Time: Mon Nov 25 14:38:13 1996
To: minutemn@pcl.net (Mike Kemp)
From: Paul Andrew Mitchell [address in tool bar]
Subject: This morning
Cc:
Bcc:
At 12:46 PM 11/25/96 -0800, you wrote:
>Paul:
> You got my TO ALL piece. It was a joke. I have to go see the
>media, but I will get with you this evening.
> I am well, don't worry.
>
>In Liberty,
>Mike
Mike,
You are well because you did VERY well.
Please accept my congratulations.
Here are my thoughts, after pondering
the details over lunch:
1. judge declared that you did not have
the right to appeal until he had sentenced
you
Comments:
This is a judicial determination which can and
should be appealed. You did not petition him
for leave to appeal; you petitioned the
Appeals Court for leave to appeal interlocutory
matters. So, such a decision was not properly
before the trial judge. By ruling as he did,
he was practicing law from the bench, because
you did not move him to make such a determination,
and I presume that the Prosecution did not either.
You can cannot move him now, because your position
is that he lost jurisdiction the moment you
petitioned the Appeals Court for leave to appeal
interlocutory orders, and for mandamus.
The ball is in their court, and out of his court,
for the time being. If the Appeals Court should
rule that they do not have jurisdiction, you will
then petition them for reconsideration, then for
reconsideration en banc. The sentence should be
vacated because he had lost jurisdiction the moment
you filed your Petition for Writ of Mandamus and
for Leave to Appeal Interlocutory Order. Moreover,
every petition by any litigant to any court in America
falls under the purview of the Petition Clause in the
First Amendment, and the U.S. Supreme Court has ruled
that such a Petition is a sacred, fundamental Right
guaranteed by the First Amendment; furthermore, the
Supreme Court has also ruled that the Petition Clause
is the Right conservative of all other Rights. So,
we must respectfully disagree with the trial judge
when he says that "you do not have the right to appeal
until he sentenced you." So far, so good. We caught
him making a very bad decision; now we will tell the
world how bad it really was.
2. He would have granted a continuance if you had sought
a licensed attorney. However, a counselor not licensed
by the state to practice does not qualify as "counsel,"
in judge's opinion.
Again, you could motion him for clarification, reconsideration,
then for a Finding of Facts and Conclusions of Law, but your
position is that he lost jurisdiction when you Petitioned the
Appeals Court. If the Appeals Court should eventually rule
that he had not lost jurisdiction, now you have a very
substantive issue to raise, under the fundamental Right to
Counsel of your choice, under the Sixth Amendment, which is
already on the table because of your argument(s) concerning
the "nature and cause" clause. You will be very happy to know
that I have an excellent brief and Demand for Counsel of Choice,
which proves conclusively that a Citizen of Alabama state does,
indeed, have the fundamental Right to his (her) Counsel of
Choice, and it also proves, conclusively, that "Counsel" does
not necessarily embrace a licensed bar member. Now, we can
get them really nervous by introducing material evidence
concerning the original 13th Amendment (but only if you want
to, Mike).
Let me know, and I can share with you the detailed
brief on Counsel of Choice.
We have set them up perfectly now for the Removal,
because you were denied effective assistance of Counsel
specifically because I could not begin working on
your case until and unless the retainer arrived, and it was
delayed specifically because you were instructed to transmit
my mail without a ZIP code. There is our federal question.
We can start the removal papers as soon as you are ready,
and then file them as soon as we get something from the
Appeals Court. So, we need to talk about tactics here,
because a lot will depend on what the Appeals Court does.
If they do not rule, we can petition the Alabama Supreme
Court for a Writ of Mandamus to compel the Appeals Court
to rule on the Petition now before them, under the fundamental
Right to Petition Government for Redress of Grievances.
Check with your Alabama court rules, to see what those rules
say about deadlines for exhausting mandamus remedies.
(While I am on this subject, you will need to get a copy
of those rules to me, in addition to a copy of the Alabama
state constitution, and pertinent state laws.)
This is such an important right, I repeat, that the U.S.
Supreme Court has said that it is the Right conservative
of ALL OTHER RIGHTS! Do you realize how serious such a
holding is? THE PETITION CLAUSE IS THE RIGHT CONSERVATIVE
OF ALL OTHER RIGHTS, and the Freedom Movement has all but
completely ignored this important, even crucial aspect
of the First Amendment!!
3. Unless you groveled, you were going to jail, eventually.
This is tantamount to a threat, and I would file an immediate
judicial complaint against him, and recuse him preemptively,
whether or not he has jurisdiction. This is your ground for
replacing him with the other judge, the one you mentioned to
me, the one before whom you now want to make all your
subsequent appearances. Such a statement by the trial
judge evidences prejudicial bias on his part, and it may
constitute probable cause for charging him with extortion,
since a jail threat is just that -- a threat. There are
no two ways about it, Mike.
In summary, all in all I think you did superbly, and you
have forced the trial judge to make some very egregious
errors, not the least of which is his failure to recognize
that you had not petitioned or moved him to do anything,
but that you had petitioned the Appeals Court instead and,
accordingly, he had lost jurisdiction, if only long enough
for the Appeals Court to rule that they did not have
procedural jurisdiction over a Petition for Leave to
Appeal Interlocutory Order. I contend that, under the
Tenth Amendment and the common law, such a procedural
remedy is not only available, but necessary, to prevent
barratry on the part of the State of Alabama. Confer
at "barratry" in Black's Law Dictionary. Check in your
state Constitution, and remember also the Tenth Amendment.
Under common law, you do have a procedural Right to prevent
unnecessary, costly litigation, under the due process clause
in the Bill of Rights (Fifth Amendment). Since we have
already perfected your status as a Citizen of Alabama state,
you have every right in the world to invoke these procedural
remedies, because we have already invoked the common law
maxim that substance prevails over form. That should attract
lots of legal scholars to stand up and take note, including
hopefully the Alabama state lawyers. By the way, what did
the state attorneys do, if anything? I am all ears.
God bless you, Mike. Keep the faith and, above all,
keep fighting. Since we succeeded in keeping you out
of jail this round, we have achieved our interim
tactical objective, namely, to buy more time, which
we will now exploit to load and fire our 12-inch howitzers
-- the removal into the District Court of the United States
on the several questions which have already arisen in this
case (e.g. delayed mail with no ZIP code, federal funding
of the drug task force, and any others you can think of).
Stay in touch.
/s/ Paul Mitchell
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