My successful 11b carter motion

ManlyMinute
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My successful 11b carter motion

Unread post by ManlyMinute on

Hey guys. So I won my trail last Thursday due to a stay of trial and I feel as though I owe everyone who are helping others on this site, you are the reason why I won. The least I can do is tell everyone what happened so here it goes.

Some starting details.

The ticket was issued for 122 in a 90 zone.
Highway 11 NB around line three.
OPP
Court was in Barrie
I had to commute using the Windsor-Toronto VIA rail, and GO trains to get to the court house. (I'm saying this because YES it is worth a little money to commute to a court room to fight a ticket because YES you can win)
Ummmm. Yea, I'll add additional details later.

NIGHT OF TICKETING

Driving home from school, late March 2009, I took the 400 all the way up to HWY 11 and from there just dropping my friends off. How fast was I going? I don't know. I was going the rate of flow for traffic and didn't feel comfortable going any slower. I am NOT going to argue wither or not I was speeding cause I want to try and help people when filing a an 11b motion.
Anyways, officer pulls me over, all business and completely serious. Got my licence and insurance. He goes back to the cruiser and returns no more than 5min later with a ticket, and tells me how fast I was going and if I wanted it reduced I should take it to court. Then with a quick "do you understand?" I, with a dropped jaw, nodded like a tool and the officer was off like a bat out of hell (no intended offence to any officers reading this). I have never been through such a speedy ordeal with an officer of the law and I have no ideal how he got everything done so fast.

It was later that week that I found this site and TICKETCOMBAT. :D

I also need to note that where the 400 turns to 11, the highway turns into only a two lane, limit drops to a 90, and this is the highway that all the cross Canada truckers must take. I counted 3 speed signs (I think one was taken out by a plow) between the start of 11 and where I was ticketed. So I would kinda like to note that it is entirely possible for someone to get stuck in dense traffic with a transport blocking their view of every traffic sign up to the point they are pulled over. So look out, this highway leads to OPP headquarters and they like to put on a good show.

DISCLOSURE

So from this point I am learning immense amounts of law but I certainly start off as every other unguided citizen doing all the wrong things.

I used the court's supplied disclosure request first. ABSOLUTELY USELESS and TICKETCOMBAT.com will tell you this. I'm fairly certain that stupid sliver of a tree got sucked into a black hole cause it did nothing and no one in the Provincial Offences Office had any idea what happened to it. After that I found a good template of a disclosure request on-line. Depending on what office you file this with they will probably tell you that the form you are giving them is pointless, or not acceptable, or doesn't make any sense. DO NOT LISTEN TO THEM. I was confident in my requests despite my still lacking knowledge of the law and it payed off big time in court. I'll tell you this with certainly, you will feel intimidated, you will be made to look like an idiot, and in some instances you may actually have to refuse to back away until someone does their job. I fought through sooooooo many uphill obstacles that I wondered many times "is it really worth it."
HA! Yes it was.

So.

Disclosure Request #1 (Offences Court's Form)
- No response

Disclosure Request #2 (My Form)
-Ready for pickup in 3 weeks

Contained
i) Officers Notes
ii) Photocopy of an old LTI 20/20 manual (LIDAR)

Problems
i) Officers Notes were similar to chicken scratch, if the chicken was high off his rocker. The lines were blended together with writing. The individual letters were not even written without being on top of each other. I could make out things like "very polite" and "LTI 20/20" but thats it. I took these notes to my track coach (YORK REGION POLICE OFFICER) and she asked me what I was showing her. A police officer could not recognize another officer's notes were actually notes. How could I be expected to understand them?
So I went to my school's book store and picked up "Principles of Law Enforcement Report Writing" Third Edition. Author: Gino Arcaro.
None of this officers short hand notes matched anything commonly taught in any police foundations program. Therefore the shorthand was unique to this officer and conclusively it was impossible for me to decipher any of the officer's notes.
However, I did find this from my new book. (I'm going to paraphrase to avoid plagerism*SP)
Prosecutors are obligated to supply the defendant with something called a Crown Brief which is essentially a report written to the Crown by the officer detailing and suppling every little bit of evidence there is.
This book also teaches students the Sender-Receiver method of communication. This method states that the SENDER (officer) is required to make the message 100% understandable to the receiver by making sure the RECEIVER can ANALYZE and EVALUATE the message accurately.

ii) I requested to see the manual for the LIDAR device. Somehow I got a copy with lots of blacked out sections. From reading others threads and posts made by -hwybear- this is not allowed due to copyright law. However the prosecutors office said in R. v. Ferguson [2005] O.J. 3442 and R. v. Gagliano [1996] O.J. 5402 decisions were made that override any copyright law when it comes to the defendants rights. I can't find these precedents so if someone with experience here can help me it would be greatly appreciated. If these are real case law then PIPIDA and other copyright law is down the old crapper and you CAN demand a copy.

iii) Nothing else from my request was supplied.

Disclosure Request #3
- Received a letter from the prosecutor's office a few weeks later.
This letter was simply a denial of all my requests and this is also when they told me about the copy-write stuff I mentioned earlier.
This is what they wrote:
1) The repair history of the mentioned device. There has been no foundation laid by you for this request.
2) (I asked for information on how fast i was going because I couldn't understand the notes. They apparently didn't understand me cause they made no sense on this line.)
3) Clarification of the offence. Section 128 is the single most common offence laid by Police. (From there they told me to go look it up if I didn't understand.)
4) The Officer's training records. Constable ________ is a trained and qualified Lazer/radar operator. No further records will be released as they are not relevant. (I hardly see how not.)
5) There are no additional witnesses in this matter.
6) There were no statements made by you that were recorded.
This letter was made and signed by the municipal prosecutor.
This was also my last disclosure before my court date in early November 2009.

In all of my requests I requested typewritten notes and stated that the handwritten ones I had were unlegible.

COURT (round one)

15 days before my court date I served a Notice of Constitutional Question and a supporting affidavit to the Attorney General of Canada and Ontario, then I served the prosecutor as well. In Barrie, you never get to even see the prosecutors office. Everything must be done through the service attendants in the provincial offences office. Now TICKETCOMBAT.com will tell you to only say that you are filing an 11b because that is all they understand. Not the case in Barrie. No matter what you tell them they will not understand. You have to walk up to the bullet proof glass, and tell them step by little baby step what to do.
Ex.
You: Hello, please stamp all of these.
Them: What is this?
You: The prosecutor's office needs them and I need a copy.
Them: But, what are they?
You: Forms.
Them: (Weird silence)
You: So once they are stamped one copy goes to the prosecutors office and I get one.
Them: (They might by this point so what you say as long as you asked them nicely.)

If you try and get even in the slightest bit technical with them they will tell you they will not/do not deal with that stuff.

15 days is not enough time but I did it anyways and was hoping for an adornment if it was needed. The motions I filed for were an 11b breach and section 7 breach. 11b - It's only been 6-7 months since my ticket but I was anticipating an adornment due to a lack of disclosure (section 7 breach).

CourtDay:

My session was at 1pm.
Lots of people were on the docket.
I was an hour early.

Entered the courtroom and the prosecutor was offering lesses charges to everyone.

I declined mine and opted for trial.

My officer showed up with a piece of note paper in his hat that were his notes.

I showed up with two binders. 1 with all of my trail forms and information. 1 with precedents and lots of notes from step 5 of TICKETCOMBAT.com

For 2-3 hours only the guilty pleas and XCOPPER(guilty pleas anyways :roll:) guys went to the bench. Three recesses were called throughout to straighten out who wasn't there and who was left still. Eventually 4:30 came by and the prosecutor called another recess and told everyone wanting a trial (5 of us) that only one 1 person was likely to have a trial. He called us up to figure out who had priority. I tried to get it but someone else there had come from Michigan so they where put first and I was second. From then the prosecutor told everyone other than the #1 guy that they could pick another trail day and it would be shown that it was the prosecutions fault they were not seen on that day. I opted to stay and try still.
With no such luck, I never got a trial and I was rescheduled to last Thursday.
I spent 6 hours in a court room and never got a trial.

DISCLOSURE (again)

I took this time to put in one more request.
I asked for with reason and supporting precedents:
1)Calibration records
2)Speed and Distance I was measured at
3)Officers training records
4)A full copy and a typed version of any hand written notes.
5)Witness will say statements

-No reply

All of these requests were apart of all my disclosure forms and none of them were fully satisfied.

COURT (round two)

So it's 3:50pm and I'm on the GO train to Barrie when I get a call from the Offences Office telling me my disclosure is ready to my court date the next morning.
Re-enactment:
ME: I'm sorry I missed that.
THEM: You have a court date tommoro correct?
ME: Yea
THEM: Well there is a disclosure package here waiting for you to pick up.
ME: Today? And you are calling me an hour before you close?
THEM: Well you can pick it up tommoro morning before your trial.
ME: Ummmm. Ok? I guess I'll have to.
THEM: Have a nice day Mr.____________
ME: I'll try.

As far as I know this is unacceptable disclosure. I gave their office 3.5months to respond and they do so .5 days before my trial.

CourtDay:

That Notice of Constitution Question I filed late for the last trail is now 4 months in the green and I can now move for a stay of trial based on inadequate disclosure, the slow process and lack of trial on my scheduled day.
Also I have submitted two requests to have my trial moved to a sooner date. One before each trial. This is very very helpful. Please do this for your trial. I thought it was useless but the justice took it quite seriously.

I picked up my disclosure package and went into the court room to sit and read it.
In it there was a set of notes and thats was it. I was very confused because I thought I already had all of the officers notes and just couldn't read them. No, these were an entirely separate set of notes the officers had of me and were not disclosed.
Here is one part I'm still confused about. I got the officers notes. ALL OF THEM. The note book front to back was photocopied. In there contained all of this officers happenings for about three days. Once again it was chicken scratch but I could make out much more detail. I have since then destroyed the notes because it had the private information of every person he pulled over and every other event he investigated including assault and another for vandalism. I'm still not sure but I think this is a serious mishap by the prosecution and I really want someone to help me out here and tell me if that was even legal.

Anyways,
Prosecutor offers me settlement. I decline.Then I notice something about this prosecutors mentality.
He replied:
P: Really?!
ME: Yes?
P: You want to have a trial against the OPP!?
ME: .......Uhhhhh, Yes. Should I be intimidated.
P: Oh no of course not, but you do realize you will have to go through a trial.
ME:..........Ummmm. Thats the plan.
P: (Turns to OPP officer and snickers) Ok. If thats what you want.

This is what was said. It's been stuck in my head for days now.
Later I overheard him and an officer talking. The officer asked what the he was doing in provincial offences and the prosecutor replied that he was taking a break from criminal court to fill in for someone else.

I was against a real lawyer. A seasoned one by the looks of it too. From that point on I was on the edge of crapping my pants all through the trial. I was certain I would loose because while my knowledge is better than most in court, I could not compete with someone who has legal experience with proceedings probably memorized and had likely a great deal more presentation expertise (I loathe public speaking, so this is worse for me).

The lawyer destroyed two other people trying to argue out of a ticket and was very blatantly aggressive in his method.

This is when I get called up.

Keep in mind this is my first trial and I am shaking I am so nervous.

I went up and stated my name.
My arraignment was read and was asked "How do you plead? Guilty or not guilty?"

From studying I choose this point to interrupt the process and motion for a stay of proceedings.
This is the exact line I read from that I had prepared before hand.
ME: Prior to submitting a plea, your worship, I move that the proceedings be stayed on grounds that my right to be tried in a reasonable time has been violated. I have already had one scheduled trial which was adorned due to a scheduling error on the prosecutions behalf.

After a quick bewildered look from the Justice he asked the Crown if he had any submissions to my motion.
Of course he was holding my paperwork I filed and I thought I was going to get put down.
He replied that he had the paperwork submitted by myself and stated some case law where it was determined the time in which it had to be submitted was 15 or so days. Anyways, he claimed that I had not taken any of the right methods to properly submit the paperwork.
He then sat with a very satisfied grin on his face.

Justice asked me if I had a response to this.
Me: Yes, your worship. I would like to say that I have filed the paperwork with the both attorney general of Canada and Ontario. I also did this 4 months ago, before my last trial.
The Justice had a stunned look on his face and he looked at the Prosecutor for a response. The prosecutor rummaged through his stuff saying he was never given the paperwork for that. Then he called a recess so that he could organize himself.

I went back to my seat before the Justice left and I nearly had a standing ovation from everyone in the room.

The prosecutor left the room and came back with something called an 11b template. I was not aware it existed and it was with this the prosecutor got very angry and aggressive with me. We met and had a brief discussion. He told me that this is not a game and that what I was getting into is very serious. He outlined with this template that it has not been 10.5 months since my ticket submission but by subtracting court processes was more like 6 months. Without actually threatening me, he implied I should stop and back down.

I was already there. May as well follow through.

So the justice returned and the crown made it's reinforced case against me. I thought I was screwed, again. The justice asked me one last time why I felt as though I have felt predjudist*SP against myself and I noticed that he was really hinting towards me saying something about how I have been affected by a further 4 month delay in my trial.

I gave him the biggest sob fest I could muster. Everything I could think of I said it.
-I've sustained extra costs in travelling fees
-I've lost marks in school
-It's taken time out of my personal life
-It's created inmeasureable amounts of stress in my life
Then I elaborated on stress.
-Agitation
-Amprehention
-Distraction from basic daily routines
-Distraction from my school duties therefore I'll be less likely to better myself as a person
-It's been in the back of my mind ever since this whole thing started

If you ever get to argue an 11b motion, give the justice every reason possible to justify staying the charges.

THE DECISION

The Justice listened to the crown destroy all of my arguments and then made a decision.

It went like this.
He looked at me and told me that the crown was completely right in all of his arguments. There are many precedents that support his arguments and it has legally not been enough time for a 11b breach. He went on to state if I argued this 4 months ago I would again be 100% wrong and the motion would fail. To sum it all up he said it has definitively not been enough time for a charter argument like this to be successful. With a pause he then continues. You have demonstrated a significant amount of effort in order to prepare yourself to go unrepresented in this court. However I feel as though you are still in over your head. You have respected all the proper procedures and have done a better job than I could expect from any student at your age. You have also made it clear through several schedule requests that you have tried your hardest to get this trial done as soon as possible so as to return to your normal life. It is then my decision based on the extended amounts of daily stress and predjudest*SP you have experienced on behalf of the crown delaying your trial ever further that I accept your motion to stay these proceedings.

I thanked the worship and bowed then left the courtroom.

The Prosecutor said just before I left "I will be seeing you again."
So, is worried by this in particular. Can they appeal that decision and get me tried again?
Or is the A-Hole going to track down any future cases of mine and take them personally?

Summary

I'm a busy student.
I faced a harder than usual trial and still won.
This was my first trial and I knew nothing to begin.

If you want to be successful in a 11b charter motion for a stay, then you must make is abundantly clear that you have followed all the proper procedures. You must demonstrate some hard work to be prepared for that trial. You must also provide very legitimate reasons for your motion to prove that you have suffered in some way.

At least this is what worked for me.

I remained dedicated to this trial and in the end the JP saw that and helped me out. Sorry for any spelling mistake any any other errors I have made. My head hurts, I'm getting a beer.
Hope this helps someone.
Last edited by ManlyMinute on Sun Feb 07, 2010 5:32 pm, edited 3 times in total.


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Unread post by racer on

Hello, welcome to the forum!

Glad to hear that you have won your ticket, and it is always great to hear that we have helped! Thanks for sharing your experience with us. Remember to refer us to your friends in need - you can always use www.ohta.ca as a short web site name too!
"The more laws, the less justice" - Marcus Tullius Cicero
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ManlyMinute
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Unread post by ManlyMinute on

Thanks. I wasn't quite done. I accidentally hit the submit button.


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Unread post by Reflections on

If you are a Georgian student, I might suggest the "Law in Everyday Life" elective class, if it's still offered. With what you just did an 85-90 is automatic.
http://www.OHTA.ca OR http://www.OntarioTrafficAct.com


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Unread post by Frozenover on

Congrats on your win!

I'm surprised that the crown seemed so upset. With most people fighting a ticket being "sheep to the slaughter", you would expect the crown to appreciate a good fight.

It looks the the JP did and he's was the one that counts.


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Unread post by neo333 on

ManlyMinute: Congratulations!! Great to hear the experience of someone who researched, worked their butt off, stood their ground, and won!


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Unread post by Radar Identified on

Congratulations on the win! That was a hard one to pull off.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. *
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ManlyMinute
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Unread post by ManlyMinute on

Hope nobody minds but I'm going to post some case law relevant to this kind of motion. It's how other Justices have calculated unreasonable delay in the past and I'm farely sure that this is what my prosecutor had used to try and convict me in this case.

Drunk Driving charge
This is CRIMINAL COURT
-Counsel queryed if this was "the earliest date" in relation to a trial
Justice replied "yes" (This is considered explicit intent, synonimous with a trial schedule request, to withhold 11b chrater rights)
-Trial took 14.5 months

R. v. Morin, [1992] 1 S.C.R. 771
http://www.canlii.org/en/ca/scc/doc/199 ... lii89.html

While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and
4. prejudice to the accused.

Cocaine Trafficing
-This is criminal court but a good example of a delay breakdown is provided.

R. v. Dawkins, 2008 CanLII 63203 (ON S.C.)
http://www.canlii.org/eliisa/highlight. ... 63203.html

---------------------------------------------------------------------
In summery, here is the breakdown.
1. the length of the delay.
- This is from start to end. When the ticket was issued to the time the trial ends.
2. waiver of time periods.
- If you do not make it explicitly clear that you want the soonist possible trial, in writing or said so in court, then your application for a stay will suffer especially if the prosecution focuses on this point. Say "I want my rights." and you'll get them.
3. reasons for the delay (addition and subtraction)
- (-) inherent time requirements (intake, delivery for notice of trial, bad)
- (-) actions of the accused (adjornment on defences fault, also bad)
- (+) actions on the Crown (adjornment on Prosecutions fault, good)
- (-) limits on institutional resources (backed up court rooms, bad but this may be arguable)
- (?) other reasons for delay (if you are creative then you can present reasons why there were delays that are not your fault)
4. (+) prejudice to the accused. (VERY GOOD, /*EDIT*/ TICKET COMBAT covers all of this too but I didn't know that till now. Arguements must be directed at how you have not recieved or will not be able to recieve a fair trial. For instance, if the trial has taken 10 or more months to come to fruition, you are statistically proven to remember less than 20% of whats happened and the same goes for the officer if his notes are insufficient. I argued that my further delay in trial has created additional stress and has distracted myself from my normal studies. This will never work unless the prosecutor has caused a further delay in your trial. This is because STRESS is to be expected with any trial and cannot be blamed on the court since a trial must happen. If they delay you any more than neccessary, then that is EXTRA or ADDITIONAL stress to what is expected.)
Last edited by ManlyMinute on Fri Feb 19, 2010 3:45 pm, edited 2 times in total.


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Unread post by neo333 on

Thanks manly.

One of the key's to a successfull 11b is showing prejudice. A sob story won't always cut it....

One good factor for showing prejudice is that the longer it takes, memory of the events start to fade (of accused, witnesses, officer, etc). As a result, this effect make it more difficult to make a full answer and defence to the charge. Hence prejudice to the accused.

Any other factors or possibilites for establishing prejudice to shore up an 11b?? Any ideas?


ManlyMinute
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Unread post by ManlyMinute on

Hmmm, well to elaborate on your forgetting idea.

It's called Ebbinghaus's Forgetting Curve. Hermann Ebbinghaus was a memory scientist and did studies back in 1885 on memory retention. It's been continuously proven that Police training does not improve memory retention necessarily.

So for example, without any conscious review, every average person retains only 58% of any given incident 20miniutes after it occurs.
@60min - 44%
@9hrs - 35%

Therefore there is such a strong need for officers to take notes and do so both prudently and immediately after/during a ticket.

If one was to ask the question in court-
"How long after this incident did you take your notes."
Some serious doubt can be cast upon the officer if the answer is a somewhat large number.

(Please let me know if I'm doing this whole forum thing wrong guys, I'm not use to posting in forums.)


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Unread post by racer on

ManlyMinute wrote:Hmmm, well to elaborate on your forgetting idea.

It's called Ebbinghaus's Forgetting Curve. Hermann Ebbinghaus was a memory scientist and did studies back in 1885 on memory retention. It's been continuously proven that Police training does not improve memory retention necessarily.

So for example, without any conscious review, every average person retains only 58% of any given incident 20miniutes after it occurs.
@60min - 44%
@9hrs - 35%

Therefore there is such a strong need for officers to take notes and do so both prudently and immediately after/during a ticket.

If one was to ask the question in court-
"How long after this incident did you take your notes."
Some serious doubt can be cast upon the officer if the answer is a somewhat large number.
That is good to know. Which is also why a prudent officer takes notes before writing a ticket. Not every officer is that prudent though.
ManlyMinute wrote: (Please let me know if I'm doing this whole forum thing wrong guys, I'm not use to posting in forums.)
You are doing just fine. Read http://www.ontariohighwaytrafficact.com/topic123.html for our guidelines though!
"The more laws, the less justice" - Marcus Tullius Cicero
"The hardest thing to explain is the obvious"

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Unread post by jovan1 on

I would liek to find out where did you find 11b template.
I was looking but was not able to find it.


ManlyMinute
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Unread post by ManlyMinute on

Go to www.ticketcombat.com and look for it.

Alot of this information is just a re-verbalization of what has been posted there for Ontarians to use.

Jump to STEP 4. Look down the right side coulomb and find the documents tab. There you will find a 4F, a Factum, and an affidavit example (well a few, actually).

You should actually read the entire website as well. VERY VERY HELPFUL!

Have you had a trial already?


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Unread post by jovan1 on

Yes, I had trial month ago. I was waiting until the end of day, and they made me another trial date for May 28. Not enough time for all trials.
They told me there is a way to fight it and it is 11b application - prejudice to the accused.
I would like to file 11b and want to find template.
Is that affidavit examle good enough?
Thanks for your great information.


ManlyMinute
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Unread post by ManlyMinute on

Not enough time for all trials.
They told me there is a way to fight it and it is 11b application - prejudice to the accused.
That is exactly what happened to myself in my first trial. YES, by all means follow through with an 11b charter motion. I was in Barrie and it took 10.5 months from tickiting to final trial and the Justice thought it was too long especially considering that to prosecution failed to have my trial on the origionally scheduled day. The time period for an 11b will be different depending on where you go.

Oh, and it's prejudice towards yourself now mainly because the longer you wait the less prepared you are to defend yourself. Memory fades with time, and unfortunately some people just can not remember what happens. :D

Did you by any chance ask for the soonest possible date or file a schedule request before your origional trial date?
Is that affidavit examle good enough?


Good enough for myself. The JP's like seeing that someone is prepared and not going to waste their time. As well, it allows you to shed some more light on why you are filling an 11b. If you are commited/competent enough to swear an oath (prior to trial) then you'll probably get one of those "huh, maby they are right" reactions. Anotherwords, just do it, and stick to facts and truths.

How long will it have been when your new trial comes along?






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