Grievance — It is alleged that judge Travis Lee of Smyth County acted in violation to be impartial in a summary bench trial case without record in that he denied defendant her God-given, constitutionally guaranteed unalienable and inherent rights to be able to put on a full defense of herself and to demand the state allege all the essential elements of the crime and then prove them against the ultimate fact of the statute.
There are 13 grounds for this complaint:
- — Refusal to allow complainant use of equipment in her defense, and in her appeal. Judge allows attorneys to have equipment of their choosing but discriminates against financially poor and pro se / sui juris defendants whose persons and defenses are presumed to account for nothing
- — Refusal to allow complainant counsel of her choice on grounds he is not a member of the bar, as if the people’s district court is a closed union shop
- — Abuse of discretion in refusal to grant request for an evidentiary hearing prior to trial to obtain sufficient notice and the right to know nature and cause of the accusations
- — Denial of her God-given constitutionally guaranteed right to know nature and cause of a “baffling” prosecution, as she called it
- — Refusal to allow complainant to plead case law from Virginia appellate courts as to the essential elements of the offense
- — Refusal to honor the U.S. Constitution equal faith and credit clause that would have allowed complainant to cite and quote a Tennessee case
- — Refusal to allow complainant to develop her theory of the case in the exercise of her due process rights under the 14th amendment and refusal to allow her to build foundation by eliciting evidence.
- — Refusal to allow relief to complainant from hidden facts sprung in ambush on the complainant, acting sui juris, at trial. Such purported “facts” would have been properly brought into view in the preliminary hearing and allowed her and her counsel to evaluate them.
- — Ignoring her constitutional right to know the nature and cause of the accusations, leaving her unprepared to deal with the crucial alleged fact complainant alleges was perjured.
- — Creating fictional facts to justify a conviction finding
- — Convicting complainant on a charge introduced after the state had rested its case, a charge against which she had not been able to make a defense, and the basis of which would have had to have come from the evidence supporting the original charge of reckless driving, which evidence did not exist.
- Refusal to grant accused the presumption of innocence and operating on a preponderance of evidence basis rather than beyond reasonable doubt.
- Unclear on basics: “Sustaining” vs. “overruling” an objection
The case State of Virginia v. Abigail Tulis Case no. GT19020759-00 was heard Feb. 27 at the 9 a.m. docket in Smyth County under Judge Lee. Trooper Brandon Frye charged Miss Tulis with “reckless driving, general” in a Dec. 21 encounter on Interstate 81 in the westbound lane.
1. Refusal to allow recording equipment
Judge Lee twice denied complainant the statutory right to have personal electronic equipment that would have assisted in her defense and helped secure an appeal. She asked initially to have permission to record the proceedings, and asked for reconsideration. Judge Lee twice denied the request
The denial was made even though Miss Tulis said that no court reporters were available, the last party she’d been able to contact being Huseby Global, which secures court reporters across Virginia. A representative from the company told David Tulis, her father, no reporters could be scheduled for Feb. 27.
In connection with this grievance, Judge Lee denied a news reporter use of his laptop and phone in the court despite written request and assurances that use of a laptop would not disturb the serenity of the venue. He was gracious enough to allow older technology to be used (pen, paper).
2. Refusal to allow counsel of choice
Miss Tulis as part of her preliminaries indicated her desire to exercise her right to counsel of her choice. She asked Judge Lee if she had a right to counsel. He said yes. She asked if she had right to counsel of her choice. He said yes. She said she named her father, David Tulis, as counsel of her choice. He denied her right, imposing qualifications upon his person that were arbitrary and capricious, a claim of the closed union shop of the bar upon the people’s proceedings in the people’s court.
Miss Tulis is a Tennessean and her state bill of rights is clear under Article 1, section 9, which right must be accepted in Virginia under the full faith and credit clause of the U.S. constitution.
“That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, etc.”
She is also protected in the U.S. constitution, Amendment 6, by an expression of an enumerated right “to have the assistance of counsel for his defence.”
Black’s Law dictionary has three definitions of counsel. The third is “One who has been admitted as an attorney and counsellor at law. Baker v. State, 9 Okl.Cr. 62, 130 P. 820, 821.” The first is:
COUNSEL. 1. In practice. An advocate, counsellor, or pleader. 3 Bl.Comm. 26; 1 Kent, Comm. 307. One who assists his client with advice, and pleads for him in open court.
Judge Lee violated her constitutional rights twice by forbidding her counsel of her choice under two constitutions.
3. Refusal to grant demand for an evidentiary hearing
Judge Lee denied a proper motion or an evidentiary hearing to review the state’s testimony and evidence, and to learn whether the evidence was sufficient to bring the case before the judge for trial. It was in the interest of the court and of justice to determine whether there was subject matter jurisdiction, which must be established when challenged. The judge lacked subject matter jurisdiction and should have taken the opportunity of an evidenitary hearing to save the court the trouble of a trial in the interest of judicial economy.
The court lacked jurisdiction because the accuser and his evidentiary facts, as evidenced in the trial transcript and affidavit, lacked the essential elements to prove a crime had been committed.
Judge Lee violated Canon 3 requirement to know the law: “A judge shall be faithful to the law and maintain professional competence in it.”
4. Denial of knowledge of nature and cause
Similarly to Point 3, Judge Lee denied complainant the right to know nature and cause of the prosecution, which right is required to be respected in the Tennessee and Virginia constitutions.
Tennessee bill of rights, Section 9. That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county in which the crime shall have been committed, and shall not be compelled to give evidence against himself.
As for Virginia protections:
Section 8. Criminal prosecutions.
That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense.
Trooper Frye testified that his summons was the only charging instrument in the case. But it does not contain a description of the alleged crime nor any elaboration of the evidentiary facts. The form is unconstitutional in result and effect, because troopers believe that the single line of space given on the form means that it is sufficient and constitutionally obedient to give three or four words to narrate an entire criminal act. If the charging instrument was the whole of the charging instrument, complainant was denied a “copy thereof” as is her right under Tennessee law.
Complainant was under this law denied her right to “demand the cause and nature of [her] accusation.” She demanded it, but was denied an answer.
She also cited the doctrine of judicial economy as support for her request for an evidentiary hearing, pursuant to judicial Rule 8, “A judge shall dispose promptly of the business of the court.” Judge Lee denied her request without explanation.
5. Refusal to allow complainant to plead case law, pursue her theory of case
State of Virginia v. Abigail Tulis shows that Judge Lee abused complainant’s due process rights under the 14th amendment to develop the legal arguments in her defense.
Judge Lee repeatedly showed partiality to state employees in violation of Canon 2A, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Judge Lee repeatedly favored state objections and shut down many parts of the defense in its efforts to argue the evidence and the essential elements required to obtain conviction.
Compare the complainant’s affidavit about questions she asked at trial compared to her list of questions Prepared for Trooper Brandon Frye on the stand. Since the state and the trooper charged her criminally, the court — once it has assumed subject matter jurisdiction — has a duty to let her mount a defense on each of the essential elements of the charge, and also to inquire into the methods, training and motives of the officer, whose job is fundamentally about law and its application..
Judge Lee denied the line of questioning going to the officer’s credibility, training and routine.
Judge Lee, showing partiality, sided with commonwealth attorney Jill Lawson and Brandon Frye during the proceedings, whereas the complainant, a belligerent complainant in person, insisted on fully mounting a defense and to develop her theory of the case.
6. Refusal to allow complainant to plead TN case law regarding essential elements of offense
The accused, as her trial script indicates, was prepared to plead the definitions of “weaving” and a car’s adjusting itself in its lane from the noted Tennessee case, State v. Garcia, No. M2000-01760-SC-R11-CD, Oct. 01, 2003. She raised this case as advisory opinion in final argument, but Judge Lee shut her down, claiming that Virginia need not consider the Tennessee Supreme Court ruling.
In that case, the court said adjustments in a lane are not probable cause for an arrest.
The videotape also reveals that Garcia slowly moved his vehicle slightly within his lane of travel approximately twice over a period of approximately two minutes. At no point does the vehicle exhibit any sharp or jerking movements. While there is a short period of time when the vehicle is not visible on the videotape, we find no testimony in the record suggesting that the defendant exhibited any pronounced or exaggerated swerving during that brief time period. *** Given that Officer Kohl testified that she did not witness the defendant speed, drive too slowly, cross any lanes of traffic, illegally pass another vehicle, follow too closely, commit a violation regarding use of the turning signal, or drive on the shoulder, we agree with the lower court that neither the videotape nor Officer Kohl’s testimony reflect that, at the time he was pulled over, the defendant was currently endangering “the life, limb, or property of any person.”
In short, in accordance with the Odom standard, we conclude that the trial court’s findings of fact at the suppression hearing are not supported by the preponderance of the evidence. Accordingly, we hold that as a matter of law there was no reasonable suspicion to stop Garcia. (Emphasis added)
7. Refusal to allow complainant to build foundation for questions on evidence
If complainant were a trained lawyer, Judge Lee would have held her to a high standard. But she was sui juris, pro se, and without counsel, yet with intelligence pursued her defense by properly building foundations for her case.
For example, she set up Trooper Frye to trip over the uniform summons by asking him early on to name and describe her, which he properly did. She brought up the form, and asked him if he did indeed “describe charge,” which the form requires, or simply name the charge.
Trooper Frye pretended to be flustered and uncomprehending when confronted with this trap. ‡ This question impeached him entirely as a bumbler. He did not describe the charge, though he knows what “describe” means. He failed to provide her any notice of the charges against her, depriving her of due process. Whether this denial is premised on the form, his training or his personal will is immaterial.
His action, as agent of the state and witness, denied the accused due process.
Judge Lee covered for his incompetence, and didn’t throw out the case on the spot, which he should have in his ministerial function, as he lacked subject matter jurisdiction.
The form is unconstitutional. It tells officers they can operate their regulatory and revenue-gathering system without having to provide sufficient charge against and notice to the defendant — and hundreds of thousands of other travelers and/or commercial users of the roadways.
9. Judge allows trial ambush
Judge Lee refused to allow complainant to be shielded from hidden facts of the prosecution’s case that would have emerged at an evidentiary hearing giving nature and cause.
This testimony was sprung on complainant at trial. Such purported “facts” would have been properly brought into view in the preliminary hearing and allowed her to evaluate them for trial.
Judge Lee acted complicitly with an unconstitutional uniform summons, denying the accused her God-given, constitutionally guaranteed, unalienable and inherent rights to due process, sufficient notice and to be spared ambush by hidden evidence.
10. Creating fictional facts from thin air to justify guilt
The trial transcript indicates Judge Lee, to reach the low (and improper) preponderance of evidence standard, Judge Lee invents a theoretical danger on the road. The complainant, traveling at 50, caused a grave danger considering there might be motorists using the highways at speeds above 100 mph. According to her affidavit of undisputed facts from her trial:
He ruled me guilty of improper driving, saying “it’s not an easy decision.” He stressed that he is convinced that I was traveling at 50 mph in a 70 mph zone and said it is “a dangerous speed.” He says it is “dangerous to be below the posted limit” and that it is “dangerous to be playing with the radio.” He said, “Some people are on the road doing 120 mph, even 140 mph, and it’s extremely dangerous to be doing 50,” he says.
Judge Lee said, “the dangerousness of this conduct” merits a $500 fine.
Complainant was convicted under a theoretical danger devised by the judge after the trial was over. For there to be a cause of action, as Judge Lee should know, the accuser must have eight elements:
— Known duty
— Breach of duty + damages
— And who, when, what, where, how, why
He convicted capriciously and arbitrarily, absent any breach or damages, based on whimsical evidence.
11. Convicting person under charge she did not defend against
Adding a criminal charge against the complainant after the prosecutor had stated the government had rested is unethical and unjust, a violation of due process. To convict Abigail Tulis of “improper driving” is to convict her of an ambush charge.
Judge Lee convicted Abigail Tulis of a charge she had not been warned about, against which she had made no defense, a charge sprung upon the defendant in the last moment of the trial at the judge’s initiative after the state had rested its case.
Such action is strictly forbidden in Cole v. Arkansas, 333 U.S. 196 (1948). “It is as much a violation of due process to send an accused to prison following a conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” https://supreme.justia.com/cases/federal/us/333/196/
Complainant says in her motion to dismiss: “Even To Have The Court Sua Sponte Convert The Charge To Improper Driving, “Reckless Driving” Must Be Proven 1. There needs to be an element of moral turpitude, though slight, before the judge can convert the charge. Changing the charge to ‘improper driving’ was an abuse of discretion since reckless driving is not supported.”
12. Refusal to act justly, proportionally without accused’s presumption of innocence
Judge Lee fined complainant the maximum fine of $500 on a “lesser included charge,” under 46.2-869, improper driving.
The trial narrative indicates he put much weight on the Frye perjured testimony of her speed being 50 mph.
Even if true, the allegation of 50 mph as a disturbance falls flat. The roadway was empty, Mr. Frye testified. Had he charged her with impeding traffic by slow speed, the maximum fine would have been $30 under § 46.2-869
The state entered no evidence on minimum speed.
Virginia code § 46.2-877. Minimum speed limits. Says “No person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law. *** ”
13. Unclear on basics
Complainant has the sense that the judge is unfamiliar with basic courtroom procedure.
She asked the difference between “sustain” and “overrule” an objection. When the prosecutor made an early objection, he sustained it, and Miss Tulis proceeded. He explained that when he overrules an objection, the question is blocked and that when he sustains an objection the question may go forward. But that was backwards, and he corrected the comment and blocked the complainant’s question.
Controlling administrative authority
The Virginia rules hold “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” (Canon 2(a))
He must not show favor to any. “(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.” Canon 3(b)(2)
To a sui juris or pro se defendant, the judge must exercise grace. “(4) A judge shall be patient, dignified and courteous to litigants *** .” Canon 3(b)(4)
A judge is forbidden from showing partiality under Virginia law. “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice *** “ (Canon 3(b)(5)
Respect of persons /partiality in judgment is a moral evil prohibited in the judges’ oath of office.
Respect of persons in judgment is an absolute, unchanging, natural law which is inherently known to be wrong and evil in itself (e.g., robbery, murder, kidnapping, etc.) and meets the category definition of a malum in se crime.
Documentation in this complaint
Complainant was prepared for trial and expected to get justice in the encounter with Commonwealth of Virginia in Judge Lee’s court. Her scripts indicate a high level of care and regard she gave the state’s claims, taking seriously its allegations that she violated its tranquility and peace under its reckless driving, general, law. Her paperwork, submitted in an appeal to circuit court in Smyth County, likewise shows high regard for the rule of law and the due process rights the court system of Virginia owes every member of the public.
- Defendant affidavit of undisputed facts of Dec. 21 encounter with trooper Brandon Frye, 23 pp
- Tulis trial script, a pretrial preparation work product or script, 22pp
- Tulis motion for dismissal with prejudice as a matter of law; in the alternative, to dismiss as a matter of equity and justice, 35 pp
- Tulis authorities table, basis for her theory of case
- Virginia uniform citation
‡ Complainant submitted administrative complaints with the Virginia State Patrol on Feb. 27 in Wytheville alleging post-trial harassment and slander of Abigail Tulis. Complainant’s father David Tulis, a member of the Tennessee press, filed a complaint against Trooper Frye alleging harassment and dishonesty in encounters after trial. The two complaints prompted a departmental investigation of Mr. Frye, the results of which are secret.