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I am getting ready to file a CA Factual Innocence Case

Customer Question
I am getting ready...

I am getting ready to file a CA Factual Innocence Case against the County DA's office. She had released me from the case last year. That case is still ongoing with the other person. Upon not getting her way last Friday the DA stated to my Court Appointed Lawyer, that if I file the my FI case she will pull me back into the previous case and re-charge me. Is that considered Retaliator?

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

California

Lawyer's Assistant: Have you talked to a lawyer yet?

My Court Appointed Lawyer says he feels like it would be unethical to represent me because "it would put me in harms way as I have been dismissed from the other case".

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that I can think of

Submitted: 6 months ago.Category: Criminal Law
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Answered in 2 hours by:
12/4/2017
Criminal Lawyer: James Daloisio, Lawyer replied 6 months ago
James Daloisio
Category: Criminal Law
Satisfied Customers: 597
Experience: 30 years experience in criminal law, continuing education.
Verified

Hi, my name is ***** ***** welcome to Just Answer.

I have a few questions before I give you an answer.

1) You said the DA "released" you from the case last year. Does that mean that the charges against you were dismissed, or are you still a defendant? I ask this because I am wondering why you were in court with your court appointed lawyer if you are no longer a part of this case.

2) I am not sure what you mean by filing a factual innocence case against the DA. Are you preparing to file a civil action? In California, you can file a petition for factual innocence under Penal Code Section 851.8, but that is not filed "against the DA." So what type of pleading are you planning to file, and do you have an attorney doing it for you?

3) Your comment about your attorney stating it would be unethical to represent you because "I have been dismissed from the other case." Are there two (or more) cases here?

As to your question regarding retaliation, there are several answers there:

A. If your "factual innocence" case is a civil action, the prosecutor cannot threaten criminal prosecution to gain an advantage. (CA Rules of Professional Conduct 5-100(A).)

B. If the prosecutor dismissed the case against you because there was not sufficient evidence to proceed, then it is unethical for the prosecutor to threaten to reinstate those dismissed charges simply because you are exercising your rights to access the court system. A prosecutor shall not institute or continue to prosecute a case that the prosecutor knows is not supported by probable cause. (CA Rules of Professional Conduct, 5-110(A).)

C. If there were other reasons for your dismissal, the prosecutor probably does have the discretion to reinstate charges for any reason she wishes.

Please provide the information requested above and I will complete my response. Thank you.

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