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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