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Yes, Virginia, Sometimes There IS Justice!

August 23, 2012 2 comments

I have good news, and… good  news.

In the matter of

FELECIA AMOS

v.

COMMONWEALTH OF VIRGINIA

Not only was I right on all counts about what happened and the utter wrongitude of it—it is going up on appeal and the brief is masterfully written.

I am “in the loop” — hearing about developments–as a direct result of the previous blog post. (!)

Here are just a few excerpts:

“As a non-party Ms. Amos was, of course, not permitted to cross-examine either of these witnesses, to challenge the authenticity or completeness of the audio recording or to present any evidence. ..At the end of the hearing the court delivered “an uninterrupted monologue …” (I am picturing a rant. Another sign of the bias this reeked of.)

Apparently there was a sane judge on the (denied) appeal who dissented (bless him.) “Judge McCullough would have reversed on the grounds that a court cannot summarily punish a witness for giving allegedly false testimony. Id.at 12.”

And case law exists!!! Hallelujah!

“…Scialdone and Brandt rejected nearly identical arguments because, in those cases, as in this case, any factual finding of “calculated misuse of the judicial system” would necessarily be based on witness testimony, not the judge’s personal knowledge.”

As I say—AS IT SHOULD BE. Crikey. But happily some good lawyering is afoot here.

“If an attorney representing a party at a proceeding can be excused from objecting because a court’s action is unexpected it is difficult to see how the application of the rule would be different when a non-attorney, non-party is unexpectedly and summarily convicted of a crime….”

There’s more… Check this out:

“In response to Mr. Amos’s attorney’s concern that Ms. Amos might discover and be able to respond to this evidence, the court’s recommendation to counsel was explicit: ‘[d]on’t tell her.’”

So not only was Ms Amos “blindsided” (the appellate brief calls it an “ambush”—which it was) Husband, charmer that he was—is—went to considerable lengths to set the trap. (Are you tracking  the conspiracy here? Which, BTW, Felecia alleged?????)  And Gott sie danke, it seems case law in Virginia does not allow a judge to send someone off to jail based on THE JUDGE’S OPINION. Which is as it should be.

So,  the  first good news is, I was right when I smelled a rat and the OTHER good news is… This second appeal is to the court “en banc”—all the judges of the appellate panel, not just the one who is (in my HUMBLE opinion) “bent.

So, at some cost in dollars and anguish, Felecia Amos seems to be on track for some justice. Shout out to the Kaplan law firm.

Mr. Kaplan sir– kudos to you not only for your pursuit of  justice but for a stellar level of legal writing. Mazel tov.

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We Don’t Need Any Stinking Due Process… (Do We?)

August 14, 2012 5 comments

FELECIA AMOS

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION*Record No. 1667-11-4 CHIEF JUDGE WALTER S. FELTON, JR.

AUGUST 7, 2012 (

(Pursuant to Code § 17.1-413, this opinion is not designated for publication.)

I am a sad to say people I respect have no problem with this nasty piece of  business. I do.

The ways in which the Felicia Amos case violated due process boggle my mind. Contempt is a CRIMINAL (or “quasi-criminal) matter resulting in loss of liberty.The Constitution affords every citizen protections against loss of liberty without the protections we call “due process.”

Felicia (pro se but clearly with help) appealed her being jailed for criminal contempt in a family law case.  From the appellate transcript: “She [Felicia] asserts the trial court erred by punishing her for summary contempt and that the summary proceeding violated her right to due process by failing to afford her notice of the charge against her, a full hearing, assistance of counsel, and the ability to confront witnesses.” Summary means short or expedited. Summary contempt is not available in  California–nor is one party consent to recordings like these. Not to mention they  were hearsay.

The facts, per the appellate transcript,  are as follows:

  • By final order dated July 30, 2010, the trial court convicted Antonio Amos (“Antonio”), appellant’s former husband, of assault and battery of appellant. The trial court sentenced him to – 2 – six month[sic] s in jail, suspended for one year on the condition that he not have contact with appellant except for visitation exchanges of their child, and ordered that he not “harass” appellant.

“On October 30, 2010, appellant wrote a letter to the Commonwealth’s Attorney for Arlington County (“Commonwealth’s attorney”), asserting that Antonio violated the terms of the trial court’s final order.1 Appellant asserted that, on two separate dates, Antonio “intimidate[d], harass[ed], and threaten[ed]” her during an exchange of their child for visitation at a fast-food restaurant.’”

She wrote: “This constant communication and intimidation is causing so much stress for me. I want to believe that the ORDER is not just a piece of paper but carr[ies] the weight and authority as it was stated by the [trial court]–NO EXCEPTIONS. Please do not let my situation become some comment with a bad ending. I have done all that I know how to do. . . . I honestly believe that the threatening behavior is ESCALATING. Help me.  “

(My personal take in this language is that it is not consistent with manipulation—it is articulate and does not overstate the claim, as manipulators commonly do. It is the voice of frustration, not BPD, in my seasoned opinion.)

The Commonwealth attorney wrote to the court, which set an OSC (order to Show cause) why Defendant Husband should  not go to jail for violating his parole.

The die is cast.

“December 3, 2010, the trial court issued its order… The show cause hearing was held on June 10, 2011.”

This guy had SIX MONTHS in which to create his “defense”. (Remember his original trial involved all the usual due process protections-and he was CONVICTED. This was not a Family Law DV finding, it was a full on criminal conviction.) SIX MONTHS go by. Six  months of visitations, each of which was an opportunity for this lovely chap to plan his escape from jail time. Six months of NOTICE and a full awareness that his liberty was at stake.

At the hearing—the outcome of which meant husband might go back to jail, so he was highly motivated to lie—we know that “Antonio testified that he videotaped one of the visitation exchanges about which appellant complained. He stated he used a camera mounted to the dashboard of his car.”

Bingo– he had PROOF—right?

Not right. There was no authentication of the video tape, there was no foundation laid, there was no cross examination. He could have taped that at any time during the six months. (As I mentioned this would have been illegal in California in any case.)

Also similarly: “Antonio testified that prior to entering the restaurant to pick up his son, he “wired” himself with a tape recorder”. How odd that he should do so, how utterly convenient –and yes—again—how nicely devoid of  any authentication,  or cross examination.  Felicia had NO ATTORNEY, no clue this alleged evidence even existed. Think Gideon v Wainwright. The court just pounced on this and indicted the unsuspecting wife. get this straight–Husband knew he might go to jail. WIFE HAD NO CLUE.

And thus, with no cross examination and  no representation by any attorney—no notice or opportunity to have any due process afforded her, this august court acted to convict her. not of perjury. but of “contempt”-and jail. “At the conclusion of the hearing, the trial court dismissed the show cause order against Antonio, stating, “[t]here’s no question that [Antonio] has not violated this [c]ourt’s orders.”

“ NO QUESTION”??? I have many questions. The court did not even say “in this case”—it made a sweeping statement, which, I think we can all intuit, is indicative of bias. (Again, in my seasoned opinion.) My questions are “how was this video authenticated”” “How was this audio authenticated?” (As to date in each case.) “Why did you wear a “wire” on the date in question?” How is is that these two recordings were the EXACT visitations, out if some 36 (9 month’s worth) visitations, that y9ou recorded?” These are the questions counsel would have asked.

“The trial court then found appellant in summary contempt.” (See above.) Felicia filed (possibly incorrect) motion to vacate—in which “appellant asserted she testified truthfully about the events that took place during the visitation exchanges. She contended the trial court failed to give her an opportunity to “explain, respond and/or object to being held in contempt,” to have counsel present, or to have notice and a hearing,”

(All the “contentions” are true.)

“Finally, appellant asserts the trial court “conspired with the Defense Counsel and the Commonwealth of Virginia to prevent [her] from receiving any notice of the potential outcome” and the trial court “should have recused himself” before ruling on her contempt charge.” I wish I found that hard to believe.

But there’s more. The court upheld this travesty on appeal –wait for it–because the unrepresented appellant didn’t properly raises the issue at trial!!! “Rule 5A:18 provides, in pertinent part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.”: She got blindsided and has no remedy because .. she got blindsided? Does this not offend anyone else as it does me?

So—I see gross corruption. Yes, I know women use false allegations to manipulate the system. They do. But this in no way proves THIS woman did. The facts show this is more likely than not NOT such a case. (I know my assessment of the credibility of the initial letter by this women is not an “expert” one. But the fact that she has an opponent who was strongly motivated to lie , given every opportunity to do so,  had credibility with the court because of  his prior military service and was never subjected to the rigors of proof beyond a reasonable doubt–—that is undeniable.)

I frankly have a huge amount of heartburn with women who use false DV allegations. I have seen it over and over. I also know what they sound  like—and this doesn’t have the ring of BS.  But I can’t prove that, and she wasn’t allowed to.

But here  are the undisputed facts:

1. Husband was CONVICTED of assault and battery WITH full due process.

2. Husband had time to “dummy up” these oh so convenient recordings,

3. These recordings were in no way authenticated and,

4. The person deprived of her liberty had no representation,  no notice of the jeopardy, no ability to cross examine witnesses or examine the evidence. NONE.

She was railroaded. No matter who you favor in the dispute, the fact is we cannot know who fabricated what—that is what due process is for,  and that did not take place. Given that NOT ONE SHRED OF DUE PROCESS was afforded this woman–who may have been battered–we cannot know

And we  never will. This, my friends, a was a travesty of justice.

Truth or Troll?

I figured out decades ago that while a court battle is not about truth. I even wrote a column in the 90s on “legalpad.com” called “It Ain’t About The Truth” where I opined on various court cases, including the OJ trial, and the (in)famous McDonald’s coffee case.

A court battle is meant to be (and might work as) a means of approximate reconstruction of what happened in the past. Who did what? Did OJ murder Nicole? Was Stella in the wrong for having spilled coffee that was so hot she needed skin grafts? (There is far more to this case then you read about in the paper, I promise!)
But also decades ago I figured out that divorce was not about “what happened”. It is all about emotions and people and relationships. I realized battles were bad for emotions and people and relationships. I didn’t need to figure out they were bad for kids—that I knew from losing my father due to the way my mother acted out her disappointment  in him.

He didn’t cheat on her—he didn’t drink. He didn’t say mean things. As far as I could see, he didn’t do anything wrong. No one else got divorced in those days–the 50s. I just know (now) that my mother had problems with men—she wasn’t real good at friendships with women either—and I didn’t see my father much after the divorce was finally over. Or in the YEARS between the day he left the house, and the day he remarried… in the 60s. Or after that until 1985.

So seeing the mess that came from the clash of courts and families was not rocket science to me. In the early days of my career (California had been no fault  for decades in 1983) many lawyers seemed to feel the same way, so we settled every case. Even though I was pretty new, I was always good at negotiating and settling cases (remember that first case I wrote about?) so I did well. REALLY well.

But right about the time I came into law, civility was on the wane, and by the time my consulting career (where I went to find “win win solutions) came to a crashing halt in the mid 90s, I could see there was a real need for divorce practice to change– so I set about changing it. In the post job loss mid-to-late 90s I started my mediation practice. In the 2000s I had started a collaborative group in Orange County. I kept doing  good work for couples who knew court was bad until the economic collapse of 2008.

But despite all slow but steady change in divorce practice,  it just wasn’t done to say that court was flat out bad for families. I mean, I said it in essays on Divorcenet, but not to other lawyers or even to the public. From the first day I placed my bio on Divorcenet I had calls—many of the public seemed to know the courts were not the place they wanted to be. But when I said this in front of a Family Court judge her face went frozen in shock. When I tried to tell other lawyers not everyone wanted to fight they scoffed—or worse.

But now this fact is being stated and HEARD—thanks in large part to Mark Baer, with whom I have become friends, thanks to social networking.

So I find it disheartening that so many people are hearing him and thanking him…and disheartening that so many people on Avvo call me a troll for saying the same thing.

So I guess we humans are pretty stubborn. Study after study has shown that people think OTHERS are off course but they are not….others are wrong but they are not… still. Decade after decade. What seems obvious to me—that in any dispute BOTH sides think they are right—and in a certain sense they both ARE right—seems to be one of those things where I am in a minority.

Is this because I am an “HSP”? (A real anomalous set of skills and abilities found in  of 20% of humans, and decidedly mixed bag… see http://richawriter.hubpages.com/hub/Its-Good-To-Be-Sensitive-25-Wonderful-Aspects-Of-Highly-Sensitive-People)– which we have and are  and can’t NOT have and be???

I don’t know. I DO know… this is a truth. (Two truths). No one sets out to be Bad and Wrong, and courts suck for families. 99.9% of the time.