Sheila Terese, Wallen, Sui Juris
c/o General Delivery
Arivaca [zip code exempt]
ARIZONA STATE
In Propria Persona
Under Protest, Necessity, and
by Special Visitation Only
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) Case No. 95-484-WDB
)
Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
v. ) DEFENDANT'S CHALLENGE TO
) JURISDICTION FOR VIOLATING
Sheila Terese, Wallen, ) THE FUNDAMENTAL GUARANTEE
) EFFECTIVE ASSISTANCE OF
Defendant. ) COUNSEL: Sixth Amendment
________________________________)
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 the 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, 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?
Points and Authorities on Assistance of Counsel:
Page 1 of 32
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:
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].
Points and Authorities on Assistance of Counsel:
Page 2 of 32
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.
... 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)
Points and Authorities on Assistance of Counsel:
Page 3 of 32
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)
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]
Points and Authorities on Assistance of Counsel:
Page 4 of 32
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,
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).
Points and Authorities on Assistance of Counsel:
Page 5 of 32
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.
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 an unconvicted Citizen,
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.
Points and Authorities on Assistance of Counsel:
Page 6 of 32
As an unconvicted Citizen, 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.
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.
Points and Authorities on Assistance of Counsel:
Page 7 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 8 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 9 of 32
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]
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.
Points and Authorities on Assistance of Counsel:
Page 10 of 32
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.
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.
Points and Authorities on Assistance of Counsel:
Page 11 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.
Points and Authorities on Assistance of Counsel:
Page 12 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 13 of 32
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.
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.
Points and Authorities on Assistance of Counsel:
Page 14 of 32
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,
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.
Points and Authorities on Assistance of Counsel:
Page 15 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.
Points and Authorities on Assistance of Counsel:
Page 16 of 32
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?"
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 the 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. In 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."
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?"
Points and Authorities on Assistance of Counsel:
Page 17 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 18 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 19 of 32
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:
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.
Points and Authorities on Assistance of Counsel:
Page 20 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.
Points and Authorities on Assistance of Counsel:
Page 21 of 32
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,
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
arms of his attorney "brotherhood," who will "advise" and
"defend" him for a considerable fee.
Points and Authorities on Assistance of Counsel:
Page 22 of 32
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
"attorney-given" rights, but demands that his God-given, Natural
Rights not be infringed upon.
Points and Authorities on Assistance of Counsel:
Page 23 of 32
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.
Points and Authorities on Assistance of Counsel:
Page 24 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.
Points and Authorities on Assistance of Counsel:
Page 25 of 32
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
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.
Points and Authorities on Assistance of Counsel:
Page 26 of 32
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 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.
Points and Authorities on Assistance of Counsel:
Page 27 of 32
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.
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.
Points and Authorities on Assistance of Counsel:
Page 28 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 US 618 (1966);
Griswold v. Connecticut, 381 U.S. 479 (1964).
Points and Authorities on Assistance of Counsel:
Page 29 of 32
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
The United States Supreme Court also pointed out in this decision
that, in declaring what should be the supreme Law of the Land,
the U.S. Constitution itself was first mentioned and "... not the
laws of the United States generally ...."
The attorneys who sit in Our State legislatures and in Our
Congress have no right to pass laws which infringe upon, or
abolish, Our fundamental Rights under the U.S. Constitution for
the United States of America, as lawfully amended, and such
unconstitutional laws which purport to do so must be declared
null and void and not binding upon the Courts. See Miranda v.
Arizona supra, at 491.
VERIFICATION
The Undersigned hereby certify, under penalty of perjury,
under the laws of the United States of America, without the
"United States," that the above statements of fact are true and
correct, to the best of My current information, knowledge, and
belief, so help Me God, pursuant to 28 U.S.C. 1746(1).
Points and Authorities on Assistance of Counsel:
Page 30 of 32
Executed on July 22, 1996
/s/ Sheila Wallen
Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state
All Rights Reserved without Prejudice
/s/ Paul Andrew Mitchell
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state and
Counselor at Law and federal witness
All Rights Reserved without Prejudice
Points and Authorities on Assistance of Counsel:
Page 31 of 32
PROOF OF SERVICE
I, Sheila Terese, Wallen, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the United States, that I am at least 18 years
of age and a Citizen of one of the United States of America, and
that I personally served the following document:
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEFENDANT'S CHALLENGE TO JURISDICTION
FOR VIOLATING THE FUNDAMENTAL GUARANTEE
OF EFFECTIVE ASSISTANCE OF COUNSEL:
Sixth Amendment
by placing said document in first class U.S. Mail, with postage
prepaid and properly addressed to the following individuals:
Office of the United States Attorney [hand-delivered]
110 South Church Avenue, Suite 8310
Tucson [85701]
ARIZONA STATE
Attorney General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Solicitor General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Dated: July 22, 1996
/s/ Sheila Wallen
________________________________________
Sheila Terese, Wallen, Sui Juris,
Citizen of Arizona state
All Rights Reserved without Prejudice
Points and Authorities on Assistance of Counsel:
Page 32 of 32
# # #
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U.S.A. v. Wallen