Time: Tue Nov 12 08:33:23 1996
To: libertylaw@www.ultimate.org,Tom Clark <clarktj@valley-internet.net>
From: Paul Andrew Mitchell [address in tool bar]
Subject: Millie's version
Cc:
Bcc:
By the way, Tom Clark,
this is excellent!!
/s/ Paul Mitchell
At 01:31 AM 11/12/96 -0800, you wrote:
>=======================================================================
>LIBERTY LAW - CROSS THE BAR & MAKE YOUR PLEA - FIRST VIRTUAL COURT, USA
>Presiding JOP: Tom Clark, Constable: Robert Happy, Clerk: Kerry Rushing
>=======================================================================
>Hi Randy,
>
>At 04:58 PM 11/11/96 -0800, you wrote:
>
><edited for brevity>
>
>>Randy L. Geiszler here. Incompatible procedures is one of the greatest
>>downfalls of defenses. This is why mixing procedures together from
>>different sources can be a dangereous proposition. To illustrate what I
>>mean, I decided that I should make comments in direct relation to a real
>>case and situtation presented in the following post.
>
>I think I understand what you are saying about the Demand for Bill of
>Particulars. You assert that seeking discovery is an admission that you
>understand the issues and you are ready to defend?
>
>Theoretically, that makes sense, but do you have any citeable research that
>backs that up? The reason I ask is because I have had excellent results
>just by seeking discovery both with and without the questions contained in
>Behold!'s Demand for Bill of Particulars. So, while reason tells me that
>you are correct, experience tells me that the issue is not waived by seeking
>discovery. The reason I believe it may not be waived is that Requests for
>Discovery, Interrogatories, etc. ARE NOT MOTIONS TO THE COURT. Indeed,
>depending on the state, the paperwork only gets filed if you want the court
>to issue an order or your seeking sanctions, etc.
>
>>By this definition of arraignment it can be determined that the purpose of
>>arraignment is to identify the party as the one named in the accusatory
>>instrument, to inform him of the nature and cause of the accusation, and to
>>obtain a plea from the defendant upon which 'an issue is formed.' I point
>>out that if no issue is formed the case cannot go to trial because trials
>>are only held to determine the 'issue formed.'
>
>Absolutely. Discovery is designed to "form the issue" and if the issue is
>without merit it can actually "dismiss the issue".
>
>>Following the above definition of arraignment:
>>
>>1. People who have recorded and served our recission documents, when asked
>>to identify themselves, refer the tribunal to an affidavit of identification
>>that we have recorded that identifies us by verifing facts concering our
>>lineage, place of birth, date of birth, and name. We depend upon this
>>document for identification, without admiting that we are or could properly
>>be named in the accusatory instrument which usually preferres and accusation
>>against the "person" of statutorily defined character.
>>2. The DEMAND FOR BILL OF PARTICULARS is interposed prior to the completion
>>of arraignment and prevents arraignment from being accomplish. It attacks
>>the accusatory instrument at law on the ground that it does not inform the
>>defendant of the nature and cause of the accusation, making it impossible
>>for the party to enter a plea to the accusation upon which an issue would be
>>formed.
>>3. When the party is asked for a plea he must stand upon the DEMAND FOR
>>BILL OF PARTICULARS and require the prosecution to actually make an
>>accusation that can be plead to. By making a plea one admits an
>>understanding of the nature and cause of the accusation for the record.
>>This is implied by the fact that one would not answer a question that he
>>does not understand. When one doesn't understand a question, instead of
>>answering it, he would demand the question be explained. This is what the
>>DEMAND FOR BILL OF PARTICULARS does.
>
>I certainly agree. Do you think the record shows that Mr. Warwick answered
>the accusation?
>
>>Another part of arraignment that doesn't appear in the Bouvier's definition
>>is the attempt of the tribunal to appoint counsel. This doesn't appear in
>>the Bouvier's defnintion because in 1859 the Civil War amendments had not
>>been advented to the constitution. In today's statutory proceeding's courts
>>attempt to appoint counsel because congress, required states legislatures to
>>enact legislation for appointment of counsel to enforce the provisions of
>>the Civil War Amendments and civil rights acts imposed thereunder by
>>congress. Of course these statutory provisions do not apply to free white
>>State Citizens. But if accepted by a free white State Citizen before a
>>statutory tribunal, the record will reflect that the party has acquiesced in
>>the character of a statutory "person" and Fourteenth Amendment "citizen."
>>Another reason you will find the statutory tribunals trying to appoint
>>counsel is because if the defendant has counsel that could be said to
>>understand the nature and cause of the accusations, it will prevent the
>>defendant from demanding to know the nature and cause of the accusation.
>>Therefore, the appointment of counsel can thwart a DEMAND FOR BILL OF
>>PARTICULARS on the grounds that counsel (who as a matter of law is the
>>defendant before the court) understants the nature and cause. Once counsel
>>is appointed the tribunal could give a damn less whether the defendant
>>personally understands the nature and cause of the accusation. That is
>>between him and his attorney and the tribunal and the prosecution are off
>>the spot, any demand to know the nature and cause of the accusation
>>notwithstanding.
>
>Excellent point. Could it be said that by taking an attorney you have
>waived/ destroyed your sui juris character for the matter pending?
>
>>Another thing that needs to be understood about arraignments is that they
>>are not always accomplished in a single proceeding. In my own case, every
>>time I went to court on special appearance the court attempted to complete
>>arraignment because it had not been completed. These days it usually takes
>>more than one hearing. On the initial hearing the tribunal usually tries to
>>appoint counsel or gives you time to hire an attorney, after telling you the
>>charges. After they get control of the defendant through an officer of the
>>court (an attorney) another hearing is held to obtain the enter of a plea
>>from the attorney. After this on the greased skid to "just-us" in the
>>"jew-dicial" system. The importance of understanding the elements of
>>arraignment becomes clear when your realize that the elements of an
>>arraignment can come up hearing after hearing. The tribunal will raise
>>elements of arraignment at every hearing until arraignment is accomplished.
>>In my own case that was recently dismissed, the tribunal never completed
>>arraignment because I stuck to the my DEMAND FOR BILL OF PARTICULARS. I
>>would like to point out, I my case, in almost seven months of litigation,
>>which included 5 hearings, no plea was ever entered either by myself or the
>>tribunal. At every hearing, except the first one where an unsigned copy of
>>the complaint was presented to me, the court attempted to appoint counsel or
>>obtain a waiver of counsel. At every hearing the tribunal was trying to
>>arraign me. At every hearing I appeared specially to raise questions
>>against the venue and jurisdiction of the court and the sufficiency of the
>>accusatory instrument with respect to disclosing the basis of venue and
>>jurisdiction.
>
>Right, and if Mr. Warwick can reverse the plea entry, he will be right on
>track. As I recall (correct me if I recall falsely) Robert and you served
>more paperwork than just a "Demand for Bill of Particulars"? My point is
>that you stuck with the Demand even though there were other issues and
>procedures raised? If the court would've entered a plea, how would've you
>sought to reverse that?
>
>>This admission of the prosecution is important. We need to be able to
>>demonstrate on the record that the prosecution will not issue the Bill of
>>Particulars demanded. By the way, the prosecution is asked to answer a Bill
>>of Particulars. It is demanded that the prosecution 'issue' a Bill of
>>Particulars upon the 'Demand' of the accused to know the nature and cause of
>>the accusation framed in a DEMAND FOR BILL OF PARTICULARS. Note the
>>distinction between the 'Demand' and what is demanded (the Bill of
>Particulars).
>
>Randy, you lost me there. I don't see the distinction you are trying to
>point out.
>
>>This action is inconsistent with the DEMAND FOR BILL OF PARTICULARS. Before
>>anyone gets there feathers ruffled, let me explain why. It is not that
>>there isn't a proper place for discovery and discovery methods in the right
>>cases or at the right time. But a discovery and a DEMAND FOR BILL OF
>>PARTICULARS being purposed at the same time is inconsisent and doom's the
>>DEMAND FOR BILL OF PARTICULARS to failures.
>
>My feathers aren't ruffled, but please realize what you say is doomed to
>failure continues to work.
>
>>A DEMAND FOR BILL OF
>>PARTICULARS is a demand made at law. It is protected at law by
>>constitutional provisions that protect an accused's right to know the nature
>>and cause of the accusation. By proceeding at the law the accused can hold
>>the prosecution there and the prosecution has no bases (at least from the
>>accused) to proceed beyond law. If you study "discovery" you will find that
>>discovery was developed in "equity" and a means to obtain evidence from an
>>adversary which was being withheld in a proceeding at law. By entering into
>>equity, one abandons his relieve at law (i.e. the DEMAND FOR BILL OF
>>PARTICULARS).
>
>I would like the cite if you have it. "One who proceeds in equity may not
>return to the law."
>
>>The maxim is "one who proceed's in equity may not return to
>>the law. Another detrimental maxim is "one who seeks equity must do
>>equity." If one seeks discovery (equity) he cannot return to the law to
>>enforce the DEMAND FOR BILL OF PARTICULARS. The DEMAND can be treated as
>>waived.
>
>If one files a motion, you say he can no longer seek a Writ at Law? That
>flies in the face of the court rules which allow Writs to be granted only
>after statutory remedies have been shown to be insufficient.
>
>I would like the cite for that maxim as well, because with it one could show
>quite readily in Petitions for Writs that Motions are insufficient remedy in
>the fact they waive Rights only obtainable at law.
>
>The difference is this, a DEMAND FOR BILL OF PARTICULARS
>>demands that the prosecution disclose its accusation, while motion for
>>discovery requests that the prosecution disclose its evidence. There is a
>>big difference between telling someone what they are charged with (nature
>>and cause of the accusation) and providing someone with the evidence and
>>witnessess that will be used to prove the accusation.
>
>Good point.
>
>>This underscores the
>>importance of not throwing everything but the kitchen sink at them.
>
>But I don't see how this follows. Just because they are different in nature
>does not mean that they cannot be used simultaneously. That's rather like
>saying a cannon is good, and a machine gun is good, but your army can't use
>both in the same battle. There is a big difference between a cannon and a
>machine gun and if your army doesn't use both you could be in big trouble.
>
>If it is incorrect not to use both simultaneouslly it will have to be proven
>on other grounds than they are different in nature.
>
>>By
>>using incompatible remedies, the choice of one remedy can waive the
>>enforcement of another remedy. I'm not saying it is necessarily wrong to
>>seek discovery. I'm saying its detrimental to seek it at the wrong time.
>>Why would I seek the discovery of evidence, when I'm aleady arguing that I'm
>>not even charged with an offense yet. I don't need to know what evidence
>>the prosecution will use to prove a charge that has never been properly made
>>or laid.
>
>Have you read the "STIFF-ARM STRATEGY"? It spells out why I advocate doing
>both, and that is to give them nowhere to hide.
>
>>I would also like to point out that, under the maxim that one who
>>seeks equity must do equity, when the accused requests discovery in a
>>criminal case, by proceeding beyond law into equity, the prosecution can
>>demand and obtain reciprical discovery. Constquently, the accused in a
>>criminal case can be required to provide evidence against himself, a thing
>>he could not be compelled to do if he had never entered into equity where it
>>is allowed.
>
>Could you explain this in more detail? Again, if one knew that this was
>true, one could formulate some powerful arguments to show the "normal" court
>procedures are highly insufficient.
>
>>As long as the accused remains at the law in the methods he
>>choses, the prosecution cannot compel discovery from the accused. The
>>accused cannot be compelled to disclose anything when he makes the DEMAND
>>FOR BILL OF PARTICULARS, a demand made at law.
>
>>Notice that the judge was taking the first step in arraignment in the the
>>Bouvier's definition previously quoted. He was identifying the defendant.
>>What I did in the same instance was to identify my self according to my
>>Affidavit of Personal Identification, recording in the county recorders
>>office, forcing the tribunal to depend upon this affidavit for my identity.
>
>You had the affidavit recorded prior to your first special appearance? When
>the judge called your name, how did you respond specifically? That is if
>you don't mind telling us? I would really appreciate it.
>
>>The DEMAND FOR BILL OF PARTICULARS, in a case where it hasn't been waived by
>>discovery, could be depended upon as stating wherein the lack of
>>understanding lies.
>
>I don't agree that the issue has been waived, and the Demand can still be
>relied upon to show the lack of understanding.
>
>>The accused could demand the prosecution disclose the
>>charges. I would also point out that it is not the court that must make the
>>nature and cause of the accusation known, it is the prosecution.
>
>Absolutely. I wrote a technique on how to handle this, let me know what you
>think:
>
>You must remain firm that you do not understand the charges against you, and
>you cannot join with the court to make a plea until the Plaintiff has
>answered your inquiries into the nature and the cause of the accusation.
>
>The judge will then try to answer questions for you without answering your
>real questions. It could go something like this:
>
>YOU: "With all due respect it is the State that has lodged the complaint,
>and until I have the answers I am entitled to from them, I cannot make a
>plea, because I have no idea as to what I am pleaing to. Besides you have
>judicial immunity, isn't that so?"
>
>JUDGE: "That's correct."
>
> YOU: "Then you are of the opinion that you could tell me a falsehood right
>here and now and that you would not be liable to me for the deception?"
>
>JUDGE: "Well... I... uh..."
>
>YOU: "Please just answer the question, yes or no?"
>
>JUDGE: "I don't have to take that from you. You're bordering on a contempt
>charge."
>
>YOU: "Judge Doe, now you are intimidating me from freely, fully, and
>truthfully testifying upon this matter. At any rate, I was just making the
>point that any advice you give me is unreliable -- only your orders are of
>any consequence. Therefore, I dismiss your advice and demand to be informed
>as to the nature and cause of the complaint by the Plaintiff or Plaintiff's
>counsel before pleaing to it."
>
>>The
>>prosecution is the author of the accusation and only the prosectution can
>>make it more definite and certain. When the tribunal indevours to apprise
>>the accused of the nature and cause of the accusation the tribunal has just
>>crossed the line and became the prosecution. Therefore, it is improper for
>>the court to explain the complaint. If the court starts to do this the court
>>becomes the prosecution.
>
>>Only the prosecution can be said to know what his
>>accusation is. Dave's response that he has a "redress of grievances" also is
>>inconsistent with the DEMAND FOR BILL OF PARTICULARS, by going there
>>(redress of grievences), he doesn't stay here (DEMAND FOR BILL OF
>>PARTICULARS). By going there, Dave relieves the judge and the prosecution of
>>the duty to stay here.
>
>Have you read the Petition? It has to do with not joining the court,
>because the jurisdiction and venue appears to be foreign.
>
>>Discovery was already requested and the DEMAND FOR BILL OF PARTICULARS,
>>abandoned, which may have made the judge feel justified in entering a plea
>>for the defendant. He clearly didn't ask the defendant for a plea because
>>he knew none would be forthcomming if the defendant would admit
>>understanding the charges. In my own case, I made it a point, at every
>>proceeding to point out why the court didn't have authority to enter a plea
>>in my behalf, while I was on special appearance raising issues of venue and
>>personal jurisdiction that hand not yet been settled in the case. As I said
>>before, the tribunal never attempted to enter a plea in my behalf. In any
>>case, had the tribunal entered a plea in my behalf, I would have entered an
>>affidavit denying the entry of plea and stating the reasons why the tribunal
>>was without authority to enter a plea for me in the face of unsettled issues
>>of venue and personal jurisdiction. The principle basis of this affidavit
>>is that the tribunal or its judges do not have my power of attorney to take
>>action in my behalf (entry of a plea of not guilty) that would constitute a
>>waiver of the issues of venue and personal jurisdiction. The tribunal
>>cannot produce the necessary waiver without my power of attorney or my
>>consent. Therefore, I can undo an act of the tribunal, not authorized by
>>law, by affidavit clearly showing denial of power of attorney or consent.
>>We have examples of this affidavit available.
>>>
>>>Dave said, "I object your honor to your entering a plea for me and I can't
>>answer the charges because I don't understand them. You are not my attorney
>>and you can't enter a plea for me. I know there is a statute that says you
>>can enter a plea for me but that plea can't stand if I object, and I do
>>object your honor. And I take exception. ( I think the judge had his clerk
>>make note of that). But said he was entering the plea anyway.
>>
>>Further explaination at this juncture, might have been helpful. That is to
>>say statement of a clear legal reason why the judge couldn't enter a plea
>>may have cause him to withdraw his action. Of course, as many of you know
>>there is no guarantee of that. This is why we have the affidavit against
>>the entry of plea to follow up such proceedings.
>
>>What the judge was trying to do here is complete arraignment. The only way
>>to stop arraignment is with a good reason why. The DEMAND FOR BILL OF
>>PARTICULARS is that reason, provided it isn't waived.
>
>Which is the core difference of research vs. experience here. Your research
>tells you it is waived, reason tends to favor you, but my experience is
>quite compelling. Other than that, and race issues, we seem to be of one mind.
>
>>As it has been said, "to many cooks spoil the stew." Where did
>>this saying come from. It comes from the fact that if all the cooks making
>>the stew don't know what ingredients the other cooks have put in the stew,
>>it will be spoiled by ingredients that don't belong in the same stew.
>
>Ah, but I do know your ingredients...I just don't know where you got them from.
>
>>On
>>the issue of discovery, I think it is a dangereous proposition to seek
>>discovery in a criminal case because reciprical discovery can be forced upon
>>the accused when the accused makes to first move in equity.
>
>If that can be shown, I agree. But I don't think it can be shown in
>criminal cases. Besides I don't know that "discovery" is rooted in equity
>(although it does make sense that it would be so). I await to be corrected.
>
>>It is my understanding that a discovery motion containing the same issues
>>as the DEMAND FOR BILL OF PARTICULARS, in addition to other issues, has been
>>used in at least one case in the past with success.
>
>That would actually be 3 cases that have been won using the "STIFF-ARM
>STRATEGY" but only one of which I know to have used Beholds! questions in
>the Demand.
>
>>I'm not trying to
>>disparage that effort with this post. Never the less, the basis of the
>>DEMAND FOR BILL OF PARTICULARS and its distinction from discovery are
>>important to the success of either.
>
>We are here to fight the beast. I, for one, appreciate a critical analysis
>of what anyone does. You have candidly addressed the issues with reason and
>civility. My hat is off to you, sir. Please stop by more often.
>
>~Tom Clark
>
>
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