A Travesty of American Justice

Judge and Prosecutor Conspire to Deny a Citizen his Rights in Clearwater’s Florida State Court.

By Bob Hurt, 30 March 2006. License granted hereby for broad distribution intact.

A few months ago I attended a meeting of a group of “Lawmen” for the purpose of associating with people who are fighting the IRS, to see whether I could find any practical recourse to being keelhauled with the unconstitutional collection of a direct and unapportioned tax by our nation’s tax authorities every time I turn around.

One of the members sent me an email inviting me to attend a hearing in Judge David Seth Walker’s 6^th circuit Florida court in Clearwater (the Pinellas county seat) about 20 minutes from my home. The hearing involved Jesse Toca, a native-born American descended from Tampa’s Cuban cigar factory owners. Yesterday I showed up to sit in the peanut gallery with about a dozen people from the “Lawmen” group. And there I witnessed what appeared to me to be an utter travesty of justice and stomping of constitutional rights.

Here’s a little background to the case. In 1997 the State of Florida charged Jesse with “practicing law without a license” under Florida statute 454. Judge Crocket Farnell, having earlier promised to Jesse “If you ever show up in my court, I’ll bury you!”, found him guilty, even though Florida’s government has no apparent licensing procedure for attorneys (no attorney can show you a “license” to practice law) and no effective law regarding Practicing Law without a License*. Jesse did two years of jail time, during which his attorney abandoned the appeal effort after trying to convince Jesse’s elderly parents to give him Jesse’s car. Later, Jesse discovered the reason: his attorney, an officer of the court, was then, and had all along been, a crack cocaine addict. A new judge granted Jesse probation to care for his ill and aging mother, on the condition that he report to the Salvation Army and give financial information to them so as to determine his ability to pay restitution.

Jesse took his probation, but refused to give any financial information. He said that would have constituted a yielding of his 5^th amendment constitutional right to be free of self-incrimination. He knew the ruthless prosecutor might dig into his financial data and use the trail to find other information to use in contriving a criminal charge against him. The prosecutor is a 6-foot-something pin-striped Assistant State Attorney (ASA) named Frank Migliore who seems to me to look and behave like a henchman of Tony Soprano. Because of Jesse’s refusal to divulge financial information, Migliore charged Jesse with 4 counts of probation violation, intending to throw Jesse in jail for one year per count.

Since Jesse had no money to hire an attorney, the State made available two Public Defenders. Jesse consulted them to determine their ability to counsel and defend him effectively. Jesse concluded that both were incompetent. One of them created a conflict of interest by divulging Jesse’s confidential information to Migliore, information that was supposed to have been protected by the attorney-client privilege. Knowing that his Public Defender was colluding with the Prosecutor, Jesse rejected that counsel as “ineffective”. Meanwhile, Jesse was scheduled for a hearing on the state’s motion to quash Jesse’s subpoenas for hostile witnesses to prove his attorney was incompetent to represent him. Apparently the ASA had encouraged the witnesses to try to quash their subpoenas because he wanted to railroad Jesse into 4 years of prison. Why was this apparent? Because half a dozen submitted motions to quash. It seemed obvious that they intended to bury him.

29 March 2006, Jesse showed up in court without a defense counselor. In the court room, Jesse sat alone on the defendant’s side, and a gaggle of attorneys, including Migliore and his associate ASA Marie King, sat on the prosecutor’s side. Migliore presented his motion to quash. Jesse rose, stepped to the counsel lectern and presented his opposing arguments masterfully.

1. He moved the court to permit a member of the news media to record the proceedings electronically. The judge denied the motion, in violation of Florida Rule of Judicial Administration 2.170.
2. He pointed to the empty defense counsel’s chair, said he had no counsel, and submitted constitutional and case law proving he had the right to counsel. He demanded counsel. The judge denied the motion, violating Jesse’s 6^th Amendment constitutional right to effective counsel.
3. He moved to continue the proceedings so he could find suitable counsel. The judge denied the motion.
4. He went back and forth with the judge and State Attorney through dozens of arguments, accusing the judge of conspiring with the State to throw him under the bus and run him over, of violating his constitutional right to counsel. Jesse even accused the judge of violating the law by calling a sidebar conference, going off the record, and advising Jesse to cop a plea. The State accused the judge of mollycoddling the defendant through nearly 10 years of similar courtroom drama. Throughout this process the judge rolled his eyes, held his head in his hands, sighed repeatedly, and still talked in a reasoned and moderated voice.
5. During all this time, when Jesse was arguing his points, he often turned to the peanut gallery, and frequently referred to us as his supporters (all were taking copious notes).
6. Eventually the judge admitted that he had no intention of putting Jesse in jail, and the State went ballistic. The judge told Migliore to sit down.
7. Jesse told the judge he was willing to pay restitution through some kind of judgment, and the State vehemently protested, saying only probation had any chance of getting any money out of Jesse.
8. The judge sided with Jesse, who copped a plea of guilty on the condition that restitution be worked out in another court, that Jesse would not go to jail, and that Jesse would not have to give up his 5^th amendment rights.

Afterward, Jesse and four of us who been observing from the peanut gallery met Jesse at Wendy’s for a quick lunch. Jesse was in a hurry to get home to attend to his mother. I asked him what he thought might have happened had we not been there. Jesse admitted he would probably be in handcuffs. He believes the presence of a support group helped convince the judge to rule as he did.

The judge had admitted several times that he was mightily impressed with Jesse’s oratorical skills, which he claimed were better than 95% of the attorneys who had ever appeared before him during his 35 years on the bench. Nevertheless, without a peanut gallery of supporters who might make noise in the press or serve as witnesses to judicial malfeasance, the judge would have railroaded Jesse even more than he did, and Jesse would have had no opportunity to cop a plea with conditions in his favor. Sure, he’ll have to pay restitution, but at least he will be free.

Multiply Jesse’s situation by the thousands of times such things happen every week day in American courts. Imagine if you were in Jesse’s shoes but did not possess his knowledge of your legal rights or his skill in thinking on his feet and combating both a ravenous State Attorney and a corrupt judge, both of whom were deadly intent on stomping your rights and either throwing you in jail or forcing you to pay outrageous and unjustified restitution. Jesse is surely one of the luckiest men alive to have faced such a dynamic duo of American injustice without doing jail time.

America’s judiciaries at all levels are hopelessly corrupt, and routinely exceed their authority and stomps our constitutional rights in cases just like Jesse’s. Aside from pounding on our legislators, the only possible thing we can do about it is just what I did. If you see or hear of court cases that interest you, take a day off from work now and then and join the defendant’s peanut gallery. Your little bit of support might do a world of good in the life of an everyday American.

Practicing Law without a License

Most people think you must be an attorney licensed by the state, and you must be a member of the Bar association in order to practice law in the state. I could not understand why an obviously very intelligent like Jesse Toca would knowingly break such a rule. So I set out to discover the truth by talking to knowledgeable people and reading the law for myself. First I spoke with ASA King, non-BAR member David Bosset (http://bosset.com/), and St. Petersburg attorney and Florida Bar member Frank Papa.

• King directed me to Florida statute 454 under which Migliore charged Jesse. She admitted that the state does not license people to practice law. She harshly advocated the idea that a non-government, unregulated organization (the Florida Bar Association) rightly should permit and regulate the practice of law by people only it deems qualified, just as a state arm of the American Medical Association regulates the practice of medicine by medical doctors. She also told me that Judge Walker had given Jesse ample time to find counsel to represent him, but that Jesse had refused to do so.

• Bosset told me that he practices law all the time without a license and it drives the Florida BAR crazy. They filed suit against him in Florida court, and Bosset seems to be enjoying his ongoing battle against them. He said he provides “limited assistance of counsel” to his clients under contract, and that the state government cannot limit his fulfillment of his obligations under the provisions of that contract. He cited the U.S. Constitution, Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts….”

• Papa told me he does not have a license to practice law, but he showed me his Florida BAR Association membership card which declared him to be a member in good standing, and he claimed to have a Bar Membership certificate signed by the Florida Supreme Court.

I browsed the Florida statutes on line so that I could read and attempt to understand Statute 454. See my analysis below. After reading it and thinking about it, I understood why Jesse or anyone else would think it okay to sign a contract with someone, then under the terms of that agreement give the client legal advice or even act as counsel in a court of law. Florida law says people shall not practice law without a license or authorization, but it does not stipulate a means for being licensed. It indicates that the Supreme Court should be the proper entity to regulate that, but refers to no licensing or authorizing statutes or regulations, almost as though such rules should be taken for granted.

This leads me to believe that either the state legislature has ignored its responsibility to enact statutes any ordinary person can understand regarding authorization to practice law, or that it did enact understandable statutes in Title 454, and people may behave accordingly. I believe it is the latter. The Florida Bar Association is unregulated and could be manned by a pack of fools and charlatans with no accountability to the people or the government. Thus, it amounts to little more than a self-regulating “good old boys” network that the state legislature refuses to regulate or hold accountable for its harassment of citizens who lawfully give legal counsel under contract. And judging from the practices of Migliore and Walker that I witnessed, multiplied by thousands or millions in courtrooms across America, the Bar does a miserable job of regulating attorney behavior. Nothing in the family of Statute 454 entitles the Bar association to authorize the practice of law or to license attorneys. For all of these reasons, I have concluded that the judges and ASA Frank Migliore railroaded defendant Jesse Toca from the very beginning, over a period of nearly 10 years, colluding to have him thrown in jail and forced to pay restitution he did not owe.

I know that Jesse wants to put this whole episode behind him and get on with his life. And that is at the heart of this problem of a corrupt judiciary and corrupt government attorneys. Although some are really decent and competent professionals, many if not most seem insufferably arrogant and condescending elitists who consider the courtroom their domain and everyone else, even the jury, as their subjects, whom they can and do collude to deceive, manipulate, and strip of constitutional rights at their whim. Jesse is one of their victims, and judge-prosecutor conspiracies destroy the lives of millions of others like him across America. The conspirators do their best to imprison, fine, extort, and oppress their victims to death, while often letting violent criminals and rapists loose to have their way with innocent citizens. Afterward, defendants like Jesse wind up humiliated and shunned as felons, depressed, unable to feed their families, and too miserable and defeated to fight further. Were it not for that, perhaps more would file civil lawsuits and seek to have criminal charges filed against prosecutors and judges who conspire illegally to ruin their lives. As far as I am concerned, such conspirators deserve the worst of punishments they hand out to their innocent, hapless victims. But as it is, few people have the gumption to hold prosecutors and judges accountable for their inexcusable behavior.

The 5^th and 14^th amendments mandate due process for all judicial proceedings, and I witnessed that process being ignored in Judge Walker’s court room by both the judge and the prosecutor. All judges and prosecutors take an Oath of Office to uphold the Constitution, and the Supreme Court has additionally held that government employees who violate any law in the performance of duties do not represent the government.

Therefore, we can rightly conclude that adjudication not within constitutional requirements nullifies any claim to jurisdiction. Only this guarantees that a court of admiralty, a star chamber proceeding, a kangaroo court, or an arbitrary proceeding by whatever name does not occur. The Supreme Court forcefully established that court proceedings must be within constitutional provisions (Muskrat v. United States (1911) 219 US 346; Smith v. U.S, (1959) 360 US.)

But apparently, Supreme Court rulings don’t make a dent in the armor of conspiratorial prosecutors and judges. Americans need a new branch of government charged with the responsibility of bringing corrupt politicians, judges, government attorneys, and other public servants to justice. That new branch would enforce rulings like the following:

• “Officers of the court have no immunity, when violating a constitutional right, from liability for they are deemed to know the law." Owen v. Independence, 100 S. Ct. 1398.
• "Where Rights secured by the Constitution are involved there can be no rule-making or legislation, which would abrogate [abolish] them" Miranda v. Arizona (1966) 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3rd 974 and 59 other ALR treatises.
• "If the state converts a liberty into a privilege the citizen can engage in the right with impunity." - Shuttlesworth v. Birmingham 373 U.S. 262
• "There can be no sanction or penalty imposed upon one because of his exercise of constitutional Rights." Sherar v. Cullen 481 F. 945.
• "The court is to protect against encroachment of constitutionally secured liberty." Boyd v. U.S. (1886) 116 U.S. 616.
• "An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection' it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425, Quoting from Marbury v Madison (1803)
• "The exercise of a constitutional right cannot be the basis of a crime." Marchetti v. U.S., 390 US 39,57; See v Seattle, 387 US 541.

But we have no such fourth branch of government, and so it is up to you, the reader of this article, to attack the corruption in our courts when and as you can, and to support defendants who are being hammered into oblivion by corrupt and collusive judges and prosecutors.

Note: You can reach Jesse Toca for comments or an interview at:

Jesse Toca
7937 Woodglen Circle
Tampa, FL 33615
206-350 6441

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Bob Hurt’s Layman’s Analysis of Florida Statute 454

Fuzzy Law seems not to prohibit citizens from giving legal advice or acting as counsel in courts of law.

The Florida Constitution gives the state Supreme court full authority over the judicial branch of government and the regulation of attorneys. It lets the governor appoint justices to the Supreme Court, and it guarantees the people's right to determine (through the election process) who gets to serve as judges in the lower courts. It gives the legislature only one power over the judicial branch: the power to impeach judges. Otherwise, the judicial branch is "self-regulating."

The Supreme Court established an array of regulations describing procedures that must be followed in judicial proceedings and the qualifications and conduct of judicial officers, including both judges and attorneys. It authorized the Florida Bar to manage the qualification and selection of attorneys, and based on those qualifications, the Supreme Court "licenses" people to serve in state courts as attorneys and counselors at law. That big certificate on a lawyer's wall is a license to practice law, and it is signed by the Clerk of the Supreme Court.

The Bar regulations require a prospective attorney to graduate from an accredited college of law, pass a bar examination, be of good moral character, be a member of good standing of the state bar association, and swear to the following oath (required of all judicial officers by Article VI of the U.S. Constitution and Article II Section 5(b) of the Florida Constitution):

"I do solemnly swear: I will support the Constitution of the United States and the Constitution of the State of Florida; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval; I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God."

Once these qualifications are in place, the bar examiner certifies to the Clerk of the Supreme Court that the prospect is qualified, and the Clerk issues the license.

That is all well and good, but serious flaws exist in the system. To begin with, Amendment IV to the U.S. constitution guarantees every criminal defendant the right to assistance of effective counsel of choice. That does not confer upon the government at any level the power to determine who that counsel may be nor what qualifications that counsel must have. And, Amendments IX and X specifically preclude the government from assuming any powers not specifically granted to it by the constitutions.

Thus, if defendant in a criminal proceeding has the constitutional right to enlist a topless dancer as counsel, and the government has no say whatsoever in the matter...

We wish. Unfortunately, the government very clearly tries to strongarm defendants into selecting only bar members as their counsel, and through the bar association, it works assiduously to prohibit the "practice of law" to anybody but bar members.

The below web site shows Florida Statute 454, the only one I can find that seems related to Attorneys.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0454/ch0454.htm

I have indented all the Title 454 statutes below, and presented my comments regarding them below the relevant statutes. I have not found anything that requires a person to be a member of the Bar in order to practice law, and I have found nothing that says only the Supreme Court may decide who practices law. The language is obscure in the most relevant paragraphs that might be used to determine who may practice law, how one is licensed to practice law, or what the licensing requirements are.

454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate.--

(1) Admissions of attorneys and counselors to practice law in the state is hereby declared to be a judicial function.

(2) The Supreme Court of Florida, being the highest court of said state, is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.

This clearly says the Supreme Court of Florida is the proper court determine who practices law and regulate the practice. But it does not show requirements for the practice of law, it does not say the Supreme Court shall be responsible for those things, and it does not point to any corresponding statute that delineates and enumerates such requirements.

454.026 Authority of Department of Law Enforcement to accept fingerprints of, and exchange criminal history records with respect to, bar applicants.--The Department of Law Enforcement is authorized to accept fingerprints of applicants for admission to The Florida Bar and, to the extent provided for by federal law, to exchange state, multistate, and federal criminal history records with the Florida Board of Bar Examiners for licensing purposes.

Although the above paragraph mentions the Florida Bar, applicants for admission to the Bar, and the exchange of records, and it mentions licensing, it does not authorize or entitle the Bar to authorize or license people to practice law.

454.11 Powers of attorneys.--Every attorney duly admitted or authorized to practice in this state shall have the right to appear before any court of the state, or any public board, committee, or officer in the interest of any client, and may appear as amicus curiae when so permitted. All attorneys shall be deemed officers of the court for the administration of justice, and amenable to the rules and discipline of the court in all matters of order or procedure not in conflict with the constitution or laws of this state.

The above paragraph says what attorneys might do if they are duly admitted or authorized, but it does not stipulate the requirements for admission or authorization, nor does it prohibit anyone who is not an attorney from practicing law.

454.18 Officers not allowed to practice.--No sheriff or clerk of any court, or deputy thereof, shall practice in this state, nor shall any person not of good moral character, or who has been convicted of an infamous crime be entitled to practice. But no person shall be denied the right to practice on account of sex, race, or color. And any person, whether an attorney or not, or whether within the exceptions mentioned above or not, may conduct his or her own cause in any court of this state, or before any public board, committee, or officer, subject to the lawful rules and discipline of such court, board, committee, or officer. The provisions of this section restricting the practice of law by a sheriff or clerk, or deputy thereof, shall not apply in a case where such person is representing the office or agency in the course of duties as an attorney.

Interestingly, the above does not prevent you from practicing law UNLES you are a non-attorney court officer or a bad person.

454.19 Certain partnerships prohibited.--No judge of a court of this state who is permitted by the constitution and laws to practice law shall form any partnership with the prosecuting attorney of such court or become a partner in any firm in which he or she is a partner. No attorney who may be a law partner with any judge of any court who is permitted by law to practice law shall be allowed to practice before the court of which his or her partner is judge.

What about collusion between judges and prosecutors, which happens all the time? They frequently function as partners to railroad defendants accused of a crime. For example, prosecutors and judges routinely collude to prevent juries from knowing they are entitled to decide matters of law as well as matters of fact, and to nullify judicial rulings they believe are unjust. In so doing, they hamstring juries and prevent them from implementing just findings.

454.20 Attorneys not to be sureties.--No attorney shall become surety on the official bond of any state, county, or municipal officer of this state, nor surety on any bond of a client in judicial proceedings.

This does not limit any person from practicing law other than attorneys.

454.23 Penalties.--Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

What does this mean? Obviously, the state does not issue licenses to practice law, and neither does the BAR association. Therefore, nobody, including attorneys hold a valid authorization (license) to practice law in Florida. So far, I have not seen any law that stipulates the requirements for qualification to practice law. So how can anybody other than those guilty of violation of one of the other paragraphs be charged with a felony?

454.31 Practice while disbarred or suspended prohibited.--Any person who has been knowingly disbarred and who has not been lawfully reinstated or is knowingly under suspension from the practice of law by any circuit court of the state or by the Supreme Court of the state who practices law in this state or holds himself or herself out as an attorney at law or qualified to practice law in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

454.32 Aiding or assisting disbarred or suspended attorney prohibited.--A person who knowingly aids or assists any person in carrying on the unauthorized practice of law, knowing that such person has been disbarred and has not been lawfully reinstated or is under suspension from the practice of law by any circuit court of the state or by the Supreme Court of the state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, and shall also be subject to disbarment.

The above two provision do not require an attorney to be a member in good standing of the Bar. They clearly say that a person who has been disbarred cannot practice law, or even say that he is entitled to practice law. However, they do not say that an ordinary human being cannot practice law.

Nothing in the above statutes properly defines “practice of law,” particularly not in terms of giving legal advice, or operating as limited counsel to a defendant or party to a lawsuit in a court of law.

Our Amendment I right to freedom of speech prevents the government from prohibiting our free discussion of all things, including legal matters. However, the bar association seems willing vigorously to prosecute anybody who presumes to give legal advice to a friend.

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