A legal maxim
Fraud has the outward visible sign of honesty, but lacks the inward spiritual grace.
District attorney David Schmidt, in the running as one of 20 applicants for sessions court judge in Hamilton County, is blotted by at least one violation of lawyer ethics in a recent case involving a liberty oriented criminal defendant.
By David Tulis / 92.7 NoogaRadio
Mr. Schmidt’s acts to abuse of Jon Luman, however, are shared as routine by all prosecutors in district attorney Neal Pinkston’s office who knowingly violate Tenn. Code Ann. § Title 55 by alleging transportation offenses against people not involved in transportation.
The Schmidt violation can be traced out in the state’s Rule 8 of professional conduct for attorneys. Mr. Schmidt dealt with Judge Lila Statom in sessions court with a lack of candor and also in bad faith, effectively inviting Judge Statom to perpetuate a fraud firmly settled in precedence. The great purpose of that deceit is state convenience and the security of us all.
The potential arguments that can be made against him as an attorney touch on rule 3.3, candor toward the tribunal. That holds that a lawyer “shall not knowingly *** make a false statement of fact or law to a tribunal.”
An attorney cannot hide facts about the state of the law even though revealing that may be disfavorable to his client. The State of Tennessee alleges it has been injured by Mr. Luman’s use of the road as a free person outside any privileged commercial or transportation activity.
Judge Statom knows little of this law, as few of its workings are made to rise within consciousness in her informal court, called an inferior court, where no jury presides and law is not generally cited. (Mr. Luman has yet to obtain a copy of the charges against him or the deputy’s averments, despite repeated request.)
Mr. Schmidt, whose bid is expected to be subject of a county commission vote Wednesday, shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
The client, the State of Tennessee, has been under notice since March 2018 about the limits of state authority under Title 55 to prosecute people who are not shippers. This broadcast journalist and blogger in March gave Mr. Schmidt’s boss a copy personally delivered of administrative notice. He published the document as a public record in Rhea County, and gave notorious publication of its claims on four consecutive Fridays in the Times Free Press legal classifieds.
Mr. Luman, for his part, has given notice of the travel-transportation distinction to the complainant.
He has an affidavit of status given to agents of said corporation in Red Bank, an incorporated municipality. Figuring that such explicit notice may fail to gain attention, he posts a legal notice on the back of his carpenter work truck, a ratty green SUV Ford Explorer. It states: “Private traveler[;] not for hire.”
The case law for notice in Tennessee is detailed and explicit, and the parties are aware of these opinions explaining how the common law rule of notice works. See my essay, “Notice means officials must reform traffic stops or face personal bad faith tort lawsuits” for details.
When I apprise Mr. Schmidt that his office has been informed by transportation administrative notice of the distinctions in the law, and that he is acting ultra vires, he says he doesn’t know anything about it but that I should take up my press matters with Melydia Clewell, the DA’s spokeswoman.
In a rule for prosecutors, an attorney is forbidden to prosecute a case that he “knows is not supported by probable cause.” Since Mr. Schmidt knows the basic elements of a state privilege (calling or occupation), he knows Mr. Luman is specifically asserting by his back plate he is NOT involved in a privilege and thus not subject to Tenn. Code Ann. § Title 55.
Mr. Schmidt “shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense,” (Rule 3.8(a) and (d)), namely, that the officer erred and goofed when he stopped and arrested Mr. Luman for exercising his rights.
Fraud or generalized misdirection?
It is possible in Mr. Schmidt’s defense that nothing he argues against Mr. Luman is a “false statement.” Rather, it is a sort of generalized misdirection that pretends the rules of statutory construction and evidence no longer apply — in light of judicial policy revoking constitutional rights. If the courts of appeal hold that travel in Tennessee does not exist except for the changing of one’s domicile from one state to another, then at most Mr. Schmidt makes no “false statement,” only operates amid a rich daily culture of mistake.
Gibson in his monumental Gibson’s Suits in Chancery recounts how chancery court gained in purpose and prestige and how the rules of equity serve to uncover all kinds of deceit.
“All the haunts of fraud were laid bare, all of its paths, however crooked, were sign-boarded, all of its subterfuges pointed out, all of its false coins branded, and all of its allies detected and marked with badges. Fraud has been so crippled and hedged about by the Chancery Court that its power to deceive and do evil has been much weakened, and the remedies for its rascalities much increased, but it has not yet gone out of business.”
The solution to private fraud — and fraud with a public face — is, I suspect, to be found in chancery.
Lurking in general expressions
Fraud can be understood through quick-study Latin maxims, recorded by Gibson as follows:
- — A person who intends to perpetrate a fraud uses general terms
- — Fraud and justice never cohabit
- — It is a fraud to conceal a truth
- — The suppression of the truth is the suggestion of what is false
- — Fraud lurks in general expressions
- — Fraud poisons all it touches
- — The knot that fraud ties, Equity delights to untie.
- — Fraud strives to cover up its tracks
Private malingerers and scamsters are an occasional evil. Public deception against black-letter law and the clear words of the general assembly are worse, and more to be feared.
It is not our place to dissuade any county commissioner to vote against David Schmitt, or a second lawyer from Mr. Pinkston’s office. It’s possible his work using Title 55 as a club against the rights of the people — for years, now — makes him most suitable for the judgeship. Perhaps these characteristics of the modern prosecutor make him the leading candidate.
In his first of two instances of trying to win a plea deal with Mr. Luman, Mr. Schmidt tells him he has constitutional rights — right to a jury trial, for example.
But he denies that in fact the carpenter from Red Bank has that fundamental root liberty, which is movement by one’s private and best-available means, by the mode of one’s choice and whim, on the roads of Tennessee of which the state is mere caretaker, steward and maintainer.
The state’s legal fictions about the people’s rights are set for a fall, if only one or two people rise up against and make proper appeal, and if the people in general make a point of watching.
Exacting claims of private person status
