Pro Se Chicago's Weblog

January 17, 2017

Help when children falsely removed by DCFS in Cook County, IL


Who to Contact if children falsely removed by DCFS

The Family Defense Center

70 E. Lake St, Suite 1100
Chicago, IL 60601
Phone: 312-251-9800
Fax: 312-251-9801
fdc@familydefensecenter.org

The Family Defense Center is a nonprofit organization whose mission is to advocate justice for families in the child welfare system. We advocate for families who need our help the most: families threatened with losing their children to foster care. Nothing is more painful for a child than to be taken from the only parents he or she knows. Yet, child protection systems throughout America frequently remove children from parents as a first resort, not a last resort. Many parents lose custody of their children to state foster care systems primarily because they are poor or because they are victims of abuse themselves. Far too many children in foster care bounce from home to home and are separated from siblings. Any family can be the victim of a false, harassing, or misguided Hotline call.

We handle the following types of cases: We do not generally handle the following types of cases:
  • Ongoing DCFS investigations for abuse or neglect
  • Safety Plan negotiations
  • Appeals of Indicated findings and Administrative Review Actions
  • A limited number of Juvenile Court cases in which DCFS is attempting to take protective custody if we have been counseling the client during an open investigation
  • Civil rights cases alleging violations of the 4th and 14th amendments.
  • Precedential appellate cases
  • Divorce
  • Parentage/paternity
  • Child Support
  • Criminal cases
  • Open Juvenile Court cases (this means that if your Juvenile Court case has already started when you first contact us, we will most likely not be able to offer you legal representation)
  • Adoption
  • Private custody cases
  • Guardianship
  • Cases in Domestic Relations Court such as Orders of Protection
  • DCFS foster care placement appeals

 

November 6, 2016

From Ken Ditkowsky on the need for more courtwatchers — MaryGSykes.com

Filed under: Uncategorized — Linda Shelton @ 11:07 pm

A few years ago here in Illinois the League of Woman Voters sent their members out to be ‘court watchers.’ The Court watchers reported some of the outrageous actions that were evident is some of the Courts. The constant pressure brought a measure of reform that has since dissipated. The Court […]

via From Ken Ditkowsky on the need for more courtwatchers — MaryGSykes.com

May 21, 2016

New Trial Setting Call System replaces Black Line Call in Cook County Courts


Law division cases will now be scheduled for a trial setting date in courtroom 2005 either 15 months or 28 months from the date filed. All litigants will receive postcard notice of such hearings. The new system is explained in the following order from the new Law Division Presiding Judge. This Trial Setting Call system replaces the unconstitutional Black Line Call System.

STATE OF ILLINOIS           )
)  SS
COUNTY OF COOK            )

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION

GENERAL ADMINISTRATIVE ORDER 16-2 TRIAL SETTING CALL

IT IS HEREBY ORDERED: Effective April  1 , 2016, the Black Line Call currently heard in Courtroom 2006 will be replaced by a Trial Setting Call, that will also be heard in Courtroom 2006.

I.  The following Law Division Black Line Call General Administrative Orders are hereby vacated: 03-1, 04-2, 05-1, 05-2 and 06-1.

II.  Law Division Master Calendar System:

A. Cases included in the Master Calendar System:

  1.   All cases currently assigned to the Motion Calendar Section of the Law Division as designated by the Presiding Judge of the Law Division.

B. Cases excluded from the Master Calendar System:

  1.   All cases currently assigned to the Individual General Calendar Section, Individual Commercial Calendar Section, or the Tax and Miscellaneous Remedies Section of the Law Division, unless designated by specific order.

C.  The Master Calendar System consists of the following:

  1.   Motion Calendars as designated by the Presiding Judge of the Law
  2.   (Courtroom 2006) Trial Setting
  3.   (Courtroom 2005) Trial Call, Trial Setting Status Call, Prove-up Call and Motion Calls.
  4.   Trial Rooms as designated by the Presiding Judge of the Law Division.

Ill.      This General Administrative Order will apply to all cases currently assigned to the Law Divisions Master Calendar System and all cases filed in the future assigned to the Master Calendar System as designated by the Presiding Judge of the Law Division.

IV.     Master Calendar Case Designations:

A.  Category 1 Case Type: All cases assigned to the Master Calendar excluding: Medical Malpractice, Legal Malpractice, Product Liability and Construction

  1.   Trial Setting Date will be approximately 15 months from the filing date of the
  2.   Trial Setting Date: Electronic or postcard notice will be sent by the Clerk of the Circuit Court to all parties of record or pro se litigants approximately twelve (12)months from the filing date of the
  3.   Trial Setting Date will be approximately 90 days from the date electronic or postcard notice is sent out.

B.  Category 2 Case Type: Medical Malpractice, Legal Malpractice, Product Liability  and Construction Injury

  1.   Trial Setting Date will be approximately 28 months from the filing date of the lawsuit.
  2.   Trial Setting Date: Electronic or postcard notice will be sent by the Clerk of the Circuit Court to all parties of record or pro se litigants approximately twenty-four {24) months from the filing date of the Lawsuit.
  3.   Trial Setting Date will be approximately 120 days from the date electronic or postcard notice is sent out.

V.  All cases appearing on the Trial Setting Call will receive Trial All parties should discuss, prior to appearing for Trial Setting, reasonable Trial Dates to suggest to the Court on the Trial Setting Date.

VI.  Motion Procedure for Master Calendar Cases:

A. The assigned Motion Judge will address all discovery issues and hear all motions excluding motions to continue a trial, motions to vacate, alter, modify, or reconsider orders entered in Courtroom 2005 or 2006 and those motions that must be presented to the Presiding Judge of the Law Division by Circuit Court General Order. These excluded motions should be presented on the appropriate Courtroom 2005 Motion Call.

B.  All motions to continue trial on a case assigned to the Master Calendar Section must be presented to the Presiding Judge of the Law Division or his or her designee on the appropriate Courtroom 2005 motion call. Motion Judges may not set or continue a case for trial.

C.  If all discovery is complete and pending motions ruled upon, the assigned Motion Judge shall enter a Trial Certification This order shall be entered prior to any assigned trial date. If the certified case has no assigned trial date, the case shall be placed on the Trial Setting Status Call in Court room 2005, fourteen (l 4) days from the entry date, for the attorneys to appear and receive a trial date. Failure to have a trial certification order entered will not serve as a basis to continue the trial date.

D.  If at any time All Parties Agree that their case is ready for trial they may present a motion in Courtroom 2005 for Immediate Trial Assignment and the case will be assigned by random computer assignment for the trial to begin

VII. The Transition from the Black Line Trial Call to the Trial Setting Call:

A.  Commencing April I , 2016, Master Calendar Cases will no longer enter the Black Line Pool of

B.  Cases will no longer be categorized or re-categorized, removed from the Black Line Pool or re-sequences within the Black Line

C.  The Black Line Call will continue in Courtroom 2006, until all cases currently in the Black Line Pool have been assigned a trial

D. Cases not currently in the Black Line Pool will be identified as Transition

  1.  The Transition Trial Setting Call shall be conducted from May l, 2016 through July 31, 2016, in Courtroom 2006, with the oldest cases appearing first.
  2. The cases identified for transition will begin appearing in Courtroom 2006 at a rate approximately 60 per day for Trial
  3. Electronic or postcard notice will be sent out to attorneys and all pro se litigants to appear in Courtroom 2006 on the Transition Trial Setting Call, at least thirty (30) days prior to the court
  4. Parties shall be assigned a trial date on the Transition Trial Setting Call, and should discuss an agreed upon trial date, prior to their appearance on the Transition Trial Setting
  5. Effective July 31, 2016, the transition process shall be

VIII. Trial Setting Call

A. Effective August 1, 2016, the Trial Setting Call will commence in Courtroom 2006 with up to thirty (30) cases appearing per day, based on case type and filing

IX.  Nothing in this order will limit the inherent power and discretion of any Judge to enter an order the Judge feels is

It is further ordered that this Order be spread upon the records of this Court.

Dated at Chicago, Illinois this 23rd day of March, 20 1 6.

Honorable James P. Flannery Jr.

Presiding Judge Law Division

March 18, 2016

How to get your kids’ school records if divorced


This was recommended by David Bambic and Heather Stern – activists trying to reform family courts and make them follow the law!

Help with getting School records here is the format that is used at any and all schools works in 50 states.
Subject: fepra letter/REQUEST FOR FILES
EXAMPLE XXXXXXXX IL. SCHOOL DISTRICT XXX
PROVEN IT WORKS IN THIS ILLINOIS DISTRICTS
Principal :EMAIL ADDRESS

XXXXXX Middle School
SCHOOL ADDRESS HERE

RE (XXXXXX X XXXXXX) D.O.B. (XX/XX/XXXX) S.S. (ss number)
SEVNTH (seventh )
PARENT NAME
ADDRESS
XXXXXX IL.XXXXX

Dear Principal Please send complete records of the
above student, my (son or daughter), to me at the above
address.

Test results, application forms, cumulative scholastic
records, enrollment records, health records, and any
other information concerning my (son or daughter), are
also requested. Please include grades of all subjects
to date. If the grading system is in the least
unusual, please include an interpretation. Also please
include all “shot” records, vaccination records, and
immunization records, insurance records, counsellor’s
reports, accident reports, incident reports,
enrollment cards and report cards. You are also
requested to include all records of or involving
psychological counseling, testing, etc.

In addition, please send me copies of all
“developmental evaluation”, psychological and
psychiatric evaluations, test results and reports,
Division of Youth and Family Services (DYFS) reports.
Division of Social Services reports, home studies,
custody evaluations, copies of any and all requests
received from any source concerning (FULL NAME OF CHILD)
as well as any other documents, reports,
correspondence and the like in (FULL NAME OF CHILD)
file. Please send copies of all documents related to
or in connection with any case worker or social worker
investigation, interviews, etc. I, also, request that
I receive copies of all notices and material sent to
the custodial parent.

I also request that copies of all of the
aforementioned type of reports, etc. that become
available as (FULL NAME OF CHILD) progresses through the
(XXXXXXXX Middle School ) be sent to me as they become part of his record or are available to the school. As you are most likely aware, being a professional educator in the teaching and/or school administration profession, Federal Law requires that I be furnished all of the above information. Your attention is directed to The Family Educational Rights and Privacy act (FERPA), Public Law 93-380, Title 20, USCA Section 1232(g), et. seq. and Title 20, USCA Section 93-568 et seq. As you also know, and your local school board lawyer will be glad to confirm and verify this for you, Federal Law requires that this information, files, papers, documents, etc. cannot be kept from me and must be released to either parent if requested. This is a formal written request, pursuant to the above cited FERPA. In the event any of the above requested reports or information is legitimately confidential by law, and not allowed to be released to me, I request that the rest of this request be considered separately, and an itemized list of the reacted items be included. Sincerely, PARENTS FULL NAME
FULL ADDRESS
E-MAIL CONACT: XXXXXXXXXXXXX@XXXXX
PHONE CONTACT :1-XXX-XXX-XXXX

August 25, 2015

Sample appeal – Illinois small claims court – landlord steals items


Small claims court can be frustrating when judges look down on pro se plaintiffs and simply rubber stamp everything the defendant’s lawyer states.  This is a sample appeal of such an unjust ruling where the plaintiff lost due to I believe purposeful misconduct of an attorney and a judge. Read the Appellant’s brief here.

Note that appeals are not like trials. The Appellate Court may ONLY consider information on the record on appeal and in the transcripts. YOU CAN NOT ADD new evidence or information. Therefore, at trial in the local court, make a list and make sure you have all your witnesses and evidence or you won’t be able to add it later.  If the judge refuses to hear a witness or allow you to introduce evidence, then ask the judge to “make an offer of proof” (i.e. to have the  person testify or admit the evidence without it being considered just so that it is on the record). If you anticipate this will be a problem, then file the evidence or affidavit instead of as a motion, label it an “offer of proof” and file it in your case attached to this “offer of proof” where you state you are filing this offer of proof and why you are doing so.

The litigants names and case number were changed so they remain anonymous, except for the name of the corrupt landlord’s corporation and the judge.

Remember, in small claims, Illinois Supreme Court Rules 286(b) allows a small claims court to hear and view all relevant evidence, admit evidence with more relaxed rules of procedure and rules of evidence upon order of the court. This means the court may allow affidavits as evidence and not require the presence of a witness and may allow documents to be admitted without strict rules of authentication.

You must follow strictly all appeal rules, so don’t forget to read Illinois Supreme Court Rules for civil appeals and your local court rules also. Illinois Supreme Court Rules are here. If you don’t follow them, your appeal will be rejected.

Note strict rules such as:

  • 1 1/2 inch margin on left
  • requirement of certification page stating you followed the rules as to page limits
  • you use an appendix and not exhibits
  • the appendix must include an index to the record on appeal and the transcripts (if any), that the page number of testimony of specific witnesses must be indexed and that if you did not have a court reporter and made a “bystander’s report” instead that it is also in index, a copy of the order appealed from, and a copy of the notice of appeal
  • notice of filing and service and filing of record on appeal or record of proceedings (transcripts)
  • don’t forget to include your $50 filing fee or a petition for indigency (see Illinois Supreme Court web site and your local appellate court division’s rules)
  • bind the appeal brief securely on the left side (three staples is OK)

Note that you can not just make conclusory statements (“They ripped me off”).  You must back up all your statements, documents, testimony with evidence (testimony by witnesses, documents and reference to “authorities”), with case law (where a court has interpreted a law and said this is how the rules or statutes work and what they mean), or back it up with reference to other authorities (statutes, supreme court rule, administrative rules – note statutes are sent to administrative rules committee and then an administrative rule is made – many pro se litigants are not aware of this – see here; there are similar administrative rules in federal law and all state laws).

August 5, 2015

Sample of Illinois Petition for Leave to Appeal & Petition to Appeal as a Right in Illinois Supreme Court


The Illinois Supreme Court is a real stickler for details. You MUST follow their rules. Rules for civil appeals. Rules for criminal appeals.

Appeals are a difficult nut to crack. Remember that every statement you make must be backed up by reference to where it is on the record, to case law, or to statute, rule, code, or administrative regulation. You should not make arguments that you have not backed-up in this manner. Do not make conclusions of fact or law in your argument that are not backed-up. Also remember that you CANNOT add evidence or use hearsay. You can ONLY APPEAL THAT WHICH IS ALREADY ON THE RECORD (in the record of proceedings = transcripts, or in the record on appeal = court file). If you did not preserve the issue for review = keep it on the record, object at the trial, in the post-trial motions, and on appeal, you cannot argue it.  There are VERY FEW issues that are not subject to the requirement to “preserve the issue for review”. This is a complex topic that you should read a bit about before writing your appeal.

Feel free to use this petition for appeal to the Illinois Supreme Court that was recently submitted. (I’ve changed the names and case numbers for privacy purposes). Read both the petition and the appendix to petition which has attached a blank court order that must be included, although you do not have to give them 20 copies of the order, just one.

I am not an attorney, just a paralegal, so if you use this petition as an example to follow, you do so at your own risk and should check the Illinois Supreme Court Rules for appeals, as well as with an attorney before you sign and submit your petition. There may be errors here that I have not caught.

Remember you have to pay a $50 filing fee as fee was recently raised so include a check or a petition for waiver of fees due to indigence.

You must sent an original and 19 copies of petition plus appendix, plus a stamped envelope and extra copy if you want the clerk to return a date-stamped copy.

Typeface must be 12-point or larger EVEN IN FOOTNOTES.

Page limit is 20 excluding cover sheet, affidavit of compliance with page limits, and notice of filing, although if you call the clerk, they may say that the signature or one sentence extra on 21st page is OK.

The margins must be 1 1/2 inches on the left and 1 inch on all other sides.

The document must be securely bound along the left side, not with just one staple. Three staples are OK.

You must discuss the standard of review for each point in your argument – de novo = only issues of law; abuse of discretion would include issues of fact, but this is a bit complicated so do some research on standard of review for your type of issue.

Appeal is a a right if the issues are issues of first impression, which means that they involve laws that have never before been interpreted by the Illinois Supreme Court = there is no previous opinion on an issue which is similar (i.e. “on point” with your issue).

July 13, 2015

Replacing a bad public defender – possible but difficult


When public defenders refuse to listen to the defendant’s story, refuse to investigate the case, refuse to follow the law, refuse to tell the court when the court is violating law, are abrupt, rude, and harmful to defendants like ignoring their disability needs or indigency status when bail is set, and especially when they fail to subject the case to adversarial testing, then they should be replaced.  Legally when a defendant tells the judge that the PD is doing these things, the judge is obligated to question the defendant to see if there is a basis for ruling ineffective assistance of counsel and replacing the PD. The State’s Attorney may NOT participate in this stage 1 questioning. Yet they almost always do. The judges rarely listen to defendants who complain about PDs, but their failure to do so is a reversible error if it affects the outcome of the case. Attorneys will rarely help you with this issue unless the symptoms of misconduct of the PD are obvious like appearing in court drunk or not appearing in court at all. So, generally, defendants who are being abused by the system and rely on the PD due to indigency are scr**ed. This is where the ACLU and other public interest legal foundations should play a more active role, but so far they don’t.

The following is a summary of the present state of law in Illinois regarding these manners.

REPLACING A BAD PUBLIC DEFENDER – DIFFICULT BUT POSSIBLE:

NOTE: This refers to Illinois and federal case law – you must research the laws in your state.

CASE LAW CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL.

  • GENERAL ISSUE – STRICKLAND TWO-PRONG TEST ON APPEAL
  1. The Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)) Schell v. Witek, 218 F.3d 1017, ¶ 35 (9th Cir. 1991)
  2. The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, on appeal, an appellate court must apply the two-prong test set forth in Strickland Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
  3. Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome–or put another way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s performance.
  4. To prevail, the defendant must satisfy both prongs of the Strickland Colon, 225 Ill.2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the first prong of the Strickland test when the second prong cannot be satisfied.
  • STRICKLAND – PREJUDICE PRESUMED CRITERIA (HATTERY & CRONIC)
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court has noted that the Court in Strickland recognized that “there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill.2d 449, 461 (1985). Situations warranting the presumption of prejudice include cases in which (1) there is a complete denial of counsel at a critical stage of the trial, or (2)counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984); see Angarola, 387 Ill.App.3d at 735. Additionally, a more limited presumption of prejudice exists where counsel has a genuine conflict of interest. Strickland, 466 U.S. at 692. “Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). Our supreme court has emphasized that a “defendant faces a high burden before he can forsake the two-part Strickland test” by meeting the Cronic standard. People v. Johnson, 128 Ill.2d 253, 270 (1989).
  2. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, the defendant argued that the Cronic standard applied. Cronic, 466 U.S. at 658 (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). Although in the Stanford case the court said this argument was inopposite, our supreme court did note that in some cases it may be on point when the trial court summarily dismissed the defendants’ motions for new counsel without any inquiry: United States v. Nguyen, 262 F.3d 998, 1003–04 (9th Cir.2001) (where the defendant’s counsel of choice appeared and requested leave to be substituted in for the PD and requested a continuance and the trial court made no inquiry into the defendant’s dissatisfaction with appointed counsel, the trial court abused its discretion in denying the substitution motion); . . . Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970) (holding that the defendant’s being embroiled in an irreconcilable conflict with his attorney warranted reversal where the defendant was dissatisfied and would not cooperate with the attorney and the trial court summarily dismissed the defendant’s four motions for new counsel WITHOUT ANY INQUIRY).
  • STRICKLAND ERROR REQUIRES ESTABLISH INEFFECTIVENESS COUNSEL
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court stated that even if the counsel’s comments were enough to require the trial court to conduct an inquire into the effectiveness of counsel, “the error is not reversible unless defendant establishes that counsel was ineffective. See People v. Ogurek, 356 Ill.App.3d 429, 434 (2005)”
  2. It is instructive that the 9th Circuit Court of Appeals held: “When forced to choose between incompetent counsel and pro se representation . . . . we concluded that no showing of prejudice was required because Crandall was improperly left with no counsel at all” (quoting Crandell v. Bunnell, 144 F.3d 1213, 1214 (9th Cir. 1998)) and quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”)). Schell v. Witek, 218 F.3d 1017, ¶ 34 (9th Cir. 1991)
  3. Thus, the ultimate constitutional question the federal courts must answer is not whether the state trial court “abused its discretion” in not deciding defendant’s motion, but whether this error actually violated defendant’s constitutional rights in that the conflict between defendant and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment. Schell v. Witek, 218 F.3d 1017, ¶ 36 (9th Cir. 1991)
  • EFFECTIVENESS OF PD MUST BE ESTABLISHED BEFORE COLLATERAL ISSUES CONSIDERED (FIRST IMPRESSION ISSUE IN ILLINOIS)
  1. It is instructive, as this is an issue of first impression in Illinois that in People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23 (1990), the California Supreme Court held that a motion to replace incompetent counsel must be heard before a collateral hearing on issue of competency [or fitness] because “the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the [51 Cal. 3d 88] defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied.’ (People v. Carr (1972) 8 Cal. 3d 287, 299 [104 Cal. Rptr. 705, 502 P.2d 513]; accord People v. Burton (1989) 48 Cal. 3d 843, 855 [258 Cal. Rptr. 184, 771 P.2d 1270];People v. Moore (1988) 47 Cal. 3d 63, 76 [ 252 Cal. Rptr. 494, 762 P.2d 1218]; People v. Smith (1985) 38 Cal. 3d 945, 956 [216 Cal. Rptr. 98, 702 P.2d 180]; People v. Walker (1976) 18 Cal. 3d 232, 238 [133 Cal. Rptr. 520, 555 P.2d 306].)”
  2. The California Supreme Court clarified this concept further in its Marsden decision [now a rule in Cal.] which held that a trial judge abuses his discretion when he boldly states that the court has observed that the PD was performing admirably, but fails to give the defendant an opportunity to explain his/her concerns about ineffective assistance of counsel. This is on point with Illinois Supreme Court rule 63 which requires the court to hear the defendant:

Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” …. It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants’ shortcomings in representing themselves, are to be highly commended.”  (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)

  • PD INEFFECTIVE WHEN FAIL TO ALERT COURT OF COURT’S ERRORS
  1. There are a number of cases where it is instructive that the federal courts have found error when the PD failed to bring to the attention of the court statutory, legal, or constitutional errors made by the court:
    1. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s statutory mis-statements that state sentence could run concurrent with potential federal sentence);
    2. United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal); Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request); Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant; Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel); United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel;
    3. Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses;
    4. Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (Failure to investigate mitigating evidence was ineffective assistance); Hinton v. Alabama, 2014 U.S. 136440, 571 U. S. ____ (2014) (Defendant prejudiced by ineffective assistance of PD, when the PD refused to hire an expert witness due to his ignorance of the law fundamental to the case);
  • MUST HOLD EVIDENTIARY HEARING ON DEFENDANT’S POST-TRIAL MOTION AS TO INEFFECTIVE ASSISTANCE COUNSEL BEFORE HEARING POST-TRIAL MOTIONS [HERE MOTION FOR RESTORATION OF FITNESS AFTER TRIAL FINDING UNFIT]
  1. The Illinois Supreme Court in People v. Krankel, 102 ILL.2d 181, 183 (1984) held that the “[T]rial Court erred in failing to appoint counsel other than defendant’s originally appointed counsel  to argue his pro se motion alleging ineffective assistance of counsel.” See also People v. Moore, 2003 Ill. 87958, 207 Ill.2d 68, 77-78 (2003) (First stage is to examine defendant as to basis of claim of ineffective counsel and if lacks merit then not required to appoint counsel to argue it; defendant is not required to renew claim of ineffective counsel for purposes of appeal).
  2. In People v. Jolly, 2015 Ill. 117142 at ¶ 38, the Illinois Supreme Court held that the First Stage examination of defendant concerning ineffective counsel is held WITHOUT the adversarial participation of the State’s Attorney because there is no substitute counsel arguing the defendant’s position. The Court also held that when an adversarial proceeding is held that the remedy is to hold a new Krankel hearing before a different judge. At ¶ 46
  3. The Illinois Supreme Court, in People v. Jocko, 2010 Ill. 108465, at p.4-6, 239 Ill. 2d (2010) &, held that although a two-prong Strickland hearing cannot be held pretrial as it cannot be determined if the errors affected the outcome of the trial (i.e. determine prejudice), it is required to hold a pre-trial evidentiary hearing concerning ineffective assistance of counsel only when prejudice is not relevant as when bail issues are concerned (Jocko at p 5), when there are conflicts of interest (Jocko at p. 4, 239 Ill.2d at 92 quoting Holloway v. Arkansas, 435 U.S. 475 (1978)), or when there is complete deprivation of counsel (Jocko at p. 4, 239 Ill.2d at 92 quoting Cronic 466 U.S. at 659 )

March 15, 2015

Show support for Dr Linda Shelton against false arrest, attempt to shut her up by injustice system

Filed under: Uncategorized — Linda Shelton @ 3:16 pm

Shelton is in need of extreme grass roots help in fighting the system who is trying to shut her up.  If you enjoy this blog and want to read more, read this here.

November 28, 2014

Why grand juries and trials so easily fixed and manipulated by attorneys


What is a grand jury, how does it work, and what is it’s purpose?

A grand jury is a group of citizens brought together to consider evidence in order to determine only one thing – Is there probable cause to charge a person with a crime? It is supposed to be a safeguard against the state bringing outrageous charges against innocent people for the purpose of harassment, but it has turned into a joke as the jurors don’t understand what they are doing, what they can do, the purpose of the grand jury, and how grand juries are manipulated which is clearly and in great detail explained in the link to an article available on line in this post.

Probable cause is not proof of innocence or guilt. It is just evidence that may be hearsay or untrue, suggesting a person committed a crime. It has to include all the elements of a crime. (For example: Elements of trespass to state supported land are that a person was told to leave and did not and that their actions interrupted a citizen’s use of services in the state owned building.)

Probable cause evidence is presented to the grand jury solely by the prosecutor in a closed secret hearing. Usually the defendant is not called as a witness nor is he or she aware that a grand jury has been called in their  case and only the most minimal amount of evidence, including hearsay allegations without proof, are presented to the grand jury.

The grand jury has the right to call witnesses and question witnesses, but they never do, as they are urged to work quickly, usually hearing a case in a minute or two at the most and their instructions are rarely explained to them in a clear unhurried fashion.

The defense has no rights in a grand jury, except that the U.S. Supreme Court has ruled that the prosecutor may not strike foul blows by giving knowingly false information or exluding such overwhelming exculpatory evidence that there is no way a grand jury would find probable cause. (Like excluding the video in the Garner case).

There is no double jeopardy with a grand jury.  That means the prosecutor may call a new grand jury and try to get an indictment again, as long as it is within the statute of limitations for the crime.

This article explains in great detail why confirmatory bias taints particularly one-sided presentations like the Brown case to the grand jury, as well as trials if they are not extremely fair, and even if they are “fair.” One of the most striking findings in emotional cases is that the jury remembers what is said first no matter what else is said and may blank out all other testimony. There are psychological reasons for this fact.

This is why grand juries must be given evidence only by special prosecutors when the defendants are people who the state’s attorney interacts with daily – like police & judges. This is why police are almost never successfully indicted. Read it carefully. Think of laws that must be changed in order to firmly control this bias. 

Click here to read article: Memo of Law – Confirmatory Bias

SUMMARY OF ARTICLE

Confirmation bias, also called myside bias, is the tendency to search for, interpret, or prioritize information in a way that confirms one’s beliefs or hypotheses. It is a type of cognitive bias and a systematic error of inductive reasoning. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for emotionally charged issues and for deeply entrenched beliefs. People also tend to interpret ambiguous evidence as supporting their existing position. Biased search, interpretation and memory have been invoked to explain attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence), belief perseverance (when beliefs persist after the evidence for them is shown to be false), the irrational primacy effect (a greater reliance on information encountered early in a series) and illusory correlation (when people falsely perceive an association between two events or situations)

November 25, 2014

How confirmatory bias taints the law – a must read for all attorneys


There is a concept in psychology and psychiatry termed confirmatory bias, which often adversely influences the judgment of officers, attorneys, judges, and juries, resulting in biased, unfair or unlawful arrests, decisions and convictions. It is the unfortunate human tendency for each individual to become part of a position, to hold that position regardless and to hear only that which supports that position, a phenomenon known as “confirmatory bias”. Dr. Richard Rappaport, a nationally renowned member of the American Academy of Psychiatry and the Law concluded in an editorial in a leading Journal for the American Academy of Psychiatry and the Law, in 2006, that AZ, a civil rights activist, had been abused by the courts and police due to this principle, when they falsely labeled her as psychotic and treated her as an escaped mental patient, disregarding everything she said, withholding medication needed for medical illnesses that threatened her life, and even beat her.[1] In the 2013 murder trial of David Camm, the defense argued that Camm was charged for the murders of his wife and two children solely because of confirmation bias within the investigation.[2] Confirmatory bias is pervasive in law. It is an area which is ripe for increased efforts to recognize it, as well as for legislation and rules that incorporate methods to reduce it.  To see the rest of this article click here: HOW CONFIRMATORY BIAS TAINTS THE LAW

[1] Editorial:  Losing Your Rights: Complications of Misdiagnosis,  written by Dr. Richard Rappaport, J Am Acad Psychiatry Law 34:436-8, 2006

[2] “David Camm Blog: Investigation under fire”. WDRB. October 10, 2013.

 

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