State of Georgia, Plaintiff } Case No: 2004CR270C } v. } Charges: } Obstruction of Lawrence Patriot, Defendant } an officer (2).
Motion in Support of Post Conviction Relief
I, Lawrence Patriot, make a Motion for Post Conviction Relief because of the recent case State of Georgia v. Dukes (2006 Ga. App. (A06A0551)) that closely parallels my own case. State v. Dukes sets new precedent for the State of Georgia on the interactions between law enforcement and citizens. Georgia law is now officially in congruence with Supreme Court decisions. This illumination was not available at the time of my trial.
1. In the case of State v. Dukes, the case focuses on the issue of whether Dukes was lawfully arrested and the legality of the ensuing search of his vehicle. The judges are very clear that central to determining whether or not the police action was legal is whether or not the police had probable cause. In the case of State v. Dukes, Dukes runs away from the officer. The court determined that Duke was in his lawful right to do so.
2. This in many ways parallels my own case where the officers approached us law-abiding protestors and demanded our names. Believing that this was improper police procedure, I chose to "run away" from the scene of an alleged crime.
3. Throughout my trial (I was Pro Se), I would argue that the initial police action was invalid due to the credibility of the person(s) making the report, which would make the resulting police action invalid. My appeals lawyer later explained to me that a police officer is in his right to approach a citizen and ask a question as an ordinary citizen to another citizen. This is true; I have read the Supreme Court cases. What was NEVER explained to me is that under the same situation, the citizen has the right to remove himself from questioning, even by running if that is his desired method of leaving.
4. I was given the false impression that the police have all the authority and the citizen has none. It does not matter that the citizen has done no wrong; the police still have the right to "round us up like cattle," even if that rounding up is initially in name only.
5. In the May 2006 case State v. Dukes, the Appeals Court of Georgia explains in clear precise terms the rights and responsibilities of the citizen under what they define as first tier investigation. This case eradicates this false impression created by my judge, prosecutor, and lawyer.
6. The initial report was never investigated so the court may never be able to determine its credibility.
7. In the courtroom when I tried to address the issue of the legality of the police action based on probable cause, I was shut down numerous times. Any argument on the issue of probable cause that I tried to bring up was quickly brushed aside by both the prosecutor and the judge as being irrelevant. The only issue under the microscope that day was my initial action of running away (obstruction of justice misdemeanor) followed by my alleged action of making a motion AS IF to strike an officer after I was surrounded by the police (obstruction of justice felony). It was emphasized to the jury that I broke the law and it was their duty to convict me based on the facts.
8. Johnson, the Presiding Judge of State v. Dukes, affirms the following:
The dispositive issue in this case is whether police officers had probable cause to arrest Timothy Dukes for obstruction. Because the officers did not have probable cause to arrest Dukes..[Paragraph 1].
In my case, State v. Georgia, the reason why a group of protestors were being detained is given by Officer Eller:
I told them that we had a situation where a rock had been thrown into a school bus and we needed the names of all the demonstrators in that area. [Transcript Page 83]
According to Eller's testimony, a moment later we were told to "just identify [our]selves."
9. This may seem like an innocuous request on the surface, but it was enough to send me into a panic attack. The police approached us with a determined stride that left me with the understanding that giving our names was not voluntary. It felt like we were being rounded up like cattle. One witness expressed that "the policemen converged on us."(T-page 137). Another witness testified "Those officers just came charging like they were gonna lock everybody up" (T-page 163). I would later testify that I was sensitive to this sort of thing (T-page 216) lacking street sense.
10. As part of a patriot organization, I am extremely sensitive and aware that our country is moving toward a fascist/communistic state. It is my belief that the databases of today will become the death camps of tomorrow. Call it paranoia if you will, but it is my belief that people are being rounded up in name only right now so that during a "national crises," these "enemy combatants" can be rounded up physically with efficiency. The concentration camps that are being built across America right now is further evidence that our government is planning some sinister scheme.
11. At the very least, these names could have been handed over to the school "authorities" so that they would have an opportunity to identify which of us demonstrators were parents who had children in the school so that they could retaliate. There were people among us who have witnessed such things before. That was one of the reasons why we were protesting in the first place. There is no law that I am aware of to prevent this unauthorized use of names.
12. I was also sensitive to the fact that we were being accused of throwing rocks at little children. (T-page 137) This fear was realized when the local paper trumpeted that very accusation. The newspaper accepted the superficial police report that a rock was thrown without inquiring as to whether that alleged crime was substantiated by the facts.
13. Notice that the officer testified that "we needed the names of ALL the demonstrators." (Emphasis added, T-Page 83). It was apparent that they did not have a clue whom would have thrown a rock. Mind you, our protestor group was spread out over about 50 feet. You would think that the police would be able to isolate from where a rock was thrown if in fact one was thrown. The police even requested names from the other protest location over 500 feet away, which indicates that the police did not have a clue as to where this crime was allegedly committed. The crime was never established let alone proven and given the ubiquitous presence of the police; it would have been extremely improbable for something of its kind to have occurred. All of us demonstrators understood this; why were the officers so slow to understand? One witness called it "preposterous" (see T-page 139, also 160). At the very least, this was very poor police work that lacked proper communication between the officer making the radio call and the officers present at the alleged crime scene.
14. A few questions before as recorded in the transcript of State v. Leitgeb, this same Officer Eller testified that a call came on the radio that a rock "had broke the glass." (T-page 83) Later he testifies that he did not see or hear anything that might indicate that this crime had been committed (T-page 90). The only source of information -- or should I say accusation -- was from the radio. This is further proof that there was no probable cause.
15. In the case of State v. Dukes, the police were not present at the time of the incident. The court determined that the call alone was not enough to substantiate a crime that would raise the police-citizen interaction to second tier. In my case of State v. Leitgeb, the police were present at the time of the alleged incident, AND THEIR TESTIMONY CONTRADICTS THE RADIO REPORT. The sheriff's deputy Marsha Brock may have made the call, but she was not anywhere near the alleged crime scene. This tells us that she was acting on the tip from an informant of unknown reliability. Who this informant was has never been established despite my requests for discovery. Given that the circumstances in my case are far less conclusive than they were in Dukes case, this court should rule that this police-citizen interaction was first tier.
16. What is especially troublesome is just how poorly this incident was investigated afterwards. Even today, if you were to ask the Sheriff or his deputies whether or not there actually was a broken window, they would probably answer that they do not know. Even today, if you were to ask them if a rock had been thrown, they would probably answer that they do not know. It was because this incident was so poorly investigated -- or at least if it was I never received confirmation of it through the discovery -- that I chose to go to trial and not accept the plea bargain. I wanted the truth!
17. I grew up always believing that it is wrong to trump charges against someone just because you do not like them. We already knew that the middle school principle was a liar; it was the reason why we were protesting. We had believed up until the trial itself that the middle school principal herself was the source of the wrongful accusation. That was the inference we got from bits and pieces of the radio conversation at the "crime scene."
18. The shear improbability of this incident contributed to my "anger." It was apparent to me, as it was everyone else that we were being set up. My sense of injustice was heightened by the fact that there were cops all around that day. According to the police officers' testimony, two were present on location, one was in a vehicle in one direction and two others in the other direction at an intersection. (Reference T-pages 87, 98)
19. In the case of State v. Dukes, the initial report is key to determining whether or not the officers had probable cause to arrest Dukes:
On October 21, 2004, a patrol officer with the Whigham Police Department received a report from somebody that some people, including Dukes, were dealing drugs near the Whigham Country Store. [Paragraph 3]
In addition, the police officer present at the alleged crime scene had his own observations of suspicious activity:
The officer, who said he had previously received similar reports, drove to the store and saw Dukes and others there. The officer saw a man approach Dukes, someone point to the officer's patrol car across the street, and Dukes and the man then walk in opposite directions. [Paragraph 3]
20. In my case of State v. Leitgeb, officers were ubiquitously present at the site and none witnessed any rock being thrown and the two closest officers to our protest group told us so at the same time they were collecting names. One officer (Officer Payne) is seen testifying to this effect on the video that was presented in the courtroom (see t-page 222). The other (Officer Eller) states this plainly in his testimony. (T-Page 90).
21. In the case of Dukes, he was soon arrested for fleeing.
Dukes placed the items in his pockets onto the table and then ran around the back of the building. The officer and another task force officer chased after him. Behind the building, Dukes tripped and the officers caught him. The task force officer who had been questioning Dukes immediately arrested him, placing him in handcuffs, for obstruction of an officer by fleeing. [Paragraph 5]
22. This parallels my case because I was charged with fleeing after refusing to give my name. (Although I was not actually fleeing, I was running toward a mentor on the other side of the school who I believed could tell me if this police action was legal.) Here is an excerpt from the prosecutors opening arguments in my trial:
[Leitgeb] obstructed Jeremy Eller of the Stephens County Sheriff's Department in the lawful discharge of his official duties by refusing to give his name and by fleeing from Deputy Eller who was assisting in investigating a crime. [T-Page 68]
Officer Eller supports this position with the statement "I told him not to run." (T-Page 85)
23. The only explanation I was given as to why I was initially obstructing an officer is because I was leaving the scene of a crime. (But I argue that I was not actually leaving a crime scene; I was leaving a fake crime scene.)
24. The question becomes "Was I wrong for giving the appearance of fleeing?" The officer alleges that he instructed me to stop, though other witnesses and myself testified otherwise. Let us take the officer's word as truth for the sake of argument. If the officer had the authority to command me to STOP under the color of law, then he needed probable cause, or at least its watered down cousin called "reasonable articulable suspicion."
25. Supreme Court decisions as well as the Georgia Supreme Court decision in State v. Dukes reinforce the importance of probable cause, but I was never allowed to pursue the "chain of command" or perhaps expressed better as the "chain of conviction." I was never allowed to determine the source of the accusation and whether it was truthful or whether the accuser manufactured it in order to hurt her political enemies, which is the very reason why we have a Fourth Amendment. (Reference T-pages 224-225).
26. Judge Cornwell did not believe that the Fourth Amendment applied in my case:
[THE DEFENDANT TO OFFICER ELLER:] Can you tell us what the rules are for a warrant less search?
MR. BRIDGEMAN: Judge, I would object. That's not relevant for officers.
THE COURT: Why would that be relevant, sir?
THE DEFENDANT: Well, I believe that we have a warrant less search in progress, and I would like to see the officer's understanding of the law.
THE COURT: But the issue here is whether or not you committed these offenses of obstruction. It is not a search and seizure issue. Do you understand it is not a Fourth Amendment issue. It is sustained. Let's move on. [T-page 93].
27. I should point out that in the above excerpt of the trial, we were talking about the removal of my wallet from my pants. My interpretation of the law requires me to conclude that this action was and is illegal. In the Terry v. Ohio case, the court determined that an officer was allowed to bypass the probable cause requirement in order to remove hard objects from a person's person because hard objects (like guns) can be used against the officer. Soft objects (like wallets) remained off limits until probable cause was determined. This argument, however, is ancillary to my main argument that these officers from the start were not in the "lawful discharge of their official duties."
28. By commenting so forcefully on the implied issue of probable cause/reasonable articulable suspicion, the judge imposed the view on me as well as the jury that probable cause was not going to be "relevant" in this trial. "[T]he issue here is whether or not you committed these offenses of obstruction." [T-page 93] 1
29. Mr. Douglas W. McDonald, Sr., the lawyer hired to do my Appeal, rubberstamped this wrongful interpretation of the Fourth Amendment. He did not give me effective counsel. He did not protect my Constitutional rights.
30. My argument today, though not communicated very well at my trial, is that the Fourth and Fifth Amendments are intricately related. A ruling on one should almost always apply to the other. The Fourth Amendment relates to the search and seizure of a man's property. The Fifth Amendment relates to the search and seizer of a man's mind.
31. This view, expressed above in a personalized way, is supported by Terry v. Ohio. "It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." The Hiibel case (Hiibel v. Sixth Judicial District Court of Nevada) also supports my viewpoint.
The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U.S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible. [Opinion of the Court, page 5]
32. It is apparent to me that when Judge Cornwell stated, "It is not a search and seizure issue. Do you understand it is not a Fourth Amendment issue." (T-page 93) that he did not understand the above case law.
33. The issue of probable cause was never fully investigated. Not in the trial. Not in discovery. I was not permitted to know how, where, and from whom the accusation originated. For this reason, I believe that it is the Assistant District Attorney who should be charged with obstruction of justice.
34. Why is probable cause important? Because had the law been followed that day, there would not have been a crime. As I remember explaining at the trial, something to the effect of: If there truly was a rock that was thrown, or some other crime committed, you would have had everyone's cooperation, most of all mine. It was because the accusation was so preposterous that I did not cooperate.
35. As a result of the officer's misinterpretation of the law, the exercise of a constitutional right was turned into a crime. (Miller v. US) I choose to run as my method of travel and this became the crime with which I was charged.
36. On the issue of probable cause, Georgia already has the court case of Land v. State, which emphasizes the importance of the origin of the police action. In this case, the witness was not able to articulate specific facts to verify the truthfulness of her accusation. For this reason, the police action was thrown out of court.
37. And Georgia has Woodward v. Gray which outlines the importance of probable cause and watered down probable cause called reasonable articulable suspicion. Woodward v. Gray also teaches that if these fundamental concepts are not adhered to, all of the subsequent police action becomes unlawful.
38. If justice is to prevail in this nation, probable cause needs to become as a two-edged sword capable of cutting forwards and backwards. There is little in our justice system to discourage a person with evil intent from making outlandish accusations to the local paper, the police, or a jury. There is little in this nation to discourage a person from using the legal system as pawns in their personal chess game. With the evidence viewed most favorably for the witness, any witness shown to have fabricated an accusation out of malice needs to be punished. The punishment could range from a public reprimand to a percentage of the jail time a suspect would have received had the suspect been convicted based on the witness's testimony. This, however, is likely a job for our legislatures.
39. I believe that the real reason that the prosecutor did not fully investigate the alleged serious crime of rocks thrown at little children was because it was not politically expedient to his career as an Assistant District Attorney in a small town to accuse an "upstanding member of the community" such as the principal of a middle school of lying. It is injustice for a man to be convicted as a direct result of a poorly substantiated accusation while at the same time this accusation was poorly investigated to protect the accuser. If our laws are going to be applied haphazardly, then what is the purpose of having laws? 40. A system of laws that only serve to protect the rich and powerful in a community is a system that will lead this nation to communism.
41. I tried to reference Woodward v. Gray in my trial at the conclusion but was told "You can't argue that. You can argue what I'm going to tell the jury the law of Georgia is." (T-Page 226) This ruling is as offensive as it is wrong. It presumes that the jury is stupid, unable to read and compare my case with a previous Court ruling. And it places the judge in absolute authority; the law is what HE says it is. This ruling by Judge Cornwell takes the power of the Court and places it entirely into his personal hands. Moreover, it is wrong because a U.S. Supreme Court Decision in 1794 explicitly forbade the concept of "the jury determines the facts, the judge determines the law." This is the charge to the Court that should have been read:
"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presummed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision." -- The State of Georgia, versus Brailsford, et al., [U.S. Supreme Court Decision, 1794]
Judge Cornwell effectively and unlawfully removed the 'object of law' out of the juries' power of decision.
42. In the Supreme Court case Mincey v. Arizona, the Supreme Court determined that there is no crime scene exception to the Fourth Amendment. In the Supreme Court case Brown v. Texas, we also see the need for reasonable articulable suspicion. I tried to reference these cases in my trial but was told that I needed to use Georgia case law. (It is not clear to me why the Assistant District Attorney in his conclusion was allowed to reference the Hiibel case and, in my opinion, misrepresent it. T-Page 232.)
43. In State v. Dukes, the Court of Appeals of Georgia officially recognizes the guidelines laid out in a series of Supreme Court decisions:
The U. S. Supreme Court has sculpted out three tiers of encounters between the police and citizens: (1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.(fn3)
In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.(fn4)[Paragraph 9]
44. If the officers' interrogation was first tier, then I was free to leave and the officer was out of line to tell me otherwise. If the officers' interrogation was second tier, then the officer needed some form of probable cause. The question becomes "Is some report somewhere by some unknown person that a rock was thrown somewhere become substantive evidence for a probable cause"? This question is asked in light of the fact that the two officers present both admitted that they did not see (or hear) any rocks being thrown. This question is asked in light of the fact that I was given very limited leeway in investigating the original source of the accusation. If the police did do an investigation, it was never revealed at the trial.
45. I caution this court. If all the police need is some haphazard accusation in order to justify police action, then all the values in our Bill of Rights that we hold so dear will be threatened and we will be well on our way to a police state. Almost any excuse will be used to "round up" people even if it is in name only. Remember that the databases of today will become the death camps of tomorrow.
46. Now I understand that the officers themselves are protected by the "fellow officer rule," but my understanding is that this rule PROTECTS the officers should there be a lawsuit against them. It does not act as a cover for poor police work that sends an innocent man to prison.
47. In the case of State v. Dukes, we find that the court ruled that the officers did not have probable cause.
Nevertheless, even though the officers lawfully approached and asked questions of Dukes, they did not, contrary to the state's claim, have the reasonable suspicion of criminal activity needed for a second-tier detention prior to Dukes' flight. [Paragraph 14]
48. I argue that the police officers had greater cause to believe that Duke was guilty of a crime than did the officers had to believe that I, or any one of our protest group, was guilty of a crime.
49. Let us look at the criteria the Court of Appeals of Georgia used to determine if the officers had probable cause.
The record is devoid of any evidence about the details of the report of drug activity received by the patrol officer. The officer gave no testimony as to who provided the report, the exact time he received it or how much time elapsed before he acted on the report. And while the patrol officer said there had been previous similar reports, he also did not specify the sources or times of those reports, he did not testify that any of those prior reports had ever led to arrests or been confirmed as accurate, and he did not characterize the location in question as a known drug area.
Given the complete absence of evidence about the source of the report, we have no way of knowing whether it came from a concerned citizen, a confidential informant, or an anonymous tipster. The most that we can say is that the tip came from an informant of unknown reliability.(fn6) "Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police."(fn7) [Paragraphs 15 & 16]
50. As you can see, the number one criterion used to determine if there was probable cause is the source of the report. In my case as in Dukes case, "Given the complete absence of evidence about the source of the report, we have no way of knowing whether it came from a concerned citizen, a confidential informant, or an anonymous tipster." I inquired numerous times about the source of the report, both during and before the trial, but I have never received answers. (This can be substantiated by asking for a copy of all the records and information that the District Attorney forwarded to me in discovery.) I was repeatedly told in effect that it was only my behavior that mattered. Furthermore, I point out again that the details were NOT corroborated by the observations of the police who were closest to us.
51. The following excerpt from State v. Dukes sums up the reason why my arrest was unlawful:
Accordingly, the controlling question presented by this appeal is whether the officers had probable cause to arrest Dukes for obstruction. "[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor."(fn13) As discussed above, at the time Dukes fled from the officers, they were engaged in a proper first-tier encounter with him, and thus they were lawfully discharging their official duties. Nevertheless, Dukes' flight from that encounter did not obstruct or hinder the officers' discharge of their official duties.
What made that initial encounter lawful was that the officers did not detain Dukes. Because the officers lacked reasonable articulable suspicion, not only did they have no authority to detain Dukes, but he had the concomitant right to leave the first-tier encounter. During such an encounter, the officer may not detain the citizen or create the impression that the citizen may not leave.(fn14)
Since Dukes had the right to leave the encounter, his exercise of that right, even if accomplished by running, cannot constitute obstruction. [Paragraphs 19, 20, 21]
52. But what about the Obstruction of an Officer felony charge when I allegedly made a motion "AS IF" to strike an officer? Since the initial police action was wrong when I was given the impression that I could not leave, then the police were not in the official discharge of their lawful duties and therefore any subsequent acts of "self-defense" on my part are a non issue. (Reference Woodward v. Gray).
53. In his closing arguments, the prosecutor misrepresents the Hiibel case. Here is what the Assistant District Attorney had to say as recorded on page 232 of the transcript:
Now, ladies and gentlemen, a case you may have heard about in the media, the U.S. Supreme Court decided earlier this year, in a case somewhat similar to this, where a man, uh, in Nevada refused to identify himself to the law enforcement officer. I expect you will hear some of the language from that decision where the U.S. Supreme Court said that asking questions is an essential part of a police investigation. In the ordinary course a police officer is free to ask a person for identification without implicating the force of the Fourth Amendment; that an interrogation relating to somebody's identity or request for identification by the police is not a Fourth Amendment Seizure. [T-page 232]
54. After carefully studying the State v. Dukes case, I am confident that this court will recognize that the above statement is only a half truth. There is no reference to the three tiers of police-citizen interaction.
55. I objected to Mr. Bridgeman's statements as recorded on page 233, but I was unable to articulate the reason. All I can manage to say is "Something just didn't sound right." The court answers me with the following:
Listen carefully and if you hear anything else then object to it. I didn't hear anything objectionable, Mr. Leitgeb. [T-page 233]
56. Between Mr. Bridgman's statements above and my objection, there is a delay. This is due to my reliance, falsely placed, on my assistant counsel, Chip Angel. At the time, he was repeating to me "Get ready to object." Not receiving the final instruction to object but realizing that there must be some sort of miscommunication, I object anyway only to see a very annoyed Mr. Angel. To this day, I still don't know what went wrong.
56.5. Here is what the Supreme Court had to say in the Hiibel case:
"Hiibel contends that the name will lead to incriminating evidence. However, stating your name is not the type of answer this Court was concerned with in Hoffman v. United States, 341 U.S. 479 (1951). It does not reveal a person’s association with others or where he is employed. Clearly, the compelled answer, under the facts presented in this case, is not protected by the Fifth Amendment." [Emphasis added]
I contend that giving up a name under my circumstances will lead to incriminating evidence because it reveals my association with others. This was a political rally. A political rally such as a flag rally is not a block party, nor is it a sporting event. It is a political demonstration put on by people who by and large are political dissidents, people who oppose the over intrusiveness of the current day government into the affairs of everyday people. These are people who believe in limited government/Constitutional government and are considered by some to be "radical." Therefore, the "rounding up of the names of dissidents" constitutes a higher level of intrusion into their privacy.
57. I attribute my overreaction to the police action to a panic attack. After knowing what I know about this town, the last thing I wanted was to have all of our names rounded up. A person once confided in me that it was common in this county for the police to trump charges. It was overwhelmingly apparent that this was what was happening to us.
58. It was like being told frightening stories like the kind traditionally told around a campfire and someone comes up behind you and yells "boo!" Believing that these police are corrupt and unjust has left me with frayed nerves to put it mildly.
59. The prosecutor charges that I overreacted because I was angry. I will not deny that anger was an element of my reaction. I am an avid listener to talk show radio. I have come to understand that trumping charges is classic mode of operations for liberals. When this obviously false charge was hurled at us protestors, it annoyed me to no end that the police were taking this accusation seriously. It occurred to me that the police were pawns of someone else's sinister plot, a point I tried to bring out with Officer Eller at my trial. (T-page 95) Observing this, I felt very threatened and anger was part of the emotions I felt in response.
60. This Court may be wondering why the defense would call up the hostile witness Ms. Brenda Kelley. The reason is simply that we believed that she was the source of the accusation. We also believed that we had questions for her that she could not answer without incriminating herself and I would have asked these questions if I was not shut down by the judge. It was our intention to place her up on the stand to substantiate that she was the source of the rock throwing accusation and then impeach her. In retrospect, this was not a good strategy, but we felt it was forced on us due to the Assistant District Attorney's refusal to reveal the source of the accusation in discovery. Mr. Angel, my assistant counsel, reported to me that the ADA did not consider this "chain of accusation" to be relevant.
61. If the police were aware of any crime being committed, then why did they need to approach the lot of us spread out over 50 feet? Why were they not able to focus on the individual or a small group? The obvious answer is that there was no rock thrown. The possibility that we could have thrown a rock or rocks through a bus window while under constant surveillance without being seen or heard is virtually nil.
62. The prosecutor claims that I "continued to be belligerent." (T-Page 79). Is belligerence a crime? Is it proof that a person is guilty of a crime? Or is it proof that a person is filled with a sense of injustice?
63. Why the officers failed to properly communicate with each other is an open question. It could be that the police officers at the crime scene were only into obeying orders as Officer Eller stated on page 95 of the transcript. It could be that in the past they questioned their command structure and were threatened to be fired. That question does not directly concern the outcome of my court case. It is a concern, however, for society at large. It is an indication that we are sliding more and more into a police state.
64. If this Georgia Court does not recognize the need for probable cause in police action, then this court will bring this state down a very dangerous road on its way to a police state. This court will promote the idea that the police can be used as pawns in someone else's chess game.
65. In this case, the person likely to be using the police as pawns is the former middle school principal. Officer Eller may call it "good faith" (T-page 95), but it is anything but. A lack of follow up investigation suggests that it is not politically expedient to your career in law enforcement to accuse a principal of lying. This is why it is so important for a free society to consider the complete trail of events in determining whether an officer acted in "the lawful discharge of his official duties." This includes the veracity of the initial report and the trustworthiness of the person making the report/accusation.
66. I am not sure why I did not communicate with the officers why I was running. Many people have told me that I have a problem communicating with people. I remember making a haphazard attempt to explain by pointing in the direction I was running as I tried to communicate the reason, but found I was overwhelmed rather quickly. And I was filled with the emotion of indignation because I believed that my Constitutional rights were being violated. Indeed, Supreme Court cases explain that I have the right to simply ignore an officer under the right conditions.
67. I do not fault the police officers at the scene of the alleged crime. They were doing their duty. They are protected by the fellow officer rule as well as the 'break 'em up and book 'em' rule. No police officer should be held responsible when time does not permit a full investigation. Instead I attribute the mess to a lack of communication -- not only on their parts, but on mine as well.
68. But I do fault the justice system and those who purport to represent it. Time allowed them to conduct a thorough investigation, which if they chose to do so they certainly did not chose to share that information with me during discovery, which is their obligation to do so under the law!
69. The fact is that I was never charged with throwing a rock. In fact, no one was charged in connection with the initial alleged crime. The evidence abounds that no one ever bothered to follow up on this very serious criminal act, throwing rocks at little children in fast moving busses.
70. The following is a statement from the United States Supreme Court decision in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987):
The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.
71. In my case, I essentially opposed police action by running, not away from the police officers as charged, but toward the other location of our group.
72. In my travels, it was explained to me that police do not tolerate any form of disrespect. That is why they lie on the witness stand. This is why it is my estimation that we are well on our way to a police state, not much different from Nazi Germany (See T-pages 226-227). The prosecutor may say that I am "one of these conspiracy theorists" (see T-page 235), but I stand by my viewpoint.
73. If all that is required to "round people up like cattle" is a mere unsubstantiated accusation, then this nation has effectively become a police state.
74. The Prosecution Violated Lawrence Leitgeb's Rights to Due Process and a Fair Trial by Failing to Disclose Exculpatory Evidence.
"The overriding concern in cases involving prosecutorial nondisclosure of evidence which tends to exculpate the defendant is the defendant’s right to a fair trial." State v. Jarrell, 608 P.2d 218, 225 (Utah 1980).
The United States Supreme Court has specifically discussed the parameters of a prosecutor’s duty to disclose exculpatory evidence to the defense. In Brady v. Maryland, 373 U.S. 83 (1963), the Court imposed an affirmative duty on the prosecution to produce at the appropriate time requested evidence that is materially favorable to the accused. See id. at 87. It held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id.. The Court’s reasoning was as follows:
Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport to the standards of justice, even though, as in the present case, his action is not "the result of guile."
See Brady, 373 U.S. at 87-88.
75. In United States v. Agurs, 427 U.S. 97, 112 (1976), the U.S. Supreme Court held that certain exculpatory evidence must be disclosed even when it is not requested by the defense. Such evidence must be disclosed if it "is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce." See id. at 107. The material question is whether "the omitted evidence creates a reasonable doubt that did not otherwise exist." Id. at 112. Whether such evidence creates a reasonable doubt must be evaluated in light of the entire record:
If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
Id. at 112-13. If the non-disclosed evidence is sufficient to have created the requisite doubt, a "constitutional error has been committed." Id. at 112.
76. The U.S. Supreme Court further clarified the Brady rule in United States v. Bagley, 473 U.S. 667 (1985). There, the U.S. Supreme Court considered a prosecutor’s failure to disclose evidence that the defense might have used to impeach a government witness. See id. at 676. It held that both direct and impeachment evidence falls within the Brady rule. See id.. The Court relied on the fact that impeachment evidence, when disclosed and used correctly, may make the difference between conviction and acquittal. See id.
77. The trial court erred in denying the defendant's jury instruction informing the jury that cussing a cop is constitutionally protected free speech and that the standard of "fighting words" is what constitutes a crime. The defendant was denied the opportunity to give the jury a definition of "fighting words".
78. The trial court erred in allowing the prosecutor to question defendant concerning irrelevant, immaterial and inflammatory matters, namely the issue of cussing a cop.
Please note that throughout this document, I use the word 'police' to refer to law enforcement in general, which includes city police, sheriff deputies, and state troopers.
79. For the reasons presented here in this motion and for reasons "irrelevant" to this motion, I believe that Stephens County will one day -- God willing -- be exposed as a criminal enterprise. Many people ask, "Do I have proof of this?" To this I answer, "Of course not. If I had proof, I would be dead ... like the others." The fact is that all I have is circumstantial evidence to support my belief, even if that circumstantial evidence is in vast quantities. I do not have the authority or the resources to discover the proof necessary to stand up in a court of law. And I argue that if I had such proof, I would not be alive to testify.
80. So why have I decided to reveal this now and not during my original trial? (Certainly it could have been offered up as evidence of my mindset as I testified in my own trial.) It is because -- as I like to tell people -- I am under the influence ... of our forefathers. I have adopted a live free or die attitude. I recognize that there is a very good chance that I will be murdered for opening my mouth, or at least charged with some kind of crime. I do so out of my love for my Lord and a love for my nation.
81. I also wish to make this court aware that there are several instances in the transcript that conflict with my memory.
1. I tried to refer to the cases of Mincey v. Arizona and Brown v. Texas only to be told by the judge that these out of state decisions do not apply to the State of Georgia. I lost my confidence and did not object. These are in fact Supreme Court Decisions. Judge Cornwell effectively told the jury that I did not know what I was doing as a Pro Se. When I went back to the transcript to find Judge Cornwell's ruling on this to use in an Appeal, I discovered that his statement was nowhere to be found.
2. When cross examining Officer Eller, I asked him the question, "If a MAN comes up to you and says, 'Officer, Officer give that man a ticket. He just went through a red light!' do you have the authority to give him a ticket based on another person's testimony?" He gave me a definite "Yes," explained that he could and then explained that it has never happened before. On page 95 of the transcript we find me asking "Officer, if an officer runs up to you and says...." I find it highly unlikely that I would have made a reference to another officer because I knew even then about the fellow officer rule. That was not my question. My question was whether an officer could write a ticket based on the testimony of Ms. Kelley. It is as if someone was protecting Officer Eller and removing all chances that I could appeal.
3. During my testimony, Trooper Taylor burst out and accused me of saying "Your not going to pin that rock on me!" [T-page 116]. I responded instantaneously, "No, I said 'Your not going to pin that rock on US!' " [T-page 195]. This accusation and my response is recorded in the transcript, but in very different places. It is as if someone is protecting Trooper Taylor from his inappropriate outburst.
It appears to me that the transcript was methodically changed. Can I prove this? No! Because all I have is my memory and my testimony to support my position.
82. Just like the Seventh Circuit Court of Appeals held that the Circuit Court of Cooks County is a criminal enterprise (U.S. Vs. Murphy, 768 F.2d 1518, 1531; 7th. Cir. 1985), I firmly believe that one day the Mountain Judicial Circuit of Georgia will be so named -- Lord willing. It is a sin that an ordinary citizen cannot depend on a Court Reporter that is paid with his tax dollars; he needs to bring his own.
83. Mr. McDonald, the lawyer my father hired for my appeal, expressed to me one day after court that he had been threatened in regards to my case. He would not go into any details.
84. The local newspaper reported that a police report stated that there was a police report submitted by Marsha Brock, resource officer at the Middle School, but I was never given any such police report during discovery. This prompted me to go to trial even when I was offered a reasonable "plea bargain."
85. I find it appalling that my sentence was the maximum allowed by law. The sentence assigned to a felony obstruction of an officer carries one to five years. As I understand the law, this includes a full range of offenses, which include making a motion as if to strike an officer to severely injuring an officer with an instrument. I was found guilty of making a motion AS IF to strike an officer and received the same amount of time as another citizen who plead guilty to attempted murder. There is injustice. I dare say that this was not the intentions of our lawmakers when they gave judges the leeway of one to five years.
86. In explaining my situation, I often tell others, "If you are going to do the time, you might as well do the crime!" I trust that this is not the desired message that this justice system wishes to convey to would-be criminals. The bottom line is that I am one of many ordinarily law-abiding citizens that does not have any confidence in our justice system today.
Please note that throughout this document, I use the word 'police' to refer to law enforcement in general, which includes city police, sheriff deputies, and state troopers.
Enumeration of Errors
1. The Superior Court did not take into consideration any Supreme Court decisions, most notably Terry v. Ohio. Judge Cornwell declared to the jury that "It is not a search and seizure issue. Do you understand it is not a Fourth Amendment issue." Terry v. Ohio makes it very clear that if a person is detained, that person has been in effect seized. It is not an issue applying to physical evidence only. [Paragraph 26]
2. As per State v. Dukes in May of 2006, the Appeals Court of Georgia officially recognized three distinct tiers of police-citizen interaction. These plain explanations of tiers were not available to the Court at the time my trial was conducted. [Paragraph 43]
3. These tiers make it very clear that a person is free to leave a scene while the police-citizen interaction is operating under the first tier. For an officer to legally detain a citizen, the investigation must be operating under the second tier, which requires probable cause or at a minimum reasonable articulable suspicion. The police action did not have any level of probable cause. [Paragraph 44 plus]
4. I was charged with Obstruction of Justice for not obeying an officer's instruction not to flee. State v. Dukes makes it very clear that under the first tier, the citizen has a right to leave, even by "fleeing" should that be his chosen means of doing so. [Paragraphs 21, 51]
5. Judge Cornwell declared to the Defendant in the presence of the jury "You can argue what I'm going to tell the jury the law of Georgia is." This is in direct contradiction to a ruling in State of Georgia v. Brailsford. [Paragraph 41]
6. The Hiibel case was misrepresented to the jury over my objection. [Paragraphs 53-55]
7. The Prosecution Violated Lawrence Leitgeb's Rights to Due Process and a Fair Trial by Failing to Disclose Exculpatory Evidence. [Paragraph 76]
8. The trial court erred in denying the defendant's jury instruction informing the jury that cussing a cop is constitutionally protected free speech and that the standard of "fighting words" is what constitutes a crime. [Paragraph 77]
9. The trial court erred in allowing the prosecutor to question defendant concerning irrelevant, immaterial and inflammatory matters, namely the issue of cussing a cop. [Paragraph 78]
The Appeals Court and not the Supreme Court of Georgia should have jurisdiction over this case because the Appeals Court just recently handed down the State v. Dukes decision upon which I base most of my arguments.
Citation of Authorities
1. State of Georgia v. Dukes (2006 Ga. App. (A06A0551)
2. Terry v. Ohio, 392 U.S. 1, 1967.
3. Hiibel v. Sixth Judicial District Court of Nevada, 2003.
4. Miller v. US, 230 F.2d. 486, 489.
5. Land v. State, 578 SE2d 551, 2003.
6. Woodward v. Gray et al., 527 SE2d 595, 2000.
7. The State of Georgia, versus Brailsford, et al., [U.S. Supreme Court Decision, 1794]
8. Mincey v. Arizona, 437 U.S. 385, 1978.
9. Brown v. Texas, 443 U.S. 47, 1979.
10. City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)