God’s Gunner’s, Booty Bandits, & Bad Boys
By R25288 ( c ) 2006-2007
Chapter Nineteen
No Mens Rea, No Mea Culpa
“Send lawyers, guns, and money, dad get me out of this….I’m an innocent bystander, but somehow I got stuck, between a rock and a hard place, and I’m down on my luck…I’m a desperate man. Send lawyers, guns, and money, the shit has hit the fan.”
Warren Zevon
“Agree with thine adversary quickly, while thou art in the way with him; lest at any time the adversary deliver thee to the judge, and the judge deliver thee to the officer, and thou be cast into prison.”
Matthew 5:25
It was a fine line. I didn’t know the line was there. I didn’t see the line. I crossed the line. Mens Rea is Latin for guilty mind or criminal intent. Mea Culpa is Latin for my fault.
In 1965, John, Mary Beth, and I saw the line. We knew the line was wrong. We crossed the line. We told the world. It was an act of civil disobedience. We changed history.
In 2000, I crossed the line. I told the world. It wasn’t an act of civil disobedience. I lacked one of the key elements of criminality. I lacked mens rea-guilty intent.
Simplistically, the law said you may not cross Cleveland Street at 4:17pm on Mondays, when the sun is shining. Not only did I cross Cleveland Street at 4:17pm, on Monday, when the sun was shining, but I filed court papers with the Pinellas County Clerk of Court to tell them that I did. It was not an act of civil disobedience. I did everything in broad daylight. I tried to hide nothing. I filed court papers to inform the court of all of my actions. I left a paper trail a mile long. That is not the behavior of a criminal. That was my behavior, because I am not a criminal. I believed all of my actions were legal. I had no mens rea. The court had a responsibility to inform the jury of my belief that my actions were not criminal. The court failed its’ responsibility. I did not ask the court to go to prison for four years, three months, and two weeks for its’ mistake.
The court could have sent me to prison for fifteen years. Five years in prison was judicial extremism in my case. However, fifteen years in prison would have been judicial extremism that would have been easier to prove. Am I to say that I am grateful that I only received a five year sentence, and not fifteen? I am!
The court offered me a two year deal, Virginia, if I would only say I was guilty. I was not guilty, so I exercised my right to a trial, and self representation. The system prefers if you play by their rules. If you don’t, they will punish you more harshly, as I discovered. Self representation is an affront to the court, even if constitutional.
Faretta and the Sixth Amendment
His name was Faretta. In 1975, the United States Supreme Court ruled he had the right to represent himself at trial. They stated:
“The Pennsylvania Frame of Government of 1682, perhaps ‘the most influential of the Colonial documents protecting individual rights’…provided:
“That in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves;…”
I believed that in my closing remarks I would be free to explain to the jury my side of the case. The court did not allow me to do so. I believe this violated the Faretta principal, in that, persons may “appear in their own way, and according to their own manner, and there personally plead their own cause.”
In every court in America, judges know that individuals who elect to represent themselves, will overwhelmingly be found guilty. With such knowledge, and in the interest of justice, the system, at a minimum, must at least follow the principals of Faretta, as outlined above. In my case, it did not happen, which in turn denied me a fair trial.
Chief Justice Burger said in his intelligent dissent:
“The fact of the matter is that in all but an extraordinary small number of cases an accused will lose whatever defense he may have if he undertakes to conduct the trial himself…
“Although we have adopted an adversary system of criminal justice…the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term is achieved in every criminal trial…
“The goal is ill served, and the integrity of and public confidence in the system are undermined, when an easy conviction is obtained due to the defendants’ ill-advised decision to waive counsel. The damage thus inflicted is not mitagated by the lame explanation that the defendant simply availed himself of the “freedom” to go to jail under his own banner…
“The system of criminal justice should not be available as an instrument of self-destruction.”
Under U.S. v Stubbs, 281 F. 3d 109 (3rd Cir.2002):
A reversal is required where record indicated he did so only because of his mistaken belief he could use closing argument in lieu of testifying at trial.
Under Strozier v Newsome, 926 F.2d 1100 (11th Cir. 1991):
…the district court should inform the defendant of…basic trial procedure,…the defendant understanding of the rules of evidence, procedure and courtroom decorum, the extent to which standby counsel aided in the trial.
My standby counsel did not even remember the trial date as he states on page three of my transcripts.
The court never informed me of basic trial procedures. I was not even aware of the need for an objection required to raise issues on appeal.
From April till August, 2001, standby counsel and I had no strategy session or discussions of the upcoming trial other than to tell me that I was on my own. We did not meet before, during, or after trial sessions to discuss anything.
Under Fitzpatrick v Wainwright, 800 F.2d 1057 (11th Cir.1986):
During Faretta, defendant should be made aware of the nature of the charges, possible defenses, and possible penalties.
The court never informed me of any possible defense, and I never had any previous criminal trial experience.
Under Strickland v Washington, 104 S. Ct. 2052 (1984):
“Government violates right to effective assistance of counsel when it interferes in certain ways with ability of counsel to make independent decision about how to conduct defense.”
This occurred in my trial, because out of expediency, I was denied two witnesses for the defense(one was a black man-the only black in the trial-the jury had one black person), while the prosecution was never denied any witnesses. The prosecutor chose to delete some witnesses when I brought it to the courts’ attention that I had been denied these witnesses in discovery.
Under Picot v State, 280 So.2d 693 (1973):
“Refusal of judge to permit defense to call witnesses was abuse of discretion.”
Under Wilkerson v State, 461 So, 2d 1376 (1985):
“Reversible error when court excluded 2 defense witnesses.”
The prosecutor refused to meet with me prior to trial. While I am not allowed to argue ineffectiveness of self representation, it is a farce if I am denied rights, processes, and procedures that others enjoy who have an attorney.
Again from U.S. v Stubbs (above):
“Moreover, inasmuch as the right to counsel is fundamental to due process and the criminal justice system, its denial can never be harmless error.”
I contend that I was denied the full rights of Faretta, as outlined above, and as such, is fundmental error, which requires a reversal of conviction.
I was never provided, nor may they exist, but transcripts from my June 5th, 2001, hearing would more fully point out other Faretta and due process violations that occurred in my case. Justice is ill served when the poor, the homeless, the blacks, and Hispanics are incarcerated without necessary transcripts for appeal.
The Fourteenth Amendment
The Equal Protection and Due Process Clause of the 14th Amendment requires fairness, which the court denied me.
Fundamental fairness was not met in my case due to my obtaining a Motion for Costs to proceed with depositions on July 19th, 2001, which I informed the court of on August 1st, 2001. The court did not allow me to do depositions, which I wanted to do. The court left me helpless at trial, because I had no idea what may be said against me, or being prepared to rebut them.
The 14th Amendment states:
“(N)or shall any State deprive any person of life, liberty, or property, without due process of law.”
Under Sochor v State, 619 So. 2d 285 (1993):
This court also defined fundmental error as one “where the interests of justice present a compelling demand for its application.”
As a pro se litigant at the trial level, I should have been allowed to do depositions. I was not a threat to anyone, as I had been ROR (released on own recognizance-meaning free without bond) from my arrest until trial, approximately one year.
In April, 2001, when I asked to represent myself, the Public Defender told me they would cover deposition costs. In June, he informed me I had to pay myself. It took me until July, to find in the law books how to file a Motion for Costs, so I could proceed with depositions. He never pointed me the right direction to find those procedures.
The courts have accorded pro se litigants liberal interpretations to effect justice.
Under Andrews v State, 160 So. 2d 726 (1964):
“Motion to vacate judgment and sentence filed by pro se should not be scrutinized for technical niceties.”
Under French v State, 161 So.2d 874 (1964):
“Generally, grant or denial for continuance is discretionary…, but where order amounts in essence to deprivation of rights of due process, ruling may constitute proper ground for relief.”
Under Thomas v State, 164 So. 2d 857 (1964):
“Pro se motions, petitions, and letters seeking relief shoud be applied to effect justice and afford indigent advantage denied him by his lack of legal training, and should not be invoked to create further disadvantage.”
Under Delgado v State, 706 So.2d 328 (1998):
“Prejucicial effect on defendant’s trial preparation is reversible error.”
I was representing myself, but all of discovery had never been furnished to me, and the court failed to correct it, denying me a fair trial.
On page 245 of my transcript, the court states that it has never seen a tape involved in my case, yet on page 251, the court states that it has reviewed it. Can it be both ways?
Under Felton v State, 812 So. 2d 524 (2002):
Discovery violations that prejudiced the opposition’s ability to prepare for trial require a reversal of conviction.
On page 337 of my transcripts, the prosecutor states that depositions were done of witnesses, however I was never provided them.
Under Buhl v Cooksey, 233 F. 3d 783 (3rd Cir. 2000):
“Where fundamental rights are at stake in a criminal trial, a rigid insistence on expedition of the trial in the face of a justifiable request for delay can amount to a constitutional violation.”
Under Richardson v State, 246 So. 2d 771 (1971):
Violation of discovery calls for reversal if record discloses that noncompliance with the rule resulted in prejucice or harm to the defendant.
1. I contend that I was convicted.
2. I contend that a conviction is harm to a defendant.
3. I contend that there were violations of discovery in my
case.
4. I contend that my case calls for a reversal of conviction.
Again, under Richardson v State (above):
“…if it should affirmatively appear that the State failed to furnish to the defendant the name of a witness known to the State to have information relevant to offense charged against the defendant, or to any defense of the defendant with respect thereto, and the latter situation resulted in harm or prejudice to the defendant, an appellate court reviewing his conviction must reverse.”
The court bought into the prosecutors’ argument against providing me a just and fair trial when the prosecutor states on page thirty-three of the transcript, “He made that choice, and if he is going to be ineffective, that’s his own choice, and there is no 3.800 or 850 post-conviction cause on ineffective assistance of self.”
“the prosecution is more than an ordinary litigant, and the trial judge is not simply an automaton who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial…” OK, Virginia, for $200.00 and a chance to pass go, who said that?
From a tape being withheld from me, to four witnesses being withheld from me, to being denied witnesses for myself, to being denied the right to doing depositions, to receiving a sentence that no one in the state, or country had ever received before for my alleged crime, justice was denied me. My crime Virginia, was being a gay Democrat, Vietnam War protester, in a Vietnam Veteran, Republican courtroom.
Under Wilson v State, 789 So. 2d 1127 (2001):
“Question of prejudice in context of discovery violation does not turn on whether the undisclosed evidence might have affected the outcome of the trial; rather, the issue is whether the discovery violation affected the defendant’s ability to prepare for trial.”
Under Florida Rules of Criminal Procedure 3.220 (b) (1) (A):
Requires the State to furnish the “names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto.”
I was never made aware of four state witnesses, and one videotape the state possessed until after the trial began. The court never held a Richardson hearing, as required by law. I was never allowed to view the videotape, or interview the four witnesses.
Abuse of Discretion by the Court
Under Brownlee v State, 116 So. 2d 618 (1928):
“Judgment shall be rendered in such manner as will not foster influence or suspicion of judge’s fairness or integrity.”
This did not happen in my case, as the judge made faces during my trial that I observed, standby counsel observed, and the jury observed. His language, attitude, and body language throughout the trial was undeniably prejudiced from the beginning. My trial was not a search for the truth, or about justice and fairness. His mind was made up before the trial began, and subsequently, I was denied a fair trial.
“Judges are the weakest link in our system of justice, and they are the most protected.”
Alan Dershowitz
As stated by standby counsel, at my sentencing, on page 198 of the sentencing transcript:
“Judge when he put his mother up before this jury, I looked at the look on your face and I said, Oh, boy. I’m going to have to deal with this one day at sentencing.”
As stated by the court, at my bail hearing of October 31st, 2001(pages 217-218):
“And if you were sitting in the trial you would have been able to make faces like I wanted to be able to make them, and roll your eyes up inside your head, as I wasn’t able to do, as you watched this man call witnesses on his behalf whose only purpose seemed to be to put additional nails in the coffin of conviction.”
Not only did the court prejudge me, the court was not an impartial mediator of unclouded and untarnished judgment. The court not only wanted to make faces at me, the court did, in fact, make faces at me during trial, as evidenced above, in front of the jury, either consciously or unconsciously. Not only did the court make faces at me, the court wanted others to make faces at me also, as in, “you would have been able to make faces.” The jury, like standby counsel and myself picked up on the courts’ partiality. They made their own face with a guilty verdict. It was a verdict fostered by the courts’ attitude, language, demeanor, and a denial of American justice.
Under Tobey v State, 533 So. 2d 1198 (1998):
When defense has properly asserted a claim of right defense(belief of innocense), then failure of the trial court to instruct the jury regarding such defense even absent a request for claim at right instruction or objection to its omission, constitutes fundamental error.
Failure to give instruction on defense encompassed within evidence is fundamental error and reviewable notwithstanding absence of requested instruction or objection.
Under Thomas v State, 526 So. 2d 183 (1988):
Failure to instruct jury that armed robbery defendants’ belief that bicycle belonged to him constituted lawful defense to offense charged was fundamental error where there was evidence that defendant in fact held such belief and “good faith” defense was very basis of defendant’s position at trial.
Under F.S.(Florida Statutes) 924.14-Stay of execution when defendant appeals:
An appeal by a defendant from either the judgment or sentence shall stay execution of the sentence, subject to provision of s. 924.065.
My lawyer informed the court that I was appealing, at the end of sentencing. The court did not stay my execution, but signed papers that day to send me to prison, in violation of my rights and the law. One week later before my appeal was heard, I was shuffled off to prison in the middle of the night, and not allowed to call anyone from October 16th, 2001, until January, 2002.
Under F.S. 921.005 - Criteria for Sentencing:
“(1)(a) A court shall not impose a sentence of imprisonment unless, after considering the nature and circumstance of the crime and the prior criminal record, if any, of the defendant, the court finds that imprisonment is necessary for the protection of the public…”
At my initial bail hearing of October 31st, 2001, page 218 of sentencing transcript, the court stated that I was not a threat to the public.
I was offered a twenty-one month sentence if I would plead guilty. Under former sentencing guidelines, I would have been given a twenty-eight month sentence. I received a one hundred and eighty month sentence.
“The virtue of justice consists in moderation, as regulated by wisdom.”
Aristotle
“In the Halls of Justice the only justice is in the halls.”
Lenny Bruce
“I have fought a good fight, I have finished my course, I have kept the faith.”
II Timothy 4:7
