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Topic: Procedural defense

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	Notable Court Decisions Concerning Criminal Law
		Procedural Posture: The trial court refused the defense's request for a jury instruction stating that the Government must prove that he had actual knowledge that the false statements were made in a matter within the jurisdiction of a federal agency.
		Procedural Posture: In the trial court, the judge allowed the prosecution to bring the doctor's wife to the stand and testify about her life, which was a play on the jury's sympathy.
		Procedural Posture: The trial court gave a jury instruction on self- defense, and supplemented it with a statement that they must determine, from the subjective viewpoint of a battered wife, whether the D.'s belief that she was in imminent danger was reasonable.
	www.lectlaw.com /files/lws50.htm (18545 words)

	USCA1 Opinion 02-2640 (Site not responding. Last check: 2007-10-21)
		He begins with the proposition that procedural default is an affirmative defense and that, therefore, the government may lose the defense by neglecting to raise it in a response to a habeas petition.
		This is as it should be; procedural default is an affirmative defense, and a plaintiff generally is not required to negate an affirmative defense unless and until the defendant has placed it in issue.
		At that juncture, Oakes was entitled to assume that the defense was by the boards and the fact that he had preemptively addressed the defense in his original pro se petition does not alter this entitlement.
	www.ca1.uscourts.gov /cgi-bin/getopn.pl?OPINION=02-2640.01A (2815 words)

	No. 4033
		The Union also asserted that it was surprised by the County's procedural defenses and it reserved the right to request an adjournment to allow it to prepare to meet those defenses if needed in light of the County's case on the procedural arbitrability issue.
		The County, in its brief, argues that the grievance is not procedurally arbitrable because it was filed on November 3, 1989, in excess of the Art.
		For the foregoing reasons, thenr the Arbitrator concludes that the County waived its timeliness defense by failing to raise it during the prearbitral processing of the grievance, such that the grievance is procedurally arbitrable.
	www.wisbar.org /res/wercg/1990/4033.htm (2616 words)

	Franklin v. Johnson
		Procedural bar issues are not infrequently more complex than the merits issues presented by the appeal, so it may well make sense in some instances to proceed to the merits if the result will be the same.
		But where, as here, the defenses are entirely consistent with each other, and where the relied-upon defense had already been rejected by the trial court as "not well taken," the decision not to investigate before deciding whether to pursue a given trial strategy cannot be deemed reasonable.
		Because this case involves a procedural bar in name only, and actually is based upon Franklin' s failure to exhaust his claims in state court, I believe that § 2254(b)(3) applies to protect the State from its failure to raise this argument in the district court.
	www.law.com /regionals/ca/opinions/may/0036108.shtml (6339 words)

	[No title]
		In 1986 and 1987, they steadfastly told the police and defense investigators that they were sure about their story.*fn7 To this day, none of the three has wavered from his belief that it was Tracy Parker whom they saw on September 17, 1986.
		Such evidence would clearly have provided a strong defense and "[counsel's] failure to investigate [was] inexplicable, as [was] his failure to utilize[the brother's] confession, except as the result of incompetence and indifference." Id. at 1459.
		In arguing against procedural default of this issue, Joseph points to an argument he made in state court claiming ineffective assistance of counsel because the attorneys provided to him by the public defender's office were overburdened and provided inadequate resources.
	www.capitaldefenseweekly.com /archives/990719.htm (7626 words)

	USCA6 Opinion 03a0287p.06
		To the extent Gulertekin may assert ineffective assistance of her post-conviction counsel as cause for the procedural default of her claim for ineffective assistance of trial counsel, she is barred by the fact that she has no constitutional right to such counsel.
		Thus, she is unable to demonstrate cause for the procedural default of this claim.
		First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.
	www.michbar.org /opinions/us_appeals/2003/081403/19937.html (4510 words)

	State v. Wead, A-99-782, 9 Neb. App. 177 (Site not responding. Last check: 2007-10-21)
		The only exceptions are for the defenses of insufficiency of the indictment, information, or complaint; ineffective assistance of counsel; and lack of jurisdiction.
		This court held that once defense counsel made the trial court aware of the question of Johnson’s competency, the power of the trial court under § 29-1823 to examine competency was triggered.
		Thus, this court determined that although the trial judge made specific findings that Johnson possessed the attributes of competency, that he understood his rights, and that the plea was made “‘freely, voluntarily, knowingly and intelligently,’” the appellate court was required to address the adequacy of the trial court’s inquiry into Johnson’s competency.
	www.nol.org /home/ncpa/ctopinio/A99-782.htm (1698 words)

	STATE OF MICHIGAN
		The court noted plaintiff's failure to include in the final pretrial order the procedural defense it was attempting to rely upon on the first day of trial, and plaintiff's silence on the matter of the affidavit for the approximately two years during which discovery proceeded.
		While the requirement that a defendant file an affidavit of meritorious defense is mandatory, the statute is silent with regard to the remedy for noncompliance.
		Among the several reasons the court gave for not entering a default against defendant was that plaintiff waived her right to raise the procedural defense by failing to include it in the final pretrial order.
	www.michbar.org /opinions/appeals/2000/120800/8711.html (1535 words)

	Create exciting Web pages (Site not responding. Last check: 2007-10-21)
		Procedural Posture: Ratzlaf was convicted of violation of 31 USC § 5322(a) and § 5324(3) for “willfully” violating the antistructuring provisions of these statutes.
		Procedural Posture: Aaron was convicted of first degree murder under the Michigan first-degree murder statute which made murder into first-degree murder if it occurred during any of the enumerated felonies [arson, rape, armed robbery, etc.].
		Procedural Posture: The trial court gave a jury instruction on self-defense, and supplemented it with a statement that they must determine, from the subjective viewpoint of a battered wife, whether the ?’s belief that she was in imminent danger was reasonable.
	www.mcwebsoftware.com - !http: //wings.buffalo.edu/academic/department/law/sba/criminalbinder2.html (12475 words)

	State v. Enriquez-Beltran, A-99-1242, 9 Neb. App. 459
		A defendant waives a double jeopardy claim or defense on direct appeal, as well as when raised in postconviction proceedings, when he or she voluntarily pleads guilty to the criminal charges, even after there has been a forfeiture of money or property arising out of the same incident.
		Pursuant to an order dated September 14, 1999, the court denied the writ of habeas corpus on procedural grounds as not being the proper pleading, but found that “in the interest of justice,” the writ would be treated as a motion for postconviction relief.
		Here, a waiver and a procedural bar occurs because there was a knowing and voluntary guilty plea to the criminal charges after the forfeiture proceedings were completed.
	www.nol.org /home/ncpa/ctopinio/A99-1242.htm (1692 words)

	Representing Foreign Nationals: Emerging Importance of the Vienna Convention on Consular Relations as a Defense Tool
		Once defense counsel determines that the defendant is a foreign national, counsel should demand that the prosecution formally notify the defendant and contact the consulate.
		Procedural default occurs when the defendant fails to raise a claim in state court that could have been raised in either a direct appeal or a state habeas action, but is now precluded.
		The defense argued that the statement weakened their argument that the defendant lacked the mental state necessary to support the conviction, because he was merely trying to scare the victim when he fired the shots that killed her.
	www.criminaljustice.org /CHAMPION/ARTICLES/98sep01.htm (7927 words)

	99-8099 -- U.S. v. Cestnik -- 02/26/2001
		Consequently, he is procedurally barred from raising it in his § 2255 motion, unless he can show cause and prejudice.
		We note that, although the government did not raise the procedural bar defense before the district court, it did brief the issue on appeal and defendant responded to the issue in his reply brief.
		Again, we note that defendant was given an opportunity to respond to the procedural argument and, in fact, did respond with respect to the Richardson issue in his reply brief.
	www.kscourts.org /ca10/cases/2001/02/99-8099.htm (926 words)

	ICCAF - Angola - Urgent Action - Marques Update 8 - March 9, 2000 (Site not responding. Last check: 2007-10-21)
		On the procedural front, defense lawyers will seek to nullify the proceedings on the grounds that neither Marques nor his two codefendants have been duly instructed of the charges that they face.
		The defense may then argue that this provision is incompatible with the Angolan Constitution as well as Article 19 of the Universal Declaration of Human Rights, which states that everyone should have the right to freedom of expression and access to information.
		At the very least, truth must be a defense in the case of writings that address the president's political behavior and performance, as opposed to his personal life.
	www.web.net /~iccaf/humanrights/angolainfo/urgangolamarqupdate8.htm (859 words)

	98-4085 -- Byrns v. State of Utah -- 12/16/1998
		Without addressing the procedural default issue, the state moved to dismiss, arguing that petitioner failed to exhaust state remedies because he sought neither certiorari review of his conviction nor state post-conviction relief.
		By August 20, 1996, however, when the district court remanded the matter to the magistrate judge to determine the applicability of the procedural bar rule, the Act was in effect, and the state could, and did, assert a procedural default defense.
		Therefore, the petitioner was procedurally barred from seeking relief in Utah state courts and, as a consequence, had procedurally defaulted for purposes of federal habeas relief.
	www.kscourts.org /ca10/cases/1998/12/98-4085.htm (1468 words)

	Attorney Mihova
		The prices for the legal advisement and procedural representation under cases in Bulgarian courts are determined in compliance with the legal and factual complexity of each individual case, but not less than the fees specified in REGULATION No. 1 of 09.07.2004 for the minimal barristers’ remunerations, hereby enclosed.
		For defense under administrative cases the remuneration is determined by virtue of the provisions of article 7, para 1, section 4 and para 2.
		Art.12 The remuneration for defense in pre-court proceedings is 150 BGN, and for carrying out of procedural actions in different days the remuneration is 30 BGN per each day.
	www.advokat-mihova.com /en/tarifa.html (1363 words)

	[No title]
		In her answer, the respondent also asserts, inexplicably and incorrectly, that “Benoit was afforded an adequate opportunity to present his claims fairly in the context of the State’s appellate process through a subsequent appeal granted by leave of Court.” Ans.
		Here, however, the Court need not enforce the procedural default because the respondent had not raised it in her answer to the habeas petition.
		Cain, 522 U.S. 87, 89-90 (1997) (affirming that courts of appeal are not required to raise the defense of procedural default sua sponte, and recognizing that failure to raise the defense normally constitutes a waiver).
	www.michbar.org /opinions/district/2003/010903/17707.html (3508 words)

	ProgressivePunch : Making Government Work for Everyone, Not Just the Rich or Powerful—Protecting Rights of ...
		H.R. Governance: Procedural Vote to Recommit to Committee with Instructions A Bill to Require, in Extraordinary Circumstances, States to Hold Special Elections to Fill Vacancies in the House of Representatives No More Than 49 Days After the Vacancy is Announced by the Speaker of the House of Representatives.
		A procedural vote on a Republican motion to end a Democratic filibuster - extended debate -- and bring up for a vote a bill that would reform class action lawsuits by taking most class-action lawsuits out of the hands of state courts and giving jurisdiction instead to federal court.
		A procedural vote to cut off Democratic debate and the possibility of hostile amendments to a Republican bill to fund federal highway and highway safety programs.
	www.progressivepunch.org /category.jsp?issue=M6 (2023 words)

	Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related ... (Site not responding. Last check: 2007-10-21)
		Defense counsel share information with each other that they would never share with plaintiffs, and plaintiffs' counsel likewise share information with each other that they would never share with defendants.
		The ABA was asked to define the ethical obligations of an insurance defense lawyer who had regularly participated in a joint defense consortium as counsel for an insurance company, and who now has been approached by a client that wants him to file suit against other members of the consortium.
		Defense counsel's assertion of the common interest privilege -- they had objected to Essex's interrogatories on that ground -- was turned against them: "Defendants cannot enjoy the benefits of the privilege without accepting its burdens.
	www.law.duke.edu /journals/dlj/articles/dlj50p381.htm (16759 words)

	University v. McGowan (1992)
		Second, Appellant claims defense counsel's inability to reserve final rebuttal time during closing arguments is a procedural abridgment of her Due Process rights.
		Her assertion that Court Rules must conform to Kansas common law procedural practices is unsupported.
		Court Rule 4.8 states the Court "shall, in its hearings, follow accepted common law procedure and rules of evidence except as modified by these [Court Rules] of practice and procedure" (emphasis added).
	www.ku.edu /~parking/trafct/Cases/mcgowan1992.html (466 words)

	njfrech
		Defendant argues that the statute of limitations is a procedural rather than a substantive provision and therefore the code's limitation applies.
		For instance, as noted in Busik, supra, it was the general rule that the statute of limitations in the context of a conflict of laws problem should be regarded as a procedural issue and, for that reason, governed by the forum's law.
		Accordingly, although the five-year statute of limitations is considerably harsher than the one-year limitation of the Code, the court is bound to conclude that the Code's statute of limitations is not procedural and may not therefore be applied to offenses committed prior to the effective date of the Code.
	wings.buffalo.edu /law/bclc/web/njfrech.htm (2279 words)

	ProgressivePunch : War & Peace—War with Iraq / All members
		A vote on passage of a Democratic amendment to the fiscal year 2005 Defense Authorization Act (S. 2400) requiring that the Defense secretary develop a protocol that permits media coverage of the return to the United States of coffins containing the remains of members of the armed forces who died overseas.
		On passage of a Democratic amendment to S. 2400, the fiscal year 2005 Defense Department authorization measure, designed to ensure the costs of the U.S. missions in Iraq and Afghanistan are realistically represented and accounted for by rolling back a portion of President Bush's tax cuts for individuals earning more than $1 million per year.
		A vote to table (kill) a Democratic amendment to the fiscal year 2005 Defense Authorization Act (S. 2400) to prohibit the use of private contractors in the interrogation of prisoners and offensive military operations and establish certain restrictions with respect to the transfer of prisoners to contractors and foreign nations.
	www.progressivepunch.org /category.jsp?issue=W4 (2093 words)

	ProgressivePunch : War & Peace—Missile Defense Systems / All members
		A vote on passage of a Democratic amendment to the fiscal year 2005 Defense Authorization bill (S. 2400) placing a condition that the Defense Department can only acquire the next set of missiles for its Missile Defense Program after operational testing on the system is completed or at least initiated.
		Procedural Motion/Vote to Table (Kill) a Requirement that the President Obtain Congressional Approval Before Withdrawing from the Anti-Ballistic Missile Treaty.
		Procedural Motion/Protest Vote to Adjourn Congressional Session In Response to Republicans' Refusal to Require Congressional Approval Before Withdrawing from the Anti-Ballistic Missile Treaty.
	www.progressivepunch.org /category.jsp?issue=W7 (814 words)

	CHAPTER 3
		Air defense commanders integrate their operations horizontally with all battlefield operating systems and vertically with both higher and lower echelon air and missile defense units.
		Procedural techniques are usually more restrictive than positive techniques but are less vulnerable to degradation from electronic or physical attack.
		When airspace procedural control measures are incorporated with these standard operational measures Army forces have the means to graphically depict the integration, coordination, regulation, and identification of Army airspace users in a given area of operations.
	www.fas.org /spp/starwars/docops/fm44-94d/Chap3.htm (8013 words)

	ProgressivePunch : War & Peace—Military Spending, General / All members
		H.R. Fiscal 2004 Defense Authorization/Passage of a Bill to Provide Funding for the Research and Development of "Low-Yield" Nuclear Weapons and Exempt the Defense Department from the Endangered Species Act.
		H.R. Fiscal 2004 Defense Authorization/Vote on Rules of Debate on a Bill to Provide Funding for the Research and Development of "Low-Yield" Nuclear Weapons and Exempt the Defense Department from the Endangered Species Act.
		H.R. Fiscal 2004 Defense Authorization/Vote to Allow Consideration of a Bill to Provide Funding for the Research and Development of "Low-Yield" Nuclear Weapons and Exempt the Defense Department from the Endangered Species Act.
	www.progressivepunch.org /category.jsp?issue=W3 (855 words)

	Read about Procedural defense at WorldVillage Encyclopedia. Research Procedural defense and learn about Procedural ... (Site not responding. Last check: 2007-10-21)
		Research Procedural defense and learn about Procedural defense here!
		In jurisprudence, procedural defenses are a form of
		criminal justice program violated procedural law as it was creating its case, and trial, against said defendant.
	encyclopedia.worldvillage.com /s/b/Procedural_defense (79 words)

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