Pro Se Chicago's Weblog

August 1, 2014

Federal Petiton proving corrupt judges, sheriff, & state’s attorney in Cook County


SIC color_edited-1

PLEASE come to court and show support for Shelton at the next court date on Jan 13, 2016, 10am, 2600 S California, Chicago IL, courtroom 506. Write letters to the U.S. Attorney, Sen. Durbin, Sen. Kirk, your senator, Rep. Lipinsky or your representative, and the press. Some addresses are at end of post. Spread the word through social media that Shelton needs public support to continue these blogs and fight unlawful attacks against her in retaliation for them and for helping so many with pro se litigation and defense.

This is a petition for writ of habeas corpus to the federal district court in Chicago. The Cook County Sheriff in retaliation for Shelton filing civil rights suits has been falsely arresting Shelton repeatedly and maliciously prosecuting her for battery to officers. Of NOTE: She is never charged with battering anyone else and has a lifelong history of non-violent pacifism.  For more information go here.  Also read Shelton’s other blogs: http://cookcountyjudges.wordpress.com  http://chicagofbi.wordpress.com   http://cookcountysheriffdeputies.wordpress.com   http://illinoiscorruption.blogspot.com and search them for posts about Madigan in particular. They have beaten her so many times and so viciously that she now has post-traumatic-stress disorder and when aggressively approached by officers goes into a flashback where she cries, screams, tries to protect herself from imagined blows swinging her arms randomly (as she is reliving attacks) and cowers. If she is pushed, carried, or dragged, due to disabilities and severe balance problems she grabs at things to steady herself – all the while being out of touch with reality during these brief PTSD flashbacks. She has been arrested and charged with FELONY battery to an officer with a possible sentence of 3-14 years for “touching an officers ear and pulling her hair until her hand slipped off”. She has been held in jail one year on no bail and only recently released on $300,000 bail. This is unconstitutional excessive bail She has been denied notice, counsel of choice, discovery of evidence, and has been fraudulently accussed of being psychotic and unfit for trial, illegally without notice or jury trial, without any professional saying she was psychotic or unfit, sent to a secure mental health facility who after a few months said in court she was never unfit and is not psychotic and sent her back to jail. As a result of this lawlessness Shelton has now filed at Petition for Writ of Habeas Corpus to the Federal District Court asking for relief and presentment of the criminal conduct of judges, sheriff staff, state’s attorney, court clerk, and other corrupt persons to the U.S. Attorney for  prosecution. You can read it here: (download will be 24 pages) fed habeas 6-12-14 final Full Petition with evidence (download will be 400+ pages) Habeas Petition Asst. US Attorney Zachary T. Fardon United States Attorney’s Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Phone: (312) 353-5300 ______________________ FBI,Special Agent in Charge – Chicago Robert J. Holley 2111 W. Roosevelt Road Chicago, IL 60608 Phone: (312) 421-6700 Fax: (312) 829-5732/38 E-mail: Chicago@ic.fbi.gov _________________________ Senator Durbin WASHINGTON, D.C. 711 Hart Senate Bldg. Washington, DC 20510 9 am to 6 pm ET (202) 224-2152 – phone (202) 228-0400 – fax ____________________ Senator Kirk Washington, DC 524 Hart Senate Office Building Washington DC, 20510 Phone: 202-224-2854 Fax: 202-228-4611 ___________________ Congressman Lipinsky Washington, D.C. Office 1717 Longworth HOB Washington, DC 20515 P (202) 225 – 5701 P (866) 822 – 5701 F (202) 225 – 1012

May 20, 2014

Cook County court clerk misconduct and incompetence – letter to Cook County Board President


Board President Preckwinkle kindly replied and said she is continuing to try to achieve changes, but does not have the authority to change several things or obtain documents owed to me.

April 22, 2014
Madam Tony Preckwinkle
President Cook County Board of Commissioners
118 N. Clark St Rm 537
Chicago, IL 60602

Re: Court & Clerk Systemic and Criminal Violation of Law

Dear Pres. Preckwinkle:

This letter is to inform you of criminal systemic “errors” by the Court Clerk and Judges that need to be corrected as well as systemic fraud upon criminal defendants amounting to stealing hundreds of thousands of dollars – millions over decades, without due process of law.

In criminal cases, when a defendant does not show up in court a BFW (Preliminary Bond Forfeiture, Warrant) is issued. Then the defendant has 30 days to show up and have the preliminary bond forfeiture quashed or it becomes final.

Many defendants have good excuse not to have shown up in court – for example: 1) they are hospitalized; 2) they are in custody and the Sheriff refused to bring them to court – because the sheriff is not aware of other court cases or dates unless the court provides them a mittimus paper; 3) there was a death or birth in the family – its hard to be in court if your wife is in the delivery room; or 4) they are on active duty in the military and are out of the country. Then they bring proof of the above to the court and the judge quashes the BFW.

However, the Clerks systemically make the following errors:

1) Instead of writing “preliminary bond forfeiture” = pBFW, they write that this is a final bond forfeiture = BFW, which is transmitted to the Illinois State Police and FBI criminal databases such as LEADS and are used by prosecutors to argue for high bail due to “flight risk”.

2) The judges although they order the warrant to be quashed, they fail to order the bond forfeiture to be quashed.

3) The Clerk therefore fails to write that the bond forfeiture was quashed.

4) If the defendant doesn’t show up for court the Clerk and judge fail to write that this is a final bond forfeiture.

Therefore, on the State Police rap sheets, all preliminary bond forfeitures, even if quashed and warrant quashed for a good reason, state that the preliminary bond forfeiture is a final bond forfeiture. This forever defames the defendant.

This means that when a judge looks at a rap sheet in order to decide bail on a future case, they set fraudulently high bails as they use these “bond forfeitures” that have been quashed as reason to set an exorbitantly high bail rationalizing that the defendant is a “flight risk”.

For example: because I had four (4) “preliminary bond forfeitures” which had been quashed because I was hospitalized each time listed on rap sheet as final bond forfeiture, Judge Daly at Bridgeview set my bail on a MISDEMEANOR case at $50,000 instead of at $1,000 in 2009. Therefore, I was unconstitutionally jailed because I could not pay the bail.

This means my family had to pay $5,000 to get me out of jail (I later won the case) and the court Clerk kept $500. This was theft of my funds as the bond order was void because it was based on false information. I expect this high bail to be vacated nunc pro tunc and the $500 returned. I would prefer the County to take initiative and correct these things, but I doubt they will.

The rap sheets are providing judges false information and this is costing defendants dearly in excessively high bails and wrongful incarceration. I intend to have all these fraudulent bail orders vacated and the Clerk of your court will then owe me a lot of money.

Please make sure that Clerk Dorothy Brown immediately does something to correct these errors. I had a meeting with Dorothy Brown in Dec. 2009 with an attorney as a witness. I told her about the above and she has failed to correct the errors. This means Clerk Dorothy Brown is knowingly and willingly keeping false and incorrect records, each act of which is a class A misdemeanor crime , as you know. I will be filing court pleadings to have all my dockets corrected to reflect this. The number of incorrect court records is staggering as this has been going on for decades. Nine of my cases have such errors. All of my 35+ criminal cases are false arrests in retaliation for my complaints and whistle blowing activities, as well as for my blogs and assistance to other litigants against the state and their officers and judges.

Also note that technically the Illinois bail bond law is unconstitutional as it ties the fee for a fixed service (processing of bond) to the bail amount. Thus someone who is found not guilty after five years of murder and who paid $100,000 bond to get out owes the County $10,000 for processing one bond, while a guilty drug addict who paid $200 to get out on bond only owes the County $20 for the exact same service (processing of bond). This is fraud and denial of equal protection concerning right to property (money), which cannot be taken without due process of law. This is no different than Medicare fraud when a billing agent for a doctor charge by percentage of the doctor’s income instead of per bill processed. You cannot tie the fee for a fixed service to the value of services, labor, or property provided or owned by others. Many billing agents have been sent to federal prison for Medicare fraud. Isn’t the County unknowingly doing the same thing and harming its citizens?

Please be informed of a very serious criminal act going on by the Clerks at Bridgeview courthouse. The cost of a certified computer docket is $9. Any clerk you go to at any other courthouse will print out the docket and charge $9 as the Court Clerk’s web site states.

I wrote Clerk Brown in 2012 and the following is part of the letter:

“I went to Bridgeview Courthouse on 2/10/12 to the civil clerk and asked for two certified docket printouts on case numbers 10 P 006117 and 11-M5-000940. The Clerk said the charge for this 78 page docket and about 15 page docket was $9.00 PER PAGE or about $702 and $135. As you know, your charge is $9.00 per docket regardless of the length of the docket. $837 is a lot different than $18.

This is an $819 overcharge.

It is likely that some people have been inhibited in filing expungements or appeals due to this continuing practice of gross overcharges. This is doing great harm to litigants.

This is massive extortion. All your other clerks at other courthouses charge $9.00 per docket, not per page. Someone has dropped the ball and is not supervising Bridgeview properly or someone at Bridgeview is stealing this money and pocketing it. You must immediately investigate and take action to correct this.

I confirmed with all the clerks present that they actually have been charging the public $9.00 per page for a certified print-out of a single current case docket, instead of $9.00 per docket regardless of number of pages. I suspect someone is embezzling the money as your auditors or supervisors would have caught such a gross error.

I even asked Mr. Blumberg to call your Chief Counsel and he came back and said he spoke to Ms. Demos and she confirmed that the charge was $9.00 per page!

I paid for just the last page certified of each of the above two dockets. I demand that you immediately send by overnight mail the rest of the docket that I paid for.

Your clerks at the Daley Center and other courthouses are charging the appropriate $9.00 per certified case docket.

Attached is Mr. Blumberg’s signature on your fee schedule where he has yellowed what he said is the fee under:

“For record searching, for each year searched.

For each page of computer printout _______________________$9.00”

Ms. Malis agreed with him despite my protests. She has been there long enough to know the correct fee! These are fees for searching the archive records not for printing out a docket!

As you know this is not the fee for a certified computer docket. The correct fee is listed here and applies to the entire docket regardless of the number of pages. I have circled in in red on the attached fee schedule.

“For each certification or authentication with the seal of office ______$9.00”

This is outrageous and means your staff has been stealing tens of thousands of dollars or more from the public.”

I have informed the Inspector General for the Clerk’s office and as far as I know, nothing has been done. I have seen no arrests discussed in the media. Who is covering this up? What are you going to do about it? Where is the money going?

Please also be informed that Judge Biebel and Judge Wright have de facto suspended habeas corpus for people with misdemeanors and detainees at Cook County Jail who file a petition for writ of habeas corpus from Cook County Jail. By law, the Clerk must file any habeas petition a person brings to her and give it a separate civil case number, then schedule it for hearing before the presiding judge of the division promptly. If incarcerated, the presiding judge should issue orders bringing the defendant into the court.

I have tried to file more than six habeas petitions in misdemeanors in 2012 and they are still pending, by mailing them to an attorney friend who tried to file them. The clerk of 1st municipal division refused to give them a civil case number or a hearing date. She just filed them in the criminal case files. We repeatedly both contacted Judge Wright’s, Judge Evans’ and Clerk Brown’s offices and simply got the run around. I contacted them in writing. I mailed a petition for writ of habeas corpus to the clerk at 2650 S California in August 2013 and the supervising clerk now told me that it was placed in the criminal file, not given a civil case number and sent to Judge Biebel to decide whether it should be filed and heard. It was never given a civil case number or heard and is still pending. This issue is now before the Illinois Supreme Court.

The clerk supervisor shockingly said there are “two kinds of habeas petitions” – as instructed by Biebel’s office – one from those in jail and one when an attorney comes and files them. Apparently this County does not understand the rights of citizens under the U.S. Constitution including due process and equal protection. She gives the attorneys’ petition in these felony cases a civil case habeas number and schedules them for hearing. She sends the detainees petition to Biebel and he deep sixes them! That is criminal to de facto suspend the highest civil right a person has – to petition for writ of habeas corpus under the suspension clause of the United States Constitution. This needs a federal criminal investigation, as when a judge knowingly usurps power he does not have (here is doing the clerk’s duty and impeding purposely these petitions from being heard), then according to Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed 257 (1821) that it is “treason on the constitution” when a judge “usurps [the jurisdiction] that which is not given”. The case against me is totally bogus and has the appearance of retaliation for my complaints.

This is just the tip of the iceberg I have concerning misconduct of the Court Clerk, the judges, the sheriffs, and the State’s Attorney, as well as Public Defender in Cook County. I really would like to sit down with you and a representative from the Illinois Supreme Court and U.S. Attorney’s office with several colleagues and give you all evidence of so much other misconduct, criminal acts, and failure to follow their statutory duty, as well as felony federal funding fraud among players in the courts that you will be gob smacked. You have only witnessed the surface of the iceberg in your dealings with Evans and Alvarez. There is not one aspect of the functioning of the courts that is not in need of major reform. Evans must go! He and D. Brown should be impeached, along with several other senior judges. There is plenty of evidence for Greylord 2.

Thank you for your attention to this matter. I hope you will give me a response as to what you plan to do about this. Judge Evans and Clerk Brown, apparently do not think the above need attention as they have done nothing despite being informed.

Sincerely,

Linda L. Shelton, PhD, MD

June 26, 2011

Jurors can refuse to convict


The power of a juror is one of the greatest powers a  person can have in the United States.  If they believe a law is unjust they can ignore it and the state can take no action against them. For example:  If a juror believes that marijuana possession should be legal then they can refuse to vote for a guilty verdict in a possession case.

Article about juror power to just say no.

Law  professor’s opinion and detailed long instruction manual for jurors.

I believe that jurors should use their powers more often as a message to our  corrupt police, prosecutors, politicians, and judges in Cook County, IL.

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: Appeal-of-Wrongful-Conviction-Battery-Shelton-Illinois-2009

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

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

November 9, 2008

Federal Habeas Corpus Petition and Exhaustion of State Remedies


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

 

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

EXHAUSTION OF STATE REMEDIES IN FEDERAL PETITION FOR

WRIT OF HABEAS CORPUS

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

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

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

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

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

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

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

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

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

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

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

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

ADDENDUM as of 11-10-08

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

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

Federal Habeas NOT Moot if Released from Custody


Release from Custody (incarceration or parole) does NOT Cause a Petition to Federal Court for Habeas (regarding conviction and not solely sentence) to become Moot as there may be Collateral Consequences that keep the Controversy “live” Maintining the Federal Court Jurisdiction

over the Matter.

            The Federal District Court has jurisdiction of petitions for writs of habeas corpus under 28 U.S.C. § 2254 which requires the petitioner to be “in custody.” Jurisdiction is established for this purpose as long as the petitioner is in the custody of the state when the petition for writ of habeas corpus is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) (overruling Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 l.Ed.2d 963 (1960)).

            Article III of the Constitution allows Federal Courts to adjudicate only actually, ongoing cases or controversies. See Americans United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406, 420-421 (8th Cir. 2007); Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 611 (8th Cir. 2003). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate” and, “[w]hen an action no longer satisfies the case or controversy requirement, the action is moot and a federal court must dismiss the action.” Potter v. Norwest Mortgage, Inc.,  supra at 611 [citations and internal quotations omitted] Therefore, there must be consideration given to whether or not a controversy still exists when a prisoner after filing or when filing a petition for writ of habeas corpus is no longer in custody. The United States Supreme Court has wrestled with this issue for decades. The inquiry was narrowed to consider the possibility of providing the petitioner further redress for the claims that have been raised. If this is impossible, the case is moot. The Court in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) found that once a habeas petitioner is released from custody, his case becomes moot, unless he can show that a writ of habeas corpus would still provide him some genuine benefit. This line of reasoning began decades before in the United States Supreme Court.  

            In St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943) the Court held that there were two exceptions to the mootness doctrine when the sentence of a petitioner for a write of habeas corpus expired. First is when the petitioner “could not have brought his case to this Court for review before the expiration of his sentence.” This applies when the sentence is so short that there is no realistic possibility of bringing the case to court prior to expiration of the sentence. In Sibron v. New York, 392 U.S. 40 at 52, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court noted that this was true in a six-month sentence for contempt despite the fact that the petitioner “took all steps to perfect his appeal in a prompt, diligent, and timely manner.” The Court in Sibron supra, at 53 further noted that: “As St. Pierre supra, clearly recognized, a State may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing.”

            The second exception recognized in St. Pierre supraat 43, permits adjudication of the merits of a criminal case where “under either state or federal law further penalties or disabilities can be imposed . . . as a result of the judgment which has . . . been satisfied”.  St. Pierre supra at 43, implied that it was the burden of the petitioner to show the existence of collateral legal consequences.

            In Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946) the Court held that a criminal case had not become moot upon release of the prisoner because the petitioner, an alien, might be subject to deportation for having committed a crime of “moral turpitude”. The Court also pointed out that if the petitioner should in the future decide he wanted to become an American Citizen, he might have difficulty proving that he was of “good moral character.”

            The Court Ginsburg v. State of New York, 390 U.S. 629, 633, 99 S.Ct. 1274, 1277, 20 L.Ed.2d 195, n. 2 (1968)  held that the mere possibility that the Commissioner of Buildings of the Town of Hempstead, New York, might “in his discretion” attempt in the future to revoke a license to run a luncheonette because of a single conviction for selling relatively inoffensive “girlie” magazines to a 16-year-old boy was sufficient to preserve a criminal case from mootness.

In United States v. Morgan, 346 U.S. 502, 74 S.Ct 247, 98 L.Ed. 248 (1954) the Court

ruled that collateral consequences should be considered in determining mootness.

 

Although the term has been served, the results of the conviction may persits. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid. Morgan at 512-513 supra.

 

The Court in Sibron at 55 supra, re-iterated that this inquiry was made a presumption in a

previous decision: “[I]n Pollard v. United States, 352 U.S. 354, 77 S.Ct 481, 1 L.Ed.2d 393 (1957), the Court  abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.” [emphasis added]

 

                        The Sibron Court clarified the constitutional importance of giving the petitioner his day in court on a habeas corpus petition after release from custody, in the face of any direct or collateral consequences.

 

The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences (FN See generally Note, 53 Va.L.Rev. 403 (1967).) The mere ‘possibility’ that this will be the case is enough to preserve a criminal case from ending ‘ignominiously in the limbo of mootness’ Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct 909, 911, 4 L.Ed.2d 963 (1960) (dissenting opinion). Sibron supra,at 55. [emphasis added]

 

[I]t is far better to eliminate the source of a potential legal disability than to require the citizen tol suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action. Df. Peyton v. Rowe, 391 U.S. 54, 64, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (FN This factor has clearly been considered relevant by the Court in the past in determining the issue of mootness. See Fiswick v. United States, 329 U.S. 211, 221-222, 67 S.Ct. 224, 229-230, 91 L.Ed. 196 (1946). Siborn supra,at 56. [emphasis added]

 

None of the concededly imperative policies behind the constitutional rule against entertaining moot controversies would be served by a dismissal in this case. There is nothing abstract, feigned, or hypothetical about Sibron’s appeal. Nor is there any suggestion that either Sibron or the State has been wanting in diligence or fervor in the litigation. Sibron supra,at 57.

 

St. Pierre v. United States, supra, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. Sibron supra,at 57. [emphasis added]

 

The Court therefore concluded that analogously Sibron’s petition for writ of habeas corpus was not moot because he “has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him. Sibron supra,at 57-58. Citing Fiswick supra, at 222.

            Subsequent release of the petitioner does not oust the court of statutory jurisdiction because with a conviction there are presumed collateral consequences that persists after termination of sentence. Carafas. at 237-238 supra. [including inability to engage in certain businesses, inability to vote, inability to serve as official of labor union, inability to serve as juror, impeachment of character, enhancement of future sentence, etc. depending on laws of state]  Even in the case of a non-felony criminal contempt conviction the 5th Circuit Court of Appeals held that even the direct consequence of a fine constitutes consequences that persists after termination of sentence. Port v. Heard, 764 F.2d 423 (1985).

            In Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), the U.S. Supreme Court narrowed the presumed collateral consequences doctrine so that termination of sentence did not oust statutory jurisdiction when the issue presented in the petition for habeas corpus involved the conviction and not specifically only the sentence. As the issue of the sentence no longer existed if the petitioner was released from custody (incarceration or parole), then the petition for habeas corpus became moot under the specific circumstance that the petitioner did not question the validity of his conviction, but only applied for the writ based on his sentence.

            In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Court further narrowed the presumed collateral consequences doctrine stating that the presumption of collateral consequences to conviction do not flow to parole violations in order to satisfy Article III injury-in-fact requirement for the Court to retain jurisdiction.

           The U.S. Supreme Court ruled that:

The petitioner in this case was sentenced in 1960. He has been attempting to litigate his constitutional claim ever since. His path has been long-partly because of inevitable delays in our court processes and partly because of the requirement that he exhaust state remedies. He should not be thwarted now and required to bear the consequences of assertedly unlawful conviction simply because the path has been so long [seven years] that he has served his sentence. The federal habeas corpus statute does not require this result, and Parker v. Ellis must be overruled. Carafas supra, at 240. [emphasis added]

 

            Therefore, the line of reasoning in the United States of Supreme Court in deciding whether or not a “live” controversy still exists after a petitioner for a writ of habeas corpus has been released from custody, firmly established the principle that criminal convictions entail collateral consequences that keep the controversy “live” after release when the issues in the habeas petition concern the  conviction, although not when the issues pertain solely to the sentence, nor when the conviction is in regards to a parole violation. 

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

More Info On Standby Counsel and Self-Representation (Pro Se & Faretta Rights)


The following proves that failure to do a “Faretta inquiry” by the court is reason to overturn a conviction, as is failure to allow a defendant to represent themselves.  See previous posts for more details. The following gives case law as to criteria to be used to decide if a court will appoint standby counsel.

__________________________________________________

 

Case law is clear that the trial court has broad discretion to appoint counsel for advisory or other limited purposes and to determine the extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill.2d 1, 38, 218 Ill.Dec. 861, 670 N.E.2d 583 (1996).

 

Standby counsel may be appointed to assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete” and may also help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed2d 122 (1984).

 


“In deciding whether to appoint standby counsel, the court should consider the following criteria: ‘(1) the nature and gravity of the charge; (2) the expected factual and legal complexity of the proceedings; and (3) the abilities and experience of the defendant.’” People v. Mazur, 333 Ill.App.3d 244, 249, 266 Ill.Dec. 573, 775 N.E.2d 135,140(2002), quoting People v. Williams, 277 Ill.App.3d 1053, 1058, 214 Ill.Dec. 741, 661 N.E.2d 1186 (1996).

 

The Public Defender Act of Illinois permits appointment of a public defender to serve as standby counsel for accused who elects to represent himself in a criminal proceeding. Case law is clear that the trial court has broad discretion to appoint counsel for advisory or other limited purposes and to determine the extent and nature of standby counsel’s involvement. People v. Redd, 173 Ill.2d 1, 38, 218 Ill.Dec. 861, 670 N.E.2d 583 (1996).

 

 Standby counsel may be appointed to assist a pro se defendant “in overcoming routine procedural or evidentiary obstacles to the completion of some specific tasks, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete” and may also help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed2d 122 (1984).


“In deciding whether to appoint standby counsel, the court should consider the following criteria: ‘(1) the nature and gravity of the charge; (2) the expected factual and legal complexity of the proceedings; and (3) the abilities and experience of the defendant.’” People v. Mazur, 333 Ill.App.3d 244, 249, 266 Ill.Dec. 573, 775 N.E.2d 135,140(2002), quoting People v. Williams, 277 Ill.App.3d 1053, 1058, 214 Ill.Dec. 741, 661 N.E.2d 1186 (1996).

 

The Public Defender Act of Illinois permits appointment of a public defender to serve as standby counsel for accused who elects to represent himself in a criminal proceeding. People v. Gibson, 136 Ill.2d 362, 556 .N.E. 2d 226, 144 Ill.Dec. 759 (1990)., 136 Ill.2d 362, 556 .N.E. 2d 226, 144 Ill.Dec. 759 (1990).

 

Right to Counsel and Self-Representation (“Faretta Rights”)


FARETTA RIGHTS OR RIGHT TO SELF-REPRESENTATION

There is a long history in the United States of self-representation. In fact most defendants represented themselves in colonial days. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 451, L.Ed.2d 562 (1975) for a detailed history.

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” Faretta at 807

Right to self-representation under the Sixth Amendment is part of the due process required under the Fourteenth Amendment. Faretta at 819-820

Forcing a defendant to accept an unwanted attorney to defend him is a denial of due process, because the “defense presented is not the defense guaranteed him by the Constitution, for in a very real sense, it is not his defense.” Faretta at 821

“Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘That respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-351 (BRENNAN, J., concurring)”. Faretta at 834

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v.Gillies, 332 U.S. 708, 723-724 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel McCann, 317 U.S., at 279.” Faretta at 835

In general, the right to self-representation was not knowing and intelligent unless the judge questions the defendant and he responds affirmatively that he understands:

(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
(4) that a counsel would be able to interview witnesses, easily follow courtroom procedures, understand all options as to defenses, negotiate more easily with the prosecutor, research the law on the case, deliver subpoenas, search for witnesses, and the like.
(5) that he has a right to present evidence in mitigation at sentencing if convicted.
Not all of above are required by all states – you should research the law in your state under criminal procedure and waiver of counsel, as well as read the above Supreme Court cases.

The U.S. Supreme Court position on this matter is as follows: “This protecting duty [to protect the Sixth Amendment right to counsel] imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’6 To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel,7 a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Molte v. Gillies, 317 U.S. 279 at 723-724.

NO RIGHT TO SELF-REPRESENTATION ON APPEAL

“[I]n Price v. Johnston, 334 U.S. 266 the Court, in holding that a convicted person had no absolute right to argue his own appeal, said this holding was in ‘sharp contrast’ to his recognized privilege of conducting his own defense at the trial.’ Id., at 285” Faretta at 816

LIMITS OF RIGHT TO DEFEND SELF

A defendant has a qualified right to represent himself, that can only be denied if a defendant is unable to participate in the proceedings through mental incapacity, serious and obstructionist conduct, or cannot knowingly and voluntarily elect to represent himself. Faretta (Ibid)

“Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. See Illinois v. Allen, 397 U.S. 337 . Of course, a State may – even over objection by the accused – appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary. See United States v. Dougherty, 154 U.S. App. D.C. 76, 87-89, 473 F.2d 1113, 1124-1126.” Faretta at FN 46 page 834-835

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” Faretta at FN 46 page 835

The problem in C[r]ook County is that the judges deny Faretta rights for bogus reasons falsely stating that the defendant is engaging in serious and obstructionist misconduct when he questions the judge, presents case law to the judge (one-ups the judge), writes a large number of motions, writes motions that are long and scholarly (“wastes the judge’s time with rambling motions”), etc. The system is broken and corrupt. The judges are ignorant, arrogant, incompetent, and biased against pro se litigants.

In order to represent yourself you must understand you probably will be found guilty because of this bias. You need however, to preserve the issues for appeal and file in writing your request to represent self and a motion to reconsider this when self-representation is denied to preserve the issues on the record. In your motion to reconsider you should consider writing that the judge’s reasons for denying Faretta rights are bogus just to preserve the issue and arguments for appeal.

Good luck to anyone who fights like hell for their rights! I do and will continue to do so.

October 25, 2008

Discovery in Misdemeanor Cases in Cook County – Exceptions to Schmidt


Generally in misdemeanor cases a defendant has NO OBLIGATION to provide discovery to the state. However the State SHALL provide limited discovery to the defendant as defined by the case Schmidt. They cannot hide exculpatory evidence. Exceptions to misdemeanor Schmidt discovery rules allow the defendant to subpoena or ask in discovery for certain evidence that would not normally be allowed. Any pro se defendant in a misdemeanor case should thoroughly read Schmidt. See reference below. Judges are TOTALLY ignorant of these exceptions. Handing them a memorandum of law on the subject is very helpful. Remember though that judges don’t read 95% of what you give them – they also assume pro se pleadings are useless trash. So be tactful and state: “Your honor I apologize for reminding you of what you already know – exceptions to Schmidt discovery rules – I don’t want to insult your intelligence, but I believe this applies to my case ……..

MEMORANDUM OF LAW – EXCEPTIONS TO SCHMIDT DISCOVERY

 

            Discovery is limited in misdemeanor cases as guided by People v. Schmidt 56 Ill. 2d 572. However, in People v. Williams, (4th Dist 1980), 90 Ill. App. 3d 158, 45 Ill. Dec. 785, 413 N.E.2d 118, United States v. Nixon, (1974) 418 U.S. 683, 945 Ct. 3090, 41 L.ed.2d 1039, People v. West, (1981), 102 Ill. App. 3d 50, 57 Ill. Dec. 701, 429 N.E.2d 599, and People v. Harris, 91 Ill. App. 3d 1, 46 Ill. Dec. 256 it was decided that courts have inherent discretionary authority to order discovery in a nonfelony case for purpose of seeing that criminal trial process is fair and achieves the goal of ascertaining the truth. It was also held that disobeyance of a court order to comply with a valid subpoena is not proper manner in which to test scope of subpoena but, rather, any claim that subpoena process is being abused should be presented to trial court in motion to quash.

            In these cases tests have been adopted which allow pretrial discovery under certain limited conditions under the powers of judicial discretion. Under the suggested tests to be used for deciding if an exception to the Schmidt discovery rules should be granted:

“… a party must show (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and in is not intended as a general fishing expedition.” (Ibid)

 

            Considering the relevance of evidence, there is other case law that provides cause for appeal if the subpoena of and use of evidence by the defense at trial is prohibited by the court:

“Evidence concerning acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible.” People v. Olivias, 354 N.E. 2d 242, 41 Ill. App. 3d 146.

 

“For suppression of evidence to involve a violation of right to due process, it must be shown that he evidence was suppressed after a request for it by defendant, that the evidence was favorable to him and that it was material.” People v. Jordan, 69 Ill. Dec. 777, 448 N.E. 2d 237, 114 Ill. App. 3d 16, affirmed in part, reversed in part 82 Ill. Dec. 925, 469 N.E.2d 569, 103 Ill. 2 192, habeas corpus dismissed by U.S. ex rel. Jordan v. Detella, 1995 WL 76913.

 

“Evidence having a natural tendency to establish the facts in controversy in a criminal prosecution should be admitted.” People v. Jenko, 102 N.E. 2d 783, 410 Ill. 478.

 

“Defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt.” People v. Johnson, 355 N.E. 2d 699, 42 Ill. App. 3d 425.

 

            It would be a violation of Defendant’s due process rights if she was denied the use of relevant evidence and witnesses pertaining to affirmative defenses which are material and favorable to the Defendant. The above case law suggests that a judge has the discretionary authority to order recalcitrant witnesses for the defense to come to court and submit to interview by defense counsel so that defendant may prepare defense, and even to order them to submit to interview by deposition.

 

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