Monday, January 9, 2017















ITS WAR!!!! ERNESTO GAMEZ V. LUIS SAENZ, OR A ROUSE TO GET THE CASE AGAINST MARISA HERNENDEZ DISMISSED BASED ON PROSECUTORIAL MISCONDUCT 

Be patient I am writing. The motion for sanctions and call for state investigation by Gamez will be posted once the story is complete.

I want to begin with a key part of the police report which Gamez claims Saenz is withholding.


The last sentence of the typed rendition of the report says pedestrian at fault.  According to Gamez the police report provided to him in discovery does not include this part of the report.  This is important for two reasons.  It is not disputed the police altered the original video tape of the accident by deleting that portion where the alleged defendant's son is searching the area of the accident for a possible victim.


On the latter Judge De Coss already ruled the time frame from the accident to the alleged search as a matter of law is not immediately as required by law and thereby not exculpatory evidence.

Gamez is playing a dangerous and desperate game.  In a case of failure to render aid it appears to be his position that if a person commits suicide by walking in front of a moving vehicle the driver has no duty to stop and render aid.  The argument is absurd and is going nowhere with an honest judge.

THE JUDGE

According to Ralph Tipton, the current judge, Gloria Rincones, discussed the case with him while on the campaign trail.  She must recuse herself immediately.  The sooner the better so a judge can be assigned to this case.

THE GAG ORDER - AND THE ENDLESS MALPRACTICE

Ernesto Gamez is also requesting a gag order.  The gag order on the parties, which will not include Ralph Tipton, or the press or blogs, should be issued.

Gamez's request for an investigation against Saenz and the leaking of evidence is without merit and should be met with a counter motion for sanctions against Gamez individually.

I will not deny this is a complex area of law.  When you have parallel criminal and civil cases on the same issue, if a definite date can be established for the criminal case, the judge in the civil case can abate the civil case until a definite date.  But if the the criminal case has an open ended date for trial an abatement by the civil judge will be considered an abuse of discretion.  The federal courts have been more willing to issue stays.

Discovery is a different issue.  The concerns with a stay are to not force the defendant to have to incriminate themselves during discovery.  Some discovery can be engaged in during a civil proceeding without running afoul of the defendant's right against self discrimination.

GAMEZ KNOWS HOW TIPTON GOT THE EVIDENCE AND IS PLAYING GAMES

Gamez in one breath in open court complained that Ralph Tipton filed with the criminal court the depositions from the civil case.  He then used the testimony of the criminal defendant's son that they in fact searched for whomever or whatever allegedly Maris Hernandez hit.

There was a time I would have called the level of malpractice by all side surreal, but no longer.  Lawyers just wing it and have no knowledge of the law.  The lawyers who argue the law tend to irritate the judges.

I spoke with Ralph Tipton this morning and with his permission I am posting his response to my question.  All of the evidence which Gamez complains about was given to Ralph Tipton by his lawyers in the civil case which has produced during discovery according to the law.  So Gamez knows there was no nefarious conspiracy by Saenz to leak information as alleged in Gamez's Motion for Sanctions.

SOMETIMES GOOD LAWYERS SEEK JUDICIAL COVER BEFORE ACTING

The defense lawyers for Marisa Hernandez as hired by the insurance company, and Saenz both should have filed motions to stop all discovery which went to the innocence or alleged guilt of Marisa Hernandez.  They did not.  They could have asked for a gag order on dissemination of all discovery produced pending completion of the the criminal case.  They did not.  Gamez as Hernandez's attorney should have approved all discovery in the civil case and should have forced the issue of trying to block discovery pending the criminal case, or at a minimum its dissemination by any party or attorney in the civil case except as filed with this court..  His own malpractice may be why the evidence was produced during civil court proceedings.  It was not leaked.  I say may because these cases are fact specific.

MARISA HERNANDEZS' ONLY REAL REMEDY - TRANSFER VENUE

Art. 31.01. ON COURT'S OWN MOTION. Whenever in any case of felony or misdemeanor punishable by confinement, the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, after due notice to accused and the State, and after hearing evidence thereon, order a change of venue to any county in the judicial district in which such county is located or in an adjoining district, stating in his order the grounds for such change of venue.


1 comment:

Mr Shrimp said...

I wish the courts were more visual than blind justice.