5899 Lawyerdude: Attorney Douglas Palaschak 805 815 3599
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Phyllis Burfeindt
74 Pancake Hollow Road, Highland NY 12528.
845 691 7985
In pro per with assistance of Lawyerdude@Adelphia.net
This brief is available in pdf format at www.lawyerdude.netfirms.com/5899.pdf but may choke your machine.
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Town of Ulster. Court of non-lawyer Paula Leonard
Town Hall, Route 209, Lake Katrine, New York 12449
Jerry Van Loom, Town of Ulster, and James Kilfoyle,
doing business under false color of law as
“The People of New York”,
Fake Plaintiffs
v
Phyllis Burfeindt, Sui Juris,
Innocent Defendant
UPD Case# UL-00476-03
Current Trial date:
Document #5899 version 1.4
This is the 2nd defense document.
Demurrer and Demand for immediate dismissal.
Notice of Defendant’s concurrent Demands as follows:
I make no waivers. Any oral waivers are void.
Demand for effective assistance of counsel.
Demand for judge who has passed the bar - and not a commissioner.
Demand for copy of Judge’s oath. Demand for court reporter.
Demand for prompt (within a week) written transcript of every hearing, past, present, and future (as they become available)
Demand for jury trial. Demand for Discovery.
Demand for indictment by grand jury. Demand to suppress the writing.
Demand for full panoply of criminal due process procedures and rights.
Demand for proposed jury instructions a month in advance of trial.
Notice of Concurrent Motions to be filed as follows:
#5902 Motion to Suppress Evidence. Ready to file August 4.
#5904 Discovery Motion including Brady Demand.
#5905 Demand for Re-arraignment.
#5906 Dombrowski Motion.
#5907 Quo Warranto Motion.
#5908 Overbreadth Motion.
#5909 Demand to Strike Hearsay statement of James Kilfoyle
#5910 Gerstein Motion.
#5911 Motion to Dismiss.
#5912 Motion to Continue
Supporting Declarations. Memorandum of Law.
Proof of Service by fax.
Date: Thursday, August 28, 2003.
Time: 9 a.m.
Court: Courtroom of the Presiding Judge
Warning! Notice of Demurrer. Demand for Dismissal within 48 hours.
To Prosecutor du jour, all parties and counsel: Be advised: At the venue indicated in the caption above or at such other time as the court may designate, I will demur as more fully set forth herein. I now demand that you dismiss this bogus case. If I have not received word of dismissal by 4 pm on Thursday 7 August I will file a federal complaint on the following day. I have enlisted legal help from California and other states via the patriot network. You are warned! ________________________ Phyllis Burfeindt.
Table of Contents:
Litany of Concurrent and Continuing Demands and Discovery Demands
Cases and other Authorities of Law cited herein:
Statutes, Regulations, City Ordinances cited herein:
Scholarly Treatises Cited herein:
Constitutions, Magna Charta, and Ancient sources of law cited herein:
Proposed Schedule of Action, Motions, and Hearings
Declaration of Attorney Douglas Palaschak regarding traffic and minor cases.
Points and Authorities Supporting this Demurrer
Demurrer is a common law right. If statutes forbid it then the statutes are unconstitutional.
Elements of the crime of impersonation are not alleged in the complaint and that justifies demurrer.
The element of “intent to obtain a benefit or to injure or defraud another” is missing.
The element of “intent to defraud, deceive, or injure another” is missing.
It is not “deceit” to finesse around an unconstitutional inquiry.
The 5th amendment makes the requirement of identification unconstitutional
The police are now estopped from using Phyllis’s writing against her.
The police may not charge the almost lesser included offense.
Either strike the conclusory statements or include the factual description of the “benefit”
The statutes must follow the common law and they do here
Text of the statutes used to facilitate this malicious prosecution
New York Penal code section 190.25 Criminal impersonation in the second degree.
New York Penal code section 170.10 sub 2 Forgery
The Motion to Strike, if granted, removes all evidence in the case.
Memorandum of Law concerning the Clear and Present Danger test
Memorandum of Law regarding Overbreadth as applied to lawyers and other humans.
Subsection 2 of the forgery statute is overbroad and unconstitutional.
My demand for a transcript and due process at every stage of the proceeding.
On Monday night 14 July 2003 at about 11:55 pm , I, Phyllis Burfeindt and my new husband Vinnie Ljuljdluraj drove to Hannaford’s Super Market on Ulster Avenue in Kingston. Vinnie drove my car. I waited in my car while Vinnie returned some empty bottles to the night clerk who was alone in the store. Vinnie and the clerk got into an altercation. I first knew about the altercation after we had driven a half mile down the road. Soon a police car pulled us over. Soon 3 other police cars arrived. A police officer came up to the window and asked my husband some questions. The manager then came and identified my husband.
I was not a party to the altercation and did not witness it.
At the time I was vested with a privilege not to testify against my spouse.
At the time I was vested with a 5th amendment right to refuse to testify against myself.
At the time I was vested with a 1st amendment right to remain silent.
At the time I was vested with the right to refuse to explain why I declined to testify.
At the time I was vested with a Miranda right to be informed of my rights.
At the time I was vested with a 5th amendment right to my car.
At the time I was vested with a 6th amendment right to effective assistance of counsel.
At the time I was vested with a Griffin right to due process of law at all stages of this prosecution. Authority: Griffin v Illinois (1965) http://www.circuitlawyer.8m.com/griffin.html 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055
Police Officer Kilfoyle told me to get out of the car. He frisked me - feeling up my breasts lasciviously even though there was no reason to expect me to have a weapon. This was not a robbery and I could not logically have been a suspect. They searched my car. I told Kilfoyle that I did not see what happened. I had no identification card with me. Kilfoyle told me that he would take me to jail if I did not tell them who I was. In so doing, Kilfoyle violated my constitutional rights in a custodial interrogation. All my words and writings from thence forth are fruit of the forbidden tree and must be stricken. Mistakenly fearing that I had a warrant out for me, I told police that my name was Jackie Miller. She is my sister. She is happy to have me use her name. She loves me. She would want me to use her name if it would help me. Still they did not let me go. Then the police towed my car away and took me into custody. Kilfoyle wanted me to come down to the station to sign a statement. I have no obligation to tell them anything. I saw nothing. Even had I seen something I am vested with spousal privilege against testifying. I have a right to remain silent. They lied to me about that and gave me no Miranda warning. They locked me in the back of a police car and drove me to jail against my will.
The police did not ever advise me of my rights.
Officer James Kilfoyle and other police with guns conspired to detain me against my will at the police station at the Ulster police station at Lake Katrine from 12:20 midnight until 1 a.m. Police conducted a custodial interrogation which was not much because I knew nothing about what happened in the store; they demanded that I make a written statement under penalty of perjury. They told me that they would not let me leave until I gave a declaration in writing. This statement was coerced during a custodial interrogation. Fraud vitiates the consent and fraud vitiated the penalty of perjury here. I could have left at 1 a.m. but the police said to wait until 2:30 because they might drive me home. Then at 2:30 Kilfoyle and another officer told me that they changed their mind and told me that they would not give me a ride. Kilfoyle offered to let me sleep at the police station; I feared another search and did not care to get felt up by Kilfoyle or his friends again while sleeping at the police station. Kilfoyle wanted me to sleep on two chairs near his office which was isolated from the rest of the police. That made me even more suspicious. They have jail cells at the police station there but Kilfoyle wanted me to sleep near his isolated office.
Officer Kilfoyle and another officer refused to provide me a ride back to my home at 1076 King’s Highway in Saugerties New York - about 9 miles away. I was forced to walk 9 miles alone in the dark of night back to my to my home.
On Thursday 17 July my Mom paid $200 to get my car back from the tow yard. Some police person is gonna have to pay for this.
If we are to believe that the papers are not back dated, then on 22 July Kilfoyle signed 2 complaints against me.
On Monday 28 July 2003 at 1 pm Saugerties police came to my home . My Mom and I were packing my stuff so that I could go live with Mom and our family home where I grew up at 74 Pancake Hollow Road in Highland NY 12528. These Saugerties police had no warrant with them. They had no arrest warrant. They had a photo of me in their car. Without warrant or probable cause they opened the screen door and startled my Mom and me. They came into my home and arrested me. They falsely accused me of forgery and criminal impersonation based on my written declaration given under duress upon the command of armed Ulster police two weeks earlier on the 15th. They did not read me my rights. My Mom wrote an account contemporaneously. They handcuffed me and took me to the Saugerties police station. They fingerprinted me there. I waited 15 minutes handcuffed to the wall. Ulster police came and took me to the Ulster police station where they fingerprinted me, took my photo, and otherwise booked me.
At about 1:30 pm I appeared before Justice Paula. Justice Paula read the charges. Then she asked me to wait 15 minutes while she called the prosecutor to inquire as to the bail amount. She came back and said that my bail was $2500 cash or $5000 bond. Ulster police took me to Ulster county jail on route 32 in Kingston, New York.
On July 30th I came back before Judge Paula. Public Defender Christine Coho offered me a deal and advised me of nothing. Without my informed consent she entered a not guilty plea for me. The court released me to the custody of my Mom and the pre-trial folks.
My next court appearance is 20 August. I have no idea of what will happen at that time. My public defender had not communicated with me since then.
I have only 2 documents. I never did receive a copy of what I wrote at the police station. I did receive 2 documents: A complaint for each count - but I did not have these documents until the day of my release. Police imprisoned me for two days before giving me a complaint.
For the purpose of making something out of nothing, Kilfoyle knowingly falsely accused me of the crimes of criminal impersonation and forgery. In so doing, he himself filed a false report - which is a crime. I demand that he be prosecuted.
________________________
Phyllis Burfeindt
Litany of Concurrent and Continuing Demands and Discovery Demands
1. I demand a withdrawal of my plea; it was given without counsel. My public defender is not counsel; she is representation. I do not need somebody to take my place. I need assistance - effective assistance - just like the 6th amendment promises.
2. I demand that the court devise a telephone or other means to permit my out of state counsel to speak for me at every hearing.
3. I demand all discovery before I make a plea.
4. I demand to see the affidavit in support of the warrant.
5. I demand a prompt (within 5 working days) transcript of each hearing.
6. I demand a WordPerfect version of every transcript. If you don’t have WordPerfect then html, WordPerfect, txt, rtf, or editable pdf format is acceptable.
7. I demand that no business on my case be transacted in chambers.
8. I demand a copy of all discoverable documents including police reports and all files regarding me immediately.
9. I demand a copy of the affidavit and application for the warrant.
10. I demand a certified copy of the warrant.
11. I waive no rights.
12. I demand a court reporter whenever I am in court.
13. I cannot pay the costs of this litigation.
14. I demand a trial at a fair pace.
Cases and other Authorities of Law cited herein:
Argersinger v Hamlin (1972) 32 L Ed 2nd 407 US 25, 92 S Ct 2006. Cannot put a guy in jail if you don’t give him a right to a jury trial. Cited in 12 scholarly motor vehicle treatises including:48 ALR 4th 367, 71 ALR 3rd 562, 53 ALR 3rd 1002, 93 ALR 2nd 747, 26 ALR Fed 218, 103 L Ed 2nd 1000, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 98 L Ed 2nd 1115, 65 L Ed 2nd 1219, 61 L Ed 2nd 1018, 18 L Ed 2nd 1420. 1
Baird v State Bar of Arizona (1970) 27 L Ed 2d 639, Superb Annotation @953 of 27 Lawyer's Edition 2nd. Subject: Overbreadth. Bar applicant refused to answer question in bar application regarding his past to age 16 regarding membership in organizations advocating overthrow of government. Note that Judge McMecarch or whomever in Mariposa county refused to take the loyalty oath part of the oath specifically quoted in the California constitution. 1
Bates v Arizona (1977) 53 L Ed 2d 810. Legal Clinic Advertised. Subject: Overbreadth and 1st amendment. The 6th most pertinent case here. 1
Brady v. Maryland (1963) 373 U.S. 83. 1
Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clear and present danger
1
Bridges v California (1941) 314 US 263, 62 S Ct 194. http://www.lawyerdude.netfirms.com/bridges.html 1 2
Cohen v California (1971) 30 L Ed 2d 124. "Fuck the draft" written on the back of jacket in court hallway. Overbreadth was the basis of this decision. 1
Condon, Estate of (__1998) 65 Cal App 4th 1138, 76 Cal Rptr 2d 922. For years the bar would not permit unlicensed lawyers to be heard if they attempted to collect money for fees. These lawyers took the bar to task and won! 1
Craig v Boren (1976) 50 L Ed 2d 397, 429 US 190, 97 S Ct 451.Bartender enjoyed relaxed standing to vicariously assert the constitutional equal protection rights of his patron to drink in a state where the drinking age was 18 for women and 21 for men. 1
Craig v Harney (1946) 91 L Ed 1546, 331 U.S. 367. 1
Debs v U.S. (1919) 63 L Ed 566, 249 U.S. 211. 1917 draft objector. 1
Doran v Salem Inn (1975) 45 L Ed 2d 648. Overbreadth. 3 stripper bars. Ballet Africanus. 1
Erznoznik v City of Jacksonville (1975 ) 45 L Ed 2nd125, 422 US 205. Overbreadth. Baby's butt argument. Subject of 5 scholarly treatises: 52 L Ed 2d 892; 45 Led 2nd 725, 43 L Ed 2nd 871, 41 L Ed 2nd 1257, 21 L Ed 2nd 976. 1
Ficker v Curran 950 F Supp 123, Affirmed at 119 F3d 1150.Attorney solicitation. Overbreadth regarding bar acts regulating attorneys. Attorney solicitation law was held unconstitutional. Used in Palaschak’s brief 3596 at page 10. 1
Gentile v State Bar of Nevada (1991) 115 L Ed 2d 888. 1
Griffin v Illinois (1965) 100 L Ed 891, 351 US 12, 76 S Ct 585, 55 ALR 2nd 1055 holds that everybody is entitled to Due Process at every stage of the proceeding - and a free transcript, too. 1 2
Griswold v Connecticut (1965) 14 L Ed 2d 510, 381 US 479, 85 S Ct 1678. Relaxed standing. One of the top 10 cases in constitutional law. Doctor invoked the privacy rights of his patients to justify giving them birth control pills in violation of state law. 1
Hackin v Arizona (1967)19 L. Ed. 2d 347; 389 U.S. 143; 88 S. Ct. 325. Overbreadth case. There was no written majority opinion. Douglas's strong and cogent dissent shames the majority in this case 1
Hackin v Lockwood (1966) 361 F2d 499. District court held that Arizona's ABA requirement is constitutional. Bad decision. 1
Houston v Hill (1987) 96 L Ed 2d 390. Pick on somebody your own size. 1
Keyishian v Board of Regents (1967) 17 L Ed 2d 629, 385 U.S. 589. Peddler registration near a University of California campus as I recall. Overbreadth is the issue. Ordinance required solicitors to register with the police. Ruled unconstitutional. 1
M.L.B. v. S.L.J. (1996) 519 U.S. 102. In important civil cases a state may not block a defendant's right to appeal just because that defendant is poor. The state must provide a transcript at no cost. 1
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Anti communist law. Raid. Court declared Kentucky's anti sedition law
unconstitutional. Case arose from overbreadth, an unjustified raid based on an overbroad statute.
1
McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967) 1
Olech v Village of Willowbrook (1998) 160 F.3d 386 (7th Cir.1998 1
Overton v Ohio (2001) 151 L. Ed. 2d 317 (2001) 1
Primus, In Re (1978) 56 L Ed 2nd , 436 US 412, 98 S Ct 1893. Ms. Primus violated the state bar’s proscription of her right to free speech. She talked with those pesky people who were injured by a corporation. The Supreme Court backed up the first amendment here! Good. 1
Shuttlesworth v City of Birmingham Shuttlesworth v City of Birmingham (1965) Volume 15 Lawyer's Edition 2nd page 176, 382
US 87, 86 S Ct 211 Distilled to its essence, this statute says “that a person may stand on a public sidewalk in Birmingham only at
the whim of any police officer of that city.” Supreme Court found the statute overbroad and therefore unconstitutional - like 9.04.050
in Steve’s case.
1 2
Statutes, Regulations, City Ordinances cited herein:
New York Penal code section 170.10 Forgery in the second degree:170.10 Forgery in the second degree. A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed: 1. A deed, will, codicil, contract, assignment, commercial instrument, credit card, as that term is defined in subdivision seven of section 155.00, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or 2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; or 3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality; or 4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or 5. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law. Forgery in the second degree is a class D felony. 1
New York Penal code section 190.25 Criminal impersonation in the second degree. 190.25 Criminal impersonation in the second degree. A person is guilty of criminal impersonation in the second degree when he: 1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or 2. Pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or 3. (a) Pretends to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense. Criminal impersonation in the second degree is a class A misdemeanor. 1
Scholarly Treatises Cited herein:
32 scholarly treatises regarding the right to counsel. They all cite Gideon v Wainwright (1963) 9 L Ed 2nd 799, 372 US 335, 83 S Ct 792, 93 ALR 2nd 733, subject of 32 scholarly annotations and a major motion picture starring Henry Fonda. The annotations are: 65 ALR 4th 183, 47 ALR 4th 1069, 79 ALR 3rd 1025, 73 ALR 3rd 725, 71 ALR 3rd 562, 64 ALR 3rd 1291, 36 ALR 3rd 751, 36 ALR 3rd 1403, 34 ALR 3rd 470, 34 Alr3rd 1256, 33 ALR 3rd 229, 18 ALR 3rd 1074, 10 ALR 3rd 1371, 5 ALR 3rd 1269, 5 ALR 3rd 1360, 93 ALR 2nd 747, 36 ALR Fed 594, 26 ALR Fed 218, 102 L Ed 1049, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 83 L Ed 2nd 1112, 65 L ed 2nd 1219, 33 L Ed end 865, 33 L Ed 2nd 932, 31 L Ed 2nd 921, 25 L Ed 2nd 1025, 18 L Ed 2nd 1388, 18 L Ed 2nd 1420, 14 L ed 2nd 992, 12 L Ed 2nd 1340, 9 L Ed 2nd 1260. 1
ALR 4th 367, 71 ALR 3rd 562, 53 ALR 3rd 1002, 93 ALR 2nd 747, 26 ALR Fed 218, 103 L Ed 2nd 1000, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 98 L Ed 2nd 1115, 65 L Ed 2nd 1219, 61 L Ed 2nd 1018, 18 L Ed 2nd 1420. They all cite Argersinger v Hamlin (1972) 32 L Ed 2nd 407 US 25, 92 S Ct 2006. 1
Five scholarly treatises regarding overbreadth and/ or Erznoznik: 52 L Ed 2d 892; 45 Led 2nd 725, 43 L Ed 2nd 871, 41 L Ed 2nd 1257, 21 L Ed 2nd 976. 1
Kennedy, Caroline, and Alderman, Ellen, In Our Defense 1
Overbreadth Treatise. Superb Annotation. 27 Lawyer's Edition 2nd page 953. Subject: Overbreadth
1
Palaschak, Douglas: Brief #3789: First Amendment Rights of Lawyers. State Bar Acts are unconstitutional. Explains over breadth
and lists many 1st amendment cases. Found at
http://www.lawyerdude.8m.com/3789.html 1 2
Constitutions, Magna Charta, and Ancient sources of law cited herein:
1st amendment guarantees the right to associate and petition for redress 1
6th amendment 1
association protected under the 1st amendment 1
Due Process is defined as including notice and meaningful opportunity to be heard. 1
Equal protection which is a concept that is both civil and criminal 1
Proposed Schedule of Action, Motions, and Hearings
August 4th Monday Proposed Date of service of this Motion to Suppress.
August 7th 4 pm. Deadline for Dismissal and Notification to me of dismissal.
August 8th Filing of Civil Rights complaint.
August 26th Tuesday Hearing on the Suppression motion.
August 28th Thursday Hearing regarding Demurrer
July 7 2004. Proposed Week for Jury Trial. 5 day estimate.
Declaration of Actor William McNamara of Hollywood
I, William McNamara, declare the following under penalty of perjury: I am a percipient witness to the following except as indicated herein. I am competent to testify. If called I will testify as follows:
I am one of the Private People in the New York Republic, one of The united states of America, a Union of republic states.
I am a student of the law. I have witnessed first hand the corruption of the uneducated police and the educated judges and lawyers. I am aware of the pathetic injustice perpetrated by the low level “justice” courts of mass production. I belong to The Patriot Network. I am backed by a bevy of experienced civil rights lawyers. The internet is exposing the court system to close scrutiny. Please visit my webpage for further information at www.williammcnamara.com . I am engaged with the making of a documentary regarding local and state courts and the justice system in America of today. My film is based on me personal investigation and the freshly released report by the ABA, "Justice in Jeopardy” which is linked to my website.
I am informed of procedural mistakes and deprivations of Phyllis’s constitutional rights, as set forth in her statement of the case and elsewhere.
Phyllis and her family, upon advice of counsel, are recording and documenting the events of this case as best they can. Their goal is to end this case. Failing that they have procured the assistance of experience civil rights lawyers from New York and California to write a civil rights complaint. They have the capability to file in federal court as soon as Friday 8 August.
So far the police, the prosecutor, the judge and or magistrate have failed, neglected or refused to provide Phyllis Burfeindt with:
a warrant,
a record,
evidence,
witness list,
a signed affidavit of a victim,
timely and effective assistance of counsel.
Public Defender Christine Coho was unable to properly prepare or defend Phyliss at the faux arraignment because the court and prosecutor failed to provide the file of the case. Luckily Phyllis's Mom brought the charging instruments to court that day. The court and prosecution borrowed their papers from the Mother of the defendant. I, William McNamara, was there in the court witnessing all this first-hand.
In addition, I previously witnessed first-hand, the frustrating telephone calls made by Barbara, the Mother of the defendant. Barbara was attempting to get her daughter out of jail.
We could not analyze the offer due to the prosecution’s failure to provide discovery documents. More specifically there was:
No file;
No paperwork (Phyllis’s Mom provided the charging instruments);
No police report;
No copy of any warrants.
It appears that this is a victimless crime, or more specifically, an aggressive malicious act of an uneducated vindictive police officer, James Kilfoyle.
Public Defender Christine Coho told Phyllis in my presence that the record (police report, witness list, affidavit of the victim, warrant, transcript of either probable cause or application for warrant) at the time of arraignment on July 28th was not available. In retrospect I offer the following conjecture: these items were not available because they did not then exist. Subsequently the complaint signed on 22 July by Kilfoyle was produced. If it was signed on 22 July then it should have been available on 28 July a week later - unless it was back dated. I further speculate that the police will draw up a warrant and pre-date it as they did in the case of Attorney Douglas Palaschak who figured it out - and many other people who have not figure it out.
I observed that Phyllis could not possibly make an effective plea.
I know from my discussion with Attorney Douglas Palaschak that as a general rule, a lawyer should review all documents before entering a plea. I know that standard practice is to continue the arraignment to give the lawyer time to evaluate the plea - and collect money from the defendant.
It is obvious to me that there is no person to be impersonated here. I am informed that this is a basis for a this demurrer.
I have personally observed numerous due process violations in this case.
I have been informed that the following items of evidence were obtained illegally and must be suppressed:
1. The smoking gun, the declaration of Phyllis. The was the product of coercion in a custodial interrogation of somebody who was not even a suspect.
2. All evidence flowing from this egregious violation of Phyllis’s rights and personal dignity.
I am informed that Jackie Miller is the sister of the defendant and that Jackie Miller would want her sister to use her name if it would help the cause. Nobody asked Jackie Miller if she wants to prosecute. This is merely vindictive action of the police that has crossed the line and has become a crime.
My investigation shows that James Kilfoyle committed perjury on the bogus charging instrument by stating that defendant intended to benefit by avoiding arrest on a warrant - while failing to mention that in fact there was no warrant. Defendant could not therefore have benefitted. Her intent is irrelevant; Phyllis had a right to remain silent. She attempted to exercise that right as best she could in the face of armed police who had already demonstrated that they could lewdly feel her up with impunity.
Defendant was deprived of her right to counsel at her bail hearing.
Her failure was excessive causing her to suffer 3 days incarceration on this bogus and malicious false arrest.
She was never given a Miranda warning.
She was never shown an actual warrant on 28 July 2003. Witness ______________ can attest to that. This raises the specter of kidnaping pursuant to 18 USC 1201. See Overton v Ohio (2001) 151 L. Ed. 2nd 317 for definition of warrant.
There seems to be no record of the court proceedings so far.
There was an illegal search and seizure on July 15th at 12:15 a.m. alongside and road. They seized Phyllis’s car and her person without probable cause - or even any suspicion that Phyllis had committed any crime. They had no right to even question her; she had spousal privilege.
There was no warrant directing the officers to detain and interrogate Phyllis Burfeindt . At the time of detainment on July 15, 2003 officers failed to Mirandize Phyllis Burfeindt according to James Kilfoyle’s sworn statement.
At the time that the police solicited that written statement from defendant they were obligated to inform her that she was the focus of a criminal investigation and that she had a right to remain silent. They should have advised her of her right to counsel who would have advised Phyllis of her spousal privilege. Thereafter in a vindictive effort to “get Phyllis” Kilfoyle, the officer who lewdly felt up Phyllis using the pretext of a pat down for weapons, and who thereafter refused to provide a police escort back home, preferring to have Phyllis sleep on the sofa hear his isolate office, this same Kilfoyle concocted this bogus forgery charge without running it past a lawyer. Police “out to get” somebody triggers damages under section 1983. See Olech v Village of Willowbrook (1998) 160 F.3d 386 (7th Cir.1998) .
On July 15, 2003 Office Kilfoyle and his conspirators acted outside of his legal jurisdiction and obtained a statement under false color of law. At the time of the illegal search and seizure of Phyllis Burfeindt on July 15, 2003 she was a passenger in her own car which was driven safely and legally. There was no basis for impoundment.
The situation in this case triggers remedies under Brady v. Maryland (1963) 373 U.S. 83. See http://da.co.la.ca.us/sd02-07.htm for the new 2002 Los Angeles Brady policy. (In California a Brady motion is sometimes called a “Pitchess” motion.) We want to know what kind of guy Kilfoyle is - and whether he has felt up other attractive witnesses and taken their cars.
Kilfoyle took Phyllis's personal property, dignity, signature, and statement under threat and intimidation under false color of law thereby abusing the power of his office for his own personal lascivious satisfaction.
Signed __________________________ William McNamara. 31 July 2003
Declaration of Attorney Douglas Palaschak regarding traffic and minor cases.
I, Douglas Palaschak, declare the following under penalty of perjury: I am a lawyer with 18 year of experience. I have never been
licensed in Iowa. Most of my work is in the area of bankruptcy and civil liberties. I was a civil libertarian before I went to law school. An
innocent criminal defendant needs about a year to adequately defend himself; guilty people require less time for their trial
generally. We all know from watching the O.J. Simpson trial that even a trial with priority takes a long time. I know from experience that
a traffic case is in many ways more complicated that a felony case because traffic court is so accustomed to making deals and trampling
on defendant’s rights. Example: Argersinger v Hamlin
. Until circa 1972 persons facing less than 6 months in jail were presumed not
entitled to appointed counsel. While in jail for lack of $250,000 bail in 1999 after being arrested by the FBI on my farm in Illinois for having
written a well-written traffic petition #2871
in 1997, I learned that extradition law is undeveloped. I theorize that refinement in law comes
with litigation and time.
I also know that public defenders and other appointed counsel are only effective for guilty people - because all they have time for is a cursory look at the case. They can make a deal because that takes no time.
The innocent need more time than the guilty to prepare their case.
Because people don’t litigate their traffic tickets, the law is unrefined. Furthermore, procedures in justice court are not uniform from state to state. Also, the presiding officer is sometimes not even required to be a lawyer or high school graduate. My point in this paragraph is this: The methods to effectively litigate in traffic court are not well known. The litigant needs time to develop his theories of the case.
More often than not, the theories include challenging a statute for overbreadth. I used overbreadth theory to win a case recently; it took a year; the case began almost a year to the day before it was dismissed.
I have emailed at length with Billy McNamara regarding this case. Billy McNamara is a serious young man who works hard at his
craft and has enjoyed great success. He spends his spare time studying law. I have examined his writings. We have numerous
associates in common. There is a movement in America of people who have strong moralistic beliefs in freedom and the constitution.
The internet is uniting these people. We share methods, experiences, cases, theories, and e-books. This is the type of association
protected under the 1st amendment as enunciated by the Supreme Court in the case of In Re Primus
and a multitude of other cases
cited in my brief #3789 at http://www.lawyerdude.8m.com/3789.html . Billy is interested in justice and he can gather the resources to
see that justice is done. The police would be well advised to do the right thing in this case: They should dismiss this case immediately
and try to work out a deal to repay Phyllis.
In the past, many criminal right were won by those in prison - because those not in prison had better things to do with their lives - so the conventional wisdom went. Today word processors permit us to make the written brief that would otherwise take too much time for the non-prisoner.
My summary is this:
#1 It is reasonable and necessary to give Phyllis adequate time to gather assistance for each motion.
#2 She needs court-appointed effective assistance of counsel - but not somebody to make a deal and sell the deal to her.
#3 Phyllis is a good person trying to survive as best he can in a part of America (New York state) that has lost some economic luster in recent years due to circumstances that are not her doing.
________________________
Douglas Palaschak
Points and Authorities Supporting this Demurrer
Demurrer is a common law right. If statutes forbid it then the statutes are unconstitutional.
I have not checked New York statutes. Some states have a different name for a procedure functionally equivalent to demurrer.
Elements of the crime of impersonation are not alleged in the complaint and that justifies demurrer.
The crime of false impersonation consists of the following elements:
1. Use of the office of another.
2. To procure some advantage not available to the allege perpetrator (Phyllis).
Both elements are missing here. Jackie Miller has no “office”. Phyllis was entitled to what she got - notification of a warrant. Ironically, there was likely no warrant. The police likely lied to her.
The element of “intent to obtain a benefit or to injure or defraud another” is missing.
The intent was to see if there was a warrant. The “investigation” allegation must be stricken. The only investigation was that investigation interposed between Phyllis and her right to public information. This element only appears on the complaint by the lie of Kilfoyle which must be stricken.
The element of “intent to defraud, deceive, or injure another” is missing.
The deceit must be material. A person is not required to identify herself to inquire regarding an arrest warrant. Therefore the deceit is immaterial. It was a way around the illegal requirement imposed by the police.
It is not “deceit” to finesse around an unconstitutional inquiry.
We all know that the police enjoy playing cat and mouse. They like to be in control of the information. In this case they went too far.
The 5th amendment makes the requirement of identification unconstitutional
The police are forbidden by the constitution to require that Phyllis give up her 5th amendment right in order to obtain information that is public record! You need not give up one right to obtain another. There is a case on point, but I forget what case it is.
The police are now estopped from using Phyllis’s writing against her.
The police manufactured this crime by thwarting Phyllis attempt to get information. They are estopped from using this writing against her. It must be suppressed.
The police may not charge the almost lesser included offense.
The police may not charge the crime of “giving false in formation to police” because that only pertains to solicited information regarding a crime.
Either strike the conclusory statements or include the factual description of the “benefit”
Police and prosecutors do this often. They simply state the words of the statute in a conclusory way and call that the complaint. You may as well simply list the penal code section number and forget writing any words. Had Kilfoyle stated even the barebone facts and story then this complaint would be even more obviously demurable.
Let’s look at the similar things that, by context, define the phrase “public record or an instrument filed or required or authorized by law to be filed in or with a public office or public servant” which is the phrase used to falsely accuse Phyllis.
If is forgery according to the statute to forge tokens for subways, a deed, will, codicil, or commercial instrument, or a prescription. The phrase “public record or. . . instrument” must be defined in the context of similar items in the statute.
The statutes must follow the common law and they do here
If the statutes differ from the common law, they must be adjusted to provide Phyllis with the common law defense that I just now used. Aha, I see that the statutes are just as I expected - because statutes are merely codification of the common law which is the distillation of centuries of legal wisdom, but in case you have any doubt, here are the statutes:
Text of the statutes used to facilitate this malicious prosecution
New York Penal code section 190.25 Criminal impersonation in the second degree.
190.25 Criminal impersonation in the second degree. A person is guilty of criminal impersonation in the second degree when he:
1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or
2. Pre