The Ordeal: Part Three, Incarceration and the Initial Hearing

Date: August 8, 2019

Hello Friends,

I’ll pick up the story from the point of the initial detention and hearing in front of a magistrate the following day. The arrest occurred on a Thursday early evening, and the hearing took place the following day in the afternoon. Before they transported me to the detention center I was allowed (handcuffed) to guide an officer to a safety deposit box I had in my bedroom to obtain $150 dollars for bail. There was mention from the deputies of the bail being around 1,500 dollars and that it was necessary to put up ten percent of that to meet bail, and ten percent of that is $150. Having some money on hand before you enter custody is something people need to be aware of, especially if they live alone and have no one on the outside they can count on to assist them once they are detained.

When something like this occurs, it is amazing the number of things you have to stop and consider taking care of before the opportunity escapes you. Because once you are locked up without access to any number of things — money, exculpatory documentation or without any apparent way to defend or acquit yourself — you are screwed. Or at least it seems that way. And it can be very easy to slip into a dejected or depressed mood based on the pressure of the physical and mental coercion the state is imposing upon you.

I was taken into custody from my home around 5PM on December 28, 2017 and booked into the county detention center. The Sheriff deputies did not have a copy of the warrant to show me which they were using to detain and arrest me. Then again, I didn’t have enough presence of mind at the time to ask to see one. I was too busy trying to figure out what I was going to do. It wouldn’t have mattered anyway because on a subsequent detainment and arrest when I did ask to see the warrant, the deputy said he didn’t have a copy but would provide me with one once we arrived at the detention center. What he provided me with was an internal work order document of the Sheriff’s Department with a bunch of code numbers and letters on it that didn’t make any sense to anyone who was unconnected with the Department. To that deputy, thats what a warrant was: a work order form. (Do you see the kind of mentality we’re having to work with here?) In other words, I was never handed a copy of an affidavit of complaint and warrant signed by a judge with the court seal on it. That’s what I wanted to see in order confirm the lawfulness of the action. And that didn’t happen.

The incidences of due process violations only mounted from this point on. If you think you are considered innocent before being proven guilty by the legal system, you can buy into that window dressing lip service ideal until reality finally dawns on you that what is happening is you are considered by the system to be guilty until you prove yourself not guilty, which is an impossibility. Because no one can prove a negative.

The detention center itself is more or less a mental torture chamber for psychological exploitation and mental degradation. It is not a good atmosphere to be in if you’re trying to think and figure things out. You’ve heard of the phone call that you’re entitled to in order to contact counsel or whomever. Well, the booking room and the community detention cell both have a phone or phones in them (four phones connected to a phone tree in the detention cell). But unless you can get the party on the other end of a call to pay for the call (or you have money on account to cover that call), you have no contact with the outside world. And the phone call itself was outrageously priced! Several dollars for just a few minutes (each call only lasts 15 minutes before the phone system automatically hangs up!). Everything in these places is about squeezing money out of you, one way or the other. Because the people employed in this kind of work (the state officers, court workers, detention officers etcetera) are not productive members of society; they don’t produce any goods that benefit society, and the bulk of the services they extend to the bulk of people who come into contact with them are many times questionable and/or unnecessary. The legal society has spawned an industry of financial piracy which is ingrained in the system itself.

There was a list of bail bondsmen taped to the wall next to the phone in the booking room, so when allowed, I started to contact those with local numbers. If the person at the other end accepts the charges, then you have 15 minutes to talk before the phone automatically hangs up. Most bail bondsmen will accept an initial call because that means business for them. But if you are not able to come up with or convince them that you have the collateral to put up for the bond, they may not bother answering a second call. My only chance of being able to address this situation was to get out of custody and back to my research material where I would at least have a fighting opportunity to acquit myself.

Also, when you are in custody, unless you have someone on the outside (which I did not have) who is able to support whatever needs you have in order to defend yourself, you are basically left in the dark and on your own. I had no access to documents I had in my file at home, which contained what I considered to be exculpatory material with regard to the present circumstance, before I was forced to enter a hearing unprepared and without adequate legal counsel. And perhaps equally important, I was not familiar enough with court procedure to know what to do or how to respond in any given situation.

At the time I was incarcerated, I was three months away from my sixty-sixth birthday. Luckily, I had kept myself in good shape through daily exercise and diet and had no major medical issues, save one or two minor issues. I needed to take 50 mg of zinc at least twice a week in order to keep from having problems with my prostate. I don’t trust state educated “doctors” and their complicity with Big Pharma, and so I research everything having to do with health before I even think of seeing a doctor about anything. My concern about the possibility of my prostate acting up and blocking my ability to evacuate the bladder was real, and one that I had experience in the recent past. On that occasion in the past, though, I had access to zinc lozenges to alleviate that situation. But being locked up, I had no access to what I knew would be an effective antidote. This was a real concern stirring in my mind, because it could act as a distraction to my ability to mentally function should the prostate issue come to fruition.

So, already, I have more than one concern on my mind as I’m endeavoring to prepare for a hearing the next day. If it hadn’t been for my training earlier in life with a monastic order and the practice of meditation, I might have succumbed to the psychological pressure being applied in that situation. As it was, I was able to apply some measure of focus and concentration to keep myself on track. 

As anyone who is near or over the age of sixty knows, inconsistencies in cognitive functioning begin to rear their ugly head somewhere around that age. In 2014 at the age of sixty-two, I was experiencing difficulties with recalling thoughts that I’d just had five or ten seconds before I wanted to recall them. Not very good if you’re a writer and a good thought strikes you and a few seconds later, after being distracted, you cannot recall that good thought well enough to write it down. Distractions can easily have one forgetting what one was thinking just a few seconds before. It’s not that I was ignorant of some subject or other, but that my mind would not make the connections for proper recall of exactly what I cared to express. This could be a potentially disasterous condition to have to deal with should it occur in front of a judge. Unless one is mentally alert and ready to respond in court, things can go south very quickly in the blink of an eye.

Through research, I had learned about the power of blueberries and krill oil as a remedy for restoring the nutrients necessary to bring back cognitive functioning in old age, and in the years since that time in 2014 have been using those ingredients with much success. It was an amazing one hundred and eighty degree turnaround when I started doing this, like between night and day. After just four to eight weeks on this regimen I was able once again to recall thoughts I’d had just seconds before being distracted.

That whole night before the next day’s hearing, I was struggling to recall certain information about how to handle myself at the hearing. It was frustrating because all I needed was a refreshed look at the material I had been accumulating on my computer in order to figure out what I was going to say at the hearing. I don’t think I got more than a couple of hours  sleep throughout that night. The next morning I asked for a pencil and paper so that I could write down, before the hearing, everything I wanted to remember.   

It wasn’t until much later (over a year, in fact, after having come across it in my research, because none of the attorneys I ever talked with brought it up) that I learned I should have asked to confer with counsel before proceeding any further with the hearing or responding to any questions. I was aware that the judge, no matter what I might say to mitigate or challenge the matter, was likely to enter a plea of “not guilty” on the defendant’s behalf, and I did not know how to counter or properly object to that move. As it turned out, there were other factors in that hearing (that I was to later learn about) which violated due process enough that I should be able to bring up in a post-conviction challenge.

In the meantime, I vaguely recalled having read about a procedure in pleading that was used to deny the jurisdiction of the court from which the alleged record of the matter initiated. Although I may have been mistaken on the correct procedure of its application, it went as follows: [link source: http://legaldictionary.lawin.org/nul-tiel-record/ ]

nul tiel record  (Fr. no such record). In pleading. A plea which is proper when it is proposed to rely upon facts which disprove the existence of the record on which the plaintiff founds his action. Any matters may be introduced under it which tend to destroy the validity of the record as a record, provided they do not contradict the recitals of the record itself. 10 Ohio, 100. It is frequently used to enable the defendant to deny the jurisdiction of the court from which the alleged record emanates. 2 McLean, C. C. (U. S.) 129; 22 Wend. (N. Y.) 293. It is said to be the proper plea to an action on a foreign judgment, especially if of a sister state, in the United States (2 Leigh [Va.] 72; 6 Leigh [Va.] 570;

My line of reasoning for using this went as follows: When the deputy asked for identification at the stop, I handed over my home-made ID card which was in fact a sworn affidavit with my First and Middle names (Thomas Eliot) on it along with an address and other identifying marks such as sex, weight, height, color of eyes and hair, and a family name in brackets (brackets meaning that anything between the brackets was not to be considered a part of the document) and my signature in First Middle. It also contained a black and white photo. The notary’s jurat and signature was on the back. That is how I identified myself at the stop.

Despite that, the deputy falsified the citation by including a LAST NAME and presuming that I was surety for the legal name estate in his computer records. It was the falsification of the record that the “nul tiel record” plea I used was responding to. In other words, the deputy (having been lied to and indoctrinated by his faulty training) did not truthfully convey the correct information provided by the alleged accused to the citation. He falsified the information found on my written and sworn testimony (ID card). Hence, no such record. This, as it turned out, was only the first of several dishonors that the state plaintiff was allowed to get away with. It was a shocking and eye-opening revelation to me, and one that I eventually furiously sought a remedy to.

For the information of those who have never before been through an arraignment hearing, I purchased a recording of mine, and have made a transcript of the hearing that took place that day for your education. Read it carefully and learn from it. There are some instances where I have added emphasis to important concepts; you should pay special attention to those instances. Later on, I will address my thinking on some of those instances. The only thing I have left out of this transcript is a paragraph where the judge spoke on immigration status, which didn’t apply in my matter. The hearing on this matter took only about eight minutes. As you will later learn, those were eight very crucial minutes within the whole scope of the proceedings.

Dressed in red detention clothing, after calling the NAME and the case number, I was directed to walk in ankle shackles and handcuffs up to the defendant’s table. The shackles had rubbed beginning-to-raw against my bare ankles on the way through the maze of corridors leading to the courtroom from the attached detention center. Yes, this whole physical complex (detention center combined with the courthouse) was set up to expedite what to the county was a revenue gathering activity. In many instances, as regards many, but not all, of the accused victims that were brought forth in this manner, it was an out and out racketeering and extortion scheme being perpetrated by the state on an unwary public.
 
Judge:  Would you state your full name and your address should you be released, sir.

Accused:  I am thomas eliot a man and private person. Here by special appearance to challenge jurisdiction, the plaintiff’s establishment of jurisdiction. I require this matter be held in a court of record. I am merely here to exercise my right of avoidance in a matter that has already been supposedly adjudicated.

Judge:  Alright. Thank you, sir. And um. . .

Accused: Um. . . I wanted to. . . I’ve got just a couple more.

Judge: Okay, go ahead.

Accused:  Ah. . . . [squinting reading from notes:] I have refused for cause timely without dishonor and without recourse to Me the citation that was issued. Everything in my. . . everything that I have to say is in my paperwork. I have nothing more to add other than that. Uhh... I’m sorry but I don’t have my glasses so it’s a little bit hard. I’ve made a few notes to read. The court was... oh that’s right... presented with a notice in 2015 through a letter that I sent to judge Stewart. But apparently the court has chosen to dishonor that notice. [stands silent]  

Judge:  Alright, thank you, sir. Ah, this matter is ah being conducted in a court of record. And what is your address, sir, should you be released? 

Accused:  A court of record? That means it must be a common law court and the magistrate is separate from the tribunal. According to Black’s Law Dictionary. Is that what we’re talking about because that’s what I’m talking about. 

Judge:  [overspeaking the accused] Sir this is a, this is the Justice Court who has jurisdiction over misdemeanor offenses in addition to petty offenses and traffic citations which occur in our jurisdiction which is Yuma County.

Um, let me explain to you what you are here for. Number one, the court has reviewed the release questionnaire in your matter and does find there is probable cause for purposes of your detainment. There was a misdemeanor, failure to appear warrant issued April 3rd, 2013 with respect to an Arizona traffic ticket and complaint issued by the Yuma County Sheriff’s Office.

With respect to this proceeding, sir, you do have the right to remain silent. Anything that you say can be used against you as these proceedings are being recorded by both audio and video. You have the right to counsel. You have the right to be represented by an attorney at your own expense at all stages of your case. If you’re unable to hire an attorney, a procedure is available to have one appointed to represent you at little or no cost. You also have a right to a trial by the court with respect to these allegations. If you’re ordered to return to the court after today the court will set conditions of your release. You’re also before the court today on your arraignment. As to your arraignment advisement, should you choose to enter a no contest or a guilty plea today you would be waiving or giving up certain constitutional rights. Those constitutional rights include your right to plead not guilty. Your right to a trial with the assistance of an attorney at all stages of your case including an appeal if that became necessary, to confront the witnesses against you, to present evidence on your own behalf, to have the state compel the attendance of witnesses of your choosing to appear and testify for you. Your right to remain silent and not be forced to incriminate yourself. Your right to be presumed innocent, to have the state bear the burden of attempting to prove you guilty beyond a resonable doubt and your right to a direct appeal which would be to our Superior Court if you thought this court did something inappropriate.

I’m also required to advise you as to your options here today. You may enter a plea of guilty, not guilty, or no contest. A guilty plea means you’re admitting the allegations in the complaint and giving up your constitutional rights. A plea of no contest is essentially the same as a guilty plea, but you’re not admitting you committed a crime. However, you’re not contesting your case by asking that it proceed to a trial. And the court would be entering a finding of guilt if there’s what’s called a factual basis shown in your matter. A plea of not guilty means you are contesting the allegations in the complaint, we would then discuss your right to counsel and set your case for what’s called a pre-trial conference.

Now with respect to the complaint I referenced earlier, you are before the court today on an alleged violation of ARS 28-3473 (a), Driving with a license that’s cancelled. That is a class one misdemeanor which carries a maximum of up to six months in jail, up to three years of probation, and the maximum fine is 4,723 dollars and 46 cents. A minimum would be a fine of 316 dollars and 65 cents which could be further reduced with proof of the reinstated license. You’re also before the court on three separate civil citations. A civil traffic citation, um, on count one is for not having current registration. Count three is not having mandatory insurance, and count four is displaying plates suspended for mandatory insurance. On all three of these civil traffic offenses you have been found responsible by default. Due to your failure to address these issues. So there’s already been fines and fees imposed as to those three civil traffic offenses. And again that is by default.

With respect to today, that leaves pending the count one driving with a cancelled license. And sir, were you able to hear and understand your constitutional rights?   

Accused:  [One, two, three, four, no response. I wasn’t certain what I could say or not say at that point. I later learned, through a book (You Have The Right To Remain Innocent) written by a criminal defense attorney, that you must explicitly invoke your “constitutional right to remain silent.”]

Judge:  Should you choose to exercise your right to remain silent you do have the right to do so. However, I will ask you do you wish to enter a plea today?

Accused: Nul tiel record.

Judge:  Alright. So the court is going to enter a not guilty plea on your behalf. Your matter is going to be. . . [stops speaking]

Accused:  [overspeaking the judge] I do not give the court . . . I do not give the court power of attorney over me. 

Judge:  I’m not exercising power of attorney, sir. I’m entering a not guilty plea on your behalf. Your case is going to be set for a pre-trial conference on Friday, February 26th, 2018 at 3PM. Counsel will come and discuss your matter fully with you. And a bond will be ordered in our matter in the amount of five hundred dollars. Should you post that bond, you need to be present on Friday February 26th 2018 at three o’clock to address this matter.

As to counsel, the court’s going to make a finding that you do qualify for the assistance of counsel and I’m going to waive those fees at this time. Alright, thank you, sir.  

[End of hearing on the matter.]

In reviewing my performance in the above hearing: I began my statement at the outset in order to establish my status in the matter by mentioning that I was “a man” and “private person” and therefore not re-presenting myself as a surety for a legal fiction, based on information I had researched from the Internet which emphasized the importance of establishing oneself under the status of a private person. It made sense to attempt to take the presumption of my being anything other than that out of the equation, and according to the information I had come across, had been effectively used in some cases in the past. However, I had no idea of its effect in this court. At least, not until the judge decided to ignore it. So, there, you have genuine feedback on that legal theory. Although this is not to say that another court might not have acted differently. What it does tell us is that, in general, when you use unproven legal theories in these courts you are taking chances, the outcome of which is unpredictable. But that’s okay, at least you got it on the record as a challengeable issue.

I then expressed my assertion of being there in order to challenge the jurisdiction of the court. Next I endeavored to establish my preference for a court of record. The judge then tried to obscure that requirement by stating that the matter was “being conducted in a court of record.” So I immediately made a statement defining what I meant by “court of record.” The judge then launched into a distraction tactic which I didn’t have the presence of mind to know how to counter. When she finished, she came to part of the formal arraignment that judges want to get to with all due haste. “I will ask you do you wish to enter a plea today?”

Here, in retrospect, is where I missed an opportunity to extend the matter into another hearing. It didn’t register with me that she was asking a question. I’m not sure I would have known what to do even if it had registered in my awareness as a question. I mistook it for asking for a plea. But if I can remember to do so in the future, here is what I should perhaps have said. “I wish first to confer with counsel before proceeding any further.” And thereby avoid having to enter a plea in that moment. It should be noted at this point that thus far no assistance in the way of legal counsel was ever offered by the court. That offer didn’t come until after the arraignment was sealed. And yet the Supreme Court (in Powell v. Alabama) has ruled that an arraignment is a crucial part of any criminal proceeding, one which deserves a higher than usual discretionary caution on the part of a judge before proceeding. But, of course, that kind of discretionary caution goes flying out the window when an inferior court is acting in a prejudicial manner against a legally ignorant alleged defendant.

(See and research the information in this link for more discussion of the Sixth Amendment right to counsel:  https://sixthamendment.org/the-right-to-counsel/history-of-the-right-to-counsel/defining-when-the-right-to-counsel-must-be-made-available/  )

As it was, I took her question to be asking for a plea. If I didn’t say anything at that point, I knew she was going to enter a plea herself for the defendant. The only thing I knew to say at that moment was “Nul tiel record,” as it conformed with my understanding of the matter of the falsification of the record by the deputy. And as far as I was aware, it was considered to be a valid plea (although not one of the three she was looking for). However, the judge chose to ignore (dishonor) that plea (even though it was now established on the record) and went ahead and entered a not guilty plea for the defendant. I immediately objected to that in the only way that I — in that moment — could remember to do. When she skimmed over that objection, I had no idea what to say to counter her statement. At that point, it seem that the hearing, from my side of the matter, had become a lost cause.

It wasn’t until much later that I came across information from a respectable source (Marc Stevens) saying that judges may only enter a plea on your behalf if you are refusing to plead. I didn’t refuse to enter a plea for the defendant, I entered something different than what was offered. And as far as I was aware, it was a valid plea to enter, which had an historical precedent behind it. I could have also said “innocent” and that would have been just as valid a plea. Yet the plea I made is still on the record of the matter as far as I am concerned, and as such provides a reason for challenge in a higher court.

The fact that the court chose to dishonor it reflects on the demeanor of the court, not me, and the unfairness with which the court treated me. It was a jurisdictional challenge, and it is up to the plaintiff to bring forward evidence of jurisdiction over the opposing party and place in on the record, not the court. Something that the plaintiff state (or its attorneys) never did in all three of the complaints made against THOMAS ELIOT SMITH. And something that the court never admonished plaintiff’s attorney to correct before proceeding.

Another interesting piece of information I came across recently during my research of which needs to be taken notice is the following. There is a U.S. Supreme Court case from the 1930s (as well as subsequent cases following) which point out when the right to counsel (a Sixth Amendment right) must be made available in a criminal case. In Arizona, driving without a license is considered a criminal misdemeanor. The case I’m referring to is a famous case argued and decided in 1932, Powell v. Alabama.

That case involved nine black youths dubbed by the press as the Scottsboro Boys — described as, “young, ignorant, and illiterate” — who were accused of raping two white women. One of the women later recanted her testimony. Alabama officials sprinted through the legal proceedings: a total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but the attorneys did not consult with their clients and had done little more than appear to represent them at the trial.

The Powell case was decided together with Patterson v. Alabama and Weems v. Alabama. Ozie Powell, Haywood Patterson, and Charlie Weems all sued Alabama in federal court to have their cases reviewed by the Supreme Court. The question to be determined was: Did the trials violate the Due Process Clause of the Fourteenth Amendment? In the final determination the Court held that the trials denied due process because the defendants were not given reasonable time and opportunity to secure counsel in their defense.

What caught my eye was a quote from the decision stating that the Scottsboro Boys had been denied their right to a fair day in court, because “during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.” In effect, they were denied effective assistance of counsel which should have been provided them at the very outset of their matters.

On reading this, it occurred to me that the very same thing had happened to me. At a most critical period during the proceedings, the arraignment, I was not afforded opportunity to confer with counsel — not that it would have made much difference, because the three attorneys that were eventually appointed had each already made up their mind that the defendant was guilty, no matter what exculpatory evidence I showed them. Effective counsel should have known, better than I, the correct procedural pathway to get my evidence on the record. But that never had a chance to take place, and I was too ignorant of the rules of procedure to discern how best to proceed.   

[Read the Supreme Court holding on Powell v. Alabama, 287 U.S. 45 here:  https://supreme.justia.com/cases/federal/us/287/45/ ]

Later on in this same holding, at 287 U.S. 69, Justice Sutherland writes that: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

Each of the underscored passages in the quotation just above pertained to my situation. Even though I considered myself as relatively intelligent and educated, it quickly became obvious that I was not skilled “in the science of [their] law.” And that I lacked “both the skill and knowledge adequately to prepare his [my] defense, even though he have a perfect one. . . . because he does not know how to establish his innocence.” As I later reflected on that quotation, it struck me that Judge Sutherland used the phrase “science of law” in his case holding. In that tenor, he seemed to be using the word “science” to mean — as is stated under the sixth definition in Webster’s New World Dictionary, Fourth Edition — “a skill based upon systematized training [as in, the science of cooking].” And anyone who isn't skilled in the “science of law” (that is, private copyrighted law), but who is being forced to participate in a foreign jurisdiction litigation is obviously working at a disadvantage! So, its stands to reason: How could any such circumstance be deemed fair? 

By the time the trial in this first matter took place (a description of which will follow later on in this series), the reader may be able to conclude, as I did, that there was no way that I would have been able to challenge the issues I wanted to challenge because no attorney that I was aware of (appointed or not) would have attempted to defend the matter using the approach of challenging jurisdiction, even though he might very well have known how successfully to do so. Anyone who finds himself in the position I found myself in would have been aware that he was being set up for a loss. My only hope, according to what I was learning, would be to collaterally attack the verdict in a post adjudication hearing in a higher court on the grounds, inter alia (meaning “among other things”), that I had not been afforded “effective assistance of counsel.” Which speaks toward the ultimate unfairness of the proceedings. 

Keep an eye out for the next installment. There is certain to be various interesting points of law for you to take note of interjecting their presence within this series of narratives.

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org 

_________________

The Ordeal: Part Four, Detention Life, Bail, and the Psych Evaluation Order

Date: August 24, 2019

Hello Friends,

After the Friday December 29th, 2017 arraignment hearing, I was returned to the community detention holding cell they use at the initial stage of detention. The cell itself was a large room fitted with about forty or so steel bunkbed structures lined against three walls of the room. People who entered this stage of the detention system were only expected to remain in this initial holding cell for about seven to ten days, depending on whether they bonded out or were assigned to a more permanent community cell block within the main population at the center. At any given time there were anywhere from six to fourteen (or more) inmates being held in the initial holding cell, either waiting for hearings or to be released on bail or waiting to be moved into the general population being housed in a similar community cell.

The concrete room had narrow foot-high rectangular windows high up on one wall which allowed morning sunlight to peak through for a few minutes before the sun rose past the windows, but other than that, one had no contact with the outside world of nature. There was little to no chance of getting any sunlight to allow the body to manufacture vitimin D. Before the detainment, I had taken certain nutritional supplements, some of which could be dispensed with for short periods of time without much harm while others needed to be taken at least weekly (like zinc for the prostate). The atmosphere was air conditioned, which at times bordered on the chilly side, but generally it was comfortable.

Yet worst of all the Sheriff had explicit rules regarding what one could and could not do while in the detention cell. And one of the things that was forbidden was exercising. The reasoning for this, I was told by a guard, was that if a person harmed themselves through exercise, then the County was on the hook to pay for the medical treatment. And so the ban on exercise was a measure imposed to cut down on the County’s liability. Well, if I wasn’t going to be allowed to attend to my own health needs through exercise, I could easily lose my health by way of the Sheriff’s policy of no exercise, and then the County would be on the hook in order to make me whole again, which might be a whole lot more expensive than if it had just allowed me to do what I already knew to do to maintain my own health.

Having reached that stage of life where, if you want to maintain your mobility and general health, you’d better be willing to get in some kind of exercise every day or stand by watching the slow deterioration of your body, I was concerned by the restriction which allowed no exercising in the cell. I was used to being able to run every day and lift weights three times a week in order to keep my body in shape and mobile. Yet, we were not allowed to do even the simplest of calisthenics (pushups, situps, jumping jacks etc.) while in detainment without being sactioned (punished) by any of the guards for disobeying that rule. As for myself, it was mandatory for me to be able to exercise in order to maintain my health. Anything less was a slow sentence of bodily deterioration eventually ending in an inability to maintain a quality of life.

Adding insult to injury, the percentage of nutritious food that was served at meal times was next to nothing. Proper amounts of protein, fresh fruits and vegetables were virtually in abeyance. Vegetables, when there was such, came out of a can, and thus whatever nutrients they contained were cooked out of them. The only fruit we ever received while I was there was an occasional apple at lunch. Lunch, many times, consisted of four pieces of wheat bread, a slab of peanut butter wrapped in saran wrap, a package of chips, and an apple. I threw away the first three and ate only the apple. If they served baloney rather than the peanut butter, which was rare, I would eat (yuck!) the baloney alone along with the apple and toss the rest. At least there was some protein value in the baloney; the peanut butter was of the lowest quality and therefore questionable in value. Hardly any fiber at all in this diet they served, which made bowel movements difficult.

Therefore it is not too difficult to see that there was some incentive for my being able to get out of detention on bail to be able to not only maintain my physical and mental health, but to begin researching remedies for this situation.

In talking with one of the other inmates who had had experience in the past of dealing with the local legal system, he suggested a particular bail bondsman who might be willing to help me. He had dealt with this bondsman before and had good results. By this time it was the weekend, and most of the bail bonds people were not answering their phones. Bail bonds people are a particularly cautious animal within the legal industry (yes, it is an industry, folks, I’m sorry to say). If you can’t convince the bondsman that you are trustworthy and won’t burn them on their fees or the bond, they will let go of you faster than a hot potato. All they need is the slightest suspicion. It doesn’t matter whether it’s true or not, all they need is the suspicion. I had already gone through two or three other bondsmen who weren’t accepting my call for one reason or another. So I figured I had nothing to lose attempting to get hold of the person he suggested. Unfortunately, this person wasn’t answering his phone over the weekend.

At the beginning of the next week I was finally able to make connections with this bondsman. He sounded likeable but cautious. I explained to him my situation, let him know that I had $150 dollars on account at the detention center, the bond was $500 dollars. He asked me if I could reimburse him the bond once he had put it up with the court, and I said, “Of course. I just can’t recall any of my credit card numbers to give you.” I made a deal to pay him $100 dollars of his $150 dollar fee once I was released (yes, he charged me a 30% fee because he didn’t know me well enough to trust me, and was going out of his way to do this as a favor — so much bull$**t). He said, “Okay, I’ll take care of the bond, and have you out in a couple of hours.” That was at 10:00 AM on Tuesday morning. He was laying it on thick, all that he was having to go through to get this done; I wasn’t buying any of it and was just going along with him. But the “two hours” bit was just over the top because the Sheriff had a policy of not releasing anyone until after 4:00 PM.

As it turned out, he made good on his end of the deal, I made good on mine, and everything worked out. Except that now I was 18 miles from my home. They don’t give you your cash back when they release you from detention. They convert it into digital so-called “money” and give you a magnetic debit card that you can play hell trying to get your money off of. The card company has so many fees it can charge if you unintentionally use one of those services, and if you don’t do it correctly, you can end up losing money in fees. It cost me $36 dollars by taxi to get home. Are you beginning to see why I call it a “legal industry?” Bail bondsmen, cabbies, tow companies, and the debit card companies are on the periphery of the industry, skimming off the person being duped. The real money is in the courts themselves. 

If this picture, so far, hasn’t yet gotten you upset and outraged about how corrupt and lawless the legal system is in this country, I don’t know what will! All I can say is, you haven’t heard the half of it yet.

Once released, I was given a copy of an order of the court to contact the Legal Defender’s Office within three days of my release, which I did. The court order waived any legal fees the defendant might be responsible for the assigned attorney; the court was sure to have those fees reimbursed through fines once the defendant was found guilty. Yes, the outcome was presumed ahead of time; so much for impartiality! The week following that week I was greeted with a letter from the Conflict Administration Division of the County. They were sending me notice of the attorney who was assigned to the case as well as the next hearing date. Conflict Administration? I wondered what that meant.

Rather than assign the case to the Public Defender’s Office, the court had assigned it to what was called the Legal Defender’s Office. Try as I might to find out what the difference was between these two offices (because inquiring minds want to know), I was given a basic runaround. Their story was: when the Public Defender’s office is deluged with cases, they assign excess cases to the Legal Defender’s office. Therefore there is basically no difference. The Legal Defender’s office sometimes uses outside contract attorneys to defend clients rather than in-house attorneys who are often times overburdened themselves with cases. The attorney they assigned me was from an outside law firm, what is known in the industry as a “contract attorney,” under contract to the county to provide legal services. The county pays their legal fees to “defend” the person being victimized through extortion. In the end, the county gets reimbursed those fees through the extorted fine that is charged to the convicted defendant.

But because of the unusual circumstances surrounding this matter (it had been “refused for cause, timely,” and a copy of an Affidavit of Administrative Notice that had been recorded at the county and served on both the Arizona Department of Transporation and the County Sheriff in May of 2009) I was wondering whether the Conflict Administration Division and the Legal Defender’s office were part of a mechanism to keep the State’s embarrassment to a minimum being that the plaintiff had already defaulted on its opportunity to rebut the affidavit. Maybe this was a way to keep a tight lid on things so that the masses won’t find out that there’s a remedy going on behind the scenes. Boy, was I ever wrong about that.

Yet, if such was true, it was never admitted to me. Because, in case you haven’t learned about it, law enforcement officers (LEOs), attorneys, court personnel, and yes, even magistrates are encouraged to lie to defendants in order to get them to cough up their consent to the process. Whatever they can do using intimidation and threats they are allowed to do by the legal system. What is worse: it won’t get them in trouble within their system if it’s discovered! (Are you beginning to get steamed yet?)

As I eventually realized, there was nothing to the Conflict Administration moniker being what I imagined it might refer to; it was not a euphemism or disguise used for anyone to save face. It’s just another layer of bureaucracy manned by people trying to justify their miserable paycheck through their involvement in a racketeering influenced corrupt organization calling itself the state “government” and plundering the people using frivolous complaints as an excuse for being able to do so.

Released on bail and free to roam the Internet, I immediately began searching for additional possible methods to obtain remedy that the court might recognize. Although not just any method. It had to look and sound reasonable based on what my previous research had uncovered (in this case, about the realities surrounding the many bankruptcies of the United States government and the manipulation — corruption — of its monetary system). And herein, it seems in retrospect, I was setting myself up for disappointment and failure on a scale much grander than I could have imagined at the time. Hopefully, it will save other readers from going down these same wrong rabbit holes and having to undergo the same disappointment.

In seeking a quick fix to my troubles, I came upon a concept I’d never heard of before. It involved adding a new word to the lexicon of my vocabulary. The word “subrogation.” The word is defined as “the substitution of one thing for another, or of one person into the place of another with respect to right, claims, or securities.” It refers to the process of substituting a third person who has paid a debt in the place of the creditor to whom he has paid the debt. It is used primarily in insurance cases. Rather than go into detail here about an explanation of how this term is used, I will just supply a link to a couple of videos I viewed which led me down this path. The first audio/video contains a more complete version of the definition as it was theoretically to be used. It is well worth your looking at and studying both these audios. The second audio/video was a way to somewhat verify the actual usability of the process in court; the most significant passage is somewhere around the 28 minute mark where there’s a recorded interview with someone calling himself Fischer who supposedly has actually used the process and what to expect. I searched and searched, but could find no other verification on the Internet about this process.

https://www.youtube.com/watch?v=GuTFQr39Gwc
Stop A Court Case With One Question - Right to Subrogation

https://www.youtube.com/watch?v=rke4QqP85XU
D.I.Y. Kangaroo Courts 13 - Subrogation

Now to be fair, I did more research than is present on these videos before I was satisfied about attempting to use this approach. The problem was: there was no way I could verify that this approach had ever been used successfully, try though I might to find such. Therefore, I wasn’t willing to stake much on its outcome. Although I was interested to see how the players (prosecuting attorney in particular) were going to handle it. I sent a letter to the prosecutor asking him to certify my right to subrogation, as was suggested by the information I came across. In the end it turned out, as with so many other methods tested, the letter was just ignored by the prosecutor.

One of the reasons that letter may have been ignored is that once the court has assigned legal counsel to a defendant, the prosecutor can only deal with that legal counsel. In other words, he cannot hear or speak directly with the defendant about anything or consider anything that defendant might offer. Not unless the defendant is officially “representing” himself. Any offers for settlement the defendant makes have to go through his assigned attorney to the prosecutor. I sent the letter the same day I received notice in the mail of the attorney that had been assigned by the Legal Defender’s office. The only way to have the offer recognized would have been to have the defense attorney formally (orally in court or by written motion) withdraw from the case before making the offer. I didn’t find all this out until after the fact. I’m not sure it would have mattered much anyway; they would have found another way to get around it or just continued to ignore it. 

After being notified of the defense attorney that had been assigned, I spent three weeks, before contacting the attorney, researching different avenues of approach to the matter, looking deeper into the subrogation process as well as into other possibilities I was coming across. I began to consider drawing up my own pleadings, using a Supreme Court ruling I came across during my research of Richard Cornforth’s material. I had found a three hour seminar of Richard’s posted on YouTube that was chock full of what seemed to be useful information about challenging jurisdiction. The Supreme Court ruling stated that: “Actual facts, not mere allegation of complaint, are determinative of issue of jurisdiction.”

As far as I was aware at that moment, the only document that could possibly allege jurisdiction of the defendant was the Traffic Ticket and Complaint filed by the Sheriff’s deputy. There was nothing in that document or on the record verifying (through sworn testimony of first hand knowledge) that the plaintiff (deputy representing the State) had obtained personal jurisdiction of the alleged defendant in the matter. Again, “Actual facts, not mere allegation of complaint, are determinative of issue of jurisdiction.” An allegation is not a fact. Facts have to be alleged through sworn testimony. And there was no such animal (affidavit alleging personam jurisdiction) in the court file! Another example of no evidence on the record regarding the “nul tiel record” [no such record] plea mentioned in the previous newsletter.

It turns out, I later learned, that that Traffic Ticket and Complaint document was also what the court was considering to be the charging instrument. This fact will become important later on when I get to the third citation issue wherein I sought to challenge the validity of the charging instrument as alleging anything at all since everything that was written on it was enclosed in boxes and therefore not considered part of the document in any significant manner, according to the “four corners rule” as stated in Black’s Law Dictionary, Ninth Edition, that no contractual meaning can be applied to or derived from any “isolated parts” within a document. In other words, if text is enclosed in a box or by brackets, it is not considered to be part of the substance of the document.   

Before I contacted the attorney by phone, a woman in her early thirties a few years out of law school, I spent several hours working up a questionnaire to ask her so that I could get an idea where she was coming from. She answered my questions in a fairly reasonable manner. We ended up talking for about forty-five minutes at the end of which I set an appointment to meet with her in her office the following day. It was at that meeting that I first learned of the “Order for Rule 11 Evaluation,” the psych evaluation order being motioned by the justice court magistrate. A copy of the court paperwork (filed in the Superior Court on January 9th) for that order had been sent to the attorney, but not to me! A status hearing regarding the order was set for February 14th; it was already January 30th when I was meeting face to face with the attorney. That hit me like a ton of bricks, because from my previous research, that meant that the court might try to muscle it’s way through the proceedings by being able to label me as incompetant so that an attorney could be assigned to ramrod the case through the court without my ability to respond or defend.

At least, that was one scenario I had in mind. I had read accounts of others who were put through this degradation of a process by the legal system in order to break them down psychologically and emotionally so that the court could have its way with them. This was something to be genuinely concerned about if I was going to be forced to undergo such an evaluation. It was nothing to take lightly. 

I spent nearly three hours talking, explaining my personal background and position regarding the matter with the lady attorney, who for the most part just listened and took notes as I talked. She seemed pleasant enough. However, my focus was on eventually getting rid of her (having her withdraw from the case) so that I could handle the matter myself and not be trapped by having an attorney and thereby guaranteeing a losing defense. Fortunately, all that talking did not go to waste. Near the end of that meeting, she turned and said to me: “You know, I don’t think this psych eval is really necessary. I’m going to talk with the prosecutor to get the order withdrawn.” I asked: “You can do that?” And she said, “Yes. I just need to make contact with him and let him know, based on my personal evaluation of you, that it’s not necessary.” Truth be told, that was kind of what I was going for all along, I just wasn’t sure whether she was part of the machine (out to sink another victim) or was willing to listen to reason. Thankfully for me, it was the latter. 
 
There were other reasons that eventually came to the surface which pointed toward my wanting to have her withdraw from the case. After that meeting, she never answered my emails or calls. I was particularly miffed by that. I could see that her attention was being buffeted this way and that by other issues. She had over fifty other cases that she was dealing with for the courts, which is typical for a contract attorney, and it was very difficult to get hold of her in the following days leading up to the status hearing. I was left having to deal with her assistant, a paralegal, who wasn’t very much help at all being that he was limited in what he could say or provide answers the questions I had. I was attempting to learn as much as possible about this mysterious legal system as I could while I was in contact with it, but they talk in a different language from you and I. It is meant to confound and confuse matters, not to clarify, and to maintain the fraud that is going on.

Rather than sit back and let a bunch of incompetents run this matter into the ground, I became proactive and decided to take out an insurance policy in the form of a Notice to the Superior Court judge just in case they were presuming my consent in this farce. The idea was to go on the record and put the judge on notice from the common law venue of the matter. I wrote up a five page Notice of Non-Consent, stating at the outset that “This is a notice of non-consent — to be taken under advisement.” In other words, if your actions do me damage, you’re on notice that I’m coming after you.

What got me riled about this “Order for Rule 11 Evaluation” was the wording of the document filed in court that I finally was able to see thanks to the attorney, a copy of which was never sent to me but of which I obtained from the attorney. The document making a motion to the Superior Court for such an order was never presented to me; which made me wonder, who made such a motion? In order for the Justice Court to have a psych eval done, it has to go through the Superior Court. The Order from the Superior Court started out by saying, “Defendant’s Motion for Rule 11 having been submitted for an examination of defendant to determine...” This order was filed in the Superior Court on January 9, 2018 and signed by the same judge who eventually withdrew it. As far as I knew, the defendant had not made a motion for pre-screening or anything else for that matter. If I let that stand in the record of the matter, I would have been letting the court take actions and make determinations without refuting that any such thing happened! At least, that was my understanding at the time.

In the first paragraph of the Notice of Non-Consent, I laid out the position of who the court was alleging to be the defendant in the matter. I wrote:

“On and for the record, Thomas Eliot, one of the people of Arizona, acting as the authorized agent for the alleged defendant, THOMAS ELIOT SMITH, in the above referenced matter, hereby serves the following NOTICE on this court. (As clarification, the term ‘agent’ here retains its common everyday meaning, namely, ‘an agent is one who acts for another.’)”

An agent is not a principal, but rather one who acts for the principal. According to information I had come across in my research, I was endeavoring to separate the capacity of the two persons mentioned: Thomas Eliot and THOMAS ELIOT SMITH. Two separate and distinct persons in law. My research had uncovered the fact that the all caps name on a birth certificate or a driver license was indeed a separate two-dimentional person from the three-dimensional man who has the same or a similar name. The courts know this but they refuse to recognize it in order to justify their extortion and also because the cat’s already out of the bag. The people are just now learning about this difference, which the courts have not had to address for decades because it’s been kept secret, and now that more and more people are becoming aware, the courts, fearful of their loss of power and prestige in front of the [mostly ignorant] public, are simply coercing the joinder of the two names into one entity, when in fact they are two separate entities in law. Never let it be said that these courts let the facts get in the way of their “legal” processes.

One of the concepts I learned in my research which I used in this Notice to the court came from a man by the name of Karl Lentz. Now, I don’t recommend you look into Karl’s information unless you are ready to spend hour upon hour upon hour upon hour listening to his audios for that one little nugget of information that you know he’s holding onto but very rarely gives up in a straight forward way. Karl knows a lot about law, but he’s not very forthcoming in his explanations and can be exasperating to listen to. But in one of the many of his audio presentations that I listened to and spent hours transcribing, he finally came out and stated something outright that I found fascinating and credible:

“You’re supposed to do everything in writing. You put it on paper. You don’t get into a converstation with these people verbally. You will lose. There is no way in the world you’re going to hold your own in court. You do it all in writing. And you hold them all liable. Because if the judge wants to enter guilty, not guilty, no contest on you ... well you say, ‘May I have leave of court your honor.’ ‘Why?’ ‘I would like to answer the court. You wish to enter a plea on my behalf. Good. May I have a leave of court for a second so I can properly answer the court. Let me write this down real quick.’ And you write, ‘You will bear all liability. Whoever enters a plea on my behalf will bear liability.’ And that’s it. The judge knows what you’re doing by just saying ‘If you enter anything on my behalf, if you order anything on my behalf, you’re going to be liable for that order.’ Because in a civil matter, they can’t compel you to fight. They can’t force you to move forward until you are ready. It’s not civilized.”

And so I used the concept of stating in writing that anyone who wishes to act on behalf of the defendant [ostensibly without his consent] will personally bear all liability for their actions. The way I stated it in the Notice was:

As agent for the alleged defendant, I noticed that the very first sentence in the court’s "Order for Rule 11 Evaluation" plainly makes the assertion that the defendant has made a motion and states that: "Defendant’s Motion for Rule 11 Pre-Screen..." We are unaware of any motion placed before any court by the alleged defendant in this matter, and would question the validity of such assertion. The only possible explanation for this anomaly which comes to mind is that the magistrate in the inferior court is acting administratively as Trustee for a constructive Trust account that is being administered by that court, and that magistrate Pro-Tem Erin R. Farrar, acting in her private capacity as a private corporate administrator for an agency, entered a motion as a fiduciary trustee for the name on the account, viz., THOMAS ELIOT SMITH. As fiduciary trustee for the account, magistrate Farrar represents the account and is personally liable for any motions or orders issued concerning it.

In the next paragraph, I made even more clear that the defendant did not and could not have entered a motion for such an evaluation, while at the same time bringing up doubts as to the mental competency of the magistrate who likely did.

The alleged defendant has never consented to such an evaluation much less entered a motion for one, and through his agent so presently states. Since the alleged defendant is a juristic entity, an artificial person with no corporeal existence, with no one consenting to come forward to act as surety while inquiry into and proof of subject matter jurisdiction have not been satisfied, the motion for the Order seems frivolous on its face as not having been brought to court in good faith. It is uncertain whose mind is to be evaluated, when common sense tells one that an incorporeal entity obviously does not qualify for any such evaluation, which brings into question the mind of the magistrate who submitted the motion in the first place.

By this point in my research, I was beginning to understand something of what other researchers were referring to as a Trust entity (in the form of the all caps name) which is supposedly the real party whose pockets the courts are actually interested to get into. I filed this Notice just two days before the status hearing on the Order for Rule 11 unbeknownst to my attorney, primarily because I didn’t know any better but also because she wasn’t communicating with me about anything at this point. If she was appointed the attorney for the defendant and she considered me to be the defendant [which I denied], how come she wasn’t returning my phone calls or answering my emails! I was as much frustrated with her as I was with the court.

When I arrived at the court for the hearing, the attorney didn’t show up until about four minutes before the court was ready to go into session. I asked her how her talk with the prosecutor went, and she assured me that the prosecutor was going to go along with her motion to withdraw the court Order for a psych evaluation. I casually mentioned to her that I had filed a Notice with the Superior Court, and she said, “Oh, we’ll have to get that withdrawn. You’re not allowed to file anything while I’m your attorney.” At that point, I really didn’t care about their protocol. In my mind, I was making my own record of the matter, and that was my whole point in making the filing from the common law side of the matter. I’m not sure if she ever had that document withdrawn, she was so busy with other clients. It doesn’t really matter, because it’s still part of my record of the events that took place. 

At the status hearing, I tried to make sense of what the judge was saying after the two attorney’s had had their say, but could not, and when he asked if I agreed to whatever mumbo jumbo he’d been saying, I said, “No.” Because I couldn’t understand a word he’d just said. At that he looked at me with surprise and horror, as did my attorney. I bent down and asked the attorney to translate what has just been uttered, and she explained it in layman’s terms, after which I changed my answer to “Yes.” Both the judge and attorney sighed in relief, and the psych eval order was withdrawn. It took all of about five minutes.  

In the end, I was glad to have had the attorney’s assistance on that issue. Otherwise, I wouldn’t have known what to do or how to handle it in their court. The procedures and the language they use in these courts is so mysterious at times that you really do need someone to translate what is happening. In the third case, that is why I kept the assigned attorney almost all the way through the matter until he saw a moment in a status hearing when he could petition the court to withdraw from the matter without my having to ask him. I was attempting to use him as assistance of counsel to help translate what the court was doing, but after a while, he didn’t want any part of that. In essence, he was ineffective, a due process violation I’m looking into being able to use on the back end of these matters to be able to attack the proceedings collaterally.

But I’m getting ahead of myself here. There is plenty more of interest leading up to that moment when the attorney withdrew that I have yet to cover.

At this point, I would like to caution any readers who might be just blithely reading this series of newsletters for entertainment value without clicking on the links to read what is being referred to or who are really not delving into the subject matter and thinking deeply about what is being disclosed, that they are likely wasting their time in terms of what can be learned from this feedback. If you don’t have the time to really read and think about what is being imparted here right now, then save these newsletters to re-read for another time when you can devote a closer reading and critical thought to them. You will find that you value them more once you have a greater understanding of the nuances of law that are being discussed. 

Stay tuned for the next installment. There is certain to be interesting points of law that you may not be familiar with of which you will want to take note. 

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org  


_________________

The Ordeal: Part Five, The Status Hearing That Got Me Arrested, Again -  Part A

Date: September 30, 2019

Hello Friends,

In the days leading up to and after the status hearing for the psych evaluation order, which was withdrawn, I had begun to work on a document titled “Declaration, Claim, and Prayer for Relief.” Shortly after the status hearing on the psych eval order concluded, I instructed the assigned attorney to withdraw from the case, which she did, which in turn freed me up to be able to submit my own paperwork and to continue to create the record from my standpoint. The information that I was relying upon for doing this came as a result of Internet research of people who were proposing that staying on the common law side of the matter and not venturing over to recognize the statutory side was a correct way to proceed. An admittedly difficult way to proceed, yet nevertheless it was, as far as I understood, not incorrect for someone wishing to bring forward and establish a common law claim in a matter where there was no such sworn claim from an actual injured party attached to a complaint.

In other words, who here has a claim against this man? And if the complaint asserts to be a criminal rather than a civil complaint, because if criminal it would need to allege an injured party “corpus delecti” into the mix, which is an element of a crime that they do not have, because the state, which is a fiction, by law, cannot be harmed by a victimless event (which event could be rolling a stop sign, speeding or even driving with a suspended or cancelled license). Therefore, if asked whether the action is civil or criminal, the magistrate may say the complaint is civil, when in actuality it is commercial via Admiralty law, which the administrative court will decline to explain in greater detail. The law of the sea (both Admiralty and Maritime law) acts in commerce. If no one (i.e., the state, whose agent issued the complaint) comes forward with a claim from an injured or damaged party, then my claim stands as the only verified (sworn) claim on the table. This fact is a universally recognized concept in law which administrative courts prefer to ignore with impunity (i.e., impunity means “free from punishment”).

My understanding from the information I was reading at the time was that a claim, at law (meaning at the common law), is not the same as a complaint put forward without the addendum of an actual claim of injury or damage. A claim (of injury or damage to a party) at law carries more weight than a mere complaint which does not state a claim for injury or damage. Penal codes which impose penalties for violations or infractions of the code are not the same as injuries and/or damage to a harmed party. From my understanding, they arise only from contract violations, and not from anything substantive. And when the court, when asked, declines to perform its duty to explain the actual nature and cause of an action, it places an unfair constraint upon the accused party (in addition to being a dishonor of the accused) because that party has no meaningful idea how to defend against the complaint!

The way the legal term “complaint” is used in today’s courts is defined as follows from Black’s Law Dictionary, Fourth Edition, which edition contains a fuller treatment of the definition than in successive editions. It should be noted that this defintion is a general definition for the word, and that different states may use slight variations in deference to their particular rules of civil or criminal procedures.

COMPLAINT. In civil practice. In those states having a Code of Civil Procedure, the complaint is the first or initiatory pleading on the part of the plaintiff in a civil action. It corresponds to the declaration in the common-law practice.  

The complaint shall contain : (1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plaintiff and defendant. (2) A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation shall be distinctly numbered. (3) A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof must be stated.

In criminal law. A charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted. It is a technical term, descriptive of proceedings before a magistrate.

So you can see that a complaint in statutory legal land does contain something similar to a claim in its third element (i.e., a demand of relief to which the plaintiff supposes himself entitled), but similar does not mean the same in law. A demand for relief is not the same as stating a claim! In Law the term relief means “the assistance or redress sought by a complainant in a court, esp. a court of equity.” One clue to what this means is: courts of equity typically deal in contract law. So the implication is that the relief sought by a traffic complaint has its roots in a violation of contract law. If that is so, then the state needs to bring forward the contract that it is implying was violated. This would then define the “nature and cause” of the action, which I asked for but which was never brought forward.

On the other hand, a claim (Black’s 9th Ed.) means: “To demand as one’s own or as one’s right; to assert; to urge; to insist.” According to Black’s 4th Edition, a claim “may embrace or apply to a call, a demand, a pretense, a right or title; an account, an action on account, an assertion, both the principal amount and interest thereon; cause of suit or cause of action, challenge of property or ownership of a thing which is wrongfully withheld, challenge of something as right; claims ex delicto [i.e., from a wrong] as well as ex contractu [i.e., from a contract], legal claim, right, means by or through which claimant obtains possession or enjoyment of privilege or thing, valid claim.”

As far as I was aware, there was no wrong done to anyone and no contract in play that was being alleged or brought forward to examine. The driver license, I had learned through research, is not considered, in itself, a valid contract. And I had returned that document back to its issuer five years prior to the citation that was issued once I had determined that it was unnecessary to have for those not operating in commerce. So, as far as I knew, there was no injured party and there was no contract or agreement in place to violate!

Therefore writing out a declaration, claim, and prayer for relief on the common law side of the matter not only made sense, but seemed reasonable, at least as far as I was aware at the time. Readers must understand that I had no one with any legal experience with whom to consult before attempting this approach. And there were questions that I had, which went unanswered and unclarified, about some of the nuances that I was considering. My understanding of attorneys at the time was that they were all compromised by their status as “officers of the court,” and therefore incapable (or unwilling) of being able to assist me in any meaningful way. That conflict of interest is where the public perception of most attorneys got them labeled with the moniker of “lie-yars” instead of “lawyers.”

This impression was also born out by my previous experience with the court system. Every attorney that I had ever been in contact with in the past had taken advantage of my ignorance of the legal system and used it to the advantage of my adversary. This is an impossible situation in which to find oneself and still expect to be able to contribute to a meaningful defense. If no one will share with you how their system works and how to beat them at their own game, then you are pretty much screwed. At least until you can gain that knowledge and go back and correct the situation.

Besides Bill Thornton’s instruction on common law procedure, whose videos and website information I had copied onto my computer in order to study offline, the only other person who I was able to find who seemed to have had any experience using this approach with any success in court was a man by the name of Karl Lentz. Karl had spent the better part of twelve years fighting with courts in Alabama in order to have his Down’s syndrome child returned to his care from the state’s Child Protective Services, and was eventually successful in that endeavor. He had also successfully helped other people with various other causes before the courts, so he wasn’t just speaking through his hat. He had some experience and knowledge of how to use the common law in these courts. He had read and studied several older books on law, and I was able to pick up on many clues about law from him.

The only problem with Karl was that, unlike Bill Thornton, he was not a very good teacher of the procedures he was using. At the time I was viewing and studying his material, the best I could do from his videos was get clues as to what needed to be done, but very little in specific about how to do it. In one video he talked about the necessity of having an actual “claim” before the court which would outrank the complaint that the plaintiff was bringing to the matter. As the only party with a valid (sworn) claim before a court, this is the only thing that should matter to the court. But Karl was short on the details about how to go about doing this in these contemporary courts. Do I have to file this claim in another court, or can I file it in the same court? I was woefully ignorant about the rules and procedures for dealing with such legal matters and was having to learn on the fly. Let me tell you right now, this is not the way you want to go about pursuing remedy in a legal matter. But, at this point, I had little choice in the matter and no one with whom to confer or brainstorm.  

At the same time, I was curious about all these processes for remedy I had read about in my Internet research, which ones were valid in order to address the matter at hand and which ones were not. The only way to find these things out firsthand is to be in a position to be able to assert them in court and see how things go. By this time, I was aware that I was likely to make many mistakes (like abandoning a position I had taken), but I also wanted to take advantage (for the sake of my readers) of the opportunity to test as many of  these theories out in order to report back about them. I also knew that even though I was likely to make many mistakes, that I would be able to learn from those mistakes, and perhaps save others from making the same mistakes. That was the motivating factor in my willingness to sacrifice myself for the sake of gaining knowledge and perhaps finding a successful way to handle these matters.

At about this same time I happened upon a video posted by a man in California (Corey Eib) titled “Appear without entering a plea on a citation.” As he stated in the blurb to the video, the video discussed how he tested his theory of appearing before the court without entering a plea, effectively preventing the court from entering a plea on behalf of the defendant and putting the case itself into limbo. Failure to appear (FTA), he knew, would result in a mandatory warrant. But when there is no failure to appear, no warrant could (or should) issue. I was interested in the line of reasoning he used to carry out his plan, which appeared to be mildly successful. Those interested in the details of this approach can check out the video at the link below. 

https://www.youtube.com/watch?v=nMLyE6CWN8k
Appear without entering a plea on a citation
134,942 views  Time:  14:36
coreyeib

Now, I don’t recommend that anyone try this. The courts have had plenty of time to figure out a work-around to this approach, even if that work-around involves merely threats, duress and coercion. What interested me was whether or not the court would recognize the two dimensional appearance of the defendant on the paperwork, since the court can only deal with fictions in law and those agreeing to re-present those fictions. Also I wondered what, if anything, the court could do about it (that is, the two-dimensional appearance having been made). Once the appearance was made through the paperwork, theoretically, a court cannot issue an FTA warrant because the promise to appear had been fulfilled. FTA violations are a procedural crime, as far as I understand. The arrest would (or should) have to be for some other valid reason!

As Corey stated in the paperwork of his approach: “The defendant, Corey Brendan Eib, appearing specially and without prejudice while reserving all rights and waiving no rights in the above titled action enters the following plea:” And then underneath that sentence, he writes:  “Defendant does not plead.” He then dated the document, September 8, 2011 at 8:30 AM, the date and time of the hearing. It’s very important to state the date and time of the appearance. (Based upon my subsequent research, it might wiser to write, “Defendant does not wish to plead at this time until he has opportunity to consult with counsel.” This shows that you’re not refusing to enter a plea, since a refusal to do so would then enable the magistrate to enter a plea of “not guilty” for the defendant.)

Therefore, according to Corey, the defendant, a corporation by the title of Corey Brendan Eib, appears on the promised date in the only way he could appear since corporations do not exist in nature: on paper or by representation. In retrospect, based upon my recent experience, it is reasonable to suspect that the court nowadays might go ahead and enter a plea for the defendant. But how it would get around not having asked the defendant in person (i.e., on the record) to enter a plea before it did so remains a mystery to me. It may be that the court could do so anyway and expect to get away with it.

If you have watched Corey’s video linked to above, you will realize that the court did indeed recognize the appearance of the defendant on paper at the said date and time of the promise to appear notice. This is an important point of which to take notice. Why? Because it is the fulfillment of the promise to appear, and therefore, according to Corey’s untested theory at that point, a bench warrant cannot (or should not) issue. Failure to appear is a process crime in the statutory jurisdiction. Remember that! Indeed, no bench warrant ever did issue in his case. The case itself languished in limbo at the court! Sweet! Did I think that I could pull off the same or similar thing? I didn’t know for sure, but I was willing to give it a go. Because it made reasonable sense. Keep this in mind as you read the rest of this part of the story.

Something Corey said in the video which didn’t register with me when I first heard it, but which a few months later did begin to register was that: “The person on a birth certificate is just another type of corporation. It’s an individual type of corporation. So my identification that I use is to show that I’m not a corporation. The birth certificate is government property. I am not government property. Nor will I ever voluntarily identify myself as government property. I’ll identify myself as the person who’s authorized to transact business on behalf of government property, just like you do when you write a check.” There is information I came across in my subsequent research regarding what is called a “certificate of assumed name” that supposedly can be used to separate the man from the corporate legal fiction NAME. The explanation behind this concept will be explained in greater detail when I get to that part of the story. For now, just make a mental note of its mention.
 
In my Declaration, Claim, and Prayer for Relief, I used the same approach as Corey to see if I could trap the court into a mistake, or at least to see if the court was bound to recognize a bona fide appearance on paper. Read these four paragraphs very carefully in order to catch all the legal objections they bring up. The opening paragraphs of the document, showing my line of reasoning, began: 

COMES NOW, Thomas Eliot Smith, one of the people of Arizona, the aggrieved party, hereinafter “alleged Defendant,” before this court of record by special appearance on this day, March 16, 2018 at 3:00 p.m., in the Yuma Justice Court, without prejudice while reserving all rights and waiving no rights, remedies, or defenses at law, statutory or procedural regarding the above titled action and accepting the presiding magistrate’s oath of office to support the U.S. Constitution in this cause.

Alleged Defendant, without entering a plea and continuing to assert his administrative remedies, presents himself before this court and enters the following declaration and claim from the unauthorized plea entered on his person’s behalf by magistrate Pro-Tem R. Erin Farrar without the consent of the alleged Defendant and without full disclosure of authority to do so. Plaintiff’s complaint was insufficient in its form and frivolous on its face. It did not deserve a response for lack of proof of a cause of action. It was therefore refused for cause without dishonor and without recourse.

This court is put on Notice that whosoever enters any plea or response on behalf of the alleged Defendant without his consent will bear all responsibility and liability for that order. It is a well settled maxim of law that: Actus me invitio factus, non est meus actus. (Bract. 101.) — An act done without my consent is not my act.

On December 28, 2017, the day before his attendance in an inferior court, the alleged Defendant’s agent was kidnapped and forcedly detained in the county detention center, and not allowed access to documentation prior to a hearing which might provide exculpatory evidence in the matter alleged before the court. On December 29, 2017, at the hearing, the alleged Defendant clearly stated that he was appearing specially to challenge plaintiff’s establishment of jurisdiction on the record in the matter before the court. If not acknowledged then by the court, then so now. Subject matter jurisdiction can be challenged at any time; it is never waived.

You will notice that the defendant did indeed make an appearance in the court on March 16th, 2018. And how I know that that is the case, is proven by the fact that the court exonerated the $500 bond of the defendant on that very day. I have proof from the court docket of the matter. Will a court ever exonerate an appearance bond when the defendant does not appear? Not on your life! The bond is automatically forfeited. That’s your proof right there that the defendant did indeed make an appearance! At the very least, a reversible error in the court’s adjudication.

Later on in the Declaration document, I cited what at the time I considered to be the applicable state Uniform Commercial Code citations which justified my actions. The basic Background Facts were expressed as follows. Pay particular attention to the emphasized (bold) passages.

Arizona traffic ticket and complaint number #158249 was issued to the alleged Defendant by Sheriff deputy George Pesce, on January 7, 2013. The citation was autographed under constraint (with threat of incarceration) with a reservation of rights (“without prejudice”) and returned to its issuer on January 8, 2013 “Refused for cause, timely, without dishonor and without recourse to Me.” Non-assumpsit. (See Exhibit “A,” attached photocopy of citation and original certificate of mailing.) Instruments / citations signed conditionally are not “assignable” or “negotiable” under the Uniform Commercial Code. Accordingly, A.R.S. §§ 47-1308, 47-1103, and 47-3104 state the following remedy without recourse:

§47-1308. Performance or acceptance under reservation of rights
A. A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not prejudice the rights reserved. Such words as “without prejudice”, "under protest” or the like are sufficient.

§47-1103. Construction to promote purposes and policies; applicability of supplemental principles of law

A. This title must be liberally construed and applied to promote its underlying purposes and policies, which are: . . .

B. Unless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy and other validating or invalidating cause supplement its provisions.

An alternative reading of this same section in the Code states: “The Code is complimentary to the Common Law, which remains in force, except where displaced by the code. A statute should be construed in harmony with the Common Law, unless there is a clear legislative intent to abrogate the Common Law.” (UCC 1-103.6)  Anderson’s Uniform Commercial Code, Third Edition

§47-3104. Negotiable instrument.
A. Except as provided in subsections C and D, “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: . . .
D. A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this chapter.

The alleged Defendant’s understanding of a reservation of rights on the offered presentment autographed, under constraint, regarding any statute or code contrary to the due process clause in the U.S. Constitution or the Arizona Constitution is that it does not sustain a promise or afford an appearance in a legal matter, and that no person is bound to obey an unconstitutional law. Furthermore, such a document cannot be used as evidence against a person, in court or otherwise, without that person’s consent, and no consent has been given in the above captioned matter.

 A little further on in the document, I clarified the defendant’s understanding of the applicable law in the matter. As you will see, I alleged a due process violation, an allegation that was never properly addressed by the complainant. That being the case, it brought into question the issue of fair play! Or lack thereof by the court and prosecutor.

It is further the alleged Defendant’s understanding that under the common law it is the duty of the issuing officer or agency of government, once it is presented with a lawful rebuttal of its presumption and the complainant refuses to amend the presentment to comport with lawful due process, that such officer or agency is obligated to either withdraw, intercept, or otherwise to notify the court of the faulty presentment before or after it is entered on the court docket. The fact that this was not done in the above matter is evidence of a violation of due process as well as a failure of public duty and a dishonor of the alleged Defendant to which he takes exception.

What I had in mind was to bring up all the adjoining side issues in the matter which pointed to the defendant’s innocence to see how the court was going to handle them. Many hours of research and thought were spent during the composition of this document. Special care was taken to go back over every event or fact that I was aware of which might present exculpatory evidence, even to the extent of citing Supreme Court case law.

The fact of the matter is: the presentment had been “refused for cause, timely, without dishonor and without recourse to” the alleged Defendant from the beginning for insufficient due process and returned to its presenter in a timely fashion....

If Plaintiff is relying on a presumption of contract or agreement as proof of personam jurisdiction, counsel for the Plaintiff has not placed such evidence on the record. The alleged Defendant is not in receipt of any document stating the Arizona Revised Statutes authorized the Arizona Department of Transportation (hereinafter ADOT) to waive fees and other statutory requirements associated with acquiring or reinstating a license which previously had been cancelled, and for which said agency has never received an application for reinstatement....

The alleged Defendant is not in receipt of any information from any agency of state government which categorically authorizes it to ignore constitutionally protected and recognized rights with the ability to license such right (such as the right to travel, outside of a commercial intent, using the public roadways) retained by the people of the state.

“The acceptance of a license, in whatever form, will not impose upon the licensee an obligation to respect or to comply with any provision of the statute or with the regulations prescribed . . . [by the state Railroad and Warehouse Commission] that are repugnant to the Constitution of the United States.” W. W. Cargill Co. v. State of Minnesota, 180 U.S. 452

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

As explained earlier in this series, mention was also made of the fact that the state issued Certificate of Title to the property had been cancelled and returned to the Department of Transportion. (See quotation below.) 

Furthermore, alleged Defendant has cancelled the Certificate of Title (CoT) on the conveyance in which he was cited while travelling (a 1987 Nissan Sentra, VIN JN1PB34Y5HU001396) effective on November 30, 2008, and sent Notice of this act, along with returning the cancelled original title, to ADOT on December 27, 2012 (see Exhibit “C”, cover letter titled “Return of Certificate of Title State Document to update records” dated December 27, 2012 with photocopies of cancelled CoT and a certificate of mailing). 

If the state were relying on that title to be evidence of an agreement or contract in place, cancellation of said title should have put an end to that claim. The evidence that I was relying upon to make this presumption lay in the fact that three days after my property had been impounded by the deputy sheriff, that same deputy showed up at my home (on January 11, 2013) to tell me that I could reclaim my property, sans impound fees, at their impound yard. Now something had to be the cause of that action. The sheriff doesn’t just release one’s impounded property out of the blue for nothing! My logical assumption was that cancellation of the prima facie evidence of contract (the Certificate of Title) provided that there was no agreement in place authorizing regulation of my property, and therefore it must be returned or the sheriff could be charged with theft.

So I had documented evidence of every fact that I asserted pertaining to the issue. It seemed to me that the state was going to have one heck of a time getting around all the obstacles I was putting up to show that it didn’t have a case. Little did I know in those moments that was I in for a lesson of a lifetime, which I am recounting here for your edification and consideration!

Properly setting up the stage for this Part Five of The Ordeal has taken longer than I initially anticipated, and therefore I have had to split this Part Five into two separate installments labeled as Part A and Part B of The Ordeal, Part Five. I have yet to get to the hearing itself, which deserves equal time with what has already been presented.

Rather than spend time manually sending out a separate newsletter of Part B, I have provided a link to the website Newsletter Archive page on which that part may be read so that readers may read it within the context of having read Part A. Part B contains some especially juicy information that, if not read, will be regretted. Part A is the third newsletter archived on that page and Part B is the fourth newsletter entry. I’m sure those of my readers who appreciate the amount of detail involved in retelling this tale justified the splitting of it into two parts. You will find Part B as the last newsletter entry on the following Newsletter Archive page:

http://beattraffictickets.org/newsletters-5.html

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org 

_________________

The Ordeal: Part Five, The Status Hearing That Got Me Arrested, Again -  Part B

Date: September 30, 2019

Hello Friends,

Before proceeding onto the hearing itself — part of which was recorded and for which I paid for the recording so that I could make an accurate transcript; however the most crucial part of the hearing went unrecorded and therefore was left off the recording I paid for — I want briefly to finish up the description of the claim part of my “Declaration, Claim, and Prayer for Relief” document on which the alleged defendant that day made an appearance.

The claim section in the document was titled: “Claim Of Trespass And Trespass On The Case.” It laid out the facts of the matter from my side of the story, and, in basically four paragraphs, described the issues at hand.

As a result of the negligence of duty of the plaintiff [sheriff deputy], the court never received notice of the non-response return of the presentment back to its presenter. Without such knowledge, a fraud upon the court had been committed, and the court proceeded as though the alleged Defendant was in dishonor in the matter, held a trial, convicted the alleged Defendant without obtaining subject matter jurisdiction (i.e.,  sworn evidence of a crime in testimony from an injured party — the STATE is a fiction and cannot be a party or have parity with a man), and issued an unlawful warrant for the alleged Defendant’s wrongful arrest.

All the foregoing actions constitute a trespass and trespass on the case of the unalienable rights of the alleged Defendant (aggrieved party) when, on December 28, 2017, the alleged Defendant’s agent was wrongfully arrested, detained, and not reasonably given opportunity to provide exculpatory evidence at a most critical stage of the proceedings, the arraignment, which took place before a finding of the nature and cause of the action could be verified by the alleged Defendant. As a result, the alleged Defendant was not provided opportunity, prior to an arraignment, to raise a meaningful defense against the elements of personal jurisdiction and venue which first need to be properly alleged by Plaintiff on the record before a matter should proceed to a formal arraignment. To all these actions, the aggrieved party (alleged Defendant) takes exception as a violation of due process as guaranteed by the U.S. and Arizona Constitutions.

The alleged Defendant is not in receipt of and has never been serve with any process (declaration or sworn affidavit) by the complainant alleging a crime. Unsworn statements unsupported by evidence of obligation by the alleged Defendant to traffic code violations do not amount to a crime. It is the alleged Defendant’s understanding that all criminal complaints must be accompanied by a declaration under penalty of perjury or a sworn affidavit by an injured or damaged person with first hand knowledge so the person making the complaint can be held to account for a false complaint.

In the common law, trespass means (according to Black’s Law Dictionary, 4th edition): “doing of unlawful act or of lawful act in unlawful manner to injury of another’s person or property. An unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another; an injury of misfeasance to the person, property, or rights of another. . . It comprehends not only forcible wrongs, but also the consequences of which make them tortious. Trespass, in its most comprehensive sense, signifies any transgression or offense against the law of nature, of society, or of the country in which we live. . .”

The term “trespass on the case” encompasses the following definition (according to Black’s Law Dictionary, 9th edition): “At common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence. This action was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business tort. Also termed action on the case. . . . This writ gave a form of action in which the court was enabled to render judgment of damages in cases of fraud, deceit, negligence, want of skill, defamation oral or written, and all other injurious acts or omissions resulting in harm to person or property, but wanting the vi et armis, the element of direct force and violence, to constitute trespass.”

One of the foremost encyclopedias of law, American Jurisprudence 2d, on the term Actions has this to say regarding the difference between the two terms trespass and trespass on the case: “Common law recognizes a distinction between the actions of trespass vi et armis (or simply trespass) and trespass on the case. This distinction has been expressed by stating that a tort committed by the direct application of force is remediable by an action for trespass, while a tort accomplished indirectly is a matter for trespass on the case. Other authority makes the distinction on the basis of the defendant’s intent, stating that trespass involves a willful and deliberate act while trespass on the case contemplates an act or omission resulting from negligence.”

The fact of the matter was that the sheriff deputy’s citation of complaint had been returned to him “refused for cause, timely” (R4C). And I had proof of that on the record. From that point on, unless the deputy was able to amend the complaint and properly serve the amended complaint on the accused, he had a duty to notify the court that the original complaint had been returned to him “refused for cause, timely.” When he did not do that, no matter what his excuse, it placed him in an immediate position of dereliction of duty to the court and in a position of dishonor toward the accused! Therefore, in addition, it was a fraud upon the court when he chose (or was directed) not to notify the court of the R4C.

All of this has applicablity in a court of law (i.e., a court of record under the common law applicable to people). However, I was not in a court of law, but rather a court of Administrative Law county justice court, administering rules created by an agency of government in which the parties involved were presumed to be in contract (or agreement) with one another. Yet, the R4C was in itself a challenge to the choice of law that was being asserted by the plaintiff, without admittingpersonam jurisdiction. 

The Claim of Trespass section finished up with a quotation from Black’s Law Dictionary, 4th edition, outlining the applicable principles of law in the matter as it related to the actions taken (or not taken) by the original complainant.

“In the progress of judicial contestation it was discovered that there was a mass of tortious wrongs unattended by direct and immediate force, or where the force, though direct, was not expended on an existing right of present enjoyment, for which the then known forms of action furnished no redress. The action on the case [otherwise called ‘trespass on the case’] was instituted to meet this want. And wrongs which will maintain an action on the case are frequently committed in the nonobservance of duties, which are but the implication of contract obligation, duties of requisite skill, fidelity, diligence, and a proper regard for the rights of others, implied in every obligation to serve another. If the cause of action arises from a breach of promise, the action is ‘ex contractu’; but if the cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto and case. When there is a contract, either express or implied, from which a common-law duty results, an action on the case lies for the breach of that duty.” Bently-Beale, Inc. v. Wesson Oil & Snowdrift Sales Co., 231 Ala. 562, 165 So. 830, 832. [Emphasis added.]

I wasn’t sure if this was the correct form in which a claim needed to be laid out, but time was of the essence, and it was better than nothing. Additionally it served to document the process and reasoning used in my side of the matter. And that, above everything else, is what I was relying upon in order to challenge an adverse opinion in the matter. There is a principle in law that if one is not an attorney, one cannot be held to the same standards as attorneys are held in the composition of their pleadings. (“Pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers.” Evans v. City of Atlanta, 189 Ga. App. 566, 567, 377 S.E.2d 31, 1988) This Declaration and Claim document was verified (sworn to) and notarized.

The Declaration and Claim was entered into the matter on March 14th, 2018, just two days before the scheduled status hearing on the sixteenth. My thinking at the time was to have the alleged (two dimensional) defendant fulfill the promise to appear in the matter while entering what might in the past have been considered a counter-claim against the plaintiff. The problem with what I did was I had no one competent advising me about the correct procedure for doing this. There was some confusion in my mind, with respect to everything I was reading at the time, regarding how a claim (or counterclaim) should be entered into the matter in order to overcome the initial complaint with a verified claim of injury or damage.

I had been reading some information regarding how these matters were supposedly matters involving a constructive trust fabricated around the NAME, and that if one remained on the side of or in the capacity of the beneficiary or the administrator of the trust, that one could appoint the magistrate or prosecutor to act as the trustee to settle the account through offsetting and balancing the account. There’s quite a bit more to this approach than what I’ve briefly outlined here, but if anyone is interested in following this rabbit down its hole, they can search on the phrase “creditors and their bonds” and likely find a fuller explanation. It is similar to and has its conceptual basis in the subrogation approach mentioned in an earlier newsletter. 

Anyway, I was having a problem trying to decide the correct title to assume when signing the Declaration and Claim document. Information I was coming across about this was either conflicting or at best ambiguous. Some were saying that if you signed as the “agent,” you could be held liable for a debt, but that signing as the “administrator” you could not. And the term “authorized representative” seemed to be too close to what courts want people to admit to when they ask the question, “Are you representing yourself?” What I was endeavoring to make a determination about was which argument made more sense in its assertion. To this day I’m not sure if there is a difference between those two terms since they both seem to indicate a person signing on behalf of a principal. That is, a person empowered to act for another, but not acting as that other. I would later learn that the court was not about to recognizing that nuanced difference of law, if only to maintain its control of the situation, and its coerced pressure upon the victim.

I was interested to see if the information I was coming across alleging that the issue at hand was in actuality a matter concerning a constructive Trust, in which case the use of the term “administrator” would have been appropriate. I wanted to test the validity of the constructive Trust theory and that innovative concept of subrogation. So when push came to shove, I landed on the side of the title “administrator” in order to differentiate the capacity of my actions in the matter. Although I still wasn’t clear about how this trust situation worked in terms of its association with the original long form birth certificate being the bond instrument on which an account in the ALL CAPS NAME was created. As long as I wasn’t viewed to be acting in the capacity of a trustee, I should be able to escape liability for the account and have whomever I assigned as the trustee take care of it.

However, from the state’s point of view (with which the court was inclined to prejudicially agree), the man Thomas Eliot was the trustee (representing the corporate legal fiction) in the matter and therefore was responsible for any debts (penalties or fines) incurred. It was soon painfully obvious that the court was forcing this interpretation (that I was stepping forward to represent the NAME on their paperwork) upon me, the man, and that things would henceforth move forward. It would seem that this theory of there being a constructive trust at the center of the matter is nothing more than a red herring put out on the Internet, meant to confound and confuse people attempting to use it in court from addressing any real issues which may provide a remedy.

The status hearing was scheduled for three o’clock in the afternoon on the sixteenth along with hearings for several other cases. Typically, defendants wait in a hallway just outside the locked courtroom, waiting for a court official (a clerk or bailiff) to come out to identify that each defendant on the docket that day has shown up. The court official calls out the NAME, waiting for the unsuspecting victim to self-incriminate themselves by agreeing to be identified by that NAME, answering “here.” I generally tried to deflect that subterfuge by stating only the First Middle (or given) names. The court official usually wouldn’t argue with that deflection, figuring that the magistrate would take care of it once the hearing began.

Once inside the courtroom and before the magistrate made an entrance, the lady bailiff once again called out each NAME in order to verify the presence of that defendant, and to let some of the defendants know about the disposition of their appointed attorney. The courts are so full at times that the Public Defenders and contract attorneys often cover for one another when the one appointed to a specific defendant cannot be at a particular hearing for one reason or another.

The Public Defenders are not there to defend their client against the charges, but rather to make sure that the public (the body politic) is not harmed by the actions of the defendant. Read that sentence again if you didn’t get the gist of its meaning. In other words, Public Defenders are there to defend the public against the defendant’s alleged actions. My impression of this circus is: If you’ve violated a traffic code, you are basically presumed defacto guilty, and the Public Defender is there to defend the Public against your actions. He basically becomes a secondary prosecutor, on the side of the prosecution. Any semblance of a defense that such Legal or Public Defender might put up is only for show and meant to relieve the victim defendant of any concern that the Legal Defender isn’t actually working in his best interest. I can tell you from experience he is, most emphatically, not acting in your best interest!

There were eight NAMES called out before the bailiff got to one similar to mine. Going in, I knew that they needed you to agree verbally to be “representing” the NAME on their documentation. That’s the whole reason for their calling out the NAME and getting you, on the record, to identify yourself with that NAME. As soon as you do, the court gains personam jurisdiction (through your verbal agreement to be one of the parties), and the game is on!

What follows is a word-for-word transcript of what occurred when the bailiff attempted to get me to commit joinder with the NAME. Now you have to remember that there was a document entered on behalf of the alleged defendant on that day stating that the defendant was making an appearance in the matter on that day and at that hour (3:00 PM). So technically and in fact, the appearance was made by the defendant. The defendant did not fail to appear! This is an important point, the significance of which you will shortly understand why. Because it demonstrates the underhanded corruption that these courts will undertake in order to coerce performance out of their intended victim.

Also, watch very carefully the number of times the bailiff refers to me as “you,” and what I did to deflect that assumption. This is another of their tricks. You have to ask yourself, who are they referring to as “you?” Obviously, that reference is meant to be to the defendant. They try to get you to unconsciously identify with the NAME on their documentation in any way that they can. You must remember that this whole interrogation is being recorded by the court’s audio video system. So they can always point back to it as evidence to verify when you slipped up and identified yourself with the defendant. Interestingly, this preliminary exchange between myself and a court officer is the only section of the 47 minute video of that status hearing that was recorded where I speak. I’ll describe what happened after the end of the transcript, and the part of the hearing that, for some untoward reason, wasn’t recorded where there should have been an exchange between myself, the prosecutor, and magistrate.

Bailiff  (Helen Orman):   And last one, is there a Thomas Eliot Smith? [no immediate response] Is there a Mr. Smith? [again, silence]

Agent:  Ma’am.

Bailiff:  Yes, sir.

Agent: There is a thomas eliot, but not a thomas eliot smith.

Bailiff:  Okay. Uh. Well, I did call Thomas Eliot Smith and I have Smith listed on the citation, but I will go ahead and check you off, sir...

Agent:  I’m the administrator for that case.

Bailiff:  You’re the defendant on this case? 

Agent: No. I’m the adminstrator of that case.

Bailiff:  Okay. I have a defendant by the name of Thomas Eliot Smith. And I can give you a date of  birth and we’ll just confirm we’ve got the right case here. [flips through paperwork] Uh. Date of birth three twenty of fifty-two?

Agent:  Are you asking me is that my date of birth?

Bailiff: Yeah, is that you’re...

Agent: No.

Bailiff:  That is not your date of birth, sir.

Agent:  No.

Bailiff:  Okay. ... Alright. Well, I’m not sure then why you are here, sir, ’cause the date of birth that I have for Mr. Thomas Eliot is three twenty fifty-two. So you’re stating that is not your birth date?

Agent:  No, it’s not.

Bailiff:  Okay. Do you have anything that has like a picture ID or a signature that I can compare with the ticket? We may have the wrong file. 

Agent:  Not on me. I’ve got it in my automobile. But I don’t have it...

Bailiff:  Okay. Alright. Ahh, well, I’m not sure what to tell you sir. Uh, the person that we’re looking for has that birthdate. So do you have anything that says you have court today?

Agent: Well, I was here on that matter for that estate.

Bailiff:  Okay. But you’re stating that this is not you.

Agent:  Correct.

Bailiff:  Okay. Alright. I also show that the attorney that the court assigned to that withdrew, and that you had told her you would be retaining counsel.

Agent: Uh, the alleged defendant told her.

Bailiff:  I’m sorry?

Agent:  The alleged defendant, yes, did tell her that. 

Bailiff:  Okay. But you’re stating that you’re not the defendant.

Agent:  Not to my knowledge.

Bailiff:  Okay. Did you have any contact with Miss Orduno-Crouse?

Agent:  Did I have any con... yes, I have.

Bailiff:  Okay, were you the individual that told her that you would not be using her services?

Agent:  No.

Bailiff:  Was there anyone else present with you?

Agent:  No.

Bailiff:  Okay. Then the mystery continues. Alright, sir.

Bailiff:  Is there anyone in the courtroom that did not have their name called?

Bailiff leaves the room. [presumably to discuss what just occurred and to get her marching orders from the magistrate before the magistrate makes an entrance]

Approximately ten minutes later the bailiff returned and announced, “All rise.” The hearing session began at 3:19 PM in the time-stamped recorded video when the magistrate announced, “We are on the record in Yuma Justice Court precinct one.” In the video, during the section of the bailiff’s interrogation, you can clearly see me sitting in the last row of pews as the camera swings over to follow my responses to the bailiff’s questions. Then, at 3:20:30, just one minute after the hearing begins, when the camera swings over to the area were I should be sitting, I’m not there.

It was then that I recalled that during an interval in which the magistrate was speaking to the people in court in general, I had been asked by the bailiff, quietly off camera, to step outside to wait in the hallway until later when she would come to get me. I wasn’t allowed to remain in the courtroom while the other people’s names and cases were being called. I didn’t think too much about the significance of this at the time; until later when I watched the video, and the video was ending at somewhere around the time-stamp of 3:53 PM. I distinctly recalled being asked by the bailiff to reenter the courtroom at about 3:57 PM and leaving it at approximatly 4:25 PM. I recall this time because I looked up at the courtroom clock to verify the two times. What was to follow was a hearing with just myself, the prosecutor, and the magistrate (no bailiff) that was not included on the recording that I ordered. I found that fact (that that part of the hearing was not on the recording which I purchased) particularly disturbing. Someone was trying to keep evidence of what occurred during that hearing off the record, making it appear as though the defendant failed to make an appearance! Also, the magistrate was protecting the bailiff by not having her present at the hearing.

It was that section of the hearing video that I most wanted to see when I order a copy of the hearing, and yet it wasn’t there! I wanted to transcribe the exchanges that went on during that — apparently off the record — hearing. So I am not able to provide readers with a verbatim transcript of what took place at that hearing. It would be very illuminating for readers to see in black and white just exactly what took place during that hearing, and how I was grilled for the next twenty to twenty-five minutes. There are only three people in whose memory that hearing took place. And likely, all three of us will not recall perfectly all the events that took place in exactly the same way.

To my best recollection, the hearing / interrogation that followed lasted until about 4:25 PM. During that time, the judge tried in several ways to get me to admit some connection with the “defendant” on their paperwork, and I would not yield that information. She tried, like the bailiff did earlier, to use the word “you” to complete joinder with the NAME several times, but I deflected that each time. At least a couple of times during the grilling, the prosecutor put forward a motion for a failure to appear warrant to issue from the court, but the magistrate rebuffed him each time, wanting to make a further attempt to get me to present her with joinder to the NAME.

Unfortunately, I do not recall all the details of the many ways she interrogated me, hoping to elicit a connection with the NAME. Suffice it to say that she did an even more thorough job than the bailiff, whose questions took a mere four or five minutes. She asked me about a date of birth, and I said that whatever I might say would just be hearsay because I could not recall that day, and anything I might say would be as a result of having heard it from a secondary source and therefore not primarily from my personal memory. There was no one alive who could verify a date of birth for me. Both my parents had long since passed away, and not even my brother could have provided a date because he was born three and a half years after me. I might be able to verify my brother’s date of birth, but he could not, from first hand experience, verify mine.

The magistrate spent the better part of twenty to twenty-five minutes attempting to elicit a response from me that she could use to justify taking jurisdiction over the matter but was unable to. Finally, in frustration, the magistrate told me I could leave. “You’re free to go, sir,” she said at one point. Immediately the county attorney, a Mr. Sorenson, again launched into moving the court to issue a bench warrant for the defendant. I puttered around for a minute or so — while the magistrate shuffled through some papers — wanting to see what they were going to do before the magistrate said again, “You’re free to go, sir.” I was alarmed and wasn’t sure how or whether I could handle (object to) the motion for a warrant since the position I was taking was that I was not one of the parties to the matter. Because as soon as you recognize any part of the matter taking place, you’ve given up your challenge to personam jurisdiction.

This for sure was heading into uncharted territory for me, and I’d be lying if I didn’t say that I was more than a bit unsettled by the event. As I was heading to the courtroom door the magistrate finally relented to the prosecutor’s request and granted the his motion. I wanted to hang around long enough to hear one way or the other, so now I knew how they were going to play this. My only solace lay in the presumption that if they should actually go through with coercing me back into court by arresting me again, that I could argue that the arrest was done on fraudulent grounds.

Eventually, after I was once again arrested at my home thirteen days later (on March 29, 2018), I was able to obtain from the justice court a copy of the bench warrant issued on that day (March 16, 2018) signed by the magistrate. I wanted to see the signed affidavit, if any, by a complaining party (principally the prosecutor, in this instance), and the warrant itself. What I found when I obtained that copy of the warrant was very interesting, especially when considered together with what subsequently occurred.

There were two pages to the copy of the arrest warrant that I was given by a justice court clerk. There was no affidavit of complaint from the prosecutor. Just the arrest warrant itself  and a second page with a biological description of identity for the presumed defendant. Also on that second page was an indication of the law enforcement agency (the county sheriff’s office) being issued the warrant and an unfilled out and unsigned Certificate of Execution. So no deputy sheriff officer was taking responsibility for having made the arrest! Instead, there was a black rubber stamp place beneath the certificate that read in three separate lines, “ARRESTED / MAR 29 2018 / YCSO.” The abbreviation “YCSO” stood for “Yuma County Sheriff’s Office.”

Also, the arrest warrant had stated on it clearly, “The defendant may be released if a $1,500.00 secured appearance bond is posted by or on behalf of the accused.” Now, in order to realize the significance of this, you have to keep in mind the sequence of events that led up to and followed these actions.

Tellingly, the bench warrant itself did not contain a court seal. Although it did contain the magistrate’s signature. The warrant, too, was rubber stamped with the same ARREST information as found beneath the unfilled out Certificate of Execution. The fact that there was no court seal on the arrest warrant document was especially telling. Back in January when I finally had my first meeting with the lady attorney who the court had assigned to the case, she provided me, once I asked, with a copy of the original April 3, 2013 affidavit of “Misdemeanor Complaint” for failure to appear made by the justice court clerk and the original “Misdemeanor Failure to Appear Warrant” issued by the county justice of the peace magistrate. Both the court clerk’s and magistrate’s signatures appeared on both those documents along with a black rubber stamped “seal” of the court. 

This made me wonder even further whether the bench warrant without a court seal issued by the magistrate on March 16th at the request of the county attorney was fraudulent, and whether I could prove it was fraudulent. But that’s not the only reason I suspected that it was fraudulent. The arrest warrant stated on its face that the reason (or authority) for the arrest was based on “Rule 3.1(d) Pre-Adjudication Warrant” from the Arizona Rules for Criminal Procedure (AzRCP). That rule states:

3.1(d) Pre-Disposition Warrant. After the initial appearance and before the disposition of a case, the court may issue a warrant to secure a defendant’s appearance if the defendant fails to appear after receiving proper notice.

If you will notice, it clearly states that “if the defendant fails to appear” the court may issue a warrant to secure defendant’s appearance. Well, this brought up a very pregnant question in my mind. A few days after the March 16th hearing I noticed on the county’s Internet case look-up website that the original $500 bond had been exonerated on March 16, 2018. When I called the bail bondsman to verify that he had received the refunded bond  from the court which he had put up for which I had provided him with $500 in cash collateral after I was initially released on January 2nd, he told me that the court had not yet contacted him about that, but that he would check into it. It took a couple more weeks before he finally presented me with his refund check.

The obvious question in my mind was: if the defendant had failed to appear at the March 16th hearing, then why was the bond exonerated? If there had been no appearance by the defendant, then the bond, understandably, should have remained in place and been forfeited. But that original bond was NOT forfeited, it was refunded. Why, if the ostensible complaint fueling the bench warrant was failure to appear, had the original bond been refunded? The only explanation that made any sense was that Corey Eib’s theory about appearing two dimensionally in the paperwork was a valid presumption!

In other words, the defendant DID appear that day, and that fact is confirmed in the Declaration, Complaint and Prayer for Relief document present that day in court which states as much. Unless there is something in the Arizona Rules for Criminal Procdure that says that a court may ignore a written appearance, refund a bond for a non-appearance, and then issue a warrant on top of that, establishing a second bond in which the bond amount is increased on that new arrest. I’m not familiar with the fact that any such rule exists. As much as they (the prosecutor and magistrate) were trying to get me caught up in process violations, my strategy was to do the same to them, and hope that I could find a way to prevail in the end.

It strikes me that something the court did stinks to high heaven, and I’ll be damed if I’m not somehow going to get to the bottom of this. It seems to me that the court, in its haste to assert its naked power over people, ignored its own law and fraudulently issue an unlawful bench warrant in order to coerce a warm body into its chambers to stand and represent the fictional legal entity it was calling a defendant! And that my objection to being dragged into court under constraint (a point that was brought up in my allocution at the bench trial that was later held) was a valid objection which this court refused to acknowledge, thus committing yet another dishonor against me.
I would caution readers once again that if you wish to keep up with my reasoning as I go through this description of the ordeal I underwent, that you have to keep everything (all the facts, that is) mentioned in previous installments in mind so that you are able to properly understand my line of thinking, whether it was correct or incorrect. One way to do this, once I’m finished with the entire story of events, is to go back and reread through each installment once again, in order to refresh the memory. This is a complicated story, and unless one has lived through it, it can be difficult to keep all the relevant details in mind. 

Stay tuned for the next installment. You’re not going to want to miss what comes next.  

Yours sincerely,

Thomas Eliot
Common Law Remedy
BeatTrafficTickets.Org


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