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The Great American Dog Trial Vendetta!
By P. Remington Adams
COPYRIGHT (C) 1991 BY FULL DISCLOSURE. ALL RIGHTS RESERVED.
Several years ago, one Clayton Longacre was present at the scene of a heinous
crime that was to result in a notorious jury trial known to the bureaucrats
in the 9-1 District Courthouse in Kalamazoo County, Michigan, as the ``Dog
Trial Vendetta''.
Now, this might require a bit of explanation for the uninitiated. You see,
any time someone is charged with a violation of animal control ordinances our
public servants call it a ``dog trial''; when someone pleads ``not guilty''
and asks for a jury trial it becomes a ``vendetta''. I concur that vendetta
is the appropriate term; however, I assert that it is the judicial work group
(clerks, officers, prosecutor, and judge) and not the defendant which turns
the process into a vendetta.
The judicial work group is less interested in the innocence or guilt of the
defendant than it is in seeing that the case is disposed of quickly and
efficiently. To expedite this, the defendant is expected to take the citation
``to the teller window downstairs'' and pay the fine without question. That
is the quickest and most profitable way to dispose of these cases.
The Honorable Judge ``Jessie'' James Presiding:
The dog vendetta came to trial in the spring of 1989 with Judge Donald James,
one of the great mediocrities of our time, presiding. I have often had
occasion to wonder whether Judge James is related to the infamous Jessie
James. Judge James sometimes engages in unarmed robbery, attempting to steal
justice away from those who choose not to hire an attorney and proceed
instead as pro se litigants.
There is a bureaucratic mentality that pervades the 9-1 Courthouse, hovering
in the air like the stench around a slaughter house. This mentality is
characterized by a lack of social conscience, which results in an emphasis on
cost efficiency and expedience, rather than on justice.
The criminal justice system in Kalamazoo has acquired an assembly line
mentality with respect to civil infractions and misdemeanors. On this
assembly line, the attitude is that only a trouble maker would have the
audacity to plead ``Not Guilty''; only a radical, embarking on a personal
vendetta, would request a jury trial. These people are obviously attempting
to harass the court and deprive it of cost efficiency. Anyone who won't plea
bargain is considered an unreasonable person or a lunatic.
What Is A Reasonable Person?
According to this demented sense of justice, which I refer to as ``slaughter
house logic'', a reasonable person is expected to simply pay the fine or plea
bargain. Rational, reasonable Americans are not supposed to be concerned with
liberty, justice, the constitutionality of laws, innocence and guilt, nor
even the preservation of their own good names. A reasonable person is
expected to assess the situation in the short term and follow the course of
least immediate expense. The fines are low enough that it would be more
expensive to hire an attorney.
Unreasonable people are herded into the courtroom like sheep, along with
dozens of other people awaiting arraignments and court hearings. Typically
the court has a session in the morning and another in the afternoon. As many
as a hundred cases may be scheduled collectively by means of group
appointments. (For example, sixty people may all be given 9 a.m.
appointments). Consequently people may sit for hours, all day or longer, in
order to eventually stand in front of a judge for five minutes or so.
Obviously, if you consider your time to be worth even the minimum wage, it is
cheaper to pay the fine or plea bargain than it is to submit to hearings,
more hearing, legal fees and the whole trial process. The system is designed
to encourage guilty pleas in exchange for allowing the defendant to get on
with the more important things in their lives in the shortest time possible.
Justice Or Cost Efficiency: Which is The Reasonable Expectation
According to ``slaughter house logic'', people who place value on innocence,
liberty, legal justice, and the constitution, people who are opposed to the
inhumanity and injustice of assembly line justice, are considered
unreasonable, irrational people. These priorities suggest to the proponents
of assembly line justice a possible emotional or mental imbalance, because it
is more efficient, expedient, and cost effective for everyone concerned, if
the defendant presents a quick and inexpensive guilty plea. The court makes
its money, the lawyers make their money, and the defendant saves a great deal
in time, grief, and legal fees.
Trouble makers, radicals, and other irrational people who insist that the
system render justice and protect civil liberties are seen as harassing the
court by wasting time and money that could better be used to rapidly and
profitably process the cases of more reasonable people. Since the radicals
don't hire attorneys they are also seen as harassing the bar association and
stealing food from the mouths of attorney's little children.
If not for the basic apathy of the average U.S. citizen, this system could
not exist. A few hours spent in a court room will demonstrate that the
innocent frequently plead guilty because it's easier. None-the-less,
prosecutors are often frustrated by the naive inability of these people to
lie properly about their guilt for the court record. In order to obtain an
acceptable admission of guilt for the court record, the innocent often have
to be taken out of court and coached by a prosecutor or their attorney in
order to commit perjury properly.
The District Judge's Interest In The Matter
Judge James mentioned during the proceedings that it costs at least $500 per
day to operate the court. Judges must maintain an awareness of cost. If their
court isn't cost effective the state may decide that the inefficient judge is
not earning his or her $90,000 per year salary. In addition, in Michigan, a
small percentage of the each fine levied goes into the judicial pension fund.
The more expediently the cases are handled, the more money is sent to the
fund.
Origins of the Dog Trial Vendetta
May 1987. County law enforcement officials have been keeping a house located
on Glendale Street in Kalamazoo under observation for days. What heinous
crime against the state is in progress there? What infraction of enormous
social consequence has come to the attention of the county?
Two female springer spaniels are alleged to be harbored in that house. These
scalawags are without current (1987) Kalamazoo County dog licenses!
The dynamic growth industry that is Kalamazoo law enforcement is about to
launch a fervent attempt to bring justice to the vicious criminal who is
harboring the spaniels. He is clearly a major threat to the public welfare
and to the criminal justice process itself!
This man not only harbors illegal dogs but, a matter of much greater
importance, he will have the audacity to go on record in district court to
plead ``Not Guilty''; he will have the temerity to refuse to plea bargain;
and he will have the gall to demand an inexpedient and costly jury trial!
This trouble maker is clearly intent on engaging in a full blown personal
vendetta.
The Real Culprit was not Apprehended and is Still at Large
What the County Animal Control Officers didn't know was that I was living at
the house at Glendale Street. Clayton owned the house, and several other
properties as well. He did stay at the house occasionally, but he was in the
process of relocating to Washington to attend law school near his fiancee.
I was house sitting for Clayton and running a tree service, using his house
as an office. Since he was moving, Clayton had to find homes for Snoopy and
Sammy, his AKC registered springer spaniels. I paid $100 for the dogs in
April, but the dogs hadn't gotten their state required licenses yet. I had
frequently asked Snoopy and Sammy to get their licenses, but they just never
got around to it.
I had noticed the PRK animal control officers sneaking around the house
earlier in the week (May 13, 1987) so I took the dogs to the company garage,
which is in a quarry out in the country. I was also careful not to park in
the driveway or in front of the house where my car would be associated with
the occupants of the house and I could be traced by my plate numbers.
I should have gotten the ticket, but I am too intelligent to answer the door
when the brown shirted, fascist, animal control officers come visiting. The
code says that, even if your dogs have gotten their licenses, if you don't
have them ready to show to the animal control officer at the time you are
asked to, you can still be ticketed for ``failure to show.'' Now, my mother
didn't raise a fool. My dogs had not yet gotten their licenses. I was,
consequently, not going to answer my door to talk to the dog gestapo. As far
as I'm concerned, the ``animal control officers'' are public welfare bums
with badges--social parasites on the dole--whose sole purposes are to raise
revenue and to bother citizens.
I don't approve of preventive law. I think it would be better to require dog
owners to have tags and shots for their dogs. If a dog actually bites
someone, is running loose, or damages property, and if the dog doesn't have
tags and/or shots, then it becomes appropriate to pick up the dog and cite
the owner for a real crime with a real victim and real injury or damage.
Unfortunately, this kind of rational law would raise fewer revenues and
provide fewer high paying jobs for the friends, cousins, and political
lackeys of the bureaucrats and politicians of Kalamazoo county.
The Scene of the Crime
On Saturday, May 16, 1987, Clayton pulled into the driveway at the house on
Glendale Street and a county animal control officer pulled in behind him,
blocking his way out. As a highly trained and skilled law enforcement
observer, the animal control officer concluded that because Clayton was in
the driveway he must be a resident, and he must, therefore, be the owner of
the dogs (who were no longer in residence).
Clayton requested that the officer move her truck, explaining that he was
late for an appointment.
``I'd like to talk to you about the dogs.'' the officer replied.
``What dogs?'' Clayton asked.
``We can do this the easy way or the hard way.'' the officer said.
``Do it any way you like, just move the truck so I can get out of here.''
Clayton responded.
Acting on instincts honed by years of professional justice experience, the
officer determined that Clayton was the mastermind behind this heinous plot
to harbor dogs without a license. It wasn't really necessary to verify that
there were indeed dogs in the back yard. Nor was it necessary to knock on the
door, or to talk to the neighbors, to see who actually lived there. Why
bother to check with the post office or consult the phone book about who was
living at that address? After all, the crime had been solved by trained
observation combined with keen deductive reasoning and logic.
The man was obviously guilty. When a highly trained animal control officer
asked him a question he had refused to talk, and then had asked her to get
out of his way because she was blocking his driveway. Consequently Clayton
was traced through his vehicle plates, and received through the mail a
citation for ``failure to show a license upon request.''
Clayton presented a copy of the bill of sale to the prosecutor to prove that
he had sold the dogs. The prosecutor assured Clayton that the charges would
be dropped and that it would be unnecessary for him to attend the pre-trial
conference. As it happened the charges were not dropped that day. The
prosecutor misplaced the bill of sale. A bench warrant was issued against
Clayton Longacre for ``failure to appear.''
In February, 1989, Clayton returned to Michigan to clear up some personal
matters and to finish his senior thesis for Kalamazoo College. While he was
here, he was set up to attend an informal, late afternoon meeting with the
township police regarding a zoning dispute. When he appeared for the meeting,
Clayton was arrested on the bench warrant for failure to appear. The
arresting officer requested a $200 cash bond, and Clayton's ability to obtain
bail was hampered by the arrival of the end of the work day. Fortunately,
Clayton was able to reach, at home, a sympathetic judge who ordered his
release on personal recognizance after only 30 minutes in jail.
Prosecutorial and Judicial Indiscretions
The case had been assigned to a new prosecutor. Clayton refused to plea
bargain, complaining that the prosecutor's office had lost the sales receipt
and other exculpatory evidence. Judge James, who was once allegedly voted the
worst judge in Kalamazoo County by the Kalamazoo Trial Lawyers Association,
showed no interest in the lost evidence.
Clayton, who was unemployed, filed a motion for court appointed counsel.
Judge James stated that he doubted that the state would seek incarceration
upon conviction, and on that grounds he denied Clayton counsel.(1)
Clayton also requested that the court advise him of his rights and assist him
in defending himself (called a ``motion for rights sua sponte''). Judge James
also denied this request. Judge James makes a practice of denying counsel and
then holding the defendant to the standards of an attorney.
The inexperienced new prosecutor took a dislike to Clayton and refused to
dismiss the case. Had a more fair minded judge, such as Judge Long, been on
the bench the prosecutor would have had no alternative, but Judge James
dislikes pro se litigants--so Clayton Longacre was going to trial.
The Infamous Dog Trial Begins
In April 1989 the ``dog trial'' of Clayton Longacre began with the
questioning of the jurors (voire dire). Two or three of the jurors were
removed for prejudice when Clayton asked:
``I wouldn't be here today if I hadn't done something wrong, would I?'' Most
of the jurors agreed initially. A few adamantly and tenaciously maintained
that opinion after being coached by Judge James. The Judge informed them that
their point of view was prejudicial and incorrect, and explained to them the
concept of innocent until proven guilty. He then asked them again, and some
of these honest folk could not be convinced to lie about their feelings in
order to stay on the jury.
Another juror was asked whether, given conflicting testimony from an animal
control officer and a citizen, all other things being equal, he would give
preference to the officer. He agreed that he would--because his dad was an
animal control officer. When coached by Judge James and asked the question
again he maintained his original answer.
Now the ``voire dire'' got down to the heart of the case:
Mr. Prosecutor: ``Would anybody here believe that a police officer is being
unreasonable if he pulls a driver over and asks to see his license,
registration, and proof of insurance?''
The jury agreed that this was reasonable.
Mr. Longacre: ``If you were sitting on a park bench in the middle of a park
and an officer walked up to you and asked to see your drivers license,
vehicle registration, and proof of insurance, would you consider that
reasonable?''
The jurors were primarily bewildered by the question--but they would not
forget it, and it was to set the tone for the ensuing trial.
The Defense Surprises the Prosecutorial Work Group
The prosecutor and his accomplice, Judge Donald James, apparently assumed
that Clayton was going to argue that the dog laws are unconstitutional or
unfair. Clayton's defense was, however, much simpler than that. He had a
three point defense:
1) He didn't live at Glendale Street. 2) He didn't own the dogs at the house
on Glendale Street. 3) There were no dogs at the house on Glendale street
on the day of the incident.
Since the crime of which Clayton is accused is ``failure to show a license
upon request'' it is interesting to note that the prosecution neglected to
ask the officer whether she had ever actually asked to see a license. She
hadn't.
Once the prosecutor had rested his case, Clayton moved for a directed verdict
because of the prosecutor's failure to present a prima facie case. He had no
evidence or testimony that the officer ever requested to see a license. Judge
James denied his motion on the grounds that the lack of evidence was a
question of fact for the jury to decide. (One wonders how a jury is to decide
facts when none are in evidence.) As the defenses first witness I testified
that I was living in the house at Glendale in May of 1987 and that I owned
the two dogs that were there in May of 1987. I was asked whether the two dogs
that were there on May 16, 1987, were mine. I testified that there were no
dogs there on May 16, 1987. When I was asked whether I was harboring dogs
without a license I invoked my right to remain silent under the 5th and 14th
Amendments to the U.S. Constitution.
Judge James Loses His Composure
``Oh my God! Get the jury out of here!'' exclaimed Judge James. Both the
prosecutor and the judge were already flustered by how well the defense was
doing, but this was too much!
``Did you know that this man was going to take the fifth amendment?''
demanded the judge.
``Not for sure. He told me he might, but I didn't know for sure.'' replied
the defendant.
``You can't do this! If you were a lawyer, I'd have your license!'' exclaimed
the judge.
The judge and the prosecutor conferred. They were afraid that the jury might
be unduly influenced. The prosecutor asked for a contempt citation and
special instructions to the jury to ignore the statement. The judge declared
a mistrial and sanctioned the defendant $192 in court costs.
I was upset by the rude and prejudicial manner in which this inept judge was
pushing Clayton around, so I told Clayton to notify the court that I was
prepared to waive my right to silence.
Meanwhile, Judge James gave a long diatribe about how my outrageous
invocation of my constitutional rights, coupled with Claytons objections to
being denied due process and to the loss of the exculpatory evidence by the
prosecutor, had irrevocably prejudiced the jury. At the end of the judges
rantings, Clayton informed the court that I was now willing to waive my right
to silence.
James turned red in the face, his lips thinned, his voice raised. He didn't
know what to do. His basis for alleging a mistrial had just been stolen away
from him. How could the jury be prejudiced if the trial resumed and I
answered the question? The prosecutor brought up a concern about double
jeopardy.
After a short break to recover himself, Judge James stated that if either
Clayton or I said a single word he would throw us both in jail for contempt.
While Clayton and I were both angered by the constant verbal abuse and
prejudicial behavior of the court we managed to just smile at him and walk
out.
The Judge rescheduled a new trial for June, 1989. Then the clerk tried to get
Clayton to to pay the fine or make arrangements to pay it, to no avail, of
course. Previously the judge had refused to make the prosecutor provide
evidence that he had ordered at a motion hearing,because a written order was
never entered. Clayton threw the judges own words back at him:
``You stated the court lives and dies by its written orders...write it up so
I can appeal it. You have no lawful authority to assess me court costs.''
After we had calmed down we realized that we had won. James had no authority
to assess us court costs, and we were fairly certain that the double jeopardy
clause to the 5th amendment applied to our case. The double jeopardy clause
provides that no one shall be
``subject for the same offense to be twice put in jeopardy of life or
limb....''
The Double Jeopardy Clause to the Fifth Amendment of the U.S. Constitution
The trial does not have to be complete for the double jeopardy clause to be
in effect. In a jury trial the clause may attach from the moment the jury is
empaneled and sworn.(2) In a bench trial it may attach the moment the first
witness has been sworn.(3)
When a trial is stopped by a motion of the prosecution or of the court, the
Perez test(4) is applied to determine whether double jeopardy applies to bar
further prosecution. If the case is stopped for ``manifest necessity''(for
instance the death of a juror or the judge) there can be a retrial.
When there is reason to believe that the prosecution or the court is using
the superior resources of the state to harass the defendant or to achieve a
tactical advantage, double jeopardy then attaches.(5)
A Case of Prosecutorial Hostility
After declaring a mistrial, the judge suggested that the prosecutor dismiss
the case via ``nolle prosequi''(that is, as a matter of discretion with no
explanation). The prosecutor, however, was determined to go for a new trial.
Clayton and I decided to go on the ``war path''. We began sending letters of
complaint to the attorney grievance committee and to the judicial tenure
commission. We wrote press releases. We prepared a ``Motion to Disqualify
Judge James''. We prepared an appeal, which we planned to file as soon as
James entered his mistrial order. The prosecutor and Judge James capitulated;
the prosecutor's dismissal was signed and entered the same day that we began
filing motions.
Victory!
Clayton Longacre had thwarted the state! He had out fought the nefarious
interests of the collectivist ``new class''(6) and had bested the judicial
work group. To this day, Judge James has not entered a written order to
assess Clayton costs and fees for the mistrial.
Clayton is currently looking for a civil rights attorney to file suit for
abuse of process. Most attorneys aren't interested in these cases because
the damages are not significant enough to make their efforts profitable. If
necessary, Clayton will file pro se. Why? Because there is always the
possibility of a substantial jury award and, in any case, our public servants
need a reminder. It will cost them a lot of money and may effect their
insurance rates adversely.
In this situation a pro se litigant simply can't lose. It is very inexpensive
to file a civil suit. If he wins, Clayton gets compensation and damages. If
he loses, the animal control people will have incurred large legal fees and a
great deal of work in answering depositions and interrogatories--thus
learning an expensive lesson.
Who says you can't beat city hall? Clayton and I do it all the time.
There is nothing quite like issuing subpoenas to bureaucrats and forcing
them to answer your questions at a deposition hearing. It's fun sitting
in a position of superior authority and watching them squirm. Try
it, you'll like it. It can even be profitable on occasion. Is this
a great country or what? Enjoy!
FOOTNOTES:
1. Scott v Illinois, 440 US 367 (1979). If the state waives incarceration as
punishment, an indigent defendant can be denied appointed counsel.
2. Illinois v Somerville, 410 US 458, 35 LEd(2d) 425, 93 SCt 1066 (1973)
3. Serfass v U.S., 420 US 377, 43 LEd(2d) 265, 95 SCt 1055 (1975)
4. U.S. v Perez, 22 US (9Wheat) 579, 6 LEd 165 (1824)
5. Arizona v Washington, 434 US 497, 98 SCt 824, (1978)
6. Sociologists often refer to the managerial administrators, the public
sector, government employees, etc. as the ``new class''. This is the rapidly
growing parasitic sector of the work force that is paid high wages out of
public funds and in return produces nothing of significance or value.
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