Pro Se Chicago's Weblog

January 19, 2010

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


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

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

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

Case Number 06 C 4259

before Honorable Judge Joan H. Lefkow        

MEMORANDUM OF LAW – JURISDICTION

 

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

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

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

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

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

INDICTMENT LEGALLY INSUFFICIENT

SUBJECT MATTER JURISDICTION OF THE COURT

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

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

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

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

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

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

FRAUD UPON THE COURT BY PROSECUTOR OR COMPLAINANT

INVALIDATES ALL ORDERS OF COURT

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

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

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

JUDICIAL TRESPASSERS OF THE LAW

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

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

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

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

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

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

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

VIOLATION OF JUDGE’S OATH OF OFFICE

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

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

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

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

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

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

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

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

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

TREASON BY A JUDGE

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

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

ATTORNEY GENERAL WITHOUT ANY JURISDICTION TO

INDEPENDENTLY PROSECUTE VENDOR FRAUD

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

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

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

 
“The duties of the Attorney General shall be:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

VOID FOR VAGUENESS DOCTRINE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUBSTITUTE BILLING NOT A CRIME

Alleged vendor fraud crime outside of statutory authority and

barred by Supremacy Clause

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

FEDERAL LAW REQUIRES FUNDING OF NON-PHYSICIAN EMPLOYEES OF

PHYSICIANS SERVICES TO THE POOR

 SUMMARY

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

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

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

Respectfully submitted by:

__________________________                               

Linda L. Shelton, Pro Se                                           


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

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

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

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

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

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

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

Advertisements

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.

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

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

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


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

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

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

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

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

October 24, 2008

Outrageous Government Conduct – Not Just for Drug Cases!


IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

People of the State of Illinois                             )

                        Plaintiff                                     )

                        v.                                             )           No. 05 CR 12718

Linda Shelton                                                   )

                        Defendant                                 )           Honorable Judge Kazmierski

                                                                        )                       presiding

 

 

MEMORANDUM OF LAW

OUTRAGEOUS GOVERNMENT CONDUCT DEFENSE

 

                NOW COMES, the Defendant, Linda L. Shelton, Pro Se who respectfully submits this memorandum of law as follows:

 

The Orphan Doctrine of Outrageous Government Conduct

Otherwise known as the criminal defense of

DUE PROCESS

Proof that it is alive and well in Illinois

The doctrine of “outrageous conduct,” sometimes referred to as “outrageous misconduct,” was introduced by the Supreme Court. In the course of discussing the entrapment defense, the Court speculated that:  “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction ….” United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637, 1643 (1973). The Russell court went on to state that in order to rise to the level of outrageous, the misconduct must be of such a nature that it violates “‘fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” Russell, 411 U.S. at 432, 36 L. Ed. 2d 366, 93 S. Ct. at 1643, quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268, 80 S. Ct. 297, 303 (1960).

The outrageous-misconduct defense was further addressed by the Supreme Court in Hampton v. United States, 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976). “Police involvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”  Id. 1653 n.7

In Hampton, the defendant was convicted of distributing heroin, despite his argument that because the heroin had been supplied by a government informer and sold by the defendant to an undercover agent, the defendant’s due process rights had been violated. The Supreme Court affirmed the conviction but wrote three separate opinions. The plurality opinion found that neither the defense of entrapment nor the defense of outrageous conduct was available to the defendant because the defendant was predisposed to commit the crime. The plurality opinion stated, “If the police engage in illegal activity in concert with a defendant beyond the scope of their duties[,] the remedy lies[,] not in freeing the equally culpable defendant[,] but in prosecuting the police under the applicable provisions of state or federal law.” Hampton, 425 U.S. at 489, 48 L. Ed. 2d 113, 96 S. Ct. at 1650 (plurality opinion of Rehnquist, J., joined by Burger and White, JJ.). Two justices concurred in the result but refused to foreclose the possibility of the fundamental-fairness defense even where predisposition is shown. Hampton, 425 U.S. at 491-95, 48 L. Ed. 2d 113, 96 S. Ct. at 1650-53 (Powell, J., concurring, joined by Blackmun, J.). On the other hand, the dissenting justices believed that the behavior of the law enforcement officials was sufficiently offensive to bar a conviction. Hampton, 425 U.S. at 495-500, 48 L. Ed. 2d 113, 96 S. Ct. at 1653-55 (Brennan, J., dissenting, joined by Stewart and Marshall, JJ.). Accordingly, Hampton stands for the proposition that even though proof of predisposition to commit a crime will bar the application of the entrapment defense, fundamental fairness will not permit any defendant to be convicted of a crime in which police conduct is outrageous. See United States v. Twigg, 588 F.2d 373, 378-79 (3rd Cir. 1978).

            “The due process defense of outrageous police conduct was elevated from theory to reality in United States v. Twigg, 588 F.2d 373, 377 (3rd Cir. 1978). That court reversed convictions of two defendants, because ‘the nature and extent of police involvement … was so overreaching as to bar prosecution of the defendants as a matter of due process of law.’…  The State has argued that this due process defense…our [Illinois] supreme court has conclusively rejected…in People v. Cross, 77 Ill.2d 396, 33 Ill.Dec. 285, 396 N.E.2d 812 (Ill. 1979).  We believe that… Cross should not be interpreted as a bar to the due process defense.” People ex rel Difanis v. Boston, 92 Ill.App.3d 962, 416 N.E.2d 333, 336-337 (Ill.App. 4 Dist. 1981).

 

In People v. Ming, 316 Ill.App. 1274, 250 Ill.Dec. 412, 738 N.E.2d 628 (Ill.App. 5 Dist. 2000) the court extensively discussed the defenses of entrapment and outrageous government conduct, holding that the defense of outrageous government conduct exists in Illinois, even if it has never been successfully employed:

“…[T]he outrageous [government] conduct defense looks at the government’s behavior.  See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984).…  One circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d 239 (7th Cir. 1995))… First, we point out that decisions of United States district courts and courts of appeal are not binding on Illinois courts. See City of Chicago v. Groffman, 68 Ill. 2d 112, 118, 368 N.E.2d 891, 894 (1977). Second, it is noteworthy that Boyd dealt with prosecutorial misconduct, while the instant case deals instead with the alleged misconduct of an undercover drug agent. Finally, we disagree with the Boyd court’s holding that the doctrine is dead.  Contrary to the holding in Boyd, the fact remains that most jurisdictions at least acknowledge that such a defense exists.  For example, United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992), cited cases from 11 circuits, all of which agreed that the defense of outrageous [government] conduct exist.” Ming. Id.

“One of the few cases to actually advance the defense of outrageous police misconduct from pure theory to reality is United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), which is distinguishable from the case before us. In Twigg, a government informant suggested the establishment of a laboratory to manufacture ‘speed.’ The government supplied a chemical used to make the drug, made arrangements with chemical supply houses to provide the other ingredients, and provided the production site, and a government agent was completely in charge of the operation. Thus, Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme. The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’ Twigg, 588 F.2d at 377. In a footnote, the Twigg court stated:

 

FN ‘We are adhering to Justice Powell’s reasoning [in Hampton] that in evaluating whether government conduct is outrageous, the court must consider the nature of the crime and the tools available to law enforcement agencies to combat it.’ Twigg, 588 F.2d at 378 n.6.”

 

Ming. Id.

“The outrageous-conduct defense is distinct from the entrapment defense because while the entrapment defense looks to the state of mind of the defendant in order to determine whether he or she was predisposed to commit the crime being prosecuted (Jacobson v. United States, 503 U.S. 540, 118 L. Ed. 2d 174, 112 S. Ct. 1535, 1540 (1992)), the outrageous-conduct defense looks at the government’s behavior. See United States v. Gamble, 737 F.2d 853, 858 (10th Cir. 1984). The defense of outrageous conduct is premised upon the notion that the due process clause imposes limits upon how far the government can go in detecting crime irrespective of the character of the target. See People v. Hirsch, 221 Ill. App. 3d 772, 779, 582 N.E.2d 1228, 1232 (1991). We are cognizant that ‘[t]he banner of outrageous misconduct is often raised but seldom saluted’ (United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993)) and that one circuit of the United States Court of Appeals has declared the defense dead (United States v. Boyd, 55 F.3d. 239 (7th Cir. 1995)). In addressing whether or not the doctrine is valid, the Boyd court stated:

 

FN ‘Today we let the other shoe drop, and [we] hold that the doctrine does not exist in this circuit. The gravity of the prosecutors’ misconduct is relevant only insofar as it may shed light on the materiality of the infringement of the defendants’ rights; it may support, but it can never compel, an inference that the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted.’ Boyd, 55 F.3d at 241.”

 

Ming. Id.

 “Several Illinois cases have discussed the defense of outrageous government conduct with respect to undercover drug officers and recognize its validity, including People v. D’Angelo, 223 Ill.App.3d 754, 166 Ill.Dec. 217, 585 N.E.2d 1239 (1992).  In both People v. Johnson, 123 Ill.App.3d 363, 78 Ill.Dec. 829, 462 N.E.2d 948 (1984) and People ex rel Difanis v. Boston, [supra], the defense of outrageous government conduct was recognized. The D’Angelo court found that because defendant failed to raise the issue of outrageous conduct in his posttrial motion, the issue was waived, but the court legitimized the defense by stating, ‘In any event, we do not believe that the conduct of the government agents in this case is so outrageous that it violates fundamental fairness or shocks the conscience.’ D’Angelo, 223 Ill. App. 3d at 782, 585 N.E.2d at 1257. In both People v. Johnson, 123 Ill. App. 3d 363, 462 N.E.2d 948 (1984), and People ex rel. Difanis v. Boston, 92 Ill. App. 3d 962, 416 N.E.2d 333 (1981), the defense of outrageous governmental conduct was recognized as a separate defense from that of entrapment.… However, none of those courts believed that the conduct complained of rose to the level of outrageousness necessary to bar the action…  In fact, no Illinois case has yet to find outrageous government conduct sufficient to bar the prosecution of the defendant; on the other hand, no Illinois case has denied the doctrine’s validity.  After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois. …  A defendant can raise the defense of outrageous [government] conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating [therein].    One of the few cases to actually advance the defense of outrageous government conduct from pure theory to reality is United States v. Twiggs, 588 F.2d 373 (3rd Cir. 1978).    Twigg involved an egregious case of government overinvolvement in which the government’s undercover operative essentially concocted and conducted the entire illicit scheme.  The Twigg court characterized the police conduct as ‘so overreaching as to bar prosecution of the defendants as a matter of due process of law.’    Should the proper factual situation arise, courts should apply the doctrine of outrageous police misconduct and dismiss the charges against a defendant.”  Ming. Id.

“After considering the historical perspective of the doctrine, we hold that it is a valid defense in Illinois.” Ming. Id.

 “Whether the circumstances of a case demonstrate outrageous government conduct is a question of law for the court to decide. See People v. Johnson, 123 Ill. App. 3d 363, 373-74, 462 N.E.2d 948, 955 (1984). A defendant can raise the defense of outrageous conduct if the government was overly involved in the creation of a crime or if the government coerced the defendant into participating. See United States v. Mosley, 965 F.2d 906, 912 (10th Cir. 1992)…. Whether or not conduct is outrageous must be determined on an ad hoc basis and cannot be reduced to a specific formula. See United States v. Santana, 6 F.3d 1, 6 (1993)…. [The Santana case gave guidelines to determine outrageous government conduct in drug sting cases where the defendants claim entrapment.] While the Santana court appreciated the district court’s efforts to structure such a test, it found that ‘there is simply no way to reduce the myriad [of] combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation.’ Santana, 6 F.3d at 6. We agree with the Santana court that there is no universal litmus test for a court to utilize to determine whether or not conduct is outrageous…. Ultimately, the outrageousness of a police officer’s actions must be evaluated by (1) taking into account the totality of the relevant circumstances (Santana, 6 F.3d at 7) and (2) considering whether or not the totality of the circumstances show misconduct of such a nature that it violates fundamental fairness and is shocking to our universal sense of justice. See Russell, 411 U.S. at 432, 36 L. Ed. 2d at 366, 93 S. Ct. at 643.” Ming. Id.

 

The court in United States v. Diaz, 189 F. 3d 1239 (1999) stated the following: “In sum, there is no binding Supreme Court authority recognizing a defense based solely upon an objective assessment of the government’s conduct in inducing the commission of crimes. Non-binding dicta of the Court, indicating that there may be such a defense, has been recanted by its author based upon reasoning later adopted by a majority of the Court in United States v. Payner, 447 U.S. 727, 737 n. 9 (further citation omitted). Moreover, this court has recognized the availability of this defense only in dicta because, in every case in which the issue has been raised, the government’s conduct has been held not to have been ‘outrageous.’ The only case squarely holding that an objective assessment of the government’s conduct in a particular case may bar prosecution without regard for the defendant’s predisposition [United States v. Twigg, 588 F.2d 373 (3d Cir. 1978), cited extensively by Mr. Diaz] has been greatly criticized, often distinguished and, recently, disavowed in its own circuit.” Diaz, Id.

“In considering this argument, we are not as sanguine as the government, nor even as literary or mythical. See Rec. vol. I, doc. 16, at 23 (‘this court should similarly reject the outrageous government conduct defense as a chimera or unicorn ­ often hunted but never taken into captivity’). We note that the disaffection with the doctrine does not yet indicate its total impossibility. Rather, as Justice Powell noted in Hampton v. United States, 425 U.S. 484 (1976), while rejecting the plurality’s conclusion that neither due process principles nor supervisory powers could support a bar to conviction in any case where the Government is able to prove predisposition:

 

I emphasize that the cases, if any, in which proof of predisposition is not dispositive will be rare. Police overinvolvment in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.

 

Hampton, 425 U.S. at 495 n.7 (Powell, J., concurring) (emphasis added).” Diaz, Id. 

 

United States Attorney’s View of Outrageous Government Conduct

[for purposes of understanding the viewpoint of a “prosecutor”]

 

In U.S. Attorney’s Manual:

“While the essence of the entrapment defense is the defendant’s lack of predisposition to commit the offense, the ‘defense’ of outrageous government conduct presupposes predisposition but seeks dismissal of the indictment on the ground that the conduct of law enforcement agents was ‘so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.’ United States v. Russell, 411 U.S. 423, 431-32 (1973). Thus, the outrageous government conduct defense is not really a defense at all. Rather, it is a claim that the institution of the prosecution suffers from a purely legal defect; as such, the claim is waived unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and (b)(2). See, e.g., United States v. Henderson-Durand, 985 F.2d 970, 973 & n. 5 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980).

The Supreme Court has never held that the government’s mere use of undercover agents or informants, or the use of deception by them, gives rise to a due process violation, although in Russell it left open that possibility. The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be ‘shocking to the universal sense of justice.’ Id. at 432. No court of appeals has held that a predisposed defendant may establish a due process violation simply because he purportedly was induced to commit the crime by an undercover agent or informant. See, e.g., United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir.) (not outrageous for government ‘to infiltrate an ongoing criminal enterprise, or to induce a defendant to repeat, continue, or even expand criminal activity.’), cert. denied, 115 S. Ct. 347 (1994). Defendants who claim to be victims of outrageous government conduct sometimes also argue that the district court should dismiss the indictment in the exercise of its supervisory power. In the absence of a due process violation, however, a district court has no authority to dismiss an indictment on this basis. See, e.g., United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).” See U.S. Attorney’s Manual

 

Historical Context

[Note: that outrageous government conduct affirmative defenses have

almost entirely been limited to police drug stings and

undercover operations related to drugs and a few cases of proscutorial misconduct-there is no precedence providing guidelines for its use in other situations]

 

In United States v. Santana and Fuentes, 6 F. 3d 62 (1993) the court stated:

“Outrageous misconduct is the deathbed child of objective entrapment, a doctrine long since discarded in the federal courts.  See, e.g., Sherman v. United States, 356 U.S. 369, 372 (1958) (rejecting an objective entrapment approach in favor of a subjective approach).  The doctrine’s midwife was Chief Justice Rehnquist (then Justice Rehnquist), who, in the course of championing a subjective theory of entrapment, speculated that the Court might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . .’  United States v. Russell, 411 U.S. 423, 431-32 (1972). Seizing upon this dictum, the defendant in Hampton v. United States, 425 U.S. 484 (1975), attempted to construct an outrageous misconduct defense rooted in the due process clause. Hampton lost his case but succeeded in legitimating the doctrine, albeit precariously.FN4

FN4 In Hampton, a concurrence combined with the plurality to reject the appeal.  However, the two concurring Justices switched sides to form a different majority vivifying the doctrine of outrageous misconduct. See Hampton, 425 U.S. at 491-95 (Powell, J. concurring).


Although it has a comfortably familiar ring, ‘outrageous misconduct’ is

surpassingly difficult to translate into a closely defined set of behavioral norms. The broadest hints as to the content of the outrageousness standard lie in the dictum that spawned the doctrine. Inasmuch as Rochin  v. California, 342  U.S. 165 (1952), is the case irrefragably linked with the legal rubric of fundamental fairness, one hint is found in Justice Rehnquist’s citation to Rochin.  See Russell, 411 U.S. at 431-32. A second hint is contained in Russell’s explicit equation of outrageous misconduct with violations of ‘that ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.’ Russell, 423 U.S. at 432 (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960)). Picking up on these clues, most courts apply a variant on the fundamental fairness standard as a sounding line for outrageousness. See Mosley, 965 F.2d at 910 (collecting formulations).  Although this standard lacks mathematical precision, we agree with Justice Frankfurter that imprecision of this nature does not leave courts without  adequate guidance; rather, ‘[i]n dealing not  with the machinery of government but with human rights, the absence of formal exactitude, or want of fixity of  meaning, is not an unusual or even regrettable attribute of constitutional provisions.’ Rochin, 342 U.S. at 169.          
           The banner of outrageous misconduct is often raised but seldom saluted.  Even though one respected jurist contends that the doctrine belongs in the dustbin of history, see United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir. 1989) (Easterbrook, J., concurring),
FN5 case after case confirms its continued existence. See Moran v. Burbine,  475 U.S. 412, 432 (1985) (‘We do not question that on facts more egregious than those presented here police  deception might  rise to  a level  of a  due process violation’); United  States v. Mosley,  965 F.2d 906, 909 (10th Cir. 1992) (collecting cases  from eleven circuits).  Be that as it may, the doctrine is moribund; in practice, courts have rejected its application with almost monotonous regularity. See, e.g., United States v. Barnett, 989 F.2d 546, 560 (1st Cir. 1993), petition for cert. filed (June 28, 1993) (No. 93-5018); United States v. Lilly, 983 F.2d 300, 309-10 (1st Cir.  1992); United States v. Marino, 936 F.2d 23, 27 (1st Cir. 1991); United States v. Rosen, 929 F.2d 839, 842 (1st Cir.), cert. denied, 112 S. Ct. 77 (1991); United States v. McDowell, 918 F.2d 1004, 1008-09 (1st  Cir. 1990); see also United States v. Panitz, 907 F.2d 1267, 1272-73 (1st Cir.  1990) (collecting pre-1990 First Circuit United States cases declining to invoke the doctrine); United States v. Bogart, 783 F.2d 1428,  1434-38  (9th Cir.) (summarizing elevant  case law), vacated in part on other grounds sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986); United States v. Warren, 747 F.2d 1339,  1342-43 &  nn. 7-8 (10th Cir. 1984) (collecting precedents from various circuits). Indeed, since the Supreme Court decided Hampton, a federal appellate court has granted relief to a criminal defendant on the basis of the outrageous misconduct defense only once. See United States v. Twigg, 588 F.2d 373, 382 (3d Cir. 1978).  The historical record makes it clear, therefore, that the outrageous misconduct defense is almost never successful.FN6

FN5 In  Judge Easterbrook’s  view, the appropriateness of the government’s decision to supply drugs as part of an undercover operation  presents a ‘political’ question that is quintessentially nonjusticiable.  Miller, 891 F.2d at 1272. With respect, we think this conceptualization stretches the military analogy too far.  We adhere instead to the idea that ‘those charged with th[e] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.’ United  States  v. District Court, 407 U.S. 297, 317 (1972).

FN6 In addition to Twigg, one court of appeals invoked the doctrine in an alternative holding, see United States v.  Lard, 734 F.2d 1290,  1296 (8th  Cir. 1984), and  another directed  the district court to determine  whether outrageous misconduct should be found on remand, see Bogart, 783  F.2d at 1438.  A smattering of district courts have also applied the outrageous misconduct doctrine to the defendant’s advantage.   See, e.g., United States v. Marshank, 777  F. Supp. 1507, 1524 (N.D.  Cal. 1991); United States v. Gardner, 658 F. Supp. 1573, 1577 (W.D. Pa. 1987); United States v. Batres-Santolino, 521 F. Supp. 744, 751-52 (N.D. Cal. 1981).


          There are two competing visions of the doctrine’s role. One school of thought holds that the defense should be confined to cases involving extreme physical, and possibly psychological, abuse of a defendant.  See United States v. Kelly, 707 F.2d 1460, 1476 n.13 (D.C. Cir.) (per curiam)  (collecting cases),  cert. denied, 464  U.S. 908 (1983).  A second school of thought holds that outrageous misconduct may also function as a kind of supplement to  the entrapment  defense, reserved for  those cases where law enforcement personnel become so overinvolved in a felonious venture that  they can fairly be said either to have ‘creat[ed]”  the crime or to have ‘coerc[ed]’ the  defendant’s participation  in it. Mosley, 965 F.2d at 911-12; see also Bogart, 783 F.2d at 1436-38. This case does not require us to choose between these two conceptions of the doctrine….
               Having traced the evolution of the doctrine of outrageous misconduct, we proceed to consider its applicability in this case. Although what transpired here fits neither of the conventional patterns of outrageous misconduct described above, the district court nonetheless ruled that furnishing the hefty heroin sample (and then losing track of it) comes within the doctrine’s sweep. We conclude, for two independently sufficient reasons, that the district court erred….
          Nevertheless, we do not think that the inquiry into outrageousness can usefully be broken down into a series of discrete components. Almost by definition, the power of a court to control prosecutorial excesses through resort to substantive aspects of the due process clause is called into play only in idiosyncratic situations and such situations are likely to be highly ramified. Where facts are critically important and fact patterns tend to be infinitely diverse, adjudication can often best proceed on a case-by-case basis.  The outrageousness defense falls into this category. Thus, it is unproductive to force the determination of outrageousness into a mechanical mode….
          Let us be perfectly plain. We find that outrageousness, by its nature, requires an ad hoc determination….

At bottom, however, outrageousness is a concept, not a constant. What shocks the conscience in a given situation may be acceptable, though perhaps grim or unpleasant, under a different set of circumstances. Slashing a person’s throat with a sharp knife may be an unrelievedly outrageous course of conduct if one thinks in terms of Jack the Ripper, helpless women, and the shadowy streets of London; the same behavior will be thoroughly acceptable, however, if the knife is a scalpel, the knife-wielder a skilled surgeon performing a tracheotomy, the target a patient, and the venue an operating room. Although we recognize that formulaic tests offer administrative convenience and ease in application, we also recognize that neither life nor law can always be made convenient and easy. So here: there is simply no way to reduce the myriad combinations of potentially relevant circumstances to a neat list of weighted factors without losing too much in the translation. Cf. Borden v. Paul Revere  Life Ins. Co., 935 F.2d 370,  380 (1st Cir. 1991)  (discussing ‘outrageousness’  in the context  of tort liability and concluding that ‘[t]here  is no  universal litmus test that a court can utilize to determine whether behavior is extreme and outrageous’)….

 

[FN presented without text referencing it] FN11 We do not totally reject the possibility, suggested by the court below, that outrageous misconduct may be found apart from situations in which the government has used brutality or induced commission of a crime.  We simply note that the case at hand does not require us to explore this doctrinal frontier….

 

Generally speaking, an outrageous misconduct defense can prosper only if a

defendant’s due process rights have been violated….

            [T]he outrageous misconduct doctrine, no matter how cramped its confines, is not entirely mummified. Should the occasion and the necessity arise, we continue to believe that the law will prove itself adequate to the task of preventing the government from going too far. In the war on crime, as in conventional warfare, some tactics simply cannot be tolerated by a civilized society.”


Santana, Id.

 

 

Dated: April 4, 2007

                                                                        Respectfully submitted,

 

 

                                                                        Linda L. Shelton

                                                                        Pro Se Defendant

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

Void for Vagueness Doctrine – Applied to IL Medicaid Fraud


 I was unlawfully convicted of criminal contempt for telling Dishonorable Judge Kathleen Pantle that she was aiding and abetting the criminal and impeachable conduct of IL Attorney General Lisa Madigan, as well as the fact that she was violating her oath of office by continuing with the criminal case against me although she had no jurisdiction.

 

In order to preserve the issue for appeal and because Dishon. J. Pantle refused to appoint a public defender after de facto removing me as Pro Se Counsel by making a written order that I was NOT ALLOWED to file any pleadings [an unconstitutional act that violates her oath of office], I firmly but politely stated I was leaving and not coming back (because she had no jurisdiction and the case was bogus) and turned around and tried to leave.

 

I was immediately arrested and immediately summarily convicted of criminal contempt and sentenced to 30 days in CCDOC. [More about all this later!] This memorandum was given to IL Supreme Court on my direct appeal of this criminal contempt conviction [a petty offense]. The IL Supreme Court denied leave to appeal – [ignored my appeal and made no ruling and refuse to consider it.] This criminal contempt case is presently before the U.S. District Court on a habeas corpus petition, as I have exhausted state remedies. If denied the Circuit Court of C[r]ook County may lift the stay on my sentence and I will have to serve the remaining 13/30 days of the sentence and surrender to the C[r]ook County Sheriff. This would be a gross injustice [see following two posts also]. 

 

As you all should know, under the IL Constitution a citizen has NO RIGHT to an appeal to the IL Supreme Court. Appeals there are by permission and they only take about 5/100 cases, usually if they find it interesting. Only Capital Cases have a right to appeal to IL Supreme Court. Therefore, the IL Appellate Court is ususally the end of the line except you can appeal by means of habeas corpus to Federal District Court AFTER you exhause all state remedies. [Appeal through IL Supreme Court AND file IL habeas corpus petition by means of motion for leave to file it to IL Supreme Court – which takes two to three years in IL – 6 mo to two years in other states].

 You might also want to note the discrimination against Pro Se Defense Counsel and the double standards. In similar cases regarding defense attorneys the judges usually sentence them to $500 fine. I don’t think 30 days for a pro se counsel = $500 for an attorney. This is grossly disproportionate.

No. 105037

______________________________________________________________________________________

 

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

 

)  Petition to Appeal as a Matter of Right

) or in the Alternative Petition for Leave

) to Appeal

                                                                        ) 

LINDA SHELTON                                         )  On Appeal from Appellate Court, First

            Defendant-Appellant-Petitioner            )  District, No. 05-2053

) 

v.                                             )  There Heard on Appeal from Circuit

)   Court of Cook County, County

)   Department, Criminal Division

                                                                        )  

)   No. ACC 050087-01

            )  

STATE OF ILLINOIS                                    )   Honorable Judge Kathleen Pantle,

            Plaintiff-Appellee-Respondent               )           Trial Judge

                                                                        )   Order of Trial Court May 10, 2005

)   Order of Appellate Court

)                       June 19, 2007

 

MEMORANDUM OF LAW – VOID FOR VAGUENESS DOCTRINE

 

            Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding void for vagueness doctrine.

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

            The vagueness doctrine holds that a person cannot be held liable for conduct he could not reasonably

            have been expected to know was a violation of law.  It is well-settled that, as a matter of due process, a

            criminal statute that fails to give a     person of ordinary intelligence fair notice that his contemplated

            conduct is  forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and

            convictions is void for vagueness. [United States v. Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999)

            (as amended)]

 

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

            The constitutional requirements of definiteness is violated by a criminal statute that fails to give a person

            of ordinary intelligence fair notice that his contemplated       conduct is forbidden by the statute. The

            underlying principle is that no man shall      be held criminally responsible for conduct which he could not

            reasonable understand to be proscribed. [Id.at 617 (citations omitted)]

 

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

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

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

            Especially where a regulation subjects a private party to criminal sanctions, ‘a regulation cannot be

            construed to mean what an agency intended but did not adequately express.’ 

            Diamond Roofing Co.,Inc. v OSHRC, 528 F.2d 645, 649      (5th Cir 1976). As

             Bethlehem Steel made clear, ‘if the language the Secretary has the means and obligation to

             amend.’ [Ward, 2001 U.S. Dist. LEXIS    15897, *19 – *19 (quoting

            Bethlehem Steel v. Occupational Safety and Health Review Comm’n, 573 F.2d 157, 161

            (3rd Cir. 1978)).]

 

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

            In the criminal context, courts have traditionally required greater clarity in  draftsmanship than in civil     

           contexts, commensurate with the bedrock principle that in a free country citizens who are potentially

           subject to criminal sanctions should have clear notice of the behavior that may cause sanctions to be

           visited upon them.[;]

 

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

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

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

            The vendor fraud case against Defendant and similarly situated defendants is void for vagueness, similar to the Siddiqu and the Vainio cases as explained in the precedent setting and controlling cases such as Harriss, Gresham, and Brierton. “Void for vagueness” means criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Chandler, 66 F. 3d 1460 (8th Cir. 1995) The vendor fraud case against Defendant and similarly situated defendants clearly falls under the void for vagueness doctrine and should have been dismissed ab initio.

 

Dated August 12, 2007.

                                                            Respectfully Submitted,

 

                                                                                _____________________________

                                                                                Linda L. Shelton

Plaintiff-Appellant-Petitioner Pro Se

 

 

Prepared By:

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

Cook County Good Time Jail Credit – Memorandum of Law


I was unlawfully convicted of criminal contempt for telling Dishonorable Judge Kathleen Pantle that she was aiding and abetting the criminal and impeachable conduct of IL Attorney General Lisa Madigan, as well as the fact that she was violating her oath of office by continuing with the criminal case against me although she had no jurisdiction.

 

In order to preserve the issue for appeal and because Dishon. J. Pantle refused to appoint a public defender after de facto removing me as Pro Se Counsel by making a written order that I was NOT ALLOWED to file any pleadings [an unconstitutional act that violates her oath of office], I firmly but politely stated I was leaving and not coming back (because she had no jurisdiction and the case was bogus) and turned around and tried to leave.

 

I was immediately arrested and immediately summarily convicted of criminal contempt and sentenced to 30 days in CCDOC. [More about all this later!] This memorandum was given to IL Supreme Court on my direct appeal of this criminal contempt conviction [a petty offense]. The IL Supreme Court denied leave to appeal – [ignored my appeal and made no ruling and refuse to consider it.]

 

As you all should know, under the IL Constitution a citizen has NO RIGHT to an appeal to the IL Supreme Court. Appeals there are by permission and they only take about 5/100 cases, usually if they find it interesting. Only Capital Cases have a right to appeal to IL Supreme Court. Therefore, the IL Appellate Court is ususally the end of the line except you can appeal by means of habeas corpus to Federal District Court AFTER you exhause all state remedies. [Appeal through IL Supreme Court AND file IL habeas corpus petition by means of motion for leave to file it to IL Supreme Court – which takes two to three years in IL – 6 mo to two years in other states].

 

No. 105037

______________________________________________________________________________________

 

In the

 SUPREME COURT

Of The State of Illinois

______________________________________________________________________________________

 

)  Petition to Appeal as a Matter of Right

) or in the Alternative Petition for Leave

) to Appeal

                                                                        ) 

LINDA SHELTON                                         )  On Appeal from Appellate Court, First

            Defendant-Appellant-Petitioner            )  District, No. 05-2053

) 

v.                                             )  There Heard on Appeal from Circuit

)   Court of Cook County, County

)   Department, Criminal Division

                                                                        )  

)   No. ACC 050087-01

            )  

STATE OF ILLINOIS                                    )   Honorable Judge Kathleen Pantle,

            Plaintiff-Appellee-Respondent              )           Trial Judge

                                                                        )   Order of Trial Court May 10, 2005

)   Order of Appellate Court

)                       June 19, 2007

 

MEMORANDUM OF LAW – GOOD TIME JAIL CREDIT

 

            Defendant, Pro Se, respectfully presents to this Honorable Court the following memorandum of law concerning statutes and case law regarding good time county jail credit.

            Under the Illinois County Jail Good Behavior Act, 730 ILCS 130, good time credit is automatic unless an administrative due process hearing initiated by the sheriff revokes the good time credit. The Circuit Court of Cook County and Illinois Appellate Courts have no legal authority in regard to revoking good time credit, as they are bound by statute, which authorizes the administrative hearings at the jail to provide the due process hearing, which by statute, must precede any revocation of good time credit.

            Silence on the record on appeal, regarding this issue, is therefore mandated to be in favor of the defendant.   Unless the State can prove that a due process administrative hearing was held revoking good time credit automatically granted to defendant, this court is legally bound to order that good time credit is granted. As the granting of credit is automatic, it is the burden of the state to prove it has been revoked by a due process administrative hearing, which it failed to do. To put the burden on the defendant violates statutes, due process, and legal precedent.

            The Fifth District Appellate Court, in People ex rel. Yoder v. Hardy, 116 Ill. App. 3d 489, 45 N.E.2d 965, 71 Ill.Dec. 811 (1983), citing the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), stated that a prisoner has a constitutional liberty interest to due process that binds a department of corrections to follow its own regulations in revoking good time credit. When statutorily required procedures (an administrative hearing) for revoking good time credit are absent from the record, then good time credit must be presumed to stand.

            The fact that the good time credit is statutorily automatic, relieves the defendant from the burden of proving he/she applied for it and was granted it (no application is required by statute.)  It is an error of law for the Appellate Court to state, by fiat, that the defendant must prove that he/she earned good time credit or that the correctional facility employees must determine that his/her behavior was good before granting good time credit.

            The Appellate Court ruled erroneously in case at bar that a silent record in this regard is decided against the defendant. The opposite is true in the case of an automatic awarding of good time credit when the record does not support ANY evidence of an administrative hearing revoking good time credit.  The absence of an administrative order removing good time credit from the record proves that good time jail credit applies and was not revoked.

                It is inappropriate for the Appellate Court to sue sponte revoke good time credit by fiat, as it did in the case at bar (SCA B9-10, 12). The Appellate Court is legally bound to uphold the law and follow higher court precedent.

           

Dated August 11, 2007.

                                                            Respectfully Submitted,

 

                                                                                _____________________________

                                                                                Linda L. Shelton

Plaintiff-Appellant-Petitioner Pro Se

 

October 21, 2008

More Outrageous Conduct Judge Maria Kuriakos Ciesil and Judge Angela Petrone


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

                                                                                                October 8, 2008

 

Honorable Judge E. Kenneth Wright, Jr.

Presiding Judge

First Municipal District

Circuit Court of Cook County

1303 Richard J Daley Center

50 W. Washington

Chicago, IL  60602

 

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

 

Dear Honorable Judge Wright:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Please enjoy reading the Internet about corrupt Illinois judges:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

 

 

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

 

                       

                                                Sincerely with disgust and despair over this tyranny,

 

 

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

 

Cc:

Chief Judge Evans

Cook County Commissioners

FBI

Posted and published on Internet

 

 

 

 

 

October 17, 2008

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


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

October 4, 2007 LETTER

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

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

Dear Honorable Judge Wright:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

725 ILCS 5/104‑14

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

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

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

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

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

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

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

Cc: Chief Judge Evans

Cook County Commissioners

Posted and published on Internet

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

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

William Lloyd Garrison

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

George Orwell

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

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

MOTION FOR FORENSIC CLINICAL EXAM

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

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

Dated: October 17, 2006

Respectfully submitted,

Linda L. Shelton

Pro Se Defendant

Older Posts »

Create a free website or blog at WordPress.com.

%d bloggers like this: