Friday, October 25, 2019

Attorney Professional Conduct

The below links guide attorney behavior.  The Court can sanction lawyers who violate the rules of professional conduct.

4-3. ADVOCATE 

RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

RULE 4-3.2 EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

RULE 4-3.3 CANDOR TOWARD THE TRIBUNAL (a) False Evidence; Duty to Disclose. A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; RRTFB September 19, 2019 (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (b) Criminal or Fraudulent Conduct. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. (d) Extent of Lawyer's Duties. The duties stated in this rule continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6.

RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer must not: (a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act; (b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to a witness for the time spent preparing for, attending, or testifying at proceedings; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party; (e) in trial, state a personal opinion about the credibility of a witness unless the statement is authorized by current rule or case law, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused; (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee or other agent of a RRTFB September 19, 2019 client, and it is reasonable to believe that the person's interests will not be adversely affected by refraining from giving such information; (g) present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter; or (h) present, participate in presenting, or threaten to present disciplinary charges under these rules solely to obtain an advantage in a civil matter.

RULE 4-3.5 IMPARTIALITY AND DECORUM OF THE TRIBUNAL (a) Influencing Decision Maker. A lawyer shall not seek to influence a judge, juror, prospective juror, or other decision maker except as permitted by law or the rules of court. (b) Communication with Judge or Official. In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except: (1) in the course of the official proceeding in the cause; (2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer; (3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or (4) as otherwise authorized by law. (c) Disruption of Tribunal. A lawyer shall not engage in conduct intended to disrupt a tribunal. (d) Communication With Jurors. A lawyer shall not: (1) before the trial of a case with which the lawyer is connected, communicate or cause another to communicate with anyone the lawyer knows to be a member of the venire from which the jury will be selected; (2) during the trial of a case with which the lawyer is connected, communicate or cause another to communicate with any member of the jury; (3) during the trial of a case with which the lawyer is not connected, communicate or cause another to communicate with a juror concerning the case; (4) after dismissal of the jury in a case with which the lawyer is connected, initiate communication with or cause another to initiate communication with any juror regarding the trial except to determine whether the verdict may be subject to legal challenge; provided, a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist; and provided further, before conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview. The provisions of this rule do not prohibit a lawyer from communicating with members of the venire or jurors in the course of official proceedings or as authorized by court rule or written order of the court.

RULE 4-3.6 TRIAL PUBLICITY (a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding. (b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.

RULE 4-3.7 LAWYER AS WITNESS (a) When Lawyer May Testify. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client unless: (1) the testimony relates to an uncontested issue; (2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; or (4) disqualification of the lawyer would work substantial hardship on the client. (b) Other Members of Law Firm as Witnesses. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by rule 4-1.7 or 4-1.9.

RULE 4-3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing; (c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating RRTFB September 19, 2019 information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

--
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Bob Hurt
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Thursday, October 17, 2019

Statutory Construction, Juries, and Staying Out of Trouble (rev. 1)


Why Patriots Get Into Legal Trouble

Patriots often make huge mistakes in their estimation of the meaning and applicability of laws of any and all kind, from the Constitutions of the US and States, through the statutes of legislatures, to administrative rules.  As a consequence, they run afoul of government and find themselves in trouble. Many of their errors come from not knowing the rules of statutory construction and interpretation while thinking that they have perfect ability to read and comprehend.  Many suffer from cognitive delusion, overestimating their own ability and underestimating the ability of law makers and jurists.

I have provided four links in item 1 below to an education on the rules of statutory construction/interpretation, the item 2 link to a Florida Bar Journal on Florida Common Law Jurisprudence.  I encourage all with an interest in law to read the articles at those links, and to use the other links for reference.

A CASE IN POINT - COMMON LAW / CITIZEN GRAND JURIES.

A few years ago, a court in Dixie County Florida sentenced septuagenarian Terry Trussell to over 8 years in prison for simulated service of process - serving a Citizen Grand Jury indictment to the local sheriff. 

On Sat, Jul 23, 2016 at 5:02 PM, Bob Hurt <bob@bobhurt.com> wrote:
Terry Trussell just got sentenced to 105 months in prison for his citizens grand jury actions, which the government and a jury of 6 considered crimes.

Trussell and his enablers and supporters believed that they had the right, descended from the Magna Carta, to form a common law grand jury to petition for redress and do the job that the real grand jury would not do, and thus to operate the common law grand jury outside the control of the Chief Judge of the Circuit.  Trussell learned the hard way that no such right exists.  He died in prison.

The US and Florida Constitutions acknowledge the power of, but do not specifically authorize grand juries. Yet, grand juries have been connected to courts throughout their history in English and American law.  Chapter 905 of the Florida Statutes delineate the powers and duties of Florida grand juries.  Florida Statute 2.01, one of the first laws enacted by the Florida Legislature, provides this:

2.01 Common law and certain statutes declared in force.The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
History.s. 1, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87.
The foregoing make it crystal clear that Florida Statutes Chapter 905 supersedes corresponding provision of English statute and common laws regarding grand juries.  Thus, Florida law, by providing for formal grand juries, excludes and disallows a separate, spurious "common law grand jury" or "citizen grand jury" put together by people of a local community.  A basic grasp of the rules of statutory construction would have made this clear, had Trussell studied them.

WHAT TO DO ABOUT CROOKED GOVERNMENT

If the citizenry feels the spunk to create their own grand juries outside the reach of the courts and the prosecutors, then they ought to feel spunky enough to do it right. 

  1. DO NOT listen to your all-knowing chums, for they will get you in trouble.
  2. Beware of the Dunning-Kruger Effect (see link below) in yourself or your advisors.
  3. Start by finding and reading law related to the issue.
  4. Continue by finding binding appellate court opinions regarding the issue.
  5. Call your county's Bar association, get a referral to an attorney competent in your area of concern, then pay the attorney his hourly rate for a written opinion regarding your rights/powers in the issue.  If you act according to the opinion and get hauled before the court, you can show the judge that you followed the opinion of an expert in the law and therefore did not intend to commit a crime.
  6. File a declaratory judgment lawsuit asking the court to declare your rights/powers in the issue, then behave accordingly.

Had Terry Trussell and his compatriots followed the above commonsense procedure, they would have long abandoned their dreams of a common law grand jury.  The would have realized that they should use the political process for improving Florida's grand jury system.

WHAT TO DO ABOUT YOUR DUNNING-KRUGER PATRIOT MYTH MONGER FRIENDS

Patriot Myth Mongers typically suffer from the Dunning-Kruger effect, grandly overestimating their competence in law, history, litigation practice, government, etc.  Many are scammers who sell their cockamamie legal theories via books, memberships, and lectures.  And many truth-hungry patriots waste time, attention, and money on frivolity, nonsense, and "cow plop" disguised as legal truth.  See Problems for examples.

If you were to ask me what to do about them, I'd tell you to disconnect from them and put much distance between you and them because associating with them or following their teachings will get you in trouble and make you look like an idiot.

FIXING THE JURY SYSTEM

Florida's early constitutions permitted private right to prosecute criminal defendants, acknowledged the power of petite juries to judge both fact and law, and acknowledged the power of grand juries to investigate all felony crimes. 

After the Civil War era, Florida's constitutions gave prosecution rights only to State Attorneys, and acknowledged the power of petite juries to judge only the facts, but not the law, and of grand juries to investigate capitol crimes. 

State officials have taken those changes to mean petite juries may determine only the facts of a case, with judges determining the law, and grand juries may investigate only capitol crimes (albeit the related statute 905.20 permits grand jurors to investigate any offense of which they have knowledge within the county).

I have theorized that the foregoing changes occurred because the 15th Amendment gave Negroes the right to vote, which meant Negro men would sit on juries, and that meant the Negro jurors would automatically vote for Negro defendants and against Caucasian defendants because of their inherent racial prejudice, and naturally, Negroes would jump at any chance to prosecute Caucasians for any imagined offense.  In other words, sitting on juries would give Negroes a way finally to get even with Caucasians for mistreatment during and since slavery.  I believe this put fear into the minds of the Caucasian men in government that Negro jurors would turn trials into a laughing stock, so they intentionally stripped juries of important powers.

The people of the land can use the political process to restore full jury powers - to eliminate judicial and prosecutor interference in grand jury proceedings, to allow private prosecution, to allow the citizenry to present evidence of crimes to grand juries, and to let petite juries judge both law and fact.

Culling and Training of Prospective Jurors

People of good sense in government intuitively know that the citizenry has a huge responsibility to gain the knowledge necessary to understand the ideals of good government and the importance of an educated, intelligent electorate to the advancement of good government and civilization.

Unfortunately the USA population includes about 80 million people too stupid to graduate from high school, many of whom have the right to vote.  Axiomatically, the vast majority of them, and many millions nearly as stupid as them, will make stupid choices at the polls, and stupid decisions as jurors.  Therefore, they should not have the right to become electors or jurors. 

The court clerks, in selecting jurors, cull out those too ill or feeble to serve.  For petite jurors, the judge culls out biased jurors.  So we already have rules showing that some electors should not and may not sit on the jury.  But even  more electors should be culled from the jury pool.

Electors should demand that clerks administer IQ tests to all prospective jurors, and cull out those with IQ below 90 or 100. 

Electors should also demand that the clerks administer training courses in which prospective jurors learn the ideals of good government, the constitutions of the US and the State,  and the power of petite juries to nullify bad or inscrutable law and of grand juries to investigate any and all crimes.

PRIVATE RIGHT OF PROSECUTION

Electors should further demand restoration of the private right of prosecution and acknowledge the power of all grand jurors to receive evidence from crime victims and other citizenry and to indict according to the evidence.  Finally, electors should demand that private parties may prosecute any indicted defendant in the event the government prosecutor declines to prosecute.  Private prosecuting attorneys should undergo additional training and testing to minimize waste of court resources.

Helpful Links

###
(No, I'm not a lawyer)
--
Bob Hurt Signature
Bob Hurt

Bob Hurt
👓 Blog 1 2   f   t  
Email     📞 (727) 669-5511
2460 Persian Drive #70
✈ Clearwater, FL 33763 USA
Donate  to Law Scholarship
✔  Subscribe to Lawmen E-Letter
🔨 Learn How to Win in Court
Mortgage Attack to Beat the Bank

QR Code

Study civil litigation essentials on-line under Jurisdictionary developer Dr. F. Graves, Esq., and learn

(click button)
"It's actual, tested training, what Jurisdictionary always wanted to be, and beyond. Thanks, Dr. Graves. I kicked ass today in court, and the judge loved me!" Ganurem Smirgle

Wednesday, October 16, 2019

Statutory Construction, Juries, and Staying Out of Trouble


Why Patriots Get Into Legal Trouble

Patriots often make huge mistakes in their estimation of the meaning and applicability of laws of any and all kind, from the Constitutions of the US and States, through the statutes of legislatures, to administrative rules.  As a consequence, they run afoul of government and find themselves in trouble. Many of their errors come from not knowing the rules of statutory construction and interpretation while thinking that they have perfect ability to read and comprehend.  Many suffer from cognitive delusion, overestimating their own ability and underestimating the ability of law makers and jurists.

I have provided four links in item 1 below to an education on the rules of statutory construction/interpretation, the item 2 link to a Florida Bar Journal on Florida Common Law Jurisprudence.  I encourage all with an interest in law to read the articles at those links, and to use the other links for reference.

A CASE IN POINT - COMMON LAW / CITIZEN GRAND JURIES.

A few years ago, a court in Dixie County Florida sentenced septuagenarian Terry Trussell to over 8 years in prison for simulated service of process - serving a Citizen Grand Jury indictment to the local sheriff. 

On Sat, Jul 23, 2016 at 5:02 PM, Bob Hurt <bob@bobhurt.com> wrote:
Terry Trussell just got sentenced to 105 months in prison for his citizens grand jury actions, which the government and a jury of 6 considered crimes.

Trussell and his enablers and supporters believed that they had the right, descended from the Magna Carta, to form a common law grand jury to petition for redress and do the job that the real grand jury would not do, and thus to operate the common law grand jury outside the control of the Chief Judge of the Circuit.  Trussell learned the hard way that no such right exists.  He died in prison.

The US and Florida Constitutions acknowledge the power of, but do not specifically authorize grand juries. Yet, grand juries have been connected to courts throughout their history in English and American law.  Chapter 905 of the Florida Statutes delineate the powers and duties of Florida grand juries.  Florida Statute 2.01, one of the first laws enacted by the Florida Legislature, provides this:

2.01 Common law and certain statutes declared in force.The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
History.s. 1, Nov. 6, 1829; RS 59; GS 59; RGS 71; CGL 87.
The foregoing make it crystal clear that Florida Statutes Chapter 905 supersedes corresponding provision of English statute and common laws regarding grand juries.  Thus, Florida law, by providing for formal grand juries, excludes and disallows a separate, spurious "common law grand jury" or "citizen grand jury" put together by people of a local community.  A basic grasp of the rules of statutory construction would have made this clear, had Trussell studied them.

WHAT TO DO ABOUT CROOKED GOVERNMENT

If the citizenry feels the spunk to create their own grand juries outside the reach of the courts and the prosecutors, then they ought to feel spunky enough to do it right. 

  1. DO NOT listen to your all-knowing chums, for they will get you in trouble.
  2. Beware of the Dunning-Kruger Effect (see link below) in yourself or your advisors.
  3. Start by finding and reading law related to the issue.
  4. Continue by finding binding appellate court opinions regarding the issue.
  5. Call your county's Bar association, get a referral to an attorney competent in your area of concern, then pay the attorney his hourly rate for a written opinion regarding your rights/powers in the issue.  If you act according to the opinion and get hauled before the court, you can show the judge that you followed the opinion of an expert in the law and therefore did not intend to commit a crime.
  6. File a declaratory judgment lawsuit asking the court to declare your rights/powers in the issue, then behave accordingly.

Had Terry Trussell and his compatriots followed the above commonsense procedure, they would have long abandoned their dreams of a common law grand jury.  The would have realized that they should use the political process for improving Florida's grand jury system.

WHAT TO DO ABOUT YOUR DUNNING-KRUGER PATRIOT MYTH MONGER FRIENDS

Patriot Myth Mongers typically suffer from the Dunning-Kruger effect, grandly overestimating their competence in law, history, litigation practice, government, etc.  Many are scammers who sell their cockamamie legal theories via books, memberships, and lectures.  And many truth-hungry patriots waste time, attention, and money on frivolity, nonsense, and "cow plop" disguised as legal truth.  See Problems for examples.

If you were to ask me what to do about them, I'd tell you to disconnect from them and put much distance between you and them because associating with them or following their teachings will get you in trouble and make you look like an idiot.

FIXING THE JURY SYSTEM

Florida's early constitutions permitted private right to prosecute criminal defendants, acknowledged the power of petite juries to judge both fact and law, and acknowledged the power of grand juries to investigate all felony crimes. 

After the Civil War era, Florida's constitutions gave prosecution rights only to State Attorneys, and acknowledged the power of petite juries to judge only the facts, but not the law, and of grand juries to investigate capitol crimes. 

State officials have taken those changes to mean petite juries may determine only the facts of a case, with judges determining the law, and grand juries may investigate only capitol crimes (albeit the related statute 905.20 permits grand jurors to investigate any offense of which they have knowledge within the county).

I have theorized that the foregoing changes occurred because the 15th Amendment gave Negroes the right to vote, which meant Negro men would sit on juries, and that meant the Negro jurors would automatically vote for Negro defendants and against Caucasian defendants because of their inherent racial prejudice, and naturally, Negroes would jump at any chance to prosecute Caucasians for any imagined offense.  In other words, sitting on juries would give Negroes a way finally to get even with Caucasians for mistreatment during and since slavery.  I believe this put fear into the minds of the Caucasian men in government that Negro jurors would turn trials into a laughing stock, so they intentionally stripped juries of important powers.

The people of the land can use the political process to restore full jury powers - to eliminate judicial and prosecutor interference in grand jury proceedings, to allow private prosecution, to allow the citizenry to present evidence of crimes to grand juries, and to let petite juries judge both law and fact.

Helpful Links

###
(No, I'm not a lawyer)
--
Bob Hurt Signature
Bob Hurt

Bob Hurt
👓 Blog 1 2   f   t  
Email     📞 (727) 669-5511
2460 Persian Drive #70
✈ Clearwater, FL 33763 USA
Donate  to Law Scholarship
✔  Subscribe to Lawmen E-Letter
🔨 Learn How to Win in Court
Mortgage Attack to Beat the Bank

QR Code

Study civil litigation essentials on-line under Jurisdictionary developer Dr. F. Graves, Esq., and learn

(click button)
"It's actual, tested training, what Jurisdictionary always wanted to be, and beyond. Thanks, Dr. Graves. I kicked ass today in court, and the judge loved me!" Ganurem Smirgle