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Can one appeal a conviction on grounds of being denied Due Process & 9th Amend. rights (or any other rights) to trial by combat?

Miami, FL |

The 13 colonies were under British Common Law, which allowed trial by combat until Parliament banned it in 1819. The colonies broke away in the 1700's, so trial by combat was in effect here- and no US Court or Legislature at any level banned it here, not even in the Constitution. 9th Amendment says if Rights are not listed, it doesn't mean people don't have those Rights. And the Founding Fathers did have duels to settle disputes, they didn't even wait to go through the Courts to formally have trial by combat-- It was original intent on a way to settle disputes. If asking for trial by combat conflicts with other Rights then, I wave those other Rights. Could this go the way of the 27th Amendment? Can I demand trial by combat or appeal a conviction for being denied such an option?

no one banned gay marriage outright either, which is why the gays use the equal protection clause in such a unique way to allow for gay marriage. Perhaps using due process and 9th Amendment rights to demand trial by combat should be viewed similarly since no one outright banned trial by combat.

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Attorney answers 6

Posted

This made my day, thank you for posting such a colorful question. Unfortunately, however, the answer is still "no."

No attorney-client relationship exists by virtue of any AVVO Q&A with Keith Petrochko. Anything posted on AVVO, or anywhere online, may be used as a statement against your interest in a subsequent legal proceeding.

Posted

I am sure that you are aware, Florida was not one of the Thirteen colonies and was ceded by Spain to the United States. In any event, The constitutions of the various states can and do abrogate common law and/or permit the legislatures to abrogate common law. There is no such thing as or right to, under the law of Florida or any other state or the United States Government, trial by combat nor is such a right guaranteed or reserved by the constitution.

Asker

Posted

When I wrote "here," I meant the US in general, not just Florida. I agree they can abrogate Common Law, but so far no law or Court ruling at any level of government has banned trial by combat in the US-- no one has asked for it that I'm aware of in the US or the 13 colonies, so no one had a reason to take the time to ban it-- same with the gay marriage issue and how the equal protection clause is being used by advocates of gay marriage, using it in such a unique way. Go look at the Wikipedia page for "trial by combat" and read the "United States" section. I don't desire such a request to be approved, but still, if one requests it, the judge would have to give a legal rationale instead of saying "that's crazy, no way."

Posted

I sincerely hope this is a hoax question. The answer is "No!"

I only practice in the areas of personal injury, federal civil rights, and criminal law. I will not respond to inquiries about legal representation in other areas of law, so please do not call me about matters outside my areas of practice. Furthermore, my answers on Avvo do not create an attorney-client relationship. Avvo is not designed for the type of legal analysis I personally require to accept a case. You should always seek a consultation with a licensed attorney who practices in the specific area of law who can fully review the facts of your case.

Asker

Posted

Stop being such a party pooper.... And at least the other lawyers gave some kind of explanation instead of just "No!"

Robert Jason De Groot

Robert Jason De Groot

Posted

Oh, this is a party to you? My answer is a resounding NO as well, with no explaination other than go to school, read all of the constitutional material that Mr. Dillinger and I were required to read, and form your own opinion.

Posted

To your specific question whether you can appeal a conviction on those grounds I suppose the answer has to be yes. Whether you can appeal successfully is another matter. There may be some preliminary issues, however, which you will have to address. The first is whether you were convicted after a trial or after a plea of guilty. Appealing from a guilty plea is extraordinarily difficult in every state, and in some states it may be virtually impossible. Did your plea, for example, include a waiver of appeal rights? In many jurisdictions it often does. Did you move within the time specified by law for permission to withdraw your plea? In some states, such a motion is a precondition to taking an appeal from a conviction on a guilty plea. Even if you were convicted after a trial, you may have waived your issue if you did not file a timely demand for trial by combat, and perhaps also if you went to trial by the court after your motion for combat was denied.

Lots of problems for you here, in other words, before you even reach the underlying constitutional issue on which, as my colleagues have pointed out, your case does not appeal overwhelming strong.

And please, if you go ahead with this litigation, do not make the gross blunder of analogizing a duel, which is an entirely private matter, with a trial by combat which, in the days when it was permitted, was a formal judicial proceeding sanctioned and conducted under authority of law.

And finally, you must decide whether you want your appeal to be conducted at law or by combat.

En garde!

Joshua Sachs

Joshua Sachs

Posted

Typo: should read "does not appear overwhelmingly strong."

Asker

Posted

No worries on the typo.... Thank you Mr. Sachs for the thoughtful response. So it may be a stretch for appealing a conviction with this, as you point out. But for future reference, even for a traffic ticket, the Court would have to give a legal rationale instead of saying "no that's crazy," right? So far no law or Court ruling at any level of government has specifically banned trial by combat in the US-- no one has asked for it that I'm aware of in the US or the 13 colonies, so no one had a reason to take the time to ban it-- same with the gay marriage issue and how the equal protection clause is being used by advocates of gay marriage, using it in such a unique way. Go look at the Wikipedia page for "trial by combat" and read the "United States" section. And the duel with Burr and Hamilton was on the floor of the Congress, if I recall correctly. So yeah, it wasn't a Court sanctioned event, but it was still in a government setting. But anyways, even if (and that's a bigger "if" than you might think at first glance) trial by combat is rejected by a Court, is there anyway a trial by combat "light" could be achieved? Such as a one-on-one basketball game instead of one-on-one fight to the death? And what about traffic court? How do I ask for it at the arraignment, where I can write down all my thoughts on this issue for the judge to consider instead of the judge shooing me out and telling me to shut up? How can I get a Federal Court to rule on a demand for trial by combat, especially for an issue in state court (even if the ruling is there shall be no trial by combat)? I think the Federal Court ruling would be better since a state court ruling only applies to the state. Besides, the US has decided it can drone strike or kill by other methods anyone anywhere if they are deemed a "terrorist," even a citizen in the US, regardless of any Due Process or other Rights. So settling disputes by a fight to the death is already occurring.

Asker

Posted

Also, trial by combat was used to settle private civil disputes brought into a Court, not just the Government vs. the Defendant criminal cases.

Joshua Sachs

Joshua Sachs

Posted

A court does not have to explain its ruling, sorry. Can you have a trial by combat without the participation of the court? "Combat light," as you put it. Winner of a race, a basketball game, or a boxing match, wins? Yes, certainly you can do that, provided the dispute is exclusively between private parties and both parties agree, and there is no harm to anybody else. That is really no different from turning a dispute over to arbitration or for decision by a religious court. For example, it is customary in observant Jewish communities to have civil disputes submitted to a rabbinic court. I believe that Islamic religious courts are also available to decide civil disputes. If both parties agree to the court's jurisdiction, there is no problem. I cannot see why a race or a consensual boxing match would be any different. But it would not work in a criminal case to which the State is a party.

Joshua Sachs

Joshua Sachs

Posted

P.S. If you are serious about litigation and want to act as your own attorney you are going to have to learn to do research at a much higher level than Wikipedia.

Posted

Trial by combat is not recognized by the US government or by any state. It is an ancient practice that is counter to reason and common sense, giving victory freely to those with the biggest muscles, or, if substitutes are allowed, to him who can hire the strongest and best armed helpers. In other words, you are asking for permission to do wrong to someone, then when they try to get help, you insist on the right to beat them up instead of having the dispute settled in a rational way. In other words, you want to doubly victimize the victim. You can try whatever you want, but in my opinion no judge in America would allow a dispute to be settled by force instead of by legitimate court procedures.

You and I do not have an attorney-client relationship formed by our communications on this website. Comments made by me on this website are general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.

Asker

Posted

But the US government has decided it can kill anyone anywhere, even a US citizen inside the US, if it deems them a terrorist. This means no trial at all. By comparison, trial by combat is at least giving the accused a trial and thus more civilized, no?

Asker

Posted

They even drone strike 100% innocent people that aren't even suspected of any wrong doing. So pushing for trial by combat for at least these folks gives them a "fighting chance", no?

James S. Lawrence

James S. Lawrence

Posted

That is ridiculous. Mr. Tsarnaev remains alive even after the Boston bombing. The men who we traded for Bowe Bergdahl remained alive for years. While it is true that nations often decide disputes by war, it is not a rational way of determining who is right, so rational people do not recommend it. If you want to push for it anyway I will not stop you, but you should not expect the government to approve it.

Asker

Posted

Yeah, and those in Guantanamo are vacationing in the tropics. Even people the government doesn't suspect of anything are being held there and not released. They would prefer trial by combat. They even have hunger strikes to protest and get force fed. http://thecolbertreport.cc.com/videos/sib2qy/barack-obama-s-righteous-drone-strikes http://www.democracynow.org/2014/2/21/turning_a_wedding_into_a_funeral

James S. Lawrence

James S. Lawrence

Posted

Even if prisoners at Guantanamo are being mistreated, not one of their cases is resolved by seeing who would win a physical fight. The prisoners are not put into a ring with an opponent, where they get to go free if they win and suffer longer detention if they lose. The fact that some prisoners might prefer trial by combat would not require the government to adopt trial by combat. Instead, the government is trying to extract information from them that might help innocent people avoid combat or injury. I presume none of that has anything to do with you. Try anything you want, in any court, and I will not stop you. If you choose to use violence against anyone as a means of following through on your proposed trial by combat, you should expect to be arrested and charged for that. In any event, if I happen to be a better fighter than you that does not make me right. If you happen to be a better fighter than me that does not make you right. No rational court system determines facts on the basis of who has bigger muscles or who can duck an opposing punch more quickly. You can try anyway.

Posted

No. You have no grounds to make such a demand.

Bit of 6th grade civics - Florida was never an English colony.

Dueling outlawed in most US states before the civil war.

Dueling is not the same thing as trial by combat.

You've managed to mix inaccurate historical fact and wrong definitions of legal concepts with Game of Thrones like sci-fi scenarios--the result.....complete misunderstanding of fact and legal options.

A+ for creative thinking though.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

Ahh, I see the other attorney's responses and various comments now, my bad for not reading them first as I added nothing to the mix.

Christopher Robert Dillingham II

Christopher Robert Dillingham II

Posted

I actually thought your simile was great. "Game of Thrones," indeed. That is high humor at its finest.

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