Time: Thu Mar 20 16:40:36 1997
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Date: Thu, 20 Mar 1997 16:31:27 -0800
To: minutemn@pcl.net (W. M. Kemp)
From: Paul Andrew Mitchell [address in tool bar]
Subject: Memorandum of Law in support of Habeas Corpus (2 of 3)
Cc: habeascorpus@hotmail.com
[This text is formatted in Courier 11, non-proportional spacing.]
from whom the Courts' authority is derived, and a substitution in
lieu thereof is being used -- that of the "will of attorneys."
Bills of rights are, in their origin, reservations of rights
not surrendered to the prince. Hamilton, Federalist Papers,
No. 84.
The right to have a "friend" plead one's case, or to assist one
in Court, is a Common Law right secured by the Sixth Amendment.
History is clear that the first ten amendments to the
Constitution were adopted to secure certain common law
rights of the people against invasion by the Federal
Government. Bell v. Hood, 71 F. Supp., 813, 816 (1947)
U.S.D.C., So. Dist. Calif.
Our Founding Fathers spoke and wrote in the vernacular of the
Common Law, and "Counsel" was the word they chose. The facts are
conclusive on this point, and the record supports this
contention. Interpretation of the word "Counsel" to mean
"attorney only" is a departure from the safeguards of the Bill of
Rights.
The Bill of Rights was provided as a barrier, to protect the
individual against arbitrary exactions of ... legislatures,
(and) courts ... it is the primary distinction between
democratic and totalitarian way. Re Stoller, Supreme Court
of Florida, en banc, 36 So.2d 443, 445 (1948).
A more recent confirmation of fundamental Rights of the Accused
says:
Where rights secured by the Constitution are involved, there
can be no rule-making or legislation which would abrogate
them. Miranda v. Arizona, 384 U.S. 436, 491 (1968)
Even though the Miranda decision referred to the Fifth
Amendment right in toto, the above stated principle is of general
application, wherein the word "rights" is not qualified.
/
/
Memorandum of Law in Support of Habeas Corpus: Page 16 of 32
II
DEFENDANT'S RIGHT
TO FREEDOM OF ASSOCIATION
In Tarlowski supra, the Court said, in suppressing evidence
at the request of Tarlowski's motion:
When a federal official's interference with the right of
free association takes the form of limiting the ability of a
criminal suspect to consult with and be accompanied by a
person upon whom he relies for advice and protection, he
gravely transgresses. For these reasons, the Motion to
suppress must be granted.
It was in this case that Tarlowski was denied the Counsel of an
accountant, not of a lawyer.
Defendant has a right under the First Amendment freely to
associate with whom he pleases in his defense and in its
preparation and presentation, so long as such is respectful, with
decorum, and without contempt for orderly rules of procedure
which do not deprive one of Rights guaranteed by the U.S.
Constitution. To deny this Right is also to deny his Fifth
Amendment Right to Due Process of Law, which is actually a
guarantee of fundamental fairness.
III
DEFENDANT'S RIGHT TO PETITION
FOR REDRESS OF GRIEVANCES
The First Amendment states, in pertinent part:
Congress shall make no law ... abridging ... the right of
the people ... to petition the Government for a redress of
grievances.
Defendant asks, "How can I maintain my maximum Right to petition
for redress of grievances, if that person whom I choose to speak
for me is not permitted to do so?"
Memorandum of Law in Support of Habeas Corpus: Page 17 of 32
If Congress passes a statute requiring a federal court to
abide a statute of the State in which it sits, and said statute
of a state purports to make it a crime for a Defendant to be
represented by a non-attorney, then Congress has effectively done
not only what the U.S. Constitution does not authorize it to do,
but it has done what is also expressly forbidden.
If such is the case, then Congress has made a "law" which
frustrates the Right of The People, and the Defendant, "to
petition the Government for a redress of grievances."
Of what use is the Right to Petition for Redress of
Grievances if the Defendant is personally handicapped by
government? This handicap arises because the Defendant needs
assistance in his petitioning, and yet he is limited by a bar
association, or a state, or a court which says that a competent
"friend" cannot be permitted to speak for the Petitioner because
said "friend" has not been brainwashed in certain "approved" law
schools. It is in such law schools that the deprivation of the
fundamental Rights, although set forth in plain and unambiguous
language in the U.S. Constitution itself, is not "settled
doctrine."
The "licensed attorneys" and "attorney-judges" say that "The
Constitution is what the Supreme Court says it is." What if the
Congress passes a law saying that any bureaucrat can rape any
layman's wife and the Supreme Court says, "Yes, that's perfectly
in harmony with the Constitution?"
Then, are we The People to stand for it? Who gave them said
authority? Now, what should The People do who have such a
Congress and such a Supreme Court? Are the lower court judges
Memorandum of Law in Support of Habeas Corpus: Page 18 of 32
brave enough to challenge it, or are they "bound" to follow the
higher Court judges?
And where is the member of the bar, the licensed attorney,
who now steps forward and announces that the Supreme Court is
mistaken? Where does his license go to? Now, who is going to
permit him to appear in Court if he doesn't buckle down and stop
rocking the establishment?
Obviously, an extreme example has been used; but it is
significant. Laymen would not have to stand for such nonsense.
Licensed attorneys ... who knows?
That laymen should be subjected to a "drifting" and
"unstable" Constitution -- which happens to be what some justices
"think it is" at the moment -- can be very frustrating, and that
a jury cannot hear a "Counsel" who is not beholden to such a
damnable floating doctrine, are indeed a denial of "the Right to
Petition (effectively) for Redress of Grievances." To preserve
justice, to preserve the semblance of a fair trial and an
impartial jury, let the Defendant petition for Redress of
Grievances to the jury through "Counsel of his choice," who is
not beholden to a corrupt and degenerate system which has
perverted the very Law by which it pretends to rule and which it
pretends to protect and uphold.
Defendant believes that true religion guarantees freedom of
choice, or freedom to choose, to elect, and to select, taking
responsibility for the consequences of said choices.
Defendant further believes that he has the right to help
others and, in turn, to be helped by those willing voluntarily to
answer his call for assistance. In this case, he particularly
Memorandum of Law in Support of Habeas Corpus: Page 19 of 32
means in the Courtroom where a hostile government is violating
its own laws and trampling upon the Rights of the Sovereign
People, which its officers are sworn to protect.
When all the mighty force of an all powerful government is
arrayed against a lone individual who has the courage to point
out the government's inequities, said individual should be
entitled, most of all, to the protection of his religious
convictions and rights.
Under the First Amendment, the right of conscience and the
right to believe, as long as the same does not trample upon the
rights of others, is the number one right protected by
government. In pertinent part, the First Amendment states:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; ....
Defendant's religious conviction, again, calls for freedom from
oppression and freedom from soul-stifling special interest
legislation slapped on a freedom-loving individual on behalf of
self-serving perpetrators of special advantages to the legal
profession, at the expense of the long-suffering victims of the
same. Let the legal profession compete like men with the Counsel
Defendant chooses for his defense, and for the proper exercise of
his religious Rights, chief among which is the freedom of any
choice which does not trample upon the Rights of others.
IV
DEFENDANT'S RIGHT TO EQUAL PROTECTION
Defendant's right to equal protection of the laws is
guaranteed through the due process clause of the Fifth Amendment:
Memorandum of Law in Support of Habeas Corpus: Page 20 of 32
The due process clause of the Fifth Amendment guarantees to
each citizen the equal protection of the laws and prohibits
a denial thereof by any Federal official. Bolling v.
Sharpe, 327 U.S. 497
Defendant asks the Court to take Judicial Notice of an article
from Newsweek, September 2, 1974, which tells how a layman, James
Yager, handled the legal problems of 3,500 clients (see paragraph
1). The same paragraph also speaks of "His most recent court
appearance," which took place in Atlanta. It describes how
"Yager paced the courtroom floor," as he addressed the jury. Mr.
Yager is engaging in the practice of law, which is his Right as a
Layman, or laymen, to assist him in his defense, if they so
desire. To deny this motion is to give prisoners more Rights
than to a Free and Natural Person. Such inequity before the law
is intolerable.
Said article mentions various others who have adopted law as
an avocation and goes on to mention a Mr. Green, another former
inmate now on parole, and says that: "Green is a familiar face
in the Boston courtrooms, where he maintains his legal activities
by submitting amicus briefs for other felons." It would be
interesting to know if Mr. Green and Yeager, like Mr. Jefferson
and James X, are also black men, and if therefore, fundamental
Rights are only available to black men.
In both United Mine Workers v. Illinois Bar Association, 389
U.S. 217, and NAACP v. Button, 371 U.S. 415, and also in
Brotherhood of Railhood Trainmen v. Virginia State Bar, 377 U.S.
1 (1964), it was held that a State may not pass statutes
prohibiting the unauthorized practice of law or to interfere with
the Right to freedom of speech, secured by the First Amendment.
/
Memorandum of Law in Support of Habeas Corpus: Page 21 of 32
Defendant is entitled to equal protection of the laws and
that includes his right to speak through whom he pleases, when he
pleases. The only reasonable condition is that the decorum of
the Court and the rules not in conflict with individual Rights be
maintained; otherwise there can be no valid denial of this
inalienable and legal Right. Defendant is agreeable to this, and
has every intention of obeying the proper rules and maintaining
the decorum of the Court. To do otherwise is unthinkable.
Defendant herein also believes that it is vital to his
defense to seek whatever assistance he can trust, and that if he
decides to be assisted by either licensed or unlicensed Counsel,
he has every Right to do so. If the Defendant believes that a
combination of both may be to his advantage, to deny him this
Right would constitute an unreasonable and arbitrary interference
with his defense, by denying him his fundamental Rights freely to
associate with whom he chooses; to freedom of speech; to
freedom to Petition for Redress of Grievances; and his religious
Right of conscience and freedom of choice, without which religion
is worth but little.
Defendant also asks the Court to take Judicial Notice that
other Defendants in criminal cases are allowed to plan their
defenses without interference by the Courts, and Defendant herein
claims that same Right.
Surely, we cannot have special laws for attorneys and
special grants of privilege to them as a class when these very
same privileges are denied all other citizens. The
Constitutional prohibitions against Titles of Nobility in Article
I, Section 9, clause 7, and in the original Thirteenth Amendment,
Memorandum of Law in Support of Habeas Corpus: Page 22 of 32
are violated when "attorney" becomes a Title of special
privileges, i.e. "Nobility." We must all have equal access to
the Courts. Presently, only those attorneys have access to the
Courts whom the Courts approve and, as a result, all "approved"
attorneys are considered Officers of the Court.
Where does the defendant go when he does not wish to be
defended by an Officer of the Court? To use the power of the
Court to force the defense to retain an Officer of the Court at
the defense table offends the sensibilities of the Defendant to
the very core. Defendant may wish voluntarily to select an
attorney among his Counsels, but this Defendant believes that he
should not be forced to do so. Defendant is simply seeking
freedom of choice in the matter of whether he has no Counsel and
represents himself, or uses licensed legal Counsel (attorney),
mixed Counsel (attorneys and laymen) or lay Counsel only.
The "stealthy encroachment" upon Defendant's Right to a
Counsel who is not licensed by the Bar is the result of a
monopoly of the legal establishment, both in and out of
government, State and Federal, to "protect" their "price fixing";
to maintain artificially high legal fees; to educate the chosen
few in law schools maintained largely at public expense; to
protect attorneys from competition from those who know that
attorneys have obstructed the U.S. Constitution and left the
People at the mercy of a swarm of bureaucrats with endless
attorney-promoted regulations and laws which make "crimes" out of
the exercise of natural and Constitutionally protected Rights,
wherein the attorney-controlled government can prosecute the
Sovereign Citizen and force him into the waiting, outstretched
Memorandum of Law in Support of Habeas Corpus: Page 23 of 32
arms of his attorney "brotherhood," who will "advise" and
"defend" him for a considerable fee.
Little wonder that People are fed up with the profession
when it is full of licensed "Haldemans, Erlichmans, Mitchells,
and Deans." Little wonder many People almost vomit when
contemplating what attorneys have done to this once mighty,
powerful, and independent Republic.
Legal fees come too high for many average Citizens. Yet,
the same average Citizen cannot turn to laymen who may be well
versed in the necessary legal area, and this restricts the Courts
to attorneys and those who can afford them. Laymen who cannot
afford attorneys must suffer along as best they can. It is as
unjust a system of justice as one could conjure up. Of course,
some persons may qualify for a Public Defender. That is like
being alone in a pit of cobras, and someone comes along and wants
to throw in another cobra. Under those circumstances, what is
needed is a mongoose (read "Counsel of Choice"), not another
cobra. Perhaps the STAR CHAMBERS weren't so bad after all.
V
DEFENDANT'S RIGHT TO FREEDOM OF SPEECH
Defendant has not only the Right to speak for himself, but
also to speak through whom he pleases. This is inherent in the
First Amendment Right to freedom of speech. It is also self-
evident as a part of the Natural Rights Doctrine. Those Rights
which are called inherent and inalienable are outlined in the
Declaration of Independence, which antedates all government.
They are natural or God-given, rather than government-given,
rights. Defendant points out that he does not claim any
Memorandum of Law in Support of Habeas Corpus: Page 24 of 32
"attorney-given" rights, but demands that his God-given, Natural
Rights not be infringed upon.
This fundamental Right of freedom of speech has been
referred to previously, but Defendant wishes to set it out
separately to emphasize it to the Court, and herein refers again
to United Mine Workers v. Illinois Bar Association supra, NAACP
v. Button supra, and the Brotherhood of Railroad Trainmen v.
Virginia State Bar supra, in support of said Right.
It is indicative that the words in the First Amendment
embrace freedom "of" speech, and not just freedom "to" speak, and
while Defendant does not wish to prolong this Brief by a detailed
discussion of the difference between the two terms, he simply
wishes to bring to the Court's attention that there is a
difference, and that its application is obvious.
VI
DENIAL OF FREEDOM OF COUNSEL
RESULTS IN A CONFLICT OF INTEREST
Defendant's request for the Court to recognize his Right to
non-attorney Counsel in lieu of, or in addition to, attorney
Counsel, would mean that the Court would have to rule during
trial on a motion regarding Defendant's Right to non-attorney
assistance, including that of assistant spokesman.
If presiding Judge of this Honorable Court has, in the past,
ever been a member of any Bar Association or is, at present, a
member of a Bar Association, or has close friends or associates
connected with a Bar Association, then Defendant finds it
difficult to see how the Court could possibly render an
unprejudiced and impartial ruling on Defendant's motion regarding
his Right to non-attorney Counsel.
Memorandum of Law in Support of Habeas Corpus: Page 25 of 32
It appears to Defendant that the Court would find itself at
variance with his own standards, mainly the Cannons of Judicial
Ethics, No. 29, which states:
A judge should abstain from performing or taking part in any
judicial act in which his personal interests are involved.
If he has a personal litigation in the court of which he is
judge, he need not resign his judgeship on that account, but
he should, of course, refrain from any judicial act in such
controversy.
It is apparent to the Defendant that the denial of
Defendant's motion herein would call for the thinking, on the
part of most reasonable persons, that the denial was based, at
least in part, on a conflict of interest and upon a "hardship of
the case," meaning upon the unfortunate Bar Associations.
Granting the motion, however, could not be interpreted as
being a conflict of interest, but rather, granting the motion
would occur despite personal interest and in favor of fairness,
of due process, and the justice to which the Sovereign Citizen of
this Republic is entitled under the Sixth Amendment.
VII
FEDERAL COURT'S ENFORCEMENT
OF PRACTICE-OF-LAW STATE STATUTE
ABRIDGES FIRST, NINTH, AND TENTH AMENDMENTS
The Tenth Amendment of the U.S. Constitution states:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
The power to abrogate the Rights mentioned herein has not been
delegated to the United States nor to any State through the U.S.
Constitution. Such a power is an undelegated colorable "office."
Nothing in the U.S. Constitution of this Union state
authorizes a delegation of power to the state to thwart and
frustrate the foregoing Rights, i.e. freedom of speech, of
Memorandum of Law in Support of Habeas Corpus: Page 26 of 32
religion, of assembly, of petitioning for redress of grievances,
of due process, of the Right to contract, and of equal treatment
under the law.
Therefore, assuming the foregoing is true, then the "power"
remains with the People, who are the Sovereigns in this country
as heretofore pointed out. Therefore, the Defendant retains the
power for his choice of a spokesman in Court, "any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding." See Article VI, Clause 2. Regardless of this
state's statutes or any arbitrary rule making, it cannot
invalidate the Defendant's fundamental Rights protected by the
U.S. Constitution. Said pretended right to "regulate" the
"practice of law" must fall, or recede, when placed alongside the
Defendant's fundamental Right to a fair trial by an impartial
jury, with due process, freedom of speech, and freedom of
contract, as heretofore demonstrated.
It is impossible to delegate to another that which the
delegator does not himself possess. Defendant does not have the
right to compel the inadequate representation of another and,
therefore, this Defendant is powerless to delegate such a
tyrannical power to a legislature, whether or not controlled by
attorneys or any Bar association.
To summarize the foregoing, the Tenth Amendment prohibits
this State and its Courts from restricting Defendant's
fundamental Right to a non-attorney spokesman in court. Such
power is not given to the State by either the U.S. or by the
State Constitutions. Therefore, in civil cases, the Legislature
has usurped, at the prodding of attorneys, the so-called Right to
Memorandum of Law in Support of Habeas Corpus: Page 27 of 32
institute a statute prohibiting a Defendant, in a prosecution
against him by his government, from relying upon a preferred
spokesman of trust and confidence. In criminal cases, there is
no valid reason, statute, or Court ruling that can alter the
fundamental Right to Counsel, and the Courts, in denying said
spokesman, are arbitrarily usurping Defendant's Right.
The Ninth Amendment reserves all non-enumerated Rights.
They are not to be denied or disparaged, though not enumerated.
The mention and enumeration of the Right to Counsel under the
Supreme authority of the Sixth Amendment cannot be construed to
deny or disparage the Right to that Counsel being a non-attorney,
or a non-member of any Bar Association licensed to only plea
bargain and lose.
It would appear that any decent person would have no
difficulty agreeing with the above, and that any other ruling
would indeed be "frivolous" and without constitutional authority.
Again, imposing restrictions on Defendant's Counsel violates
and circumvents Defendant's Fifth Amendment Rights. In addition,
it imposes cruel and unusual punishment upon the Defendant by
forcing him to seek legal assistance, when and if he needs it,
from those whom he either does not trust or cannot afford.
VIII
DENIAL OF NON-ATTORNEY COUNSEL
VIOLATES CIVIL RIGHTS
Denial of Defendant's desire for a non-attorney of his
choice is also a deprivation of his Civil Rights under color of
law, in violation of Defendant's fundamental Rights as protected
by 42 U.S.C. 1983, 1985, and 1986. See Owens v. The City of
Independence.
Memorandum of Law in Support of Habeas Corpus: Page 28 of 32
CONCLUSION
Any denial of Counsel is an attempt to accomplish that which
is specifically prohibited by the Sixth Amendment. The Right
recognized therein says nothing about only "court-approved
counsel," and that fundamental Right is in no way qualified or
limited.
The U.S. Supreme Court held in Miller v. Milwaukee, 272 U.S.
713, 715, that if a statute is part of an unlawful scheme to
reach a prohibited result, then "... the statute must fail ...."
This was again upheld in McCallen v. Massachusetts, 279 U.S. 620,
630. Legislators, whether Federal or State, may not restrict the
Courts only to attorneys in order to deny effective assistance of
Counsel to any Defendant who evinces a desire to be represented
or assisted by a "friend," in preference to a licensed
"attorney." What cannot be done by the front door cannot be
lawfully done by way of the back door.
Legislators who pass laws do not have to be attorneys, nor
do those who execute the law, i.e. Sheriffs, Governors,
Presidents, etc. Even the Justices of the U.S. Supreme Court
need not be licensed attorneys. To exclude the People from
defending their "friends" in the Courts turns said Courts into a
playground for the legal establishment, and is a blatant
violation of the Defendant's fundamental Right to Counsel of
choice, due process of law, and equal protection under the law.
Justice Brandeis said:
Discrimination is the act of treating differently two
persons or things under like circumstances. National Life
Insurance Co. v. United States, 277 U.S. 508, 630.
/
/
Memorandum of Law in Support of Habeas Corpus: Page 29 of 32
As far back as 1886, the U.S. Supreme Court was concerned
with the unjust and illegal discriminations which were running
rampant. The Court frowned upon law administered with an
"unequal hand":
... [S]o as practically to make unjust and illegal
discrimination between persons in similar circumstances
material to their rights, the denial of equal justice is
still within the prohibition of the Constitution. Yick Wo
v. Hopkins supra.
Therefore, the Courts cannot be the exclusive territory of a
legal "elite corps," but must be open to all the Sovereign People
alike -- on an equal basis, providing due process of Law and
equal protection under that Law.
The Ninth and Tenth Amendments also prohibit the denial of
Counsel of choice. Nowhere has Defendant or his predecessors
delegated such restrictive powers to the United States or to any
of the Union states, and if the Court will closely examine the
Ninth and Tenth Amendments, it will find that the Right to
Counsel of choice, such as Defendant herein claims, is also
secured in the penumbra of these Amendments, particularly the
Ninth Amendment, which is protected in the states. Roe v. Wade,
41 L.W. 4213 (1973); Shapiro v. U.S., 641, 394 US 618 (1966);
Griswold v. Connecticut, 381 U.S. 479 (1964).
Speaking of controlling constitutional law, as opposed to
mere statute law, Chief Justice Marshall said:
Those then, who controvert this principle, that the
Constitution is to be considered in court as a paramount
law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the
law.
And the Court concluded that:
This doctrine would subvert the very foundation of all
written constitutions. Marbury v. Madison, 5 U.S. 137, 176
Memorandum of Law in Support of Habeas Corpus: Page 30 of 32
The United States Supreme Court also pointed out in this
decision that, in declaring what should be the supreme Law of the
Land, the U.S. Constitution itself was first mentioned and "...
not the laws of the United States generally ...."
The attorneys who sit in Our State legislatures and in Our
Congress have no right to pass laws which infringe upon, or
abolish, Our fundamental Rights under the U.S. Constitution for
the United States of America, as lawfully amended, and such
unconstitutional laws which purport to do so must be declared
null and void and not binding upon the Courts. See Miranda v.
Arizona supra, at 491.
VERIFICATION
The Undersigned hereby certifies, under penalty of perjury,
under the laws of the United States of America, without the
"United States," that the above statements of fact are true and
correct, to the best of My current information, knowledge, and
belief, so help Me God, pursuant to 28 U.S.C. 1746(1).
Dated: March 21, 1997
Respectfully submitted,
__________________________________________
William Michael, Kemp, Sui Juris
[end of part 2 of 3]
Citizen of Alabama state
(expressly not a citizen of the United States)
all Rights reserved without prejudice
Memorandum of Law in Support of Habeas Corpus: Page 31 of 32
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU
web site: http://www.supremelaw.com : library & law school registration
ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
Tucson, Arizona state : state zone, not the federal zone
Postal Zone 85719/tdc : USPS delays first class w/o this
========================================================================
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