PROSECUTORS COMMIT CONTEMPT AND GET CAUGHT
By Barry Smith
Did you know that when a prosecutor calls you names in court papers that it
is contempt of court? I had one do this to me, researched the issue and
discovered that it was. City of Lakewood, Colorado prosecutor, Brandon
Marinoff wrote on a bail recommendation form the following: "Defendant may
be involved with an anti-establishment supremist group....City would object
to a PR bond, City recommends a cash bond due to defendants complete
disregard for the criminal justice system including police prosecutors and
anyone else....Defendant was uncooperative, belligerent, and down right
anti-social....As per defendant: He does not recognize the "jurisdiction of
the police" specifically LPD authority."
A second prosecutor, Leonard Levine, relied upon and made verbal
note to this form in open court the two different times he objected to the
return of my bail money. His acquiescence to the form indicated his
approval of it. He had an opportunity to investigate the facts regarding my
previous conduct, character, and reputation and instead chose to rely upon
the information written on the sentencing recommendation form.
I contended that the submission of the form was calculated to
corrupt the Municipal Court of Justice and prejudice the Court against
myself without provable grounds.
I also contended that the use of such scandalous allegations in an
attempt to prejudice me unduly in the courts eyes violated Colorado Rules of
Professional Conduct Rule 3.3(a)(1 & 4)
(a) A lawyer shall not knowingly: (l) make a false
statement of material fact or law to a tribunal; (4) offer evidence that
the lawyer knows to be false....(c) a lawyer may refuse to offer evidence
that the lawyer (that he/she believes to be false)...
reasonably believes to be false.
I had made several court appearances in which Leonard Levine was
present, should have dispelled any opinion that Mr. Levine had regarding my
alleged disregard for the criminal justice system. To my knowledge, I did
nothing in any appearance that would support the conclusions contained on
the sentencing form. The existence of the word "may" with regard to my
supposedly belonging to a white supremist group should have told him that
there might not have been conclusive proof to the statement.
The sentencing recommendation document may have impeded my exit from
jail and impaired my preparation of a defense, as well
as prejudicing Judge Elliott against me and played a role in his not
releasing me on my own recognizance or delayed the return of my bail money.
In my memorandum in support of my contempt motion and affidavit I
The accused invokes a provision in the Colorado Constitution Article
II Section 6 which provides that, "Courts of justice shall be open to every
person, and a speedy remedy afforded for every injury to person, property or
character; and right and justice should be administered without sale, denial
or delay." I remind this court that frozen into our law are those rights to
recovery for injury to person, property or character which existed at the
time of the adoption of our Constitution. Vogts v. Guerrette, 351 P.2d 851.
Four elements are necessary to hold one guilty of contempt of court
in procuring mandates, impairing and impeding plaintiff's rights and
remedies and causing him actual injury (an extended incarceration, loss of a
volunteer position with a church, and
loss of a place to live) etc., namely: First, a deceit on the court
(contained in the sentencing recommendation form); second,the plaintiff's
remedies and rights were impaired, impeded or prejudiced (I was not released
on personal recognizance); thirdly, that actual loss or damage (see above)
was cause plaintiff; and fourth, that he has no other remedy prescribed by
law for the recoupment of such damages (to the defendant/plaintiff knowledge
there is not another remedy). Advanced Piece Dye Works v. Zeller, 270
In a civil contempt proceeding, the same strictness in pleading is
not required that obtains in cases of criminal contempt. Hayes v. Hays, 22
Although the contempt has been committed technically "in the
presence of the court," it has been held proper for an informing officer to
bring the offense to attention of the court. McCarthy v. Hugo, 73 A. 778.
When it appears to the court by motion supported by affidavit that a
contempt has been committed out of the presence of the court, it may ex
parte order a citation to issue to the person so charged to appear and show
cause at a time designated why he should not be punished therefor. The
citation and a copy of the motion and affidavit shall be served upon such
person a reasonable time before the time designated. Rule 107(c) CRCP.
Defendant/plaintiff requests that this brief be served along with the
asseveration and motion.
As a rule, proceedings to punish for contempts committed out of the
presence of the court must be instituted by an accusation, pleading, or
affidavit presented to the court, setting forth the
fact constituting the contempt. Nye v. U.S., C.C.A.N.C. 113 F.2d 1006,
reversed on other grounds 61 S. Ct. 810, 313 US 33; Ex
Parte Rose, 202 P.2d 1064. Although this contempt was committed,
technically, in the presence of the court, in keeping with point four above
it is the duty of the accused to inform the court of its occurrence.
Especially if there is prejudice against the accused involved.
The purpose of the attached asseverations is to advise the court of
the acts or conduct alleged to be contemptuous, and to advise defendant of
the particular facts of which he is accuse so that he may meet such
accusations. In re Schulder, 221 P.565.
The nature of this action is civil although it would seem fair that
since the result of the sentencing form was the incarceration of the
defendant/plaintiff that the punishment should include some incarceration
should the accused be found guilty. This court has jurisdiction by virtue
of the fact that the alleged contempt was committed in its presence during
proceedings in the above stated matter.
The following acts constitute contempt of court: Obtaining court
orders by fraud or deceit. In re Topple, 102 N.W. 369, provided the other
party is prejudiced thereby is contempt, where such acts obstruct or tend to
impede the due administration of justice. Silverman v. Seneca Realty Co.,
276 N.Y.S. 466. The filing of scandalous, defamatory, irrelevant pleadings
constitutes an abuse of process and a contempt. State ex rel. Porter v.
First Judicial Dist. in and for Lewis and Clark County, 215 P.2d 279.
The sentencing recommendation form contains information that is
false, untrue, libelous, defamatory and contemptuous and could
only have been introduced to disgrace the accused. They are immaterial and
irrelevant as to have no proper place in any pleading. State ex rel. Porter
v. First Judicial Dist., supra.
In exercising control over its records, a court has power to protect
them from irrelevant, unimportant or superfluous papers, and to keep the
records free from stain and scandal not pertinent to the cause and
unnecessary to the decision. State ex rel. Hall v. Niewoehner, 155 P.2d
Defendant/plaintiff is not an attorney and it has taken
nearly three days to prepare these documents and the defendant/plaintiff
asks the court to take this into consideration when considering the reward
of a fine. Prosecutor Levine appeared at the next hearing after the
motion for the court to issue the show cause order was filed and said to the
court, "Your Honor, are we going to hear the contempt charges today?" I
responded, "Judge, I know of a case that says contempt proceedings are
supposed to be put off until the conclusion of the proceedings." I just
wanted the prosecutor to have a burr under his saddle a little longer. At
my trial I had a different prosecutor. I waited until sentencing to raise
the issue of contempt. The Judge acted like he didn't know what I was
talking about and then said, "Oh yes, I've read that, I don't believe you've
met the burden."
Two civil rights lawsuits and one extraordinary writ later
any other criminal charges against me have been dismissed by this same judge
and the City of Lakewood Police have me in their computer as a "person of
special interest." One Lakewood Policeman has let me go without charges
even though he alleged that I was speeding and I never showed him proof of
insurance and the plates on the car I was driving didn't match the
registration. I may be doing a commercial lien against the two prosecutors
for libel. I've become a much better legal writer since this brief.
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