Time: Thu Mar 27 13:36:54 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id SAA25278; Thu, 27 Mar 1997 18:30:53 -0700 (MST) by usr07.primenet.com (8.8.5/8.8.5) with SMTP id SAA22464; Thu, 27 Mar 1997 18:30:18 -0700 (MST) Date: Thu, 27 Mar 1997 13:24:12 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: Counsel MEMORANDUM OF POINTS & AUTHORITIES (1 of 3) [This text is formatted in Courier 11, non-proportional spacing.] William Michael Kemp, Sui Juris c/o 2108 Lookout Street Gadsden, Alabama state [zip code exempt] In Propria Persona Under Protest, Necessity, and by Special Visitation all rights reserved CIRCUIT COURT OF ETOWAH COUNTY ALABAMA STATE STATE OF ALABAMA, ) Case No. #CC-95-1083 ) Plaintiff, ) MEMORANDUM OF LAW ) IN SUPPORT OF PETITION FOR v. ) WRIT OF HABEAS CORPUS, ) WITH POINTS AND AUTHORITIES WILLIAM MICHAEL KEMP [sic], ) ) Defendant. ) ________________________________) COMES NOW William Michael, Kemp, Sui Juris, Citizen of Alabama state, expressly not a citizen of the United States ("federal citizen") and Defendant in the above entitled action (hereinafter "Defendant"), to present this, His MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS, WITH POINTS AND AUTHORITIES, filed concurrently in the instant case with said Petition. The Sixth Amendment to the U.S. Constitution states: In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of Counsel for his defence. Defendant asks this honorable Court to take Judicial Notice of the fact that many of the men who contributed to the writing or ratifying of the Constitution were attorneys, such as John Jay, first Chief Justice of the U.S. Supreme Court, and John Marshall, Memorandum of Law in Support of Habeas Corpus: Page 1 of 32 a later Chief Justice. John Adams, James Wilson, John Blaire, and Oliver Ellsworth were among the many fine attorneys who assisted in approving the language used in the Constitution for the United States of America (hereinafter "U.S. Constitution"). Are we to believe that the word "COUNSEL" was selected by these "attorneys" with no thought whatsoever to its Common Law meaning at that time? In discussing a defendant's Right to Counsel, the U.S. Supreme Court has held: ... [H]is right to be heard through his own counsel is UNQUALIFIED. Chandler v. Fretag, 348 U.S. 3 [emphasis added] In consulting Noah Webster's 1828 dictionary, the word "unqualified" is defined as: Not modified, limited, or restricted by conditions or exceptions; .... (Noah Webster's First Edition of an American Dictionary of the English Language, 1828, republished in facsimile edition by Foundation for American Christian Education, San Francisco, California, second edition, 1980) It is undeniable that the explicit use of the word "Counsel" in the Sixth Amendment was intended to mean someone other than an attorney, as well as an attorney. This view is upheld by a U.S. District Court when it recognized an accountant as Counsel, and reprimanded an IRS employee: Yet while he was informing the prospective defendant of his Right to Counsel, he was simultaneously requesting that the Defendant's Counsel leave the interrogation. In effect, the investigator informed Tarlowski that he might have his attorney present, but not his accountant. Ruling in favor of Tarlowski's motion to suppress, the Court said: Memorandum of Law in Support of Habeas Corpus: Page 2 of 32 For a government official to mouth in a ritualistic way part of the warning about the right to counsel, while excluding the person relied upon as counsel is, in effect, to reverse the meaning of the words used. U.S. v. Tarlowski, 305 F.Supp. 112 (1969) Defendant also asks the Court to take Judicial Notice of the use of the word "Counsel" in the 17th century: ... and in all courts persons of all persuaisions [sic] may freely appear in their own way, and according to their own manner and there plead their own causes themselves, or if unable, by their friends .... Fundamental Constitution for the Province of East Jersey (1683) [emphasis added]. To have a "friend" act as Counsel was a Common Law Right and was recognized as such in the Bill of Rights when the term "Counsel" was used instead of the term "attorney." The language of the Constitution cannot be interpreted safely, except by reference to common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the convention who submitted it to the ratification of conventions of the thirteen states, were born and brought up in the atmosphere of the common law and thought and spoke in its vocabulary ... when they came to put their conclusions into the form of fundamental law in a compact , they expressed them in terms of common law, confident that they could by shortly and easily understood. Ex parte Grossman, 267 U.S. 87, 108 (1925) [emphasis added] No limit or qualification was ever intended to be put upon the Right to "assistance of Counsel" in the Sixth Amendment and Defendant submits the word "Counsel" was used in recognition of the Common Law Right to have one's "friends" speak for a Defendant, if he so chose. Reference to the Common Law is mandatory in a proper interpretation of the U.S. Constitution, but most particularly in the Bill of Rights. There is a preponderance of U.S. Supreme Court cases which uphold the position of Defendant on interpretation of the U.S. Constitution. Memorandum of Law in Support of Habeas Corpus: Page 3 of 32 ... as men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey: the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said. Gibbons v. Ogden, 22 U.S. 1 (1824). And, ... In the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it was framed and adopted. 12 Wheat 354; 6 Wheat 416; 4 Peters 431-2; to ascertain the old law, the mischief and the remedy. State of Rhode Island v. The State of Massachusetts, 37 U.S. 657 (1938) And also, in speaking further of Constitutional provisions, we find: We agree, it is not to be frittered away by doubtful construction, but like every clause in every constitution it must have reasonable interpretation, and be held to express the intention of the framers. Woodson v. Murdock, 89 U.S. 351, 369 (1874) And further, The necessities which gave birth to the Constitution, the controversies which precede its formation and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purposes of tracing to its source, any particular provision of the Constitution, in order thereby, to be enabled to correctly interpret its meaning. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 558 History shows conclusively that it was a Common Law Right to be represented in court by a "friend" rather than an attorney, if one chose. Defendant claims that right herein, which the Sixth Amendment did indeed secure, and is not subject to "revision" by the American Bar Association. Undoubtedly what went before the adoption of the Constitution may be resorted to for the purpose of throwing light on its provisions. Marshall v. Gordon, 243 U.S. 521, 533 (1971) Memorandum of Law in Support of Habeas Corpus: Page 4 of 32 Each word has a particular meaning and was deliberately chosen. The word "Counsel" was not idly set down as the law of this land, but, on the contrary, was selected with great skill and meaning. To disregard such a deliberate choice of words and their natural meaning, would be a departure from the first principle of Constitutional interpretation. "In expounding the Constitution of the United States," said Chief Justice Taney in Holmes v. Jennison, 14 540, 570, 571, "every word must have its due force and appropriate meaning; for it is evident from the whole instrument, that, no word was unnecessarily used, or needlessly added." The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation and its force and effect to have been fully understood. Wright v. U.S., 302 U.S. 583 (1938) [emphasis added] Little did the Framers of Our Constitution, who labored so long and hard to fashion it, realize that the day might come when it would be ridiculed by law professors, snickered at by law clerks, and consigned to the wastebasket by attorneys, the bar, and the Judiciary. To narrowly interpret the word "Counsel" to mean only "licensed attorneys" is an infringement of Defendant's Sixth Amendment right to Counsel, which even the U.S. Supreme Court has held is "unqualified." See Chandler supra. The words of the Amendment are simple, clear, and not ambiguous, and were obviously written by Our Forefathers to be understood by The People, as the following citation undeniably indicates: The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, Memorandum of Law in Support of Habeas Corpus: Page 5 of 32 and no excuse for interpolation or addition. Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 1; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet. 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655 (justice) Story on the Constitution, 5th ed., sec. 451; Cooley's Constitutional Limitations, 2nd ed., P. 61, 70. And further, It cannot be presumed that any clause in the Constitution is intended to be without effect .... Marbury v. Madison, 5 U.S. 137, 174 (1803) In passing, it might be noted that Chief Justice John Marshall, who principally was responsible for the holding in the above cited Marbury case, and who seems to be looked upon by most attorneys and judges as the greatest of Our Supreme Court justices, is reported to have had two weeks law school preparation, at which time half his study was philosophy. Also: The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now. South Carolina v. United States, 199 U.S. 437, 448 (1905). Defendant is deeply perturbed at the erosion of his fundamental Right to Counsel by the very legal profession itself. The restriction of the Courts to professional attorneys only, is the result of attorneys who sat in Our legislatures and voted upon laws which involved, for them, a conflict of interest and which were, and are, upheld by their brother attorneys, who sit on the benches of Our Courts, ruling in violation of the Sovereign will of The People, which it is their sworn duty to obey. Memorandum of Law in Support of Habeas Corpus: Page 6 of 32 Any State law which prohibits laymen from speaking on behalf of another, when sought for that purpose, is a violation of the Sixth Amendment. Any implementation of such State laws also violates Defendant's rights to freedom of speech, wherein he may speak through whom he chooses; to freedom of association wherein he may associate with whom he pleases; to due process of law, wherein he is denied Counsel of his choice and therefore as a consequence, he is denied a fair trial, and he is also denied an impartial jury by being unable to speak, as he knows he should, through Counsel of trust to the jury. To be denied a layman to assist him with advice, and to act as a spokesman at Defendant's request, is to subject Defendant to unequal treatment under the law. As a Citizen of Alabama state, Defendant has less Rights and worse treatment than inmates in state and federal prisons, who are permitted "jailhouse" lawyers -- laymen who practice law on behalf of their fellow prisoners with the approval of many Courts. As a Citizen of Alabama state, Defendant is denied the right to contract when he is forbidden the assistance of one who is willing to speak for him at his request. The denial of Defendant's right to contract, it is respectfully submitted, occurs because attorneys, who are, in this State, members of a bar association (a monopoly they have promoted through their controlled legislature) have purported to make a "law" for the protection of the "public"; whereas, they have actually instigated a self-serving franchise, in great part at the expense of the public and, in Defendant's view, to the detriment of Constitutional government. Memorandum of Law in Support of Habeas Corpus: Page 7 of 32 Again, Defendant is denied a "fair trial" and an impartial jury when a so-called "law" prohibits him from contracting with someone of his choosing for Defendant's legal defense against a hostile government, bent on punishing Defendant for the exercise of the very fundamental Rights which the government should be upholding rather than attacking. The aforementioned rights are infringed, abridged, and denied when the word "Counsel" is qualified to mean only attorneys may speak for the defense in a Court of Law. This was not the case in Tarlowski, where the "Counsel" referred to by the Court was an accountant. It appears to Defendant that a careful consideration of the words of the Sixth Amendment, securing his fundamental Right to Counsel of CHOICE must be undertaken here. Since no words were idly selected by the Forefathers, let us emphasize them here and now so that there can be no misunderstanding as to their meaning, for Defendant believes his stand in this matter is constitutionally correct. The vital words here are: In all criminal prosecutions, the accused SHALL ENJOY the RIGHT ... to have the ASSISTANCE OF COUNSEL for his defence. Defendant requests the Court's indulgence and patience for a brief analysis of the words capitalized above because, where his Life, Liberty, or Property are involved, it is not a matter which he takes lightly. For the source of the common meaning of common words in use when the U.S. Constitution was written, we refer to Noah Webster's First Edition of an American Dictionary of the English Language, 1828, republished in facsimile edition by the Memorandum of Law in Support of Habeas Corpus: Page 8 of 32 Foundation for American Christian Education, San Francisco, California, Second Edition, 1980. ALL: a. Every one ... the whole quantity, extent, duration, amount, quality, or degree; ... This word signifies the whole or entire thing .... It is obvious on its face that the word "all" allows for no exceptions and is all-inclusive, and it is also obvious that the Sixth Amendment, therefore, allows for no criminal trial where it does not apply. SHALL: v.i. In the present tense, shall ... forms the future tense; ... informs another that a fact is to take place .... In the second and third persons, shall implies a promise, command or determination. "You shall receive ...." The word "shall," in legal contemplation, is mandatory; it is a word "of command ... must be given a compulsory meaning." It is clearly so stated on page 1233 of Black's Law Dictionary, Fifth Edition, 1979. ENJOY: v.t ... To feel or perceive with pleasure; to take pleasure or satisfaction in the possession or experience of .... We enjoy a free constitution and inestimable privileges. Defendant has informed the Court that he has little confidence in the legal profession of Haldeman, Erlichman, Mitchell, Dean, Nixon and Agnew, and not to mention many others. He is defending himself out of necessity, not out of desire. Defendant is aware of a few attorneys whom he trusts, but their multi-thousand dollar fees are out of the question for this Defendant. He does not trust just any attorney out of a grab-bag whom the government is willing to furnish; neither would this defendant be satisfied with such an "attorney's" concept of the U.S. Constitution. The average attorney, full of law-school Memorandum of Law in Support of Habeas Corpus: Page 9 of 32 brainwashing, thinks that the U.S. Constitution is what the judges say it is, rather than what the Constitution itself says it is. If Defendant cannot "enjoy" the "assistance of Counsel" from the Bar (i.e. the legal establishment), then he has the undeniable Right of Counsel which he can enjoy. To deny this Right is to deny his Rights under the Sixth Amendment to Counsel. It is the use of the word "ENJOY," as well as "COUNSEL," which gives a Defendant the Right to the Counsel of his choice, licensed or unlicensed, as was provided for by the Founding Fathers, and of which the Ninth Amendment clearly prohibits any denial or disparagement: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. What honest attorney or judge can fail to see that in the denial of Counsel of choice to a Defendant in court, that he is not "denying" or "disparaging" both enumerated and non-enumerated rights? And what honest attorney or judge can fail to see that in enforcing a so-called statute denying a layman the opportunity to speak in defense of a friend at the friend's request, that said lawyer or judge is rendering infidelity to his oath of office to support the Constitution which states, in Article VI, Clause 2? This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added] Memorandum of Law in Support of Habeas Corpus: Page 10 of 32 Attorneys are called "officers of the court," and they are required to take oaths to support the U.S. Constitution. When the attorneys attempt to prevent the exercise of the Rights of defendants in court to speak through lay friends of confidence, the attorneys are involved in denying that which they swear to uphold -- to their eternal discredit and dishonor. The fact that the attorneys have been successful for a long time, and that colleagues in judicial robes have upheld them, does not make it right; it does not make it constitutional; and it certainly does not enhance the Rights of the grass-roots American People who are tired of being subjected to the exorbitant legal fees of a closed-shop union which says, "If you exercise your fundamental Rights, we will see to it that you go to jail," and now, "You have to go our route because the loss of your fundamental Rights is a settled matter." How could any decent person uphold such a system? How can the legal and the judicial profession escape tarnished "images?" Is the denial of fundamental Rights to the Defendant "frivolous?" Is it not better to restore fundamental Rights than to have a restless People rise up? Must we have "government of attorneys, by attorneys, and for attorneys?" Especially, after Watergate, the People are not going to stand for it. It is important to note that the Sixth Amendment word "enjoy" follows the word "shall," and it would therefore be a command of the sovereign power that the ability to enjoy the right to Counsel is mandatory. The words "shall ... enjoy" make this very clear. Memorandum of Law in Support of Habeas Corpus: Page 11 of 32 The judgment as to what Counsel the Defendant can "enjoy" is left entirely in his hands, and nowhere in the Sixth Amendment is this prerogative given to the Courts; it remains the fundamental "Right" of the Defendant. RIGHT: n. Conformity to the will of God, or to His law, the perfect standard of truth and justice ... Just claim; immunity; privilege. All men have the right to the secure enjoyment of life, personal safety, liberty, and property. We deem the right of trial by jury invaluable, particularly in the case of crimes. The "right" to "enjoy" Counsel is claimed by Defendant by law, nature, and tradition, and may not be infringed or disparaged by any private association, its members, or by its sympathizers employed in government. It is a right which the People retained for themselves and it is to be protected by their Judiciary. It is not a function of the People's Courts to protect the vested interests of any private monopoly as against the rights of The Sovereign People. Non-attorneys have as much right to speak for a Defendant in Our Courts as attorneys. Otherwise, the Courts are run only for "special interests" and are, in fact, protecting a monopoly, in violation of the Sherman Anti-Trust Act. Such a monopoly acts to restrain interstate commerce and to restrain competition and trade; without such monopoly practices, the cost of justice to The People would be substantially lower. Attorneys could still ply their trade, but they would have to be competent and deserve more fully the business which they would acquire from those who voluntarily trusted them. ASSISTANCE: on. Help; aid; furtherance; succor; a contribution of support in bodily strength or other means. Memorandum of Law in Support of Habeas Corpus: Page 12 of 32 The common understanding of the word "assistance" is that it comes from one who acts in a secondary capacity. For example, assistance is given to a President by a Vice President who "assists" him. We find a definition of "assistant" which follows the word "assistance." The above mentioned dictionary defines an assistant as one who serves in a subordinate position, as a helper. The common practice today of the Defendant "assisting" the defense attorney is one to which Defendant objects. It is an erosion of the original right which this motion is aimed at reestablishing. Defendant may also promote assistant Counsel to co-Counsel wherein they share in the defense and maintain that such a decision is theirs, not the Court's. It is theirs by Common Law and may not be denied or infringed by either the Courts or the Bar Association. It is also their fundamental Right. COUNSEL: n. Advice; opinion or instruction ... Those who give counsel in law; any counselor or advocate, or any number of counselors, barristers, or sergeants; as the plaintiff's counsel, or the defendant's counsel. COUNSELOR: Gan. Any person who gives advice; .... One who is consulted by a client in a law case; one who gives advice in relation to a question of law; one whose profession is to give advice in law and manage causes for clients. If the men who framed the Bill of Rights meant by "COUNSEL" a licensed attorney, they would have said "licensed attorney". Surely, the Court cannot refuse to recognize this. In the interest of fairness, let the Court grant the Defendant's motion. Neither the President of the United States nor the Governors who head the executive branches of government are required to be attorneys in order to administer and enforce the laws. Federal Memorandum of Law in Support of Habeas Corpus: Page 13 of 32 judges are not required by the U.S. Constitution, or by valid statute, to be attorneys. Congressmen, Senators, and other Legislators who pass legislation, statutes, and "laws" do not have to be "attorneys." Magistrates do not have to be "attorneys." Does it not seem strange that a Defendant cannot represent himself in Court without being an "attorney?" Are we playing games with the meaning of "represent"? Why then, the Defendant asks, must the Defendant's representative in Court be a licensed attorney? Why must the Defendant's representative have a title which the lawmaker, the enforcer, the federal law adjudicator, and the Defendant himself do not need? Speak, Oh Learned Ones! And please speak without attempting to turn white into "black," and black into "white," as the graduates of law schools seem so gifted at doing. And please speak without being in contempt of the Constitution for the United States, as lawfully amended. I THE WILL OF THE SOVEREIGN POWER The U.S. Constitution is the will of The People, clearly set down for their agents, elected and appointed, to follow. No law supersedes the U.S. Constitution and only those in "pursuance" of it may stand. Even treaties must be made "in Pursuance" of the U.S. Constitution. We the People ... do ordain and establish this Constitution for the United States of America. Preamble to the U.S. Constitution (1789) In establishing this government, the People said that: This Constitution, and the Laws ... made in Pursuance thereof ... shall be the supreme Law of the Land .... Article VI, Cl. 2, U.S. Constitution. Memorandum of Law in Support of Habeas Corpus: Page 14 of 32 And they also commanded that: ... [A]ll ... judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; .... Article VI, Clause 3, U.S. Constitution It is clearly the will of the bar associations, not of the People, to close the Courts to all but licensed attorneys. Use of the word "Counsel" rather than "attorneys" denotes the will of the Sovereign Power, which cannot be lawfully overridden. In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution. Chisholm v. Georgia, 2 Dall. 419, 471; Penhallow v. Doane's Administrators, 3 Dall. 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins, 118 U.S. 356, 370; ... Congress cannot invoke the sovereign power of the people to override their will as thus declared. Perry v. United States, 294 U.S. 330, 353 (1935) In the Sixth Amendment, the People declared their will as to the rights of the Accused in all criminal prosecutions and the right of the Defendant to "enjoy" the "assistance of Counsel" was purposely couched in the Common Law term, "Counsel," so as to include those friends upon whom Defendants may depend for advice and protection. In a speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C., on May 11, 1929, entitled, "Is There a Common Will?" in speaking of judges, he said: He is not to substitute even his juster will for theirs; otherwise it would not be the "common will" which prevails, and to that extent, the people would not govern. Defendant has the right to be foolish as well as wise, and his liberty is his to do with as he pleases. To deny him his freedom of choice in this matter of Counsel is unduly to interfere with the defense, and constitutes a denial of the will of The People, Memorandum of Law in Support of Habeas Corpus: Page 15 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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