Shoddy charging instruments endemic in criminal cases

This man, who goes by Katt Timmons on FB, was cited to city court under a citation that offered no narrative of the crime and cited an ordinance that cannot be found to exist. (Photo Katt Timmons on FB)

Constructive possession of meth. Driving on suspended. Using a road when a sidewalk is available. Driving on revoked.

These are criminal charges in four Tennessee cases that share a major flaw that a free people might be advised to exploit in their own defense before the judge.

By David Tulis / 92.7 NoogaRadio

And that is: Insufficient charging instrument.

If the charging document lacks the necessary facts of the essential elements of the crime alleged, it is void on its face as an insufficient pleading that fails to invoke the court’s subject matter jurisdiction.

Whenever you challenge jurisdiction, the entire proceeding must stop to deal with that challenge. Without subject matter jurisdiction to evoke the use of the judge’s authority, the judge has no choice but to dismiss the case. And he must do so ministerially, procedurally, if you will, because he has no authority to in any way touch the substance of the case.

Constructive possession of meth

The state is prosecuting Josh Jones, a Middle Tennessee working man. It accuses him of constructive possession of meth. Josh was doing pressure washing at a man’s rural residence, and was invited to spend the night. A SWAT-style raid that day caught him in the police claims against the owner of the dwelling.

A review of the claims against him suggests that the accusations from the law and the facts presented by the state do not sufficiently integrate to make the charging instrument sufficient.

When the court’s subject matter jurisdiction is challenged, the state has the burden to establish that jurisdiction on the record, unless the record clearly shows that it is lacking. If the court lacks jurisdiction on the face of the record, the judge has no procedural discretion, whatsoever, but must dismiss the case in his ministerial capacity.

Questions highlight problem

All facts necessary to bring the case within the statutory definition must be alleged – but in Josh’s case are not. It appears the DA has merely recited penalty provisions with missing facts of the essential elements, and is relying on presumptive conclusions. With the constructive possession charge, the prosecutor can allege possession without having to argue involvement or intent.

Here are some examples of missing facts necessary to establish/support the essential elements of the constructive possession offense charged which makes the information insufficient per case law below:

➤ MANNER OF DISCOVERY: Was the meth found in plain view or was it concealed?

➤ LOCATION OF METH: Gun safe? Briefcase? Bedroom? Bathroom? Kitchen table? Basement? Attic? Mattress? Box? Toilet tank?

➤ MEANS OF DISCOVERY? (HOW WAS THE MET FOUND?) By whom and by what means was the meth discovered? K-9 dog assisted search? Searching by federal marshals? TBI agent? Sheriff(s)?

➤ DESCRIBED CONDITION : Crystals, powder? Wrapped? Bagged? Bottled? Etc.

➤ WHO AND BY WHAT MEANS WAS METH WEIGHT MEASURED? Who was responsible for weight determination of meth and equipment used (TBI scales?)

➤ PROXIMITY TO JOSH JONES: What was the proximity of meth (if in plain view) to Josh Jones? Night stand? Kitchen table? Floor next to bed? Etc.

Here are court cases as provided by a serious legal researcher, cites I suggest you verify before using to determine context and currency. I would look them up on Lexis Nexis at the UTC library in downtown Chattanooga. The system is free even for nonstudents. These quotes are the place to start.

High courts speak on charging instruments

➤ “Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction.” See F.R.Civ.P. 12(h) (3) Joyce v. United States, 474 F.2d 215

➤ “No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot b e supplied by intendment, or implication, and the charge must be made directly and not inferentially, or by way of recital.” United States V. Hess., 8 S. Ct. 571, 124 U.S. 483

➤ “Generally, the charge should be so laid in the indictment or information as to bring the case precisely within the statutory description of the offense, distinctly alleging all material facts necessary to constitute the essential elements of the offense. Nothing is to be left to implication or intendment, or to conclusion, nor can the failure to aver material facts be cured by argument or inference.” Hale v. United States, 89 F.2d 578 (C.C. W. Va., 1937).

‘Set forth in the words of the statute’

➤ A citation “is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished *** ” United States v. Carll, 105 U.S. 611, 612

➤ “A criminal complaint which does not set out facts sufficient to constitute a crime is void, and does not confer jurisdiction upon the magistrate taking it…All of the elements of the crime must be stated *** . A criminal complaint being a statement of facts, should be at least as specific as an indictment.” People State Illinois Ex Rel. Mcnichols V. Pease, 28 S. Ct. 58, 207 U.S. 100.

➤ “The words of the indictment directly and without ambiguity disclosed all the elements essential to the commission of the offense charged, and, therefore, within the meaning of the Constitution and according to the rules of pleading, the defendant was informed of the nature and cause of the accusation against him. United States v. Simmons, 96 U.S. 360, 362; United States v. Carll, 105 U.S. 611; Blitz v. United States 153 U.S. 308, 315 Burton V. United States., 26 S. Ct. 688, 202 U.S. 344 (U.S. 05/21/1906).

Jurisdiction ‘must be proven’

➤ “If any question of fact or liability is conclusively presumed against the accused it is not due process of law.” Ziegler v. R.R. Co., 58 Ala. 594; Wilburn v. McCally, 63 Ala. 436.

➤ “Once jurisdiction is challenged, it must be proven.” Hagans v. Lavine, 415 U.S. 528, 533 (1974).

➤ “Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather should dismiss the action.” Melo v. U.S., 505 F.2d 1026.

➤ “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Bradbury v. Dennis, 310 F.2d 73 (10th Cir. 1962).

➤ “The law provides that, once state and federal jurisdiction has been challenged, it must be proven.” Main v. Thiboutot, 100 S.Ct. 2502 (1980).

➤ “Jurisdiction can be challenged at any time,” and, “Jurisdiction, once challenged, cannot be assumed and must be decided.” Basso v. Utah Power & Light Co., 495 F 2d 906, 910.

➤ “Once a party challenges the trial court’s jurisdiction. . . the burden of establishing jurisdiction is on the plaintiff.” (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir. 1980) (Emphasis added.) CRUTCHER v. WILLIAMS, 1050893 (Ala. 3-14-2008) at p. 6, 7.

➤ “Once jurisdiction has been challenged, the plaintiff bears the burden of proving the existence of jurisdiction.” Wines v. Lake Havasu Boat Mfg. Inc., 846 F.2d 40, 42 (8th Cir. 1988).

➤ “A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property.” Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.

➤ “Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term.” Dillon v. Dillon, 187 P 27.

➤  “A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance.” Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.

➤ It has long been established that “the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).  Caneisha Mills, et al., v. District of Columbia No. 08-7127, U.S. Court of Appeals for the District of Columbia, July 10, 2009.

➤ The charging document must “inform the court of the facts alleged.” This purpose, as defined in United States v. Cruikshank, 92 U.S. 542, 558, is “to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.” Russell v. United StateS, 82 S. Ct. 1038, 369 U.S. 749, 768 (U.S. 05/21/1962)

➤  “[A] person will not be presumed to act with criminal intention.” Francis V. Franklin, 105 S. Ct. 1965, 471 U.S. 307.

➤ “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. at 239.

➤ The Due Process Clause precludes States from discarding the presumption of innocence, which seems implied in the charge of “constructive possession” of meth. “[It] is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Mfg. Co., 241 U.S. 79, 86 (1916).

➤ The legislature cannot “validly command that the finding of an indictment [or information], or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.” McMillan et al. v. Pennsylvania, 477 U.S. 79 (U.S. 06/19/1986) No. 85-215.

Watch ‘stealthy encroachment’

➤ “A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment.” Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951).

➤  “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” Boyd v. United States, 116 U.S. 616, 635 (1886). (italics added)

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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