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[00:00] Announcer: Registry Matters is an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts, FYP.

[00:19] Andy: Recording live from FYP Studios east and west, transmuting across the Internet. This is episode 344 of Registry Matters. Larry, how are you tonight?

[00:29] Larry: I’m doing awesome. It’s nice and toasty here.

[00:32] Andy: I bet it is quite toasty there. You’ve got we we’re almost at the longest day of the year. It’s gotta be I don’t know. What is it? January?

[00:41] Larry: ‘1 ’20 ‘2. Seriously? No. ’93.

[00:47] Andy: Oh, I was like, damn. That that’s pretty toasty. Even for you guys, that’s that’s up there.

[00:53] Larry: You’ve lived there for a hundred years. What’s the highest temperature you’ve ever seen there? I’m, like, one zero seven or one zero nine, the highest it’s ever gotten here. The altitude is high enough here that it doesn’t get those blistering temperatures like they have in other places. Death Valley or something? Yeah.

[01:09] Andy: I was in the desert when I was in the army. I was at a national training center at NTC. I think that’s what it’s the the long version is. Holy moly. It was hot there. I mean, it was hot. Hot. One fifteen ish, and you’ve gotta wear all the army gear. You got Kevlar. You’ve got a helmet on. Flak vet. Oh my god. Murder. Murder hot. Murder hot. We have a guest. We we have Chance joining. I should call Chance a guest. He is joining us. Chance, how are you? I’m joining you. I’m good. I mean, you are a guest. So But you’re like I’m a guest. Well, often here. I’m here. I’m here. I’m here. I’m here. Hey. Head over and, make sure that you show some support by hitting like subscribe. You can hit the button on YouTube where the thumbs up. You could subscribe. You could hit the notification bell. Leave a five star review. All these things would help the podcast. It would help us grow and help us reach new listeners, which is what we are always trying to do. And I think that’ll be enough of that. And then I would expect that Larry will then tell us what we are going to do this evening.

[02:08] Larry: Well, the great news you’ve already laid out is Chance is with us this week, which is means it’s not just mister doom and gloom. Chance will have a California corner segment later. The big thing we’re having is recovering a case from the West Virginia Supreme Court Of Appeals, which is our top court in the state. It’s actually good news for PFRs. The gentleman took his case to trial and was acquitted on all but one count Then he appealed based on judicial misconduct and won. We have an article to cover, and I think that’s gonna wrap it up for this episode. I think that’ll probably fill out an hour. You remember last week, I was miserably off on how long I thought it would take. So this time, you thought we were you done in, like, ten minutes. I was like, no. That’s not happening that way.

[02:54] Andy: Alright. Well, today, we’re covering a significant decision from the Supreme Court of Appeals of West Virginia, which you’ve already said oh, excuse me. Let me finish. West Virginia in State versus Eldridge. And, like, I guess the state can call their Supreme Court whatever they want. They could call it the the Supreme Court of the universe or something if they wanted to. They all seem to have weird different names. They do. And what’s the reason that you’ve put this case in here for discussion? I mean, f p FYP’s airtime is incredibly valuable as you were already aware. I know. We actually charge about $300 for each thirty second spot that we run.

[03:30] Larry: Well, man, we get that much money for advertising? Yeah. Actually, I would like to pursue an advertising route, but we just don’t have quite the following yet that I don’t think we can charge a lot for ads, but I’d love to go that direction. But, I’ve lost my track. Where the hell were we? Does this have any constitutional implications? That would be the question. So, well, the case is actually my my script is a reminder that judges have to play by the rules just like everyone else. And there are big constitutional implications here on this case that we’re gonna get into. And since we have an attorney who’s practiced for thirty five years, who celebrated thirty five years of practice this week, and I’m sure he’s seen some judicial misconduct through the years, we’re gonna have he’s gonna be the color commentator jumping in from time to time, to help polish up what I and AI created here.

[04:24] Andy: You mean Okay. Chance is gonna do, like, color commentary like Jimmy the Greek?

[04:29] Larry: That’s what it seems like to me.

[04:31] Andy: Do you guys know that story? Chancey the Greek. Chancey the Greek. We might you might say something and we’ll have to break for a commercial and you will never return. Did I say Greek or geek? Okay. Greek. I I was hoping Greek. Alright. Anyhow Chancy the yeah. Okay. And even though it’s a case involving a conviction, it has major implications for due process. Oh, we don’t care about that. And fairness, also, we don’t care about that. Can we dive into the details, Larry? Oh, we can.

[04:59] Larry: Chad Eldridge was accused of sexually abusing his stepdaughter, G Y, and that’s common that they use initials with minors, between the ages of 12 and 17. The charges were very serious. 17 counts, including, sexual assault, sexual abuse by guardian and incest. And, so he was facing some serious time had he been convicted. I mean, I’ve got a he’s got testicles of steel to go to trial on 17 counts in West Virginia, that would have been three or four hundred years of prison if he’d been convicted. So that’s a lot though. What what happened at trial then? Well, the jury amazingly acquitted him on 16 of the 17 counts. The only conviction was for a second degree sexual assault involving oral sex. It was tied to an incident where he allegedly forced to perform oral sex.

[05:53] Andy: So the jury clearly had doubts in all this?

[05:58] Larry: They did. They had serious doubts. If you quit on 16, and we can get chance in here on this. If you’ve got a 17 count indictment and the jury acquits on 16 of those counts. I would say they had serious doubts, but the judge got involved in the way that the Supreme Court laid a rule was improper. That’s what led to the reversal. But, Chancellor, in your years, have you seen anything like this?

[06:23] Chance: No. No. I haven’t quite seen it this heavy. But, you know, acquitted on on 16 of 17 counts is a is a big deal. It’s a very big deal and probably would cause that to just, you know,

[06:39] Andy: lay where it is. Who’d wanna who’d wanna retry that? Let me ask you the question this story though. Doesn’t the prosecutor, like, find everything possible that could be remotely tried and layer those on there for them to ultimately just have one thing that’ll stick?

[06:55] Larry: Is that for me or Champs? Either. Well, my experience is much more limited than this. Much more limited, but prosecutors, do creatively try to find things that might stick. And I have sat on a grand jury, and I got to witness for three months what what prosecutors do. So but, you know, they claim that they’re only following the evidence, but it’s my opinion having never been a prosecutor that they’re sitting around looking for something that they might can make fit into a square hole, you know, a round peg fit into a square hole so they can stack charges. Chance, would you agree with that? Do do prosecutors look for something that just might be able to be squeezed into a square hole?

[07:42] Chance: A whole bunch. That’s why there’s a whole lot of prosecutor misconduct. Yeah. That’s that’s they do that routinely. Yes.

[07:50] Andy: So who is this, witness the judge questioned?

[07:53] Larry: The witness was r e, which was the alleged victim’s mother and, the accused mister Eldridge’s ex wife, she testified that her daughter had previously made false accusation against el Eldridge and recanted them. She also claimed that the late accusations came after she told you why that she couldn’t move in with her boyfriend.

[08:17] Andy: Oh, so her testimony supported the defense?

[08:20] Larry: Yes. I mean, this is the most bizarre thing I’ve ever seen in my hundred and eighty four years. You’ve you’re facing 17 counts, and you call the mother of the complaining witness as your as a defense witness. Again, chance, have you ever seen anything like this? She provided alternative explanations and cast doubt on the timing and motives and the allegations.

[08:42] Chance: Yes. I have seen that. You have? I I have. Yeah. I mean, when, you know, you make sure you know what people are gonna say before they say it. That’s that’s the number one rule. And, apparently, the defense had some cards they weren’t showing.

[08:58] Larry: What do you mean by they had cards that they weren’t showing, in terms of that? Let’s say, hypothetically, we did a witness of, we did a witness interview with the with the, alleged victim. Are we obligated to to share the fruits of all that with the prosecution, or are we not? If it’s rebuttal, no. Okay. Alright. So so in rebuttal. Because I thought I thought I remember that we had to we had to be somewhat forthcoming with what we unearth in our investigations. Okay.

[09:27] Andy: But what does all what does all that mean that the judge didn’t like her testimony?

[09:32] Larry: Well, during cross examination, the straight the state tried to suggest bias because she funded Eldridge’s the accused the, accused, jail account using her sister’s credit card, which but signified that that wasn’t on the up and up. But when the prosecutor didn’t go far enough to suit the judge, the judge stepped in and asked her point blank if she had pending fraud charges.

[10:01] Andy: Is that allowed, though?

[10:03] Larry: I don’t think it is under our rules here. But more importantly, it looks like in West Virginia, rule six zero nine only permits using convictions to impeach witness credibility. Pending charges are not admissible, and that’s on page 10 of the opinion. And the judge violated that rule, and more importantly, he stepped outside the bounds of neutrality. And, again, Chance, expand on that. What what what all did the judge do that he helped not have done?

[10:26] Chance: Well, you know, I mean, you can’t be a second chair prosecutor. Let’s put it that way. And, you know, assessing credibility is is crucial because a witness’s testimony can significantly impact the case’s outcome. So a judge has to remain neutral and not take the second seat and prosecute the case when he thinks or she thinks the prosecutor’s not, doing their job.

[10:50] Andy: So is all of that allowed, though?

[10:53] Larry: No. Rule six zero nine only permits using convictions to impeach witness credibility. Now conviction is fair game because that’s public record, but you’re presumed innocent. But pending charges are not admissible, and that’s referred to on page 10. And the judge violated that rule, and more importantly, he stepped beyond the bounds of neutrality because Chance pointed out the judicial system works on impartial judges. They’re supposed to be fair and even handed, and this judge had an agenda. He wanted that information before the jury, and that was not his role.

[11:26] Andy: Because they’re just supposed to, like, sit back and let they’re they’re a referee. They’re not they’re not they’re not putting air in the football or taking it out depending on who’s on the field. Right?

[11:36] Larry: That is correct. Now I believe whether our rules here, chance may have similar rules to cite to in California. A judge can seek to clarify an answer that’s misleading or not clear to to the, that a witness has given. Is that is that consistent with those in California?

[11:52] Chance: Yeah. Pretty consistent. Well, you know, but in California, we, you know, we have a wider latitude when it comes to impeaching credibility. But, you know, the federal rules here seem, you know, constricted. And obviously, obviously, you know, the rule precluded what he did. And, he wanted the jury to know that she has something pending that hadn’t been adjudicated yet, which is, you know, not fair. What’s the difference then between rule six zero eight and six zero nine? I’m sure everyone is completely familiar with what those two things mean. Well,

[12:27] Larry: I’m sure they are. They’re standard across the states, aren’t they? No. Not exactly. Rule six zero eight allows you to ask specific about specific acts if they relate to the truthfulness, but they can’t introduce outside evidence like charges or arrest records. Rule six zero nine, on the other hand, allows prior convictions under certain conditions to be brought in for credibility purposes, but only convictions. And, again, this was not a conviction. But the judge wanted to smear this witness because he didn’t like where it was going.

[12:57] Chance: And Yeah. See that and that and that and that, Andy, is is six zero eight just prevents smearing with, you know, with allegations, you know, and, nuances, you know. But six zero nine says, look. If it’s adjudicated as if it’s adjudicated and it’s there, it’s a conviction, it’s fair game depending on what it is.

[13:17] Andy: And but so what were you saying here is that the judge broke the rules?

[13:21] Larry: Pretty much. He asked about charges, not convictions. And by bringing that in himself, he gave the impression that the witness was dishonest, something the jury was supposed to decide as chance said. Truthfulness and credibility is for the fact finder, in this case, the jury.

[13:38] Andy: Can then the prosecution claim that the charges showed bias?

[13:43] Larry: That was actually their angle. They argued that since RE had committed fraud to support Eldridge, it showed bias. But they already had her testimony about using the card. They didn’t need to mention the pending charges. And the court said that was a step too far, and that’s cited to on pages 12 all the way through 16. They did a quite a story of they, explanation of that.

[14:06] Andy: And then the bias was already shown by her actions. Right?

[14:11] Larry: Yes. And courts have consistently ruled that you can use witness actions to show bias, but not on proving accusations. That’s just too prejudicial.

[14:22] Andy: You did mention something use unusual earlier. Oh, boy. Vibrators?

[14:30] Larry: Yes. On this family program, that word comes up. RE testified that she gave to a minor daughter two of those devices when she was about 15 or 16 so she could explore her own sexuality, without the help of boys, which, I mean, there is some logic in that. Would you agree?

[14:52] Andy: I have a story I could share, but I’ll have to wait till afterwards about the equivalent on the male side, so to speak. But, anyway, that’s certainly unorthodox.

[15:02] Larry: Well, it is, but the problem isn’t what she did. It’s what the judge did. He asked multiple judgmental questions. Did you show her how to use them? What did she think? Was it a good idea? Did she talk about it with Elle Eldridge? That was not clarifying an answer. That was eliciting answers to questions that were not asked. A chance, do you agree?

[15:26] Chance: I agree. Yep. And that That was that was that that was a way of of, you know you know, just throwing slime on her.

[15:38] Andy: And this sounds like the judge was, maybe expressing a little bit of his own personal bias and moral outrage that this would be going on.

[15:47] Larry: That’s how the Supreme Court saw it. Judges, again, must remain impartial, especially when credibility is at issue. This wasn’t, clarification which judges are allowed to do. It was condemnation, and it broke rule six fourteen b.

[16:05] Andy: So the judge again looking like he was siding with the prosecution and and against the defense, which I don’t think judges are supposed to do. They’re supposed to be just straight up like the guys with the stripes that are on the field saying this was a foul, this was fair play, but they’re supposed to just

[16:20] Larry: be fair in the middle. That’s correct. And when a judge appears partial, especially in a closed case, it can certainly sway jurors. And in this case, it possibly did.

[16:30] Andy: And and so that then, what did the West Virginia Supreme Court say about that?

[16:35] Larry: They say, the judge’s actions weren’t just wrong. They were prejudicial. The trial was credit book credibility based. It was GY’s word against Eldridge and the defense witness. The mother was key, and the judge undermined her. That influenced their one conviction. And, so, you know, the the judge the judge sunk the case. It might have gotten the conviction anyway. Might not have, but the judge sunk the case.

[17:03] Andy: Was was the jury deadlocked up to that point?

[17:07] Larry: Yes. And that suggests they were struggling. Then they convicted him on the one charge from a single incident and acquitted on all the other charges, died the same event. The court said that suggested that it was a compromised verdict.

[17:22] Andy: Could you explain that? What does that even mean?

[17:25] Larry: That’s kinda like cutting the baby in half. You got you got 12 you got 12 people sitting there, and they all wanna go home because jury service pays very little, if anything. And Yes. They’re giving up their day jobs and stuff, and they wanna get out of there. So you gotta hold out if you can reach a compromised verdict. That’s that happens. So I bet chance could expand on compromised verdicts because in thirty five years, you’ve probably seen a few compromised verdicts where the devil just didn’t support the verdict.

[17:56] Chance: Well, yeah. Yeah. I I would say so except that, you know, you don’t really you don’t really understand what’s going on in the state, at least,

[18:05] Larry: what’s going on. But, essentially, yeah, stuff like that goes on. Oh. Not very fair, is it? No. It doesn’t sound like it. What’s next for Eldridge then? Well, at the moment, his conviction is gone and the case is remanded for a possible new trial. The state can retry him, but they’ll have to avoid these errors, and they can only retry him to retry him on that one count because, Jeopardy has attached to those acquitted charges. There’s no way they can bring those back. Is there a chance?

[18:36] Chance: Nah. No. No. If you’re acquitted, you’re acquitted. But who would who would wanna go on just that one count after that? That’s massive, which is what I was referring to before. No.

[18:45] Larry: So well, the the takeaway for me is, judge, even in serious cases, the rules must be followed, and the judge didn’t follow the rules.

[18:54] Andy: Is is this actually a resounding victory for due process?

[18:59] Larry: It is. If we don’t decide guilt by mob sentiment or judicial opinion, everyone is supposed to get a fair trial. And Mr. Eldridge didn’t get a fair trial. But amazingly, I would, I just can’t imagine him going to trial in rural West Virginia on 17 counts and having the courage to call. If you’d have brought that case to be honest, said you’re gonna call the mother? What kind of whiskey weed have you been smoking?

[19:28] Andy: Uh-huh. But don’t we almost all the time talk about the the prosecutor’s not gonna lay down? He’s gonna figure out some other angle to go after this and and drum up different charges even though because he knows he’s got the one?

[19:43] Larry: Well, I agree, but to create the courage of getting to that position. Now so what say we don’t know what offer was made in terms of a settlement, in terms of plea offer. We don’t know that that was not discussed in the case. But whatever the plea offer was, they wouldn’t have asked him to plead straight up and down to all 17 accounts. So he would have been restricting and reducing his access by entertaining a plea offer. But if they offered him like ninety years in prison, well, you’re gonna die in prison anyway. You might as well go trial in that case. But if they offered him something where he could actually see the light of day again, it’s just a very, very courageous thing to do to go to trial on this one. You’re facing hundreds of years in prison. Interesting. Agreed. Agreed. And how what kind of timeline does that then take if he is he’s essentially

[20:33] Andy: like, where in the process is he? Is he past indictment? Do they have to do it all again? Is he could he, like, flee the country if he wanted to? What where’s what what are his options?

[20:44] Larry: Well, gotta wait for the remand to be sent down to the trial court. And this is not something that’s highly automated. This is gonna be something where ultimately the chief prosecuting officer in that district is gonna make a decision on what they wanna do. And there might gonna be many factors that go into that decision, like high profile they’ve made this case. And sometimes their own stupidity puts them in a jam where they have to do the case again because they made such a production out of it. And And I don’t know that they did or didn’t, but if they did, they boxed themselves into a corner. Because if this victim got all sorts of airtime on TV and radio and newspaper about how this man was gonna die in prison, and all of a sudden his con all convictions have been set aside on the remand order. He’s gonna get a certain amount of time. It may work different in West Virginia, but they they he’s gonna he’s not gonna walk out of gate of prison immediately. They’re gonna give the prosecution some period of time to decide what to do. And, but it’s not gonna be a definite period of time. Chance, how much time will they get to decide in your experience, of what they’re gonna do with this case? Because they gotta fit first figure out if the witness is available, willing to go through it again, what evidence they have left that can be get get be brought to bear at a trial. There’s a lot of things going into this. And how will public opinion play? Because I’ve gotta consider this as an elected official. If I get another acquittal on this one count, after having been turned back on all 17 counts, I don’t look particularly confident. I would be tempted to wanna just let this case go away, but I don’t know that they can because I don’t know what the lay of the land is in terms of pretrial publicity.

[22:19] Chance: Right. We we probably don’t know enough. I mean, but you’re you’re you’re right about that. They have to consider all these things. You know, they’re a political entity and, you know, this is this is bad publicity, real bad publicity. And, it really it really goes to their own credibility. So it it could take it could take months of meetings and thinking and and and, you know, making a determination or it can simply be a quick no brainer. We’re not doing this again. Depending on what the facts are, and I you know, and and we don’t we’re not aware of those right now. We don’t we don’t know everything, but it if you’re asking me if it could take a while, yeah, it could take months. Well And he just sits there stewing while waiting.

[23:01] Larry: No. If if he if a reman comes down, the judge is gonna the trial judge is gonna give the prosecution an amount of time, and I don’t know what that amount of time is gonna be, is to make a decision, and they’re gonna set conditions of release if the prosecution is gonna go forward. How much time they will give them to make that those decisions, I don’t know. But he won’t just sit there and walk forever, but he could easily sit there thirty to sixty days waiting for something to happen. Okay. Right? Alright. But you’re talking I mean,

[23:27] Andy: we we talked about the worst day in the prison system in New Mexico and you that just by one day, you could end up on a gurney. But, you know, thirty to sixty days is not the end of the universe, but certainly not where I would wanna spend even one day.

[23:41] Chance: Right. I mean, you know, when you think about it and we’re moving on to right to a speedy trial,

[23:47] Andy: you know, that’s universal. Okay. So it’s not like he’s gonna have to wait there forever. Okay. Alright. That that kicks in to help him then one of those that that’s a constitutional right?

[23:56] Chance: That is. Okay.

[23:58] Andy: Well, very good. Well, thank you, gentlemen, for breaking all of that down and all the commentary. Wait. You are Chance the Chance the Greek? That’s what Chancey the Greek. That’s what you are. Are. Chancey the Greek.

[24:09] Chance: Yeah.

[24:11] Andy: Alright. Right?

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[25:01] Andy: Let let’s move over to, this will be California Corner, and it’s understanding Serna motions. And that’s not Sorna. That’s Serna motions and the right to a speedy trial. Is that what it that says? That is correct. Oh my god. Okay. So we’re diving into Serna motions and the constitutional right to a speedy trial. And as always, we have the the insightful, occasionally with witty and miss and very brilliant attorney Chance Oberstein who specializes in criminal defense in California.

[25:31] Chance: Alright. Thank you. Thank you for that intro. I’m thrilled to be here and occasionally witty. Yes. I’ll take that as a challenge.

[25:38] Andy: I’ll see if I can keep you entertained while we talk about the law. Challenge accepted. Alright. So, Chance, let’s start with the basics. What in the world, I’ve never heard of this before, is a Serna motion, and why would anyone give two flips about it?

[25:53] Chance: Okay. Great question. Okay. Surna motion is like the legal equivalent of calling out someone for ghosting you. It’s a tool defendants use in California. Okay. And it’s it’s a tool defendants in California can use to request the dismissal of criminal charges when the prosecution has taken way too long to bring the case to trial, like we were just talking about. It’s based on the Sixth Amendment right to a speedy trial and is basically the Constitution’s way of saying don’t leave people hanging. And in California, this right is backed up by penal code section six eighty six sub one.

[26:29] Andy: And so it’s like the legal system’s version is you you had one job. Got it. But what counts as, too long? Are we talking weeks, hours, months, years? And in the case of year, Larry, we’re talking centuries?

[26:44] Chance: Oh, we’re definitely talking years, and this is a different type of thing. The landmark case is Serna versus Superior Court. It’s a 1985 case, and that set the standard. Delays exceeding one year for misdemeanors or three years for felonies are presumed unreasonable. At that point, the burden shifts to the prosecution to explain themselves. If they can’t justify the delay, the court can dismiss the case faster than you can say statutory violation.

[27:12] Andy: That’s a pretty big deal though. So what happens if the prosecution tries to pull a oops, we forgot card?

[27:19] Chance: Well, Andy, the courts don’t take kindly to the oops defense. In Doggett versus The United States, which is a 1992 case, the US Supreme Court made it clear that government negligence, and we’re talking government negligence, like losing track of a case or forgetting to file charges, is not a valid excuse for delay. If the government drops the ball, the defendant’s speedy trial rights are violated, plain and simple.

[27:45] Andy: From that, it sounds like the government needs to get a better calendar app. But what if the delay isn’t just negligence? Are there factors that the court could look at? I mean, you know, we could we could have an attorney who shows up to court late and just like, whoops, traffic.

[28:00] Chance: Well, you know, absolutely. That that’s where Barker v Wingo, it’s a 1970 case, comes in. This case gave us the Barker balancing test, which sounds kind of odd, but it sounds fancy, but it’s it’s just really a checklist. The court looks at four factors. Number one, the length of delay. Number two, the reasons for the delay. Number three, whether the defendant asserted their right to a speedy trial and or how the delay harmed the defendant. It’s like a legal pros and cons list, but which high with much more higher stakes.

[28:35] Andy: And if the prosecution drags their feet, the defendant can basically say, well, that’s unfair, and here’s why. So is is can we, bring some kinda life with an example? Got any, juicy cases that you could cite for us?

[28:49] Chance: Well, I’ve got a good one that I can use for an example. Picture this, Orange County 2 Thousand And 19. A defendant is accused of vehicular vandalism on 09/16/2019. Fast forward then to 01/15/2024, more than three years later, and the prosecution finally issues an arrest warrant. The defendant has been living it, same address, the whole time, probably wondering if the charges were ever going to show up. His attorney files a Serna motion arguing that the delay violated speedy trial rights under Serna Superior Court and dogged it. The court agreed, dismissed the case, and the defendant walked away free.

[29:30] Andy: Interesting. Three years though. That’s not just a delay. That’s like a full on that’s a Larry nap even. What kind of harm can these delays cause to a defendant’s case?

[29:40] Chance: Well, that’s the point. These delays can be devastating. Witnesses may forget key details. Physical evidence can deteriorate, and important documents might disappear into the abyss. So imagine trying to track down a witness three years later. They might not even remember what they had for breakfast yesterday, let alone the details of crime. In the Orange County case, the defense argued that fading memories and lost evidence made it impossible to mount a fair defense, and these factors are critical in providing our proving prejudice caused by the delay.

[30:12] Andy: That does sound like a bit of a legal nightmare. If someone thinks their case has been delayed unreasonably, what’s their first move?

[30:20] Chance: Well, step one, and probably the most important step, is call an experienced criminal defense attorney. I mean, if it’s been some time and now it’s popping up and, you know, it’s unexpected and it’s been a while, call somebody who can help you, really help you, and that’s an experienced criminal defense attorney. They’ll review the timeline of your case and determine if a Surna motion is appropriate. Filing the motion involves documenting key dates, like when the alleged defense occurred, when the charges were filed, when the defendant was informed, and attaching evidence to show that the delay hurt your defense. Then the motion is submitted under penal code six eighty six one, and the court schedules a hearing.

[31:03] Andy: Alright. And what what about other jurisdictions in California? Are they all the same when it comes to filing this kind of motion?

[31:10] Chance: Well, they’re pretty much all the same with some minor variations. But let’s take Orange County, for example. Orange County has its own flavor of bureaucracy. You need to serve the prosecutor with all the necessary documents and set the motion hearing for several weeks in advance. That gives everybody time to review the claims. As for other jurisdictions, an experienced attorney will know how to navigate these local rules without breaking a sweat or filing or or missing a filing deadline.

[31:36] Larry: Well, before we wrap this marvelous episode up, let’s talk about bad lawyers because I think there are a few that exist in my experience. What if someone feels their previous attorney dropped the ball on addressing delay issues?

[31:53] Chance: Yeah. That’s a problem. But, you know, if if if if it is a delay issue, of course, you’re that’s what you’re going going to the attorney for. If they miss it or you feel that they haven’t really examined it properly, no problem. If your attorney didn’t address the delay issues, don’t panic. You can always seek a second opinion. A new attorney can review your case records and police reports, to identify missed opportunities. Sometimes a fresh set of eyes can uncover grounds for dismissal that your previous attorney overlooked or just didn’t even know about. It’s like getting a second opinion on a bad haircut, but way more important. Oh, we could have a whole episode here on second opinions because I’ve not found very many attorneys that wanna give a second opinion. But

[32:36] Larry: they say, are you represented? Oh, well, you needed to be asking your attorney. I said, well, I go to the doctor, and I don’t like the opinion. And the doctor tells me, feel free to get a second opinion. I go to an attorney, and I want a second opinion. And you say, oh, well, I can’t break a rules of professional conduct. I can’t give you a second opinion. And I’ve always rejected that, but they insist there’s there’s some rule that I can’t find anywhere in the book that says you can’t give a second opinion. But anyway, that’s an episode. Andy puts out a list of things about the bank segment on second opinions because I can’t find attorneys that like giving them. But, speaking of second opinions, what are some signs that the delay might actually work in the defendant’s favor?

[33:11] Chance: Okay. That’s a great question. Sometimes delays can actually help the defense. For example, if the prosecution’s case relies heavily on witness testimony, a long delay might weaken their case because witnesses forget details or become unavailable. Similarly, if physical evidence deteriorate or is lost, it can make it hard for the prosecution to prove their case. So while delays are usually bad for defendants, they can occasionally work in their favor. And if you have a savvy attorney who knows how to leverage them, wella.

[33:42] Larry: Well, that’s been more abundant of contention in the years I’ve been in this business is having that discussion with clients. I tell them that the apparatus that’s coming to get you has more kinks usually than our the ourselves that can break down. And so if you’ve got a case that’s contingent upon multiple witnesses, there’s a lot more chances of a bus running over one of those witnesses that’s critical, or them having an aneurysm or them having a stroke or them getting sent to Baghdad to serve with the army or something or another. There’s all these things that can happen. And with you, that’s gonna work to your advantage if something makes that case weak because, remember, we have a confrontation clause. They can’t just look at the police report and say, well, The officer is dead that investigated this, but for the report says this. I mean, what’s the and I’m gonna get to the script here in a minute, but what’s the what’s the, answer from a a a competent attorney when they try to introduce a police report without without, setting any foundation or for trying to justify why the report is gonna how how does that work?

[34:51] Chance: Well, you know, it’s there there’s a total lack of foundation. So You know, I mean, you know, is it is it relevant? You know, is is there any foundation? I mean, you know, is this, you know, is this you know, there’s levels of hearsay. There’s so many different variables there, but it’s trial by affidavit never works. And and and that’s good because our our system is made to do much more than that. And it works and and and it just it doesn’t work by affidavit. That’s that’s something everybody liked to do. Every prosecutor would love to do, but that’s just not how our system works. Also, it’s contingent upon confrontation, and that’s something we need to to protect. But the silver lining is something that most people don’t think about delays They can actually work to your benefit.

[35:35] Larry: They can actually work for your benefit, particularly if you’re in custody. If I’ve got a client that’s been in custody for a year and a half and they’re scared to death to go to state prison and I couldn’t get conditions of release approved And they’ve got couple years in custody, no prior record. Even if a serious charge, I can say, well, madam prosecutor, this person has already served all the time, but they’re likely to get on a first offense. Let’s go ahead and do credit time serve and probation. That works for your benefit. You never just have to go to the big house, even though you did have the conviction. So, but, thanks for joining us today on this segment and shedding light on the CERN emotions and the right to a speedy trial.

[36:17] Chance: My pleasure. My pleasure. It’s been fun.

[36:21] Andy: Well, you put this thing in here. It is from c p r. So that’s a cardiopulmonaryresuscitation.org.

[36:29] Larry: Do you think that’s what it is? I’m pretty sure that’s not what it is.

[36:33] Andy: Okay. Well, this is some good news. But this is from I but Colorado Public Radio. God, this has gotta be some some lefty bleeding heart garbage. Right? And it says, in recent years, incarcerated people have been denied visitation rights for breaking a prison rule. Legislation newly signed into law that would fix that. What is this all about?

[36:54] Larry: Well, the law of which started out as house bill 25 dash one zero one three, introduced by state representatives, Rebecca English and Jennifer Bacon, establishes social visitation as a right for a person combined in a correctional facility. A right. Listen very carefully. That’s powerful. Wow. It takes away prison staffers’ ability to use denial of visitation. The Department of Corrections may adopt rules to govern administration of social visitation, but shall not restrict social visitation beyond what is necessary for routine facility operations or for the safety of the facility and public, the text states of the legislation.

[37:35] Andy: This sounds to me like legislative interference with prison management. Shouldn’t take the warden be able to do what they wanna do? Don’t prison administrator administrators know best?

[37:50] Larry: I’m not so sure that they do. I’m not so sure that they do because, I think that people have, in administrative roles, they have many competing things going on in their head, the desire to administer justice, effectuate punishment that the court didn’t hand down. And, so there’s so many things wrong with just let it leaving it up to prison administrators. But the article states, those visits could get snatched away. The Colorado Department of Corrections websites, visit an incarcerated individual tab lists rules around visits and breaking any rules and seemingly any area possessing drugs, refusal to work, not behaving properly when receiving a visit could be sanctioned by taking away an inmate’s right to get visits. Even misconduct during a visit where minimal physical contact is allowed could result in visits being taken away. So I would suggest that this probably means that you might be allowed to hold hands, but you can’t kiss. And if you sneak a kiss, you might lose your rights to visit. That’s what I’m guessing.

[38:54] Andy: Alright. Well, that’s I guess that’s kinda to be expected. What about major violations, which I assume means, like, bringing in contraband, for example?

[39:02] Larry: Well, major, visiting violations that jeopardize the security facility may result in permanent suspension of visiting privileges, the website states. Also adding that prisoners in the past could have their rights denied permanently for three drug related offenses and a prisoner with limitations on their visitation who transfers from one lock up to another would have the same restrictions from the first facility followed by the next one. That kind of makes sense. I mean, it is that part of if if you’ve been placed on legitimate restrictions, you wouldn’t escape them by naturally going to another prison. I wouldn’t think.

[39:36] Andy: How do you think that such legislation, legislative proposals pass? Is Colorado the new bastion for liberal lefties? Damn communist?

[39:44] Larry: It maybe it is. It had a short and quick trek through to legislature. It was introduced in January. It passed the senate on May 2 on a 22 to 12 vote after having passed the house about a month before on March 26 with a vote of 44 to 21. For the most part, legislators voted along party lines with all but one Republican in opposition. Amazingly amazingly, the family that espouses family values and how important it is to keep families together, they all oppose the legislation. Please admit that that’s funny.

[40:19] Andy: It’s not funny. Alondra Gonzalez, Colorado Department of Corrections director of communications stated in an email, we appreciate the sponsor’s attention to this issue and are continuing to work with them on the bill. She went on to say, we are currently working with representatives Bacon and English as well as senators Coleman and Exum Exum on the issue. I would say excellent, but you’re close.

[40:43] Larry: The article points out it’s commonly understood that visits boy, the spirits of those locked away and their loved ones. On the outside, research shows that inmates having access to prison visits reduce recidivism. Imagine that. The effect of visitational reentry success, a meta analysis published in 2016, additional to the Journal of Criminal Justice, analyzed data collected from 16 other studies. It found that visitation had a 26% reduction on recidivism. Now, again, the people that profess to be such guardians of the purse, I would think that if I could cut my prison population by a fourth with lack of recidivism, I would think this would be very appealing as a conservative even if I don’t care about my other principle of family values and keeping families together. Wouldn’t you?

[41:35] Andy: It seems sort of a no brainer, But I’m trying to find, like, a a negative angle to that, but I don’t see how we could get there. Kim Wray, co facilitator of End Slavery Colorado, advocated for the passage of the new law and says she has loved ones behind bars who will benefit from it. Opposed to the bill are Republicans, including representative Matt Soper, who sits on the house judiciary committee committee as the longest serving Republican member. He said in an interview that he was quite concerned with the creation of a statutory right to a prison visit. He went on to say, in the prison setting, we need the Department of Corrections to be able to keep a prison safe and secure. And sometimes that involves having to cancel visitation at a moment’s notice. He said he tried to find a way around this opposition, but just couldn’t. I wanted to get a yes, but just couldn’t quite get there because for me, we just really have to give DOC as much latitude as possible with them to run their prisons rather than the legislature to come waltzing in and mandate certain things. Now I have a question for you. Isn’t this, god, what the heck’s the thing called? Isn’t this a delegation thing? Isn’t this where you you’re putting the administrator in charge but they want the the legislator to make the rules of what medicine that the VA could give. Isn’t that this? Well, kind of. So I can see your point. This sounds like talking out of both sides of their mouths that they want the legislator to the legislative body to make the rules. And then when they’ve made it, they’re saying, no. No. No. No. We need to let them make the rules. That’s kinda what’s happening here. But I see a representative Soper’s point.

[43:09] Larry: You don’t want a legislative body that’s only in session part of the year, even if it’s Congress, if they’re out of session all the time, you don’t want them to try to micromanage the prison. But on the other hand, it is when the sound purview of the Colorado General Assembly to establish minimum standards, and that’s what they’ve done here. They have said that you will not deny visitation arbitrarily, that everyone has the right to visitation, that if you can if you can narrowly explain a reason, you can deny visitation. But just as carte blanche, you can’t do that. So I think that’s within their sound purview, but I understand where representative Soper is coming from.

[43:47] Andy: Yeah. I would think that the person on the ground, particularly, like, at the institution, and there’s something going on that they would be able to click a switch and, allow visitation, turn it on or off based on the the climate in the prison. Maybe they don’t have enough staff to run visitation. But what do you think the impact of this will be overall?

[44:07] Larry: Well, according to the article, the number of people impacted by the law, while unclear, could be in the thousands on the outside who may want to see their loved ones and and, now can expect to be allowed even if the inmate file violates a rule. According to prison policy initiative, Colorado’s total incarcerated population was 32,495 in 2024. But now this includes both state and federal prisons, youth lockups, and psychiatric facilities. The state prison population last year was seventeen thousand six eight hundred six eight nine. I might as well say 18,000.

[44:40] Andy: Did you say 32,000

[44:42] Larry: people? I did, but it includes federal prisons and all the other types of lockups. But, 18,000 is, a fair number. But I’m curious if this right actually applies to federal inmates. The article does not state that, three years before, state prisons contained about 2,000 fewer people. In 2021, there was only fifteen thousand eight sixty five, of which 92% were male. So it sounds like to me that Colorado is on a rapid increase in prison population despite their liberal lefty leanings. It doesn’t sound like they’ve done a whole lot to reduce their prison population.

[45:21] Andy: I thought that federal prisons were run by the bureau of prisons, the federal bureau of prisons, and they are a completely separate entity to what the state does. Well, that’s what that’s the question I’m posing. If it’s a law of the state of Colorado,

[45:35] Larry: can they apply to facilities that are operated by the federal government in Colorado? Or will it will this only apply to Colorado inmates? We’ve got the resident attorney here. Do you think that the that the federal government can tell Colorado to pound sand that they don’t have to give, visits chance? What do you think?

[45:52] Chance: I think that I think that’s correct. I think they can.

[45:56] Andy: Interesting. The article notes that the prison population does not track the state’s demographics of 41% of inmates were white, although 65% of the population of Colorado is right white, and 17% of the prison population is black, although 5% of the population of Colorado is black. That’s a little bit of a disparity.

[46:16] Larry: That tends to be the case across the country and and every time I’ve tried Definitely. Dialogue with people about that. They have a, they have response. They say that, blacks commit crime at a higher rate and therefore you if you didn’t prosecute them that you would have you’d essentially be giving them a license to carte blanche to to be criminals. So they have an answer for that. I don’t know if I can argue with that. I haven’t done enough study on that. But, I also know that people who have less resources financially tend not to do as well in the criminal justice system. And it could be that that they commit crimes that are roughly equal rate and that the people that are more affluent have better outcomes. That could be a possibility as well. Chance, what do you think?

[46:59] Chance: I I I would tend to agree with that, actually.

[47:02] Larry: So, you got a much more diverse state in California than even Colorado is. So, do you see that gross mismatch between the ratio of prisoners and the California Department of Corrections and Rehabilitation?

[47:15] Chance: I I would I would probably guess it’s it’s probably the the same very much. Maybe I mean, you know, a variance, of course, in percentages, but I would I would think it would be reflecting the same thing. Yeah. So

[47:30] Larry: well, they had put the other demographics of the smaller. I didn’t I cut them out because they were so small, but, you know, the disparity between black and white was as fairly substantial.

[47:41] Andy: Totally with you. Totally with you. Are we done?

[47:46] Larry: I think so. So we’re gonna promote the, conference, and we’re always gonna promote FYPs, merchandise, and we’re gonna let people know that we probably won’t be recording next week. I’m pretty sure you’ve got a conflict.

[47:58] Andy: I there’s no doubt I have a conflict because I have dinner reservations Saturday night at a restaurant. And so that will not work unless you want me to record from the Korean restaurant, which I will do. That’d be fine. That’d be fine. Well, I’m eating some chicken bulgogi. I’m looking at my calendar, and I have 11PM eastern time Friday night open. So we could record them. Oh, jeez. But that would be one for no. I’m not doing that, man. No. No. Alright. Well, please, as Larry said, head over to registrymatters.co, and you can find show notes, which will include a link to fypeducation.org/shop. You can find the merchandise that is going to be there at the conference, which you should also be at the conference, which is in Grand Rapids, Michigan. Like, go ahead on the twenty fifth. Is that when it is, Larry? Well, it’s It’s like the twenty seventh, I guess. We actually kick off on the twenty seventh. We’ll have a meet and greet Thursday, the twenty sixth, starting around 6PM.

[48:52] Larry: And then, the program itself will kick off on Friday morning, the twenty seventh. It’ll end Sunday around noon on the twenty ninth.

[49:00] Andy: Fantastic. And we will do a live recording, which all of them are live. It’s not like we’re recording dead, but we’re going to do it with an actual studio audience. We’ll find some place to to set up shop. I’ve got this cool little gadget, Larry, that I’m gonna hook up to my phone. I’m gonna try and record it. For those of you like looking at it, I have two little lapel microphones. I’ve got this little gizmo to attach to my phone, and we’re gonna be fancy with two little microphones that connect to your shirt. Again, looking up at the the screen, you can see got a little, doodad here. So hopefully, we can record like that. I hope to make my life easy.

[49:34] Larry: That way, if I bang the table, it won’t pick up on the microphone.

[49:37] Andy: It’ll probably still pick it up. But we’ll give it a shot. Email regstreammatterscast@gmail.com. Leave old fashioned voice mail at (747) 227-4477. After which, I will apply, like, technology to it to make it sound like you’re talking on a tin can from the nineteen twenties or something like that. And of course, I thank all of the patrons so very much. All the people here listening tonight live are patrons, and I love all y’all so very much. And that’s over at registry excuse me. Patreon.com/registrymatters. And that’s all I got. Gentlemen, Chance, thank you for joining us, Larry, as always. My pleasure. Appreciate it. Have a great night.

[50:19] Larry: Thanks. Thank you. Good night.

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