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Legalease
Legalease, Lawyer
Category: Criminal Law
Satisfied Customers: 14260
Experience:  13 years experience in criminal law, BA in criminal justice
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Very brief summary of case:This case involves an infraction

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Very brief summary of case: This case involves an infraction (crossing over the double line) Case went to trial. No prosecutor was present. Judge was very biased took a dual role of prosecutor and judge, made jokes, said inappropriate comments, did not allow me to ask my witnesses questions, cut me off when I tried, did not allow one of my witness to testify, denied my affirmative defense of necessity (people in the middle of the road and I had to cross over the double line to avoid hitting the people crossing the street.) This form was a kangaroo court, even the bailiff said I got screwed. Judge ruled guilty. I took traffic school and submitted the certificate of completion. I also appealed the ruling. I am fighting ruling this out of a matter of principle. Judge was bias, violated my rights to due process and refused to acknowledge my affirmative defense. Ok here is the issue: there is no electronic recording of trial nor is there a court reporters transcript. That means after I gave my notice to appeal I had to submit a proposed statement on appeal. I did so and submitted it within the proscribed timeline. (20 days) There was no prosecutor at the trial, but I served notice anyway. The judge is suppose to review the proposed statement on appeal and if no opposition is submitted within 10days of the prosecutor being served he is suppose to certify it and the appeal process continues. Instead the Judge did nothing for 8.5 months, and recently sent a notice for a hearing this Tuesday (giving me 4 days notice to travel 400 miles for this hearing) The hearing is to discuss my proposed statement on appeal, and a DA has been assigned to the case. DA wasn't present at the original trial and has nothing to contribute to my proposed statement. As for as the Judge, because the proposed statement involves allegations of his misconduct and bias (of which my witnesses observed) it is my belief he is the one who is contesting the occurrences and since he is the party whom certifies the statement all of my statements involving misconduct and bias will be omitted by the Judge. it is my opinion due to the Judges outrageous 8.5 month delay certifying the proposed statement, combined with assigning a DA to represent the people at this hearing who was not present at the trial and has absolutely no idea what happened, serving me less than 5 days notice to attend this hearing and refusing to continue the matter for 5 days so I may fulfill my commitments I have scheduled the day of the Kangaroo hearing the whole case should be dismissed. There is no record what so ever other than my statement and witnesses and a biased Judge's word who has the power to certify anything he wishes. My question: what should I do? Are there any cases sighted on point I can use? How should I argue? I plan on reporting this sham judge for judicial review, but in the mean time what shall I do at this hearing and after the Judge certifies something that is not accurate even after I address the inaccuracies.

Submitted: 5 months ago.
Category: Criminal Law
Expert:  Legalease replied 5 months ago.

Hello there and thank you for using Just Answer.

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There are no cases that will help you out in this situation because in this case the judge can pretty much do whatever he wants to do (and you actually acknowledged this in your statement/question above). Under these circumstances because you are so pressed for time here, my suggestion is that you prepare a written Motion for Judicial Recusal and ask the judge in the case to take himself off of the case for the appeal portion and assign it to another judge. In your motion, you should cite the obvious bias of the judge in the original hearing on these matters and the fact that there was no prosecutor present at that hearing so that the judge improperly acted as the judge and prosecutor at that time. You can actually fax the motion to the clerk's office at the court tomorrow AM (with a faxed copy to the prosecutor's office) and request that a hearing on the matter be held before the main case is heard on Tuesday. Being the Kangaroo court that it has been, this Judge will be the Judge to decide whether or not he stays on the case (it really is messed up the way the courts permit that to happen, but it is done like that all over the US -- the judges are supposed to be "above the fray" and know when they have a conflict or bias that is great enough to take them off of a case -- when in many instances this simply does not happen and such judges KEEP the cases and hear them even after being asked to recuse themselves!). However, if he does not recuse himself and the case goes forward and you lose (which I think you expect to happen) then you will have an additional ground for another appeal -- that the judge refused to recuse himself when he should have done so in the first appeal. The next appeal after this will actually go to an appeals court if you want to take the matter that far and so it will automatically be out of his hands anyway at that level. In addition to being an appeal point, his refusal to recuse himself can also be used in the complaint that you are planning to file with the Judicial Review commission against the judge once the case is heard on Tuesday (my suggestion is that you file the Judicial Review complaint as soon as possible after that hearing unless he actually does decide to recuse himself or he finds in your favor in the entire case (neither of us expect either of these things to happen, but stranger things have happened with judges).

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I was unable to find a motion for judicial recusal on the CA courts website for forms, so it seems that you should use a generic motion form for the purpose but I suggest that you contact the clerk's office at that court tomorrow and ask them which form you should use for a request to have the judge recuse himself from a case -- there are generic motion forms on the CA courts website and I suspect that you will be referred to one of those forms to use, otherwise they may tell you that you must write up a motion yourself from scratch for this -- which is generally simple -- keep it to a one page request for him to remove himself and a few short examples of his bias (including not assigning a prosecutor to the original case) will do for such a motion.

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I wish that there were a quick and easy solution for this situation but I think you are aware that there simply isn't one. Most people when faced with what you went through in the court hearing would have simply given up -- paid the fines and walked away. It is admirable that you are standing up to this bias -- even given the knowledge that you are well aware, for a FACT, that the judges can still do pretty much what they want to do when any kind of discretion is involved in determining the outcome of a case -- and with traffic infractions, it is almost always a judges "discretion" that drives the final rulings (unlike, for example, a mandatory sentencing law where a judge has no choice BUT to follow it -- removing the judges discretion on the sentencing in a particular crime).

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MARY

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Legalease, Lawyer
Category: Criminal Law
Satisfied Customers: 14260
Experience: 13 years experience in criminal law, BA in criminal justice
Legalease and 7 other Criminal Law Specialists are ready to help you
Expert:  Legalease replied 5 months ago.

Hello again Jeff --

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Is there something else that I can answer for you? If not, can you please press the 3rd, 4th or 5th smile face underneath this ANSWER box so that I will be paid for assisting you with this matter? Perhaps it was just an oversight on your part? But -- I truly am paid NOTHING unless you press a positive rating under the answer box and this is not a hobby for me (it is how I am earning a living in a tough economy right now). Pressing a positive rating will not cost you any more money -- that is the trigger used by Just Answer to tell them to give me credit for answering this question. I really DO appreciate that you took the time to ask the question and wait for an answer and I would appreciate being paid for taking the time to make sure the answer was researched under the current laws and given to you as clearly and accurately as possible!

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THANK YOU VERY MUCH !

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MARY

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