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Russell Magarity, sui juris
Wyoming
The Circuit Court of the Second Judicial District
Judge Wade E. Waldrip
Carbon County Wyoming
Rawlins Carbon County Courthouse,415 West Pine Street, Rawlins, WY 82301.
Voice: 307 324 6655. E-mail ccraw@courts.state.wy.us.
Prosecutor Joseph Cole, Rookie Jason Green, doing business as “THE STATE OF WYOMING”
v
Russell Magarity erroneously sued under the name of RUSSELL LYNN MAGARITY
in all caps.
Appellate Case Number: CR 2002- 5680
Trial court case number: CT 0112-0308
Document #5818 Version #2.
Notice of Motion
Defendant’s Demand/ Motion to vacate the judgment and dismiss the case for failure to provide due process ( a transcript) and for failure to comply with Wyoming Rules of Criminal procedure #12 and #50b or in the alternative provide a complete written transcript of the pre-trial conference and trial.
Petition for Writ of Error Coram Vobis.
Memorandum of Authorities.
Proposed Order
Proof of Service
Demand for court reporter.
Date: Tuesday June 17, 2003
Time: 1:30 pm - Driver must drive 350 miles to court.
Court: Courtroom of Judge Waldrip
Notice of Demand/Motion
To all parties and counsel: At the time designated in the caption or at such time as the court shall designate, I will demand that the court vacate its judgment of June 11, 2002, finding me guilty of speeding.
Russell Magarity _______________________ Saturday, May 31, 2003
Contents:
Demand/ Motion to Vacate Judgment and Dismiss this case
There is no verbatim record of the pretrial conference; this violates rule 12.
There is no verbatim record of the pretrial conference; this violates rule 12
Efforts to obtain an adequate tape recording.
More Detailed Statement of the Case.
There is no verbatim record of the pretrial conference; this violates rule 12.
Tables of Authorities cited herein:
Table of statutes and rules cited herein:
Table of Constitutional Provisions cited herein:
Common Law Concepts cited herein:
Argument/ Memorandum of Authorities
The Right to a Transcript is Fundamental
I cannot designate the point on the tape recording
The logical conclusion is that I am expected to produce my own paper transcript
There is no certification of any sort.
It is YOUR duty - not mine - to perform the function of preserving a record
The ONLY viable remedy is vacation and dismissal with prejudice
Jeopardy has attached. The Double Jeopardy clause precludes a retrial.
Double Jeopardy clause of the 5th amendment
Loss of Jurisdiction is not an issue.
Petition for Writ of Error Coram Vobis
Demand/ Motion to Vacate Judgment and Dismiss this case
for absence of transcript and tape recording of trial.
I demand that this court vacate its judgment of June 11, 2002, finding me guilty of speeding. Reason: You denied me a verbatim recording of the pre-trial conference at which you denied me a jury trial. You also denied me my right to pre-plea motions by prematurely entering a plea for me. Rule 12 requires a verbatim record of the pre-trial conference. You provided no such verbatim record. I demanded a court reporter as soon as Judge Waldrip walked in to the court at 1:30. You orally granted my demand. However, I don’t know the name of the court reporter and I have not received any transcript. My demand should have been duly recorded. This constitutes a denial of due process because:
I now have no complete record for the court of appeal.
I was unable to tell my lawyer exactly what happened in court.
He was not able to spot the issues.
You may construe this as a Petition for Writ of Error Coram Vobis.
You may construe this as a demand for a transcript.
You may construe this as a demand for post judgment relief.
In fact I thought that there was a court reporter there at my trial. I saw a woman operating what I thought to be a stenograph. I did ask for a court reporter. Judge Waldrip granted my request. Then this woman walked in and began taking notes. While perfecting my appeal I made several requests for a transcript. When I called the trial court of Judge Waldrip, the clerk told me that she sent the tape recordings - and everything - to the district court. When I telephoned the district court the clerk told me that there was no transcript. As requested, I sent 4 blank cassette tapes to district court. They send 3 cassettes and one unopened cassette back to my lawyer.
There is no verbatim record of the pretrial conference; this violates rule 12.
At the pretrial telephone conference you denied my right to a jury and you unconstitutionally entered a premature plea for me before I could therefore make no pre plea motions, such as a motion to suppress evidence, a motion to dismiss, or a demurrer ( or motion in lieu of demurrer).
Tape #1 side A contains the cases of other folks.
Tape #1 side B contains backwards recorded stuff until the very end. Then my case begins.
Tape #2 A is my case and is recorded clearly.
Tape #2 B is blank
Tape #3 A is my case recorded with a strong echo.
Tape #3 B is blank.
Rule 50b requires you to tape record the case and to provide a court reporter if I so demand. I did so demand a court reporter.
There is no other logical remedy. Re-trial is not permitted; jeopardy has attached. You denied me many other rights - but we will never know because you denied me the right to a record. I demand that you vacate your judgment and dismiss the case with prejudice.
- Russell Magarity ______________ Saturday, May 31, 2003
On June 11, 2002, I suffered a denial of my constitutional right to a jury trial. Speeding carries with it the possibility of jail. Whether or not the Supreme Court says I have a right to a jury, I would have made that an issue - but you foreclosed that issue by your failure to provide a record of the trial.
On the day of trial I demanded a court reporter, but that is not clear from the tapes. Judge Waldrip granted my request and in walked a woman who proceeded to make notes whenever I talked - and she appeared to be using a stenograph. However, that was my first trial. I now know that court reporters work in the well - and not at the clerk’s bench. Judge Waldrip denied all my motions. I can’t remember all of them. The court does not have a record. Judge Waldrip gave a judgment against me. Within seconds I began writing my notice of appeal. I filed my notice of appeal within minutes. Thereafter I made numerous attempts to obtain a transcript. The court sent 3 cassette tapes to me.
There is no verbatim record of the pretrial conference; this violates rule 12.
At the pretrial you denied my right to a jury and you unconstitutionally entered a premature plea for me before I could make pre plea motions.
Regarding the trial tapes:
Tape #1 side A contains the cases of other folks.
Tape #1 side B contains backwards recorded stuff until the very end. Then my case begins.
Tape #2 A is my case and is recorded clearly.
Tape #2 B is blank
Tape #3 A is my case recorded with a strong echo.
Tape #3 B is blank.
The court of appeal ruled against me prematurely. I had no record of the case. I waited for months
for a transcript. Under Griffin v Illinois
and its progeny (including MLB v SLJ 1996
) , you owe me a
transcript. Your court failed in more ways than one:
1. You failed to make a verbatim record of the pre-trial conference.
2. You failed to record my demand for a court reporter.
3. You failed to provide the docket notes - which would indicate who was the court reporter.
4. You failed to provide a paper transcript. I contend that the tape recording is inadequate.
I am now writing a petition to the Supreme Court of Wyoming - but why. This is a local problem. You violated the rules - although that was not so obvious until I found out that:
1. That woman apparently was NOT a court reporter.
2. The tapes don’t include the pre-trial conference (in violation of rule 12) or my demand for a court reporter.
3. Although you SAID that you granted my order for a court reporter, in fact you apparently did NOT bring in a court reporter - or maybe you did - we have no record.
You should take care of this problem and do the right thing. Some may say that this is an issue for the court of appeal. I disagree. The court of appeal can’t do much good without a record. This is a problem for the trial court.
Efforts to obtain an adequate tape recording.
My lawyer telephone the courts. He concluded that:
1. Your trial court clerk Loretta says that the court mailed its only tape recording to the district court.
2. District court employee Lee Bonnett says that he already made a copy of what he received from the trial court and he doubts that a re-taping will do any good.
3. I am not obligated to send you another batch of cassette tapes.
4. The ball is in your court.
5. An adequate record would reveal many constitutional infirmities.
More Detailed Statement of the Case.
This case is about overbreadth, and the denial of constitutional rights, but we never get to those issues because we have no record. On 14 October 2001, I received 2 traffic tickets from Highway Patrol Rookie Jason Green with only 14 months experience. I was on route 80 in my Dodge pickup pulling a horse trailer containing 4 horses. I was driving at a speed slower than the surrounding traffic.
Rawlins has a police-state mentality.
The antique prison is there.
The peace officer memorial is there.
The circuit court is there.
The district court is there.
The highway patrol station there.
It is a predatory town. They prey on drivers looking for a place to sleep. And if they don’t want to stop and sleep, then they can always give em a speeding ticket which they can do with unbridled discretion due to the excessively low speed limit which is broken by thousands of drivers every day. Such a speed limit is unconstitutional according the overbreadth theory of the Supreme Court. Overbreadth theory applies to impediments to travel. See Shuttlesworth v Birmingham (1965) 15 L E 2nd 176, 382 US 87, 86 S Ct 211. Here is a link to the Shuttlesworth case: http://www.lawyerdude.8m.com/5089.html
In his unanimous opinion for the court, Justice Douglas said the following:
“Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat. - Supreme Court in Shuttlesworth.
Paraphrasing Shuttlesworth I would say: A person may drive in excess of 75 miles per hour
on route
80 past Rawlins only at the whim of Rookie Green or any other of the resident highway patrol officers.
Overbreadth theory is explained at http://www.lawyerdude.8m.com/5409.html .
Rookie Green picked me out of a stream of motor vehicles moving at the same speed. The speed limit was 75 - same as in most western states.
Rookie Green did not Mirandize me. Miranda v. Arizona (1966) 384 US 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He thereafter used information obtained at this custodial interrogation to convict me. At one point when I began to write on the ticket, Rookie Green crouched down and yelled at me and appeared to be drawing his gun. He did not point his gun at me.
Rookie Green became angry when he could not find the VIN tag on the trailer. He gave me a ticket for no registration even though I showed him the registration papers and the newly purchased license plate for the new trailer. This registration ticket was subsequently thrown out by the Judge Waldrip on the judge’s own motion on the day of trial.
I inquired at trial as to whether Rookie Green saw the 18 wheeler that was passing me on the left during at the time when Rookie Green alleges that the speeding offense happened. Green denied seeing the truck next to me.
Many drivers drive faster than 75 miles per hour. A police officer can easily find speeders. This situation vests unbridled discretion in the police officer. In this case angry Rookie used his unbridled discretion to give a speeding ticket to me. The speeding law is overbroad and therefore unconstitutional. When a speed limit is set below the average speed of the traffic it is per se overbroad and I may vicariously assert the rights of other drivers. Ironically, under overbreadth theory, my actual speed is irrelevant! In order to prove its case the prosecution must prove the absence of a speed trap by a speed survey. Ironically if the survey reveals high speeds, then the overbreadth argument is triggered.
One ticket demanded that I appear in court on or before 11 January, 2001 at the court house in Rawlins. Keep in mind that 11 January 2001 had already passed when I received this ticket. The other ticket was not fully filled out. The court clerk altered the speeding ticket by changing the date to January 11, 2002. I protested in court. Nobody ever served an amended ticket/summons upon me. I appeared nearly a year after the impossible 11 January 2001 date set by Rookie Green. Prior to appearing, I requested a continuance. I live 330 miles from the court house in Rawlins. Judge Waldrip said by letter that I must pay $160 bond to have a trial. This is a common instrument of oppression: talk the out-of-towners into voluntarily paying a bond which will likely be forfeited. Without my consent, Judge Waldrip entered a plea of “not guilty” for me, thereby unconstitutionally depriving me of my right to pre-plea litigation of the legal issues. Judge Waldrip failed to advise me of most of me constitutional rights. Waldrip failed to apprise me of my right to pre-plea and pre-trial litigation and appeal of legal issues.
I requested 22 discovery items in 11 categories. The prosecution refused all but 9 items 4 categories. Judge Waldrip denied my demand to compel production of the 11 categories of items.
I demanded a jury trial. Judge Waldrip denied that request. I demanded the services of a court reporter. Judge Waldrip said “yes” to his demand. In walked a woman who appeared to be a court reporter. She sat at the clerk’s seat. I had never been to any trial before. I was not aware that a court reporter usually sits in the well. I saw this woman working a stenograph while I was talking; she seemed to be a court reporter. At trial I introduced a video recording of the arrest. I played the tape. I need another copy of that tape. Maybe my copy was taken as evidence. I don’t know.
The prosecution presented no evidence of a speed survey at trial.
I challenged the use of radar evidence because there was no expert testimony and no citation of any judicial recognition of the use of radar.
I suffered a judgment against me at the bench trial.
I began to write my notice of appeal within seconds of the end of the bench trial. I paid $60 to the court to permit my appeal.
I was eventually told that there was no court reporter - but nobody can say for sure. They only say that they usually don’t have a court reporter - and the docket seems unavailable.
I supplied the requested 4 cassettes in order to obtain a copy of the tape recording of the trial. The court returned 3 cassettes to me or my lawyer. We listened to the tapes to try to find my case.
There is no verbatim record of the pretrial conference; this violates rule 12.
At the pretrial telephone conference you denied my right to a jury and you unconstitutionally entered a premature plea for me before I could therefore make no pre plea motions, such as a motion to suppress evidence, a motion to dismiss, or a demurrer ( or motion in lieu of demurrer).
Tape #1 side A contains the cases of other folks.
Tape #1 side B contains backwards recorded stuff until the very end. Then my case begins.
Tape #2 A is my case and is recorded clearly.
Tape #2 B is blank
Tape #3 A is my case recorded with a strong echo.
Tape #3 B is blank.
Rule 50b requires you to tape record the case and to provide a court reporter if I so demand. I did so demand a court
I demanded a paper transcript. I received numerous run-arounds.
Eventually the court of appeal ruled on his case - without benefit of any trial record of any sort.
Upon inquiry the local court clerk responded that docket notes are in the court folder and that the court folder is not forwarded to the court of appeal. Once when I, after driving 330 miles to Rawlins, I asked to see the folder. The clerk told me that the court paralegal took the file home with her to Laramie. The court does not reveal the location of the clerk’s home; that makes the file unavailable. I could not have seen the file even if I had driven the extra 50 miles to Laramie.
I filed a petition for rehearing. The appellate court denied it. The court had no transcript of the trial and therefore could not possibly have rendered a valid opinion.
Tables of Authorities cited herein:
Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585. Here is a link to Griffin.
http://www.circuitlawyer.8m.com/griffin.html
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 7
Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585.
Here is a link to Griffin. http://www.circuitlawyer.8m.com/griffin.html 1
2 3
M.L.B. v S.L.J. (1996) 519 US 102; 117 S Ct 555; 136 L Ed 2nd 473. Litigants are entitled to a free transcript
even in some civil cases.
1
Miranda v. Arizona (1966) 384 US 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. 1
Shuttlesworth v Birmingham (1965) 15 L E 2nd 176, 382 US 87, 86 S Ct 211.
Here is a link to the Shuttlesworth case: http://www.lawyerdude.8m.com/5089.html 1 2
Table of statutes and rules cited herein:
Rule 12 requires a verbatim transcript of the pre-trial conference. The court failed to comply with this rule.
1 2 3
Rule 23a(3) gives me the right to a jury trial. 1
Rule 55b of Wyoming rules of criminal procedure gives me the option to demand a court reporter which I did. It also gives me the right to a tape recording which you did not supply. 1
Statutes 31-5-301. Sets 75 mph speed limit. 1
Table of Constitutional Provisions cited herein:
Double Jeopardy clause of the 5th amendment precludes retrial after first witness is sworn unless waived.
1
Common Law Concepts cited herein:
Equitable Tolling stops the running of the clock until you provide me with a transcript. 1
Overbreadth theory. See Shuttlesworth case. 1
Argument/ Memorandum of Authorities
I was accused of violating Wyoming’s speeding law which is as follows:
31-5-301. Maximum speed limits.
(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.
(b) Except when a special hazard exists that requires lower speed for compliance with subsection (a) of this section, the limits specified in this subsection or established as otherwise authorized shall be maximum lawful speeds and no person shall drive a vehicle on a highway at a speed in excess of maximum limits:
(I) Twenty (20) miles per hour when passing a school building, or the grounds thereof, or a school crossing if appropriate signs giving notice of that limit are erected;
(ii) Thirty (30) miles per hour in any urban district;
(iii) Seventy-five (75) miles per hour on interstate highways.
My alleged crime carried a penalty of jail time - up to 6 months. Therefore it is “criminal” and the rules of criminal procedure apply.
31-5-1201. Violation of provisions to constitute misdemeanor; penalties.
(a) It is a misdemeanor for any person to violate any of the provisions of this act or rules and regulations authorized under this act unless the violation is by this act or other law of this state declared to be a felony.
(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this act or rules and regulations authorized under this act for which another penalty is not provided shall:
(I) For a first conviction be punished by a fine of not more than two hundred dollars ($200.00), by imprisonment for not more than twenty (20) days, or both;
Rule 23a(3) gives me the right to a jury trial.
Rule 50b of your rules of criminal procedure requires you to provide me with a court reporter if I demand one - which I did. It also requires you to provide me with a tape recording. Here is what the rule says:
Rule 55. Court reporters; recording of proceedings.
(a) In the district court, the court reporter shall report all testimony and all proceedings held in open court including but not limited to voir dire, opening statements, motions and final arguments, as well as conferences with the presiding judge in open court and in chambers. Informal discussions, informal instruction conferences and pre-trial conferences shall be reported when requested by a party.
(b) In circuit court and municipal court, all testimony and all proceedings held in open court including but not limited to voir dire, opening statements, motions and final arguments, as well as conferences with the presiding judge in open court and in chambers, shall be recorded by electronic means. Informal discussions, informal instruction conferences and pre-trial conferences shall be recorded when requested by a party. At their own expense, any party may have proceedings reported by a court reporter. (amended June 30, 2000, effective July 1, 2000; amended December 2, 2002, effective January 6, 2003)
The Right to a Transcript is Fundamental
The right to a transcript is based on fundamental due process. Authority: Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585. Here is a link to Griffin. http://www.circuitlawyer.8m.com/griffin.html The importance of a transcript was reaffirmed by the Supreme Court in M.L.B. v S.L.J. (1996) 519 US 102; 117 S Ct 555; 136 L Ed 2nd 473. Here is a link to MLB http://www.circuitlawyer.8m.com/mlb.html
I cannot designate the point on the tape recording
I have no way of directing the court of appeal to a particular place in the tape recording. I have no inch meter on my tape recorder. I strongly doubt that the court of appeal will listen to a tape recording. As practical matter, there is only one copy. Will they pass it around?
You failed to record pre-trial conference pursuant to rule 12.
Had we a record of that conference we could challenge you having entered a plea for me unconstitutionally. However, we don’t have such a record. The absence of such a record precludes a fair review of this case. Rule 12 requires a verbatim record of this conference.
The logical conclusion is that I am expected to produce my own paper transcript
Am I expected to make my own paper transcript of this tape recording? I cannot understand that portion of the tape that is recorded backwards. Another portion of the tape is recorded with an echo on a 1 second delay.
There is no certification of any sort.
There is no certification that this is a correct recording
My lawyer talked with the various clerks in an attempt to obtain a better tape. The clerk’s simply wanted to avoid the issue - which brings me to my point: This tape recording system places more obstacles in my path. I should not be required to exhaust all my effort and money merely to obtain a transcript. The primary functions of a court are:
1. Resolving disputes.
2. Keeping records of documents and transcripts of proceedings.
It is YOUR duty - not mine - to perform the function of preserving a record
You have failed your primary duty to keep a record of the proceeding. If I had a record I could appeal this case. You produced no record. Therefore you have precluded me from doing an appeal.
The ONLY viable remedy is vacation and dismissal with prejudice
What other remedy could there be? Do you want to retry me - this time with a court reporter? That is unacceptable. I demanded a court reporter last time. I remain unconvinced that there was no court reporter in my original trial.
Jeopardy has attached. The Double Jeopardy clause precludes a retrial.
Jeopardy attaches when the jury is sworn - but you denied me a jury. Jeopardy otherwise attaches when the first witness is called. Trying me again would constitute double jeopardy in violation of the double jeopardy clause of the 5th amendment
Double Jeopardy clause of the 5th amendment
“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” - Double Jeopardy clause of the 5th amendment
Under the concept of Equitable Tolling, the running of the clock stops while you are preparing my transcript and/or tape recording. You may not use the tempting argument that I had only 90 days (or whatever) to take steps to obtain a new tape recording. The ball was in your court and the clock was stopped until you produced an adequate transcript. The ball remains in your court to produce an adequate tape recording and/or transcript depending on your interpretation of rule 50b and my demands in this case. The action of the court of appeal was premature. They had no way of knowing.
Loss of Jurisdiction is not an issue.
The court of appeal has ruled. That does not preclude you from vacating your judgment and dismissing the case with prejudice.
Petition for Writ of Error Coram Vobis
The Writ of Error Coram Vobis lies to deal with issues of fact that could not have been known by the court at the time of trial. Nobody knew that the tape recorder was not working. However the burden lies on the court. I demanded a court reporter to preclude just this problem. You orally stated that you granted my request for a court reporter. Now the implication is that you did not grant my request. The remedy is the same whether you call it a writ of error or whether you simple recognize is as a violation of your own rules of court.
- Russell Magarity
The judgment is hereby vacated. The clerk is directed to refund all fees, costs, fines, and other money paid by the defendant is this case. This case is dismissed with prejudice.
______________________________ Date:
Judge Waldrip
Proof of Service
I, Douglas Palaschak, declare the following under penalty of perjury: On 31 May 2003 I mailed this Document #5818 to the people in the following service list. I mailed the letters from Jackson Wyoming postage prepaid, first class. I delivered a copy personally to Russell Magarity.
____________________ Douglas Palaschak Saturday, May 31, 2003
Attorney Joseph Cole
Box 1146
Rawlins WY 82301
Clerk of District Court
Box 67
Rawlins WY 82301