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From where were the record obtained?
The case was about prank phone calls that came from a Spoofcard account in my name
So the records were obtained from the company that owns Spoofcard, I believe their name is TelTech.
Let me answer those questions one at a time and then you can ask any follow ups.
Okay thank you
was I wrongfully convicted? No, not necessarily. A subpoena is not required to obtain records if the company voluntarily agrees to turn them over. In addition, issues like this have to be raised before a plea bargain is completed or they are waived.
Should the misdemeanor on my record be quashed? Same answer as above.
Would this be an example of prosecutorial misconduct? Not on its face. If they did something illegal to get the records, such as threatening to throw the owners of the company in jail if they didn't give them the records, then yes it would be misconduct. However, if they just asked for the records and the company turned them over then it wouldn't be misconduct.
Could I get the conviction set aside since they didn't have the evidence they needed?
No, not since you plead to the charge.
Okay, do you have follow up questions?
Yes, what if I reopened the case? Would I have a better chance at challenging them on the subpoena issue?
Meaning if I removed my plea
There is only one way to reopen your case at this point and that would be to file for a Writ of Habeas Corpus.
What exactly does that mean?
When did this plea take place? I thought it said last year but I can't find that now in your facts.
Yes, the plea took place July 31, 2012
You only have about thirty days to appeal or challenge a judgment. After that the court loses jurisdiction to do anything.
So there's no way to reopen this case?
The only way to challenge it at this point is a procedure called a Writ of Habeas Corpus.
What is that exactly?
It is very complicated, there are very few lawyers that do these, and the chances of success are pretty low.
Is it handled at the County level or the State level?
You apply for it through the same court as originally handled the case and it then goes up through the appellate system from there.
Okay, now when I sat down with my lawyer a few months ago he went through my file, saw there was no subpoena and said that the evidence would have to be suppressed. I then asked if it was too late to reopen the case or appeal it, etc. He laughed and said no, you can always reopen these things
So is he clueless? Or just optimistic?
Optimistic. You can file for a Writ, but you're going to spend a lot of money and you aren't likely to win.
Because he never mentioned the Writ of Habeas Corpus, he just said that I could withdraw my plea and try again for a better deal
Why is it so difficult to win a case like that?
The ONLY way it is an exception is if the prosecutor did something unethical to get the materials like threaten them then you could have a chance.
Oh okay, I see
The trial court has lost jurisdiction at this point for anything else.
So as far as the fourth amendment goes and unwarranted searches and seizures...If the government somehow gets records of mine from a company without producing a warrant they can use them against me in court and that's considered legal?
Yes and especially if they aren't objected to.
What if they were objected too?
Isn't there a statute or something that says that you can reopen your case with a new lawyer if you feel that your lawyer was negligent?
There could have been an appeal at that time
Just through a Writ of Habeas Corpus.
The issue is timing. If you thought it was an issue the law says you should have done it back then.
Okay, thank you. One more question, when a conviction is set aside is it usually done at the County level or the State level?
It is usually done on appeal.
I don't want to discourage you but I've seen lots of people spend lots of money with very little chance of winning.
No, I understand and I appreciate your honesty. But is this a general national law as far as appeals go? Or is the appeals process different throughout every jurisdiction in the country
It is almost identical everywhere, even Louisiana.
Okay, thank you for your help
I really do appreciate it
There are very few differences in the states now. I handled criminal cases as a trial specialist in many of the states and there are only minor difference.
You're very welcome.
Before we go, do you know how they got the records?
Are you still there?
No, I have no idea how they got the records.
That is going to be the issue here. The company could release the records without a subpoena if they chose to do so (which they usually won't).
If they voluntarily released them then it is a losing point.
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