Washington state
does anyone have any cases where a court error caused a defense strategy change and it was found reversible error?
in this case the judge allowed a proof of service that the defense objected to. The defense knew for a fact that he was right and had planned for it to not be allowed in court so he planned his defense around it. this piece of evidence contradicted what the defense had planned so at the last minute he had to change his entire strategy on how to argue the case.
The defendant was being charged with violating terms contained in the package he was "served".
In Appeals court the prosecutor agreed that they/court had violated the defendants 6th amendment rights by allowing this evidence but that it was harmless error because the defendant still knew about the upcoming hearing so he must have been served and therefore knew about the rules that were contained in the package even if they didn't have proof he had gotten it.
Now my argument is that
A: being served isn't the only way for a person to know that a hearing is coming up. Just for example I can look up a persons name on the computer and see a hearing coming up BEFORE a document has even left the court to be served on a person. Now this doesn't mean the person being served knows that there are rules they must follow but only that there is court coming up.
B: that because the POS was allowed the defense couldn't go ahead with the argument they had planned because the POS was in direct conflict of it and they instead had to instead battle with the POS in court, thus changing his strategy at the last minute.
I cant seem to find any cases were a court error was found reversible because it drastically changed the defense strategy, maybe I'm not looking in the right places.
I also don't know anything about harmless error analysis or what the rules are for finding if an error was harmless or reversible. I keep seeing reference to the "analysis" but cant seem to find if it is for only certain types of cases, I cant seem to find Washington courts specific rules on Harmless/reversible errors and I can only find a few WA cases that reference that WA rules on errors are in effect the same as the federal rules.
Thanks for the help guys.
Harmless Error vs Reversible Error
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09-05-2010, 12:04 PMTheJKH1999Harmless Error vs Reversible Error
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09-05-2010, 12:10 PMcyjeffRe: Harmless Error vs Reversible Error
If a judge allows a proof, it is typically not considered an error... but a judgment call.
However, errors are why there is an appeals process. The appeal found no error or, to your point, that the error made did not materially effect the outcome.
You will find that the introduction and exclusion of certain types of fact is one of the things you have to plan for in court. Court is made up of people and people do crazy things.
Did you know of the contents of the package? If you did, then I see the appellant ruling as proper.
I will say, however, that this is why the services of qualified legal counsel is a great idea.... -
09-05-2010, 12:56 PMTheJKH1999Re: Harmless Error vs Reversible Error
in this case the prosecutors office wouldn't bring in the officer that supposedly wrote the POS, there were several problems with it, ineligible, not filled out correctly and nobody had the original or knew where this copy came from, it was a copy of a scan of a fax that had been bounced around sheriffs/prosecutors offices and claimed it was forwarded because it was sent to the wrong office a few times and no one could say exactly where it originated. The defense relied on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and the prosecutor brought some case from CA that was not as new and had less in common. The judge went with the prosecutors call, again in direct appeals the prosecution admitted they were wrong and the POS should have been left out. So in the future anytime the prosecutors of Thurston County district courts bring in a POS they must also bring in the person that served it :)
The defendant didn't know about what the court was for or even where in WA but just that there was a court date in WA.
I do think this is beside the point on a legal point of view, the Appeals court erred in calling the admission proof of service Harmless error stating that the defendant knew about the court date so he must of been served. Like I stated earlier, the defendant had to know about the rules in the package in order to violate them, just because he knew about the court date doesn't mean he knew about the rules and there is no proof that he did.
this is now going to appeals II
I'm just doing research on this case, I am looking for cases that have been given a reversible error on appeal because the court error drastically changed the defense strategy. I will find them if they are out there, just hoping someone has a short cut to one :)
Thanks again. -
09-05-2010, 01:17 PMcyjeffRe: Harmless Error vs Reversible Error
Doing this type of legal research is beyond the services of an internet board.
You really should consult with an attorney. -
09-05-2010, 01:31 PMTheJKH1999Re: Harmless Error vs Reversible Error
I'm not relying on any information giving to me from this board, nor am I asking for Legal instruction or advice, I'm simply looking for a type of case, I figure that a board of "legal" professionals would have come across this type of case in the past. Like I said I am researching this case, their are appellant lawyers involved but this is the type of legal matters that intrigue me, I like to discuss and research this type of case hence the reason I am on a discussion board of "legal" professionals.
if the only response that is given is "seek legal counsel" then there is no point of having a forum, just a disclaimer that say "no matter the question get a lawyer to answer it". I'm not being a smartass, nor am I asking anyone to do anything that is outside the scope of this board.
So with that said, if anyone has seen a case were reversible error has been decided upon because a court error has made defense drastically change strategy or even if anyone has any info on how a error is determined Harmless/reversible, beside the basic "if it affects the results" please let me know.
Thank you -
09-05-2010, 02:26 PMcyjeffRe: Harmless Error vs Reversible Error
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Let me put it this way.Quote:
Quoting TheJKH1999
Unless we happen to know the case off of the top of our heads... we would have to burn account time to do a proper search.
Just as a medical site will get you only so far and then tell you to seek a doctor, we are no different here. -
09-06-2010, 12:38 AMTheJKH1999Re: Harmless Error vs Reversible Error
OK, I guess you figured out what I'm looking for, I am looking for someone who has seen a case involving Errors that has gotten a reversal based on a court error being so gross as to change the defense strategy.
I'm also looking for any information on finding this very illusive "harmless error analysis" I keep seeing reference to.
Now I'm not expecting anyone to go do a massive search and get fired or not be able to pay the bills because they are doing something for free, I'm looking for someone that says "Yeah, I did a case/study not long ago on this type of thing and know of a few case references to give you" OR "yeah, we deal with court error allot, here is a good place to find the WA rules on determining harmless VS reversible error"
It has taken 7 post to get back to the same question in the original post!!
Thanks for any INFORMATION guys and gals -
09-06-2010, 01:34 AMdavidmcbeth3Re: Harmless Error vs Reversible Error
You likely will not be able to change the outcome. (and I think that the Melendez case is good case law). You wish to present a new defense not previously argued but reviewing courts will not even consider new defenses.
You can look up the case law cited behind the current court opinions & memorandums of law or court filings by the parties - I would start there.
Then if you see no glaring errors with the court's last ruling you can decide if you wish to move forward with another reviewing court. Know the chances of winning is minimal.
The Melendez case is new law though .. if the court finds that the serving officer is giving a testimonial statement & the defendant was not allowed to cross the non-appearing witness then the question of proper service & adjudication of this question a legal question and not a fact question (which is a de novo review). If its a harmless error, even if the court rules that the service was not done or able to be questioned properly, then that is another question to review (looks like this is the main point of your contention).
I would think that the process of service has to be conducted per court rules. Its not a legal "technicality" but the start of the whole legal process. And from what you stated, it was properly objected to at trial leaving it available for further review. It looks like the state agreed process was not served properly though ...
Error that causes a change in the defense strategy? Cant answer that w/o knowing more about the case (transcripts, court opinions, etc.). From what you write here, only the process service was the issue. I dont see how that would change a defense strategy on the merits of the complaint.
Whats this "package" ? Define more clearly ... sounds like a contract that was served in which the receiver claims was not served right but acknowledged what was in it but now claims that since the service was faulty (and even knowing the contents) that the "package" should not have been considered as being binding due to the incorrect service. This is likely not a correct viewpoint or opinion. -
09-06-2010, 09:17 AMMr. KnowitallRe: Harmless Error vs Reversible Error
You're being deliberately opaque about the facts, but we can piece things together from your prior threads. After you were by all appearances served, apparently while in a different state (Hawaii), with a TRO obtained by your spouse in Washington, you called her.
After being served with the TRO, you participated by phone in a hearing where you tried to have it set aside:Quote:
Quoting TheJKH1999
You were charged with violating the TRO in Washington and, at trial, you objected to introduction of the Proof of Service from the person who served the TRO upon you as he wasn't available in court for you to cross-examine. Your defense in Washington was that you were not served with the order, and thus couldn't be prosecuted with its violation. An officer testified that he had heard a recording of the call, apparently that he recognized your voice from the recording, and presumably that it contained threats. The prosecutor offered as evidence of impeachment the proof of service documenting service upon you in Hawaii, and after some discussion the trial court permitted the introduction of the proof of service. You were subsequently convicted.Quote:
Quoting TheJKH1999
On appeal the Court of Appeals held that you should have been permitted to cross-examine the process server, and thus that the introduction of the proof of service violated your Sixth Amendment rights. They nonetheless found the introduction of the proof of service to be harmless error because you had appeared (by phone) at the hearing on the TRO and would not have known of that hearing had you not been served.
You attempted to argue on appeal that you might have learned about the Washington order and hearing by other means, such as by looking them up online, but apparently had not introduced any evidence to that effect at trial. The appellate court concluded that, as it could be reasonably inferred from the admissible facts and evidence that you had been served, the trial court's admission of the proof of service was harmless error (i.e., it found, beyond a reasonable doubt, that the introduction of the evidence would not have affected the outcome of your trial.)
Is that about right?Quote:
Quoting State v. Guloy, 104 Wn.2d 412, 705 P. 2d 1182 (1985)
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09-06-2010, 11:41 AMTheJKH1999Re: Harmless Error vs Reversible Error
OK, I guess we wont deal with my question but instead questions from people who are not offering any information to the original question. Almost seems like a court room, here we are to deal with one matter but instead we will waste a entire day of the judges time on other matters just to get back to where we were in the beginning of the morning!
I underlined where you had to ASS-U-ME
lets break it down section by section.
yes except I didn't call her after I was served, I have never called her once I was served even till today 3 years later even though I have current visitation rights to my son living there, I wont even call him for fear that she could answer HIS phone and claim a violation of the WA order. I already had court orders from HI giving me all the visitation rights, a order that has been in effect for 5 years prior to her moving to WA and that I have never violated AND WA doesn't want to try to take jurisdiction from HI for but instead just make a whole new set of rules of their own that override HI's.Quote:
Quoting Mr. Knowitall
Not really opaque, kind of more of a aqua tinted glass, see, I wanted people to see the facts and give the info that I need and I was trying to keep the side trackers out of it by not letting them offer me advice on my case instead of just the info I asked for. ohh well, I tried. I'm just asking for a simple few cases that someone may have come across doing research, not argue my whole case, like we are doing now, see how this is counterproductive?????
lets start with the first ASS-U-ME you made. I had objected to the POS they had because it wasn't the real POS, not because I found a loophole. see my buddy is a cop, he is also my neighbor, we live in a small town where everyone knows everyone so when this subpoena came in they looked at him and said "you have his number, call him and have him come pick it up at the station" I did pick it up but never filled out a POS, he confirmed this with me after I asked him about a POS. The POS WA has is a WA POS, how would a HI officer get a WA POS? It was not completely filled out, it only had a signature on it that we couldn't read, it didn't have his name printed, only a box that said "peace officer" was marked. HPD protocol is to print out your full name, rank and unit, THEN sign. On the WA POS you couldn't read the signature AND it wasn't the officer that served me or ANYONE that works in that station! you also couldn't read the address and my signature was similar to mine but NOT MINE!! Then there was the problem of the WA POS being dated a FULL 10 DAYS PRIOR TO THE DAY I WAS SERVED!! Add in the fact that they couldn't verify where it came from? the judge let the prosecutor stick her neck on the line and she said it was faxed into her office from another office, but where did it originate? maybe, just maybe my ex faxed it in????Quote:
Quoting Mr. Knowitall
Now see where the problem is with the POS?? we didn't want to spend a whole day arguing it and bringing in 15 officers from HI or anything like that, we didn't need to, we had Melendez-Diaz, we KNEW they couldn't come up with a witness, not that he just wasn't there, you know, the whole reason for Melendez-Diaz!! We knew it was correct and used that. Now when the judge admitted the POS we had to change strategy and strictly argue the "transcripts of a recording".
So now we get to ASS-U-ME #2
As I clearly shown above that wasn't our strategy at all was it?
#3 First, even till this day the officer has never heard my voice, he even stated that on the stand. Now I understand where your coming from with the presumption of a threat, in order for a court to take this so far there would need to be the immediate threat of harm or disruption in quality of life right? Officer Sleaze (I cant make this stuff up!!) also stated that the recording he heard was a calm voice simply saying
"Hello____, this is ____ and I'm concerned about our son, you made some claims about his mental health that worries me about his condition, I would also like to let you know I know about court on Aug 8th but I need to let you know that HI court is on Aug 9th and the information is waiting at your mailbox. You need to be there or court will go on this time with out you"
Now that may not be verbatim but it is very close. It was so NON confrontational that he said on stand that he at first thought it was a message from her lawyer in the normal course of business!
that was the only 2 piece's of information, the POS and this transcript. When asked my ex stated on stand that I had called at night and a couple days later called the cops, the prosecutor quickly told her to re-read her police statement and my stated "oh, that's right, he called me in the morning and I immediately called the police"!! seems kind of fishy that I say I only called at 7pm as per HI court order and this violation call came at 10AM, when asked her memory says I called at night but the paper the prosecutor had her fill out said I called in the morning.
Great now you got me side tracking my own thread!!
I actually don't understand that sentence that "The prosecutor offered as evidence of impeachment"?? OH, I get it, you ASS-U-ME my defense was that I called her but didn't know I was supposed to? NO, I never took the stand, I didn't have any witnesses. They had a POS and A transcript, I didn't think I needed anything else. We got my ex to say on stand that she would have lost custody if she were taking to HI court and that WA thwarted that HI hearing, we got her to say I called at night instead of the morning, we got her to admit she lied in HI court and very drastically, we got the officer Sleaze to say he couldn't say who the recording was from, he didn't write down or remember the number on the caller ID, his own error caused the destruction of the tape and that the call sounded like normal course of business and not a threat. We also to him to admit he couldn't read the POS, couldn't say where it was served or who served it only that my name was clearly written on it, in fact my name and the date was the only filled in part you could read!! we didn't think we needed anything further, they only had my ex saying it was me, the officers transcript of a recording and a POS, we thought we had covered all our bases.
I believe the thing that sank the titanic on this case was that we had 12 members of a jury pool and could only use 6 for my trial. Now out of the 12, 9 of them where either victims of DV or active advocates working in the DV industry!! no matter how we sliced it at best we could get 3 of our 6 jurors as already against me!! we ended up getting 5 victims/advocates on my 6 juror panel!!
YES, you get it!! now the question is without the POS would the Jury know for certain that beyond a reasonable doubt that I KNEW I wasn't allowed to call her, I highly doubt it. I also don't think the appellant judge could say beyond a reasonable doubt that the lack of POS wouldn't have affected my trial results.Quote:
Quoting Mr. Knowitall
and the clincher? on stand we got my ex to admit she was calling me and my mother telling us that "you will never see_______(our son) again after aug 8th, WA will make sure of that"!!
I wonder how I could have known about the WA hearing? did I know what it was for, I had a vague idea but I didn't know I wasn't allowed to call her!
[/QUOTE]Quote:
Quoting Mr. Knowitall
UH, NO, again with the ASS-U-ME......
on appeals I only argued the POS, I didn't think in a million years it would have been found harmless because of the transcript saying I knew about hearing. I admit that we were so focused on the POS we lost sight of the big picture and didn't look at avenues of attack that the opposition had, for that I am paying a hefty price. I still think that even though I lost a battle that we will still win the war.
Quote:
Quoting Mr. Knowitall
I don't know, you might have assumed a couple things and maybe lacking knowledge in other things?
so now I have wasted my time answering your questions. I cant say that you wasted my time because I am a rational human being (even if I am a supreme being :) ) and know that I made the decision to answer all this and was not forced.
Now the point of the board is to give information you may have to help others, clearly in this thread the two of you did not do this, in fact one could argue you did the exact opposite!
Now I challenge you, to redeem yourselves to come up with either a appeal that was proven reversible error for having so drastically changed the defense strategy that they could not argue their original point or to come up with WA rules on determining harmless vs. reversible.
I keep finding the same cookie cutter answer "if it affects the outcome of the trial or sentencing", is the the illusive "analysis"? is it that simple?
Thank you for any information