It is very late. I have just barely cruised through a very small portion of your site and I must say that I found it quite interesting, and possibly even believable, for the most part.
I will be back to your site to check out some of the rest of it, but I probably should sleep some time pretty soon, eh?
In my thirteen years of practice (In IN, KY and TX), I've seen ONE charge dismissed at arraignment due to lack of substance. (And the bastard didn't even PAY me for getting it ditched! Well, fifty bucks, but if I hadn't gotten it ditched at arraignment, I've gotten at least another three hundred fifty. Oh, well - Life Goes On, eh?)
Anyway - Since they went to the trouble of moving to have the case reinstated, the prosecution is CERTAINLY not going to agree to a dismissal, and the judge is gonna do what ALL judges do, which is to take the easy way out, and pass the case, subpoena the witnesses and let somebody else deal with it.
I was interested in your description of NY practice, though - Fink was NOT associated with your chosen lawyer? How did he expect to be PAID for standing up at your arraignment? In KY and in TX, if a person is unrepresented at arraignment, the judge will often ask an attorney he sees in the courtroom to stand up with the defendant, so as to speed the process along so the judge can get to the greens for the ten o'clock tee, but LIS - Arraignment is a Mere Formality.
Your lawyer is trusted by The System to explain your rights to you; if you stand up before the judge WITHOUT a lawyer, then HE has to explain all of your rights and make "sure" you "understand" them. Fink stood up to do the judge a favor, not to do you any harm nor to fatten his pocketbook in any way that I can see - Perhaps NY is different, but I can't imagine the STATE paying a criminal defense attorney other than Appointed Counsel or a Public Defender ...
All that boring shit out of the way, I really MUST get some shuteye - goddamned alarm clock is gonna start yammering at me in two hours.
P.S. - If you publish any of this, PLEASE mung my address; I get entirely too much spam already.
You are probably right that Mr. Jon Fink could not have gotten the charges dismissed, but at least he could have found out what the charges were. Then, I could have prepared my defense.
We later on did get a bill of particulars, but it provided no information. To this day, I still do not know what they were alleging that I did.
Moreover, now I want to sue my former girlfriend and the DA for false arrest. However, I cannot do that because I do not know what the charges were. The only thing I know is that they were charging me under a statute for "attempted sexual misconduct", whatever that means.
At some point, she was required to provide a corroborating affidavit. Her affidavit, which they subsequently provided, simply said something like "I hereby swear or affirm that the statements made by the prosecutor are true." Again, there was no information which told me what I was accused of doing.
We have a case in New York called the Jovanovic case in which the defendant followed his attorney's advice and said nothing. The result was that Jovanovic was convicted and sentenced to 15 years to life, even though he was absolutely not guilty and trivially so. See http://www.samsloan.com/jovanovi.htm The same thing could easily have happened to me. However, in my case, the prosecutor, whose name was Rodney C. Powis, read my web site about the Passion Julinsey case and even printed it out and showed it to my attorney. This may have been a factor in his decision not to prosecute the case.
The reason Jon Fink stood up was my attorney was not present and, just as you say, there were no more cases that day and the judge wanted to go for tea. So, he had Fink stand up and pretend to represent me. Jon Fink was not connected with my attorney in any way. I would not have objected if Fink had taken me outside the courtroom and given me a chance to explain what the case was all about, but Fink ambushed me by standing up behind me and talking to the judge without me even knowing that he was pretending to represent me. If you will look at the transcript, you will see that he never gave his name or noted his appearance for the record. I had to ask one of the court clerks later on what his name was.
In addition, the transcript is misleading because an argument broke out between myself and Mr. Fink before the court and the court reporter omitted that from the transcript.
My lawyer, Mr. John Monteleone, is an excellent trial attorney and he later told me that he wanted to try this case, because he was certain he would win it. He does not like motion practice. However, I was aware of the dangers of having a determined adversary like Passion Julinsey, who was determined to get her revenge on me, even though there was nothing to get revenge for. I had groveled at her feet and did every thing she ever asked me to do. I would have done absolutely anything she asked me to do. Anything at all. She knew that and often mentioned that fact. I did not even object to the fact that she was dating other men while living and sleeping with me. I hope before I die to find out why she did the things that she did, because to this day I have no idea why she did them. I do not know why she attacked me repeatedly, when she could have had anything she wanted from me, simply by asking for it. I cannot think of any possible reason why she attacked me, and I think about this question every day.
> Thank you for your letter. However, I disagree.
> You are probably right that Mr. Fink could not have gotten the charges
> dismissed, but at least he could have found out what the charges were.
> Then, I could have prepared my case.
You were charged with "Attempted sexual misconduct", which is a lesser included offense of Sexual Misconduct, which apparently is the name of a statute in the NY Penal Code.
Just off-hand here, I'll say that you folks in NY have got the most confusing state statutes I've ever seen (at least I THINK it was NY - I had to do something in law school years ago that required me to wade through the state stautes of some jurisdiction. As I remember, they seemed to be INTENTIONALLY arranged in as counter-intuitive a fashion as could be devised. But perhaps I've got NY confused with someplace else).
> We later on did get a bill of particulars, but it provided no information.
> To this day, I still do not know what they were alleging that I did.
That is the PURPOSE of a Bill of Particulars, to describe with particularity exactly what events the prosecution thinks it can prove and how, in the prosecutor's opinion, those events constitute a crime.
When the prosecution dumped a "cookie-cutter" BoP on me, I always moved to have the charge dismissed and the judge always gave the prosecutor another chance to follow the law and provide one specifically-tailored to the offense and the defendant charged. One note, though: The BoP is not required in misdemeanor cases except on motion in KY.
> Moreover, now I want to sue my former girlfriend and the DA for false
> arrest. However, I cannot do that because I do not know what the charges
> were. The only thing I know is that they were charging me under a statute
> for "attempted sexual misconduct", whatever that means.
Further, you cannot do that until all charges against you have terminated in your favor. Be sure also that you do not "stipulate probable cause", nor do you allow anyone else to so stipulate on your behalf. Almost ALWAYS the prosecutor asks for such a stipulation before he'll agree to any dismissal. Some judges will go ahead and dismiss the plainly frivolous charges over the objection of the prosecutor, but most are too lazy to do anything that looks like work (after all, that's why they became judges, ya know?)
I once had a client who was arrested for Resisting Arrest.
That's it. Resisting Arrest.
He was sitting on his front porch enjoying the sunshine when a cop came up and asked him to identify himself. He said "I'm Clarence Jones. I live here. Why are you in my yard?"
Officer Stivers said "Do you have any identification?"
Clarence said "Yes, but I'm not giving it to you. Please get your car out of my yard."
"Sir, I'm going to ask you again to please show me your identification."
Clarence said "Ma'am, I'm going to TELL you again to get your goddamned car out of my yard. I'm Clarence Jones and I've lived here for fifty four years and you can ask any of my neighbors who I am and if you don't get your car off of my grass, I'm going to call the Mayor and tell him about you."
At this point, Clarence turned to go inside his house and Babe grabbed his left arm and began pulling. Clarence stuck his right arm through the wrought-iron bars on his security door and started hollering.
Neighbors started coming out and more cops showed up and they eventually got Clarence's arm untangled from the door and put him in the back seat of the cop car and took him to jail where the nurse sent him to the hospital.
When the thing came to court, the persecutor offered to dismiss the charge (of Resisting Arrest), but only if Clarence would stipulate Probable Cause (often abbreviated to "SPC").
So Larry Osterhaig had the unenviable task of standing up in front of six jurors and explaining how this seventy six year old man ought to be convicted of a crime for which he should never have been arrested. (By this time, Clarence had hired another attorney).
Clarence Jones was arrested for Resisting Arrest, and he was actually CONVICTED at trial.
I don't know if an appeal was filed or not; I doubt it, as appeals of misdemeanor convictions are almost NEVER successful - they're often dismissed unread.
Clarence died a couple of months later.
> At some point, she was required to provide a corroborating affidavit.
> Actually, her addfidavit, which they subsequently provided, simply said
> something like "I hereby swear or affirm that the statements made by the
> prosecutor are true." Again, there was no information which told me what I
> was accused of doing.
In KY, that's grounds for a Motion for Dismissal, which is NEVER granted on the first try.
The judge ALWAYS overrules the Motion and requires the Prosecution to come up with a more specific Bill of Particulars.
> We have a case in New York called the Jovanovic case in which the defendant
> followed his attorney's advice and said nothing. The result was that
> Jovanovic was convicted and sentenced to 15 years to life, even though he
> was absolutely not guilty and trivially so. See
> http://www.ishipress.com/jovanovi.htm The same thing could easily have
> happened to me. However, in my case, the prosecutor, whose name was Powis,
> read my web site about the Passion Julinsey case and even printed it out
> and showed it to my attorney. This may have been a factor in his decision
> not to prosecute the case.
So has it been finally dismissed? With prejudice? (I haven't read the whole saga, but until jeopardy attaches or the Statute of Limitations runs, the case isn't finally over).
> The reason Fink stood up was my attorney was not present and just as you
> say there were no more cases on the calender that day and the judge wanted
> to go for tea. So, he had Fink stand up and pretend to represent me. I
> would not have objected if Fink had taken me outside the courtrom and given
> me a chance to explain what the case was all about, but Fink ambushed me by
> standing up behind me and talking to the judge without me even knowing that
> he was pretending to represent me.
The outcome would have been exactly the same had you asked for a reading of the charges, except the judge would have been even more biased in favor of the prosecutor than almost all judges already are. See, judges (especially misdemeanor court judges) sit on that bench and see a parade of Guilty people all day long. Almost all defendants plead Guilty. Before long, most judges tend to assume that almost all defendants ARE Guilty (and they are - Who among us can make it through a single day without violating SOME law? EVERYBODY is Guilty of SOMETHING; we are all, 100%, criminals. But anyway) ...
> In addition, the transcript is misleading because an argument broke out
> between myself and Mr. Fink before the court and the court reporter omitted
> that from the transcript.
That happens. When you were arraigned, Fink "stood up with" you and the judge assigned a date and got up to leave and you objected and said that you wanted a reading of the charges and the judge REFUSED? Now that IS odd ... But not anything that would make any eventual difference.
> My lawyer, Mr. Monteleone, is an excellant trial attorney and he later told
> me that he wanted to try this case because he was certain he would win it.
> He does not like motion practice.
Oh, come on - EVERY lawyer likes motion practice if they can get the motions ruled their way. Any lawyer who tells you he is "Certain" that he'll win at trial is dancing awfully close to making a promise he MIGHT not be able to deliver on. ALMOST certain, I'll grant you, but there's no way to KNOW what those six people are going to come out of that room and say.
>However, I was aware of the dangers of having a determined adversary like Passion Julinsey, who >was determined to get her revenge on me, even though there was nothing to get revenge for. I
> had grovled at her feet and did every thing she ever asked me to do and I
> would have done absolutely anything she asked me to do. Anything at all. I
> did not even object to the fact that she was dating other men while living
> and sleeping with me. I hope before I die to find out why she did the
> things that she did, because to this day I have no idea why she did them.
And you never will. She's a woman. They're ALL like that.
Get used to it.
(Gotta love 'em, but you'll NEVER understand them.)
And again -
> >P.S. - If you publish any of this, PLEASE mung my Idress; I get entirely
> too much spam already.