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!

December 9, 2011

Time for Fourth branch of government to clean up corrupt Cook County Courts


When the British government acted like dictators and ignored the laws we had the Boston Tea Party and then the revolutionary war.

 

It is time for a new awakening of the Fourth branch of government – this time to clean up the courts. It is past time to talk the talk -we must walk the walk -no fear – just act! When the judge violates the law – file everything possible in state and federal court (complaint for supervisory order; complaint for mandamus; Section 1983 federal civil rights suit for injunctive relief – justices have immunity from suits for monetary damages but not from suits for injunctive relief or mandamus; Attorney Regulatory Commission Complaint; Judicial Inquiry Board Complaint; Judicial Council complaints; complain to the press; complain to officials in charge of the County or State; complain to your representatives and senators; make a request for impeachment to the speaker of the house; complain to the press, put ALL details of your case on the Internet.

The Declaration of Independence states:

      We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our right to justice is not something that the judiciary should play with. Our justice system is not a tool of self serving lawyers to use to allow lawyers to take advantage of the misfortunate and victimize them. Our courts are to serve the people and not as a profit center to protect the incomes of lawyers. We the people hereby give notice to the judiciary that you are acting in contempt of the people and that you will refrain from continuing to do so or face the consequences.

For more details see this link: http://www.perkel.com/politics/issues/fourth.htm

October 3, 2011

The Big Divorce Book – little known Illinois and Federal Divorce laws


FOR  COMPLETE COPY WITH SUMMARY OF THE LAWS PERTAINING TO CHILD SUPPORT FOR ILLINOIS CONTACT LINDA SHELTON AT picepil@aol.com – IT WILL BE E-MAILED TO YOU FOR A CONTRIBUTION TO COVER THE COST OF COPYING, PRODUCING, AND MAILING THIS 56 PAGE DOCUMENT  - there are no guarantees as to completeness or accuracy

ILLINOIS

DIVORCE BIG BOOK
ILLINOIS AND FEDERAL STATUTES
REGARDING CHILD SUPPORT

AN EDUCATIONAL PUBLICATION BY

STOP ILLINOIS CORRUPTION

(A PUBLIC SERVICE CLUB)

EDITED BY

DAVID BAMBIC and DR. LINDA SHELTON

Copyright 2011

November 4, 2011

NOTE: Interpretation of Law in Table of Contents has been done by paralegals and lay persons and is not guaranteed as to its accuracy – Please verify any interpretation of law by a licensed attorney – This is the opinion and belief of editors only and not meant to be a definitive interpretation of the law or legal advice – Use this interpretation at your own risk

NOTE: These laws are applicable the moment an obligee (non-custodial parent) is placed into the State Disbursement Unit (in Illinois Department of Healthcare and Family Services [HFS]) for collection and distribution of child support and are available to ALL PARENTS in divorce actions even if they are NOT on public assistance (Public Aid), upon application by either parent, whereupon the Family Court loses jurisdiction to investigate and hear applications for change in child support unless the parents disagree with the recommendation of the HFS Child Support Unit Administrative Law Court (ALC), after the ALC investigates financial circumstances, holds a hearing and makes a recommendation to the parties. Then the parties may go back to the Family Court Judge (Trial Judge) for review of recommendations, evidentiary hearing, and decision on change in child support.

NOTE: All parents may apply to be supervised by the SDU and ALC in the Child Support Services Division (CS) of HFS. Find the address of your local office for the Illinois Child Support Unit in the Department of Healthcare and Family Services at their web site:

TABLE OF CONTENTS FOR DIVORCE BIG BOOK

Note that these laws were written to be in compliance with federal codes pertaining to Social Security Title IV – 42 U.S.C. § 401 et seq. & amendments

page

1. Illinois Marriage and Dissolution of Marriage Act – 750 ILCS 5/506 Representation of child………………………………………………..…. 1-2

“The child representative shall not render an opinion, recommendation, or report to the court . . . but shall offer evidence-based [ NOTE NOT HEARSAY] legal argument. The child representative shall disclose the position as to what the child representative intends to advocate in a pre-trial memorandum that shall be served upon counsel of record prior to the trial. The position disclosed in the pre-trial memorandum shall not be considered evidence.” ……………………………………………………………………………………………………………………. 1

“Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90 – day period thereafter during the course of his or her representation , a detailed invoice for services rendered with a copy being sent to each party.”…………………………………………………………………………………………………………………………………………………………………………. 2

2. “Unified Child Support Services Act” 750 ILCS 24 et seq. …………………………………………………………………………………………….……… 3-6

Plan must be submitted by County State’s Attorney to the [Illinois] Department of Healthcare and Family Services (“DFS”) – Section 10 ………………………………………………………………………………………………………………………………………………………………………………….. 3

“Components of a Unified Child Support Services Program” 750 ILCS 24/15……………………………………………………………………..…..…… 4-5

“ (1) Accepting applications for child support services from private Parties or referrals from any state agency [Court]”……………………… 4

“(7) Obtaining identified cases that have moved into non-compliance With obligations [arrears] . . . . “……………………………………….. 4

“(16) Marketing the Program within the county in which it is operating so that potential applicants learn about child support services offered.”………………………………………………………………………………………………………………………………………………………………………………. 5

“Child Support Program Responsibilities” – 750 ILCS 24/35 ……………………………………………………………….………………………………..… 5-6

”Operation of a statewide toll free telephone” – [for the public to obtain information even if they are not eligible for public aid]……… 5

“(2) Management and supervision of the State Disbursement Unit” By the DFS………………………………………….………………………………. 6

3. “Expedited Child Support Act of 1990” – 750 ILCS 25 et seq……………………….……………………………………………………………..………… 7-13

“Purpose” 750 ILCS 25/2 “. . modification of child support orders” ……..…………..………………………………………………………………………. 7

“Establishment of the Expedited Child Support System” 750 ILCS 25/4………….………………………………………………………………………… 8

“(1) …The System shall be available to all participants in the IV-D program, and may be made available to all persons, regardless of participation in the IV-D program…” ……………….………………………………………………………………………………………………………………..…… 8

“(2) Implementation . . . the Chief Judge of any Circuit shall develop and Submit to the [Illinois] Supreme Court a Plan for the creation of a System ………………………………………………………………………………………………………………………………………………………………………………. 8

“(5) Implementation. The System shall be administered by Supreme Court. The Supreme Court may delegate, to the Chief Judge of each Judicial Circuit, the day-to-day administration of the system in the County. . . .” ………………………………………………………………………… 8

4. “Actions subject to Expedited Child Support Hearings” – 750 ILCS 25/5 ………………….……………………………………………………………. 9

“(1) Petitions for child support and for medical support . . . for post-judgment dissolution and . . where child support or medical support was reserved or could not be ordered at the time of entry of the judgment . . .” ………………………………….………………………………………… 9

“(2) Petitions for modification of child support and medical support in post-judgment dissolution of marriage . . . “ ……………………… 9

“(4) Actions for the enforcement of any existing order for child support or medical support in post-judgment dissolution of marriage . . .”………………………………………………………………………………..………………………………………………………………………………………………………… 9

“(8) Actions brought pursuant to Article X of the Illinois Public Aid Code”……………………………………………………………………………….…. 9

“(b) Notwithstanding the provisions of subsection (a) of this Section, if the custodial parent is not a participant in the IV-D program and maintenance is in issue, the case shall be presented directly to the court.”……………………………………………………………………………..….… 9

“(c) . . . the System be available in pre-judgment proceedings for dissolution of marriage, declaration of invalidity of marriage and legal separation.”………..………………………………………………………………………………………………………………………………………………………..……….. 9

5. “Authority of hearing officers (administrative law judges” and “Expedited Child Support Hearings” 750 ILCS 25/6 & 7……………………………………………….………………..…………………………………………………………………………………………………………….………….… 9-11

Administrative law judges [hearing officers] are by statute authorized to subpoena and collect evidence, review evidence, and make recommendations to the court as to post-dissolution of marriage child support issues, modification of child support and health insurance issues for the children. The Trial Court by statute shall refer all child support and health insurance issues to the administrative law court. Only if the parents disagree with the administrative law judge’s recommendations shall the court intervene in coming up with its own decisions regarding child support and health insurance issues for the children post judgment for dissolution of marriage……………….. 9-11

“(b) in any case in which the Obligee is not participating in the IV-D program or has to apply to participate in the IV-D program, the Administrative Hearing Officer shall: (1) inform the Obligee of the existence of the IV-D program and provide applications on request; and (2) inform the Obligee and the Obligor of the option of requesting payment to be made through the Clerk of the Circuit court.” ………………………………………………………………………..…………………………….……………………………………………………………………………………. 10-11

6. “Authority retained by the [trial] court” 750 ILCS 25/8 ………………………………………………………………………………………………………… 12-13

Trail Court retains jurisdiction over all matters not related to child Support or health insurance [as well as parentage issues] for the children and must resolve issues when the parents disagree with

the recommendations of the administrative law judge ……………………………………………………….……………………………………………………… 12-13

7. “Judicial Hearings” 750 ILCS 25/9……………………………………………………….…………………………………………………………………………..….. 13

Defines under what circumstances the Trial Court regains Jurisdiction over post-judgment child support and child health Insurance support issues …………….…………………………………………………………………………………………………………………………………………………………. 13

8. “Child Support Payment Act” 750 ILCS 27 ………………………………………………………….………………………………………………………………… 14

Allows obligor to pay child support through a currency exchange……………..………………………………………………………………………………… 14

9. “Income Withholding for Support Act: 750 ILCS 28………………………………………………………………………………………………………….…. 15-24

Details the form of notice to be given to the Obligor (750 ILCS 28/20(b)- p. 17-18), by the Court Clerk and the payer by the SDU, Clerk or other public officer (750 ILCS 28/20(g) – p. 18, 750 ILCS 28/30 – p. 20), or Obligee if the SDU, Clerk or other public officer is not Ordered to be involved in support payments supervision or providing notice to payer (750 ILCS 28/20(b)&(g) – p.18); details how to deal with delinquency and how to penalize payers who refuse to withhold……………………………………………………………………………………………………………………………………………………………………………… 15-24

10. “Illinois Public Aid Code” 305 ILCS 5, “Determination and Enforcement of Support Responsibility of Relatives” 305 ILCS 5/Article X………………………………………………………………………………………………………………………………………………………………………………………… 25-49

“The Department of HFS shall cause to be published and distributed publications reasonably calculated to inform the public that individuals who are not recipients or applicants for public aid under this Code are eligible for the child support enforcement services under this Article X. Such publications shall set forth the an explanation, in plain language, that the child support enforcement services program is independent of any public and aid program under the Code and that the receiving of child support enforcement services in no way implies that the person receiving such services is receiving public aid.”.…………………………………………………..………………………. 25-26

“Access to records” 305 ILCS 5/10-9.5……………………………………..………………………………………………………………………………………….. 32

Mandates that both parents have access to all records from the Clerk, SDU, and HFS, except if there is an order of protection hiding an address or phone number, then that Address or phone number may not be revealed……………………………………………………………….. 32

“Information to State Case Registry” 305 ILCS 5/10-10.5 …………………………………………………………………………………………………..… 37-39

Establishes a section in the Department of HFS, Public Aid Division that maintains all records of child support Payment and enforcement, and requires that both parents keep the Department informed of address changes……………………………………………… 37-39

“State Disbursement Unit” 305 ILCS 5/10-26…………………………………………………………………………………………………………………..….. 46-47

Establishes the SDU under the supervision of the Illinois HFS which is authorized to accept and disburse child support payments as well as to inform payers of withholding orders and penalties for failure to comply ………………………………………………………………… 46-47

“Notice of child support enforcement services” 305 ILCS 5/10-28………………………………………………………………………………………… 49

Provides that the SDU may notify the Obligor and payer of its services, as well as other parties……………………………………………….. 49

11. “Title III, Consumer Protection Act” Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR (Code of Federal Regulations) Part 870 regarding maximum payments that may be withheld under federal law from Obligor……………………………………………………………………………. 50-51

12. 15 USC § 1671 et seq. Federal Wage Garnishment Law (Title III of the Consumer Protection Act) & corresponding 29 CFR Part 870 ………………………………………………………………………………………………………………………………………………………………………….……………. 51-56

Mandates that when child support is an issue that federal and State taxes have priority over child support or other debts. Provides that child support has priority over other debts except for taxes. Provides that if the Obligor is not living with and supporting a spouse or child that no more than a total of 60% of net wages may be withheld from a paycheck and no more than 65% of net wages may be withheld from a paycheck if Obligor is more than 12 weeks in arrears ………………………………………………………………………..…………….………….. 52-54

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. 

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.

May 18, 2009

Black Line Trial Call – Judge Maddux’s Illegal Scheme to Quash Suits


Judge Maddux Violates Constitutional Rights – Dismisses Torts with Dual Court Assignment for Same Case – hidden “Black Line Trial Call” WITHOUT Notice to Litigant – RICO Violation?

 In the Circuit Court of Cook County Law Division Presiding Judge William D. Maddux has devised a system that has been in place for several years that serves to quash cases primarily of pro se and indigent plaintiffs  by “dismissing for want of prosecution” (“DWP”) without notice in violation of Illinois Supreme Court Rules. Judge Maddux appears to suffer from arrogance, a controlling obsessive-compulsive character where he must micro-manage as many aspects of all cases in his division as possible, narcissism in that he must be involved in every case and grandiose delusions in that he must boost his self-esteem by controlling others in all cases – even to the point of denying civil rights and the law.

 This scheme involves assigning each case to two parallel courts. The first is the motion judge and then trial judge. The second is the “Black Line Trial Call.” Litigants are not informed or given notice about the “Black Line Trial Call.”  The second parallel court hearings are used to cause DWP without notice.

 This scheme that he devised purportedly to move cases along faster, but which actually denies the First Amendment right to redress of grievances, amounts to a RICO violation. Judge Maddux is enriching the courts and clerk’s office or County of Cook by taking money for filing fees and then illegally quashing the cases by DWP in clear violation of law. This makes the Cook County Circuit Court Law Division and the Cook County Circuit Court Clerk’s Office a criminal enterprise used by Judge Maddux, with approval of Chief Judge Timothy Evans and Cook County Circuit Court Clerk Dorothy Brown, essentially influencing this criminal enterprise by influencing through racketeering the outcome of every case in the Law Division. The crimes are fraud in that the Circuit Court appears to permit a person redress of grievances and accepts their filing fee, but instead DWP without notice in an unconstitutional scheme. This is also felony violation of civil rights under color of law and conspiracy to violate civil rights under color of law. As the mails are used in this scheme to inform the plaintiffs that their cases have been dismissed this is also mail fraud. Finally, this is also theft of honest services, as courts are supposed to uphold the constitution, not purposely violate it.

 The scheme or conspiracy to wholesale deny civil rights under color of law goes as follows:

 The plaintiff files a lawsuit (tort) for damages and pays the filing fee thinking that they will obtain redress of grievances and have a just chance to present their case to court and be made whole by awarding of damages.

 The case is assigned by a random system to a motion judge. If it finishes all pre-trial matters, it is then assigned to a different judge for trial. (The ABA recently advised that a case should stay with the same judge from pre-trial through trial as a matter of best practice. The present system is a mess as the motion judges are often changed in the middle of cases and then the judge is totally unfamiliar with the previous motion judge’s rulings and time is wasted and rulings become unfair and confusing because of ignorance of the judge. The trial judges are then also unable to make appropriate rulings through ignorance of previous rulings and this impairs a fair hearing.)

 The case is also assigned to an 18 month or 24 month pre-trial “discovery” schedule for purposes of the “Black Line Call.” The plaintiff is NEVER told that the “Black Line Call” system exists and only find out about it by word of mouth, if they read the Circuit Court of Cook County web site in detail, or if they read the Cook County Circuit Court Clerk web site in detail, which contains a link to the Court web site and contains the “Black Line Case Docket”.  The majority of pro se litigants who are novices therefore do not know about this second court “system,” to which their case is also assigned.

 When the case reaches the 18 mo or 24 mo discovery schedule date, it is assigned to the last number on the “Black Line Call”, a list of cases. The cases are heard about thirty a day without any notice except publication in the Chicago Daily Law Bulletin and the case being listed on the Court Clerk’s “Black Line” computer docket. A specific date is NOT given for the hearing, but rather the litigants must guess at the date that the case will move from the end of the line of about 300 cases to the first thirty cases (“above the Black Line”), or read the Chicago Daily Law Bulletin or court computer docket every day after 4:00 p.m.

 The plaintiff must appear on that date at 9:00 a.m. or the case is DWP. No continuances of any kind are allowed. No accommodations are made for the disabled or pro se litigants of any kind. Then when the case is DWP, the plaintiff receives a postcard in the mail from the court that their case has been dismissed and the motion judge will refuse to hear it any or receive any motions. The litigant will have to make a motion to vacate the DWP before Judge Maddux within 30 days or make a 1401 petition before Judge Maddux for the case to be re-instated. Judge Maddux refuses to re-instate cases for unknown reasons.

 For Judge Maddux’s Law Division rules and orders related to the “Black Line Trial Call: see:

 http://www.cookcountycourt.org/divisions/index.html

 Illinois Supreme Court Rules 104 and 105 require proper notice be given to a litigant before a motion, including a motion of the court under the “Black Line Trial System,” can be heard by the court. Therefore, since all orders for DWP by Judge Maddux or his designee judge were done without proper notice to the litigant, these orders are all null and void. The court fails to make a motion or affidavit or order to hear the case in a hearing before a judge other than the judge assigned for the case and fails to specify that this hearing is ordered by the court, for the purpose of setting a trial date and ordering discovery be finished or closed or extended. A case cannot constitutionally be DWP for failure to appear at a “Black Line” hearing when the plaintiff was not legally notified of the hearing per the following Supreme Court Rules and Illinois Statutes:

 “Rule 104. Service of Pleadings and Other Papers; Filing

(a) Delivery of Copy of Complaint. Every copy of a summons used in making service shall have attached thereto a copy of the complaint, which shall be furnished by plaintiff.

(b) Filing of Papers and Proof of Service. Pleadings subsequent to the complaint, written motions, and other papers required to be filed shall be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead.

(c) Excusing Service. For good cause shown on ex parte application, the court or any judge thereof may excuse the delivery or service of any complaint, pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish a copy promptly and without charge to any party requesting it.

(d) Failure to Serve Copies. Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy from the clerk and the court shall order the offending party to reimburse the aggrieved party for the expense thereof.

Rule 105. Additional Relief Against Parties in Default–Notice

(a) Notice–Form and Contents. If new or additional relief, whether by amendment, counterclaim, or otherwise, is sought against a party not entitled to notice under Rule 104, notice shall be given him as herein provided. The notice shall be captioned with the case name and number and shall be directed to the party. It shall state that a pleading seeking new or additional relief against him has been filed and that a judgment by default may be taken against him for the new or additional relief unless he files an answer or otherwise files an appearance in the office of the clerk of the court within 30 days after service, receipt by certified or registered mail, or the first publication of the notice, as the case may be, exclusive of the day of service, receipt or first publication. Except in case of publication, a copy of the new or amended pleading shall be attached to the notice, unless excused by the court for good cause shown on ex parte application.

(b) Service. The notice may be served by any of the following methods:

(1) By any method provided by law for service of summons, either within or without this State. Service may be made by an officer or by any person over 18 years of age not a party to the action. Proof of service by an officer may be made by return as in the case of a summons. Otherwise proof of service shall be made by affidavit of the server, stating the time, manner, and place of service. The court may consider the affidavit and any other competent proofs in determining whether service has been properly made.

(2) By prepaid certified or registered mail addressed to the party, return receipt requested, showing to whom delivered and the date and address of delivery. The notice shall be sent “restricted delivery” when service is directed to a natural person. Service is not complete until the notice is received by the defendant, and the registry receipt is prima facie evidence thereof.

(3) By publication, upon the filing of an affidavit as required for publication of notice of pendency of the action in the manner of but limited to the cases provided for, and with like effect as, publication of notice of pendency of the action.”

This “Black Line Trial Call” invented and administrated by Judge Maddux in violation of Supreme Court Rules and due process therefore amounts simply to a scheme to quash as many cases as possible without due process by having a dual court system, of which the litigant is not informed about, nor is given notice of hearings. In my opinion this amounts to a RICO violation, in that Judge Maddux with the agreement of Chief Judge Evans, Clerk Dorothy Brown, and Sheriff Dart use the Circuit Court of Cook County and its arm the Clerk’s office as a criminal enterprise to enrich the Clerk’s Office and the Sheriff’s Office by violating laws and depriving pro se, primarily indigent plaintiffs of their constitutional right to redress of grievances and due process. The laws violated are:

1)                  Constitutional right to redress of grievances;

2)                  Due Process under the Fifth and Fourteenth Amendments;

3)                  Violation of Civil Rights Under Color of Law;

4)                  Conspiracy to Violate Civil Rights Under Color of Law;

5)                  Theft of Honest Services by Judge Maddux and Clerk Dorothy Brown (Acting as a judge yet denying due process and violating constitutional rights, collecting fees knowing that due process will be denied and mailing a postcard verifying that due process was denied);

6)                  Obstruction of Justice (interfering with First Amendment rights to redress of grievances);

7)                  Mail Fraud (mailing a postcard to litigant that the case is dismissed [yet the dismissal is void as due process is denied]);

8)                  Extortion (of original filing fee and fees for service to Sheriff with no intention to actually give plaintiff due process);

9)                  Extorting money by denying due process in order to enrich a criminal enterprise including the Circuit Court of Cook County through the Office of the Clerk of the Court – filing fees; and through the Office of the Cook County Sheriff – service fees (all fees fraudulently obtained as the “Black Line Trial Call” system or scheme sets up the majority of pro se plaintiffs to have their cases dismissed without notice or due process).

The FBI and United States Attorney should be investigating this, should prosecute the offenders, and should restore constitutional rights to redress of grievances and due process to the citizens of Cook County.

December 6, 2008

Right to Participate in Voir Dire, Side Bars, and Faretta Rules about Self-Representation – Rhode Island Judge Violates Sixth Amendment Right to Counsel and Faretta – RI Supreme Court Upholds Decision


 

Legal, Judicial And Prosecutorial Misconduct And Ethics And Civil Rights Violations Experienced By Christopher Thornton In Rhode Island Courts.

Below you will find a published dissenting decision by Rhode Island Supreme Court Justice Flanders that states the Rhode Island Superior Court violated Christopher Thornton’s Sixth Amendment rights in 3 specific ways. 

“RI Supreme Court #99-376-CA, 98-263-CA (W1/96-595A)  Flanders, Justice, dissenting.  I respectfully dissent from the Court’s opinion. I believe that the Superior Court violated this pro se defendant’s Sixth Amendment rights in three specific ways.

First, both state and federal precedent required the Superior Court to conduct at least some type of a Faretta31’ inquiry with this indigent defendant after it allowed his first attorney to withdraw, appointed another attorney to represent him, and told him it would not entertain a similar motion to remove his second attorney if he could not get along with that lawyer. This error — which resulted in the defendant’s representing himself at trial against capital felony charges — cannot be rendered harmless by seizing upon this unrepresented defendant’s later admissions and using them to conclude that, notwithstanding the court’s error in failing to undertake a Faretta inquiry, he must be deemed to have knowingly and intelligently waived his right to counsel.   See related section.

Second, the trial justice violated the defendant’s constitutionally protected right to participate in juror voir dire, including sidebars during which the court conducted individual juror voir dire, by effectively precluding him from being present when this voir dire occurred.    See related section.

Third, the trial justice violated the defendant’s Sixth Amendment rights when he barred him from participating in various substantive chambers conferences that occurred throughout the trial. In my judgment, these errors constituted significant constitutional violations that require this Court to vacate the defendant’s conviction and remand this case for a new trial in the Superior Court.   See related section.”

For full dissenting opinion see: http://caught.net/cases/thornton.htm

December 5, 2008

Fitness Exams = BCX (Behavioral Clinical Exam) to Stand Trial and for Self-Representation


MEMORANDUM OF LAW CONCERNING FITNESS EXAMS

Non-Attorney and physician/scientist/civil rights activist/expert, Dr. Linda Shelton, respectfully offers to the court the following information 

  1. The due process clause of the fourteenth amendment prohibits the conviction and sentencing of a defendant who is not fit to stand trial. U.S. Const., amend. XIV; People v. Johnson, 206 Ill. 2d 348, 361, 794 N.E.2d 294, 303 (2002). In Illinois, a defendant is presumed fit to stand trial and is considered unfit only if his mental or physical condition prevents him from understanding the nature and purpose of the proceedings against him or assisting in his own defense. 725 ILCS 5/104-10 (West 2000); People v. Shum, 207 Ill. 2d 47, 57, 797 N.E.2d 609, 615-16 (2003). When a bona fide doubt as to defendant’s fitness to stand trial exists, the court must order a fitness hearing to resolve the question of fitness before the case proceeds any further. 725 ILCS 5/104-11(a) (West 2000); Johnson, 206 Ill. 2d at 361, 794 N.E.2d at 303; People v. Griffin, 178 Ill.2d 65, 79 227 Ill.Dec. 338, 687 N.E.2d 820 (1997). 
  1. A professional forensic psychiatric exam is not really necessary to determine fitness, but is necessary to determine if the defendant suffers from mental illness. Fitness and mental illness are two different issues and determination of such is not equivalent.  Fitness is determined by a judge; mental illness is diagnosed by a licensed physician or psychologist. A forensic exam is evidence that may be used in the fitness hearing to determine fitness by the trier of the facts, along with any other evidence produced by the defense, the state, or the court.
  1. There is no fixed sign, symptom, or behavior that mandates a determination of fitness. “The question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” People v. Eddmonds, 143 Ill. 2d 501, 518 (1991) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). Some doubt of a defendant’s fitness is not enough. People v. Walker, 262 Ill.App.3d 796, 803, 200 Ill.Dec 345, 635 N.E.2d 684 (1994).

No single factor in itself raises a bono fide doubt of a defendant’s fitness to stand trial; the fact that a defendant suffers a mental disturbance or requires psychiatric treatment such as psychotropic drugs does not necessarily raise a bona fide doubt. Walker, 262 Ill.App3d at 803, 200 Ill.Dec. 345, 635 N.E.2d 684; People v. Shum, 207 Ill. 2d 47, 59, 797 N.E.2d 609, 615-16 (2003); People v. Easley, 192 Ill. 2d 307, 322, 736 N.E.2d 975, 986 (2000) Even evidence of extreme disruptive behavior and a sociopathic personality does not compel the conclusion that a bona fide doubt exists as to a defendant’s fitness to stand trial. People v. Smith, 253 Ill.App.3d 948, 953, 192 Ill.Dec. 742, 625 N.E.2d 897 (1993) “Fitness speaks only to a person’s ability to function within the context of a trial. It does not refer to sanity or competence in other areas. A defendant can be fit for trial although his or her mind may be otherwise unsound.” Easley, 192 Ill. 2d at 320, 736 N.E.2d at 986.

  1. Court determinations of fitness are made by a court hearing and not by the

forensic examiner.

 

The ultimate decision as to a defendant’s fitness must be made by the trial court, not the experts. People v. Bilyew, 73 Ill.2d 294, 302 (1978)

 

The examiner’s report is merely evidence. The trier of fact at the fitness hearing decides its weight.   Fitness by statute and case law is determined by the judge, if jury is waved or the jury in a fitness hearing per 725 ILCS 5/104-11(c):

725 ILCS 5/104-11 (c) When a bona fide doubt of the defendant’s fitness has been raised, the burden of proving that the defendant is fit by a preponderance of the evidence and the burden of going forward with the evidence are on the State. However, the court may call its own witnesses and conduct its own inquiry.[emphasis added]

  1. A fitness order is NOT evidence of a bona fide doubt per the First District Illinois Appellate Court in People v. Hill, 345 Ill.App.3d 620, 803 N.E. 2d 138 (2003); People v Hanson, 2012 IL App (3d) 110210-U (2004)

.

[W]e find that the trial court’s decision to appoint an expert to examine a defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt as to the defendant’ fitness to stand trial has been raised. (Hill Id)

This overturned People v. Cleer, 328 Ill. App. 3d 428 (2002), where the court determined that the grant of a fitness examination implicitly demonstrated the trial judge’s bona fide doubt concerning defendant’s fitness for trial.

  1. [O]nce facts are brought to the attention of the trial court, either from observation of the defendant or the suggestion of counsel, that raise a bona fide doubt of the defendant’s fitness to stand trial, the trial court has a duty to hold a fitness hearing. People v. Brandon, 162 Ill.2d 450, 456, 205 Ill.Dec. 421, 643 N.E.2d 712, (1994); see 725 ILCS 5/104-11() (West 1996).
  1. Whether a bona fide doubt as to a defendant’s fitness has arisen is generally a matter within the discretion of the trial court. People v. Sandham, 174 Ill.2d 379, 382, 220 Ill.Dec. 611, 673 N.E.2d 1032 (1996). “[W]hether the doubt is ‘bona fide’ is relevant only to the initial determination to hold a fitness hearing.” (Emphasis in original.) People v Murphy 160 Ill.App.3d 781 at 783, 112 Ill.Dec. 295, 513 N.E.2d 904 (1987)” Brown, 252 Ill.App.3d at 383. “Whether a bona fide doubt of a defendant’s fitness exists involves a fact-specific inquiry. See Eddmonds, 143 Ill.2d at 518, 161 Ill.Dec. 306, 578 N.E.2d at 959 (1991), quoting Drope, 420 U.S. at 180, 95 S.Ct at 908, 43 L.Ed.2d at 118 (“there are no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated’”)” People v. M. Tapscott, 386 Ill.App.3d 1064, 899 N.E.2d 597, 326 Ill.De. 380 (2008).
  1. Once a bona fide doubt of defendant’s fitness to stand trial is raised, there is no longer a presumption of fitness. Murphy, 160 Ill.App.3d 781. “Only if, from an objective point of view, the circumstances raise a “bona fide doubt” – that is, “a real, substantial[,] and legitimate doubt” (People v. Eddmonds, 143 Ill.2d 501, 518, 161 Ill.Dec. 306, 578 N.E.2d 952, 959 (1991) – of the defendant’s fitness does the defendant have a right to a fitness hearing. 725 ILCS 5/104-11(a) (West 2002).”
  1. A Court may order a fitness exam (behavioral clinical exam = BCX) at the request of the state or the defense or if the court expresses a bona fide doubt of defendant’s fitness per 725 ILCS 5/104‑11. This bonafide doubt must be specific and not a general statement and must be expressed in open court on the record. It is not sufficient for a judge to state that a defendant’s behavior or writings suggest a fitness exam is needed. The defense attorney, prosecuting attorney, or judge must specify, in their pleading or on the record, the nature of the behavior or the details in the writings that suggest fitness is absent. General statements are not sufficient. If the defense attorney or prosecuting attorney move for a fitness exam, then appointment of an expert under this provision cannot be considered a conclusion concerning a bona fide doubt of defendant’s fitness but, rather, merely allows an expert to examine the defendant to determine if a bona fide doubt may be raised. (Hill, supra)
  1. 725 ILCS 5/104‑14(c) mandates that the Court inform the Defendant that he has a statutory right to refuse to answer questions at the BCX exam:

Use of Statements Made During Examination or Treatment.

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. [emphasis added]

  1. 725 ILCS 5/104‑13(d) mandates that the Court MAY not revoke bail if the Defendant is ordered to undergo a BCX exam in order to accomplish the exam:

Fitness Examination.

725 ILCS 5/104‑13 (d) Release on bail or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered.

  1. Therefore, defendants have a statutory right to refuse to answer questions at a BCX exam and this act does not permit the Court to revoke or alter bail for violation of the condition of bail to appear at a BCX exam and answer questions. The Court may hold the defendant in contempt only if they refuse to show up for the exam.
  1. The report of the fitness examination ordered from Forensic Clinical Services is due within 30 days of the date of the order per 725 ILCS 5/104‑15.
  1. If the court has expressed a bona fide doubt of fitness or if the evaluators report opines that the defendant is unfit, then the court must order a due process fitness hearing; but if a report says a defendant is fit and the judge agrees after a request for an exam by the defense or prosecutor, then the court is NOT obligated to hold a fitness hearing. People v. Hill, 345 Ill.App.3d 620, 803 N.E. 2d 138 (2003); People v Hanson, 2012 IL App (3d) 110210-U (2004) “To hold a fitness hearing, the court must first hear evidence raising a bona fide doubt of the defendant’s fitness. Eddmonds, 143 Ill.2d at 518, 161 Ill.Dec. 306, 578 N.E.2d at 959.
  1. The fitness hearing must be held within 45 days of receiving the report of the fitness exam, regardless of the results of the report per 725 ILCS 5/104‑16:

725 ILCS 5/104‑16 (a) The court shall conduct a hearing to determine the issue of the defendant’s fitness within 45 days of receipt of the final written report of the person or persons conducting the examination or upon conclusion of the matter then pending before it

  1. It is well settled in Illinois that where no bona fide doubt as to a defendant’s competency to stand trial exists, a psychiatric report shows defendant fit and the defendant moves for or acquiesces in the withdrawal of a petition requesting a fitness hearing, there is no abuse of discretion where the court fails to hold a fitness hearing sua sponte. Hill (Supra); People v. Hicks, 35 Ill. 2d 390, 394, 220 N.E.2d 461 (1966); People v. Mayhew, 18 Ill. App. 3d 483, 488, 309 N.E.2d 672 (1974).
  1. The details of the forensic examiner’s report have no bearing on scheduling the fitness hearing. A judge may not continue to re-order the BCX until he obtains a report of fitness or no fitness even if the defendant refuses to cooperate and the examiner reports he is unable to determine fitness, in order to delay a hearing. The hearing is a statutory right and delaying the hearing because the report says that the examiner cannot determine fitness due to failure to cooperate does NOT toll this statutory time period of 45 days after the report is received. A judge has no legal authority to mandate that the defendant must answer questions. [no case law available on this, but this is writer’s opinion based on case law as to plain language interpretation of a statute - Case law concerning plain language interpretation of law: The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent.  People v. Pack, 224 Ill.2d 144, 147, 308 Ill.Dec. 735, 862 N.E.2d 938 (2007).   The language of the statute is the best indication of legislative intent, and we give that language its plain and ordinary meaning.  Pack, 224 Ill.2d at 147, 308 Ill.Dec. 735, 862 N.E.2d 938.   We construe the statute as a whole and cannot view words or phrases in isolation but, rather, must consider them in light of other relevant provisions of the statute.  People v. Beachem, 229 Ill.2d 237, 243, 321 Ill.Dec. 793, 890 N.E.2d 515 (2008).]
  1. A defendant has a statutory right to continue to refuse to answer questions. 725 ILCS 5/104‑14(c)  In general if a defendant refuses to answer questions, it is futile to re-order the fitness exam. The result is that there will be no forensic examiner’s recommendation as to whether or not the defendant is fit. The fitness hearing will have to proceed without professional opinion based solely on other witnesses called by the court, which may include the transcript of statements made by the defendant and pleadings written by the defendant.

[T]he trial court’s decision to appoint an expert to examine a defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt as to the defendant’s fitness to stand trial has been raised. Hill 803 N.E. 2d 138, at 145.

  1. Courts may still determine fitness even though the forensic psychiatry examiner is unable to determine fitness based on defendant’s unwillingness to cooperate:

COURTS DETERMINE FITNESS BASED ON THREE FACTORS: the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion on the defendant’s competence to stand trial.  Hill 803 N.E. 2d 138, at 145. [emphasis added]

Although the . . . [the expert] was not able to “come to [a] definitive opinion in regards to defendant’s fitness to stand trial,” this failure was due to defendant’s lack of cooperation. Hill 803 N.E. 2d 138, at 145.

In Hill case the court concluded that the defendant was fit to stand trial. A previous, though not contemporously timely exam had determined defendant was mentally ill but fit to stand trial and the judge’s observations in court led him to conclude the defendant understood the players in the court and the charges against him.

While these reports provide some evidence of mental illness, they are insufficient to counter the several indications in the record that defendant understood and participated at trial . . . . [and] exhibited no irrational behavior.  Hill 803 N.E. 2d 138, at 146

  1. The Illinois Supreme Court has repeatedly held that when determining whether a bona fide doubt of defendant’s fitness exists, courts should consider the following factors: the defendant’s irrational behavior, the defendant’s demeanor at trial and any prior medical opinion on the defendant’s competence to stand trial. People v. Harris, 206 Ill.2d 293, 304, 276 Ill.Dec. 286, 794 N.E.2d 181, 190 (2002).
  1. Evidence presented at the fitness hearing may include a report from forensic clinical services, or from private psychiatrists and psychologists retained by either side. The report may state that the defendant is fit or unfit for trial and the examiners detailed reasoning and clinical judgment as to why he came to that conclusion, or may simply be a statement that the examiner was unable to make this determination at the exam because the defendant was unable or unwilling to cooperate with questions.
  1. As a previous medical director of a psychiatry group  practice, I recommend that during fitness exams that the defendant should have a right set in the statutes to have a tape recording, video recording, or silent witness present especially if they distrust the court-appointed examiner or have publicly criticized the court-appointed examiner,  who may be an employee of the county (especially if the defendant is mentally incompetent, youthful, or has been abused by police or medical staff in the  past and suffers from PTSD).

There is NOTHING in the American Psychiatric Association’s ethical standards or the Association of Psychiatry and the Law ethical standards that suggest universally that a silent witness or recording would interfere with the examiner’s ability to obtain an accurate examination.  Of course, in some situations a witness could be intimidating and that would interfere with the exam, but there are also instances, such as with a child, with a person with PTSD, with a person who is claustrophobic, or with a person who is mentally ill or mentally challenged that a person would be comforted and more likely to give accurate answers to the examiner if a family member, friend, minister, or their attorney is present or if there was a recording that they could show  to a neutral examiner not employed by the county if they disagree with the results of the examination.

The stated policy of the Cook County Circuit Court Forensic Examiner that witnesses universally interfere with exams has no basis in fact.

Unless this is done, the defendant will have no due process means of having the forensic examiner’s interview reviewed by other professionals for standard of care and accuracy.  The defendant would have no way of refuting a false mental health diagnosis made by an incompetent examiner outside the standard of care of the profession.  This would deny due process.

  1. The United States Supreme Court in Indiana v. Edwards (2008) went beyond Faretta and stated that even if a defendant is mentally fit to stand trial, the State may deny the defendant the right to self-representation on grounds that he is mentally not competent to represent himself IF HE WOULD BE DENIED A FAIR TRIAL. They stated that mental illness is not a unitary or static concept and that the trial judge must carefully consider this issue. Yet they set NO guidelines as to the definition of mental competency to self-representation and specifically rejected Indiana’s blanket bar on self-representation if the court finds the defendant cannot “communicate coherently.”
  1. This poses a dilemma for the court as the court must itself determine mental competency for self-representation without any guidelines at present.
  1. Regardless of the result of the forensic clinical exam and the examiner’s report, I recommend that the judge should question the defendant and have this on the record. Particularly with very intelligent and legally savvy defendants who refuse to answer questions at a fitness exam because they feel the fitness order was illegal and unjustified or because they disagree with the court’s dicta [U.S. Supreme Court dicta in Estelle v. Smith, 451 U.S. 454 (1981) that the defendant has no constitutional fifth amendment right to have a witness present during a fitness exam or a recording of the fitness exam], it is important for the judge to question the defendant on the record to verify fitness and competence for self-representation. The answers to these questions can then be utilized by the court in lieu of a professional’s fitness exam report to determine the issue of fitness, but not the issue of mental illness. A professional forensic psychiatric exam is not really necessary to determine fitness, but is necessary to determine if the defendant suffers from mental illness.

The questions should include the following:

1)    if the defendant is able to formulate questions logically that address specific issues related to his case (the judge could ask the defendant a hypothetical case about a crime and what a witness saw, asking the defendant to take notes, and then ask him what they would ask the witness on the stand),

2)    if the defendant understands the role of the players in the court,

3)    if the defendant understands the charges against him or what he is accused of,

4)    if the defendant understands the possible sentence and what the word sentence means,

5)    if the defendant understands the meaning or actual consequences of being sentenced (jail, loss of liberty, parole, not able to make phone calls or visit persons whenever they want) as well as what these consequences entail,

6)    if the defendant is oriented as to time, place, and situation (that he is in custody, on bail, in a certain place, city, and on a certain date and what that means),

7)    if the defendant expresses basic understanding of the concept of legal research and the significance of statutes, codes, and case law, as well as how to accomplish this while in custody or on bail (go to law library, use legal resources, talk with an attorney) and

8)    if the defendant is able to control his behavior and emotions so that he can effectively listen, take notes, and formulate questions including questions to a stand-by counsel regarding courtroom procedure.

If all of these issues are answered in the affirmative then the defendant should be considered fit for purposes of trial and competent for purposes of self-representation. If the defendant meets all these criteria but due to PTSD may have a flashback triggered with the questioning of a particular witness due to the topic discussed, the court has plenary power to allow a stand-by counsel to question that witness. There is to date no case barring this type of order.

  1. Unfortunately, courts are left to formulate criteria for mental competence for self-representation with the United States Supreme Court holding in abeyance further decisions upon the criteria for mental competence for self-representation until further cases reach the Court.

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 26, 2008

The Revolution Will Not Be Organized

Filed under: Civil Rights, Individual Rights — Tags: , , , , — Linda Shelton @ 3:10 pm

THE REVOLUTION WILL NOT BE ORGANIZED

This is a poem of immense depth and truth that I wish to share with all who read on this site!
It is from: http://therevolutionwillnotbeorganized.org/ . It’s author gave me permission to share it with you. Perhaps this will inspire others to walk the walk and not just talk the talk. Talk is cheap. Civil rights and justice are not! It may seem hopeless to fight city hall and the corruption in C[r]ook County and Illinois, but you are not alone. If South Africa can end Apartheid, the U.S. ended the war in Vietnam, and the Civil Rights Movement was successful, we can end corruption in C[r]ook County and Illinois. United We Stand, Divided We Fall. Speak up. Notify authorities. Network with others. Be a flea and complain to the hilt. Stand up and act against injustice. That is the reason for this blog! Good luck with your cases!
“The Revolution Will Not Be Organized”

The revolution will not be organized,
the revolution will not be organized.com,
the revolution will not be Yahoo Grouped, Meetuped,
downloaded, uploaded, QWERTY’d, or blogged.

The revolution will not be handled by webmasters,
think-tankers, authors of policy position papers,
authors of anti-policy position papers,
secretaries, executives, executive assistants,
insiders, whistle-blowers, informants, counter-informants,
committees or sub-committees.

Your neighbor with excellent leadership qualities
will not lead you into, through, or out of the revolution.
The revolution will not be inspired, instigated, managed
or controlled by him, her, or them.
The revolution will not be organized.

No matter if you eat at McDonald’s and can barely walk,
no matter if you drive an S.U.V. and rarely walk,
no matter if you were public school indoctrinated,
vaccinated, humiliated, ostracized, terrorized, minimized,
no matter if you live in a house owned by BofA,
no matter if you eat cat food, dog food,
Puppy Chow for your inner child,
no matter if you shop at Salvation Army, Saks, TJ Maxx,
when the Cold Hand of Power touches you,
it touches revolution.

They will come to chip you, rape you,
tell you you are theirs, imprison you in FEMA camps
because you spoke out,
because you doubted the official story,
because you looked with your own eyes,
spoke from your own heart.
They will come for you in black uniforms, black helmets,
swinging black batons, symbols of the New Authority,
and you will say,
“No, my children and I will not come with you.”

You will say no — not because Charlie Sheen
inspired you one night on FOX News
to look more closely at falling towers.
You will say no — not because Alex Jones
led you through the darkness with a bullhorn.
You will say no — not because Howard Zinn
handed you the Book of Truth on a silver platter.
You will say no because you are your own
star of truth shining the way.

At your unique hour, in the dark,
beneath a burning paper currency moon,
the Cold Hand of Power will touch you and revolt you.

At your unique hour,
when they come for you because you asked questions,
because you did not lower your eyes,
because you did not bow down,
at your unique hour,
in your unique circumstance,
you will find yourself in the grip of a courage
you have not known but which you are.
You will stand in front of black helmets with invisible faces,
and you will say,
“No, my children and I will not come with you.”

Daughters and sons of revolutionaries,
blood burning for freedom,
eyes set toward tomorrow,
each of you alone in the darkness,
beneath tender constellations burning gold and silver,
each of you will remember the path to take
when the Cold Hand of Power comes for you,
each of you will make your way without direction or encouragement,
as those before you made their way without direction or encouragement,
forging history, embracing destiny.

You will not march in file.
You will not march.
The revolution will not be organized.

In your darkest hour,
beneath the burning moon,
you will pledge allegiance to the truth,
as those before you pledged allegiance to the truth.

The truth cannot be organized.

“The Revolution Will Not Be Organized”
written on September 24, 2008 by
Jock Doubleday

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