3RD DCA ROUNDUP

In our continuing  quest to remain faithful to resolutions bravely made on the ski slopes of California during the heady days of our December vacation, we reluctantly have begun keeping up with the 3rd DCA. As those of you who regularly read appellate opinions know,  "Wednesday is fun day at the 3rd DCA" or the day they release their new opinions. 

Be careful what you ask for: In Jackson v. State this pro se (latin for "ungrateful") defendant, convicted at trial,  was, in the words of senior Judge Schwartz "  so difficult that his 

recalcitrance, antagonism and even personal attacks upon each of a lengthy series  of court-appointed attorneys, all of whom were required to withdraw, rendered it  obvious that he simply would not permit himself to be represented by anyone and  amounted to a binding forfeiture or waiver of that right.

Everyone will be glad to know that in retirement, Judge Schwartz's well thumbed thesaurus is still on his desk. 

Speaking of Thesauruses, in Jenkins v. State,  the 3rd confirmed what we all learned in high school- the prosecution must prove EACH element of the crime. Close enough is not good enough in criminal law.  And Judge Shephard was nice enough to let us know that  " it is apodictic that the State ultimately must prove each element of the  It alleged crime to the satisfaction of the jury and beyond a reasonable doubt."   

In this prosecution sale of cocaine, to the shock and surprise of the prosecution and the trial judge, the court's denial of the motion for Judgement of acquittal was reversed because of this small legal technicality: the prosecution did not and could not prove that the substance the detective saw the defendant sell was cocaine.  Extra points to Judge Shephard for "apodictic". 

Memo to the 3rd DCA webmaster:  half the criminal cases reported under opinions are "PCAs" and since you have a "PCA" section, isn't is apodictic that they belong there?   

So what have we learned today?  1) If you're going to hack someone up with a machete, try and be a bit nicer to your court appointed counsel.  ( Jackson v. State)2) If you're going to prosecute someone for selling a controlled substance, you need to prove it is in fact a controlled substance. (Jenkins v. State)

3) Apodictic is a fun word with many opportunities for use in our daily lives.  

See You In Court, reading the FLWs. 

NY State Governor David Patterson has chosen NY Congresswoman Kirsten Gillbrand to replace Clinton as the next senator from New York. Query: Does County Court Judge Norma Lindesy have a twin sister?