Thursday, December 13, 2007

kanBARoo Court. 16th Installment. What happened?

Nobody ventured a prediction as to how the court would rule, and I can't say I blame you. The court was in a nice predicament, and who could say what it would do? If it entered my default, I'm out of court and the Hearing Department avoids the Review Department's interlocutory review. The cost, however, is setting me up to win on an appeal based — not on my theory that the Bar hasn't pled its case with specificity (which may or may not be mooted) — but on the concrete and specific facts of court's failure to protect my due process rights from the prosecutrix's incursions.

What was the alternative? If the court denied the motion to dismiss, it would be countenancing my accusations of deputy trial counsel's intermeddling. This would then require that it investigate and disbar her, to the shame of the State Bar and with uncalculated implications for my case and other cases she has handled. As close and as subordinating as the relations are between the office of the prosecutrix's boss and the judge, this was unlikely.

I'm now going to get the anticlimactic ending out of the way, to proceed without that pall to the completely unexpected and truly fascinating details. Then to the apperception that the case has matured sufficiently that I can see how I can win it. This case has moved beyond the point where one sets the stage so that favorable events can transpire. The anticlimactic ending is that the judge managed to deny the prosecutrix's motion to enter default based on an apparently technical fault in the prosecutrix's motion.

Boring in appearance; fascinating in essence. First, the court could avoid considering my charges of gross prosecutorial misconduct only because it never saw them. The court never received my opposition papers. The prosecutrix must have had the file copy intercepted or deflected, after receiving her service copy and finding herself inculpated. I find it hard to believe, but in assessing likelihoods, you have to follow the logic of the evidence.

What's fascinating about the way the judge justified denying the motion to enter default was that he was dead wrong about the technicality he invoked. The judge had before him an unopposed motion to enter default that he so strongly needed to deny that he concocted a transparently unsound reason to deny the home team's motion. The judge ruled that the motion was untimely, because it failed to allow the five days for service added to the time ordered by the court. In truth, not only the prosecutrix but I as well believed, and believed correctly, that since the court said 20 days from the order's filing, it meant exactly that, not 20 days from the order's service. Every paralegal knows the distinction.

There are so many things fishy about this that it would be tedious to list more than a couple. Why did the court grant the motion to shorten time, if the motion failed on its face because of untimeliness? Why did the court fail to condition the denial as “without prejudice to remaking the motion," if the court's real reason was mere untimeliness?

What the court did do was vacate the trial date, vacate the pretrial conference date, and set an OSC to consider sanctions for my failing to participate in discovery. I responded the next day (today) with a motion to reconsider the order for an OSC, in light of the "new facts" contained in my deflected opposition to the default. I attached a copy of the deflected opposition as an exhibit and mailed a copy with cover letter to the judge by certified mail, labeled "PERSONAL AND CONFIDENTIAL."

In the installment after the next, I'll discuss how this level of prosecutorial misconduct creates a straight tactical path to prevailing in this matter. The potential contrasts with the anemic pseudostrategies of Bar Establishment defense lawyers, who generally have spent years as deputy trial counsel for the State Bar, where they were thoroughly brainwashed. In the next installment, posted concurrently, I publish my "Motion to Dismiss the Notice of Disciplinary Charges for Failing to State Disciplinable Charges." It sets out the basic procedural legal theory that has gotten this case to this point, although my later papers include some more compelling authorities.

To best understand this blog:

* Consider reading installments 1-7, successively; then,

* Follow your interests.

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