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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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