Filing # 42998104 E-Filed 06/20/2016 07:59:28 PM IN THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT AND FOR DIXIE COUNTY, FLORIDA. STATE OF FLORIDA, Case No. 2014-201CF TERRY G. TRUSSELL, Defendant MOTION FOR JUDGMENT NOT WITHSTANDING THE VERDICT And Declaration by Expert Witness; CV attached. Comes now Defendant through Defense Counsel, somewhat apologetically, moving this court for a judgment, JNOV, of “Not Guilty” with findings of “Factual Innocence” because there is no crime alleged or committed: But rather, the prosecution, now approaching two years, is just “Much Ado About Nothing”, (Comedy by Wm, Shakespeare) and Defense Counsel’s own failure to recognize the simplicity of the Petition Clause principle of this case and her own inadequacy in trying to bring that simplicity to the Court’s attention is the cause for her apology. However, her failure to effectively describe a real big proverbial elephant in the court room that this court and prosecutor should have recognized from day one ... long before Defense Counsel undertook the defense, makes room for apologies all the way around, In point, that the prosecutor and this court did not admit of the “elephant” for all of this time is what caused Defense Counsel to file lengthy motions trying to deseribe the elephant and its significance to this case. In turn, the Court and the Prosecutor may have wondered why all of these volumes of motions to point out and describe the elephant which they saw plainly, was not “necessary”. But as plain as it was, the implication which Defense Counsel took for granted, was avoided by the pros -utor and this court, and now needs a direct address. RISRSRTIS? NE PORR sei br FARRAR SEdences ane 96 IB 59 28 PMThat “elephant” is the First Amendment Petition Clause concerning which neither Congress nor state legislatures may make any law abridging the exercise thereof. Thus, by its own terms, there can be no law abridging that right, That is why the defense expert, (Wolfram) when he understood what this case is all about, (he was excluded from trial) describes the case as “Much Ado About Nothing” because there can be no law abridging the right to petition and therefore there is no law abridging and for that reason there is no law before this court to justify its jurisdiction; and there no law under which the prosecutor can prosecute this case. That is to say, a “law” abridging the First Amendment Petition Right, is NOT a law. Simply stated: The First Amendment expressly limits government power: Congress shall make no law ... abridging ... the right of the people peaceably to assemble and to petition the government for a redress of grievances”. The Fourteenth Amendment applies the same limits to state power. Where neither the state legislature nor Congress have any power to legislate, neither state nor federal courts have power to go ... other than, of course, to declare that it has no power, no jurisdictional foundation to go there. As against this, the Court, to defense counsel’s bewilderment, said there is a presumption of constitutionality of the statute. But what does that mean? Of course it is not an irmebuttable presumption ... it can be rebutted by evidence. But what is “evidence” ifit is not the clear language of the First Amendment ... Congress (and states) shall make no law abridging the Right to Petition, That is a command, an irrefutable command by the Constitution itself that firmly rebuts any presumption that any law abridging the Petition Clause Right is constitutional, There can be no crime where government has no power to legislate, That is the intent of the First Amendment ... to prevent government from legislating punishments for exercise of the protected rights. ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016The wording for our First Amendment Petition Clause is founded in the fifth right in the English Bill of Rights of 1689, It clarifies the Petition Clause command: “That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal,” Italics and bold added. In post-trial discussion, the defense expert John Wolfgram who the court would not allow to testify at trial told defense counsel that it could not be more clear from the history and the wording of the First Amendment, that judges have no jurisdiction to “enforce” whatever might pretend to be a “law” abridging the right to petition government for a redress of grievances. In his opinion, there cannot be such a law. Any “law” that might be interpreted to abridge, punish for or chill the exercise of the right of petition, is not a law at all in so far as it might be used to that of a statut affect. He compared the us to punish for the exercise of constitutional rights to the wording of the federal civil rights statutes, 18 USC 241/242, This is what he pointed out: “The use of a state statute like Florida Statute 843.0855 to punish acts of petitioning government for a redress of grievances is unlawful, To see that clearly, all you need do is examine the wording of 18 USC 241 and 242, Whoever, under color of any law, statute, ... willfully subjects any person in any State. to the deprivation of any rights,.., Secured ot protected by the Constitution or laws of the United States, shall be fined under this ttle or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if sueh acts include the use, attempted use, or threatened use ofa dangerous weapon, ... shall be fined under this ttle or imprisoned not more than ten ‘years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or ... shall be fined under this title, or imprisoned for any term of years or for life, ‘or both, or may be sentenced to death, (Bold Added) “That federal criminal statute is right on point to the use of F.S. 843.085 to abridge or punish for petitioning for redress. The court would be acting “under color of a statute” to punish Trussell for a ‘criminal’ exercise of his constitutional right to petition. It simply can’t be done consistently with federal civil rights law any more than it can be done consistently with the First Amendment on its face. More over the attempt to stretch a statute to make the exercise ofa right criminal would deny the accused a fair trial because there can substantively be no such thing as fair trial when the substance of the “crime” is the exercise of a right. The “trial” in effect, would become a “railroading” under pretense law; and the obvious message of ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016“Congress shall make no law abridging” would become a setup for entrapment by state law abridgment irrespective of 14" Amendment incorporation, “Section 241 is the federal conspiracy statute, It is much more explicit as to the substance of the crime. It eliminates the “color of law” requirement and goes directly to the effect ofa conspiracy on the exercise of constitutional rights: 241: If two oF more persons conspire to injure, oppress, threaten, or intimidate any person in any State in the free exercise or enjoyment of any right or privilege secured to hi ‘oF laws of the United States, or because of his having so exercised the same; or They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, ... they shall be fined under this ttle or imprisoned for any term of years OF for life, or both, or may be sentenced to death “Not only does the first paragraph describe what this case is all) about as to your client, but the design of the accusation is to intimidate a whole class of persons broadly referred to without distinguishing criminal characteristics, as “sovereign citizens” from exercising constitutional rights.” Counsel asked Mr. Wolfgram if he were not being unduly harsh on the court. “No, not at all. I researched the United States Supreme Court opinions on immunity from 1791 to 2000 for my law review article, “How the Judiciary Stole the Right to Petition 31 UWLA Law Rev. 257 (Summer 2000). That research included Bradley vs. Fisher, 80 U.S. 335 (1871) and its progeny which created and molded the contours of “absolute judicial immunity”. ‘The rule is that where judges have subject matter jurisdiction as judges, they have. judicial immunity; but not otherwise, say as administrators. Likewise, prosecutors have immunity when exercising prosecutorial duties, but not say, as an investigator. But where the Constitution so clearly declares there can be no law conferring jurisdiction, there can be no judicial or prosecutorial jurisdiction or duty to exercise. This is the first case I ever studied where neither the judge nor prosecutor has subject matter jurisdiction because the First Amendment (Art. I, See. 5, Florida Constitution) absolutely forbids any law by which to exercise judicial or prosecutorial jurisdiction over the people's right of petition. “That fact, or theory of fact, is important because of what immunity does to judges, prosecutors and to government officers generally. As a practical matter immunity is, immunity from accountability to the constitutional law of the land. Immunity from the law creates impunity to the law resulting in massive corruption of government, the law and government's dealings with the private sector. In effect, immunity creates the anomaly that government officers swom to support the Constitution are in fact, free to violate it almost at will, The result is systemic arbitrariness in the law and in its application, There is no constitutional basis for immunity, In fact, immunity to violate the Constitution annuls the very purpose of our Constitution. ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016“What you see as “unduly harsh” is not directed to the persons of the judge and prosecutor, but rather directed against the corrupting influences of the system which changes good and responsible people the Judge and Prosecutor once were, into petty tyrants who apply the law as they see fit for their own transient purposes. They do that because they can and with a virtual guarantee of immunity, they will get away with it, That evil influence permeates all of government, from entry level officers to the President of the United States, as the corrupting influences of civil immunity from accountability to the persons they wrongfully injure through the abuse of their powers, ‘becomes an habitual mechanism by which they climb the ladders of government power; and become increasingly corrupt for political and financial gain. “While I'm an expert on the Petition Clause, I’m basically a legal philosopher. | harbor no ill will to those who make their living in the system, as corrupt as it is. It the system that has great faults; it is the system that must be addressed and can be fixed. Until then, one official ready and willing to be corrupt just replaces one that gets caught. I wrote two law review articles. The first, How the Judiciary Stole the Right to Petition 31 UWLA Law Rev. 257 (Summer 2000) is incorporated as a basi for my opinions here. But the second, “Democratizing the Judiciary” addresses how to fix the system through an evolutionary process of restoring jury and grand jury rights. Itis really very simple: Swear juries to the Constitution, not as anew oath, but as a reminder of their duty to support our Constitution as‘citizens,. Then let parties argue relevant constitutional terms and meanings to them and along with such other instructions, give them acopy of The Constitution, as itis written, and let them decide whether the law of the case is being applied constitutionally. Their verdicts collectively over time provide a feedback system for the legislature and courts as to what the common people sitting as juries think are constitutional or unconstitutional draftings and applications of the law. Juries have an important role as a feedback system to develop better laws consistent with the Constitution, as itis writen. “But there is something even more important about swearing the juries to the Constitution, As a practical matter, if juries are to determine the constitutionality of the application of laws, the Constitution itself becomes important to our daily lives and accountability to and under the Constitution begins to play its major role in the governing process. To be sure, we might develop a whole generation of “sovereign citizens”, but so what? That is what the Constitution contemplates. If you need convincing, just read the Preamble to our Constitution, and think about who is speaking to create our Constitution: “We, the People...”; We, the Sovereign People. How, Mr. Woll ram, does th jury system that you propose address the issue that you claim to be most interested in, judicial and generally, government immunity? “Good question: Immunity contradicts the Constitution. If a jury is instructed to apply the constitution to the laws of the case, and a claim of immunity is a proposed law of the case, the adverse party can logically prove that immunity violates the constitution and cannot be found within it. However, personal immunity is not the issue, The issue is one of respondeat superior ... the financial liability of the state for ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016the wrongs that its officers do in its name, As far as I know, only one Supreme Court Justice ever addressed that, Chief Justice Burger in his dissent to Bevins v Six Unknown Named Agents. He suggested that the Bevins liability issue be solved by Congress (re)establishing “the venerable doctrine of respondent superior” “The immunity doctrine(s) are really an attempt by government to assert the big lie of “Sovereign Immunity” from accountability to its own people for the wrongs it does tous. The way that it is supposed to work under the 14" Amendment, is that the state is liable for the wrongs of its agents. Payment of liability burdens the tax payers who rebel under their other hat as voters and vote irresponsible supervisors out of office and put responsible supervisors into office who teach and require their subordinates to obey the law and respect people’s rights thus lowering the costs of liability; and more generally, shrinking the size of government to what it can do competently. That is the ay it is supposed to work. Immunity shifis the tax burden for accountability to the wrongfillly injured individuals instead of spreading the costs across the tax basis. Thus, relative to this case, the judge and prosecutor would have never developed constitutionally corrupt habits because when the state paid their liability bill, the state would discipline or retrain or replace them .., or the voters would replace those who have that state responsibility with new supervisors, etc “So, you can see that immunity is really a big state usurpation deigned to protect incompetent judges, prosecutors, and legislators from the voters by silently shifting the costs of their incompetence to the victims of judicial, prosecutorial or legislative incompetence. Trussell is such a victim who by my estimation has been unlawfully damaged to the tune of millions of dollars and state officials want to escape that liability so that they don’t have to answer to some angry voters.” Counsel asked Wolfgram his opinion on what those laws mean in this case. His answer: “You told me that you were concerned about Mr. Trussell’s safety while in custody. 1 agree there is a basic reality to those concerns. 18 USC 241/242 are designed to protect him from punishment for exercise of any right secured by the Constitution. But the lating effect of such laws is lost where officers believe they are protected from criminal and civil liability as a matter of habit and official right. “You owe duties to your client and to the court, to protect your client and to honestly tell the court of the problem and what it looks like. To me as an expert, it looks like a criminal conspiracy to retaliate against your client for his exercise of the Right of Petition within the clear intention and design of that right. ‘Beyond that, you owe a duty to your client to vindicate him as effectively and expeditiously as you can. So, lay out the evidence and just as the wording of the First Amendment, “Congress (and states) shall make no law abridging” is evidence that the court has no law under which to proceed, so too is the language of 18 USC 241/242 evidence that use of a state statute to violate a federal constitutional right is very seriously an unlawful criminal act. ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016nally, there is a question of what the court’s intention actually is, to wrongfully convict or just apply, albeit erroneously, the Florida statute. This motion, my declaration and what the judge and prosecutor actually do in light of this motion becomes “Post Event Evidence” of that intent. There is a Ninth Circuit case on that, Henry v Shasta County, 132 F3d 512, that | am familiar with. From this position, the only thing that you can reasonably do is to put the entire matter as you see it before the court, before the sheriff, and publically so that if you or Tor Mr. Trussell suddenly drop dead, there will be a federal investigation which starts with the official suspects having a huge motive to silence us and to put fear into the heart of free thinkers like the “common law grand jury”. ‘That is really what this case isall about. In fact, it seems to me that the law in question is designed to chill citizens from seeking investigation of public officials for public corruption. If it was just intended to prevent or punish persons for filing false liens or such, it could be drawn to specifically address that activity. Instead, it is designed to broadly include almost any kind of complaint against government; and the sub section 5(b) of F.S. 843.0855 unreasonably fails to mention the right to petition as a defense when it specifically states the right of assembly, yet in Florida, both rights are part of one right under Article I, Sec. 5 of the Florida Constitution. “So, what should you do? You should protect your client and yourself under the law and the best way to do that is to advise the court openly of the laws that appear to be violated so that the judge can decide whether to continue with this prosecution or bring itto a halt without any further injury to the real vietim, Terry Trussell. “I think that you should tell the court openly what my opinion is: It is my professional opinion that this trial could reasonably be mistaken as the front lines of an open rebellion against the Constitution of the United States by the Great State of Florida. I say that because no one reasonably familiar with the legal status of the Constitution and role that it plays in our legal system can reasonably believe that this overly broad trivial statute can plausibly defeat the Petition Clause. Beyond the immediate trial, itis my opinion that other persons helped plan and execute this perversion of First Amendment rights, and that could include persons staffing some legislators’ offices and some legislators. However, that is by inference and 1 know nothing of Florida Law on the subject, but that if such were by Congress, the Constitution says that they shall not be questioned elsewhere for their role. If that is so of Florida Law, the legislature itself should question them for what is at minimum a conscious disregard of their oath to support the State and Federal Constitutions, which emphasizes my point: The State and Federal Constitutions must become a part of our government’s and our people’s everyday life. “That is my opinion counsel, and if you write it up, I will examine it, make appropriate changes and declare it; and defend it in any court of competent jurisdiction in this land, That is the due exercise of my right to assemble to more effectively Petition the Government for a Redress of Grievances.” ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016One last question Mr.Wolfgram, what is your interest in Mr. Trussell and this ease? “I work for your client, directly. My agreement is to help him defend under the Constitution, particularly the Petition Clause and testify as an expert on the constitutional issues. I receive my travel expense, lodging and meals for my help. 1 receive no other fee and there is no agreement for any other fee. My personal reason for assisting him is to develop my legal philosophy especially concerning the role of judicially created immunities in obstructing the evolutionary development of our constitutional democracy, I have an intellectual interest in seeing the issues discussed above litigated fairly under the Constitution, to the highest courts of this land. Immunity is directly opposed to the right of petition: Abridge the petition right and you extend immunity to government. Respect the right to petition totally and there is, no place for corrupt government to hide. ..n0 government immunity to hide behind. Thave read the forgoing motion for NOV and the matters therein attributed to me as my opinion. The same is my professional opinion and I stand ready to defend it under the Constitution of the United States in any court of competent jurisdiction, Ideclare the foregoing to be true under penalty of perjury of the laws of the United States, Done, this 20" Day of June, 2016 John E, Wolfgram The foregoing INOV motion contains declared points, authorities and opinion by John Wolfgram. Counsel for Defendant adopts the same as evidence and argument for this motion for INOV and Findings of Factual Innocence on the grounds that the Petition Clause and its First Amendment command that Congress shall make no law abridging the right of petition, binding on the states through the 14* Amendment, so totally nullifies the application of Florida Statute 843.0855 to the facts of this case so as to render the prosecution without a lawful law upon which to prosecute and renders this court without a lawful law upon which pass any judgment other than dismissal; except in so far as this court can undo the unlawful damage it has done by issuing a judgment of not guilty over and against the existing judgment of the jury, and on the facts and relevant law, find that the defendant is factually innocent as the necessary implication of not having ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016a valid application of law before the court which necessarily implies under the clear facts of the case that all Defendant did within the meaning of the accusation was to file two petitions for redress of grievance with the clerk of the court; an act of peaceful petitioning of government for redress of grievances that is not and cannot be made a crime consistently with the First Amendment to the United States Constitution and federal law made pursuant thereto. Dated: June 20, 2016 Inger Garcia, Counsel for Defendant ‘Motion for JNOV With Finding of Factual Innocence, June 20, 2016