I've got a Defense attorney out of Beaumont representing a Defendant on a couple of criminal cases in Mason County (DWI-2 and a Terr. Threat) Def is also on a felony probation from another county and has already delat wit the MTR.

I have been hit with every measure of pretrial motion including Petition for Writ of Habeas Corpus(Def. is out on bail, Motion to Change Venue (no affidavits and a request to move to Def. attny's home county...how convenient), Motion for Hearing to Determine Voluntariness of Confession (there is no confession), Motions to Suppress, Motions to Invoke Rule and for Witness Summaries, Motions for Jury Questionnaire, Discovery Motions (I have an open file policy), Motions in Limine and to Restrict Prosecution Statement and Argument, etc.

Of course, a lot of this is boiler plate stuff that has no bearing on these two cases. My judge is a statutory county court judge(non-lawyer), and typically doesn't see all of this motion practice. I've already provided this guy with the offense reports witness statements and video (i.e. every thing I have). After receiving this is when I get this mound of paperwork. Any suggestions on how to handle these? I dont want to wade through all of this irrelevant stuff on a 2-3 hour hearing that my judge is trying to comprehend.

Can you even have a Writ of Habeas Corpus on a misdemeanor Def. out on bail? (I've never seen a habeas in my misdemeanor practice). How do I respond to this?

Any suggestions?

Thanks,
Shain

Ask your judge to schedule separate hearings for each motion. Like one hearing every Tuesday morning for the next 10 weeks...

This will be little skin off your nose but the distance between Mason and Beaumont HA! I hope he has an airplane!

I bet he withdraws the nonsense motions in a hurry.

Invite the attorney into your office and explain that your open file policy is about to be amended to exclude lawyers who file frivolous motions.

Along the same lines . . . Discovery Motion on an MTR? Is this a valid motion? I like the idea of requesting separate hearings to reduce frivolous motions, but couldn't there be problems with that strategy?

And just to make sure I keep my procedural ducks in a row . . . I've been told by one person in my office that defense's motion for (and subsequent order granting) blood sample [DWI] must include the name of the lab that he/she plans to send it to for testing in order for DPS to release the sample. Another person says that is not a requirement - neither has cited statute or caselaw and my non-lawyer judge wants to do the right thing.

Brand new defense attorney, first time in trial? That whole scene sounds like it's this guy or gal's first rodeo and he/she's afraid of missing something.

Actually, he's a 25 year crim. defense attorney out of Beaumont with a dot.com web site as the advocate of the wrongfully accused ("your rights, their law, my passion!"). He argued the writ of habeas corpus based upon a '77 case where the prosecutor didn't put on any evidence of probable cause at the hearing. (Ex Parte Garcia, 547 S.W.2d 271). I put on my probable cause testimony from the trooper. Afterwards he withdrew all of his other motions. Pain in the rear to paper me with all that unnecessary crap.

Regarding listing the name of the lab to receive the evidence from the DPS lab for independent testing, I am surprised that the defense attorney has not realized that if DPS turns over the evidence directly to the defense attorney so he or she can carry it to the other lab, the defense attorney has just caused a HUGE gap in chain of custody which could lead to credibility issues (possibility of substitution of samples, etc.). We occasionally get calls from people wanting to get a hold of a blood specimen taken from a person who died in an auto accident for purposes of DNA paternity testing. We tell them to get a court order specifying which lab we should mail the specimen to for testing purposes. This maintains chain of custody so no tampering issues.

Janette A

Baby Prosecutor and Baby Defense Attorney. What fun

Thank you for the help. Glad to understand the process. Also glad I did not mislead the BDA, but don't think I need to explain the why, right?

quote:

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Originally posted by J Ansolabehere:
...I am surprised that the defense attorney has not realized that if DPS turns over the evidence directly to the defense attorney so he or she can carry it to the other lab, the defense attorney has just caused a HUGE gap in chain of custody which could lead to credibility issues
Janette A

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It also makes him a valid anticipated witness in the chain of custody in the event the private lab results "differ" from that of the State. Who should be subpoenaed for trial.

What the heck? This one not from Baby Defense Attorney, but one much [much] older and wiser. Have I overlooked a chapter of the code? Request for discovery, CCP 37.07(3)(g) extraneous bad acts, & 38.37(3) [ sex?? SEX?? It's just hot checks (no, not in payment for . . .].

[This message was edited by Waco on 12-20-07 at .]