Pro Se Chicago's Weblog

January 15, 2013

Free legal assistance for those who are wrongfully convicted or coerced to falsely plea guilty


There is no guarantee you will be able to find a lawyer to help you, but here are the places you can look.  You will have to make appointments by phone and then go to them.  There will be lots of appointments and lots of rejections before  you are likely to find someone to help you, but don’t give up!

Prepare a SHORT document where you write about your case and send it or deliver it to the attorneys or law clinics you made appointments with before you go to your appointments – with a cover letter that is a few sentences saying this is what you are doing.

Write a one to two page story about your case and attach any evidence that proves you are innocent (affidavits or letters from witnesses or whatever else you have).  Give the details of what you were accused of and what you confessed to and pled  guilty to.  Write a paragraph as to why you pled guilty when you didn’t do it.  Write a paragraph about what you plan on doing in life and how the conviction is preventing  you from accomplishing your goals.  Write a paragraph about what the state’s witnesses said that caused you to be convicted and why you think they were motivated to lie.  Give this to each of the places you get an appointment BEFORE you go to the appointment.

Contact law school clinics where they have lawyers who represent indigent clients.  They all don’t do this automatically and they are limited by funding from grants and government. etc.  But call each one and pound the pavement meeting with them after making appointments and showing them the evidence that proves you are innocent. This is NOT an easy task.

http://www.cookcountyclerkofcourt.org/?section=LinksPage&LinksPage=Law_Schools

You should also apply for executive clemency from the parole board – which reviews your case and recommends to the Governor if you should be granted a pardon.  Make sure you answer the above questions in your written application. The Gov. can overturn any conviction with a pardon.  It would be better if you could find witnesses who can prove your innocence and get a signed affidavit from them that would be signed by a notary.  Remember that letters are hearsay and not admissible in court.  If you have witnesses that sign affidavits that state they are willing to testify to what they wrote in their affidavits that would be best.

http://www2.illinois.gov/PRB/Pages/prbexclemex.aspx

This page  contains links to free legal services.

http://www.cookcountyclerkofcourt.org/?section=SERVRESPage&SERVRESPage=7020

It will be tough finding someone to help you.

Good luck!  Work hard pounding the pavement going to appointments and never give up!

January 19, 2010

Massive federal memorandum of law proving IL Attorney General Lisa Madigan & judges lack immunity – liable for malicious prosecution


The civil rights suit against Lisa Madigan, Jorge Alonso, Kathleen Pantle, John Fearon, Patrick Murray, William Reibel, Patrick Keenan, Nicholas Cozzolino, Julia Lovett, Charlene Wells can be read at this link.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

LINDA SHELTON v. ILLINOIS ATTORNEY GENERAL LISA MADIGAN et al.

Case Number 06 C 4259

before Honorable Judge Joan H. Lefkow        

MEMORANDUM OF LAW – JURISDICTION

 

                Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding total and complete lack of prosecutorial and judicial jurisdiction of sham prosecutors and judges in this case.

Judges and prosecutors have absolute immunity unless they totally lack subject-matter or personal jurisdiction in the case. A judge acting without subject-matter jurisdiction is acting without judicial authority. Cohens v. Virginia,  19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution”, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." [Emphasis supplied in original].

State officials may be sued as individuals in § 1983 actions. Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000).

Plaintiff alleges that the prosecutors and judges sued in this case totally lacked subject matter jurisdiction and therefore pursued this prosecution and presided over this prosecution without any legal authority as individuals and trespassers of the Constitution of the United States. The sham prosecutors had no constitutional or statutory authority or jurisdiction to bring the Medicaid vendor fraud charge. The court had no subject matter jurisdiction because the indictment was legally insufficient and failed to state a charge, the charges were void as a violation of the Supremacy clause, the charges were void due to vagueness, and therefore there was a total and complete failure to charge a crime.

[The following are the subtitles in the document. See link for full document of 42 pages. A limited number of excerpts are included as follows:]

INDICTMENT LEGALLY INSUFFICIENT

SUBJECT MATTER JURISDICTION OF THE COURT

            A Judge may not claim jurisdiction by fiat. All orders or judgments issued by a judge in a court of limited jurisdiction must contain the findings of the court showing that the court has subject-matter jurisdiction, not allegations that the court has jurisdiction. “. . . in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute.” In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) A judge’s allegation that he has subject-matter jurisdiction is only an allegation. Lombard v. Elmore,  134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985), Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1975). Inspection of the record of the case is the controlling factor. If the record of the case does not support subject-matter jurisdiction, then the judge has acted without subject-matter jurisdiction.  “If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, – it had no authority to make that finding.” The People v. Brewer, 328 Ill. 472, 483 (1928) Without the specific finding of jurisdiction by the court in an order or judgment, the order or judgment does not comply with the law and is void. The finding can not be merely an unsupported allegation.

The law is well-settled that a void order or judgment is void even before reversal. “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.” Vallely v. Northern Fire & Marine Ins. Co.,  254 U.S. 348, 41 S.Ct. 116 (1920)

           A court has no jurisdiction where the public policy of the State of Illinois is violated [a crime must be alleged and state ALL the elements of the offense for the complaint to be valid], People v. Meyers, 158 Ill.2d 46, 51 (1994);  Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

            Courts may not attempt to resolve controversies which are not properly presented to them for, if they should do so, it would violate not only the precepts of Constitutional due process, but would fly in the face of the American tradition of adversary litigation. In Re Custody of Ayala, 344 Ill.3d 574, 800 N.E.2d 524, 534-35 (1st Dis. 2003); Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633, 639 (1st Dis. 1994); In re Estate of Rice, 77 Ill.App.3d 641, 656-57, 396 N.E.2d 298, 310 (1979)

            The Constitutional source of a circuit court’s jurisdiction does not carry with it a license to act in ways inconsistent with controlling statutory law. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); In re Lawrence M., 172 Ill. 2d 523, 529, 670 N.E.2d 710, (Ill. 1996), citing In re M.M., 156 Ill. 2d 53, 75, 619 N.E.2d 702, (Ill. 1993) (Miller, C.J., concurring, joined by Bilandic, J.)

            A void judgment, order, or decree is one in which the rendering court lacked subject-matter jurisdiction, lacked personnel jurisdiction, lacked the inherent power or authority to make or enter or enforce the particular order involved. In re D.W. (People v. Lisa M.), 214 Ill.2d 289, 827 N.E.2d 466, 480 (Ill. 2005); People v. Thompson, 209 Ill.2d 19, 23, 805 N.E.2d 1200, 1203 (Ill. 2004); Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 103, 776 N.E.2d 195, (Ill. 2002), quoting Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858 (1945).  A judge should not proceed in any action in which the judge does not have subject-matter jurisdiction, since she has no lawful authority to act. Any acts made without jurisdiction are void.

FRAUD UPON THE COURT BY PROSECUTOR OR COMPLAINANT

INVALIDATES ALL ORDERS OF COURT

            Fraud upon the court in obtaining a complaint, information, or indictment invalidates all orders of the court and causes the case to be null and void ab initio.  “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

 It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
        Under Illinois and Federal law, when any officer of the court has committed “fraud upon the court”, the orders and judgment resulting from such fraud on that court are void, of no legal force or effect.

In this case the fraud consisted of the Illinois Attorney General fraudulently claiming to have the authority to prosecute vendor fraud without the at least minimal participation and knowledge of the States Attorney of Cook County, the State fraudulently presenting the law to the court and ignoring the Supremacy clause as well as the State Codes and Rules, the State fraudulently claiming Defendant had committed a crime, the State fraudulently claiming that the indictment was legally sufficient, the State fraudulently claiming that the statute of limitations had not run out, the State fraudulently agreeing with the court that Federal Medicaid Code was not applicable in this case of Medicaid vendor fraud,

JUDICIAL TRESPASSERS OF THE LAW

The Illinois Supreme Court has held that "if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers." Von Kettler et.al. v. Johnson, 57 Ill. 109 (1870)

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if a court is "without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)

The Illinois Supreme Court held that if a court "could not hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding." The People v. Brewer, 128 Ill. 472, 483 (1928). The judges listed below had no legal authority (jurisdiction) to hear or rule on certain matters before them. They acted without any jurisdiction.

When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law,and are engaged in treason (see below).

The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse."

When a judge acts as a trespasser of the law, when a judge does not follow the law, the judge loses subject-matter jurisdiction and the judge’s orders are void, of no legal force or effect.

By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person).

VIOLATION OF JUDGE’S OATH OF OFFICE

In Illinois, 705 ILCS 205/4 states "Every person admitted to practice as an attorney and counselor at law shall, before his name is entered upon the roll to be kept as hereinafter provided, take and subscribe an oath, substantially in the following form:

'I do solemnly swear (or affirm, as the case may be), that I will support the constitution of the United States and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of attorney and counselor at law to the best of my ability.'"

In Illinois, a judge must take a second oath of office. Under 705 ILCS 35/2 states, in part, that "The several judges of the circuit courts of this State, before entering upon the duties of their office, shall take and subscribe the following oath or affirmation, which shall be filed in the office of the Secretary of State:

'I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the State of Illinois, and that I will faithfully discharge the duties of judge of ______ court, according to the best of my ability.'"

Further, if the judge had enlisted in the U.S. military, then he has taken a third oath. Under Title 10 U.S.C. Section 502 the judge had subscribed to a lifetime oath, in pertinent part, as follows: "I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; ...".

The U.S. Supreme Court has stated that "No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.". Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).

Any judge who does not comply with his oath to the Constitution of the United States wars against that Constitution and engages in acts in violation of the Supreme Law of the Land. The judge is engaged in acts of treason.

Having taken at least two, if not three, oaths of office to support the Constitution of the United States, and the Constitution of the State of Illinois, any judge who has acted in violation of the Constitution is engaged in an act or acts of treason (see below).

If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.

TREASON BY A JUDGE

Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)

        The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.
        Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.

ATTORNEY GENERAL WITHOUT ANY JURISDICTION TO

INDEPENDENTLY PROSECUTE VENDOR FRAUD

            Statutes and case law regarding constitutional and statutory authority of Illinois Attorney General do not allow the Illinois Attorney General to prosecute Medicaid Vendor Fraud without the invitation, consent, or participation of the Cook County State’s Attorney.

            The Illinois Constitution, Article V, Section 15 states: “The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law.”

     15 ILCS 205/4 (from Ch. 14, par. 4) states:

 
“The duties of the Attorney General shall be:

Fourth – To consult with and advise the several State’s Attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the State requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution…

Fifth – To investigate alleged violations of the statutes which the Attorney General has a duty to enforce and to conduct other investigations in connection with assisting in the prosecution of a criminal offense at the request of a State’s Attorney…”

            People v. Massarella, 53 Ill. App. 3d 774 (1977)” states:

“Although a court may request that the Attorney General act in place of the State’s Attorney if he is sick, absent, uninterested, or unable to attend, Ill. Rev. Stat. Ch. 14, para. 6 (1973), in the absence of such circumstances, even the court may not substitute one official for the other. Moreover, since the State’s Attorney has the duty to take charge and prosecute all criminal offenses in his county, the attorney general has no power to interfere while that duty is being honestly, intelligently, and carefully discharged.

            Nowhere in the Illinois Statutes does it state that an Attorney General may initiate

and pursue a prosecution, independent of the State’s attorney, in a category of crimes not specifically assigned to the Attorney General by Statute, but which falls under the duties of the State’s attorney according to the following Statute:

55 ILCS 5/3-9005(a) states:

“The duty of each State’s attorney shall be: (1) To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county…”

            The Illinois Supreme Court in People v. Massarella, 72 Ill.2d 531, 382 N.E.2d 262 (1978), held that the Illinois Attorney General has authority to prosecute any crime with acquiescence of and absent of objection by State’s Attorney. The key is that the state’s attorney had knowledge of the case and actively acquiesced or failed to make an objection. It also held that the Illinois Attorney General has authority to appear before the grand jury without prior approval of the State’s Attorney.

            In People v. Buffalo Confectionery Co., 78 Ill.2d 447, 36 Ill.Dec. 705, 401 N.E.2d

546 (1980) the Illinois Supreme Court, under common law, found that “duties of the Attorney General…include the initiation and prosecution of litigation on behalf of the people.” They state that this power “may be exercised concurrently with the power of the State’s Attorney to initiate and prosecute all actions, suits, indictments, and prosecutions in his county as conferred by statute.”

However, they also ruled that the State’s Attorney is the only official whom by statute can initiate and prosecute criminal charges in that county (Ill.Rev.Stat. 1973, ch. 14, § 5) and that the Illinois Constitution gives the Attorney General only the “duties and powers that may be prescribed by law.” They also ruled that the statutes prescribe the Attorney General’s duties to include to “attend…and assist in the prosecution.” (Ill.Rev.Stat.1973, ch. 14 § 4). Therefore, the Illinois Supreme Court concluded that:

As we have previously stated, the aforementioned duties and powers of the two officers are concurrent. Thus, the Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority. (People v. Flynn (1941), 375 Ill. 366, 368, 31 N.E.2d 591.) However, where the statute so provides, the Attorney General has exclusive authority to institute and prosecute. See, e.g., Ill.Rev.Stat. 1977, ch. 120 par. 453.16 (Cigarette Tax Act prosecution); Ill.Rev.Stat. 1977, ch 38, par. 60-6 (Illinois Antitrust Act prosecution). [They explained that since Illinois Revenue Laws do NOT give the Illinois Attorney General exclusive authority to prosecute violation of revenue laws, the Illinois Attorney General may NOT prosecute these violations without the acquiescence of the State’s Attorney – in the revenue violation case in Buffalo Confectionery Co., the State’s Attorney was deemed to have acquiesced because he had been named to the grand jury, he had signed the indictments, he had attended the arraignments and he had filed certain pretrial discovery motions.)

They also found that an indictment is not invalidated because the Illinois Attorney General appears before the grand jury without approval of the State’s Attorney.

            The court then stated that there was no statute prescribing the duties of the Attorney General to include prosecuting revenue claims to the exclusion of the State’s Attorney. (People v. Buffalo Confectionery, Co., Ibid at page 549 [4].) Analogously, in the above captioned case, there is no state statute that grants the Attorney General exclusive authority to prosecute cases of CRIMINAL vendor fraud. The statutes do however, proscribe the duties of the Attorney General to include exclusive prosecution of CIVIL vendor fraud. (305 ILCS 5/8A-7I.)

            In Buffalo Confectionery, Co. (Ibid at page 548) the court noted that in that case the Assistant Attorney General (AAG) told the grand jury that he had obtained permission of a named Assistant State’s Attorney (ASA) to prosecute the case. The named ASA was present at the arraignment and filed a motion for pretrial discovery. The signature of the Cook County State’s Attorney appeared on the indictment. In the case at bar the AAG told the grand jury he had permission of the State’s Attorney, but does not name any such person. The ASA has not appeared at any hearing or before the grand jury in this case and has filed no motions. A signature stamp for SA Richard Divine on the indictment is the only documentation of involvement of the state’s attorney. This signature stamp does not verify that ANY person from the State’s Attorney’s office ever was consulted about this case, was shown evidence  about this case, decided what charges should be filed, and consented to the prosecution of this case by the Attorney General with exclusion of ANY involvement of the State’s Attorney in this case.

            In Buffalo Confectionery, Co. (Ibid at page 548 and 550) the court noted that there was an “obvious acquiescence by the State’s Attorney”, who was present at the arraignment and made a motion for pretrial discovery. In that case, it was clear that the State’s Attorney had considered the case and had decided to allow the AAG to proceed with prosecution without the ASA.

            In, Shelton v. Brown, 126 S.Ct. 51, 163 L.Ed.2d 472, certiorari denied by the United States Supreme Court and the Illinois Supreme Court, the Illinois Appellate Court agreed with Cook County State’s Attorney Dick Devine stated in his Illinois Appellate Court response brief page 12,

“It is clear that in Illinois, even the Attorney General, a constitutionally created prosecuting office, cannot invade the exclusive jurisdiction of the State’s Attorney to bring charges absent some evidence of abuse by the state’s attorney, or a conflict of interest.

            This issue in this case was whether or not citizens can file criminal complaints with the court clerk, without the approval or signature of police or the state’s attorney. The clerk had refused to accept criminal complaints by Shelton against corrupt State and County officials, including the State’s Attorney and police. The Appellate Court ruled that this refusal was proper and that citizens had no standing to file such complaints. The reasoning agreed with Cook County State’s Attorney Richard Divine who opined that the Attorney General has no statutory authority to indict and prosecute a person absent consent and participation of the State’s Attorney. This is binding precedent, so much so that any criminal prosecution of vendor fraud by the AG is null and void if the AG did not have the invitation, consent, and participation or acquiescence of the SA.

            This position was later re-iterated in People v Dosaky,  303 Ill.App.3d 986, 709 N.E.2d 635 Ill.App. 1 Dist., 1999, where the court ruled:

Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State’s Attorney shares authority, but is authorized to consult with and advise the several State’s Attorneys and attend the trial of any party accused of a crime and assist in the prosecution.

            Illinois statutes and case law are explicit in that an Attorney General, in Illinois, can only initiate and prosecute a criminal offense if they are invited to do so by the states attorney and the states attorney participates at hearings and at trial, if the State’s Attorney has reviewed the facts of the case, taken some initial steps towards prosecution and acquiesces to the Illinois Attorney General prosecuting without the State’s Attorney’s participation, or if statutory authority is granted, as it is in CIVIL prosecution of vendor fraud (after approval by OIG-DHHS), in certain environmental crimes or in certain cases involving drug crimes  and other statutorily specified crimes.

            Medicaid vendor fraud is not such a special statutory category subject to independent and exclusive prosecution by the Attorney General and cannot be criminally prosecuted by the Illinois Attorney General without the written approval of the OIG-DHHS and the request, and at least initial participation of the States Attorney, after the State’s Attorney has evaluated the evidence and determined which offense with which offender should be charged.

            More recently, in People v. Knippenberg, 325 Ill.App.3d 251, 757 N.E.2d 667 Ill. App. 3 Dist., 2001, the Illinois Appellate Court ruled that the “Attorney General has exclusive authority to initiate and prosecute cases only when a statute so provides.”

            The court in People v. Mitchell, 1971, 131 Ill.App.2d 347, 268 N.E.2d 232 states:

It is the responsibility of State’s attorney of county to appraise evidence against accused and determine offense with which he should be charged.

The court in People v Rhodes, 1967, 38 Ill.2d 389, 231 N.E.2d 400 states:

 

State’s attorney as a representative of the people has responsibility of evaluating evidence and other pertinent factors and determining what offense can properly and should properly be charged.

Therefore, without a specific statute giving the Illinois Attorney General authority to exclusively prosecute criminal Medicaid vendor fraud, the Illinois Attorney General may not prosecute anyone including Defendant in case at bar if there has been no review of evidence by the State’s Attorney, no determination of the charges by the State’s Attorney, no initial participation by the State’s Attorney, and no acquiescence by the State’s Attorney.

            Without the authority of the Attorney General to prosecute the charges, the charges were not properly before the court and the case was void ab initio.

PROSECUTORS ACTING OUTSIDE THE SCOPE OF THEIR PROSECUTORIAL DUTIES DO NOT ENJOY ABSOLUTE IMMUNITY

            The Eight Circuit Court of Appeals in McGhee v. Pottawattamie Co., 547 F.3d 922 (2008) ruled that malicious and willful acts to fabricate  probable cause are substantive due process violations and subject the prosecutor who fabricated probable cause to liability under § 1983. This is because the United States Supreme Court in Burns v. Reed, 500 U.S. 478 (1991) took a functional approach as to the role of a prosecutor. If his acts were not intimately tied to the prosecution of the case, but were tied to the investigation, the prosecutor was not immune. This is consistent with Imbler v. Pachtman, 424 U.S. 409, 428, 430 (1971) where the court held that prosecutors are absolutely immune for acts intimately tied to the prosecution.

            In this case prosecutorial absolute immunity does not attach to a prosecutor who never had statutory or constitutional authority to prosecute the alleged crime; does not attach to an Illinois Police investigator prior to the charging of the crime; does not attach to Illinois Medicaid Office of Inspector General nurses serving as investigators; does not attach to Defendant AAG Murray who served as an investigator gathering evidence and later joined the prosecution team; and does not attach to an Attorney General or her staff who willingly and intentionally ignore Illinois Code and Rules as well as Federal Medicaid Code in order to bring false charges to whistle blowers, who are witnesses to their corruption, as is Defendant and the persons the Illinois Attorney General have prosecuted for Medicaid Vendor fraud using virtually identical fraudulent indictments, using the same investigator and witnesses (Inv. Reibel and Lovett), and fraudulently presenting the same false information about the law to the multiple grand juries. These persons have included Dr. Maisha Hamilton Bennett, Vernon Glass, M.S., and Naomi Jennings R.N., as well as Plaintiff.

            Therefore, the Illinois Attorney General, her staff, and her investigators are not immune from liability.

VOID FOR VAGUENESS DOCTRINE

            It is impermissible to prosecute a person, per due process requirements, for a crime if it relies on a vague, ambiguous, or conflicting legal requirement. As the Seventh Circuit Court recently emphasized in Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000), criminal penalties require a “high degree of clarity.” Id. at 908. A year earlier, the Seventh Circuit Court also held:

The vagueness doctrine holds that a person cannot be held liable for conduct he     could not reasonably have been expected to know was a violation of law.  It is well-settled that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions is void for vagueness. [United States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999) (as amended)]

            The Supreme Court has emphasized this same principle on numerous occasions. In United States v. Harriss, 347 U.S. 612 (1954), the Court held that:

The constitutional requirements of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonable understand to be proscribed. [Id.at 617 (citations omitted)]

See also Dowling v. United States, 473 U.S. 207, 229 (1985) (reversing a conviction because “Congress has not spoken with the requisite clarity” and affirming the “‘time-honored interpretive guideline’ that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity’”) (quoting Liparota v. United States, 471 U.S. 419, 427 (1985) and United States v. Hudson, 7 Cranch 32 (1812), inner quotations omitted.)

            Even if the Illinois regulation per the Administrative Code is upheld to deny reimbursement for these counseling services to the poor, all defendants in any similar vendor fraud cases indictments and prosecutions cannot be sustained amid the uncertainty and vagueness created by the federal-state conflict. Indictment and prosecution of any defendant under a similar theory to this case of substitute billing run afoul of the Seventh Circuit Court’s holdings in Gresham and Brierton, and the Supreme Court precedents following Harriss.

            “It is well known that ‘no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.’” United States v. Ward, 2001 U.S. Dist. LEXIS 15897 (E.D. Pa Sept. 5, 2001). *12 (quoting Lanzetta v. New Jersey,  306 U.S. 451 (1939)). The Ward court then detailed the rigorous threshold test necessary for criminalizing conduct in the regulatory arena:

Especially where a regulation subjects a private party to criminal sanctions, ‘a regulation cannot be construed to mean what an agency intended but did not           adequately express.’ Diamond Roofing Co., Inc. v OSHRC, 528 F.2d 645, 649 (5th Cir 1976). As Bethlehem Steel made clear, ‘if the language is faulty, the Secretary has the means and obligation to amend.’ [Ward, 2001 U.S. Dist. LEXIS 15897, *19 - *19 (quoting Bethlehem Steel v. Occupational Safety and Health Review Comm’n, 573 F.2d 157, 161 (3rd Cir. 1978)).]

            The Ward Court cited a legion of precedents requiring dismissal of the indictment, which likewise require dismissal of the indictment in the vendor fraud case against Plaintiffs. “[I]t is our view that courts should not defer to an agency’s informal interpretation of an ambiguous statute or regulation in a criminal case.” Ward, 2001 U.S. Dist. LEXIS 15897, *22. See United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 1987),

In the criminal context, courts have traditionally required greater clarity in draftsmanship than in civil contexts, commensurate with the bedrock principle that in a free country citizens who are potentially subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be visited upon them.[;]

See also United States v. Apex Oil Co., Inc.,  132 F.3d 1287 (9th Cir. 1997) (affirming dismissal of indictment because the conduct was not clearly forbidden by the regulations); United States v. Plaza Health Laboratories, Inc., 3 F.3d 643, 649 (2nd Cir. 1993), cert. denied, 512 U.S. 1245 (1994) (in criminal cases, “a court will not be persuaded by cases urging broad interpretation of a regulation in the civil-penalty context”). See also, United States v. Whiteside, 2002 U.S. App. LEXIS 4610, *18 – *19 (11th Cir. Mar. 22, 2002) (“The government cannot meet its burden in this case because, despite its contention to the contrary, no Medicare regulation, administrative ruling, or judicial decision exists that clearly “proscribes defendants’ conduct.)

            The indictments in the vendor fraud case against defendant and all defendants in similar cases fail to cite violation of any binding federal rule. Accordingly, the indictments directly contravene Supreme Court teaching in Christensen v. Harris County, 529 U.S. 576 (2000), and over 150 decisions that have relied on it. Defendant and similarly situated defendants in other cases administered much-needed services to the poor under the federally funded Medicaid program, in full compliance with all applicable federal laws and formal regulations. It is contrary to Christensen and its progeny to sustain Defendant’s and similarly situated defendants’ indictments for conduct that did not violate any clear and binding rules.

            The Medicaid program has been recognized to constitute one of the most complex and intractable regulatory systems in our country. See Herweg v. Ray, 455 U.S. 265 (1982) Burger, J., dissenting) (observing that ‘the Medicaid program is a morass of bureaucratic complexity.”) Medicaid generally provides the lowest level of reimbursement, and requires treatment of the most ill and difficult patients. Physicians who participate in the low-paying Medicaid program should not be imprisoned based on a game of “gotcha”. See United States v. Harris, 942 F.2d at 1132 (“If the obligation . . . is sufficiently in doubt, willfulness is impossible as a matter of law, and the ‘defendant’s actual intent is irrelevant.’”) (citing Garber, 607 F.2d at 98, quoting United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974)). Indictment and/or conviction of Medicaid physicians based on regulatory gamesmanship is both unjust to defendants and catastrophic to the needy patients, because it drives small practitioners out of Medicaid.  Courts are increasingly dismissing these types of fraud charges against physicians, and dismissal is appropriate in the vendor fraud case against Plaintiffs. See, e.g State v. Vainio, 2001 MT 220, 35 P.3d 948 (Mont. 2001) (reversing a Medicaid conviction because it was based on an improperly promulgated state regulation); Siddiqi v. United States, 98 F.3d 1427, 1429 (2nd Cir. 1996) (reversing Medicare fraud convictions for “claim[s] for services rendered by somebody else”); id. at 1438 (“It takes no great flash of genius to conclude that something is wrong somewhere.”)

            The vendor fraud case against Defendant and similarly situated defendants is void for vagueness, similar to the Siddiqu and the Vainio cases as explained in the precedent setting and controlling cases such as Harriss, Gresham, and Brierton. “Void for vagueness” means criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Chandler, 66 F. 3d 1460 (8th Cir. 1995) The vendor fraud case against Defendant and similarly situated defendants clearly falls under the void for vagueness doctrine and should have been dismissed ab initio. Therefore, the trial court never had subject matter jurisdiction.

SUBSTITUTE BILLING NOT A CRIME

Alleged vendor fraud crime outside of statutory authority and

barred by Supremacy Clause

            This is not a matter of an unconstitutional statute. There is no statute or administrative rule in Illinois barring this allegedly criminal act of substitute billing in the case at bar as fraudulently charged. This act is specifically authorized by the federal Medicaid Code, Federal Code of Regulations, State Statutes, and State Administrative Code. Therefore, this case is a matter of enforcing federal code, which is being violated by this fraudulent prosecution, and not a matter of constitutionality of a state statute.

FEDERAL LAW REQUIRES FUNDING OF NON-PHYSICIAN EMPLOYEES OF

PHYSICIANS SERVICES TO THE POOR

 SUMMARY

            In summary, a prosecutor who acts without State or Constitutional authority as a prosecutor, who then generates legally insufficient indictments, using illegally impaneled grand juries, to charge a person with a crime despite the Supremacy clause providing that the act is NOT a crime under federal law, and the fact that the charge is void due to vagueness has failed to state a claim and is not properly before the trial court. The sham prosecutor, her assistants, and their investigators are acting as individuals without legal authority and are all personally liable under § 1983 and state tort law.

            All judge who act on such an indictment, despite the fact it was not properly before the court, especially when they ignore extensive motions by the defendant about these issues, are committing acts of treason and are grossly violating their oaths of office as well as the United States and Illinois Constitutions.

            Therefore, none of the Defendants in this case are immune from liability as prosecutors or judges.

Respectfully submitted by:

__________________________                               

Linda L. Shelton, Pro Se                                           


[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id. 

July 31, 2009

A Teachable Moment and Freedom of Speech


Further explanation of Constitutional law that applies to the case of Harvard Prof. Gates’ arrest last week that prove that the arrest by Sgt. Crowley was illegal is explained by law school Prof. and constitutional scholar Amar at:

http://writ.lp.findlaw.com/amar/20090731.html

He explains that since Sgt. Crowley admitted in his report that Prof. Gate’s words that he considered “disorderly” occurred after he had concluded that no burglary had occurred (the investigation was over so there was no obstruction of justice), whatever Prof. Gates said was protected by the First Amendment right to free speech per the U.S. Supreme Court holding in Houston v. Hill two decades ago. Justice Brennan in that case stated “Speech is often provocative and challenging…[But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Therefore, Prof. Gates comments were  protected by the First Amendment and were not “disorderly.” That clearly is a reason why the charges were dropped. Constitutional rights always trump State law.

The vague disorderly conduct laws cannot negate a person’s right to free speech unless there is a “clear and present danger of a serious substantive evil” , like yelling “fire” in a crowded movie theatre or interfering with a police investigation of a crime.

I believe the arrest had nothing to do with race but everything to do with ego. Sgt. Crowley was annoyed by Prof. Gates’ words and didn’t want to appear weak as a Sgt. in front of the other officers. He therefore acted more like the top dog in a dog pack and bit Prof. Gates’ who was alledgedly acting like an uppity overeducated and arrogant nerd who did not show the proper “respect” to an officer. The “teachable moment” should be in regards to constitutional rights and the fact that it is unlawful to arrest someone simply because they are insulting an officer.

Yes the public doesn’t always give officers the respect they deserve for putting their lives on the line every day and yes racial profiling still exists, however, I don’t believe these two issues have much to do with this case. Talk about these topics appear to me simply to be red herrings that the media are using to sensationalize this case, at the expense of the real teachable moment..

June 10, 2009

Sample Appeal of Wrongful Conviction


I have now filed my Illinois Appellate Court appeal of my wrongful conviction for aggravated battery of a correctional officer. Sgt. Anthony Salemi had attacked me, falsified his records, committed perjury, and with the help of Nifong-like prosecutorial misconduct of ASAs Andrew Dalkin and John Maher and extreme judicial misconduct by Judge Joseph Kazmierski, I was convicted and sentenced to two years in the Illinois Dept. of Corrections plus one year of mandatory supervised release.

I served the minimum 6 months and the full supervised release and was not able to appeal due to illegal conduct of staff at the Cook County Dept. of Corrections and Illinois Dept. of Corrections where I was held and due to damage to my health requiring several hospitalizations within the last year since my release on March 27, 2008 from prison. The damage to my health was a result of torture at the CCDOC and IDOC by ignorant, sociopathic, poorly trained officers and incompetent medical staff (with the exception of Dr. Baker). The social workers even told me they purposely were told not to allow me to use the law library. My medications were withheld in illegal acts of willful indifference to medical needs.

I have informed the FBI and asked them to prosecute for felony conspiracy to violate rights under color of law, etc.

I will never forget the comment to me at CCDOC by Sgt. Molevetti “We got you on one made charge so I can write anything I want and get you on another.” Officer Levy said the same thing. It appears that falsification of records is common practice at CCDOC. We need to take him down and jail him too!

As soon as I win this one, the mother of all civil rights suits will be filed against these creeps. Any officer who has aided and abetted this wrongful conviction is a target in my book to be arrested, removed as an officer, and jailed for felony conspiracy to violate rights under color of law under federal law.

I strongly suggest that ANY officer or CCDOC staff who has knowledge about this wrongful conviction march over to the FBI on Roosevelt Road, ask for a duty agent and confess and turn in the corupt officers and sergeants. The time is NOW to clean up the CCDOC and get rid of decayed and dead wood! If you don’t turn them in, you are part of the corruption and are condoning it! I have no sympathy for you!

You can read my appeal and the evidence of innocence and Sgt. Salemi’s guilt along with the incomptence of Inv. Sofus, as well as the prosecutorial misconduct at: http://www.scribd.com/doc/16301520/Appeal-of-Wrongful-Conviction-Battery-Shelton-Illinois-2009

Note that the appeal exceeds the 50 pages allowed by the Appellate Court. I have written a motion for leave to file this 82 page appeal due to the extreme prosecutorial and judicial misconduct resulting in 18 different issues justifying appeal and overturning verdict.

Note that the appendix has case law on spoilation of or failure to produce critical evidence, self-representation, and insufficient indictments – all what I have already posted on this site elsewhere.

November 9, 2008

Federal Habeas Corpus Petition and Exhaustion of State Remedies


Excerpt from Memorandum of Law submitted to Federal District Court, Northern District of Illinois, Eastern Division by Dr. Linda Shelton on November 10, 2008 in case no. 08 C 4627, a Petition for Writ of Habeas Corpus in a criminal contempt conviction arising from a fraudlent still pending vendor fraud case, asking the federal court to declare the criminal contempt conviction void. The vendor fraud case is where Dr. Shelton is fraudulently charged with Medicaid Vendor Fraud, under Illinois statutes, and trial is presently pending in the Circuit Court of C[r]ook county before Judge Jorge Alonso (who replaced the Dishonorable Judge Kathleen Pantle).

 

 

Dr. Shelton has committed NO fraud and is being illegally attacked by the Illinois Attorney General as a sham prosecutor without authority in the Circuit Court of C[r]ook County (only the State’s Attorney has legal authority to commence and prosecute a criminal case in Illinios with the exception of certain environment, gambling, and drug crimes as specified by statute), which therefore also has no jurisdiction, rendering the case null and void.

 

The indictment was illegally handed down by a “special” grand jury after the Asst. Attorney General John Fearon illegally appeared before the grand jury without jurisdiction, fraudulently stated the law to the grand jury, and suborned perjury by the State’s witness, Illinois State Police Investigator Reibel who committed perjury before the grand jury and withheld exculpatory evidence, rendering the indictment void. Inv. Reibel had previously fabricated evidence against Dr. Maisha Hamilton in a similar case. (He cut out her handwriting exemplars in order to use them on invoices he fabricated to charge her with forgery. The forgery charges were later withdrawn). Inv. Reibel also interviewed non-English speaking Arabic patients of Dr. Shelton WITHOUT a translator, shortly after 911 (they were scared of the plainclothes officers, some thought they were FBI agents accusing them of terrorism and answered NO to every question asked even though they didn’t understand the questions) and testified to the grand jury that these patients all said they never saw or heard of Dr. Shelton.

 

 

The charge was having a “single intention and design” to “defraud the State” by sending in “fraudulent invoices” to Illinois Medicaid between June 2000 and April 2002. See letter to FBI asking them to investigate the scheme by the Illinios Attorney General and Illinois Medicaid to violate federal law and withhold mental health care from people on Medicaid, while attacking whistle blowers against government corruption, including Dr. Shelton, with fraudulent  charges of vendor fraud. [letter located at new blog called "Illinois Corruption"  - http://illinoiscorruption.blogspot.com/%5D

 

This is kind of analogous to charging someone with murder, but not informing the defendant about the name of the victim, the date of the alleged murder, the type of weapon alleged to be used, the method by which the victim died, or the place or even continent at which the murder is alleged to have taken place. Without the who, what, where, and when, the indictment is fatally defective and the case is void!

 

 

The indictment is fatally insufficient, the Defendants have not been given any details or evidence as to which invoices are alleged to be fraudulent or what is fraudulent about them, and no evidence that explains what Dr. Shelton’s role is alleged to be in preparing or submitting the invoices.

 

 

Dr. Shelton did not start working for the group until 2001 and did not sign any paperwork allowing the group to bill under her Medicaid number until late 2001. She did not own the group or have any role whatsoever in running the group practice until after April 2002. The charges against her are therefore, entirely bogus.

 

 

Dr. Shelton underwent extensive and serious neurosurgery on her neck (breaking all bones and reconstrucing them to relieve congenital spinal stenosis that crushed the spinal cord and was causing extensive paralysis – she is disabled) in July 2000. The recovery period when she was unable to work was prolonged. She therefore was incapable of even performing any of the alleged fraudulent acts charged [although not clearly described] at the time period of the indictment. State actors are attacking her in retaliation for her whistle blower activities against corrupt Illinois and C[r]ook County officials including Illinois Attorney General Lisa Madigan.

 

 

This habeas petition is in regards to the criminal contempt finding by Dishonorable Judge Kathleen Pantle in May 2005 which Dr. Shelton alleges is void because the base pending case in which it was brought is void, thus rendering the hearing a nullity. Case law holds that a contempt charge cannot stand if it results from a void order. The indictment is void, thus the pending vendor fraud case is void. Therefore, all orders in the case including orders to appear on certain dates, bail orders holding Dr. Shelton for trial, etc. are thus void. The criminal contempt case has gone through all direct appeals (affirmed conviction by IL Appellate Court – which blatantly violated the law, IL Supreme Court denied leave to file appeal – thus exhausting state remedies). Dishonorable Judges Pantle and Alonso have either refused to hear fully briefed motions to dismiss by Dr. Shelton or denied motions to dismiss with unlawful statements such as “federal law does not apply” or the “Illinois Attorney General has jurisdiction because she is the chief law enforcement officer in Illinois.” Both of these judges are intellectually dihonest, arrrogant, rude, violating their oaths of offices to enforce the laws and constitution, and simply wrong in their rulings. One has to speculate that they may be under the influence of corrupt officials because of the extreme nature of their ignorant and wrongful statements over a four year period of time.

 

 

Dr. Shelton has exhausted state remedies on the criminal contempt charge and therefore has a legitimate Petition for Writ of Habeas Corpus pending before the Federal District Court:

 

EXHAUSTION OF STATE REMEDIES IN FEDERAL PETITION FOR

WRIT OF HABEAS CORPUS

            Petitioner has been unable to find case law pertaining to exhaustion of State remedies in one case (as in this pending vendor fraud case jurisdictional issue) through another case (as in this criminal contempt case). The definition of “exhaustion of state remedies” is thereby unclear. Guidance may be had in reviewing the following case law:

            The prisoner satisfies the exhaustion requirement if she properly pursues a claim throughout the entire appellate process of the state, but it is not clear if presentation to the entire appellate process through another case meets this definition. See:

Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-303 (1984) The Court stated that exhaustion requirement was satisfied by presentation of claim on appeal to state supreme court from denial of motion to dismiss. This may be on point in case at bar as all motions to dismiss were presented to the trial court in the pending vendor fraud case and then included in the argument on the criminal contempt case as proof the criminal contempt case is void because the pending vendor fraud case is void.

Burkett v. Love, 89 F.3d 135, 138 (3rd Cir. 1996) The Court held that the exhaustion

requirement was satisfied only by presentation of claim to highest state court. In case at bar, the claim of voidness of pending vendor fraud case has been presented to highest state court through motions for leave to appeal in direct appeal and motion for leave to file petition for habeas to Illinois State Supreme Court – both denied.

Wayne v. Missouri Bd. Of Probation & Parole, 83 F.3d 994, 996 (8th Cir. 1996) The Court ruled that the exhaustion requirement was satisfied when petitioner presented federal claims in full round of litigation before state trial and appellate courts even though relitigation in state forum through another procedural device possible.  In case at bar this is very much on point as pending vendor fraud case issue of lack of jurisdiction and voidness was presented through full round of litigation via criminal contempt direct appeal and collateral habeas appeal, although should Petitioner be convicted in allegedly void pending vendor fraud case, she could again directly appeal issue of lack of jurisdiction through state appellate courts and collateral habeas proceeding.

Brown v. Allen, 344 U.S. 443, 447 (1953) The Court ruled that if the state courts

considered a petitioner’s claim on direct appeal, initiation of a collateral attack in state court is not required even if a state postconviction remedy would permit reconsideration of the claim. In case at bar, this concept of possible reconsideration in another avenue therefore, does not negate the fact of exhaustion of remedies.

Casille v. Peoples, 489 U.S. 346, 350 (1989) (dictum)  The Court ruled that to force petitioner to exhaust other state remedies after fairly presenting claim to the highest state court would be “to mandate recourse to state collateral review whose results have effectively been predetermined, or permanently to bar from federal habeas prisoners in States whose Postconviction procedures are technically inexhaustible”.

Anderson v. Harless, 459 U.S. 4, 6 (1982)  The Court ruled that “the habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim.”.  In case at bar this is on point in this pending vendor fraud case as all claims of lack of jurisdiction and voidness have been fairly presented to the state appellate courts who chose to ignore the issue or not consider the issue.

 Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972) The Court ruled that “[the] question . . . is whether any of petitioner’s claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim”. In case at bar, claims in pending vendor fraud care and criminal contempt case regarding lack of jurisdiction of court in pending vendor fraud case are identical.

This case law suggests that any type of presentation to the appellate courts of the state satisfies the requirement for exhaustion of state remedies. In the pending vendor fraud case there has essentially been a full and fair litigation of the issue of jurisdiction and thus voidness through the appellate court system in Illinois both on direct appeal and on collateral habeas proceedings regarding the pending vendor fraud case through the criminal contempt case. The Illinois Supreme Court has denied leave to appeal and leave to file petition for writ of habeas corpus. In Lewis v. Borg, 879 F.2d 697 (9th Cir. 1989) the Court ruled that exhaustion requirement  was satisfied when state supreme court denied state habeas petition without comment. Therefore, denial of leave to appeal would exhaust state remedies. 

ADDENDUM as of 11-10-08

Two additional cases which suggest that if the issues were presented to the highest court in the state by whatever avenue that this qualifies as exhaustion of remedies:

Soffar v. Dretke, 368 F.3d 441, 467 (5th Cir. 2004) and Carter v. Estelle 677 F.2d 427, 449 (5th Cir. 1982) crt. denied 460 U.S. 1056 (1983) 

October 31, 2008

Legally Insufficient Indictment-Failure to State Specific Means by Which Alleged Crime Accomplished – Illinois / Felonious Conduct of Judge Pantle and Judge Alonso in Obstructing Justice by Denying Defense Access to Evidence


The first thing I do if I am indicted or charged is look at the charging instrument – complaint, information, or indictment. I ask does it include all the elements of the alleged crime? If not, it is legally insufficient and voids the charge and case. There are other reasons it may be insufficient and I will discuss that in later posts. The motion in this post goes over the relevant controlling case law. Please enjoy it! I hope you find it useful. This is my motion in one case where the indictment is constitutionally legally insufficient basically because it fails to state the SPECIFIC MEANS of the alleged crime – in this case the specific allegedly fraudulent invoices, naming the specific dates of service, name of patient, service billed for, provider of the service, provider who is billing, and WHAT SPECIFICALLY is fraudulent about the invoice. It also states there is a “single intention or design” (i.e. scheme) but gives NO CLUE as to what the scheme involves or who are the alleged perpetrators other than me. The US Supreme Court as well as higher courts in Illinois have ruled in similar cases that this is a void indictment and therefore the entire case is void, not just voidable.
This is a case where in 2004 I was charged with felony Medicaid fraud by the Illinois Attorney General with a fraudulent grand jury indictment by an illegally impaneled special grand jury. The trial is still pending. If you want to attend, please e-mail me and I will inform you of the date when scheduled. Contributions to my legal defense fund may also be given to my attorney – made out to: “Shelton Legal Defense Fund” C/O J. Nicolas Albukerk, 3025 W 26th St., Chicago, IL 60623. The IL AG has absolutely no legal authority to indict anyone (with the exception of about six crimes specified by statute giving AG authority) without the invitation, review, and at least minimal participation of the State’s Attorney. This never happened in mycase. The law was mistated to the grand jury, only perjured testimony was given to grand jury, extensive exculpatory evidence was withheld from grand jury. No crime is actually alleged in indictment as act is specifically authorized by the Federal Medicaid Act if one guesses that the alleged crime is billing Medicaid for services of employees who are statutorily qualified to provide services – i.e. psychologists and counselors. I will post all the other motions to dismiss that the court has illegally refused to hear later.
UPDATE: I tried to file this pro se. It is still my position that I am being illegally denied the right to self-representation – more on this later. My attorney is considering adopting this motion and filing it under his name. In the meantime, Judge Alonso refused to hear it because it did not come from my attorney, who is now representing me over my objection. I did this not because he is a bad attorney, he is very good, but I believe at this point I need to represent myself – more on this later. The judge allowed this motion to be filed as an offer of proof only.

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )          

                        v.                                             )           No. 04 CR 17571

                                                                        )

LINDA SHELTON                                         )           Jorge Alonso

            Defendant                                 )           Judge Presiding

 

 

MOTION TO DISMISS FOR INSUFFICIENT INDICTMENT OR IN THE ALTERNATIVE AN OFFER OF PROOF

 

NOW COMES Defendant, Linda Shelton, Pro Se, who respectfully moves this court to dismiss case due to insufficiency of indictment, or in the alternative offer this motion as an offer of proof that the indictment is insufficient and therefore the case is void ab initio. In support of this motion Defendant states as follows:

1.      In Illinois, an indictment must be reasonably certain enough to apprise a defendant of the charges against him, enable him to prepare a defense, and permit a conviction or acquittal to serve as a bar to any subsequent prosecution for the same offense. People v. Greico, 255 N.E.2d 897, 898-899 (Ill. 1970)

2.      A defendant has a fundamental right to be informed of the “nature and cause” of the charges against him or her. People v. Meyers, 158 Ill. 2d 46, 51 (1994).

3.      In Illinois this fundamental right is given substance by statute and incorporated into section 111-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111–3 (West 1998)). 725 ILCS 5/111‑3 states: “111‑3. Form of charge. (a) A charge shall be in writing and allege the commission of an offense by: . . . . (3) Setting forth the nature and elements of the offense charged;” [emphasis added] See Meyers, 158 Ill. 2d at 51; People v. Davis, 281 Ill. App. 3d 984, 987 (1996). When the sufficiency of a charging instrument is challenged in a pretrial motion, the inquiry upon review is whether the instrument strictly complies with section 111–3. Davis, 281 Ill. App. 3d at 987.

4.      When the language of a statute which constitutes a charge against the defendant defines the acts prohibited, no further particularity is necessary. People v. Kamsler, 214 N.E.2d 562, 566 (Ill. 1966)

5.      An indictment is not flawed because the overt act could be described in greater detail. City of Chicago v. Powell, 735 N.E.2d 119, 125 (Ill.App.1st Dist, 2000) CITING People v. Meyers, 630 N.E.2d 811 (Ill. 1994). Rather an indictment is sufficient so long that it would enable a defendant to prepare a defense. Id.

6.      Ordinarily, the requirements of section 111-3 are met when the counts of a complaint follow the statutory language in setting out the nature and elements of an offense. Davis, 281 Ill. App. 3d at 987. The relevant inquiry is not whether a charging instrument could have described an offense with more particularity, but whether there is sufficient particularity to allow the defendant to prepare a defense. Meyers, 158 Ill. 2d at 54. A charging instrument is a preliminary pleading, and it need not contain more than a cursory statement of the facts. People v. Smith, 259 Ill. App. 3d at 497. However, it must state some facts.

7.      If the charging instrument meets the minimum requirements of section 111–3(a) but (combined with any discovery the State furnishes) is insufficient to allow the defendant to prepare a defense, he or she can–and should–seek a bill of particulars. Smith, 259 Ill. App. 3d at 498; People v. Intercoastal Realty, Inc., 148 Ill. App. 3d 964, 971 (1986).

8.      An indictment need not state the exact means used in committing a charged offense if that means is not an integral part of the offense. Grieco, 255 N.E.2d 899; SEE People v. Brogan, 816 N.E.2d 643, 654 (Ill.App.1st, 2004) (defendant’s argument that the indictment failed to apprise him of the details of how the overt act was carried out failed because the argument focused on the nature of the proof rather than the nature of the offense.) However, if the means is an integral part of the offense, the indictment needs to state these means.

9.      When the language of a statute does not articulate a specific offense, the indictment must articulate a specific overt act. People v. Potter, 125 N.E.2d 510 (Ill. 1995) In Potter, the defendant was charged with reckless driving. The indictment specifically stated that the defendant drove recklessly by speeding. The defendant was therefore not left to question whether the reckless conduct was running a red light, driving at night without his lights on, or one of a myriad of other possibly dangerous driving manners. However, there are numerous cases where the reviewing courts ruled that the indictment did not articulate a specific overt act[1], and therefore, these indictments were fatally defective.

10.  In the case at bar, the indictment states defendant is alleged to have “in furtherance of a single intention and design, … by means of false statements and representations, . . . caused false billing invoices to be submitted to the Illinois Department of Public Aid.”

11.  The indictment does NOT SPECIFY any details of this “single intention and design” so the Defendant cannot prepare a defense because she must guess at what kind of scheme and with whom she schemed in order to commit the alleged crime. As she is innocent, she has no knowledge of any scheme to which to prepare a defense.

12.  The indictment does NOT SPECIFY what false statements or what false representations she is accused of having made. She cannot prepare a defense and is forced to guess that the false statements have something to do with the large amount of different types of information on an invoice (Exhibit A), such as patient name, patient Medicaid number, date of service, type of service, diagnosis, or provider name.

13.  Defendant must also guess at which step is fraudulent in a complicated series of steps necessary to submit an invoice, from agreeing to work for the business, to signing the contract with the billing agent, to giving a patient encounter form to the business assistant when a patient is seen in clinic, to the billing agent setting up the business for electronic submission and registering the business and provider for billing, to signing a power of attorney form, electronic partner trading agreement, and alternate payee form, in order to generate an electronic invoice from the patient encounter form, to submitting the invoice over the wire, and to documenting hours worked on chart review and teaching therapist or setting medical policies.

14.  She further has to guess which dates of service for which of thousands of patient’s names in remittance advices given to her in discovery by the state, for the large time period of the indictment, June 2000 through April 2002, are involved so she can examine each of these invoices and guess at what is allegedly fraudulent about them.

15.  The above involves pulling out each of the thousands of charts in storage, examining each date of service record and comparing them with the invoices, after obtaining access to medical charts not under her control or possession until June 2008. It also involves examining all business and bank records related to billing and payroll, after obtaining access to them, as they were not under her control or possession until June 2008.

16.  As Defendant was not owner of the practice and did not have access to these documents after she left the practice in 2003, until June 2008, when she received Power of Attorney over all documents of the practice, at the request of XXXX, the owner, who is now medically incapacitated and dying of XXXXXX, Defendant is supposed to figure all this out and develop a defense using this material in only a couple of months. This is a Herculean task that no one could possibly be expected to accomplish. The Court for four (4) years has negligently and/or willfully interfered with and prevented Defendant from obtaining banking and billing records or compulsory process and prevented Defendant from legitimately seeking details of alleged offense.

17.  The State does not specify if Defendant is alleged to have ghost-billed by listing patients and Medicaid numbers of persons who never came to the practice, upcoded by listing a code for a higher degree of service than provided, substitute-billed for a provider who was not eligible to bill, schemed with the business owner, the biller, the office assistants, or whomever, for any of this. In addition, no specific acts (specific patients, specific dates of services, or specific services) are described in indictment, and no specific dates of service or specific services billed for are described in Bill of Particulars.

18.  No reasonable person can be expected to prepare a defense under the above circumstances, where the State, in the indictment has utterly failed, as required by law, to specify the overt acts which constitute the alleged criminal acts.

19.  The State, in discovery, has provided a list of approximately 54 patients which are family groups with approximately 30 adults. They claim that this discovery material represents the State informing the Defendant of the means of the illegal acts she is alleged to have committed. This, along with a Bill of Particulars, however does not cure the fatally defective and insufficient indictment. The 30 or so adults were provided in a witness list. If each psychiatric patient is seen an average of 20 visits, then these 54 patients represent about 1080 visits. Defendant, without the indictment specifying which patients and which visits are allegedly fraudulent and how they are fraudulent is left to guess about this information for each of these 1080 office visits. The State’s bill of particulars and answer to discovery states that Medicaid received bills for services for these 54 patients and lists inclusive dates of service and total amounts billed for, but does not state specific dates of service and patients for which they claim that services were billed fraudulently or what was fraudulent about the bill, except that the bills were for services “not provided by the physician,”  which could mean several different types of overt acts or omissions.

20.  Defendant is now in a situation, ordered by this Court, and produced by the State, analogous to someone being indicted and charged with murder, but not being told who she murdered, where and on what continent the murder took place, what was the nature of the alleged weapon, or even what year the murder took place. This is the ultimate injustice and sham proceeding, that should have been dismissed several years ago. This is a continuing four (4) year act of judicial and prosecutorial misconduct. There is no specific Who, What, Where, or When! These proceedings are therefore, a travesty of justice and beyond any semblance of legitimate American jurisprudence. This case brings this Court, this State, and its legal system into disrepute based on the unconstitutional, illegal, and unethical actions of this Court and this State against Defendant that run counter to every due process principle guaranteed by the United States Constitution.

21.  The State has also provided in discovery thousands of the practice’s “remittance advices” that cover an approximately two year period. Remittance advices are documents generated by Illinois Medicaid sent to the medical provider which list the names of patients billed for, the recipient’s Medicaid number, the date of the service, the code for the service claimed, the invoiced amount, and the amount paid to the provider or alternate payee by Medicaid. Defendant must guess at which of these dates of services and patients may be added to the witness list and what is fraudulent about each and every one of the invoices submitted that Medicaid used to generate the remittance advices. Defendant would have to examine each invoice, if available, examine each chart for each date of service, and determine if there was a scrivener’s error, or a somehow fraudulent invoice and determine what was fraudulent about the invoice, and who was responsible for this act. Only in July 28, 2008, four (4) years after the indictment has this Court began to enforce discovery rules and order the State to clearly identify all witnesses to be used against Defendant, although the Court still has not ordered the State to identify the acts (dates of service and details of invoice that they allege are fraudulent) that constitute the alleged crime.

22.  It appears that the State is forcing the Defendant to perform their investigation and figure out what, if anything, she should be charged with concerning these thousands of patient encounters, not just by her, but by every physician and provider in the practice during the broad indictment period, four years after the indictment was handed down.

23.  Of note, a bill of particulars does not cure a faulty indictment. People v. Meyers, 158 Ill. 2d 46, 53 (1994). The indictment must stand on its own in stating facts sufficient to support all elements of the offense. The indictment, even with discovery materials, fails to inform Defendant of the alleged means of the crime or the alleged specific acts constituting this crime, four (4) years after indictment.

24.  The indictment in this case is fatally insufficient in failing to specify the acts that allegedly constitute the crime charged. Therefore, no  crime has been legally charged and the case is null and void ab initio.

25.  Under 725 ILCS 5/114-4(e), if the State, due to lack of due diligence, fails to bring Defendant to trial within one (1) year, following the indictment, after one additional hearing scheduled 14 –30 days after this motion is filed, then the case must be dismissed with prejudice for lack of due diligence.

26.  Defendant has previously moved for dismissal, 17 months after the indictment, due to lack of due diligence and this has been unconstitutionally denied. Defendant renews her request for dismissal for lack of due diligence. After four years or 48 months post-indictment, the State clearly should have provided the Defendant discovery, including all allegedly fraudulent invoices and a bill of particulars to address the above, even if this court erroneously rules that the indictment is valid.

27.  The court has placed Defendant’s subpoenas on hold for several years and denied Defendant counsel for nine (9) months in 2005-2006. The law only requires the billing agent and practice to keep invoices for three (3) years. The billing agent now claims the invoices no longer exist. The State failed to produce any invoices for the indictment period despite repeated specific orders of Judge Pantle several years ago. It claims to have microfiche of some invoices, but these cannot include most of invoices produced by Ms. Moore, as the State only make microfiche of paper claims. State has not admitted to having or denied having in their possession copies of electronic invoices from indictment period, but has failed to produce them (the actual alleged means of the alleged crime) despite orders of the Court in 2006 to do so. Ms. Moore, by law was allowed to destroy all invoices and computer records of them before 2006.

28.  In addition, banks are only required to keep records for five (5) years. Due to physical incapacity and lack of funds, Mr. XXXX, the sole proprietor of RFOM during the indictment period, has not been able to preserve all his business and bank records. Citizen’s Bank has now informed Defense attorney Albukerk that the practice’s bank records no longer exist as it is now beyond this five (5) year period. The State has failed to ask for, subpoena, or proffer the practice’s bank records in discovery while the case has been pending for four (4) years.

29.  Therefore, the Court and State have caused Defendant to be deprived of the “instruments of the alleged crime,” (the allegedly fraudulent electronic and then paper invoices) as well as exculpatory business and bank records, and therefore, materially and intentionally prevented Defendant from preparing a defense. This is not just lack of due diligence by the State. This is active interference with the defense, as well as violation of the judges’ oaths of office.

30.  The defense cannot have invoices inspected by an expert for forgery of Defendant’s signature by someone unknown person regarding paper claims, nor inspect the electronic partner trading agreement from the third-party adjudicator, Blue Cross Blue Shield of Illinois (”BC/BS”), which allows BC/BS to accept electronic claims from Medicaid providers, for forgery of Defendant’s signature.  

31.  These acts of withholding and failing to preserve evidence by the Court and the State, in themselves should cause this case to be immediately dismissed as a sanction against the State and the Court and because it now is more difficult, if not impossible to definitively prove that Defendant did not produce or cause to be produced most of the invoices in question, nor receive most of the money given the practice by Medicaid or have any part in deciding its distribution. This is the main element and the nature of the alleged crime, stated in general terms in indictment, without description of overt acts. With the physical incapacity of Co-Defendant and his written statement that he is invoking the Fifth Amendment and has refused to give a dying declaration, Defendant is put in the impossible position of proving a negative without the help of any evidence.

32.  Defendant was UNCONSTITUTIONALLY prohibited by the court from filing any pleadings pro se by a written order of Judge Pantle, dated July 6, 2005, that has not been rescinded, and DENIED at the same time an attorney from May 2005 to January 2006, a period of nine (9) months. All Defendant’s subpoenas were put on hold by the court. Defendant has repeatedly requested to present argument to the court on her many outstanding and fully briefed motions and to represent herself and fire attorneys, initially hired by her family without her consent and then hired by her when it became clear that this court was going to continue its lawlessness and deny her all due process, right to an attorney of her choice, and right to a speedy trial. ALL her reasonable requests have been unconstitutionally denied by outrageous and dishonorable conduct of this court.

33.  Denial of her Faretta rights has been baseless, and the reasons stated on the record by Judge Pantle are legally insufficient, lacking details and only conclusory; not properly documented by this court in a manner necessary to deny Faretta rights. Speedy trial has been violated as de facto removing Defendant as pro se counsel between July 6, 2005, when the court prohibited her from filing pleadings, while at the same time denying appointment of an attorney, until Defendant hired an attorney on January 19, 2006, means defense could not have agreed to any continuance during that time and therefore, all continuances during these seven (7) months must be charged to the State, and therefore case must be dismissed for speedy trial reasons.

34.  Therefore, Defendant has been unconstitutionally barred from this court from filing or presenting this motion and many other motions, many of which have been fully briefed since February 2005. Attorneys acting on her behalf, against her wishes, have not fully presented all issues stated in Defendant’s pro se pleadings to the court. She therefore, is requesting her attorneys, denied their request to withdraw by the court and forced to continue to represent Defendant, and therefore appointed by the court over her objection, to file a motion to vacate July 6th, 2005 order preventing Defendant from filing pleadings, as well as adopt this motion and enter this motion, or in the alternative let Defendant pro se argue this motion. If the court won’t allow Defendant to argue it, Defendant requests that it be entered as an Offer of Proof, so that on appeal arguments and defenses she would have presented are preserved on the record.

            WHEREFORE, Defendant respectfully requests this Court to dismiss this case with prejudice for a fatally flawed indictment, or in the alternative for lack of due diligence or speedy trial violation. If this motion is not allowed to be filed for argument, then Defendant requests it be entered as an offer of proof.

                                                                        Respectfully Submitted,

                                                                        _______________________

                                                                        Linda Shelton, Pro Se

 

Linda Lorincz Shelton, Ph.D., M.D.

Pro Se Defendant

 

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.

                                                                        __________________________

                                                                        Linda Shelton, Pro Se

 

Dated: August 4, 2008

[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

 

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

 

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

 

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

 

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

 

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

 

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id.

 

 

 

 


October 25, 2008

Defendant Arrested for Pretending to be “Counsel” [Attorney Code 99500 = Pro Se Counsel]


In C[r]ook County Circuit Court, Dishonorable Judge Thomas Donnelly and the C[r]ook County State’s Attorney Devine have charged a pro se defendant with fraudulently presenting himself as an attorney because at the bottom of a pleading he wrote the attorney code 99500.  Court Clerk Dorothy Brown’s office uses this code to designate pro se counsel. The appearance form which is filed in every case in the Court’s Law Division specifically states that the “attorney code” for “pro se” = 99500. Someone needs to inform the judges about this. Divine and Donnelly should have their ignorant, incompetent faces plastered all over the press for this one.  When this case is resolved I’ll add to this post.

Please help Mr. Moore by writing and complaining to:
Hon. Timothy C. Evans
Chief Judge Circuit Court of Cook County
50 W. Washington, Rm 2600
Chicago, IL 60602

Hon. E. Kenneth Wright
Presiding Judge Municipal 1
Circuit Court of Cook County
50 W. Washington, Rm 1303
Chicago, IL 60602

States Attorney Richard Divine
Cook County States Attorney
50 W. Washington, Rm 500
Chicago, IL 60602

Please inform the press and urge them to cover this story! It proves how incompetent, corrupt, and unethical is our states attorney. It proves that he wastes government money harassing activists and whistle blowers such as myself and Mr. Moore.

October 21, 2008

More Outrageous Conduct Judge Maria Kuriakos Ciesil and Judge Angela Petrone


Linda Lorincz Shelton, Ph.D., M.D.

                                                                                                October 8, 2008

 

Honorable Judge E. Kenneth Wright, Jr.

Presiding Judge

First Municipal District

Circuit Court of Cook County

1303 Richard J Daley Center

50 W. Washington

Chicago, IL  60602

 

            IN RE: Outrageous and illegal conduct of Judge Maria Kuriakos Ciesil

 

Dear Honorable Judge Wright:

 

            She’s done it again and you failed to address my issues from previous complaints. Dishonorable J. Ciesil charged an acquaintance of mine, Mr XXX, with impersonating an attorney because he wrote on a pleading the attorney code 99500. Please inform DisHon. J. Ciesil that this number is the CLERK”S CODE FOR PRO SE COUNSEL! Please remove Ciesil from her misdemeanor courtroom and re-assign her to traffic court. Better yet! Remove her from the bench. Also be aware that Mr. XXX is a legal savant – in that he knows more law than any judge I know or attorney. His writings are excessively verbose, religious, and poorly formatted, but his knowledge is formidable. DisHon. J. Ciesil is an arrogant, incompetent, knee-jerk talk before thinking, stuck-on-herself, IDIOT!

 

Some one needs to tell her a judge is NOT omnipotent, a judge SHALL follow the law, a judge SHALL treat ALL litigants with RESPECT, raising bail from $1000 I-Bond on two cases to $25,000 D-Bond on two cases is EXCESSIVE –especially when it was totally unjustified, if a litigant brings up an issue which she may not be aware of like the number 99500, or the fact that my hearing on September 26, 2007 was scheduled at 10:00 a.m. and not 9:00 a.m., and that an attorney is an officer of the court and a judge SHALL NOT refuse to honor his word!

 

I will be filing 1401 Petitions in the cases that involved DisHon. J. Ciesil to dismiss my cases Nunc Pro Tunc as the judges refused to hear my motions to dismiss, and then later dismissed my cases by motion of State nolle prosequi. The nolle prosequi was based on a FRAUDULENT statement by the State that they enhanced my sentence on a felony conviction using these cases. I will also be filing, due to this fraud, a Petition for Adjudication of Criminal Contempt against the State’s Attorney and a Petition to Strike this fraudulent statement from the record. This fraudulent statement prevents me from filing a suit for unlawful arrest and malicious prosecution because it fraudulently makes it look like the case was NOT dismissed in my favor. A dismissal on my legitimate motions nunc pro tunc would solve this problem. If the court denies these petitions, they WILL be appealed to the IL Supreme Court and great publicity will follow.

 

I am aware that you have returned DisHon. J. Ciesil to the bench at 555 Harrison. BIG MISTAKE! She HAS NOT CHANGED!. Her arrogance and incompetence remains. SHE WILL RECUSE HERSELF ON MY PETITIONS. YOU WILL ACT APPROPRIATELY THIS TIME AND MAKE SURE THAT THE ORDERS TO TAKE ME INTO CUSTODY AND RAISE BAIL TO $25,000 X 2 FROM SEPT. 26, 2007 ARE STRICKEN AND VACATED AND THAT AN ORDER IS ISSUED TO THE CLERK TO RETURN THE $250 SHE RETAINED FROM THE BOND!

 

In addition, I am filing a 1401 Petition for the case from an arrest of me on October 10, 2007 where I was falsely arrested for trespass to state supported land when deputies at 555 Harrison said I bypassed security when entering the building. The video clearly shows me successfully going through security.  DisHon. J. Petrone REFUSED TO LOOK AT THE VIDEO! The Judge on the bench for my soon to be filed petition WILL VIEW THE VIDEO, VACATE THE DISMISSAL NOLLE PROSEQUI, HEAR MY MOTION TO DISMISS, AND DISMISS THE CASE NUNC PRO TUNC FOR LACK OF PROBABLE CAUSE.  Failure to act fairly and with justice as described will result in bad press and Complaints to the IL Supreme Court.

 

The judges in C[r]ook County make me PUKE!  WE WILL NO LONGER STAND FOR THIS INJUSTICE. A BARAGE OF LEGAL ACTIONS AND INTERNET POSTINGS ARE INEVITABLE UNLESS WE OBTAIN JUST REMEDIES TO OUR GRIEVANCES!  I am also in discussions with the U.S. Attorney’s Office. The sum total of this misconduct, along with the misconduct of DisHon. J. Maddux in illegally denying indigency petitions and in presiding over the illegal black line system where cases are DWP without legal notice and where Law Division cases are assigned to two judges simultaneously without legal authority, in our opinion now arises to the level of federal felony conspiracy to violate rights under color of law. This HAS TO BE EXPOSED TO THE PUBLIC AND PROSECUTED BY THE FEDS.

 

            I’ve started a new Internet Blog – IllinoisCorruption.blogspot.com. She will be prominently profiled in great detail under the category “Corrupt Judges”, as I have already posted her misconduct on a web site “Rumor Mill News Agency Reading Room” under the title: “Corrupt, Incompetent, Wacko, C[r]ook County Circuit Court Judges.” If you want expanded publicity for these kind of judges in Illinois and your refusal to deal with them appropriately, then do nothing and I will act not only in the press, but with Supreme Court Complaints for Supervisory Action. The Pro Se Community/Club in Chicago is no longer willing to stand by and watch the result of the “Myth of American Justice.”

 

            I always am willing to listen to reasonable options.  You as presiding judge have certain powers to discipline judges and force justice to prevail. Failure to do so is an administrative liability. I suggest that the judges in the misdemeanor courtroom at 555 Harrison and at Kedzie and Harrison recall my cases sue sponte and vacate their orders as outlined above. This may be a start to having a meeting of the minds. The case numbers of my cases are: 2007- 5-000072-01,   2007-1-206817-01,  2007-1-272967-01,  2007-5-000072-01, and 2006-1-221401-01. Some were not in Municipal 1.  ALL WERE UNLAWFUL ARRESTS, MALICIOUS PROSECUTIONS, WHERE POLICE LIED AND FALSIFIED RECORDS, AND WERE RETALIATORY FOR MY WHISTLE BLOWER ACTIVITES! As a handicapped individual, I was abused, beaten black and blue by bullies and sociopathic officers in the Sheriff’s and police departments, and medically neglected to the point of requiring medical care.

 

I now have one wrongful conviction for felony battery to an officer. My doctors testified that I am PHYSICALLY UNABLE to have committed the crime of kicking an officer in the chest due to my physical disabilities stemming from a congenital spinal cord injury and other illnesses. The gross judicial misconduct of DisHon. J. Kazmierski and the Nifong-like prosecutorial misconduct of SA Andrew Dalkin and John Maher will be exposed, has been posted on the Internet, will be in my book entitled “The Myth of American Justice” and is the basis of my appeal to overturn the verdict. I was sentenced to two years in IDOC and recently was released – an unconstitutional and illegal sentence by a malicious and dishonorable judge in violation of the U.S .Supreme Court decision in Cunningham v. California (2007) and Illinois Statutes. I was tortured in prison in the most unbelievable and sick ways. This will be exposed.

 

 My life has been destroyed. My health has been damaged. My family and patients have been irreparably harmed. I WILL BE VINDICATED, COMPENSATED, AND THE TRUE CRIMINALS (corrupt, arrogant, incompetent, negligent, and malicious government officials, police, judges, and prosecutors who have unclean hands) WILL BE BROUGHT TO JUSTICE. THIS IS GROSSLY UNCONSCIOUNABLE AND FOR THE COURTS TO CONDONE THIS IS AN OUTRAGE. Those of you who condone, or aid and abet this grotesque and unethical system WILL BE HELD ACCOUNTABLE TO THE PUBLIC, IN THE PRESS, AND IN THE COURTS! I and our group have endless patience, tenacity, skill, and resolve.

 

Please enjoy reading the Internet about corrupt Illinois judges:

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=105561

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=106578

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=106967

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=108546

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=108548

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=110067

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=110069

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=110070

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=110980

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=111013

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=111017

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=111038

 

http://www.rumormillnews.com/cgi-bin/forum.cgi?/noframe;read=123330

 

 

 

 

 

 

            Thank you for your consideration of these matters. I’m simply informing you so you cannot claim ignorance. I expect nothing from this criminal enterprise of which you are a player.

 

                       

                                                Sincerely with disgust and despair over this tyranny,

 

 

                                                Linda Lorincz Shelton, Ph.D., M.D.

 

Cc:

Chief Judge Evans

Cook County Commissioners

FBI

Posted and published on Internet

 

 

 

 

 

October 17, 2008

Lawless, Corrupt, Incompetent, Wacko C[r]ook County Judge Kuriakos Ciesil Jails Defendent for Being 40 min Early for Hearing


Despite the following letter to the presiding judge of Municipal 1 District of the Circuit Court of Cook County, the only action taken was to temporarilty re-assign Judge Ciesil. I will petition the court post-trial to vacate all her orders which were illegal and refund the 10% of the bond money held by the Clerk for costs after bond was refunded. I should not have to pay for the gross judicial misconduct of Dishonorable Judge Ciesel.

October 4, 2007 LETTER

Honorable Judge E. Kenneth Wright, Jr.
Presiding Judge
First Municipal District
Circuit Court of Cook County
1303 Richard J Daley Center
50 W. Washington
Chicago, IL 60602

IN RE: Outrageous and illegal conduct of Judge Maria Kuriaskos Ciesil

Dear Honorable Judge Wright:

I am writing to you to inform you of the inappropriate, unethical, and frankly lawless conduct of Judge Ciesil and ask for your immediate intervention by removing her from any duties on the bench involving defendants and reassigning her to a desk job until she is completely evaluated by you and perhaps the JIB. This should include a psychiatric examination because her behavior and rulings are so inappropriate and bizarre that it must be considered that she has a severe personality disorder making her unable to make fair judgments and causing her to boost her ego by irrational attacks against defendants and attorneys. If she is found not to be unfit for duty then, at the very least, you should order direct and constant supervision and tutoring by a senior judge for at least 3 months before she is allowed to return to the bench unsupervised.

I am a defendant in several misdemeanor cases as a result of retaliation against me by corrupt county and state officials, as well as a result of police brutality and unlawful arrests. In Branch 46, before Judge Sheehan, I was able without an attorney to have six (6) bogus cases dismissed against me. As you know, I at first was before Judge Ballard, who proved to have inappropriate conduct (being in great need of training on demeanor, the law, judicial procedure, etc.) and you have reassigned him elsewhere.

Judge Sheehan replaced Judge Ballard on my cases. She is an outstanding judge, who is intellectually honest, attempts to be unbiased and fair, does not show preference to the prosecution, treats defendants with respect assuming they are innocent until proven guilty, clearly follows the rulings of higher courts, takes a step back and does not make knee-jerk decisions when she is unsure of the law during a hearing, and has potential to be one of the finest judges on the bench in the Circuit Court of Cook County because her demeanor, actions, and ethics are of the highest judicial level, besides the fact that her IQ is clearly very high.

Then when Judge Sheehan was reassigned to juvenile court there has been a succession of judges on my remaining two cases in branch 46. One Judge, Kenneth Fletcher also proved to be unfortunately ignorant of the law and inappropriate. I wrote a motion for SOJ for cause and he recused himself.

Judge Katz replaced him and his conduct was very appropriate and judicial. All the judges have been ordering that my pretrial hearings be held at either 11:00 a.m. or 10:00 a.m., because I have brought up motions that are quite advanced legally, appropriate, and challenging to the court.

Almost every continuance was set for 10:00 a.m. or later. I have throughout all these cases always arrived early to court or on time except for several days where I was hospitalized. My attorney, J. Nicolas Albukerk (I have decided to allow donors to pay for an attorney on my remaining cases as my health has deteriorated and the stress of representing myself is now too much), instructed me to meet him at 9:30 a.m. outside courtroom 304 at 555 Harrison St. My attorney told me this court date was at the usual time and I should be outside the court by 9:30 to talk with him. On 9/26/07 I arrived in the area around 9:00 a.m. and was unable to find a parking space at a meter due to construction in the surrounding area. I therefore parked in the lot next to the courthouse. I avoid parking there because of financial difficulties and I don’t want to keep borrowing money to pay the parking fees. I cannot take public transportation due to my disabilities [severe reactions to perfumes and fumes]. I walk with a cane due to spinal problems.

I arrived in the courthouse around 9:15 a.m. and up to the courtroom at 9:20 a.m. There were no seats in the courtroom so I sat on the bench outside of court. There was a crowd outside the courtroom including about six CPD officers. I had a pleasant conversation with one of them. At about 9:40 a.m. Sgt. Rankus came out of the courtroom and asked me where was my attorney, that the “judge wanted to call my case.” I told her that he had two other cases in 401 and 404 and he told me to wait for him. She told me to go find him and I slowly walked to the fourth floor and was unable to find him. I arrived back at courtroom 304 about 5-10 minutes later and went in and sat on a bench in the gallery because a seat had opened up and Sgt. Rankus was telling everyone to come into the courtroom.

After several other cases were called, my case was called and I stood up in the gallery and told the judge that Mr. Albukerk was involved in several other cases upstairs and told me to ask for the judge to hold my case until he arrived. Judge Ciesil very firmly told me to come stand before the bench. I did that. Then she took a paper out of one of the files and announced that she had issued an arrest warrant because I “was late” and told the Sheriff to execute the warrant. She raised my bail on each of the two cases from a $1,000 I-Bond to $25,000 D-Bond (total of $50,000 D-Bond)! This is an outrageous and unconstitutional excessive bail, especially for a disabled, indigent person!

I was stunned. She didn’t want to listen to a word I said and was very rude. She did not ask for any explanation or attempt to discuss the issue. I rapidly and frantically told her that my hearing was not scheduled until 10:00 a.m. and that I was not late, while the deputies were trying to drag me to the lock-up. I told her I arrived at 9:20 a.m. and had a conversation with a CPD officer in the hall [these 6 or so officers were seated in the courtroom in the front row of seats] as the courtroom had no seats available. I told her Sgt. Rankus had told me to find my attorney. I pleaded with the CPD officers and Sgt. Rankus to speak up and they remained silent. The judge was OBLIGATED to question the officers, read the file, which details that almost every other court date started at 10:00 a.m. or later. Instead she yelled that her court starts at 9:00 a.m. and that she had issued the warrant at 9:05 a.m. because I was “late”. She made NO EFFORT to read the previous file orders or to contact Judge Katz.

I was taken to the lock-up and not allowed to use medication. I have been fighting a virus for a week and asthma attacks that are not well controlled. I had been in the emergency room at Mt. Sinai Hospital all day on 9/21/07 with a severe asthma attack. I then went into an asthma attack and the deputies called an ambulance and I was taken to the U. of I. ER in custody and remained there under treatment until about 5:00 p.m., when I was returned to 555 Harrison lock-up and then transported to CCDOC.

My attorney arrived as I was being transported by the paramedics out of the courthouse, in custody, accompanied by several deputies, fully restrained [in a wheelchair]. I was released on bond from the jail at 3:00 a.m. and immediately, at the exit to the CCDOC had someone call an ambulance, which took me back to the hospital because I was so ill. I was unable to attend the hearing ordered by Judge Ciesil the next day, 9/27/07 at 9:00 a.m. because I had to be hospitalized and was released from the hospital on 10/2/07. My attorney has written a motion for Substitution of Judge for Cause which is attached and was filed the next day when he appeared on my behalf before Judge Ciesil.

Mr. Albukerk, my attorney, told me that after I was removed by paramedics as he arrived at court, Judge Ciesil refused to read the court file to see that the other dates were at 10:00 a.m. or later, so he read them into the record. He said the judge refused to quash the warrant and threatened him with contempt. He said he stepped back from the bench, put his hands behind his back and stated firmly to her that he was fully prepared to be taken into custody if the Judge thought that pointing out the truth and making arguments constituted contempt.

Please contact Mr. Albukerk at 773 847-2600 for further details. He told me that on 9/27/07 Judge Ciesil refused to transfer the case to you and insisted she would do nothing until I appeared in her courtroom, setting the next status date for 10/24/07 at 9:00 a.m. Judge Ciesil’s interaction with Mr. Albukerk is so unbelievable and outrageous that you cannot ignore it. Mr. Albukerk is writing an amended SOJ for cause motion, to include a lot more of what happened and it is all too astonishing to explain indirectly. Please get the facts directly form Mr. Albukerk and from the transcripts, which he has ordered and should be available shortly.

Mr. Albukerk also stated to me that Judge Ciesil used also as an excuse to issue the arrest warrant that I had refused to cooperate with a limited BCX [mental fitness exam] ordered. When Dr. Lourgos of FCS told me to sit in a back corner behind a table in a small interview room, I refused to do so and reminded him he was under written orders of Judge Sheehan to accommodate my disabilities [flashbacks of being attacked induced by small rooms] and he replied that he didn’t have to follow that order. I asked to sit by the door or to be interviewed in a larger room and he then said “the interview is over, leave.”

Please note the limited BCX was ordered upon MY request in a motion that I had filed for a forensic clinical exam for the issue of temporary insanity during the alleged “crime” possibly resulting from post-traumatic stress disorder – see attached motion. As temporary insanity was a possible defense because I have a lack of memory of some of this incident where I am alleged to have battered a lock-up aide by “kicking her” it was necessary to determine if temporary insanity due to a flashback related to a post-traumatic-stress disorder from which I suffer occurred at the time of the alleged “crime.” This flashback was induced by an illegal attack on me by a lock-up aide during this incident – see motion.

Judge Ciesil said that the report from FCS said I refused to cooperate with the exam. Judge Ciesil should know that statutes state that a defendant may choose to refuse to answer questions and bail cannot be changed or revoked due to this refusal.

725 ILCS 5/104‑14

       (c) The court shall advise the defendant of the limitations on the use of any statements made or information gathered in the course of the fitness examination or subsequent treatment as provided in this Section. It shall also advise him that he may refuse to cooperate with the person conducting the examination, but that his refusal may be admissible into evidence on the issue of his mental or physical condition.
Mr. Albukerk pointed out that I refused to cooperate because Dr. Lourgos from FCS refused to obey Judge Sheehan’s order to accommodate my disability (see order in file) by allowing me to sit by the door in a small room or interviewing me in a large room with a window. Mr. Albukerk read this order into the record and Judge Ciesil stated “that’s not my understanding.” I am unable to tolerate discussions of the life-threatening and terrifying incidents causing the flashbacks except with these accommodations and end up becoming out of touch with reality, unresponsive, frozen, crying, with a look of terror on my face, often frantically hiding under a table or cowering against a wall.

Please replace her immediately as the judge in that courtroom and quash the arrest warrant, expunge the warrant, and order that the entire $5,000 bond be immediately returned. Judge Ciesil’s order for a warrant and increase in bail is null and void due to judicial error and outrageous conduct.

I and my attorney are initiating ALL appropriate legal actions in response to this outrage and lawlessness with the Illinois Appellate Court, the JIB, and if necessary with the press.

Please respond to this letter ASAP, if not to me to my attorney. Judge Ciesil has illegally harmed me in ways that are too upsetting for me to describe – other than to say I was attacked by a correctional officer after being taken into custody and medically neglected at the CCDOC resulting in hospitalization from the moment I was released on 9/27/07 to 10/2/07 and my health has been damaged. Please contact Mr. Albukerk for details. I have been under treatment by a psychiatrist to help diminish the symptoms of PTSD.

I REFUSE TO APPEAR IN COURTROOM 304 AGAIN UNTIL THIS MENTALLY UNSTABLE, UNETHICAL, LAWLESS, AND DANGEROUS JUDGE IS REPLACED! I will come to court on 10/24/07 but will remain seated outside the courtroom unless I see that there is a different judge on the bench. You may consider this contempt. I CONSIDER THIS MY CIVIC PATRIOTIC DUTY, LIKE THE FOUNDERS OF OUR COUNTRY, TO STAND AGAINST TYRANNY. Judge Ciesil has brought the court into disrepute and is unethically filling up the jail with unfortunate defendants who are five minutes late and have good excuses! Judge Ciesil made knee-jerk, rash, and unethical decisions without reading the file pleadings, orders, or attempting to verify anything. She clearly is biased and assumes all defendants are worthless scum who should be slammed.

Sincerely with utter despair over this tyranny and with utter determination to fight it,

Linda Lorincz Shelton, Ph.D., M.D.

Cc: Chief Judge Evans

Cook County Commissioners

Posted and published on Internet

Attachment:
Mr. Albukerk’s Motion for SOJ for Cause
Pro Se Motion for Forensic Clinical Exam

With reasonable men, I will reason;
with honest men, I will plead;
but to tyrants, I will give no
quarter, nor waste arguments where
they will certainly be lost.

William Lloyd Garrison

In a time of deceit, telling the truth is a revolutionary act.

George Orwell

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
MUNICIPAL DEPARTMENT, FIRST MUNICIPAL DISTRICT,
CRIMINAL SECTION

PEOPLE OF THE STATE OF ILLINOIS Plaintiff V. LINDA SHELTON, Defendant, Case No 06-221401, Honorable Colleen Sheehan Presiding

MOTION FOR FORENSIC CLINICAL EXAM

NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully requests that this court order a forensic clinical exam of defendant concerning state of mind during alleged act and in support of this motion states as follows:
1. Defendant was arrested for disorderly conduct on March 4, 2006 [charges later dismissed] and brought to the 1st District Woman’s lock-up for processing.
2. As she was being released on a personal recognizance bond she was brought out of a cell to her possession, sealed in plastic bags on a table.
3. [Chicago Police Department] Detention Aide Shell ripped open the bags, when defendant was too weak to do so and told her to organize her possessions.
4. As defendant organized her possessions back into her briefcase she noticed her bottle of prednisone, prescribed by a physician. She takes an extra dose of this medication when stressed due to a relative steroid deficiency to prevent an asthma attack and to prevent complications of neurocardiogenic syncope.
5. Defendant opened her bottle and attempted to take a dose of medication.
6. Detention Aide Shell then violently grabbed defendant and body slammed her against the table causing contusions and yelling that she was not allowed to take any medication. Several other aides and/or officers ran at defendant and aided and abetted this felony attack on the handicapped defendant.
7. This caused defendant to attempt to pull away in self-defense and struggle while she yelled to stop assaulting her.
8. Then defendant went into a flashback due to her illness post-traumatic-stress disorder.
9. This illness has resulted from several previous attacks on her by officers at the First District causing injuries and great fear.
10. Defendant remained in this altered state of consciousness and next found herself being dragged to a cell and then beaten in a cell by a female aide or officer. Defendant is unable to remember much of the incident when she was in an altered state of consciousness due to the PTSD.
11. Defendant will use the defenses of self-defense, temporary insanity and outrageous government conduct (due to the history of repeated false arrests, beatings and medical neglect by First District Chicago Police).
12. Defendant is indigent and requires an exam by a forensic psychiatrist regarding the defense of temporary insanity.
WHEREFORE, Defendant Pro Se, respectfully requests this honorable court to
order a psychiatric exam of defendant by Forensic Clinical Services regarding the issue of temporary insanity during this alleged act.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.

Dated: October 17, 2006

Respectfully submitted,

Linda L. Shelton

Pro Se Defendant

The Silver is the New Black Theme. Create a free website or blog at WordPress.com.

Follow

Get every new post delivered to your Inbox.

Join 590 other followers

%d bloggers like this: