Pro Se rights to participate in side bar include pretrial?

[FL4answer58]

Does the defendant, as his own attorney [pro Se], have the constitutional right to participate in person at side bar, chambers conferences, participating in voir-dire, and any other conferences before the trial judge reaches any decision on the matters discussed during such conferences/ side bars?

As I understand it the Pro Se defendant possesses the right to participate in such substantive conferences with the court, "to argue points of law * * * and address the court and the jury at appropriate points in the trial." McKaskle, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131

If true, does this apply to any pretrial conference before the JAs’ Clerk and Magistrates conducting such pretrial conferences?

One of our cases had such a situation where the pretrial side bar prohibited Pro Se defendant from a sidebar which matters of the case, witnesses and evidence were discussed and had a significant outcome on the case.

NOTES: The Judicial Assistant who conducted pretrial conference resided at side bar with Plaintiffs representative to discus and record essential trial tasks (e.g., witnesses, jury, time to prepare for trial, trial schedule, etc.). The pretrial order was prepared without the participation of the Pro Se defendant.

a) The Plaintiffs representative was absent [late] when the case/docket was called before the court. Pro Se alone presented before the court while JA (Judge) acted as advocate for the Plaintiff in absentia.

The defendant was required to plea [answer] before the court (deny or admit) before sent to required pretrial mediation, without the presence of Plaintiff. [Plaintiff appeared later in mediation].

c) The formal answer of the defendant, filed with the court in advance, included jury trial. The JA ‘overlooked’ the formal request and any comments for jury trial from defendant, indicating ‘NO’ as a check mark under jury trial.

The JA resided over side bar with Plaintiff to confirm pretrial agreements and record pretrial order. While the defendant was not bared from participation, neither was the defendant asked to participate. No question were asked of the defendant. Defendant was asked if (defendant) had any questions and instructed to sign the pretrial order.

- The JA ‘overlooked’ defendants’ participation in pretrial agreement concerning witness list(s). On the pretrial order form, by defendant the JA recorded ‘none’.

- The JA and Plaintiff, discussed ‘suitable and convenient’ agreements for trial dates, and prohibited defendant from such participation in trail scheduling or concern for defendants’ time to prepare for trial.

What the F#<!+^C was that !

What type of action do you file – hearing, motion, mistrial – what?

Edited September 21, 2010 by FL4answer58

[Massive]

Sounds like a fraud on the court by the court.

[KentWA]

A JA is not the judge and if an issue is appealed it is on the judges record that it is appealed. I see two possible routes and some others may have other ideas. The nice away is a motion to reconsider any orders based on those proceedings your were barred from and the other is a motion to vacate those orders. Either way you are going to have the judge looking at what is going on.

Base your objection on on violation of your due process rights. You will setup an appealable issue through that objection and it is my understanding in any appeal based on constitutional issues the appeal court must give the US Attorney the oppurtunity to submit a brief. I have read many cases where the trial court has vacated its prior ruling upon receiving a notice of appeal where due process was invoked. What county judge wants the US Attorney looking into how his court is run?

[FL4answer58]

I see two possible routes and some others may have other ideas. motion to reconsider any orders based on those proceedings your were barred from and the other is a motion to vacate those orders.

Thank you for input - its appreciated.

I’ll keep it short – for me.

Agree on the 2 choices - I do have some issues on what to key in on and what to drop.

There is no sense in adding any hyperbola to an already heavy load.

I’m positive I can achieve more with less – in the alternative any trial going forward will just end up in appeals.

I have: 4 exhibits

1) a lawyer’s affidavit - witness of pretrial hearing

2) record of local Bar complaint

3) Formal Answer with jury selection filed before the court

4) Email from the clerk of the chief justice - Canons complaint

I did not file a formal complaint on - yet.

Court does not record pretrial conferences, but I have record of JA's docket and notes from that day.

I'm contemplating requesting Motion to Reconsider and MTD w/prejudice.

The material facts remain the same on the case regardless - JDB has not substantiated the evidence.

I think this judge will go for it and prefer to just get rid of it rather see this go to appeals - with her name attached - as you say.

I would have gone for a SJ shortly after AND the judge told the JDB they were lucky - had this been in front of (judge) - well I can't say here what (judge) implied - but it was not good for them.

One other note - another lawyer here, told me - anything said in mediation is not under oath but is it admissable? - I assume it is not.

Edited September 21, 2010 by FL4answer58

[FL4answer58]

it is my understanding in any appeal based on constitutional issues the appeal court must give the US Attorney the oppurtunity to submit a brief. I have read many cases where the trial court has vacated its prior ruling upon receiving a notice of appeal where due process was invoked.

Could you point me in the right direction - please.

"appeal court must give the US Attorney the oppurtunity to submit a brief"

"trial court has vacated its prior ruling upon receiving a notice of appeal where due process was invoked."

Pacer & Lex - key words, [constitutional, due process, appeals] ?

[FL4answer58]

I think we have a winner!

Constitutional Law:

United States v. Acevedo, 50 MJ 169 (interpretation of a pretrial agreement is a question of law to be reviewed de novo, generally applying basic principles of contract law except, however, where those principles are outweighed by the Constitution’s Due Process Clause protections for an accused).

[nobk4me]

Communication by a judge with only one party to a proceeding is ex parte communication. Google that term in your state to see if there is any relevant law.

[FL4answer58]

Communication by a judge with only one party to a proceeding is ex parte communication.

Ex Parte usually defines a 'urgent or emergency hearing or at a minmimum where one party is not present and has not been given notice of the application before the court; usually reserved for urgent cases.

No, I think the Plaintiffs representative and JA knew the defendant was given notice but more important - not give access to participate - an 'Abuse of discretion' and due process.