record the days events. It was very obvious to me it was a cat and mouse game and he knew if I requested the right thing he would have to comply. I ask for the speeders log for the day and he said they do not keep those, so I asked if they have a daily log each officer keeps and he said it depend on the officer what he keeps, and it went around and around like this.

One last thing for you, you do not have to be forward, just say the right thing at the right time and do not be argumentative. You let the officer talk, and object when it makes sense, ask if the prosecution has rested then you cross, if the judge ask you question you kindly remind him you not sworn in and your not testifying at this time. I found some of these judge try and get you to admit and convict yourself.

I can tell you, when I fought my ticket, I had printed out all the rules of the courts about hearsay, evidence, and witnesses and was prepare to pull it all out and kindly point out to the judge that the officer can not use notes without laying the proper foundation for doing so and so on.

If your interested in all my PA research PM and I'll share it with you.

 

[debug22]

timed out

Hi all,

With a heavy heart I inform you that because of back-to-back interview trips over the last week, I missed the 30-day deadline for an appeal (I returned on Sep 13th, exactly a month after the trial). Thus, the system wins this round and my rights stay trampled in the mud. Maybe it is just as well, since I may be moving far from Maryland and find it inconvenient to come back. Let me hope that my PA driver license protects me from the insurer's wrath.

Thank you for all your advice and perspective on this issue. At one time I thought the VA reckless driving conviction was the end of the world; I hope I'll be able to put these tickets behind me now and devote myself to more important things.