Pro Se Chicago's Weblog

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.

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May 18, 2009

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


NOTE: As of April 1, 2016 the Black Line Trial Call has been abolished and a Master Trial setting call has been established. See article about this new system. You no longer will have hearings without notice !!!

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

Prosecutorial Misconduct-Coping Strategies


Possible courses of action if you are
experiencing prosecutorial abuse or misconduct.

See excellent review at: http://caught.net/nwsltr/candef.htm

At this site you will also find if you click on the topics information on the following:

Advanced Trial Handbook Index

Attorney and Prosecutorial Misconduct – Tricks of the Trade


For an excellent discussion of this issue see: http://caught.net/nwsltr/candef.htm

How to Sue a Judge


The Judicial Doctrine of Immunity:
 “Immunity applies even when the judge is accused of acting maliciously and corruptly.” — United States Supreme Court 
See Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) Pierson v. Ray, 386 U.S., at 554, Mireles v. Waco, 502 U.S. 9, 9-10, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991).

The following is an excerpt from an excellent post on how to sue a judge that I found on the web site http://caught.net/

By David C. Grossack, Constitutional Attorney
Common Law Copyright © 1994   All Rights Reserved

“Has a judge violated your constitutional rights? Have you been discriminated against by being treated differently than other people in similar situations by reason of race, religion, national origin, gender, sexual preference or political opinion?  Have you lost certain rights without a meaningful hearing or even an opportunity to be heard?

Have you been deprived of any other constitutional protection? Have you been subject to Court action for the purpose of intimidating you from exercising an opinion, or practicing your faith? Don’t let them get away with it.

Although it is almost impossible to recover monetary damages from a judge (unless you can prove he or she acted ultra-vires beyond his or her legal jurisdiction) it is in fact possible to obtain relief in equity against a judge through civil rights actions. Equitable relief includes:

  • declaratory relief – (rulings by another judge in the form of opinions establishing the constitutionality or lack of constitutionality of another judges actions.)
  • injunctive relief – a command or order to do something or refrain from doing so.

As a general rule, however, judges cannot be held liable for money damages for acts done in the exercise of his judicial function, within the limits of his jurisdiction, no matter how erroneous, illegal or malicious his acts may be. (48A Corpus Juris Secundum §86) A minority of decisions have held that if an inferior judge acts maliciously or corruptly he may incur liability. Kalb v. Luce, 291 N.W. 841, 234, WISC 509.”

For full post see: http://caught.net/prose/suejud.htm

Note that judges have absolute judicial immunity against suits for damages as long as they act as judges. If they have no subject-matter or personal jurisdiction however, you can sue them.

This is a rare instance as judges usually can find a way to prove they have either subject-matter or personal jurisdiction.

One instance, which I am presently testing in the courts is when a judge has absolutely no jurisdiction when a fraudulent charge in violation of the Supremacy Clause is brought against a person by a state prosecutor who is prosecuting without any legal or constitutional authority.  This is presently before the Federal District Court of the Northern District of Illinois, Eastern Division – Case Number 06 C 4259. 

Judges can be prosecuted in criminal courts by the local or federal prosecutor for criminal acts. Judicial immunity does not extend to criminal acts.

For an outstanding discussion of judicial misconduct during trials and judicial discipline see. http://caught.net/nwsltr/candef.htm

Also see my post on this web site concerning legally insufficient indictment.

November 18, 2008

Dismissal due to Discovery Violations


DISMISSAL DUE TO DISCOVERY VIOLATIONS/DUE PROCESS GROUNDS

 

The duties to disclose and preserve impeachment/exculpatory evidence are grounded in the due process right to a fair trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 678 (1985); United States v. Agurs, 427 U.S. 97, 104 (1976); Brady v. Maryland, 373 U.S. 83 at 87 (1963) . Thus, the withholding or destruction of evidence violates a criminal defendant’s constitutional rights only if, as a result of the withholding or destruction of evidence the criminal defendant is denied a fair trial. Bagley, 473 U.S. at 678.

In People v. Walker, 257 Ill.App.3d 332, 628 N.E.2d 971 (1st Dist. 3d Div.
 1993) the court found that: “When police destroy material evidence, defendant’s clothing where he was  claiming misidentification … defendant’s due process rights violated and not an abuse of judicial discretion to dismiss the indictment.”

In People v. Madison, 264 Ill.App. 481, 637 N.E.2d 1074 (1st Dist., 4th Div.
 1994) the court found that: “Police destruction of evidence, heroin prior to trial, requires dismissal.”

            In Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), the court held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him.

      In People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004) the court

discussed bad faith and its relationship to destruction of evidence and the issue of whether the evidence had only speculative value or was essential to the case.

“We have applied Newberry to uphold dismissals on due process grounds where the State destroyed evidence that was essential or outcome determinative. In People v. Crowder, 323 Ill. App. 3d 710, 753 N.E.2d 1165, 257 Ill. Dec. 539 (2001), the defendant was charged with two weapons offenses. After receiving a discovery request for the gun on which the charges were based, the State lost the gun. The trial court dismissed the charges. We affirmed, observing that the key issue was whether the gun was actually a firearm and not, e.g., a toy or inoperable replica. Crowder, 323 Ill. App. 3d at 712. Thus, the gun was essential to the case, and the defendant had no realistic hope of exonerating himself unless his experts could examine it. Crowder, 323 Ill. App. 3d at 712; see also People v. Coleman, 307 Ill. App. 3d 930, 934, 718 N.E.2d 1074, 241 Ill. Dec. 220 (1999) (dismissal proper after State inadvertently lost or destroyed alleged controlled substance that defendant had sought in discovery [in a timely fashion, even in the absence of bad faith].” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“The court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), which held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him. The Newberry court observed first that, in Youngblood, the Court required a showing of bad faith because the evidence that was destroyed had no more than speculative value to either the State or the defendant. Newberry, 166 Ill. 2d at 315; see Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The court observed second that in the case before it, unlike in Youngblood, the evidence was destroyed after the defendant had requested it in discovery. Thus, the State had been on notice that it needed to preserve the evidence. Newberry, 166 Ill. 2d at 317.”  People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“[I]n Newberry, the police seized what appeared to be cocaine from the defendant. After the substance tested negative, the defendant was charged with possessing a look-alike substance. However, a second drug test was positive. The State then indicted the defendant for possessing cocaine and several closely related offenses and dismissed the look-alike substance charge. After the defendant filed a general discovery request, he learned that the police had mistakenly destroyed the alleged cocaine. On the defendant’s motion, the trial court dismissed the indictments. Newberry, 166 Ill. 2d at 312-13.

The supreme court affirmed the trial court’s decision. The court held that, even absent bad faith, trying the defendant would deny him due process because the destroyed evidence was “essential to and determinative of the outcome of the case.” Newberry, 166 Ill. 2d at 315. That was because the defendant could not be convicted of the possession charges without proof of the content of the substance and, conversely, could not hope to exonerate himself without a chance to have his own experts examine the substance. Newberry, 166 Ill. 2d at 315.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“Aside from relying on due process, the supreme court upheld the dismissal of the charge as a proper sanction for the State’s discovery violation. …[U]nder Ill. Sup. Ct. R. 415(g)(i), a trial court may impose appropriate sanctions where the State fails to meet its discovery obligations, even absent bad faith. Newberry, 166 Ill. 2d at 317-18. Because the evidence that was destroyed was “pivotal,  the court held that the trial court did not abuse its discretion in dismissing the charge. Newberry, 166 Ill. 2d at 318.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

            Courts have ruled that if the police destroy evidence, “even absent bad faith” that is “essential and determinative of the outcome of the case” then the Defendant would be denied due process, as the defendant “could not hope to exonerate himself without a chance to have his own experts examine the substance [evidence forming basis of case].”  People v. Camp, 352 Ill. App. 3d 257, 261, 815 N.E.2d 980, 984 (2d Dist. 2004)

The court in Camp (id.) reasoned that if the charges were dependent on the destroyed evidence then the defendant would be deprived of due process if convicted. Therefore, they concluded that the case must be dismissed under such circumstances.

The trial court in Camp (id.) suggested that when the destroyed evidence is not essential or outcome determinative, the court has the power to impose lesser sanctions than dismissal.

“[T]he court could impose a sanction short of dismissal, such as instructing the jury that it could “take the disappearance of evidence in a manner disadvantageous to the prosecution.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

 “This is primarily a question for the trial court, which has broad discretion to impose sanctions that are proportionate to the magnitude of the discovery violation. Newberry, 166 Ill. 2d at 317-18; People v. Koutsakis, 255 Ill. App. 3d 306, 314, 627 N.E.2d 388, 194 Ill. Dec. 272 (1993)…. [T]he trial court may consider a variety of less drastic options [than dismissal]. These include instructing the jury that the absence of the videotape requires an inference that the tape’s contents are favorable to defendant. See Thorne v. Department of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989) (imposing similar remedy on remand to hearing officer in DUI case). On remand, the trial court is to consider the appropriate sanction under Rule 415(g)(i) for the State’s discovery violation.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

November 9, 2008

Federal Habeas Corpus Petition and Exhaustion of State Remedies


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

 

 

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

 

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

 

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

EXHAUSTION OF STATE REMEDIES IN FEDERAL PETITION FOR

WRIT OF HABEAS CORPUS

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

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

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

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

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

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

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

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

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

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

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

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

ADDENDUM as of 11-10-08

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

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

October 31, 2008

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


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

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )          

                        v.                                             )           No. 04 CR 17571

                                                                        )

LINDA SHELTON                                         )           Jorge Alonso

            Defendant                                 )           Judge Presiding

 

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                                        Respectfully Submitted,

                                                                        _______________________

                                                                        Linda Shelton, Pro Se

 

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

Pro Se Defendant

 

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

                                                                        __________________________

                                                                        Linda Shelton, Pro Se

 

Dated: August 4, 2008

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 


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