Justice Yegan begins this opinion with the following introduction:
"Lamenting the delays associated with the orderly processing of criminal cases, Justice Macklin Fleming explained a popular way for a criminal defendant to avoid, or at least delay trial: 'sidetracking.' He describes this as diverting 'the inquiry into a collateral issue. . . . In the operation of a railway system to sidetrack a train is to switch it from the main line to a siding. In criminal law to sidetrack a cause is to divert the accusation from the pending issue [guilt or innocence] to some other issue, any issue, and then keep the prosecution [or the trial court] so occupied in litigating the side issue that the hearing of the accusation itself comes to a halt.' (The Price of Perfect Justice, Basic Books, Inc, (1994) at p. 54.)
Appellant is the poster boy for sidetracking."
I agree with Justice Yegan that there's such a thing as "sidetracking" and that, when it happens, it's a problem. It can be a deliberate tactical strategy.
But there's also something called "being a nutjob". Not making tactical decisions to try to derail a prosecution, but simply being so incredibly divorced from reality that one makes counterproductive, irrational decisions that are virtually random in their nature and effect.
IMHO, appellant here is a poster child for the latter, not the former.
Look at what the appellant filed and see if you think he's rationally trying to derail the prosecution or instead merely filing whatever crazy concepts fly into his head at the moment. For now, just take one little snippet from the motion this pro per criminal defendant filed on November 6, 2012, in which he "alleged that Judge Hirsch 'leaked' appellant's identity to the media after appellant accused Judge Hirsch of judicial corruption. He repeated his claim that because he was Muslim and Judge Hirsch was Jewish, Judge Hirsch was prejudiced against him. According to appellant, Judge Hirsch's 'leaking' appellant's name to the press put his life in danger and was done because of appellant's religious beliefs. This, according to appellant, 'crossed the line' and 'Allah gave me the full holy right to act in return in aggression . . . by any means I choose . . . I have chosen to act in aggression against Judge Hirsch . . . with my brains and legal applications. . . .'"
Ah, yes. There's a motion that's going to be granted. There's one that a rational party is definitely going to file. I can't fathom a more brilliant display of "sidetracking" than this.
Put simply, this case is a bad vehicle for a good concept. Yes, deliberate sidetracking exists, and it can potentially be a problem. Indeed, I might even agree that the sidetracking in this case was a big problem if defendant were out on bail at the time. Because then defendant's wasting everyone's time and getting a tactical benefit -- his freedom -- as a result.
I strongly suspect, however, that as a two-striker ultimately sentenced to ten years in prison, the defendant here's not on bail, but is instead rotting in jail the entire time he's tactically "sidetracking" the proceedings. Maybe I'm wrong (though I doubt it), and if I am, then yeah, the crazy motions and resulting delay are maybe a reason to keep him in and/or adopt some other remedy.
But if the only result of crazy motions is that a guy who should be incarcerated stays incarcerated, I don't really see how that's a monster problem. A slight hassle? Sure. But it ain't hard to deny what are clearly frivolous motions like the ones filed here. Nor do I suspect that we need to deter the type of conduct that transpired here, because I strongly suspect that most defendants know that what went down here was in no small part the reason the guy to a decade-plus in prison. You don't piss off the judge who's sentencing you. That's not a lesson we really need to desperately reiterate in spades lest everyone forget it.
The Court of Appeal publishes the opinion to "remind" trial courts that they can revoke pro per status if the defendant is being "deliberately obsructionist". Which is clearly true. But this case isn't the poster child for a "deliberately' obstructionist party because it's unclear that there's anything at all "deliberate" out what he's doing. There's no deliberation. There's no intent to delay. It just seems to me it's the conduct of someone divorced from reality and convinced -- truly convinced -- that the trial judge is biased and the world's against him and everything will be just fine once he's able to present all of this to the federal court (in which he's sued the state court judge) and the Court of Appeal. That is what he truly believes. As evidenced by his final statement to the trial court: "When I reverse you on appeal, I will make sure to rub it in your face."
Yeah. How'd that work out for you in the end?
The trial court could tolerate and quickly deny the silly motions that this pro per defendant filed or it could have revoked his constitutional right to represent himself and forced an attorney upon him that he didn't want and would aggressively fight. I could imagine arguments for doing the latter. But they are ones based upon paternalism and the need to protect the innocent. Not -- as here -- as a bulwark against deliberate, tactical sidetracking.
It's not that Justice Yegan doesn't have a point. He does.
It's just not that I'm at all sure this is the case in which to make it.
