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  • Legalbear
    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
    Message 1 of 1 , Jul 1 11:34 AM
      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
      N.Y.S. 487.
      In a civil contempt proceeding, the same strictness in pleading is
      not required that obtains in cases of criminal contempt. Hayes v. Hays, 22
      N.E.2d 971.
      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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