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A WRIT OF MANDAMUS de Florida
( This is placed here for educational purposes and bears no relation to my opinion of the validity of this writ. It is simply an example of what has been filed and heard.
This Web page contains a complete petition for writ of mandamus that was filed with the Second District Court of Appeal for Florida by me (Bob Allston). It is discretionary for the court to accept such a case, but they did so and RULED in my favor. The petition portrays a myriad of crooked dealings by lawyers and judges from the court below which the higher court totally refused to address although it had a clear obligation to do so. It is provided here as documentation of the refusal of judges to address such behavior of other lawyers and judges and thus the critical need for legal reform in this area.
As in much of the information in this Web site dealing with my affairs, it is extremely rare that such matters, particularly in a well documented form, are ever brought to light. There are far too many factors mitigating against it.
Although this petition stands fairly well on its own, if you would prefer to see a broader overview of the affair before consulting it, one could consult LAW, MORALITY AND STATE POWER: AN OVERVIEW , also on this Web site.
The circumstances leading to filing the petition arose while I was in jail in Lee County (Fort Myers, Florida) on a bomb threat charge in 1994. I had attempted to file a complaint for declaratory judgment requesting the court to declare my rights on a number of issues; among them the right to an honest out of county lawyer of my own choosing.
However the good old boys of Lee County wanted to kill it. Their first ploy was to file the complaint, a civil action, in my bomb threat criminal action; where it could be essentially ignored. When I attempted to appeal their action in doing this, all sorts of curious things transpired. First, I was told the matter was not appealable. Then when I pressed the issue, my notice of appeal strangely disappeared from the record; the evidence suggesting that my own attorney had stolen it. Then when it was finally recovered, the clerk, taking his queue from a judge, just refused to process the appeal.
Thus, in the Summer of 1995, after I was out of jail, I filed this Petition for Writ of Mandamus with the Second District Court of Appeal in Lakeland, Florida. If a lower court refuses to do something that is a matter of right a litigant can apply to the court above it, in this case the 2nd DCA, for an order requiring the lower court to do it; in this case, process the appeal.
The Petition for Writ of Mandamus that I filed with the Second District Court of Appeal portrayed to these august appellate judges a picture that could not be described as other than a totally corrupt and degenerate self serving legal system in Lee County, much of it well documented, and covering issues far beyond the narrow and absurdly complex albeit very important issue of the right of appeal itself. For, as a review of the Petition indicates, many of the issues presented constituted, if corroborated, serious criminal offenses as well as gross due process and constitutional violations by many lawyers and judges.
These appellate judges also had just as much of a legal obligation to address this myriad of corrupt dealings under the dictates of the Florida CODE OF JUDICIAL CONDUCT as they did to straighten out the right of appeal issue; and addressing them was far more important to me than straightening out the right of appeal issue. For, if the legal system below were anything approaching honest, I probably wouldn't need to appeal.
As one can see from the Petition, I worked hard to understand the right of appeal issue in order to draft the petition the best I possibly could and get the matter before the court, in the naive hope that the appellate judges would be honest, would report these corrupt dealings, the corrupt dealings would be addressed, and I would thereby gain something approaching an honest legal system and honest lawyer.
As such, it was a cry for help by an inmate who had been viciously and falsely smeared as a criminally insane lunatic and had been rendered pennyless through a long stay in jail without even knowing or having a copy of the charges against him.
And although the Petition was at least adequately drafted, and drafted in a very respectful manner toward the Court as well, to my knowledge nothing at all was ever done. No one ever requested any further information from me about it nor have I ever heard about any investigations otherwise. Although I had gone through endless attempts to find an honest lawyer, I remained saddled with the same crooked lawyer; and the same corrupt dealings just continued unabated. Business as usual.
This is unfortunately characteristic of this legal system, the court going through complex legalistic gyrations in the pretext, if not smoke screen, of doing its job, cynically ignoring much more obvious and massive corruption that it has just as much of an obligation to address.
The appellate court consisted of a panel of three judges; each of whom being independently responsible under the Code for Reporting such matters. As well, the Attorney General in Tallahassee and the Assistant Attorney General in Tampa representing these crooked lawyers and judges against me had obligations as well.
But, to me, sitting penniless in jail, smeared as a dangerous lunatic in the press, the declaratory action was one of the few avenues I had available to try to reach out to someone in the legal system that was honest; and would thereby do something about all the crooked dealings.
One can only wonder how many falsified charges and affidavits have been used to convict people in the criminal justice system and how many crooked dealings have been used to throw cases in favor of the rich and powerful in the civil courts in Lee County and across Florida; if not the United States.
And these appellate judges and lawyers from the Florida Attorney General's Office representing these crooked lawyers and judges knew full well that they were, for all intents and purposes, my court of last resort; and only hope of achieving an honest trial or resolution otherwise of the case. As such, their obligations were far greater than that of the court below.
In short, due to the breadth of issues covered, the amount and relevance of the supporting documentation, the seriousness of the issues raised, and the stature of this court, you will find that this mandamus action sadly goes a long way to establishing that the rule of law and the most fundamental principles of morality, ethics and fairness mean nothing to the legal and judicial professions when it comes to the wrongdoing of fellow members of the Bar or Bench.
For, in this action, addressed for all practical purposes to the highest tribunal available to me, the legal and judicial professions have held themselves completely above the law on a broad range of serious crimes, ethical infractions, due process violations, constitutional violations and more that ordinary people without their power and influence would go to jail for a long time for perpetrating. And the high position of this tribunal, covering many counties, suggests in turn that these problems go much deeper than just one county and very possibly apply state-wide if not further.
In reading the petition, it is not necessary to understand the considerable complexities of the right of appeal issue to gain an idea of the myriad of other much more obvious issues and the court's obligations with respect to them. Links to a file with basic information on judicial and legal ethics and professional responsibility are provided from most of the appendix documents for convenience.
The Appendix to the Petition contains many documents-- letters, motions, briefs, orders, etc. So that the reader can know precisely what was reviewed by the Second District Court in this Petition, I have adopted the convention of placing a double line such that everything below it was what was seen by the Court. There have been some changes made in the format of the headings and other aspects of this and the Appendix documents due to the constraints of the version of HTML I am using. This does not effect the contents of the documents in any way and should not prove difficult otherwise. However, HTML constraints are discussed in more detail in the APPENDIX INDEX. if further information is desired.
IN THE DISTRICT COURT
OF APPEAL OF FLORIDA
CIRCUIT COURT CASE NO: 94-803CF
ROBERT F. ALLSTON
STATE OF FLORIDA, THE HONORABLE
WILLIAM NELSON, 20TH JUDICIAL
CIRCUIT JUDGE, THE HONORABLE
JAMES THOMPSON, 20TH JUDICIAL
CIRCUIT JUDGE, THE HONORABLE
CHARLIE GREEN, CLERK OF COURT,
20TH JUDICIAL CIRCUIT, FRANK
ALDERMAN, III, ESQ., AND JOHN
PETITION FOR WRIT OF MANDAMUS TO THE 20TH JUDICIAL CIRCUIT FOR THE STATE OF FLORIDA
The petitioner/defendant, Robert F. Allston, petitions the District Court of Appeal, Second District, for the issuance of a writ of mandamus to order Charlie Green, Clerk of Court, to recognize the jurisdiction of the Second District Court of Appeal and process one or more notices of appeal now before him, as specified by this Court, regarding petitioner's Complaint for Declaratory Judgment. Specifically, the petitioner shows this Court:
I BASIS FOR JURISDICTION
This petition for mandamus is brought under article V, Sec. 4(b)(3) of the Florida Constitution and under Florida Rules of Appellate Procedure 9.030, 9.100 and other relevant authorities.
II THE FACTS UPON WHICH PETITIONER RELIES
1. By letter of March 22, 1994, petitioner stated he was proceeding to expose corrupt practices of the Lee County Attorney's Office (A 1 )
2. On March 26, 1994, petitioner was arrested, incarcerated and charged with threatening to kill public officials (A 3, 5, 7 ).
3. On March 27, 1994, petitioner was portrayed in the media as dangerous and insane (A 9 ).
4. While incarcerated in the Lee County Jail, petitioner sent a complaint for declaratory judgment (A 10 ) with a brief (A 14 , 18 ) attached to the Honorable James Thompson in his capacity as officer of the court, to assist petitioner in filing the suit and serving the parties as an indigent.
5. The third cause of action (A 13 ) of the said complaint asked the court to declare petitioner's rights regarding a method of engaging counsel for his criminal action.
6. By order of October 14, 1994, Judge Thompson ordered the action placed in petitioner's criminal action (A 26 ).
7. Petitioner sent Judge Thompson timely notice of appeal requesting him to take care of it (A 28 ).
8. By order of November 3, 1994, Judge Thompson denied the notice of appeal filing it in petitioners criminal action by date of November 7, 1994 (A 30 ).
9. No attempt was made by stipulation of the parties, hearing, or court order to reconcile the distinctions between the declaratory action as a civil action wherein petitioner was plaintiff and there were two defendants, Lee County and the State of Florida; and the criminal action wherein the State of Florida was plaintiff and there was only one defendant, petitioner.
10. By order of November 22, 1994, at a hearing on petitioner's criminal action, the Honorable William Nelson denied petitioner's request for declaratory relief (A 32 ).
11. Petitioner then sent a cover letter and Notice of Appeal directly to the Clerk, taking timely appeal from both Judge Thompson's order of November 3, and Judge Nelson's order of November 22 (A 33 ).
12. After being stamped filed December 5, 1994, by the clerk, this cover letter and Notice of Appeal disappeared from the Clerk's file.
13. On January 23, 1995, petitioner received a copy of his cover letter and Notice of Appeal in the mail from his attorney, Frank Alderman, III, Esq., with the December 5, stamp on it along with other papers requested by petitioner, without explanation.
14. Petitioner again sent the stamped copy of his cover letter and Notice of Appeal (A 33 ) to the Clerk with another cover letter and Addendum to Notice of Appeal (A 35 ) explaining the delay, all filed January 27, 1995, requesting the Clerk to move forward with the appeal.
15. Petitioner received a response from the Clerk dated January 27, 1995, stating the Order of October 14, 1995, (that petitioner was not trying to appeal) was not appealable, saying nothing about the appealability of the orders of November 3, and November 22, that petitioner was trying to appeal; and declining to process the appeal (A 37 ).
16. In his letter the Clerk advised petitioner to consult his attorney, Frank Alderman, III, Esq., citing petitioner's alleged mental problems (A 38 ).
17. At the hearing of February 15, 1995, for a change of counsel, although promised by counsel he could air the issue (A 38 ), petitioner was not allowed to speak and the Court appointed Ralph Elver, Esq., releasing petitioner from jail on ROR (return on recognizance for trial) with no conditions on the release.
18. Upon his release from jail petitioner commenced to "live" in the Jail Lobby in violation of trespass and vagrancy laws as an act of civil disobedience seeking his discovery file and counsel that would address legal ethics among other things. After about ten days petitioner was "Baker Acted" for mental diagnosis after which he returned again to "live" in the jail lobby.
19. Then on March 15, 1995, petitioner was arrested in the State Attorney's Office as an act of civil disobedience seeking a copy of his 94-803CF discovery file, which he understands he is entitled to and has been seeking for over six months from his lawyers, among other things, and which the State Attorney's Office promised to give him but never has. The "information" referred to in the appendix reference is the discovery file (A 39 , 41 ).
20. Despite repeated attempts to contact Elver, petitioner never heard from him; and about the same time petitioner was arrested in the State Attorney's Office, Elver's law partner, John Hendry was appointed by the Court to represent petitioner.
21. Petitioner saw his counsel, John Hendry, for the first time on June 8, 1995, at a jail visit, who advised him that the declaratory question was not appealable until issue of the final order in 94-803CF.
22. Petitioner then went to trial for trespassing in the State Attorney's Office of June 23, 1995, was convicted, and "Baker Acted" for a second time (petitioner was informed by the trial judge, judge Carlin, that if he didn't volunteer for mental diagnos is he would be "Baker Acted" so he volunteered to avoid forcing the mental institution to hold petitioner for the requisite 72 hours under the Baker Act if it didn't want to.) for mental diagnosis to the same mental institution by judge Carlin. This time the mental institution refused to accept petitioner and he returned again the next morning after his release from jail to "live" in the jail lobby in violation of trespass and vagrancy laws as a further act of civil disobedience continuing to seek his dis covery file and counsel that would address legal ethics among other things.
23. While "living" in the jail lobby this time, petitioner reviewed the Florida Bar manual on appeal and a few other references in the Lee County Bar Library leading him to file this mandamus.
III THE NATURE OF THE RELIEF SOUGHT
The petitioner requests that this Court issue an order to show cause to the respondents and ultimately issue its writ of mandamus to the Circuit Court of the 20th Judicial Circuit of the State of Florida, in and for Lee County, requiring the Court to reco gnize the jurisdiction of the 2nd District Court of Appeal and process such appeal or appeals as this Court may specify after examination of the facts and circumstances as set forth in this petition for writ of mandamus.
a, Petitioner's primary interest is to find a method to locate independent competent counsel to address the full scope of issues incident to his defense in 94-803CF, including legal and judicial ethics, and as well grievance matters; and any other litigat ion with which he may become involved.
b, Petitioner needs to untangle this situation on a first things first basis, so that it will not create something in the nature of res judicata or collateral estoppel; but perhaps more importantly to be sure petitioner's rights have been adequately serve d regarding both substantive law and practice and procedure before going on to consider any other litigation for the same purpose which might only confuse an already confused matter further.
c, Since it appeared that somewhere in the course of petitioner's appeals regarding the declaratory judgment action, the 2nd District Court of Appeal obtained appellate jurisdiction it appeared that the matter was thus in the hands of this Court to determ ine when; and that mandamus, addressing jurisdictional issues, was the appropriate vehicle for invoking this Court's review.
d, on these grounds petitioner is requesting this Court to accept jurisdiction of this mandamus action without payment of the fees which he understands is not critical to its jurisdiction and to thereby advise petitioner on the following preliminary matte rs:
e, Since mandamus is a civil action, petitioner is assuming he is not entitled to a waiver of the fees for indigent status whether or not petitioner should be in jail; please advise petitioner if he should be wrong on this point.
f, Is this litigation of the nature that this Court can assume mandatory jurisdiction, either on this ex parte application or after respondents have been heard, and if so is it still necessary for the fees to be paid before the Court can proceed.
g, A related question is, is it possible this Court may establish it has jurisdiction over the declaratory action on appeal either on this ex parte application or after respondents have been heard and if so would this Court then proceed to sort the matter out under its powers over the trial court to enforce matters incident to its appellate jurisdiction rather than through its powers under this mandamus action; and if so would that entail any difference in procedure.
h, In that petitioner has no knowledge or background in law petitioner respectfully requests this Court to view this petition in a manner that will most efficiently accomplish petitioner's stated objectives; whether that be mandamus or otherwise.
i, In the past, as regards motion practice in petitioner's 20th Judicial Circuit criminal action, 94-803CF, the Clerk of the trial Court has sent copies to the court and others and petitioner is requesting the Clerk to extend this courtesy to this mandamu s action and upon petitioner supplying a copy to the Clerk, the Clerk send copies to the respondents, in that petitioner lacks the funds for copying and postage necessary to do so. Otherwise petitioner will see what he can do about it.
j, This petition is based on events in 94-803CF, and it is therefore possible that the 94-803Cf discovery file may contain information bearing on this appeal that petitioner is not aware of. Petitioner obtained an incomplete copy of this file June 28, 1994, and has been attempting to obtain an updated copy for the last six months. Petitioner understands that both his counsel, John Hendry, Esq., and the State Attorney's office have the same file, both of which have refused to furnish him a complete copy. On March 15, 1995, petitioner went to the State Attorney's office as an act of civil disobedience (A 41) demanding a copy of this file and was pr omised a copy (A 39, the "information" discussed in the report is the discovery file). But even though petitioner had to spend 100 days in jail for trespassing in the SAO merely attempting to obtain his rights regarding the discovery file and other things, at a cost to taxpayers of probably $5,000 as well, both the SAO and his counsel have still refused to give him a copy. Petitioner understands this file is about 123 pages in length and thereby requests the Court in exercis e of its jurisdiction over this mandamus action to order the respondent State of Florida, SAO, or petitioner's counsel, John Hendry, Esq., at the discretion of this Court to furnish petitioner a complete copy and to allow petitioner to amend his petition based thereon if desired.
k, When petitioner sent his Notice of Appeal to Judge Thompson (A 28) he included a cover letter which does not appear to be in the Clerk's file with the Notice. Petitioner has reserved space for it in the appendix and is wr iting to judge Thompson, copy to the Clerk, to see if judge Thompson can supply the Clerk with a copy with the date or approximate date received noted on it for inclusion in the appendix to be distributed by the Clerk and the Clerk supply a copy to petiti oner as well to supply to this Court. If for any reason judge Thompson is unable to do so within a day of receipt of this letter, petitioner requests the Clerk to proceed with the distribution without it.
l, All the documents drafted by petitioner in the Court files were hand written because he was in jail when most of them were written and he has no typewriter otherwise; his computer having been confiscated under a forfeiture action. Whenever any of these documents appear in the appendix, petitioner has supplied typed copies done by him at the county library, in the interests of facilitating the processing of the matter.
ORDER TO SHOW CAUSE
a, An order to show cause should be issued in this case because mandamus is the appropriate method to review the jurisdictional errors of the trial court; in that upon tender of notice of appeal the trial court did not recognize the jurisdiction of the 2n d District Court of Appeal or process petitioner's appeals.
a, The purpose of this mandamus action is to get the declaratory action out of limbo by determining whether it will return to the trial court on the merits, go on appeal, or wait for a final order on 94-803CF.
b, To accomplish this, petitioner will (a) first discuss jurisdictional issues to be followed by (b) appealability issues then (c) demonstrate petitioner has a real and pressing need for the declaratory relief requested or such other relief as the Court may deem proper; otherwise addressing jurisdictional and appealability issues would serve no purpose. Petitioner will end his argument on (d) societal issues followed by a personal note.
c, Strictly speaking mandamus is to address jurisdictional issues but petitioner requests the Court to address the appealability issues as well if this Court's jurisdiction under mandamus will allow, in order to avoid the pitfall of finding appellate juri sdiction where there is no appealability; in which case perhaps petitioner could waive his right to appeal in favor of an instance where both appellate jurisdiction and an appealable order are apparent.
a, The first jurisdictional issue presented regards paragraph 6 above (A 26 ). Since petitioner's Notice of Appeal was clearly identifiable in a conventional manner as such, the discussion in the body of the notice clearly indicated an unconditional intention (petitioner was not asking judge Thompson his opinion as to whether petitioner should appeal) to appeal, and met minimum standards to transfer jurisdiction to the Court on Appeal upon filing, Judge Thompson, as an officer of the Court, erred in (1) not filing it as an operational notice of appeal or turning it over to the clerk to do so and (2) when he filed it he erred in stating it could not function as an appeal since by filing it, jurisdiction transferred to the Court on Appeal. (Note that o n this line of reasoning, Judge Nelson's order (paragraph 10, A 32 ) was null and void for lack of jurisdiction.)
b, However assuming the above reasoning is not correct and the trial court maintained jurisdiction, then the question of jurisdiction transfers to judge Nelson's order (paragraph 10, A 32 ).
c, In view of paragraph 9, since Judge Nelson's order (paragraph 10, A 32 ) specifically states he is ruling on the declaratory action as presented and therefore his ruling is null and void as a minimum for lack of serving the parties.
d, Assuming petitioner's assumption in paragraph a, that the court on appeal obtained jurisdiction at that point is not correct then the Court on Appeal obtained jurisdiction on December 5, 1994, when petitioner sent his notice of appeal (paragraph 11, A 33) after which it disappeared from the Clerk's file. Thus when petitioner returned a copy of the notice of appeal to the clerk on January 27, 1995, (paragraph 14, A 33 , 35 ) the clerk erred in advising petitioner he would not process the appeal in that the appellate court already had jurisdiction from December 5, 1994.
e, However, assuming the court on appeal did not obtain jurisdiction on December 5, 1994, it gained jurisdiction when petitioner returned the copy of his notice of appeal to the clerk (paragraph 14, A 33, 35) on January 27, 1995, and it was re-filed.
a, Taking the orders as they appeared:
b, The first order is that of Judge Thompson (paragraph 6, A 26). In light of paragraph 9, the parties, court rules, and practice and procedure are all quite different between civil and criminal actions. In this case the declaratory action had neither been served nor filed; so prior to the order there was no jurisdiction of the subject, parties or person. At some point, the four causes of action would have to metamorphose into the criminal action through an order if not s tipulation of the parties, thus determining jurisdiction of the person and thereby it would appear creating an appealable order. Whether this was implicit in judge Thompson's order or would wait for an order within the criminal action (which was never don e, paragraph 9) is beyond petitioner's understanding of the subject.
c, Judge Thompson was requested, as an officer of the court, to assist petitioner with a ministerial function -- filing the action and serving the parties -- rather than the judicial function he performed in deciding to file the action in petitioner's cri minal action. It would appear that in legal contemplation the declaratory action was a non-entity, having neither been filed nor served. Was judge Thompson therefore acting beyond his authority or jurisdiction in (1) going beyond petitioner's wishes or (2 ) filing the papers in an action; and if so did this make his order null, void, voidable and/or appealable.
d, Petitioner again tried to appeal Judge Thompson's order of November 3, 1994, (paragraph 8, A 33 ) in which his notice of appeal disappeared from the Clerk's file (paragraph 12). Petitioner has no comments as to the appealability of this order.
e, This leaves the question of the appealability of Judge Nelson's order of November 22, 1994, (paragraph 10, A 32). If one considers the matter to have been ruled upon as a civil declaratory judgment action, void for lack of service, it fits the description of a void final order and is appealable. If it is considered to have gone through the metamorphosis to become issues in the criminal action, then it is a partial final judgment; being a final order as to separate and co llateral issues to the criminal issue and appealable as such. In either event the matter is appealable through the same rule for final orders.
f, The Florida Bar manual on appellate practice states, Chapter 6, Section 2, "The Clerk has no jurisdiction to refuse to accept a notice of appeal" so it would appear by this criteria the appeal of judge Nelson's order would have dated from both December 5, 1994, before the notice disappeared or January 27, 1995, after it was returned; the distinction at this point in time probably being moot.
g, Although it would appear not to directly concern either the question of jurisdiction or appealability, it should be noted that one of the reasons petitioner did not wish his declaratory judgment action placed in his criminal file is that it would requi re his criminal lawyer to argue his own deficiencies in order to justify the relief sought -- a lawyer chosen by petitioner from out of the county; a substantial conflict of interest.
REAL AND PRESSING NEED FOR DECLARATORY RELIEF
In this section, petitioner will offer three areas of legal practice where he has not received representation according to minimum standards; for the most part where legal or judicial ethical infractions appeared. These areas are (1), the subject of the mandamus proceeding (2), the declaratory judgment action brief and (3), the Information and Amended Information in 94-803CF. Unethical legal and judicial practice is so commonplace however, that virtually any area that petitioner could choose would have a substantial component of it with an attendant substantial loss of rights if it were not addressed.
First the subject of this mandamus proceeding. This writ of mandamus is about problems of a citizen trying to exercise his right of appeal to the Second District Court of Appeal from the Twentieth Judicial Circuit; a process that is, in reality, one of th e simplest yet most singularly important procedural legal functions to be performed. In essence, one needs only have an order from which to appeal, a sheet of paper with the barest of essentials; and tender it to the clerk. Clearly one of the reasons for this ultimate functional simplicity is that when there are problems not being addressed below that mi ght be addressed on appeal, impediments to invoking review from the appellate court must be eliminated to allow access to everyone, schooled and experienced in the law or not.
It follows then that all of the judges, lawyers and clerk of the circuit court that were advising petitioner had an obligation when addressing the subject of appeal as officers of the court, to be sure that petitioner both understood this most fundamental right and procedure before addressing anything else and that he be accorded this most fundamental right and procedure if he wished to invoke it. However the respondents that were advising petitioner failed miserably at both; for none of them advised peti tioner of it nor was his appeal processed when tendered to the clerk.
Not only was petitioner mislead in this regard but he was also clearly mislead to believe that the question of appealability of orders fell within the prerogative and jurisdiction of the trial court which it is not.
The sequence of events that transpired when petitioner finally tendered his notice of appeal on December 5, 1994, to the clerk is permeated with ethical questions; first petitioner's notice of appeal disappeared from the clerk's file, then showed up out of the blue in correspondence from petitioner's counsel, then when petitioner tendered it for a second time he received a letter from the clerk refusing to process the appeal on grounds that made no sense at all, advis ing petitioner further to consult his attorney who in turn immediately resigned (A 38) citing petitioner's alleged mental problems advising petitioner he could now bring it up at the hearing on his resignation but when the h earing came up, the judge refused to allow petitioner to speak (A 43) while allowing petitioner's lawyer to speak at length with substantial innuendo alluding again to petitioner's mental problems. As the record clearly demo nstrates, when lawyers or judges have been involved with something with an unethical look to it, it has been commonplace for them to suggest petitioner has mental problems.
The second issue to be discussed is the declaratory judgment brief. When petitioner sent his declaratory judgment action (A 10) to Judge Thompson for filing and service of the parties, he included with it a brief (A14) in support of the third cause of action (A13), dealing with his requirement for independent counsel. This brief discusses the unethical acts of government required to support the requirements of the third cause of action and as such is also support for this section of mandamus argument demonstrating petitioner has a real and pressing need for the prayed for declaratory relief; independent competent counsel. (In the event this cause of action is not specific enough to state a cause of action, petitioner is requesting the court t o view the brief as part of the third cause of action if this would help to cure such possible defect; both the brief and complaint having been tendered to Judge Thompson for filing at the same time.)
The references in the brief to the "record" are to the discovery file of which petitioner obtained an incomplete copy on June 28, 1994; petitioner not understanding the distinction between the discovery file and the clerk's file at the time. The reference s have not been included in the appendix.
When reading the brief, it may be noted that when it was written in October 1994, petitioner was not aware that the Information had been superseded by the Amended Information or that counts one and two of the Information and counts three and four of the A mended information were false.
Petitioner will complete this discussion of the adequacy of counsel with the questions regarding the Information (A 5 ) and the Amended Information (A 7 ). Some time after petitioner finall y received the Amended Information in January, 1995, (A 47 ) petitioner realized that the State Attorney's Office must have recognized that counts one and two of the Information were false and the accompanying affidavit was falsified, for lack of having any sworn testimony from commissioner Judah in support of counts one and two.
It also appears that the State Attorney's Office must have also known that those two false counts were replaced by two more false counts, counts three and four of the Amended Information for the same reason that there was no sworn testimony to back them u p. (However the deficiency may have subsequently been made up in a rather strange manner. Judge Thompson probably received petitioner's declaratory action on October 5, 1994, and on October 6, six months after petitioner was arrested and after petitioner had advised his public defender he was dismissed, and not to take any further steps, petitioner's public defender took 12 depositions, the first four of which being from the County Commissioner's assistants and these depositions may have supplied the miss ing sworn testimony for count three of the Amended information). Count four (A 8) also fails the affidavit because it appears to be just meaningless legalese intended to induce petitioner to believe it is a valid count agains t him.
Petitioner did not receive the Amended Information until he had been in jail for 10 months at which time he was offered his first plea bargain (A 47); the reason he got the Amended Information at all being he saw it with his attorney's papers through the jail interview room window and requested a copy.
None of petitioner's attorneys have advised him that any of the counts were false or that anything was wrong with them otherwise. All through this ten month period petitioner was being kept in the dark about the case even though he had attempted to file the declaratory action and had gone on a 19 day hunger strike seeking information about his case and independent counsel all of which constructively suggests, and petitioner alleges, he was being kept in jail, in the dark, without trial or the offer of a plea bargain until he should be desperate enough to get out that he would sign the plea bargain that was finally offered to him (A 47) after th e ten months.
In conclusion, the facts and circumstances regarding the subject of this mandamus proceeding, the declaratory judgment action brief, the false counts in the Information and Amended Information clearly indicate that petitioner has a real and pressing need for the declaratory relief requested; to locate counsel that will function and act independently and competently in petitioner's interests or such other relief as the court may deem appropriate.
THE CURRENT STATUS OF 94-803CF AND REQUIREMENT FOR COUNSEL
Petitioner has filed a motion in 94-803CF dated May 5, 1995, entitled Motion to Proceed with Trial Preparation (A 43 ) and petitioner has made several requests of the court to hear his motion. Attached to this motion is a letter to petitioner's counsel John Hendry, Esq. dated April 6, 1995 (A46). Petitioner has also written to Mr. Hendry by date of June 21, 1995 (A 49). This motion and these letters explain that petitioner is requesting Mr. Hendry to address the ethical issues before addressing other issues. Mr. Hendry's firm has been representing petitioner since February 16, 1995, but to date there has been no response to p etitioner's request regarding such issues. Trial is currently set for August 14, 1995.
Note: The following three paragraphs were placed at the end of this petition with reference to the above paragraph because this document was already typed when the referenced letter was received:
The body of a letter dated July 7, 1995, from petitioner's counsel, John Hendry to petitioner reads: "I know you have been writing to me because I have received your letters. However, as I have told you before, I cannot read your writing. Please either print or type any and all future correspondence to me and to the Court. It would be very much appreciated."
Petitioner does not question his handwriting is difficult to read however most people manage it. At the same time it would appear that difficult handwriting comes with the territory in legal practice, especially in criminal practice, where many clients ca n barely read and write. As well Mr. Hendry can see petitioner in person, either in or out of jail, and he can talk to petitioner on the telephone. He could also return petitioner's letters with things he can't make out marked. Petitioner has discussed th is with him (A 46 ). Petitioner has not talked to him on the telephone, in spite of many attempts, about the case and he has only seen him once in person at a June 8, 1995, jail visit although Mr. Hendry's firm has represe nted petitioner since February 15, 1995.
Thus it would appear Mr. Hendry's problem with petitioner's handwriting is another excuse not to address ethical issues of fellow members of the Bar; however if not, Mr. Hendry will find many of the materials he needs herein.
That this appeal has come to this Court by way of writ of mandamus drafted by a lay person instead of a lawyer suggests that it may be very rare that the ethical and due process issues represented in it ever get to this Court and may be being "sanitized" out of appeals that do get before the Court from Lee County.
At the same time, the openly blatant way in which petitioner's right of appeal and false charges have been handled over this long period suggests that within Lee County there are no viable self correcting influences leaving open the possibility that such abuses may not be uncommon further begging the question of how many rights may have been lost that might have been preserved on appeal and how many people are in jail or may have been convicted on false charges.
As serious and obvious as the moral issues raised by these questions are, their implications in a possible future revolutionary context are far more serious if not necessarily so obvious. There is no lack of precedent for the militia movement as a revolut ionary force in philosophy and history. Petitioner's article for which he was arrested (A 3) cites Aristotle on the middle class. The militia movement is for the most part simply the most aggressive and militaristic element of t he stressed out middle class in this country. As stated by Aristotle over two thousand years ago, the health of the middle class indicates the health of the nation. Consider Haiti, Mexico, Norway, Switzerland. Thus according to Aristotle the more stressed the middle class the more trouble can be expected from the militia movement.
Consider John Locke on social contract. The militia movement is all about the alleged breach of social contract by government. Consider Machiavelli on the electoral process. Every few months we read in the media that fewer Americans respect or participate in it. When petitioner wrote this he had never heard of the militias. The point is, the social and economic forces at work in this country precipit ating the militia movement are well represented in history and philosophy, and, as the saying goes, "those who ignore the lessons of history are bound to repeat them."
We are fortunate to be riding near the crest of the business cycle which is superimposed upon, thus far, pervasively downward longer term social and economic trends. But the business cycle is, at best, a natural and controlled process which will sooner or later turn down accenting the plight of the middle class and distrust of government in a manner progressively more severely than in the previous down turn in the early 90s. At its worst, the business cycle will go out of control on the down side into severe depression, an inevitable consequence of longer term problems and out of the reach of the bes t minds in the Federal Reserve and monetary and fiscal policy generally. Even if one takes the most optimistic view that the longer term problems will be overcome we still face an eventual downturn in the business cycle.
It is at such a time that the Nation will be the most vulnerable to terrorism and revolutionary thinking; and it is instructive to place the subject of this mandamus issue in a likely scenario on the progression to revolution to understand the consequence s of cases like it.
At some point we may see a series of high profile terrorist events. This would be followed by a crash in the dollar on foreign exchange markets to be followed by depression, economic deterioration in the middle class (no jobs, no money) and a rapid increa se in militia membership.
At some point in this process some lawyers, seeing perhaps the winds of political change, will be enlisted to catalog and publicize the abuses of the "old" system. Thus the public for the first time will be deluged with the product of their labors; and that which had been swept under the rug will be exposed for all to see.
This process has historical precedent in one form or another in all of the recent major western revolutions; American, French, Bolshevik and 1930's Germany. The object of course being to prepare the public to accept the military destruction of government; a key element being the courts.
Petitioner argued in A 18 that all of these historical revolutions could have been taken out of the streets and channeled through the courts if the courts had been free to consider broad based equity claims. However if the courts are destroyed as viable instruments to meet this challenge in the minds of the public early on in the progression of revolution, any avenue of this nature will be foreclosed; and very likely this democracy would be destroyed as well for, as petitio ner pointed out in A 18 , revolutions have a poor record in this regard.
As modest as this mandamus is, preparing it has not been easy. Petitioner sleeps at night on a hard bench in the jail lobby often with noisy people coming and going all night long paying fines and posting bail. Sporadically jail guards will wake petitione r at night every hour or so in an effort to get him to leave. Petitioner usually walks 8 blocks or so to the Salvation Army once a day for a meal and will usually have to lie down somewhere along the way to rest his back and more recently feet, having a b ad back and increasingly swollen feet for some reason. When it rains, petitioner has no rain coat and no way to dry his clothes so he simply wears wet clothes. Consequently petitioner is always very tired from lack of sleep, often in pain from his back an d to a lesser extent his feet, and has headaches periodically. For these reasons the kindness and professionalism of the library people in both the County public and law libraries in dealing with a street person could not be more appreciated.
Petitioner has been advised by guards that he is in violation of trespass and vagrancy laws but he stays in the jail lobby as an act of civil disobedience to remind criminal justice officials who go through the lobby that he has rights, many of which are presented herein, which are being denied.
Before petitioner was arrested in March 1994, at 57, he had never been arrested for anything, had psychiatric diagnosis or treatment or been on welfare of any kind. One of the failings of the criminal justice system is that productive people may be put in jail causing them financial and personal problems leading in turn to dependency upon welfare when they get out.
Petitioner has no interest in becoming a part of this cycle of dependency. More importantly however, if Lee County had an honest legal system petitioner would have no need for welfare. For one thing it would not have taken nine months to address this decl aratory action; more importantly however, there would have been no need for the declaratory action, at least the third cause of action, in the first place. Taking it back to petitioner's original arrest in March, 1994, this affair, riddled with questions of unethical legal practice, has probably cost taxpayers around $25,000 and now they would be expected to pay welfare as well.
The same might be said of the Salvation Army; why should financial supporters of the Salvation Army be expected to support people placed in such condition by corrupt government any more than taxpayers should.
Respectfully submitted this the 21st day of July, 1995.
Robert F. Allston, pro se
P.O. box 1751
Fort Myers, Florida 33902
APPENDIX INDEX ANATOMY OF A LEGAL PROCEEDING ETHICS AND PROFESSIONAL RESPONSIBILITY RULES
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