NO WITNESS = NO CASE (Installment 6)
RE: NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, OFFICE OF FORENSIC EXAMINER’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) (hereinafter "REPORT")
For those of you who are Serial Readers you may be expecting to read a critique on the "Standing and Capacity" of Attorney Daniel Sklar’s (as agent for the FDIC) claim upon the naked BankEast mortgage in this installment. However, before the merits of the criminal trespass case can be reached (which FDIC’s claim is material) several other legal issues of "Standing and Capacity" must be explored.
- Such as: whether State’s REPORT "Testimony" met its clear and convincing standard burden that is required of it, in order to deprive a citizen, in this case the DEFENDANT, of her Fourteenth Amendment Rights to Due Process to her "Affirmative Defense".
Therefore, the intent of Installment #6 will be to explore the questions: Was the State’s Prosecutorial Intent with its REPORT "Testimony" to "Do Justice"? Or, was the State’s arrest and prosecution of the DEFENDANT "Vindictive" (with ‘dirty hands’) thereby making the REPORT a necessary tool to Cover-up some other past actions?
NOTE: If you are a new Reader of this series "NO WITNESS = NO CASE", you may want to begin with reading the five prior installments before you read this one:
- The Series' main objective is to lay out DEFENDANT’s cross examination of the State’s REPORT "Testimony" that was faxed to the Laconia District Court [LDC] in re: 09-cr-1293-4 and 09-cr-4147 (in both cases the DEFENDANT is charged with misdemeanor criminal trespass) minutes prior to the hearing on the merits of the arrest. DEFENDANT’s goal is to impeach the State’s REPORT "Testimony", and lay out possible motives for the State’s actions to arrest, and diagnose DEFENDANT as ‘Not Competent’ to stand trial, due to a "Delusion Disorder" in order to prevent DEFENDANT from raising her "Affirmative Defenses" with the LDC.
Installment #5 – PART 3 also disclosed to the Readers that it is public record that the State was paid $100,000 for it’s (public/private) coordinated clean up efforts of the High Birches Springs, due to the (September 11, 1997) criminal sabotage that was discovered by DEFENDANT at the High Birches Springs source. The issue that was raised in #5 was whether the State had acted with ‘clean hands’ in taking the Crowninshield money: The State used its discretion not to investigate; but, instead to take the money from Ms. Martha HW Crowninshield; and, in turn it allowed her to control the clean-up, which included the final decommissioning of the High Birches Springs’ water supply source. The State’s motives are issues that will be explored further in Installment #6 NO WITNESS = NO CASE.
Beginning on page 14, of the State’s Forensic Examiner in the REPORT "Testimony" section: Clinical Impressions Regarding Competence to Stand Trial the State’s Prosecutor sent several "red flags" warnings to LDC with respect to DEFENDANT’s "Affirmative Defenses", and allegedly gave the LDC "sufficient evidence?" that DEFENDANT lack legal standing to defend herself.
The State’s Prosecutor, we know from the OPENING STATEMENT INTRODUCTION, Installment #1 confessed in the REPORT "Testimony" to have been given privileged information from DEFENDANT’s Public Defender Eric Wolpin, in violation of Rule 1.6. This confidential information detailed DEFENDANT’s intent to raise issues of law and evidence in the trial, which would raise doubts with respect to the legality of the BankEast naked mortgage, which was used by FDIC’s successors in interest (SNetal/Ingomar/ArkleyII), as their offer of proof to foreclose on the Center Harbor property. These "Affirmative Defenses" would, in turn, raise chain of title issues of: 1) the FDIC’s ‘standing’ to make its initial claim in 1994; 2) the ‘standing of the FDIC’s successors in interest in assignment; 3) the legal "capacity" in which (SNetal/IngomarLP/ArkeyII) held the September 27, 2007 foreclosure auction that caused Waukewan Holdings, LLC to; 4) file its AFFIDAVIT of Ownership, which was; 5) the proximate cause of DEFENDANT’s arrest, and trial.
- In the first instance, the State’s "Testimony" supplied the LDC with its diagnosis conclusion that: "Ms Allan is suffering from a Delusional Disorder, Mixed Type, with paranoid grandiose and somatic features." [Rebuttal testimony that was not allowed by LDC can be found, in part, in DEFENDANT's letter to New Hampshire Medical Examination Board ( a thorough examination of the DEFENDANT’s "grievances" incorporated in her November, 2009 letters will be laid out in Installment #7)
- The State goes on to warn LDC that "A Delusional Disorder is different than other psychotic disorders in that an individual’s functioning may be relatively normal in many respects with the exception of the delusional system that may be relatively circumscribed."
- And, if the above weren’t enough the State’s REPORT "Testimony" had just begun to warm up to its task: "Delusional ideas or perceptions in Delusional Disorder are non-bizarre and involve situations that could occur in real life, such as being conspired against, followed, deceived, poisoned, or being the holder of special talent or discovery".
- But, in the DEFENDANT’s case the State assured the LDC that "The Delusional experience often involves the misinterpretation of events or perceptions in situations where the misinterpretation is either untrue of highly exaggerated. Ms Allan’s presentation is replete with the characteristics of Delusional Disorder."
- State’s REPORT "Testimony" made another conclusion that "Ms Allan appears to possess no insight into her illness, or even the possibility of having an illness, which is typical, and each new experience or insult therefore becomes woven into the pre-existing delusional story".
- And, if the LDC had any doubts what DEFENDANT’s state appointed Public Defender had to contribute, the State supplied the answer for Attorney Wolpin: "However, Ms Allan’s rational understanding of the charges and her ability to assist her attorney and participate in the proceedings with a reasonable degree of rational understanding are seriously impaired and would be unacceptability compromised by her delusional understanding and overriding mission to use the proceedings in a effort to prove her understanding. She has indicated that she will refuse to consider any type of plea bargaining arrangement, no matter how favorable, because she is insistent on pursuing what she calls an ‘affirmative defense’." (Please Note: again the State is "Testifying" for DEFENDANT’s Public Defender in this issue. The DEFENDANT never saw the "Testimony" by Attorney Wolpin to the State, which supported the allegation of DEFENDANT turning down State’s "favorable" offer. DEFENDANT would have testified that the State made no "favorable" offer to her.)
- The State finally warned the LDC not to allow the DEFENDANT to "use the proceedings as a forum to put to trial her entire delusional thesis. A trial for her will involve attempting to get even more data to understand the alleged conspiracy better, with more investigation and unearthing of details to prove conspiratorial links still left uncompleted and/or which she had yet to convince a Court about thus far".
Wow! The State’s message to the LDC could not have been clearer in its ‘Testimony’ (read ‘warning’): LDC do not open "Pandora’s Box". If you do, DEFENDANT may even get "more data to understand the alleged conspiracy better" with respect to "her attorneys" and the State’s actions re: the FDIC’s claim upon the BankEast naked mortgage, and all the subsequent assignments of that claim; the sabotage, and cover-up of the High Birches Springs; among other issues- to include the suspicious death; and; disappearance of the remains of DEFENDANT’s Mother, Agnes S. Allan, while in the State’s custody. ("A Daughter's Promise") The Agent from the NH Attorney Generals Office in charge of Agnes’ remains was Agent Kelly Ayotte. Therefore: NO BODY = NO WITNESS = NO AFFIRMATIVE DEFENSE = NO CASE! (Something for the Readers to ponder going forward.)
What does the law require when it Orders Prosecutors to "Do Justice"?
- "In Berger v US, the Supreme Court 295 US 78 (1935) asserted that the government’s interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done," and that it is therefore the prosecutor’s duty "to refrain from improper methods calculated to produce a wrongful conviction [even] as it is to use every legitimate means to bring about a just one". When the government crosses the line between proper and improper methods, what has taken place is "prosecutorial misconduct".
A question the Readers may want to consider is: Whether the State’s above "Testimony" met the standard set by the US Supreme Court in Berger v US: Or, did the State’s Prosecutor cross the line into "Vindictive Prosecution" when it docketed the above cases? If the answer to this question is affirmative, then the State lacked "Standing" to bring the charges.
- A test for impermissible vindictiveness is whether the circumstances ‘pose a realistic likelihood of ‘vindictiveness’ can be found in re: Blackledge v Perry, 417US 21(1974) and in re: Bordenkircher v Hayes,434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, 1978 U.S: "Prosecutors, unlike judges, operate behind closed doors. Considering that proof of prosecutorial conduct often relies upon the prosecutor’s own statements, which is subjective evidence, rather than objective conduct, there is no objective way to determine the conduct of the State but to open an independent investigation in order to get objective evidence that will be admissible."
- Vindictive has been defined as "having a bitterly vengeful character", or "characterized by an intent to cause unpleasantness, damage, or pain".
- One of the definitions for "vindictiveness" is "to take vengeance for".
The test for the DEFENDANT to demonstrate to the Readers is: Whether it was probable that the State was, in fact, acting in a "vindictive" manner when it arrested her not once, but four times, and prosecuted her twice, as the docket nos. in the two above cases confirm. The test requires that her evidence must show a direct link between the retaliatory response and the defendant’s exercise of her rights." US v Bullis 77F.3d 1553, 1559 (7th cir 1996)
- A Claim of selective prosecution is an "equal protection under the law" claim. More than once the United States Supreme Court has found that "a prosecutor’s discretion is ‘subject to constitutional constraints." (In upcoming installments DEFENDANT will examine the history of the 4 separate arrests and State’s use of its prosecutorial discretion with respect to DEFENDANT. In particular the 3rd and 4th arrests that are the subject matter of case 09-cr-4147)
- Yick Wo v Hopkins , 118 US 356 (1886) (The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states. The Fourteenth Amendment Equal Protection Clause applies only to state governments, but the requirement of equal protection has been read to apply to the federal government as a component of Fifth Amendment due process.)
- The KEY to Wo is: "Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution."
- The Burden of proof on claimant: selective prosecution is that she must demonstrate that "government prosecuted her because of her protective activities and the decision ‘had a discriminatory effect and that it was motivated by a discriminatory purpose." (Clear and convincing Standard prima facie with out discovery. The State had the public record of Waukewan Holdings LLC. V Jean Allan (9-E-0183) The State admitted in open court that it had an ex parte communication (a violation of ABA Model Rule 4.2) with the Superior Court Judge, and persuaded the judge to change her TRO ORDER, which granted DEFENDANT possession of the property in question and, which had been one of DEFENDANT’s "Affirmative Defenses".)
The Readers already know from Installment #3 Part 2: ABA Model Rules of Professional Conduct Rule 3.3 Candor to the Tribunal attorneys and, that, includes Prosecutors, cannot:
- Knowingly used perjured testimony or false evidence – (The Prosecutor knew or had reason to know that Waukewan Holdings, LLC Affidavit of Ownership was open to serious cross examination challenge by DEFENDANT. In her "Affirmative Defense" DEFENDANT was prepared to offer evidence to the Court that would have nullified the September 27, 2007 auction itself.)
- Knowingly make a false statement of fact or law, which has been defined as "An intentionally untrue statement made to mislead". (The Readers may consider putting the State’s REPORT into this prohibited category. In Pyle v Kansas United States Supreme Court implied that using "false testimony" violated due process. In Alcorta v Texas United States Supreme Court went a step further…stated that "false testimony" includes not only affirmative misstatements but also the failure of a witness to be entirely truthful. Testimony created a ‘false impression’.
- Participate in the creation or preservation of evidence which he knows or it is obvious that the evidence is false. (By not allowing the Waukewan Holdings, LLC Affidavit of Ownership to be cross examined essentially preserved it as evidence going forward into other civil cases.)
- Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent. (In this matter the State is the client)
- Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule. (Ex-parte communication with civil Superior Court Judge in a related case Waukewan Holdings LLC v Jean Allan et al, for the purpose of tampering with evidence in order to support arrests 3 and 4.)
DEFENDANT’s burden going forward in this Series (NO WITNESS = NO CASE) must show that at the outset the State knew that the testimony or evidence it had produced in its REPORT "Testimony" to the LDC was false, misleading or deceptive; and, that the LDC’s reliance on the prosecutor’s knowledge of the perjury provides the additional element that raises questions regarding the fundamental fairness of the proceeding beyond probative value of the newly discovered evidence. It is well settled law that "due process requires that absent proof of actual knowledge the exculpatory nature of the evidence had to be so apparent that a court could infer the State knew that this particular evidence was required to mount a defense".
This Series has established that the State had an inside track on DEFENDANT’s "Affirmative Defense" arguments because it had obtained the confidential information from DEFENDANT’s Public Defender Wolpin, in violation of Rule 1.6 Confidentiality. Therefore, if the Readers are to begin to answer the above questions with respect to the State’s Prosecutory Conduct, the follow up question must be: Why was the State so afraid of DEFENDANT’s "exculpatory evidence" that it needed to make certain that LDC Ordered DEFENDANT "not competent". NO WITNESS = NO AFFIRMATIVE DEFENSE.
Beginning in Installment #7 DEFENDANT will begin to cover the "exculpatory evidence" that the State knew DEFENDANT was prepared to offer to the LDC. The first issues to be examined are the methods and processes used by the State in the creation of the October 13, 2009 REPORT itself.