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THIS WAY OR THAT WAY II
By Dave Harrison

Part I of This Way Or That was presented in the June/September, 2003, issue of The Light (Vol. IX Issue 99). You may recall that the strategy presented focused on using civil litigation against non-government persons to obtain discovery useful to overturning your criminal conviction: "From a position of power you will realize vindication and freedom, information gives you power, discovery provides you information." Obtaining discovery is, however, only one aspect of that dynamic strategy. More important, perhaps, is the securing of a favorable Judgment, which can be raised in a subsequent habeas corpus petition by way of Judicial Notice (e.g., Federal Rules Of Evidence, Rule 201), thus a powerful tool to be used to "flip" your criminal conviction. Since Part I first appeared I have received many correspondence asking for information and assistance, and have received the occasional question asking whether the strategy actually works in the "real world." Indeed, the strategy works, and is every bit as powerful as I have suggested. Let me share with you two "real world" cases that are now unfolding.

Immediately following the publication of This Way Or That I was approached by an individual seeking assistance in matters of his criminal conviction (burglary of a residence, from which he received an eight-year sentence). The bizarre twist in the case was that Chris was convicted of burglarizing his own residence! The travesty of justice was set in motion weeks before Chris was to leave on an extended business trip to another state. Prior to his departure, Chris's discontent wife secretly contacted their landlord and arranged, under the ruse of Chris abandoning the family, to have a substitute Rental Contract (Contract) executed naming herself as the only resident. The substitute Contract was executed during Chris's absence. In an interview after Chris's arrest his wife vehemently expressed that she felt no obligation to notify Chris of her perfidious actions. Moreover, and despite the specific terms of the original Contract and applicable California law, the landlord never made any attempt to notify Chris of the substitute Contract. In other words, Chris was never notified that he had been remove as a legal resident of the property. Being unaware of the nefarious activities of his wife and landlord, Chris happily returned home, only to be arrested for burglary; his protestations of being a legal resident were ignored by law enforcement officers who were shown only the substitute Contract by Chris's wife. The plot continued through Chris's prosecution, conviction and sentencing.

A civil Complaint naming the now-ex-wife and landlord followed, stating various Cause(s) Of Action including, but not limited to, Chris's false imprisonment as a direct result of the defendants' actions, both deliberate and/or negligent. The ex-wife chose to leave town with a reputed drug dealer and government informant. She defaulted, and an Entry Of Judgment has been filed. What is important here, is that upon resolution of the whole case, a Judgment Of Default will be filed by the court. Upon that filing, all assertions of the Complaint as made against the ex-wife become true, and may be used by way of Judicial Notice in a habeas corpus petition attacking Chris's conviction and sentence. The landlord's extensive efforts to have the case dismissed have all been defeated. Discovery obtained includes copies of the original and substitute Contracts, as well as Responses To Interrogatories and Admissions, wherein it was established that the landlord, like the ex-wife, never noticed Chris of any substitute Contract.

The landlord's attorney is now urgently trying to negotiate a settlement with Chris to avoid a trial, where a runaway jury might look very dis-favorably upon the landlord's negligence which resulted in Chris's false imprisonment. Discovery also produced evidence that the prosecutor had both Contracts, and had knowledge of Chris's legal right to the property. The civil case is sure to settle, with Chris receiving, among other compensation, a comprehensive and definite declaration from the landlord stating the ruse perpetrated upon him by the ex-wife, and that he never noticed Chris of any substitute Contract. While his ex-wife might no longer have desired Chris to reside at the property, there is no evidence that he ever abandoned the property (to the contrary, he continued to support the household while away at work) or was noticed of any substitute Contract.

In Chris's case, he has obtained the evidence necessary to support a Petition For Writ Of Habeas Corpus to vacate his criminal conviction. His petition will be supported by (1) evidence obtained by way of discovery, (2) the declaration of the landlord, and (3) the Judgments that will be filed against each defendant at the resolution of the case. The evidence and Judgments will support the petition to the effect that the deliberate acts and/or negligence of the defendants, respectively, did result in the erroneous conviction and false imprisonment of Chris. Chris will realize vindication and be freed because, notwithstanding California's oppressive justice system, a person still cannot be convicted of burglarizing his own home. Furthermore, based on the overwhelming evidence that the prosecutor continued to prosecute Chris even after becoming aware that he was, in fact, a legal resident of the property, the state will be subject to civil litigation for the harms suffered by Chris as a result therefrom. Let me present you another example of the strategy working as offered.

Corey was prosecuted as a result of his participation in a bar-fight, resulting in serious injuries to the other party. At trial, the only witnesses to testify were friends of the other party. Not surprisingly, they testified that Corey instigated the fight without provocation, and carried the alleged assault beyond any necessary limit. Corey was convicted and received a lengthy prison term. The other party then made a serious miscalculation. He brought civil litigation against Corey for compensatory (medical expenses, pain and suffering, and lost wages as a result of being unable to work) and punitive damages.

When Corey first contacted me the plaintiff, through his attorney, had just obtained a Default Judgment against Corey in the amount of $176,000.00! I was successful in having the entire judgment thrown out. I next initiated invasive discovery against the plaintiff. And, oh, what we discovered! First off, it was discovered that the claimed medical expenses had actually been paid in full by insurance (100%). The plaintiff had no out-of-pocket medical expenses, despite claiming them in his suit. Even more intriguing was the discovery we did not receive relevant to plaintiff's alleged lost wages (IRS records, credit card records, living expenses including, but not limited to, rent/mortgage payments, automobile loans, bank accounts, et cetera). Plaintiff's attorney raised a smoke screen of boiler-plate objections and claims of privilege. Of course, a party cannot bring litigation - - put a specific issue into contention - -- and then withhold discovery relevant to that very issue. A motion to compel discovery has been filed, and a hearing is scheduled. This is a classic example of the power of discovery. Having already exposed the chicanery surrounding the medical expenses, it is reasonable to suspect similar antics concerning the claim of lost wages (why else would the plaintiff refuse to provide evidence to support his claim? - - because he has never held a legitimate job and did not lose any "wages" as a result of his losing efforts in the bar-fight). Like the medical claims, the claim of lost wages is a fraud, which is further evidenced by the plaintiff's attorney now hastily offering to drop all claims for compensatory damages, leaving only punitive damages in contention (a futile move that will not relieve the plaintiff of the obligation to provide all the discovery sought).

In agreeing to assist in this case. I had thought that the best I could do would be to have the exorbitant $176,000.00 judgment thrown out, and then work towards a more reasonable settlement. Now, however, I feel there is a real possibility of having the entire case thrown out as a sanction for the frauds perpetrated upon the court and Corey by the plaintiff (and maybe by a complicit attorney, too). Although the frauds of the civil case do not go directly to the elements of the criminal conviction, I have suggested to Corey that, in the event the civil case is thrown out, he in turn bring suit against the plaintiff, attacking the frauds of the civil litigation as they implicate various perjuries of the criminal case. In that event, discovery will go directly to the perjuries of the other party in matters of the civil case and the criminal conviction. At the very least, extensive discovery will be had. And, like Chris's ex-wife, I would not be surprised to find out that the other party is himself in no position to oppose Corey's counter suit. In such event, Corey could end up with a Judgment Of Default upon findings of fact that the other party, and his witnesses, perjured themselves at Corey's criminal trial.

"From a position of power you will realize vindication and freedom, information gives you power, discovery provides you information."

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