LEGAL ADVICE -- is this girl screwed?

A friend of mine is going to trial in January.

In 2001 she was arrested for fleeing from the police and two other charges, I think one for negligent driving and one for property damage.

At the time she was having a nervous breakdown and told the police that “D”, the person whose property she damaged, was a friend. Because they had to chase her down they arrested her with extreme brutality.

Two years she’s still living in the shadow of the trial, it keeps being delayed and delayed and delayed. I think January is actually the preliminary hearing, if it is not delayed again.

What really happened is that she was having a nervous breakdown because “D” had raped her twice and she was going to his house to kill herself because she thought she he should see what he did to her. The night before the arrest she tried to check herself into a hospital because she was feeling suicidal, but was turned away.

She believes there are medical records to support this.
Approximately eight months ago, one of the delay tactics her lawyer used (even though my friend really doesn’t want it delayed any more, and didn’t eight months ago) was to request an evaluation of mental fitness. The Doctor figured out pretty quickly that my friend had been raped by the person pressing the charges for property damage. The Doctor said he would keep this information to himself unless he was requested by the court to divulge it. Since he was there to evaluate her understanding of the judicial process, it won’t come up.

My friend is finally getting some rape-specific counselling and is slowly coming to terms with what happened. She’s really scared because she wishes she would’ve had the courage to stop the rape, press charges for the rape, tell the police why she was going insane, etc. and it seems like it’s all too late.

And this is why she needs your advice: SHE CAN’T GET AHOLD OF HER LAWYER. She can’t afford a lawyer so one was provided by legal aid. Manitoba’s legal aid system is so underfunded right now that petty cases involving poor people are totally being thrown out.

When this case started, her lawyer was certain she’d get the prosecution laughed out of court if they seriously tried to pursue it. Now she’s telling my friend to plead guilty and REFUSES TO RETURN HER CALLS. In fact, she’s not even calling my friend when she needs to. My friend waited for hours at the law buildings only to run into her lawyer at the end of the day. The lawyer said, “Oh, I meant to call you. You didn’t have to come in today.” then disappeared.

An earlier session, a man is threatening to jump off the court building because he was having trouble with his lawyer and didn’t want to lose his children. HIS LAWYER IS ALSO MY FRIEND’S LAWYER.

So, yeah, she can’t count on her lawyer at all.

We’re all brainstorming as to what we can do, but the only thing we can think of is to write a letter to the judge saying something like, *"Dear Judge, I feel I need to write you this letter because I am unable to reach my lawyer regarding my case and this has been the state of affairs for months now. I am asking for leniency as I am a really good girl, I have no other criminal offences or misdemeanors, and the truth is that day I was having a nervous breakdown and was going to D’s house to kill myself because he had raped me. The night before the incident I had tried to check myself in to a hospital because I was feeling crazy and suicidal. This is verifiable, though I cannot count on my lawyer to bring this up in court because I cannot reach her. The court-appointed psychiatrist I saw regarding my mental evaluation figured out really quickly that I had been raped by D, so you can also verify that I am not lying about this.

I am currently seeking rape-specific counselling and am finally able to come to some terms with what happened. I do not want this incident to ruin the rest of my life. My emotional disorders and depression have cost me my job and has gotten me expelled from University for five years due to my inability to participate properly. I do not know what I can do for myself, I cannot get ahold of my lawyer under any circumstances I desperately do not want to go to prison. I feel like I am finally taking strides to get my life in order, despite this case which has been hanging over me for years now." *

These are my words, not hers. I basically transcribed what I thought the letter should say when I explained the idea to her. She doesn’t know if this is a good idea and, quite frankly, neither do I.

Please help. Does she have any options?

Oh, and because she’s legal aid there is no board for her to complain to.

Does the Charter guarantee her access to effective counsel? She sure ain’t getting it. Can she call whoever supervises this lawyer (legal aid) and talk to someone at that office?

As far as we’ve been able to ascertain… and this consists of talking to a lawyer and a law student: no. She’s out on her ass.

I’m sure the lawyer has a boss. Tell her to go pester the hell out of his boss. The lawyer also belongs to a bar asociation, which I bet has a disciplinary commitee. She should talk to them, too, and copy her lawyer (and his boss) on all correspondence with them.

I don’t know how differently things work in Canada, but in the U.S., if you undertake to represent someone you are actually required to represent them.

Umm, how well do you know this person? Because the story doesn’t listen very well. Raped twice? And even after that, telling the police he was her friend? And the fact that she was going over to commit suicide doesn’t fit so well with property damage and fleeing the police to the extent they had to arrest her with violence, and certainly doesn’t mitigate it.

A hospital turned her away after she said she was suidical? Her psychaitrist said he would conceal evidence of a crime?

She may not be lying to you, mind you, in the strictist sense, but I’d be surprised if she knew the truth herself.

It sounds like she caused a lot of messes, and thinks the fact that there were messes should be enough punishment.

It could be the lawyer believed her once, but after looking into it, realized that the stories didn’t match. Now she wants to deal with her as little as possible.

Please don’t lend her money for a lawyer, unless you got lots to spare.

Per merrily’s note and your description of the way the events have transpired will make the assertion of being raped difficult to substantiate as a mitigating factor. Even if true in whole or part, her story viewed at arm’s length, does not hang together that well logically or procedurally, and a letter detailing these items will likely peg the Judge’s BSometer.

You sound like a good friend, help her to the extent you can, but make sure you are not being played.

This person has no prior record? Just how bad was the negligent driving? Did she ram this person’s house with her car or something? Because aside from the fleeing the police, this sounds like something that would get a first offender a slap on the wrist and a suspended sentence around here (Note, I am so very not a lawyer!).

I’m rather surprised that someone who raped someone would have the temerity to press charges, especially if it were hinted that the rape might be mentioned in court. (More speculation – I’m guessing this was date rape?) Anyway, it seems as though there should be considerable latitude to get the property damage charges withdrawn. Regardless, your friend should file a police complaint against the person she claims raped her. Get it on the record, if even they can’t prosecute. It may not be the last time that this person has done this.

IANAL and I don’t know much about Canadian law. However, I’m thinking that a jury isn’t gonna buy her suicide/rape story, even if it’s true. Defendants come up with all sorts of excuses for what they’ve done and after a while people get jaded and let it go in one ear and out the other.

I’M not saying she’s lying, she could be telling the truth. But I can’t see an entire jury buying it.

She or you might want to try calling a women’s shelter and see if they know of any resources other then Legal aid where your friend might be able to get a new lawyer.

Her Layer does have a boss at legal aid, but they are all I am certain overworked. This is not to excuse her layers behavior, but first things first, find out if there are any other resources. Women’s shelters have access to both legal services & counseling services that specialize in this kind of stuff.

I apologize profusely if I step on anyone’s toes in this post. I’m not trying to be an ass.

Yes, a hospital turned her away when she was suicidal. D acknowledged this in the police report because he had taken her to the hospital himself, because she had tried to kill herself in front of him.

It is not weird that she told the police he was a friend. If you want resources to learn about rape, I’ll link you to them. Denying, repressing, and simply not recognizing it is common after the fact.

It wasn’t her psychiatrist, it was a court-appointed doctor whose job was to evaluate her ability to understand the court proceedings. It was a “fitness assessment”.

This is bullshit. She is not lying. I know her very well, have known her for a very long time, and have been one of the few people who have been able to help her through this. If you don’t understand how she can be raped twice, you don’t understand how a relationship can be abusive.

I also realize what a convoluted mess this sounds like and that’s exactly what this is, so just accept that this is true and she’s finally in a position, personally, to fight for her future. Yes, it’s melodramatic, and yes I probably sound like an ass right now, but I’m more than a little annoyed that I have to respond to some of these posts.

She has no previous criminal record. D’s garage, a police car, and a tree D’s parents planted to commemorate the pope were damaged. Her lawyer, if she can be reliable, told us that the prosecution was inclined to drop the charges but they were being pressured by D’s family.

As far as I know, it’s not a jury trial.

Would this establish anything important or would this just seem like a petty tactic? She’s worried about this because, as illustrated by some of the responses I’ve received in my post, some might think she’s lying.

One of her friends gave her the idea of starting a letter writing campaign to the judge. Apparently, the friend who suggested it had some success with her cousin’s case. Is my letter idea a good one, or should it be discarded?

Yeah, this is what she’s concerned about. However, there are important records. The medical records saying she was turned away. The police report in which D, himself, states that he took her to the hospital the night before because she was trying to kill herself. And the court-appointed psychiatrist believes the rape took place, it just wasn’t pertinent to her fitness assessment to stand trial.

Do these three things give her any leverage at all?

I appreciate this, but this mess is wholly truthful.

We can all armchair this to death as non-lawyers, but if you are determined to help her you need to commit at least several thousand dollars for a good lawyer.

Beyond this, you didn’t initially mention the police car being damaged, and you didn’t mention that her “rapist” was the one that brought her to the hospital. The first item makes it highly unlikely she will walk with just a wrist slap.

Re the second, most people are going to be inclined to view this a dysfunctional relationship gone very bad, but making the case two years after the fact, that she was raped as the reason she tore up his parents garage and yard and bolted from the cops, is going to look desperate, self serving and manipulative unless there is some very hard evidence substantiating her rape accusation. Asserting that the rape really occurred because her psychiatrist “believes her” is next to worthless as a defense strategy, and would be shredded by any decent prosecutor.

A letter writing campaign might be useful if there were new hard facts to being to the table. If there are not, it’s probably just going to irritate the prosecutors and judge, and she would be better off getting a real lawyer and seeing if she can negotiate some settlement with D’s parents, and plead out to something that doesn’t involve jail time or heavy fines. She may have a crap public defender lawyer, but her lawyer’s point about pleading and moving on is probably the most effective strategy unless there is new hard information supporting the rape accusation.

Don’t get upset, you have now given us more facts. All we had was your OP, and, not knowing how much you really knew about the circumstances, it sounded suspicious. As you yourself said, this is your friend’s biggest problem, too.

Since no professional legal advice has shown up yet, here are some amateur suggestions:

  1. Do not send that letter to the judge like you have it. It pleads her case too much–chances are high the judge will just see it in that light. What she really wants is help on the lawyer issue. Emphasize, with dates if possible, the attempts to reach the lawyer. Emphasize that she has evidence, but don’t go into the details at all. I also wouldn’t mention that other case about the frustrated custody person. The judge will be aware of that, and if you mention it, it will just sound like your friend is jumping on a bandwagon. The judge should be able to see a pattern here with this lawyer without help.

  2. Go to another legal aid society, even if it isn’t on the type of law your friend is involved in. What they will know is where your friend needs to go for help on her representation–other lawyers will know this. Again, she shouldn’t try to plead her case here, just get the facts. I just did a google on this, and there seem to be free legal aid places in Canada (another post said you were in Canada), but I don’t know where you are. For example, here is one in Ontario:

  3. I would second the suggestion about contacting the Canadian version of the American Bar Association. I wouldn’t hold out a lot of hope on this one, but if nothing else, it may help later if it comes to a bad representation hearing. Call them, see if they can tell you what your friend’s rights are in this instance. Again, don’t try to give them the whole case: you are much more likely to get some help if you have one clear-cut issue. Your key phrase: “Then, please, who should I call to find this out?”

  4. Here in the U.S. we have some lawyers who take cases on spec, e.g., they will listen to you for free and then decide if they can sue someone to make it worth their while to continue. If you can find this–try the yellow pages of your phone book for ads-- your friend might try one of these on the misrepresentation issue. If nothing else, she might learn more about her rights.

  5. I don’t know about the letter-writing campaign–it is true that if you annoy someone enough, or else show there is enough civic annoyance, it can make action. Or it can annoy a judge enough to come into the case already annoyed with your friend. If you do this, I would suggest focusing on your main question–the representation–instead of all the other issues. Think of it this way: if you can get the judge to ask at least one question, what question would you choose? Make that the focus. A trial is where all the other facts will come out. Remember that judges hear about messed-up lives all day every day. What might make the judge pay attention is a legal issue (representation), not a justice issue (your friend’s totality of circumstances).

  6. Try the General Questions page–and make it a succinct general question, e.g., where should a person who lives in XXX go if a court-appointed lawyer is not reachable? A different group of people hang out there.

Good luck to your friend. I hope this is really the turning point for her.

Thank you for your replies and, yeah, I know I’m being a testy ass. Things just suddenly look really desperate since it’s apparent that her lawyer spends nine hour lunches every day.

I’ll follow up the suggestions made.

Thank you all, again. I really appreciate it.

Yeah, nothing that’s happened in the last few years has been even remotely condusive (spelling) to helping her.

It’s really upsetting that we can’t make a case against the arrest even though she’s got shard scars all the way down her back. At one point early on in the legal proceedings, this happened: my friend read the police report, told her lawyer that it was wrong and that the police smashed her car windows before she fled. Her lawyer asked the police about this, as the report said that they were smashed when they dragged her out, and the cop she questioned agreed that they were not smashed then, but in the middle of the pursuit. Discrepencies like this abound and it seems insane that they mean nothing.

My friend is still in a really bad place. What started it all is that her father was diagnosed with terminal cancer. Upset, she ended her relationship with D. As she was faced with her father’s iminent death, D systematically destroyed her self-esteem, her will to fight back, her will to run, and finally raped her twice, destroying her will to live.

I’m actually getting really upset just writing this.

She’s convinced she has no future, she’s been expelled from univsersity for truancy. When she did show up, she’d just vomit from nerves. She can’t go back for five years. She’ll almost be thirty, learning with nineteen year olds.

If she gets a criminal record from this thing, she can’t travel, can’t have certain jobs.

And once the trial is over, the insurance company is going to sue her for more than ten thousand dollars.

Yeah, if she is unable to figure out who her nominal lawyer’s boss is and for some reason is unable to contact or just go to legal aid, then write a letter to the judge touching on nothing other than her inability to secure effective counsel and her need for effective counsel. Regardless of the facts or allegations or the mental or emotional state or anything else, the immediate issue is her inability to secure effective counsel.

Magical disappearing lawyer? Complain to the Law Society, and insist that the lawyer contact her immediately:

Need Legal Aid representation other than the present lawyer? Complain to the Legal Aid area director, and insist on a new lawyer immediately:

If all else fails, see if the Crown will permit a plea that will limit the damage to her record, e.g. conditional discharge plus counselling, or if really lucky, withdraw plus surety and counselling,

Has she ever offered to just pay the damages to D’s parents and ask them to drop the charges? Or, does the fact that a police car was involved and she ran make that impossible? Here in the states you can often make a plea bargain (an agreement between the DA and the defense attorney) for a reduced charge just to get rid of the cases that aren’t worth the time and money to prosecute.

From my own experience with a relative, it might be better to just plead guilty as long as the charges aren’t felonies. A misdemeanor offense won’t bar her from anything important. It will also allow her to get on with her life. Except for fleeing from the police, the other two charges don’t seem that serious. Can she write her attorney and tell her she will plead guilty if the DA will agree to drop the fleeing charge? (and only if they are not felonies!).

I believe this woman has deeper problems which she cannot address as long as this nightmare goes on. Plenty of people have misdemeanor records and believe me, standing on principle and refusing to plead guilty (she is guilty of the charges) is the wrong decision.

Since she actually comitted the crimes I’m not sure what she is hoping to gain by trying to convince the judge she was justified. I don’t believe he could dismiss the charges; he could mitigate the consequences, but she would, in the end, still be convicted of a crime. You can’t be found not guilty because you had a really good reason; but, you can have the charges dropped because you are mentally ill. and if she thinks that would be better try getting a job or insurance with that on her record.

So, only if the charges are not felonies, or cannot be reduced to misdemeanors, tell her to plead guilty, chalk it up as a very hard lesson in life, and get on with her life.

Personally, I’m with the people who say it sounds like her story doesn’t track. But you know, that’s not really important. What is important is that she get good legal counsel, and to that end it sounds like Muffin’s links are exactly what she needs right now. Get her in contact with those parties and I’ll bet she can find out what really is her best course of action as opposed to our own amateur arm-chair advice. Although I admit, we do have fun giving our amateur arm-chair advice! :wink:

Thank you, all of you. Even if you think the story doesn’t track. I love you guys.