8489 Version 1.001 Lawyerdude1989@yahoo.com Call me: 888 476 8954. Upgraded 9/8/07
2nd transcript in Richard Wilson case.
The judge announced: “So what we’ll do is set the matter right now on the 6th, with them filing a long-form complaint. If they’re unable to file the long-form by then, then I would anticipate a motion by the State”
The entire transcript is printed below.
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The 2nd appearance - Mistakenly called the first by transcriber.
The following transcript was typed by Judy Jeck from a tape recording - although you would not know if from what she writes.
The First Appearance Transcript for Richard Wilson. Wrong.
913-302-8693
IN THE DISTRICT COURT OF LINN COUNTY, KANSAS
STATE OF KANSAS Plaintiff
vs. Case No. 06TR947
RICHARD D. WILSON, Defendant
TRANSCRIPT OF FIRST APPEARANCE Nope. 2nd appearance.
PROCEEDINGS had before the Honorable RICHARD M. SMITH, Chief Judge of the Sixth Judicial District of the State of Kansas, at Mound City, Kansas, on the 5th day of March, 2007. APPEARANCES Plaintiff, State of Kansas, appeared by and through MR. JOHN S. SUTHERLAND, Linn County Attorney, 315 Main Street, P.O. Box 350, Mound City, Kansas 66056. Defendant, Richard D. Wilson, appeared in person pro se. *.*.* *.* * JUDY JECK Official Court Transcriber Sixth Judicial District State of Kansas P R O C E E D I N G S (Hearing commenced on the 5th day of March, 2007, at the Linn County Judicial Building, Mound City, Kansas.)
Judge Richard Smith: The next case on the court’s docket’ll be Case No. 06TR947, styled State of Kansas v. Richard D. Wilson. Will counsel please enter his appearance? MR. SUTHERLAND: State appears by County Attorney John Sutherland.
Judge Richard Smith: And the court will note the appearance of Mr. Wilson pro se. This matter was scheduled today for purposes of arraignment. I’m goin’ to do some housekeeping matters, though, first if I can. Mr. Wilson, I’m not confident that either Mr. Sutherland or the clerk’s office here, frankly, has as much experience with pro se litigants as I do. That’s not anything special except that we have a lot of pro se litigants in Miami County and something I’d like to -- just so we don’t -- to avoid any confusion and problems in the future. You filed something titled Journal Entry.
Richard Wilson: Yes, sir.
Judge Richard Smith: A journal entry is signed by the Judge and that has to be submitted -- Any journal entry by a pro se litigant or by an attorney has to be approved by
Judge Richard Smith. If I read your journal -- proposed journal entry correctly, that was done in an attempt -- your response to Mr. Sutherland’s.
Richard Wilson: Correct, Your Honor.
Judge Richard Smith: I have not signed Mr. Sutherland’s journal entry because -- But -- but for the fact that I actually looked at this court file just getting ready last Friday for Monday morning, I wouldn’t have even known this was in here. With respect to all future journal entries, Mr. Sutherland, cause he’s the State, will be in charge of at least preparing the initial journal entry. He will send it to you for you to look at to see if you approve of it. If you take exception to anything Mr. Sutherland does or does not put in a journal entry, the -- what you need to do is simply notify me in writing the -- of the fact that you’ve received a journal entry from Mr. Sutherland and you object to that journal entry for whatever reasons, and then set forth what you either think is wrong about that journal entry or anything that he left out of that journal entry, and then I will resolve the dispute over the journal entry either by looking at your two proposed journal entries or by -- if I think it’s a substantial matter, by setting it for hearing. So no offense taken by what you’ve done. I’m just tryin’ to get -- I -- I know. I’m just tryin’ to make sure that we get the rules straight about how we do all this, because what this case would look like to somebody who would look at would -- They’d -- They would see the word journal entry and assume that I’d signed a journal entry setting forth what transpired at the previous hearing, cause that’s all a journal entry’s supposed to be, is some documentation as to what occurred at the prior hearing. If I understand your objections, it had to do with whether or not I went through all of your rights.
Richard Wilson: I -- I wasn’t here. I was about 10 minutes late that morning, Your Honor.
Judge Richard Smith: Oh, for the first part?
Richard Wilson: Yes.
Judge Richard Smith: I didn’t know that.
Richard Wilson: Yes, yes, Your Honor.
Judge Richard Smith: I try to watch the --
Richard Wilson: And so when I came in, I was last on the docket.
Judge Richard Smith: Well, and, yeah, they’re set in alphabetical order and I -- I’m sorry. Well, then -- then you’re correct. I had presumed that you were here. You can see, like that morning, kind’a like this morning, we --
Richard Wilson: Yes, sir.
Judge Richard Smith: -- have a boatload of people.
Richard Wilson: I’ve seen today what transpired, Your Honor.
Judge Richard Smith: Right, and -- and, actually, then you only heard part of it because I saw you come in this morning and so that whole thing -- Well, let me back up, because there’s one thing I want to cover that I would’ve covered with the first appearance, anyway, cause I don’t want to be presumptuous. Okay? With regard to these criminal charges, you are innocent until proven guilty and you have to be proven guilty beyond a reasonable doubt. That means you have the absolute right to a trial, that can be to a jury or to a judge, and appeal the conviction if a judge or jury finds you guilty. At the trial, you have the right to be personally present. You have the right to cross-examine the witnesses presented against you. In other words, that’s your constitutional right of confrontation. You also have the right to present whatever evidence of your own, what I call, non-guilt there might be. That includes the presentation of affirmative defenses, suppression of illegally seized evidence and the use of the subpoena power of this Court to compel reluctant witnesses to appear and testify. You also have a right to take the stand and testify in your own defense, but you cannot be compelled to do that. In other words, whether or not you testify is up to you. Now, Mr. Wilson, something that I didn’t go through with you and I should have, frankly, at that first hearing just to make sure is that you also have the absolute right to be represented by an attorney and, if you cannot afford an attorney, one will be appointed to represent you. Now, as I recall the proceedings, I asked you if you were going to be representing yourself, you said yes, but -- And -- and -- and please just bear with me, because the law requires that I go through this no matter what you want to do.
Richard Wilson: Yes, sir.
Judge Richard Smith: You have a constitutional right to represent yourself. There’s no question about that; and I am the defender of that constitutional right like all others and I believe in that right. But the record needs to be clear that I’ve explained to you and that you understand that you are automatically operating at a distinct disadvantage when you represent yourself. That’s for a very simple reason and that is that there’s a reason that there are law schools and a bar exam; and that is to school people in the law. I am not trying to be trite about this, but it is really true, that old saying that a person that represents themself has both a fool for a client and a lawyer; and that is that because of the intricate nature of legal proceedings, attorneys have an inherent advantage over laypeople. And you may -- not necessarily will, but you may be putting yourself at a disadvantage by representing yourself, because I presume you’re not schooled in the law to the degree an attorney is. That may be wrong, cause I don’t know that much about your background. But my concern about this, Mr. Wilson, is actually typified by one of the pleadings you have filed, cause you filed a motion to dismiss that looks like a perfunctory boilerplate motion you’ve got somewhere that has no application to this case whatsoever, something about the clerk acting as a prosecutor when, in this case, the things that you’re alleging in that are a problem never occurred. And that causes me a great deal of concern, because you need to understand that that tells me you don’t understand these legal proceedings as well as an attorney would understand them. And I -- When I see those kinds of pleadings it always causes me some concern that the person doesn’t understand what the legal process is to the degree an attorney understands it, and that tells me that you are not functioning at the same level a lawyer would function at, frankly. No offense. I’m just telling you that when I see those kinds of pleadings and they’re about things that are, at best, a red herring, cause they don’t have anything to do with or apply to the case, it causes me a great deal of concern about whether or not the person understands the procedures, cause you have to understand the procedures well enough to also then be conversant in those and operate within those procedures to present your own case. If you understand that this may present a disadvantage, then as -- as long as you have that understanding, then I have absolutely no problem with you representing yourself as long as it’s a knowing and voluntary decision on your part to represent yourself instead of having an attorney assist you. Okay?
Richard Wilson: Yes, Your Honor.
Judge Richard Smith: So do you understand all that?
Richard Wilson: I do and I -- I also -- I understand that I can have counsel of my choice.
Judge Richard Smith: Uh-huh.
Richard Wilson: All right. Thank you, Your Honor.
Judge Richard Smith: You -- you can. And I -- I deal -- And I And I don’t know if this is even an issue with you. I deal with a group of people up in Paola that -- on a fairly regular basis, frankly, and I don’t really know -- cause I’ve never talked to ‘em about why. I suspicion it’s a religious issue about being represented by an attorney and -- And because it might, I’m pretty sensitive about -- to that -- to that concern. But because of that, I’ve had some experience with people that want non-lawyers to assist them. And that is also acceptable as long as -- if that’s your choice. I’ve got some ground rules for what a non-lawyer can do and can’t do. The law’s kind of unsettled right now about a person’s constitutional right to have a non-lawyer represent them; and if you do a bunch of research, you’ll find a bunch of federal cases that kind of go both directions and we don’t -- They’re not givin’ us a lot of direction about what the law should be on that. I actually just err on the side of caution and think that that’s okay. They can’t speak for you in court. If you’re a pro se litigant and you ask for the assistance of a non-lawyer to represent you, I allow them to be in court with you. They can even sit at counsel table with you if that’s your choice. They can assist you in any fashion that you might ask them to assist you. They just can’t speak for you in court, because that’s where we draw the line as to what somebody can legally do in court as an attorney. But they can help you. So you have the right to counsel of your choice, lawyer or non-lawyer, except that a lawyer can speak for you and a non-lawyer can’t. And that’s as best as I can interpret the current federal law and that’s how I’ve been trying to apply it. But I don’t try to short people with the opportunity to have some non-lawyer help them if that’s your choice, cause I don’t know what your pleasure is on this issue. Frankly, I’m not concerned about that. I -- The only other thing is -- cause I read this in one of your pleadings that I take great exception with, and that is that you don’t get any breaks; and that’s the problem you need to understand under Kansas law. I have to hold you to the same standard I hold an attorney, not a different standard. Something that you had filed indicated that for pro se litigants there was like a different standard. Not in Kansas. I have to hold you to the same standard, and that’s why you need to understand that as long as you function in the capacity of representing yourself, I have to hold you to the same standard as I would hold anyone else coming into this court, whether they’re being represented by counsel or not. So if you just wanted to know what the ground rules are, then I don’t have a problem. Okay?
Richard Wilson: Yes, Your Honor.
Judge Richard Smith: So does that satisfy -- Do you have any questions about any of your constitutional rights?
Richard Wilson: I -- I do. Will -- will
Judge Richard Smith permit constitutional argument?
Judge Richard Smith: Always.
Richard Wilson: Well, then like in this -- I can’t remember the gentleman’s name here. It was the last case and, basically, the prosecutor hadn’t filed a --
Judge Richard Smith: Complaint.
Richard Wilson: Complaint, yeah.
Judge Richard Smith: Uh-huh.
Richard Wilson: And that’s what I’m wondering, if that gentleman has the right to the prosecutor filing a complaint, I would like to exercise that right, also; and that gives me the position then that I can demur and see where the -- where the prosecutor’s coming from that he think that the State has jurisdiction in these matters.
Judge Richard Smith: Well, not to prejudge a legal argument, Mr. Wilson, but there’s no such thing as a See, this is what causes me concern when people use the word demur. We did away with demurs in Kansas 40 or 50 years ago. There’s no such thing as a demur in a civil or a criminal case any longer in Kansas. Now, that exists in some states. It’s a legal procedure, but there’s not a demur. If you can something a demur, I’m not goin’ to kick it out just cause you labeled it demur, but I -- But a demur is different and was a whole different legal process that was available years ago that we don’t have under the current Code of Criminal Procedure. But on this case, I’m not ruling on whether or not you’re entitled to a bill of particulars. That’s a separate issue, but -- Is the State willing to go ahead and file a long-form complaint in this? MR. SUTHERLAND: I suppose we can.
Judge Richard Smith: So why don’t -- MR. SUTHERLAND: It just
Judge Richard Smith: We’ll go ahead and -- MR. SUTHERLAND: Expired license.
Judge Richard Smith: I would prefer -- Rather than go forward -- Cause I presume we’re goin’ to have lots of arguments on all kinds of issues, and I would rather go forward on a long-form complaint, much like Mr. Wilson, than to go forward on the basis of a ticket. So why don’t I do this for procedural aspects today, I’ll direct the State file a long-form complaint within 10 days and then this is goin’ to precipitate what I kind’a hoped to do today, which is kind’a get some scheduling goin’ on in this case, get a -- get it set for a deadline for motions, give you an opportunity to file motions, set it for motions, and then also eventually set it for trial. But I anticipate, again based upon my experience with pro se litigants, we’ll have a motions hearing in this case. So why don’t we do this, until then the State files -- Do you wish to proceed with arraignment today, Mr. Wilson, or do you want to --
Richard Wilson: I -- I was --
Judge Richard Smith: You want to wait on arraignment till they file a complaint?
Richard Wilson: I was goin’ to wait. I was goin’ to ask you to vacate today and reschedule for the 12th of April.
Judge Richard Smith: I’m not goin’ to vacate, but -- I do a lot of --
Richard Wilson: Today’s date.
Judge Richard Smith: I do a lot -- I do a lot in a day to vacate what I do, so (laughing). What we’ll do is we’ll set it over. Okay? Technical term, continuance. We’ll continue it over. So let’s do this -- And then maybe after we file -- he files the long-form complaint, at the next hearing, which we’ll have arraignment, you can give me some -- It doesn’t have to be exact, but give me some idea of how many motions you’re goin’ to be filing, how long it’s goin’ to take to take them up so that we can do an actual scheduling conference so I have some idea of how long to set aside for oral argument on motions. Then I’ll also give you all a trial date at the time of arraignment. Okay?
Richard Wilson: Is this on the record now, Your Honor, --
Judge Richard Smith: Uh-huh.
Richard Wilson: -- so I can -- so I don’t have to write all this down like --
Judge Richard Smith: Yeah. Yeah, you can -- Yeah, you can do that. That’s fine.
Richard Wilson: All right.
Judge Richard Smith: That’s fine.
Richard Wilson: Thank you.
Judge Richard Smith: That’s fine. Oh, let’s see. If they can file -- they file a long-form complaint within 10 days, then -- Oh, we might set arraignment on -- I’ll set arraignment on March the 19th, at 11:00. Does that work for you, Mr. Wilson?
Richard Wilson: As far as I know now, it wouldn’t, Your Honor. If I could check -- I -- I don’t have my day planner with me right now and I --
Judge Richard Smith: Bring -- When -- when you come to that hearing, if it’s on that date, bring your -- bring your calendar, cause we’ll schedule the case on out. That way I can -- Cause I will treat you like an attorney. I’ll ask you if you’re available. Okay? So, I mean, I -- I’m not goin’ to -- You will find --
Richard Wilson: Well, the 19th is on a Monday?
Judge Richard Smith: It’s a Monday.
Richard Wilson: A Monday?
Judge Richard Smith: Uh-huh.
Richard Wilson: Mondays are kind of difficult for me, but --
Judge Richard Smith: I was tryin’ to figure out a -- Well, I don’t have a lot of --
Richard Wilson: Usually they are, let’s put it that way.
Judge Richard Smith: I’ll tell you what I could do, let’s do this, what -- Let’s -- We’ll give the State -- Let’s do this, we’ll give the State 10 days to file a long-form complaint, set arraignment on April the 6th, that’s a Friday, at 9:00. And I’ll set aside like 30 minutes so we can discuss scheduling, try to, you know, formulating the issues and -- If you’ve got some idea of what those constitutional arguments are goin’ to be so that Mr. Sutherland can be aware of them -- cause what I’ll probably do is set up like a briefing schedule, motions, a response time, you to give a reply to their brief, time -- and then -- so I -- cause what --
Richard Wilson: Okay.
Judge Richard Smith: There’s two kinds of court, Mr. Wilson. There’s a hot court and a cold court. The hot court’s where everything’s briefed and the Judge knows everything before oral arguments. The cold court’s where
Judge Richard Smith basically considers oral argument and then briefs all at the same time, or sometimes after and then rules. I prefer to do the hot court method so that I know what the issues are, cause I can better understand oral argument at that time. Okay? So we’ll do a briefing schedule then and we’ll try to set that out. So you’ll need to bring your calendar to that and we’ll set arraignment then on April the 6th, at 9:00.
Richard Wilson: And then it -- it’s my knowledge that it’s Mr. Sutherland to show that
Judge Richard Smith has jurisdiction in the matter.
Judge Richard Smith: If there’s a jurisdictional issue raised. That has to be raised first so that he knows what the argument is. But that’s true, the State has the burden of proof in a criminal case on all issues.
Richard Wilson: Right.
Judge Richard Smith: So -- Like for the motion to suppress. Defendant files the motion to suppress to explain what and why, but then the State carries the burden of proof to demonstrate the evidence is admissible. So -- Okay?
Richard Wilson: Right.
Judge Richard Smith: So until he knows what the argument is, there isn’t an argument. But once the issue is, then it’s on the State to -- to carry the day. Okay? MR. SUTHERLAND: Your Honor, can we extend that out to 14 days? We don’t have our driver’s license report back and -- and in case it doesn’t come for another week, --
Judge Richard Smith: Any objection?
Richard Wilson: (Indiscernible response.)
Judge Richard Smith: Well, if you’ve asked for driver’s license records, we’re kind of at the mercy of the State. How about -- I want you to have some time to look at it, so let’s -- I -- I was thinkin’ maybe go 21 days, cause I hate to just continue this hearing again and have you take off to be here just to continue it again just to make sure. So why don’t we do this, we’ll say this is goin’ to be the schedule presuming the State gets their motion on -- their long-form complaint on file. If something happens and they don’t, then I would expect the State to file a request to continue the April 6th hearing so that we have plenty of time. What I’m tryin’ to do is make sure we have a window for you to review the complaint before that April 6th hearing.
Richard Wilson: I would appreciate that, Your Honor.
Judge Richard Smith: Well, that’s what I’m tryin’ to do. So what we’ll do is set the matter right now on the 6th, with them filing a long-form complaint. If they’re unable to file the long-form by then, then I would anticipate a motion by the State. And scheduling matters we don’t have to do on the record, Mr. Wilson, so if that happens and we end up having -- they file a motion to continue, if you have no objection to a continuance of the April 6th date, just -- I’m just explaining ground rules here. My office will contact you and get on the phone to get a date you are available.
Richard Wilson: That’d be fine, or email me even.
Judge Richard Smith: Okay.
Richard Wilson: That’d be fine, Your Honor.
Judge Richard Smith: Okay. All right. Very good.
Richard Wilson: Thank you.
Judge Richard Smith: Thank you. (Whereupon, the hearing was adjourned.) C E R T I F I C A T E STATE OF KANSAS ) ) SS: COUNTY OF LINN ) I, JUDY JECK, Official Court Transcriber for the Sixth Judicial District of the State of Kansas, do hereby certify that the within and foregoing transcript contains all the evidence requested to be transcribed by me, and the rulings of
Judge Richard Smith thereon, from the proceedings had in or at the hearing held March 5, 2007, in the foregoing cause in said court; that said transcript is a complete and correct transcription of the evidence requested to be transcribed from the official tape recording made at the time of the proceedings, as indicated by the files and records of this court; that the cost of said transcript is $57.75. (Computation: 21 pages @ $2.75 per page.) Dated this 19th day of March, 2007. Original signed by: JUDY JECK ___ JUDY JECK Court Transcriber I, RICHARD M. SMITH, Chief District Judge for the Sixth Judicial District of the State of Kansas, do hereby state that the tape recording from which this complete transcript was prepared is the official record made at the time of the proceedings had in the foregoing cause in said court; and that said tape recording, constituting the official record, has been at all times in the custody and under the control of the Linn County District Court. Dated this 19th day of March, 2007. Original signed by: RICHARD M. SMITH ___ RICHARD M. SMITH Chief District Judge _____________________ Richard David Wilson 2111 E. Santa Fe Olathe, Kansas 66062 913-302-8693 cell