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Springer's Supreme Court Petition, Part VII, Right to Counsel
XVI. PETITIONER'S CONVICTION WAS OBTAINED IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL AS HIS WAIVER WAS NOT VOLUNTARY, KNOWINGLY, AND INTELLIGENTLY MADE.
The Sixth Amendment secures for People facing trial, with criminal penalties, that such represented individuals be represented by competent counsel; or the trial court is allowed to proceed to trial without such appointment so long as the record is clear Petitioner voluntarily, knowingly, and intelligently waived his Sixth Amendment Right to such Counsel. The record shows no proper waiver exists.
The Panel's decision to affirm Petitioner's conviction obtained without such Counsel, and reviewing de novo, relied upon U.S. v. Turner, 287 F.3d 980, 983 (10th Cir. 2002) setting the Circuit test in direct conflict with Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Von Moltke v. Gillies, 332 U.S. 708, 723 (1948); U.S. v. Wade, 388 U.S. 218, 224 (1967); Maine v. Moulton, 474 U.S. 159, 170 (1985); Patterson v. Illinois, 487 U.S. 285, 298-99 (1988); and Iowa v. Tovar, 541 U.S. 77, 81 (2004). Farretta v. California, 422 U.S. 806, 835 (1975).
Petitioner's waiver is premised upon one discussion of approximately 10 minutes with the Trial Judge at the beginning of a motion's hearing on April 22, 2009, some 30 days after arraignment. App. C. The Trial Judge informed defendants, App. A-14, in a joint manner, "both of you understand that you do have a right to a lawyer" and "both of you have standby counsel." App. A-14. In the 10 minute joint exchange the Panel holds Petitioner and his co-defendant voluntarily, knowingly, and intelligently, waived Sixth Amendment Right to Counsel. App. A-15. The Panel set its de novo test at:
"the trial judge ideally should conduct a 'thorough and comprehensive formal inquiry including topics such as the nature of the charges, the range of punishment, possible defenses, and a disclosure of risk involved in representing one self pro-se."
App. A-14 At no time does the Panel identify any words conveyed to Petitioner "on the record" but rather used conclusory statements to summarize the Panel decision. App. A-14 & 15.
The 10 minute discussion shows the Court conveyed (1) no tag teaming, (2) standby counsel does not represent, (without an attorney Petitioner might miss something, (4) it is unwise to represent yourself, (5) there will be no special treatment, (6) no continuances, (7) DOJ won’t go easy on Petitioner, (8) no claim on appeal Petitioner lacked skill. App. C-7 to C-10
(i) No understanding of the offenses or their nature.
The Sixth Amendment is not a jointly held right. Neither Petitioner, or the Court, understood the charges ordering two separate Bills of Particulars on July 2, 2009, App. E-3, and on October 9, 2009, App. F-1. At the July 2, 2009 hearing, the Trial Court asked the Prosecution "what provision should I be looking at here." App. E-2. Petitioner informed the Court on April 22, 2009, he did not understand the charges. App. C-16 At all times Petitioner was led to believe the tax returns at issue were Form 1040. App. JJ-3. The Trial Court even instructed the jury Form 1040 did not violate the PRA. App. L-5. the Panel held Form 1040 was not even at issue in the Trial. App. A-9
(ii) No risks of proceeding Pro-Se were rigorously conveyed.
The only danger in the 8 listed items above is that Petitioner might miss items. App. C-8. That is not what this Court has required.
(iii) No consequence of conviction was rigorously conveyed.
The Panel's "consequence of conviction" test does not fit into any test in Turner. App. A-14. Petitioner was informed if he was found guilty he faced probably between 5 and 10 years and each Count combine was 22 years. App. C-24 Petitioner received 15 years. App. R-2
(iv) The Sixth Amendment demands so much more.
The Trial Court informed Petitioner an attorney's knowledge, ability, and experience with procedures, trials, and appeals, was an advantage. App. C-8. The Trial Court informed Petitioner he would be required to obey all "criminal law and court room procedure." App. C-11. During the 10 minute hearing Petitioner sought understanding of the role of standby counsel, subpoenaing witnesses (especially government), and referred to an affidavit as a sticking point to qualify for counsel dealing with the nature of the case in general. App. C-14.
Petitioner ran into many dangers never addressed by the Trial Judge. Petitioner sought meaning of "required by law" and "lawful functions". Petitioner was at a loss for how the SOTT could remain with Congressional Authority after a criminal referral was made. The Form of Return, the PRA, Springer, 580 F.3d at 1143-44, venue and jurisdiction wanting due to abolished IRDs, the meaning of services, gift, return, and other terms not defined by Congress or the SOTT. Each attempt was Petitioner seeking understanding of the charges. Petitioner sought evidence about referral witnesses and Government employees and was repeatedly denied. App. C-14. At Trial, Touhy was used to keep out Meadors, Horn, Nelson, Rice and others. App. O-11 The Sixth Amendment secures the right to call material witnesses in this very complex case. Meadors, for instance, thanked Petitioner for his cooperation. App. V The Court would not let her testify. Meadors conducted an investigation using summons while a Grand Jury was impanelled by Horn and Nelson. App. Y-1. How can Touhy regulations overrule the Sixth Amendment right to call witnesses? App. L-6 to L-9
The Trial Court never discussed defenses, the trial process, or why Petitioner sought to proceed pro-se. Petitioner should have been told the Court found Form 1040 did not violate the PRA. Petitioner was never informed by Congress, SOTT, or the Court, the meaning of gift, testifying in the narrative, or how to present evidence, before the waiver was construed. In the middle of trial, the Court declared:
"So, I think in fairness with two pro-se defendants, it is appropriate to provide some preliminary thoughts as to the ground rules...that will govern the Defendant's presentation of their evidence." App. I-14
The Panel limits the "voluntarily" prong of the waiver to simply whether the "district court alerted them to their clear alternatives to self-representation." App. A-14. Anyone could say the Sixth Amendment does that. In Von Moltke, 332 U.S. at 723, this Court held the presumption is against waiver. To be voluntary, the Court must ask Petitioner why he chooses to proceed pro-se. Id. at 724
Never did the Court make such a searching question. To be voluntary, the Court MUST conduct a thorough and comprehensive formal inquiry. Id. This Court says "must" and the Panel says "ideally should." App. A-14. The decision MUST be penetrating and wisely made. Id. Simply making Petitioner aware of the Sixth Amendment's words does not make Petitioner's choice "voluntarily" made.
The Panel's finding the waiver on April 22, 2009, was intelligent, is unfounded. "Whether there has been an intelligent waiver of the right to Counsel MUST depend (not ideally) in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson, 304 U.S. at 464. "The information a defendant MUST possess (not ideally) in order to make an intelligent election depends on a range of case specific factors, including education (12th grade), the complex or easily grasped nature of the charges (very complex), and the state of the proceedings." Id. These warnings of the pitfalls of proceeding to trial uncounseled "MUST be rigorously conveyed." (not ideally). Patterson, 487 U.S. at 298. The issue is "what purpose a lawyer can serve at the particular state of the proceedings in question." Id. "Less rigorous" at pretrial and "rigorously conveyed" for trial. Id.
The Sixth Amendment secures Counsel "at all critical states" of the criminal process. Tovar, 541 U.S. at 88; quoting Maine, 474 U.S. at 170. The "hazards ahead" MUST be "warned specifically." Id. Petitioner need not possess the skill of a trial lawyers in order to voluntarily, competently, and intelligently waive counsel, but he should be warned about the specific "procedures and evidence, comprehend the subtleties of voir dire, examine and cross examine witnesses effectively...object to improper questions and much more." Tovar, 541 U.S. at 89.
The warning must be about the "pitfalls" ahead. Id. The Court was required to match up the "stage" with the "type of warnings and procedures that should be required before waiver of that right will be recognized." Id. at 298. The Trial Judge is to make certain the waiver is understandingly and wisely made "only from a penetrating and comprehensive examination of all the circumstances under which such plea is tendered." Von Moltke, 332 U.S. at 723-24 In about 10 minutes the Panel held the Trial Court covered every critical stage and made every examination this Court requires. App. A-14 & 15 The Panel is wrong.
This Court held in Johnson, if the Sixth Amendment is not properly waived "the Court no longer has jurisdiction to proceed" and the Judgment of conviction was void. 304 U.S. at 468. Certainly unusual!
The Petition for a writ of certiorari should be granted.
Lindsey K. Springer
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