Everett C. Gilbertson, Sui Juris
c/o general delivery
Battle Lake [zip code exempt]
MINNESOTA STATE
In Propria Persona
All Rights Reserved
without prejudice
DISTRICT COURT OF THE UNITED STATES
JUDICIAL DISTRICT OF MINNESOTA
FOURTH DIVISION
Everett C. Gilbertson, ) Docket Number: CR-4-96-65
)
Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
v. ) NOTICE AND DEMAND FOR
) EFFECTIVE ASSISTANCE OF
United States, ) COUNSEL OF CHOICE:
and Does 1-99, )
) Sixth Amendment
Respondents. )
______________________________)
COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota
state, expressly not a citizen of the United States, and
Plaintiff in the above entitled matter (hereinafter "Plaintiff"),
to present this, His MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF NOTICE AND DEMAND FOR EFFECTIVE ASSISTANCE OF COUNSEL
OF CHOICE, and to provide formal Notice to all interested
party(s) of same.
The Sixth Amendment to the U.S. Constitution states:
In all criminal prosecutions, the accused shall enjoy the
right ... to have the assistance of Counsel for his defence.
Plaintiff asks this honorable Court to take Judicial Notice
of the fact that many of the men who contributed to the writing
or ratifying of the Constitution were attorneys, such as John
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Jay, first Chief Justice of the U.S. Supreme Court, and John
Marshall, a later Chief Justice. John Adams, James Wilson, John
Blaire, and Oliver Ellsworth were among the many fine attorneys
who assisted in approving the language used in the Constitution
for the United States of America (hereinafter "U.S.
Constitution"). Are we to believe that the word "COUNSEL" was
selected by these "attorneys" with no thought whatsoever to its
Common Law meaning at that time?
In discussing a litigant's Right to Counsel, the U.S.
Supreme Court has held:
... [H]is right to be heard through his own counsel is
UNQUALIFIED.
[Chandler v. Fretag, 348 U.S. 3, emphasis added]
In consulting Noah Webster's 1828 dictionary, the word
"unqualified" is defined as:
Not modified, limited, or restricted by conditions or
exceptions; .... (Noah Webster's First Edition of an
American Dictionary of the English Language, 1828,
republished in facsimile edition by Foundation for American
Christian Education, San Francisco, California, second
edition, 1980)
It is undeniable that the explicit use of the word "Counsel"
in the Sixth Amendment was intended to mean someone other than an
attorney, as well as an attorney. This view is upheld by a U.S.
District Court when it recognized an accountant as Counsel, and
reprimanded an IRS employee:
Yet while he was informing the prospective defendant of his
Right to Counsel, he was simultaneously requesting that the
Defendant's Counsel leave the interrogation. In effect, the
investigator informed Tarlowski that he might have his
attorney present, but not his accountant.
Ruling in favor of Tarlowski's motion to suppress, the Court
said:
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For a government official to mouth in a ritualistic way part
of the warning about the right to counsel, while excluding
the person relied upon as counsel is, in effect, to reverse
the meaning of the words used.
[U.S. v. Tarlowski, 305 F.Supp. 112 (1969)]
Plaintiff also asks the Court to take Judicial Notice of the
use of the word "Counsel" in the 17th century:
... and in all courts persons of all persuaisions [sic] may
freely appear in their own way, and according to their own
manner and there plead their own causes themselves, or if
unable, by their friends ....
[Fundamental Constitution for the]
[Province of East Jersey (1683)]
[emphasis added]
To have a "friend" act as Counsel was a Common Law Right, and was
recognized as such in the Bill of Rights when the term "Counsel"
was used instead of the term "attorney."
The language of the Constitution cannot be interpreted
safely, except by reference to common law and to British
institutions as they were when the instrument was framed and
adopted. The statesmen and lawyers of the convention who
submitted it to the ratification of conventions of the
thirteen states, were born and brought up in the atmosphere
of the common law and thought and spoke in its vocabulary
... when they came to put their conclusions into the form of
fundamental law in a compact, they expressed them in terms
of common law, confident that they could by shortly and
easily understood.
[Ex parte Grossman, 267 U.S. 87, 108 (1925)]
[emphasis added]
No limit or qualification was ever intended to be put upon
the Right to "assistance of Counsel" in the Sixth Amendment, and
Plaintiff submits the word "Counsel" was used in recognition of
the Common Law Right to have one's "friends" speak for a
Plaintiff, if he so chose. Reference to the Common Law is
mandatory in proper interpretations of the U.S. Constitution, but
most particularly in the Bill of Rights. There is a
preponderance of U.S. Supreme Court cases which uphold the
position of Plaintiff on interpretation of the U.S. Constitution.
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... as men whose intentions require no concealment,
generally employ the words which most directly and aptly
express the ideas they intend to convey: the enlightened
patriots who framed our constitution and the people who
adopted it must be understood to have employed the words in
their natural sense, and to have intended what they have
said.
[Gibbons v. Ogden, 22 U.S. 1 (1824)]
And,
... In the construction of the constitution, we must look to
the history of the times, and examine the state of things
existing when it was framed and adopted. 12 Wheat 354; 6
Wheat 416; 4 Peters 431-2; to ascertain the old law, the
mischief and the remedy.
[State of Rhode Island v.]
[The State of Massachusetts,]
[37 U.S. 657 (1938)]
And also, in speaking further of Constitutional provisions, we
find:
We agree, it is not to be frittered away by doubtful
construction, but like every clause in every constitution it
must have reasonable interpretation, and be held to express
the intention of the framers.
[Woodson v. Murdock, 89 U.S. 351, 369 (1874)]
And further,
The necessities which gave birth to the Constitution, the
controversies which precede its formation and the conflicts
of opinion which were settled by its adoption, may properly
be taken into view for the purposes of tracing to its
source, any particular provision of the Constitution, in
order thereby, to be enabled to correctly interpret its
meaning.
[Pollock v. Farmers' Loan & Trust Co.]
[157 U.S. 429, 558]
History shows conclusively that it was a Common Law Right to
be represented in court by a "friend" rather than an attorney, if
one chose. Plaintiff claims that Right herein, which the Sixth
Amendment did indeed secure, and is not subject to "revision" by
the American Bar Association or any state bar association.
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Undoubtedly what went before the adoption of the
Constitution may be resorted to for the purpose of throwing
light on its provisions.
[Marshall v. Gordon, 243 U.S. 521, 533 (1971)]
Each word has a particular meaning and was deliberately
chosen. The word "Counsel" was not idly set down as the law of
this land, but, on the contrary, was selected with great skill
and meaning.
To disregard such a deliberate choice of words and their
natural meaning, would be a departure from the first
principle of Constitutional interpretation. "In expounding
the Constitution of the United States," said Chief Justice
Taney in Holmes v. Jennison, 14 540, 570, 571, "every word
must have its due force and appropriate meaning; for it is
evident from the whole instrument, that, no word was
unnecessarily used, or needlessly added." The many
discussions which have taken place upon the construction of
the Constitution, have proved the correctness of this
proposition; and shown the high talent, the caution and the
foresight of the illustrious men who framed it. Every word
appears to have been weighed with the utmost deliberation
and its force and effect to have been fully understood.
[Wright v. U.S., 302 U.S. 583 (1938)]
[emphasis added]
Little did the Framers, who labored so long and hard to
fashion Our Constitution, realize that the day would come when it
would be ridiculed by law professors, snickered at by law clerks,
and consigned to the wastebasket by attorneys, the bar, and the
Judiciary.
To interpret the word "Counsel" narrowly to mean only
"licensed attorneys" is an infringement of Plaintiff's Sixth
Amendment Right to Counsel, which even the U.S. Supreme Court has
held is "unqualified." See Chandler supra.
The words of the Amendment are simple, clear, and not
ambiguous, and were obviously written by Our Forefathers to be
understood by The People, as the following citation undeniably
indicates:
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The Constitution was written to be understood by the voters;
its words and phrases were used in their normal and
ordinary, as distinguished from technical meaning; where
the intention is clear, there is no room for construction,
and no excuse for interpolation or addition. Martin v.
Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 1;
Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet.
10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v.
Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1;
Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case,
279 U.S. 655 (justice) Story on the Constitution, 5th ed.,
sec. 451; Cooley's Constitutional Limitations, 2nd ed., P.
61, 70.
And further,
It cannot be presumed that any clause in the Constitution is
intended to be without effect ....
[Marbury v. Madison, 5 U.S. 137, 174 (1803)]
In passing, it might be noted that Chief Justice John
Marshall, who was principally responsible for the holding in the
above cited Marbury case, and who seems to be looked upon by most
attorneys and judges as the greatest of Our Supreme Court
justices, is reported to have had two weeks law school
preparation, at which time half his study was philosophy. Also:
The Constitution is a written instrument. As such, its
meaning does not alter. That which it meant when it was
adopted, it means now.
[South Carolina v. United States]
[199 U.S. 437, 448 (1905)]
Plaintiff is deeply perturbed at the erosion of his
fundamental Right to Counsel by the very legal profession itself.
The restriction of the Courts to professional attorneys only, is
the result of attorneys who sat in Our legislatures and voted
upon laws which involved, for them, a conflict of interest and
which were, and are, upheld by their brother attorneys, who sit
on the benches of Our Courts, ruling in violation of the
Sovereign will of The People, which it is their sworn duty to
obey.
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Any State law which prohibits laymen from speaking on behalf
of another, when they are sought for that purpose, is a violation
of the Sixth Amendment. Any implementation of such State laws
also violates Plaintiff's Rights to freedom of speech, wherein he
may speak through whom he chooses; to freedom of association,
wherein he may associate with whom he pleases; to due process of
law, wherein he is denied Counsel of his choice and therefore as
a consequence, he is denied a fair trial, and he is also denied
an impartial jury by being unable to speak to the jury, as he
knows he should, through Counsel of trust.
To be denied a layman to assist him with advice, and to act
as a spokesman at Plaintiff's request, is to subject Plaintiff to
unequal treatment under the law. As a Citizen of Minnesota
state, Plaintiff has less Rights and worse treatment than inmates
in state and federal prisons, who are permitted "jailhouse"
lawyers -- laymen who practice law on behalf of their fellow
prisoners with the approval of many Courts.
As a Citizen of Minnesota state, Plaintiff is denied the
right to contract, when he is forbidden to have the assistance of
one who is willing to speak for him, at his request. The denial
of Plaintiff's right to contract, it is respectfully submitted,
occurs because attorneys, who are, in this State, members of a
bar association (a monopoly they have promoted through their
controlled legislature) have purported to make a "law" for the
protection of the "public"; whereas, they have actually
instigated a self-serving franchise, in great part at the expense
of the public and, in Plaintiff's view, to the detriment of
Constitutional government.
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Again, Plaintiff is denied a "fair trial" and an impartial
jury when a so-called "law" prohibits him from contracting with
someone of his choosing for Plaintiff's legal defense against a
hostile government, bent on punishing Plaintiff for the exercise
of the very fundamental Rights which the government should be
upholding, rather than attacking.
The aforementioned rights are infringed, abridged, and
denied when the word "Counsel" is qualified to mean only
attorneys may speak for the defense in a Court of Law. This was
not the case in Tarlowski, where the "Counsel" discussed by the
court was an accountant.
It appears to Plaintiff that a careful consideration of the
words of the Sixth Amendment, securing his fundamental Right to
Counsel of CHOICE must be undertaken here. Since no words were
idly selected by the Forefathers, let us emphasize them, here and
now, so that there can be no misunderstanding as to their
meaning, for Plaintiff believes his stand in this matter is
constitutionally correct. The vital words here are:
In ALL criminal prosecutions, the accused SHALL ENJOY the
RIGHT ... to have the ASSISTANCE OF COUNSEL for his defence.
Plaintiff requests the Court's indulgence and patience for a
brief analysis of the words capitalized above because, where his
Life, Liberty, or Property are involved, it is not a matter which
he takes lightly.
For the source of the common meaning of common words in use
when the U.S. Constitution was written, we refer to Noah
Webster's First Edition of an American Dictionary of the English
Language, 1828, re-published in a facsimile edition by the
Foundation for American Christian Education, San Francisco,
California, Second Edition, 1980.
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ALL: a. Every one ... the whole quantity, extent, duration,
amount, quality, or degree; ... This word signifies the
whole or entire thing ....
It is obvious on its face that the word "all" allows for no
exceptions and is all-inclusive, and it is also obvious that the
Sixth Amendment, therefore, allows for no criminal trial where it
does not apply.
SHALL: v.i. In the present tense, shall ... forms the
future tense; ... informs another that a fact is to take
place .... In the second and third persons, shall implies a
promise, command or determination. "You shall receive ...."
The word "shall," in legal contemplation, is mandatory; it is a
word "of command ... must be given a compulsory meaning." It is
clearly so stated on page 1,233 of Black's Law Dictionary, Fifth
Edition, 1979.
ENJOY: v.t ... To feel or perceive with pleasure; to take
pleasure or satisfaction in the possession or experience of
.... We enjoy a free constitution and inestimable
privileges.
Plaintiff has informed the Court that he has little
confidence in the legal profession of Haldeman, Erlichman,
Mitchell, Dean, Nixon, and Agnew, and not to mention many others.
He is defending himself out of necessity, not out of desire.
Plaintiff is aware of a few attorneys whom he trusts, but their
multi-thousand dollar fees are out of the question for this
Plaintiff. He does not trust just any attorney out of a grab-bag
the government is willing to furnish; neither would Plaintiff be
satisfied with such an "attorney's" concept of the U.S.
Constitution. Average attorneys, full of law school brainwashing,
think that the U.S. Constitution is what the judges say it is,
rather than what the Constitution itself says it is.
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If Plaintiff cannot "enjoy" the "assistance of Counsel" from
the Bar (i.e. the legal establishment), then he has the
undeniable Right of Counsel which he can enjoy. To deny this
Right is to deny his Rights under the Sixth Amendment to Counsel.
It is the use of the word "ENJOY," as well as "COUNSEL," which
gives a Plaintiff the Right to the Counsel of his choice,
licensed or unlicensed, as was provided by the Founding Fathers,
and of which the Ninth Amendment clearly prohibits any denial or
disparagement:
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained
by the people.
What honest attorney or judge can fail to see that, in
denying Counsel of choice to litigants in court, he is "denying"
or "disparaging" both enumerated and non-enumerated rights?
And what honest attorney or judge can fail to see that, in
enforcing a so-called statute denying to a layman the opportunity
to speak in defense of a friend at the friend's request, said
lawyer or judge is rendering infidelity to his Oath of Office --
to support the Constitution -- which states at Art. VI, Clause 2:
This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof ... shall be the supreme
Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
[emphasis added]
Attorneys are called "officers of the court," and they are
required to take oaths to support the U.S. Constitution. When
attorneys attempt to prevent the exercise of the Rights of
litigants in court to speak through lay friends of confidence,
the attorneys are involved in denying that which they swear to
uphold -- to their eternal discredit and dishonor.
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The fact that the attorneys have been successful for a long
time, and that colleagues in judicial robes have upheld them,
does not make it right; it does not make it constitutional; and
it certainly does not enhance the Rights of the grass-roots
American People who are tired of being subjected to the
exorbitant legal fees of a closed-shop union which says, "If you
exercise your fundamental Rights, we will see to it that you go
to jail," and now, "You have to go our route because the loss of
your fundamental Rights is a settled matter."
How could any decent person uphold such a system? How can
the legal and the judicial profession escape tarnished "images?"
Is the denial of fundamental Rights to the Plaintiff "frivolous?"
Is it not better to restore fundamental Rights than to have a
restless People rise up? Must we have government "of attorneys,
by attorneys, and for attorneys?" Especially, after Watergate,
the People are not going to stand for it.
It is important to note that the Sixth Amendment word
"enjoy" follows the word "shall", and it would therefore be a
command of the sovereign power that the ability to enjoy the
right to Counsel is mandatory. The words "shall ... enjoy" make
this very clear.
The judgment as to what Counsel the Plaintiff can "enjoy" is
left entirely in his hands, and nowhere in the Sixth Amendment is
this prerogative given to the Courts; it remains the fundamental
"Right" of the Plaintiff:
RIGHT: n. Conformity to the will of God, or to His law, the
perfect standard of truth and justice ... Just claim;
immunity; privilege. All men have the right to the secure
enjoyment of life, personal safety, liberty, and property.
We deem the right of trial by jury invaluable, particularly
in the case of crimes.
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The "right" to "enjoy" Counsel is claimed by Plaintiff by
law, nature, and tradition, and may not be infringed or
disparaged by any private association, by any of its members, or
by its sympathizers employed in government. It is a right which
the People retained for themselves, and it is to be protected by
their Judiciary. It is not a function of the People's Courts to
protect the vested interests of any private monopoly as against
the rights of The Sovereign People. Non-attorneys have as much
right to speak for a Plaintiff in Our Courts as do attorneys.
Otherwise, the Courts are run only for "special interests" and
are, in fact, protecting a monopoly, in violation of the Sherman
Anti-Trust Act. Such a monopoly acts to restrain interstate
commerce and to restrain competition and trade; without such
monopoly practices, the cost of justice to The People would be
substantially lower. Attorneys could still ply their trade, but
they would have to be competent and deserve more fully the
business which they would acquire from those who voluntarily
trusted them.
ASSISTANCE: n. Help; aid; furtherance; succor; a
contribution of support in bodily strength or other means.
The common understanding of the word "assistance" is that it
comes from one who acts in a secondary capacity. For example,
assistance is given to a President by a Vice President who
"assists" him. We find a definition of "assistant" which follows
the word "assistance." The above mentioned dictionary defines an
"assistant" as one who serves in a subordinate position, as a
helper. The common practice today -- of defendants "assisting"
defense attorneys -- is one to which Plaintiff strenuously
objects. It is an erosion of the original Right which this
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motion is aimed at re-establishing. Plaintiff may also promote
assistant Counsel to co-Counsel, whereby they share in the
defense and maintain that such a decision is theirs, not the
Court's. It is theirs by Common Law and may not be denied or
infringed by either the Courts or the Bar Association. It is
also their fundamental Right.
COUNSEL: n. Advice; opinion or instruction ... Those who
give counsel in law; any counselor or advocate, or any
number of counselors, barristers, or sergeants; as the
plaintiff's counsel, or the defendant's counsel.
COUNSELOR: Gan. Any person who gives advice; .... One who
is consulted by a client in a law case; one who gives
advice in relation to a question of law; one whose
profession is to give advice in law and manage causes for
clients.
If the men who framed the Bill of Rights meant by "COUNSEL"
a licensed attorney, they would have said "licensed attorney".
Surely, the Court cannot refuse to recognize this. In the
interest of fairness, let the Court grant the Plaintiff's relief.
Neither the President of the United States, nor the
Governors who head the executive branches of government, are
required to be attorneys in order to administer and enforce the
laws. Federal judges are not required by the U.S. Constitution,
nor by valid statute, to be attorneys. Congressmen, Senators,
and other Legislators who pass legislation, statutes, and "laws"
do not have to be "attorneys." Magistrates do not have to be
"attorneys." Does it not seem strange that a litigant cannot
represent himself in Court without being an "attorney?" Are we
playing games with the meaning of "represent"?
Why then, the Plaintiff asks, must the Plaintiff's
representative in Court be a licensed attorney? Why must the
Plaintiff's representative have a title which the law maker, the
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law enforcer, the law adjudicator, and the Plaintiff himself do
not need? Speak, Oh Learned Ones! And, please speak without
attempting to turn white into "black," and black into "white," as
the graduates of law schools seem so gifted at doing. And,
please speak without being in contempt of the Constitution for
the United States of America, as lawfully amended.
I
THE WILL OF THE SOVEREIGN POWER
The U.S. Constitution is the will of The People and it was
clearly set down for their agents, both elected and appointed, to
follow. No law supersedes the U.S. Constitution and only those
in "pursuance" of it may stand. Even treaties must be made "in
Pursuance" of the U.S. Constitution.
We the People ... do ordain and establish this Constitution
for the United States of America. Preamble to the U.S.
Constitution (1789). [emphasis added]
In establishing this government, the People said that:
This Constitution, and the Laws ... made in Pursuance
thereof ... shall be the supreme Law of the Land ....
Article VI, Cl. 2, U.S. Constitution.
And they also commanded that:
... [A]ll ... judicial Officers, both of the United States
and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; .... Article VI,
Clause 3, U.S. Constitution.
It is clearly the will of the bar associations, not of the
People, to close the Courts to all but licensed attorneys. Use
of the word "Counsel", rather than "attorneys", denotes the will
of the Sovereign Power, which cannot be lawfully overridden.
In the United States, Sovereignty resides in the people, who
act through the organs established by the Constitution.
Chisholm v. Georgia, 2 Dall. 419, 471; Penhallow v. Doane's
Administrators, 3 Dall. 54, 93; McCullock v. Maryland, 4
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Wheat 316, 404, 405; Yick Wo v. Hopkins, 118 U.S. 356, 370;
... Congress cannot invoke the sovereign power of the people
to override their will as thus declared.
[Perry v. United States, 294 U.S. 330, 353 (1935)]
In the Sixth Amendment, the People declared their will as to
the rights of the Accused in all criminal prosecutions; and the
Right of the Plaintiff to "enjoy" the "assistance of Counsel"
was purposely couched in the Common Law term -- "Counsel" -- so
as to include those friends upon whom litigants may depend for
advice and protection.
In a speech by Judge Learned Hand at the Mayflower Hotel in
Washington, D.C., on May 11, 1929, entitled, "Is There a Common
Will?", in speaking of judges he said:
He is not to substitute even his juster will for theirs;
otherwise it would not be the "common will" which prevails,
and to that extent, the people would not govern.
Plaintiff has the right to be foolish as well as wise, and his
liberty is his to do with, as he pleases. To deny him his
freedom of choice in this matter of Counsel is unduly to
interfere with the defense, and constitutes a denial of the will
of The People, from whom the Courts' authority is derived; and a
substitution in lieu thereof is being used -- that of the "will
of attorneys."
Bills of rights are, in their origin, reservations of rights
not surrendered to the prince. Hamilton, Federalist Papers,
No. 84.
The right to have a "friend" plead one's case, or to assist one
in Court, is a Common Law Right secured by the Sixth Amendment.
History is clear that the first ten amendments to the
Constitution were adopted to secure certain common law
rights of the people against invasion by the Federal
Government. Bell v. Hood, 71 F.Supp., 813, 816 (1947)
U.S.D.C., So. Dist. Calif.
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Our Founding Fathers spoke and wrote in the vernacular of the
Common Law, and "Counsel" was the word they chose. The facts are
conclusive on this point, and the record supports this
contention. Interpretation of the word "Counsel" to mean
"attorney only" is a departure from the safeguards of the Bill of
Rights:
The Bill of Rights was provided as a barrier, to protect the
individual against arbitrary exactions of ... legislatures,
(and) courts ... it is the primary distinction between
democratic and totalitarian way.
[Re Stoller, 36 So.2d 443, 445 en banc (1948)]
A more recent confirmation of fundamental Rights of the Accused
says:
Where rights secured by the Constitution are involved, there
can be no rule-making or legislation which would abrogate
them.
[Miranda v. Arizona, 384 U.S. 436, 491 (1968)]
Even though the Miranda decision referred to the Fifth
Amendment right in toto, the above stated principle has general
application, wherein the word "rights" is not qualified.
II
PLAINTIFF'S RIGHT
TO FREEDOM OF ASSOCIATION
In Tarlowski supra, the Court said, in suppressing evidence
at the request of Tarlowski's motion:
When a federal official's interference with the right of
free association takes the form of limiting the ability of a
criminal suspect to consult with and be accompanied by a
person upon whom he relies for advice and protection, he
gravely transgresses. For these reasons, the Motion to
suppress must be granted.
It was in this case that Tarlowski was denied the Counsel of an
accountant, not of a lawyer.
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Plaintiff has a Right, under the First Amendment, freely to
associate with whom he pleases in his defense and in its
preparation and presentation, so long as such is respectful, with
decorum, and without contempt for orderly rules of procedure
which do not deprive one of Rights guaranteed by the U.S.
Constitution. To deny this Right is also to deny his Fifth
Amendment Right to Due Process of Law, which is actually a
guarantee of fundamental fairness.
III
PLAINTIFF'S RIGHT TO PETITION
FOR REDRESS OF GRIEVANCES
The First Amendment states, in pertinent part:
Congress shall make no law ... abridging ... the right of
the people ... to petition the Government for a redress of
grievances.
Plaintiff asks, "How can I maintain my maximum Right to petition
for redress of grievances, if that person whom I choose to speak
for me is not permitted to do so?"
If Congress passes a statute requiring a federal court to
abide by a statute of the State in which it sits, and said
statute of a state purports to make it a crime for a litigant to
be represented by a non-attorney, then Congress has effectively
done not only what the U.S. Constitution does not authorize it to
do, but it has done what is also expressly forbidden.
If such is the case, then Congress has made a "law" which
frustrates the Right of The People, and the Plaintiff, "to
petition the Government for a redress of grievances."
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Of what use is the Right to Petition for Redress of
Grievances, if the Plaintiff is personally handicapped by
government? This handicap arises because the Plaintiff needs
assistance in his petitioning, and yet he is limited by a bar
association, or a state, or a court which says that a competent
"friend" cannot be permitted to speak for the Plaintiff because
said "friend" has not been brainwashed in certain "approved" law
schools. It is in such law schools that the deprivation of
fundamental Rights, although set forth in plain and unambiguous
language in the U.S. Constitution itself, is not "settled
doctrine," despite the criminal prohibition at 18 U.S.C. 242.
The "licensed attorneys" and "attorney-judges" say that "The
Constitution is what the Supreme Court says it is." What if the
Congress passes a law saying that any bureaucrat can rape any
layman's wife, and what if the Supreme Court says, "Yes, that's
perfectly in harmony with the Constitution?"
Then, are We The People to stand for it? Who gave them said
authority? Now, what should The People do who have such a
Congress and such a Supreme Court? Are the lower court judges
brave enough to challenge it, or are they "bound" to follow the
higher Court judges?
And where is the member of the bar, the licensed attorney,
who now steps forward and announces that the Supreme Court is
mistaken? Where does his license go to? Now, who is going to
permit him to appear in court, if he doesn't buckle down and stop
rocking the establishment?
Obviously, an extreme example has been used; but it is
significant. Laymen would not have to stand for such nonsense.
Licensed attorneys ... who knows?
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 18 of 32
That laymen should be subjected to a "drifting" and
"unstable" Constitution -- which happens to be what some justices
"think it is" at the moment -- can be very frustrating, and that
a jury cannot hear a "Counsel" who is not beholden to such a
damnable floating doctrine, are indeed a denial of "the Right to
Petition (effectively) for Redress of Grievances." To preserve
justice, to preserve the semblance of a fair trial and an
impartial jury, let the Plaintiff petition for Redress of
Grievances to the jury through "Counsel of his choice," who is
not beholden to a corrupt and degenerate system which has
perverted the very Law by which it pretends to rule, and which it
pretends to protect and uphold.
Plaintiff believes that true religion guarantees freedom of
choice; or freedom to choose, to elect, and to select, taking
responsibility for the consequences of said choices.
Plaintiff further believes that he has the right to help
others and, in turn, to be helped by those willing voluntarily to
answer his call for assistance. In this case, he particularly
means in the Courtroom, where a hostile government is violating
its own laws and trampling upon the Rights of the Sovereign
People, which its officers are sworn to protect.
When all the mighty force of an all powerful government is
arrayed against a lone individual who has the courage to point
out the government's inequities, said individual should be
entitled, most of all, to the protection of his religious
convictions and rights.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 19 of 32
Under the First Amendment, the right of conscience and the
right to believe, as long as the same does not trample upon the
rights of others, is the number one right protected by
government. In pertinent part, the First Amendment states:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; ....
Plaintiff's religious conviction, again, calls for freedom from
oppression, and freedom from soul-stifling special-interest
legislation slapped on a freedom-loving individual, on behalf of
self-serving perpetrators of special advantages to the legal
profession, at the expense of the long-suffering victims of the
same. Let the legal profession compete like men with any Counsel
whom Plaintiff chooses for assistant, and for the proper exercise
of his religious Rights, chief among which is the freedom of any
choice which does not trample upon the Rights of others.
IV
PLAINTIFF'S RIGHT TO EQUAL PROTECTION
Plaintiff's right to equal protection of the laws is
guaranteed through the due process clause of the Fifth Amendment:
The due process clause of the Fifth Amendment guarantees to
each citizen the equal protection of the laws and prohibits
a denial thereof by any Federal official.
[Bolling v. Sharpe, 327 U.S. 497]
Plaintiff asks the Court to take Judicial Notice of an article
from Newsweek, September 2, 1974, which tells how a layman, James
Yager, handled the legal problems of 3,500 clients (see paragraph
1). The same paragraph also speaks of "His most recent court
appearance," which took place in Atlanta. It describes how
"Yager paced the courtroom floor," as he addressed the jury. Mr.
Yager is engaging in the practice of law, which is his Right as a
Layman, or laymen, to assist him in his defense, if they so
desire. To deny this motion is to give prisoners more Rights
than to a Free and Natural Person. Such inequity before the law
is intolerable. It encourages tyranny.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 20 of 32
Said article mentions various others who have adopted law as
an avocation, and goes on to mention a Mr. Green, another former
inmate now on parole, and says that: "Green is a familiar face
in the Boston courtrooms, where he maintains his legal activities
by submitting amicus briefs for other felons." It would be
interesting to know if Mr. Green and Yeager, like Mr. Jefferson
and James X, are also black men, and if therefore, fundamental
Rights are only available to black men.
In both United Mine Workers v. Illinois Bar Association, 389
U.S. 217, and NAACP v. Button, 371 U.S. 415, and also in
Brotherhood of Railhood Trainmen v. Virginia State Bar, 377 U.S.
1 (1964), it was held that a State may not pass statutes
prohibiting the unauthorized practice of law or to interfere with
the Right to freedom of speech, secured by the First Amendment.
Plaintiff is entitled to equal protection of the laws and
that includes his right to speak through whom he pleases, when he
pleases. The only reasonable condition is that the decorum of
the Court and the rules not in conflict with individual Rights be
maintained; otherwise there can be no valid denial of this
inalienable and legal Right. Plaintiff is agreeable to this, and
has every intention of obeying the proper rules and maintaining
the decorum of the Court. To do otherwise is unthinkable.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 21 of 32
Plaintiff herein also believes that it is vital to his
defense to seek whatever assistance he can trust, and that, if he
decides to be assisted by either licensed or unlicensed Counsel,
he has every Right to do so. If the Plaintiff believes that a
combination of both may be to his advantage, to deny him this
Right would constitute an unreasonable and arbitrary interference
with his defense, by denying him his fundamental Rights freely to
associate with whom he chooses; to freedom of speech; to
freedom to Petition for Redress of Grievances; and his religious
Right of conscience and freedom of choice, without which religion
is worth but little.
Plaintiff also asks the Court to take Judicial Notice that
other litigants are allowed to plan their cases without court
interference, and Plaintiff herein claims that same Right.
Surely, we cannot have special laws for attorneys and
special grants of privilege to them as a class when these very
same privileges are denied to all other Citizens. The
Constitutional prohibitions against Titles of Nobility in Article
I, Section 9, clause 7, and in the original Thirteenth Amendment,
are violated when "attorney" becomes a Title of special
privileges, i.e. "Nobility." We must all have equal access to
the Courts. Presently, only those attorneys have access to the
Courts whom the Courts approve and, as a result, all "approved"
attorneys are considered Officers of the Court.
Where does a defendant go when he does not wish to be
defended by an Officer of the Court? To use the power of the
Court to force the defense to retain an Officer of the Court at
the defense table offends the sensibilities of Plaintiff to the
very core. Plaintiff may wish voluntarily to select an attorney
among his Counsels, but Plaintiff also believes that he should
not be forced to do so. Plaintiff is simply seeking freedom of
choice in the matter of whether he has no Counsel and represents
himself, or uses licensed legal Counsel (attorney), mixed Counsel
(attorneys and laymen), or lay Counsel only.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 22 of 32
The "stealthy encroachment" upon Plaintiff's Right to a
Counsel who is not licensed by the Bar is the result of a
monopoly of the legal establishment, both in and out of
government, State and Federal, to "protect" their "price fixing";
to maintain artificially high legal fees; to educate the chosen
few in law schools maintained largely at public expense; to
protect attorneys from competition from those who know that
attorneys have obstructed the U.S. Constitution and left the
People at the mercy of a swarm of bureaucrats. These bureaucrats
use endless attorney-promoted regulations and laws which make
"crimes" out of the exercise of natural and constitutionally
protected Rights, whereby the attorney-controlled government can
prosecute the Sovereign Citizen, and force him into the waiting,
outstretched arms of an attorney "brotherhood," who will "advise"
and "defend" him for a considerable fee.
Little wonder that People are fed up with the profession
when it is full of licensed "Haldemans, Erlichmans, Mitchells,
and Deans." Little wonder many People almost vomit when
contemplating what attorneys have done to this once mighty,
powerful, and independent Republic.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 23 of 32
Legal fees come too high for many average Citizens. Yet,
the same average Citizen cannot turn to laymen who may be well
versed in the necessary legal area, and this restricts the Courts
to attorneys and those who can afford them. Laymen who cannot
afford attorneys must suffer along as best they can. It is as
unjust a system of justice as one could conjure up. Of course,
some persons may qualify for a Public Defender. That is like
being alone in a pit of cobras, and someone comes along and wants
to throw in another cobra. Under those circumstances, what is
needed is a mongoose (read "Counsel of Choice"), not another
cobra. Perhaps the STAR CHAMBERS weren't so bad after all!
V
PLAINTIFF'S RIGHT TO FREEDOM OF SPEECH
Plaintiff has not only the Right to speak for himself, but
also to speak through whom he pleases. This is inherent in the
First Amendment Right to freedom of speech. It is also self-
evident, as a part of the Natural Rights Doctrine. Those Rights
which are called inherent and inalienable are outlined in the
Declaration of Independence, which antedates all government.
They are natural or God-given, rather than government-given,
rights. Plaintiff points out that he does not claim any
"attorney-given" rights, but demands that his God-given, Natural
Rights not be infringed upon.
This fundamental Right of freedom of speech has been
referred to previously, but Plaintiff wishes to set it out
separately, to emphasize it to the Court, and herein refers again
to United Mine Workers v. Illinois Bar Association supra, NAACP
v. Button supra, and the Brotherhood of Railroad Trainmen v.
Virginia State Bar supra, in support of said Right.
It is indicative that the words in the First Amendment
embrace freedom "of" speech, and not just freedom "to" speak;
and, while Plaintiff does not wish to prolong this memorandum by
a detailed discussion of the difference between the two terms, he
does wish to bring to this Court's attention that there is a
difference, and that its application is obvious.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 24 of 32
VI
DENIAL OF FREEDOM OF COUNSEL
RESULTS IN A CONFLICT OF INTEREST
Plaintiff's request for the Court to recognize his Right to
non-attorney Counsel in lieu of, or in addition to, attorney
Counsel, would mean that the Court would have to rule during
trial on a motion regarding Plaintiff's Right to non-attorney
assistance, including that of assistant spokesman.
If the presiding Judge of this Honorable Court has, in the
past, ever been a member of any bar association or is, at
present, a member of any bar association, or has close friends or
associates connected with any bar association, then Plaintiff
finds it difficult to see how this Court could possibly render an
unprejudiced and impartial ruling affecting Plaintiff's Right to
non-attorney Counsel.
It appears to Plaintiff that the Court would find itself at
variance with his own standards, mainly the Canons of Judicial
Ethics, No. 29, which states:
A judge should abstain from performing or taking part in any
judicial act in which his personal interests are involved.
If he has a personal litigation in the court of which he is
judge, he need not resign his judgeship on that account, but
he should, of course, refrain from any judicial act in such
controversy.
It is apparent to the Plaintiff that the denial of
Plaintiff's motion herein would call for thinking, on the part of
most reasonable persons, that the denial was based, at least in
part, on a conflict of interest and upon a "hardship of the
case," meaning upon the unfortunate bar associations.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 25 of 32
Granting a motion for Counsel of choice, however, could not
be interpreted as being a conflict of interest, but rather,
granting such a motion would occur despite personal interest and
in favor of fairness, of due process, and of the justice to which
the Sovereign Citizen of this Republic is entitled under the
Sixth Amendment.
VII
FEDERAL AND STATE COURTS' ENFORCEMENT
OF PRACTICE-OF-LAW STATE STATUTE
ABRIDGES FIRST, NINTH, AND TENTH AMENDMENTS
The Tenth Amendment of the U.S. Constitution states:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
The power to abrogate the Rights mentioned herein has not been
delegated to the United States, nor to any State, through the
U.S. Constitution. Such a power is an undelegated colorable
"office."
Nothing in the U.S. Constitution, or in the Constitution of
this Union state, authorizes a delegation of power to the state
to thwart and frustrate the foregoing Rights, i.e. freedom of
speech, of religion, of assembly, of petitioning for redress of
grievances, of due process, of the Right to contract, and of
equal treatment under the law.
Therefore, assuming that all of the foregoing is true, then
the "power" remains with the People, who are the Sovereigns in
this country as heretofore pointed out. Therefore, the Plaintiff
retains the power to choose a spokesman in court, "any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding." See Article VI, Clause 2. Regardless of this
state's statutes or any arbitrary rule-making, it cannot
invalidate the Plaintiff's fundamental Rights protected by the
U.S. Constitution. Said pretended right to "regulate" the
"practice of law" must fall, or recede, when placed alongside the
Plaintiff's fundamental Right to a fair trial by an impartial
jury, with due process, freedom of speech, and freedom of
contract, as heretofore demonstrated.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 26 of 32
It is impossible to delegate to another that which the
delegator does not himself possess. Plaintiff does not have the
right to compel the inadequate representation of another and,
therefore, this Plaintiff is powerless to delegate such a
tyrannical power to a legislature, whether or not controlled by
attorneys or any bar association.
To summarize the foregoing, the Tenth Amendment prohibits
Minnesota state and its courts from restricting Plaintiff's
fundamental Right to a non-attorney spokesman in court. Such
power is not given to Minnesota state by either the U.S. or by
the state constitutions. Therefore, in civil cases, the
Legislature has usurped, at the prodding of attorneys, the so-
called Right to institute a statute prohibiting a defendant, in a
prosecution against him by his government, from relying upon a
preferred spokesman of trust and confidence. In criminal cases,
there is no valid reason, statute, or court ruling that can alter
the fundamental Right to Counsel, and the courts, in denying said
spokesman, are arbitrarily usurping Plaintiff's Right.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 27 of 32
The Ninth Amendment reserves all non-enumerated Rights.
They are not to be denied or disparaged, though not enumerated.
The mention and enumeration of the Right to Counsel, under the
Supreme authority of the Sixth Amendment, cannot be construed to
deny or disparage the Right to that Counsel's being a non-
attorney, or a non-member of any bar association licensed only to
plea bargain, and lose.
It would appear that any decent person would have no
difficulty agreeing with the above, and that any other ruling
would indeed be "frivolous" and without constitutional authority.
Again, imposing restrictions on Plaintiff's Counsel violates
and circumvents Plaintiff's Fifth Amendment Rights. In addition,
it imposes cruel and unusual punishment upon the Plaintiff by
forcing him to seek legal assistance, when and if he needs it,
from those whom he either does not trust or cannot afford.
VIII
DENIAL OF NON-ATTORNEY COUNSEL
VIOLATES CIVIL RIGHTS
Denial of Plaintiff's desire for a non-attorney of his
choice is also a deprivation of his civil Rights under color of
law, in violation of Plaintiff's fundamental Rights as protected
by 42 U.S.C. 1983, 1985, and 1986. See Owens v. The City of
Independence.
CONCLUSION
Any denial of Counsel is an attempt to accomplish what is
prohibited by the Sixth Amendment. The Right recognized therein
says nothing about only "court-approved counsel," and that
fundamental Right is in no way qualified or limited.
The U.S. Supreme Court held in Miller v. Milwaukee, 272 U.S.
713, 715, that if a statute is part of an unlawful scheme to
reach a prohibited result, then "... the statute must fail ...."
This was again upheld in McCallen v. Massachusetts, 279 U.S. 620,
630. Legislators, whether federal or state, may not restrict the
courts only to attorneys, in order to deny effective assistance
of Counsel to any Plaintiff who evinces a desire to be
represented or assisted by a "friend," in preference to a
licensed "attorney." What cannot be done by the front door,
cannot be lawfully done by way of the back door.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 28 of 32
Legislators who pass laws do not have to be attorneys, nor
do those who execute the law, i.e. Sheriffs, Governors,
Presidents, etc. Even the Justices of the U.S. Supreme Court
need not be licensed attorneys. To exclude the People from
defending their "friends" in the Courts turns said Courts into a
playground for the legal establishment, and is a blatant
violation of Plaintiff's fundamental Right to Counsel of choice,
due process of law, and equal protection under the law. Justice
Brandeis said:
Discrimination is the act of treating differently two
persons or things under like circumstances. National Life
Insurance Co. v. United States, 277 U.S. 508, 630.
As far back as 1886, the U.S. Supreme Court was concerned
with the unjust and illegal discriminations which were running
rampant. The Court frowned upon law that was administered with
an "unequal hand":
... [S]o as practically to make unjust and illegal
discrimination between persons in similar circumstances
material to their rights, the denial of equal justice is
still within the prohibition of the Constitution. Yick Wo
v. Hopkins supra.
Therefore, the courts cannot be the exclusive territory of a
legal "elite corps," but must be open to all the Sovereign People
alike -- on an equal basis, providing due process of Law and
equal protection under that Law.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 29 of 32
The Ninth and Tenth Amendments also prohibit the denial of
Counsel of choice. Nowhere has Plaintiff or his predecessors
delegated such restrictive powers to the United States or to any
of the Union states, and if the Court will closely examine the
Ninth and Tenth Amendments, it will find that the Right to
Counsel of choice, such as Plaintiff herein claims, is also
secured in the penumbra of these Amendments, particularly the
Ninth Amendment, which is protected in the states. Roe v. Wade,
41 L.W. 4213 (1973); Shapiro v. U.S., 641, 394 U.S. 618 (1966);
Griswold v. Connecticut, 381 U.S. 479 (1964).
Speaking of controlling constitutional law, as opposed to
mere statute law, Chief Justice Marshall said:
Those then, who controvert this principle, that the
Constitution is to be considered in court as a paramount
law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the
law.
And the Court concluded that:
This doctrine would subvert the very foundation of all
written constitutions.
[Marbury v. Madison, 5 U.S. 137, 176]
The United States Supreme Court also pointed out in this
decision that, in declaring what should be the supreme Law of the
Land, the U.S. Constitution itself was first mentioned and "...
not the laws of the United States generally ...."
The attorneys who sit in state legislatures and in Congress
have no right to pass laws which infringe upon, or abolish, Our
fundamental Rights under the U.S. Constitution, as lawfully
amended, and such unconstitutional laws which purport to do so
must be declared null and void and not binding upon the courts.
See Miranda v. Arizona supra, at 491.
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 30 of 32
VERIFICATION
I, Everett C. Gilbertson, Sui Juris, hereby verify, under penalty
of perjury, under the laws of the United States of America,
without the "United States", that the above statements of fact
are true and correct, to the best of My current information,
knowledge, and belief, so help Me God, pursuant to 28 U.S.C.
1746(1).
Dated: ______________________________
Respectfully submitted,
/s/ Everett C. Gilbertson
_____________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 31 of 32
PROOF OF SERVICE
I, Everett C. Gilbertson, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States," that I am at least 18 years
of age, a Citizen of one of the United States of America, and
that I personally served the following document(s):
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF NOTICE AND DEMAND FOR
EFFECTIVE ASSISTANCE OF COUNSEL OF CHOICE:
Sixth Amendment
by placing one true and correct copy of said document(s) in first
class United States Mail, with postage prepaid and properly
addressed to the following:
Henry Shea
United States Attorneys
110 South Fourth Street
Minneapolis, Minnesota state
Attorney General
Department of Justice
10th & Constitution, N.W.
Washington, D.C.
Solicitor General
Department of Justice
10th & Constitution, N.W.
Washington, D.C.
Dated: __________________________________
/s/ Everett C. Gilbertson
__________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Memo of P&A for Counsel of Choice per Sixth Amendment:
Page 32 of 32
# # #
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U.S.A. v. Gilbertson, District Court