Pete's Criminal Trial

[ClobberroTestii]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

I think you're catching on!

No, I'm not "catching on." I'm way ahead of you.

That's a matter of opinion but perhaps you would care to elaborate.

[Dezcad]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

I must concur with Famspear. The question for me is, what remedy or right has been lost by the failure to initially follow a local rule? Will the ultimate disposition of this motion be affected by the initial denial of the motion? Does any error, regardless of the effect it has upon the result, create a case of "ineffective assistance of counsel"?

[ClobberroTestii]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Clobberro, what could be lacking from your perspective is a sense of proportion. You seem to feel that Hendrickson has been "denied competent and effective counsel" merely because his counsel failed to "abide by a simple local rule," etc., as you put it.

I must concur with Famspear. The question for me is, what remedy or right has been lost by the failure to initially follow a local rule? Will the ultimate disposition of this motion be affected by the initial denial of the motion? Does any error, regardless of the effect it has upon the result, create a case of "ineffective assistance of counsel"?

The facts surrounding this failed motion are a matter of record and speak for themselves. The defendant has a right to competent and effective counsel no matter the ultimate disposition of this motion and simple errors made by an attorney that should know better are inexcusable regardless of the effect they have on the result.

[grixit]

I don't think any of PH's "prior bad acts" will be excluded since they are all closely related. But of course, he deserves a lawyer who'll try it.

[LPC]

My understanding of what is on the docket so far:

1. The defendant has the right to know what evidence the government intends to introduce at trial, particularly evidence of prior acts. That's basic discovery practice.

2. The defense lawyer filed a motion to compel disclosure of the prior acts the government intends to introduce into evidence. That's good lawyering.

3. A local rule requires the parties to try to settle disputes before filing motions, and to let the court know that they tried, and the defense lawyer failed to do that. Failing to follow local rules can be (or should be) a little embarrassing, but no harm was done (except perhaps to annoy the judge somewhat).

4. Fortunately for the defense, the prosecution may have provided a counter-annoyance:

1. On January 6, 2009, counsel for Defendant spoke to Assistant United States Attorney Michael Leibson and asked him whether the government intended to offer certain evidence contained in the discovery under Rule 404(b) because, if so, Defendant intended to file a Motion in Limine seeking exclusion of the evidence. AUSA Leibson stated that he did not know whether the government would be seeking to introduce the evidence. AUSA Leibson suggested that Defendant file a standard motion requesting notice of any 404(b) evidence. For that reason, Defendant is filing this motion.

From the tone of the first order denying defendant's motion, I think that the court is likely to be pissed to learn that a "standard motion" has been filed because the AUSA can't make up his mind (assuming that what the defense lawyer has stated is an accurate description of their telephone conversation). It almost sounds as if the AUSA is stalling for time, and telling the defense to file a motion in order to give the AUSA more time to make up his mind. That's not something the judge is going to want to hear.

I don't know what the court is going to do, but if the AUSA isn't careful, he might find himself barred from introducing evidence of Hendrickson's prior guilty plea and conviction for failing to file an income tax return (which I believe would otherwise be admissible to show willfulness). I don't think that the judge will do that, and the judge will simply order the AUSA to disclose, but I think the judge will let the AUSA know that he thought about it, and might do it the next time it looks like the AUSA is stonewalling for no good reason.

[The Operative]

The facts surrounding this failed motion are a matter of record and speak for themselves. The defendant has a right to competent and effective counsel no matter the ultimate disposition of this motion and simple errors made by an attorney that should know better are inexcusable regardless of the effect they have on the result.

Let's look at the events:

Jan. 7 - PH's attorney files motion for notice regarding 404(b) evidence
Jan. 9 - Judge denies motion basically telling PH's attorney she was supposed to conference with the other party first.
Also on Jan. 9 - PH's attorney files a revised motion that includes the fact that she spoke to the other party on Jan. 6

In other words, the bulk of the local rule was followed. Only the part about including the details of the conference in the motion was overlooked. This is a minor annoyance and I would bet that there are instances where a Judge has overlooked the same rule and granted a similar motion that did not have those details.

PH's attorney is, so far, providing an adequately zealous defense. She asked for the information from the AUSA. The AUSA stalled. She asked the court to give the AUSA a push, only she didn't phrase the request in accordance with a local rule. So, she again asks the court to give the AUSA a push and follows the local rule. End of story.

[ASITStands]

In light of Dan's observation, did the defense "trap" the AUSA into an untenable position?

I can see it both ways. Defense erred, and the AUSA is stalling. The judge ain't gonna like it.

[Famspear]

Speaking of Blowhard Hendrickson's legal defense -- and the cost thereof -- somebody is worried (user "netgazer" at losthorizons.com):

When I inquired how the financial support was going to bolster Pete's case, the answer was disappointing. With over 11,000 registered members in this forum we should be able to raise an army of cash when needed...AND THAT IS NOW!
There's lots of interest in, and talk about Pete's trials (and tribulations) so let's go one step beyond the chatter. How about every time you post a new message, or reply to an existing thread, you signify your financial support by ending your subject line with "I GAVE," (and really give.) It's kind of like the sticker at the voting booth that said "I voted."
Our grandfathers knew well the expression "put your money where your mouth is." Legal support costs more than free speech and good wishes. Don't wait; give now.

http://www.losthorizons.com/phpBB/viewtopic.php?t=1272

(bolding added).

User "Netgazer" receives some response, and he/she comments further:

Badger, you're absolutely right about the cost of litigation. I too have experienced that burden.

IF WE EXPECT PETE TO HAVE A FIGHTING CHANCE WE NEED TO SUPPORT HIM!

Where are the rest of you? It's easy to slip a Franklin into an envelope and send him on his way. [ . . . ]

And, a further post by netgazer:

[ . . . .] We all know that legal proceedings cost money, and lots of it. Now, I'm not Pete's shill, but I'll be his town crier, especially since there's so much chatter on the forum that politely ignores that Pete's under indictment, and he's appealing another case, one they're sure to bring up in his trial. He needs our support or we'll be sending him postcards just like Irwin Schiff.
Either we have the numbers, AND the resolve, or we're just a bunch of malcontents to be swatted aside. We need a big stick, and it costs money.
WHERE ARE ALL OF YOU? NOW IS THE TIME TO STEP UP!

(bolding added).

Poetic justice: Hopefully, all the money those losthorizoner crooks (i.e., those "malcontents" who are "to be swatted aside") raise for PeterEricBlowhardMeister Hendrickson will end up where it should: in the pocket of Pete's lawyer. And if Blowhard ends up being convicted again, and going to prison again......

oh well........

[Imalawman]

From my perspective, I see a defendant denied competent and effective counsel because a professional attorney failed to abide by a simple local rule, a rule no doubt designed to conserve the resources of the court, and thereby waste precious time on the eve of the deadline for all pretrial motions. What could be lacking from such a perspective?

Really? You're serious? Please tell me you were just kidding, because that's bordering on a whole new level of stupidity.

[ClobberroTestii]

Really? You're serious? Please tell me you were just kidding, because that's bordering on a whole new level of stupidity.

I see that you are a connoisseur of the art of the knee jerk abrasive and provocative empty response !

[Prof]

Really? You're serious? Please tell me you were just kidding, because that's bordering on a whole new level of stupidity.

I see that you are a connoisseur of the art of the knee jerk abrasive and provocative empty response !

Your "concern" about an absolutely trivial error, trivial judicial response, and trivial pleading curing the matter make you a something less than a connoisseur of trial law and trials.

Now that the judge has pointed out his local rule on pre-motion conferences -- for the 1000th time -- the two lawyers involved will (hopefully) play nice and not bother the nice judge with pre-trial discovery and disclosure disputes. In other words, if that's the worst thing that the defense lawyer does "today," its a very good "day" in the somewhat messy world of trial practice.

NB: I used to have a "bench rule"-- discovery disputes may very well cost someone a $50 sanction. I didn't have to use the rule very many times. Or, as Charles Barkley said about his daughter's possible boyfriends, "I figure if I kill the first one, word will get around."

[Judge Roy Bean]

....I see that you are a connoisseur of the art of the knee jerk abrasive and provocative empty response !

I would instead suggest you misjudged the issue and are working far too diligently to defend your now discredited too-quick analysis.

Judge Bean's rules for counsel (sorry, I don't number 'em): Respond, don't just react.

[notorial dissent]

As far as I can see at the moment, there has been a great deal of verbiage expended over what is at best a trivial nonevent in the scheme of things. We have a defense attorney, who if memory serves is delving into waters not her own, and who may or may not have gotten caught on a local rule she was unaware of. Not much in the grand scheme of things one way or another. The plain fact of the matter is that if she doesn’t automatically assume, and prepare for Pete’s past to haunt them throughout the trial, she is in for a rough and unpleasant ride. Short or mordant stupidity breaking out at the AUSA’s office, I can see no reason or circumstances were at least some of Pete’s prior bad acts are not going to come trouping across the stage to add further embarrassment to an already embarrassing production. Whether or not the AUSA actually intended to use them, they may actually have not made up their minds to do so, and this will now force them to make that decision, and it won’t be in Pete’s favor, plus, it is a sure bet that between Pete’s big mouth and admissible prior actions, most if not all of it will get in eventually, so this is a non argument, it is not an if but a when event on the horizon.

[Famspear]

. . . . prepare for Pete’s past to haunt them throughout the trial . . . . .

Perhaps Pete's past presents a pernicious, perspiratory predicament for Pontificating Pete and his precariously, pertinaciously, prevaricating Pinheads over at losthorizons dot com.......

[Lambkin]

You forgot perseverating!

[ClobberroTestii]

I am not surprised that incompetents in the legal profession indulge themselves in trivializing the incompetence of their peers.

[Nikki]

or that L&O law school graduates apply their keen knowledge of legal procedure to analyze the subtleties and impact of a minor local rule.

[webhick]

or that L&O law school graduates apply their keen knowledge of legal procedure to analyze the subtleties and impact of a minor local rule.

This L&O graduate thought it was a pretty minor flub that, because it was corrected quickly, won't make one damn bit of difference one way or the other. But I'm sure that ClobberroTestii never made a minor mistake in his/her line of work that, to an outsider uneducated or self-educated in the field, appeared larger than what it was. Otherwise, he/she'd have to be declared incompetent in his/her chosen field, just as he/she has declared Pete's attorney incompetent.

[webhick]

The plain fact of the matter is that if she doesn’t automatically assume, and prepare for Pete’s past to haunt them throughout the trial, she is in for a rough and unpleasant ride.

Do you mean she called in Sammy & Dean from Supernatural to gank the ghost of Pete's past? If she did, I'd totally be there for the trial. Dean's really yummy to look at.

[Demosthenes]

I am not surprised that incompetents in the legal profession indulge themselves in trivializing the incompetence of their peers.

This from a guy who thinks Pete's legal theories hold water.

Clobberro used to post on the old Lost Horizons board as Biggdooger.