There was some serious legal news this week, like the issuance of the Supreme Court’s recent Brady decision, Smith v. Cain, and the Court’s decision to grant certiorari in the dog-sniffs-a-house case I mentioned last week, Florida v. Jardines. The fact that homicide is no longer one of the top 15 causes of death in America – for the first time since 1965 – also qualifies as noteworthy. And of course, the Mississippi pardon controversy is very, very interesting. The short version is that outgoing Gov. Haley Barbour, at one time considered a possible Republican presidential candidate, pardoned 203 felons as he left office. The number is especially remarkable compared to the eight pardons he had issued in the eight preceding years, or compared to the number of pardons issued by previous governors. Reuters provides some useful context here. Most of the defendants had already completed their sentences, but something like 26 of them, including several convicted murderers, had not. Some of the latter group had worked as inmate trusties at the Governor’s Mansion, a practice that has resulted in controversial pardons in North Carolina as well. Some of the releases have been blocked due to concerns about whether the Governor followed the procedures required to issue pardons, as the Jackson Clarion-Leger explains here.
But most of the news stories that I gathered this week were more odd than serious. For example, this story in a British newspaper but apparently about an Italian convict, begins: “A convicted criminal who was serving out his sentence in a monastery has escaped for the second time and asked to be sent back to prison because life was too tough.” Apparently, Capuchin monks in Sicily run a sort of halfway house out of one of their monasteries, but life there is rather austere, to the dismay of the defendant in question. (Hat tip: Sentencing Law and Policy.) Or consider this story, reported at the Volokh Conspiracy: an individual originally named Jeffrey Drew Wilschke, who recently legally changed his name to Beezow Doo-Doo Zopittybop-Bop-Bop, has been arrested on marijuana charges. As Eugene Volokh wisecracks, “[w]ho’d have thunk it?” Finally, the Smoking Gun reports here that “Suzanne Basham . . . dialed police in Springfield, Missouri to report that she had paid $40 for crack cocaine that turned out to be sugar . . . . Basham . . . asked cops to arrest her dealer for theft (and, of course, secure a refund for her). While patrolmen went to the address where Basham said she purchased the crack, residents there denied selling dope and declined to let investigators into the home. Since cops discovered that Basham was in possession of a crack pipe, she was cited for possession of drug paraphernalia.”
Enjoy the long weekend. We’ll see you next week.
I learned this week that some of our Courts have two sets of ‘public records’ in certain matters. One is some sort of a secrete public record alleged to be for the purpose of protecting someone’s rights, to privacy and public scrutiny. They don’t say exactly whose rights the State or its agents of a person charged. The other is an incomplete partial public record.
Good morning Sir.
You sort of embarrassed me the other day suggesting that I was an attorney where others could hear (But it’s all good Sir.). I am not an attorney and am not sure I would want to be. Was that young lady that appeared to be with you the Clerk I need to speak with? Does she have an email address?
As you know we live in a nation governed by law ‘and’ ignorance of the law is no excuse is a very common phrase used. Our system of Public Education doesn’t seem to teach anything of our laws, and it seems it is up to the ‘private individuals’ to somehow know the laws they and their governing bodies are ‘subject to’
In my own opinion what they call the County of Lincoln Public Law Library Located in the Court House is not even a sorry excuse for a Library at all. I have been there on more than one occasion. All the Laws are supposed to be a matter of Public Record but what I discover is mostly what I consider to be Lex Non Scripta (Unwritten Laws (Unwritten LOCAL Policy, customs, and practices), or even written laws withheld from Public scrutiny).
The matter involving my brother has been postponed again. Which means ‘I must’ be subjected to what I consider the ‘discomforts’ of making another appearance in the Court House over a ‘fabrication’ created by a Police Officer (Officer (See AOC-CR-501 form filed (5664227-7)), DHHS 4082 form filed, AOC-CVR-1A/DHHS 3907 form filed) while acting under the color of law and official right, and moved forward by a Magistrate (See AOC-CVR-2 form filed, AOC-CR-200 form filed.).
The AOC-501 form in the Public records suggests that the Officer has charged a person with a violation of NC GS 20-138.1 pertaining to the operation of a motor vehicle while ‘impaired’ (Impaired Driving). A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90 89, or its metabolites in his blood or urine.
The burden of proof that the charged person has violated GS 20-138.1 lies on the State, its agents, and agencies. To accomplish this the State has created other NC General Statutes such as the one[s] referenced by the filed form AOC-CVR-2 which states: The undersigned judicial official finds probable cause to believe: 1. A law enforcement officer had reasonable grounds to believe that the above named person committed an offence (Note added: Impaired Driving GS 138.1) subject to the implied-consent provisions of GS 20-16.2(a).
This statute authorizes a law enforcement officer to request a person to comply to a request by the officer to submit (be subjected to) to chemical analyses of their blood to check for ‘impairing substances, alcohol concentration, or any amount of a Schedule 1 controlled substance’. In this matter the person was charged with driving while impaired (See form AOC-CR-501 in the file.) and was taken into their ‘custody’ (Arrested (Which was later transferred to a magistrate (judicial official). See form AOC-CR-200 in file.)) and without any resistance transported to the testing facility located in the basement of the County of ******* Court House to comply to the officers request.
The person charged complied to the officers repeated requests (6) to blow into a testing device with a witness present which failed to gather any ‘sufficient sample’ or evidence of a crime that suited the officer. The person charged and their witness who knows them well both advised the charging/testing officer that the charged person had a life long history of breathing disorders. The officer according to their own testimony made a medical evaluation and determined that the person charged did not have any breathing disorders, and forced the testing device to print out a form (DHHS 4082) stating the person refused the test (first fabricated evidence entered into the record).
The officer then escorted the person charged and their witness to another area in the basement where a judicial official (magistrate) appeared. The officer handed the fabricated evidence (DHHS 4082) to the magistrate and requested a form AOC-CVR-1A/DHHS 3907 (Affidavit) from the magistrate. The officer then completed the form swearing to its truthfulness and marked box 14 suggesting the driver ‘willfully refused to submit to a chemical analysis’ (more fabricated falsified evidence) as indicated of the attached Marked DHHS 4082 and DHHS 4081 (Notification of Rights Form) signed it and handed it back to the judicial official. Without any questioning of the person charged or their witness concerning the officers fabricated evidence and false and misleading testimony, the judicial official took custody of the person charged (See form AOC-CR-200 in file), completed a form AOC-CVR-2 revoking the charged person’s driver’s license which the officer gave them and entered it into the records.
After the charged person was released from arrest they were handed a copy of AOC-CVR-2 form. On this form under NOTICE it clearly says: “You have a right to a hearing to contest the validity of this Revocation before a magistrate or judge.” The GS which secures this right, and prescribes the proper process is found at GS 20-16.5 (g). The charged person did in fact ‘contest the validly’ of the Revocation as prescribed by the statute (See MISSING FORM TWO SIDED FORM AOC-CVR-5 (Side 1 petition for hearing, side 2 Findings AND ORDER . . .) signed and date by a District Court Judge July 27, 2010(suposedly held in a secrite file)).
A hearing was held, and the States Attorney (Local Assistant District Attorney) moved to dismiss the ‘willful refusal’ claim against the person charged. His words were very close to being: “The State wishes not to pursue this matter, the charged did not willfully refuse to comply with chemical analysis requirements the machine (testing device) failed to gather a sufficient sample.” The Judge determined that a mistake had been made and issued an Order Rescinding the Magistrates Revocation Order (See side 2 AOC-CVR-5 form).
Now we come to AOC-CVR-7 form, which seems to be the proper form to issue to correct a previous error entered into the record. Such as a erroneous Revocation Order previously entered into the records based on fabricated, misleading, and false information received by a judicial officer at a previous hearing (initial appearance in basement of Court House July 11, 2010).
Sir, I feel there is a reason that the GS prescribes a means to ‘challenge the validity’ of an order issued in an implied consent offence before the matter is scheduled for the entry of a plea. The process prescribed at GS 20-16.5(g) must be completed within fifteen days of the effective date of the Revocation Order allowing only for extra time for holidays, and weekends. It is to establish that ‘probable cause’ actually exists for the State to move forward with its prosecution of a claim of Impaired Driving and or Refusal to comply before the standard time for an entry of a plea has come (normally near 30 days). This process seems to be to avoid what could be considered malicious prosecution[s].
The forms I see (The Petition, Order, and Correction) seem to suggest that if they were properly filed in a timely fashion they would be notifying the State that there either was probable cause to pursue the matter or that there had been a mistake and the State lacked sufficient evidence to pursue the matter ‘as stated in the charging instruments’ before the date came to enter a plea.
The Order on form AOC-CVR-5 side 2 is supposed to be entered into the ‘Public Records’ without prejudice to any party, is not appealable in any court by either party, and does not bar any party from restating its claim[s] with the proper corrections and refilling them. In this matter the Revocation Order was determined to be invalid (Void) and was rescinded by the Order on side 2 of the AOC-CVR-5 form (July 27, 2010) because of a defect (mistake).
It appears that the AOC-CVR-7 form is the proper form to give ‘NOTICE’ to the State that there was in fact a mistake made that needed to be corrected. If filed properly into the ‘Public Record’ the State’s Attorney would have ‘NOTICE’ of a mistake on or ‘before the date the person charged was required to appear and enter a plea’.
When I review the not secret (your staff suggests exists) ‘Public Record’, which appears to be the same ‘Public Record’ the State’s Attorney is using neither form AOC-CVR-5 or AOC-CVR-7 are in it. If this is the only record the State’s Attorney is relying on to move this matter forward for the last 18 months and pending they have not received proper NOTICE that there is an error in the records they are using to proceed forward and attempt to prosecute while relying on VOID information. Does the secret file your staff suggests exists contain this information?