Time: Thu Mar 27 13:37:12 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id SAA25841; Thu, 27 Mar 1997 18:31:55 -0700 (MST) by usr07.primenet.com (8.8.5/8.8.5) with SMTP id SAA22601; Thu, 27 Mar 1997 18:31:36 -0700 (MST) Date: Thu, 27 Mar 1997 13:25:29 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: Counsel MEMORANDUM OF POINTS & AUTHORITIES (2 of 3) [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." despite the criminal prohibition at 18 U.S.C. 242. 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 U.S. 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 ======================================================================== 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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