Pro Se Chicago's Weblog

September 18, 2017

Complaint for mandamus & civil rights relief from incompetent judges


When judges or officials are incompetent, malicious, or plain mean and violate your civil rights there are two other means that the public usually doesn’t realize by which they can obtain relief even during the case. The judge or official must have a mandatory (non-discretionary) duty under the law or constitution to do a particular act, must have failed to do it, and must be able to do it if ordered to do so in order to use a mandamus complaint. Civil rights law is very complicated.  Both types of complaints should be handled by an attorney, but as a starting place if you are interested in such complaints then this is an example that was filed by me, a non-attorney pro se. Look up the  case law and look up cases regarding mandamus or civil rights in the circuit courts and under your states’ laws.

  1. Mandamus – this is where you ask a court to order an official (including a judge) to perform a task that is mandatory and not discretionary like set a bail when no bail was set in violation of the law – in Illinois no bail is allowed only on murder cases, cases where the sentence may be life, or cases where a due process hearing was held and the defendant is proven to be a danger to the public or himself.
  2. Civil rights complaint for declaratory and injunctive relief. Suppose a court refuses to allow you to put any witnesses on the stand, refuses to allow you to subpoena documents or refuses to accommodate your disabilities, even when you discussed them with the disability coordinator and followed the court procedures. Under the federal civil rights act section 1983 you can ask a different court (either state or federal) under federal law to declare the judge’s acts or orders in violation of law or the constitution (declaratory relief) and order the judge to follow the law and allow you compulsory process or force the judge to accommodate your disabilities (injunctive relief).
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July 13, 2015

Replacing a bad public defender – possible but difficult


When public defenders refuse to listen to the defendant’s story, refuse to investigate the case, refuse to follow the law, refuse to tell the court when the court is violating law, are abrupt, rude, and harmful to defendants like ignoring their disability needs or indigency status when bail is set, and especially when they fail to subject the case to adversarial testing, then they should be replaced.  Legally when a defendant tells the judge that the PD is doing these things, the judge is obligated to question the defendant to see if there is a basis for ruling ineffective assistance of counsel and replacing the PD. The State’s Attorney may NOT participate in this stage 1 questioning. Yet they almost always do. The judges rarely listen to defendants who complain about PDs, but their failure to do so is a reversible error if it affects the outcome of the case. Attorneys will rarely help you with this issue unless the symptoms of misconduct of the PD are obvious like appearing in court drunk or not appearing in court at all. So, generally, defendants who are being abused by the system and rely on the PD due to indigency are scr**ed. This is where the ACLU and other public interest legal foundations should play a more active role, but so far they don’t.

The following is a summary of the present state of law in Illinois regarding these manners.

REPLACING A BAD PUBLIC DEFENDER – DIFFICULT BUT POSSIBLE:

NOTE: This refers to Illinois and federal case law – you must research the laws in your state.

CASE LAW CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL.

  • GENERAL ISSUE – STRICKLAND TWO-PRONG TEST ON APPEAL
  1. The Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)) Schell v. Witek, 218 F.3d 1017, ¶ 35 (9th Cir. 1991)
  2. The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, on appeal, an appellate court must apply the two-prong test set forth in Strickland Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
  3. Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome–or put another way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s performance.
  4. To prevail, the defendant must satisfy both prongs of the Strickland Colon, 225 Ill.2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the first prong of the Strickland test when the second prong cannot be satisfied.
  • STRICKLAND – PREJUDICE PRESUMED CRITERIA (HATTERY & CRONIC)
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court has noted that the Court in Strickland recognized that “there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill.2d 449, 461 (1985). Situations warranting the presumption of prejudice include cases in which (1) there is a complete denial of counsel at a critical stage of the trial, or (2)counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984); see Angarola, 387 Ill.App.3d at 735. Additionally, a more limited presumption of prejudice exists where counsel has a genuine conflict of interest. Strickland, 466 U.S. at 692. “Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). Our supreme court has emphasized that a “defendant faces a high burden before he can forsake the two-part Strickland test” by meeting the Cronic standard. People v. Johnson, 128 Ill.2d 253, 270 (1989).
  2. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, the defendant argued that the Cronic standard applied. Cronic, 466 U.S. at 658 (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). Although in the Stanford case the court said this argument was inopposite, our supreme court did note that in some cases it may be on point when the trial court summarily dismissed the defendants’ motions for new counsel without any inquiry: United States v. Nguyen, 262 F.3d 998, 1003–04 (9th Cir.2001) (where the defendant’s counsel of choice appeared and requested leave to be substituted in for the PD and requested a continuance and the trial court made no inquiry into the defendant’s dissatisfaction with appointed counsel, the trial court abused its discretion in denying the substitution motion); . . . Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970) (holding that the defendant’s being embroiled in an irreconcilable conflict with his attorney warranted reversal where the defendant was dissatisfied and would not cooperate with the attorney and the trial court summarily dismissed the defendant’s four motions for new counsel WITHOUT ANY INQUIRY).
  • STRICKLAND ERROR REQUIRES ESTABLISH INEFFECTIVENESS COUNSEL
  1. In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court stated that even if the counsel’s comments were enough to require the trial court to conduct an inquire into the effectiveness of counsel, “the error is not reversible unless defendant establishes that counsel was ineffective. See People v. Ogurek, 356 Ill.App.3d 429, 434 (2005)”
  2. It is instructive that the 9th Circuit Court of Appeals held: “When forced to choose between incompetent counsel and pro se representation . . . . we concluded that no showing of prejudice was required because Crandall was improperly left with no counsel at all” (quoting Crandell v. Bunnell, 144 F.3d 1213, 1214 (9th Cir. 1998)) and quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”)). Schell v. Witek, 218 F.3d 1017, ¶ 34 (9th Cir. 1991)
  3. Thus, the ultimate constitutional question the federal courts must answer is not whether the state trial court “abused its discretion” in not deciding defendant’s motion, but whether this error actually violated defendant’s constitutional rights in that the conflict between defendant and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment. Schell v. Witek, 218 F.3d 1017, ¶ 36 (9th Cir. 1991)
  • EFFECTIVENESS OF PD MUST BE ESTABLISHED BEFORE COLLATERAL ISSUES CONSIDERED (FIRST IMPRESSION ISSUE IN ILLINOIS)
  1. It is instructive, as this is an issue of first impression in Illinois that in People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23 (1990), the California Supreme Court held that a motion to replace incompetent counsel must be heard before a collateral hearing on issue of competency [or fitness] because “the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the [51 Cal. 3d 88] defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied.’ (People v. Carr (1972) 8 Cal. 3d 287, 299 [104 Cal. Rptr. 705, 502 P.2d 513]; accord People v. Burton (1989) 48 Cal. 3d 843, 855 [258 Cal. Rptr. 184, 771 P.2d 1270];People v. Moore (1988) 47 Cal. 3d 63, 76 [ 252 Cal. Rptr. 494, 762 P.2d 1218]; People v. Smith (1985) 38 Cal. 3d 945, 956 [216 Cal. Rptr. 98, 702 P.2d 180]; People v. Walker (1976) 18 Cal. 3d 232, 238 [133 Cal. Rptr. 520, 555 P.2d 306].)”
  2. The California Supreme Court clarified this concept further in its Marsden decision [now a rule in Cal.] which held that a trial judge abuses his discretion when he boldly states that the court has observed that the PD was performing admirably, but fails to give the defendant an opportunity to explain his/her concerns about ineffective assistance of counsel. This is on point with Illinois Supreme Court rule 63 which requires the court to hear the defendant:

Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” …. It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants’ shortcomings in representing themselves, are to be highly commended.”  (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)

  • PD INEFFECTIVE WHEN FAIL TO ALERT COURT OF COURT’S ERRORS
  1. There are a number of cases where it is instructive that the federal courts have found error when the PD failed to bring to the attention of the court statutory, legal, or constitutional errors made by the court:
    1. Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s statutory mis-statements that state sentence could run concurrent with potential federal sentence);
    2. United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal); Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request); Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant; Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel); United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel;
    3. Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses;
    4. Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (Failure to investigate mitigating evidence was ineffective assistance); Hinton v. Alabama, 2014 U.S. 136440, 571 U. S. ____ (2014) (Defendant prejudiced by ineffective assistance of PD, when the PD refused to hire an expert witness due to his ignorance of the law fundamental to the case);
  • MUST HOLD EVIDENTIARY HEARING ON DEFENDANT’S POST-TRIAL MOTION AS TO INEFFECTIVE ASSISTANCE COUNSEL BEFORE HEARING POST-TRIAL MOTIONS [HERE MOTION FOR RESTORATION OF FITNESS AFTER TRIAL FINDING UNFIT]
  1. The Illinois Supreme Court in People v. Krankel, 102 ILL.2d 181, 183 (1984) held that the “[T]rial Court erred in failing to appoint counsel other than defendant’s originally appointed counsel  to argue his pro se motion alleging ineffective assistance of counsel.” See also People v. Moore, 2003 Ill. 87958, 207 Ill.2d 68, 77-78 (2003) (First stage is to examine defendant as to basis of claim of ineffective counsel and if lacks merit then not required to appoint counsel to argue it; defendant is not required to renew claim of ineffective counsel for purposes of appeal).
  2. In People v. Jolly, 2015 Ill. 117142 at ¶ 38, the Illinois Supreme Court held that the First Stage examination of defendant concerning ineffective counsel is held WITHOUT the adversarial participation of the State’s Attorney because there is no substitute counsel arguing the defendant’s position. The Court also held that when an adversarial proceeding is held that the remedy is to hold a new Krankel hearing before a different judge. At ¶ 46
  3. The Illinois Supreme Court, in People v. Jocko, 2010 Ill. 108465, at p.4-6, 239 Ill. 2d (2010) &, held that although a two-prong Strickland hearing cannot be held pretrial as it cannot be determined if the errors affected the outcome of the trial (i.e. determine prejudice), it is required to hold a pre-trial evidentiary hearing concerning ineffective assistance of counsel only when prejudice is not relevant as when bail issues are concerned (Jocko at p 5), when there are conflicts of interest (Jocko at p. 4, 239 Ill.2d at 92 quoting Holloway v. Arkansas, 435 U.S. 475 (1978)), or when there is complete deprivation of counsel (Jocko at p. 4, 239 Ill.2d at 92 quoting Cronic 466 U.S. at 659 )

May 27, 2014

Right to present a defense


Add your case’s caption, add the standard ending to a court pleading (Respectfully submitted by _______, and the litigants name address and phone), as well as a notice of service and filing.

Look up the case law in your state as Illinois case law has no precedent in another state which is true of all case law. Substitute your state’s case law for case law here, but you may be able to obtain search terms as sell as Shephardize the U.S. Supreme Court cases to find your state’s case law by using the following:

_____________________________________________________________________________________________________

MEMORADUM OF LAW – RIGHT TO PRESENT A DEFENSE

NOW COMES Linda Shelton who respectfully presents to the court this memorandum of law.

  1. A defendant has a right to present a defense, as in In re Marriage of A’Hearn, 408 Ill.App.3d 1091, 947 N.E.2d 333, 349 Ill.Dec.696 (2011), where the court ruled that it was too harsh a sanction as well as it ignored the best interest of the child, when in a post-trial motion to change custody was dismissed due to the litigant violating discovery. The court ruled that the best interests of the child were so important that a discovery violation was not extreme enough to deny a hearing on the merits.
  2. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) [It is a fundamental error to deny the right to present a defense that requires the decision be overturned. Striking Manion’s response was a denial of a right to present a defense as was the court’s decision to hold the trial and deny a continuance so Manion could obtain discovery and plan a defense.  The decision of the court was overturned.]
  3. It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194 (1886). Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503, 23 L Ed 398 (1875).
  4. Per the U.S. Supreme Court, a judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461 (1888), and is not entitled to respect in any other tribunal.

October 26, 2008

The Revolution Will Not Be Organized

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

THE REVOLUTION WILL NOT BE ORGANIZED

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

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

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

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

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

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

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

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

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

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

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

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

The truth cannot be organized.

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

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