"Properly understood, classical contract theory supports the freedom to bargain over criminal punishment. At the same time, there are fundamental structural impediments in the plea bargaining context that may underlie the widespread antipathy to the practice."
The COI was discovered to be factual subsequent the plea offer, and the offer was made in bad faith, nullifying it. Most criminal cases end in plea bargains. These plea agreements are contracts. Once signed, the obligations of the agreement must be honored.
However, "[f]raud vitiates the most solemn contracts, documents and even judgments." (U.S. v. Throckmorton, 98 US 61). Courts treat plea bargains as contracts between prosecutors and defendants. A defendant breaking a plea bargain is akin to a breach of contract, which will result in the prosecutor no longer being bound by his or her obligation in the plea deal. The same must be true in the reverse, to satisfy due process requirements of conforming to traditional notions of fair play and substantial justice.
CA-PEN § 170 provides: "Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor".
CA-BPC § 6128(a) provides: "every attorney is guilty of a misdemeanor who either is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or. . . .any party. . . .and is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both".
The essence of false imprisonment is the intentional, unlawful, and unconsented restraint by one person of the physical liberty of another. CA-PEN § 236 provides: "false imprisonment is the unlawful violation of the personal liberty of another", and CA-PEN § 237(a) provides: "if the false imprisonment be effected by fraud, or deceit, it shall be punishable by imprisonment pursuant to subdivision (h) of Section 1170".
CA-PEN § 141(c) provides: "A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years".
CA-PEN § 141(d) provides: "This section does not preclude prosecution under both this section and any other law".
Counsel also arouses culpable suspicion by ridiculously stating that: “on a number of different occasions” (i.e. once, before Judge *******) “[i]t was explained  that ALL PD videos are silent for the first 30 or 120 seconds, depending on when the videos were made” i.e. 06/27/2017. This inane assertion is easily defeated by the following:
(a) Police Department Procedure; June 18, 2014; § 1.49; Axon Body Worn Cameras; II. Scope: This procedure applies to all Department members; III. Background: Law enforcement’s use of in-car cameras and body worn cameras has proven effective...Video cannot always show the full story nor does it capture an entire scene. Persons reviewing recordings must also be cautious before conclusions are reached about what the video shows; V. Procedure: B. General: 7. Personal computer equipment and software programs shall not be utilized when making copies of digital evidence.
(b) C. BWC Modes of Operation (TASER models): 2. Buffering Mode is when a BWC is on but has not been activated to record both sound and video. While in the buffering mode, the camera will continuously record only video in 30 second loops.
The buffered video (not audio) captured directly before the event will be saved and attached to the event in permanent memory.
Repeated pressing of the Event button turns the recordings on and off and creates separate media segments.
I.7.e. Officers will always document why the BWC was intentionally deactivated during an enforcement contact. (Police Department Procedure; September 26, 2017)
3. Event Mode is when the Event button is activated and the camera is recording both audio and video. (Police Department Procedure; September 26, 2017)
”With default settings, the system does not capture audio in BUFFERING mode, so anything recorded in that mode will be video-only. Buffering mode starts only after the Axon Body 2 camera is turned on” (Axon Body 2 Camera User Manual; ©2017 Axon Enterprise, Inc.).
Each segment, as received by the City Attorney, has had the first 30 seconds of audio deleted from the footage, indicating that there was an underlying purpose for tampering with said evidence, in general.
(“ALL SDPD videos are silent for the first 30 or 120 seconds”, DCA; 2019)
“An agency can extend the BUFFERING mode’s duration to 2 minutes total (00:02:00)”
(Axon Body 2 Camera User Manual; ©2017 Axon Enterprise, Inc.).
“An agency can configure the BUFFERING mode so it records sound as well as video”
(Axon Body 2 Camera User Manual; ©2017 Axon Enterprise, Inc.).
(c) F. Camera Position: Officers shall wear the BWC above the midline of their torso. Officers shall utilize their viewers to ensure the BWC is in a position where the field of view provides for effective recording. Officers shall not intentionally obscure the view of their body worn camera.
I.1.a. All officers who are issued a BWC shall keep their BWC on Buffering Mode/Stand-by Mode while on duty.
In Chapter 3: Recording with the Axon Body 2 Camera; on page 8 of the Axon Body 2 Camera User Manual, the instructions read: “When you need to record, quickly double-press the EVENT button on the camera. To stop recording and return to BUFFERING mode, press and hold the EVENT button for approximately 4 seconds. The moment you double-press the EVENT button, both video and audio will be recorded from the camera”.
The EVENT button is located in the center of the device. At 09:29:05 of the third segment of officer A's BWC footage, he is observed as engaging in a face to face conversation with officer B, the reporting officer,, who does not quickly double-press the EVENT button, located at the center of the device he was wearing above the midline of his torso, in full view of officer A's BWC.
09:29:05 is precicely when the fourth segment of officer B's footage resumes, after purportedly being turned off for approximately 7 minutes (between 09:22:04 and 09:29:05), according to the timestamps appearing in the top right-hand corner of each video segment.
If officer B is not observed turning his BWC back on, and with both hands down at his sides prior to 09:29:05, after magically turning it off, then Accused has presented damning evidence in support of the footage being altered, because both officers were operating according to department procedure, which “applies to all Department members” with respect to their BWC's.
“You cannot use Axon View or the mobile device to delete or alter original video files on the Axon camera” (https://help.axon.com/hc/en-us/artic...s-in-the-field).
Why then, would 21 minutes, 9 seconds be missing from officer B's BWC footage, and a full 47 minutes from officer A's footage? Perhaps Counsel can provide the court with a reasonable, and rational, technical explanation, and a rational answer as to why there was a request for a Protective Order stipulating that the use of the evidence be limited to the instant matter, instead of a civil action under Title 42 U.S.C. §§ 1983; 1985(3); 18 U.S.C. §§ 241; 242?.
I am WELL within MY legal rights.
My argument focuses on a defective bargaining process due to a systematically unfair and distributionally unjust outcome. To a large extent, this kind of horse trading determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.
Be cautious of where the emphasis is placed, on the term "criminal", when using it in the phrase "criminal justice/just-us/just-ice system".
Critics point to the seeming hypocrisy of using an elaborate trial process as window dressing, while doing all the real business of the system through the most unelaborate process imaginable. They emphasize the unfairness (and inaccuracy) of determining defendants' fate without full investigation, without testimony and evidence and impartial fact finding; they emphasize too how this unfairness disproportionately harms the poor and unsophisticated...especially, they note the pervasiveness of coercion and fraud in the system.
I may be poor...but, I'm FAR from unsophisticated. But, I AM the "snippet" king!! LOL!!!
"Defendants accept bargains because of the threat of much harsher penalties after trial; they are thus forced to give up the protections that the trial system's many formalities provide. And judges often give bargained-for sentences because of what prosecutors and defense lawyers do not say at sentencing; the sentencing hearing seems rigged to support the deal..."
"These criticisms often are rooted in the meaning and scope of various constitutional rights".
Thus, collateral attack on a coerced plea bargain, which has its origin in contract, in the norms that define the boundaries of acceptable exchange elsewhere in the legal system, is a valid legal strategy. For two particularly pungent versions of this argument, see Kipnis, supra note 10, at 97-99 (analogizing a defendant's choice in plea bargaining to threat at gunpoint).
Heumann's book, though not so critical of the institution of plea bargaining, confirms that bargains are essentially about how to present the case to the judge, a notion that suggests a certain amount of deception and concealment. See: HEUMANN, supra note 5, at 38-39, 43-46.
cf: https://photos.app.goo.gl/F7mm1YRRsV7atd27A & https://photos.app.goo.gl/p9KasyrncL7nUhez90
Force, fraud, and even distributional unfairness are all grounds for restricting contract. If they are pervasive in the plea bargaining process, then plea bargaining should be abolished, not as a matter of constitutional law, but as a matter of contract law and contract principles. Hence, the opinion expressed in U.S. v. Throckmorton, 98 US 61, as cited herein above.
The freedom to exchange entitlements subsumes a freedom to contract for such an exchange.Either freedom is supported by norms of efficiency and autonomy. Parties who are denied either freedom to contract or freedom to exchange entitlements suffer unnecessary constraints on their choices, constraints that undermine the value of the entitlements themselves.
No State shall pass any Law impairing the Obligation of Contracts (U.S. Const. Art.1 Sec. 10; see also CA-Const. Art.1 Sec. 9. "A law impairing the obligation of contracts may not be passed").
Again...force, fraud, and even distributional unfairness are all grounds for restricting contract.
This norm of expanded choice is so powerful in ordinary contracts that it justifies not only state subsidization of an enforcement mechanism, but also an array of default rules that delineate the terms of typical bargains, terms that define the contractual relationship unless the parties design their own alternatives.
"Fraud vitiates the most solemn contracts, documents and even judgments." (U.S. v. Throckmorton, 98 US 61).
This normative principle has long been recognized in theoretical welfare economics. See Kelvin Lancaster, Welfare Propositions in Terms of Consistency and Expanded Choice, 68 EcoN. J. 464 (1959). As in the "health, safety and welfare" of the public at large.
The expanded choice norm has been the foundation for the developing theory of default rules in contract.
See. e.g., Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 YALE LJ. 87 (1989) [hereinafter Ayres & Gertner, Filling Gaps]; Ian Ayres & Robert Gertner, Strategic Contractual Inefficiency and the Optimal Choice of Legal Rules, 101 YALE L.J. 729(1992) [hereinafter Ayres & Gertner, Strategic Contractual Inefficiency]; Lucian A. Bebchuk & Steven Shavell, Information and the Scope of Liability for Breach of Contract: The Rule of Hadley v. Baxendale,7 J.L. ECON. & ORGANIZATION 284 (1991); Jules L. Coleman et al., A Bargaining Theory Approach to Default Provisions and Disclosure Rules in Contract Law, 12 HARV. J.L. & PUB. POL'Y 639 (1989); Richard Craswell, Contract Law, Default Rules and the Philosophy of Promising, 88 MICH. L. REV. 489 (1989);Jason S. Johnston, Strategic Bargaining and the Economic Theory of Contract Default Rules, 100 YALE U. 615 (1990); Alan Schwartz, A Theory of Loan Priorities, 18 J. LEGAL STUD. 209 (1989); Robert E.Scott, A Relational Theory of Default Rules for Commercial Contracts, 19 J. LEGAL STUD. 597 (1990).
As with the typical executory contract, the parties to plea bargains do not actually trade the entitlements per se; instead they exchange the risks that future contingencies may materialize ex post that will lead one or the other to regret the ex ante bargain.
Hence, my collateral attack on said contract, in the form of a MTV-Conviction under CA-PEN § 1473.6.
Thus...Accused/Plaintiff is entitled to substantial presumed general damages for the denial of his right to due process independent of any proved injury, because mental and emotional distress are compensable injuries under Title 42 U.S.C. § 1983.
Since it is difficult to know a priori which party enjoys the comparative advantage in risk reduction, a policy of contractual autonomy is the only way that parties can reduce the social losses that result from uncertainty and frustrated expectations.
Public corruption is the FBI’s top criminal investigative priority, as it poses a fundamental threat to our national security and way of life. It can affect everything including how verdicts are handed down in courts.
Plea bargaining provides a means by which prosecutors can obtain a larger net return from criminal convictions, holding resources constant.
Kleptocracy means "the rule by thieves", and is a form of political corruption in which the ruling government seeks personal gain and status at the expense of the governed...under the guise of "safety and welfare" interests.
In short,the existence of entitlements implies the right to exploit those entitlements fully,which in turn implies the right to trade the entitlement or any of its associated risks.
Another way to frame this argument is to say that the socially correct sentences are the ones judges and juries give, not the ones that prosecutors negotiate.
Prosecutors are imperfect representatives of social interests...in other words, agency costs seriously infect the criminal justice process. Schulhofer,Criminal Justice Discretion, supra note 4, at 49-53.
As Principal, one of the physical and temporally inhabitant People, of the geographic location, known since 1850 as the State of California, who did not subscribe his name to a Power of Attorney in the presence of a notary public (nor did any others for that matter), conferring Agency and Apparent Authority upon ******* * **** to represent him on his behalf in conducting the prosecution of others, Accused wishes Counsel to refrain from addressing the instant adversarial proceeding as a “cause” instituted under Our Names and by Our Authority pursuant to CA-GOV §§ 100(a)(b); 11120, because no one can sue in the name of another without Our Consent. Fiction of law is wrongful if it works loss or injury to anyone.
The expression of those things which are tacitly implied operates nothing. “The burden of proving the existence of an agency rests on the one affirming its existence”. (Burbank v. National Casualty Co. (1941) 43 Cal.App.2d 773, 781 [111 P.2d 740]). Counsel's personal affirmation can be found on page 5 of her Opposition to Accused's 1473.6 MTVC, but offers no proof in support of her assertion. What is expressed, renders what is implied, silent.
Accused formally challenges, denies, and objects to any further contentions based on said affirmation. Fictions arise from the law, and not law from fictions, and where truth is, fiction of law does not exist.
Many people might find it welfare maximizing to sell their right to vote or their right to criticize particular government officials; sales of such entitlements are nevertheless forbidden.
The use of the court system is not chargeable to either the defense or the prosecution.
In contexts where differentiation is feasible, the analysis changes-that is why, for example, deception and dishonesty in police interrogation are normatively acceptable[???], while similar tactics in plea bargaining are not.
Santobello v. New York, 404 U.S. 257 (1971); Brady v. United States, 397 U.S. 742 (1970). A contracts perspective not only helps explain this doctrinal conclusion, it arguably provides the reason for that conclusion. See McCoy & Mirra, supra note 21, at 910 (concluding that decisions rejecting constitutional challenges to plea bargaining "seem attributable to an assumption that plea bargaining is merely a contractual arrangement between a defendant and the state").
Albert Alschuler argued that the practice is contractually deficient in a host of ways: many of the bargains are unconscionable; defendants accept prosecutors' offers under duress; the poor and ignorant suffer disproportionately; the bargains are the product of irrationality and mistake.
Albert Alschuler graduated magna cum laude from the Harvard Law School and was Case Editor of the Harvard Law Review.
Preserving the core of this idea requires rules that prohibit enforcement where individual promises were the product of duress or unconscionable information deficits, or where the parties lacked the capacity and judgment [and/or the lack of withheld information] to evaluate the risks being exchanged.
A second class of objections focuses more directly on the outcome of certain bargains. The idea here is that the bargains themselves are faulty, regardless of whether the bargaining process was rational.
The contract arguments that focus on bad consequences are conceptually appropriate for such a claim, but the contract arguments that center on defective processes are ill-suited for a global critique. Doctrines such as fraud, unconscionability, and duress assume a regime in which enforcement is the norm. These doctrines only selectively deny enforceability.
Mmmmmmm...shoes are delicious.
Under ordinary contract principles, a duress defense is successful if the defending party can prove that he would not have entered into the contract absent the improperly coercive behavior of the other contracting party. See: all of the above.
The duress claim must be based on the acts or conduct of the promisee and not merely on the necessities of the promisor. The wrongful acts that constitute duress may be either physical force or an improper threat, but in any case the compulsion must be "produced" by the promisee and not by exigent circumstances confronting the promisor.
With respect to the plea, when it was realized that Accused was going to continue being denied substantial notions of fair play and substantial justice, in equity, and that the class of one discrimination and character assassination/false light defamation, engaged in by the entire prosecution team, was likely to continue in front of a biased jury, during a trial that could not in any real sense be termed fair, Accused preserved his commercial and civil rights, by signing the prosecutor's plea agreement, under duress, and threat of the prospect of continued treatment, by the prosecutors, being different than others similarly situated. It is lawful to repel force by force, provided it be done not for the purpose of taking revenge, but to ward off injury. He who uses his legal rights, harms no one.
Put another way, the norm of expanded choice is solely concerned with the marginal effects of the contract on an individual's choices. An offer that exploits those circumstances is nevertheless value enhancing, and enforcement is appropriate.
How does duress, thus conceived, apply in the plea bargaining context? The duress argument against plea bargaining is that the large differential between post-trial and post-plea sentences creates a coercive environment in which the criminal defendant has no real alternative but to plead guilty. No plea produced by that sort of pressure could be deemed voluntary.
The fact that classical duress does not infect the majority of plea bargains does not completely answer the coercion claim. The doctrine of unconscionability provides an alternative argument for non-enforceability.
Procedural unconscionability, on the other hand, refers to practices that impermissibly limit a party's ability to make rational choices about whether to accept the bargain or about its terms.
The substantive branch of unconscionability has little relevance for plea bargaining.
There are no collateral terms that severely disadvantage the defendant or deprive him of the essence of what was bargained for.
But, to continue being denied substantial notions of fair play and substantial justice, in equity, and the class of one discrimination and character assassination/false light defamation, engaged in by the entire prosecution team, being likely to continue in front of a biased jury, during a trial that could not in any real sense be termed fair, demonstrates practices that impermissibly limit a party's ability to make rational choices about whether to accept the bargain or about its terms, which in turn creates a coercive environment in which the criminal defendant has no real alternative but to plead guilty. No plea produced by that sort of pressure could be deemed voluntary.
Thus, claims that plea bargains are generally unconscionable must rest on non-substantive or procedural grounds. Thus, this most common claim of unconscionability is really a claim of fraudulent concealment. Even if their decisionmaking is informed, and even if bargains are not the product of fraud or duress, defendants are victimized because they are in general unable to assess their "true" interests when they bargain with the government.
According to some studies, individuals tend both to overestimate the likelihood of conjunctive events, such as events leading to conviction, resultant of deliberately withheld information, and to underestimate the likelihood of disjunctive events, such as acquittal after trial.
And as a general matter, defendants are permitted to rescind bargains up to the time they enter their pleas, as long as they have not induced substantial detrimental reliance by the government.
CA-PEN § 1018 provides in pertinent part: "every plea shall be withdrawn by the defendant himself in open court. On application of the defendant at any time within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. This section shall be liberally construed to effect these objects and to promote justice".
The plea bargaining process more than satisfies the minimum standards set by contract law for the exercise of contractual autonomy. The argument does not imply doing away with plea bargaining; it only implies regulating plea bargains to a greater extent than we regulate other contracts. The latter, implying that plea bargains are contracts, in fact.
Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101Yale L.J.(1992)...the article appears to be fairly recent.
"Liberty is too important to be allocated by unregulated bargaining". . . .the article appears to be consistent with my position.
Sykes holds that claims that are not timely raised according to the governing procedural law (meaning in this context any claim that a defendant seeks to raise after an unconditional guilty plea) can only be raised in subsequent collateral proceedings if there was "cause" for the default, and also if the default "prejudiced" the outcome. Id. at 86-87, 90-91; see also John C. Jeffries, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U. CHI. L. REV. 679, 681-90(1990) (describing Sykes doctrine).
Penal Code section 1054.1,subdivision (b) requires disclosure of statements made by “all defendants.”This includes any statement to which the defendant has been a party,including all wiretapped conversations.(Peoplev.Jackson (2005) 129 Cal.app.4th 129,169-170.)The prosecution must disclose all statements of all defendants. (Thompson v.Superior Court(1997)53 Cal.App.4th 480,484,fn.2.).
The foregoing would tend to include the audio portion deleted from the BWC footage, wherein Accused asks officer B, if he suspected him of having committed, was about to commit, or was in the process of committing, a "crime", to which the officer refused to reply despite his legal obligation.
It is not sufficient to require the defense to view the materials at the prosecutor’s office,as this would impact the defendant’s right to the effective assistance of counsel and his right to a speedy trial. (Westerfield v.Superior Court (2002) 99 Cal.app.4th 994,998.)
Penal Code section 1054.1,subdivision (b) applies only to witnesses.The prosecution is required to disclose defendants’ statements without limitation. (People v.Jackson (2005) 129 Cal.App.4th 129,169.) The prosecution cannot limit disclosure of a defendant’s statements by arguing that they are not relevant.
Pursuant to Brady v. Maryland (1963) 373 U.S.83 [10 L.Ed.2d 215,83 S.Ct.1194], the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request, a general request,or none at all. (People v. Maciel (2013) 57 Cal.4th 482,551; In re Brown (1998) 17 Cal. 4th 873,879.) The duty is with the prosecution,since “[a] rule ...declaring‘prosecutor may hide,defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process ...” (Banks v. Dretke (2004) 540 U.S.668,696.) The duty of disclosure applies to evidence held by the police or other government personnel even if the prosecutor is unaware of the existence of the evidence.(Youngblood v.West Virginia (2006) 547 U.S.867,869-870; People v. Uribe (2008) 162Cal.App.4th 1457,1475-1481.) Under the Fourteenth Amendment's due process clause, prosecutors must disclose evidence to a criminal defendant when it is “‘both favorable to the defendant and material on either guilt or punishment.’ [Citations.] Evidence is ‘favorable’ if it hurts the prosecution or helps the defense.[Citation.] ‘Evidence is “material” “only if there is a reasonable probability that,had [it]been disclosed to the defense,the result...would have been different.” ’ ” (People v. Earp (1999) 20 Cal.4th 826, 866; accord, People v. Morrison (2004) 34 Cal.4th 698,741; see also Brady, supra, 373 U.S.at p.87.).
Thus, in order to successfully claim that evidence was withheld in violation of Brady, it must be shown that (1) the evidence was favorable to the defendant; (2) it was suppressed by the state; and (3) it was material. (Strickler v.Greene (1999) 527 U.S. 263, 282-282.).