A member of the Tulis family has filed petition of appeal in the Virginia court of appeals, with her response to the state’s brief in opposition being filed Monday. Her rebuke of cartel courts and predatory police offers remarkable insights how states use transportation law enforcement to run a lucrative racket.
[Note. this document has been revised and was resubmitted to the court to meet its requirements for review. The update is at this link.
The lawless activity begins with a “traffic stop“ (really, an arrest) on pretext and use of a uniform summons. The Tulis case hinges on the failure of the accuser to honor the Tulis due process rights to be informed of the nature of the charge. A key concept is here, drawn from her brief.
The brief is an attempt to obscure how summary proceedings routinely deny due process and violate the law. This cause gives the court notice of these wrongs. The basic duties of the prosecutor when charging a person with a crime is to marshall facts of the alleged crime and to narrate in a charging instrument the factual sufficiency that amounts to an offense in the terms that are the elements of the ultimate fact to he proved according to the wording of the statute. The state officer is required by Rule 3A to have “facts relating to the commission of an alleged offense.”
Here it is: The charging instrument must provide a narrative including all the essential elements of the statute within its accounting of the alleged crime. If no stating of the essential elements, the summons fails to provide due process.
The Tulis case has not been filed with aid of any lawyer. But Tulis daughter and the Tulis dad (that’s me) have examined the law and the jurisprudence, and by God’s grace intend to crack open this vile and wicked stream of conduct involving the judges, the cops and the attorney/lawyer claque. There is no rule of law in Virginia, nor in any other state. Criminal cases are routinely generated by cops with no judicial oversight. Tulis was convicted of reckless driving in a criminal trial with no warrant, no summons, or not indictment approved by any judge.
“You’re guilty because we say you are, and we demand F$500,” is how the extortion racket in Virginia operates (and in Tennessee). It may require patience to read this analysis of the commonwealth’s response to the Tulis petition. But I promise you it is rich in insight, and provides a path for reform and a quashing of state-based gangsterism.
Tulis demands right to notice
The commonwealth rebuttal argues the charging instrument is legally sufficient, that the defendant in a criminal trial has the burden of proof on evidence, that the factual evidence in the case is sufficient for conviction, that evidentiary hearings are held after trial and, finally, that pleading and transcript records are nullities when an appeal goes de novo to circuit court.
The headings reflect appellee’s claims, followed by appellant’s rebuttal.
I. Charging instrument is sufficient
- The commonwealth says appellant doesn’t have “any meritorious assignments of error” (p. 2) and that the Virginia uniform summons is “sufficient to provide the Appellant notice of the charge” (p. 3).
- The brief fails to address the first assignment of error in the petition, that touching on the sufficiency of the charging instrument.
- Rather, it focuses on claims of “evidence” in two courts. The commonwealth alleges appellant is claiming an error on the summons, citing a case stating an error will not result in dismissal. Appellant claims not error, but insufficiency. The state’s reliance on the general assembly’s authorization of the summons and its use do not defeat the assertion that its design defeats sufficiency of essential elements requirements.
- A summons “must describe the charge against the defendant,” citing the court’s Rule 3A:4 (state brief p. 4) (emphasis added). The court’s rule 3A:3 requires complaints be “sworn statements of a person or persons of facts relating to the commission of an alleged offense. The statements must be made upon oath before a magistrate empowered to issue arrest warrants.” The brief does not deny Trooper Frye merely names the statute and that the summons does not “describe” the evidentiary facts in the terms of the statute. Neither a statute’s name nor words are evidence.
- A judge signature appears for the first time only after trial, on the summons form next to Judge Lee’s assessment of a $500 “civil penalty” (record p. 1). The proceedings are routine in Virginia: Defendant is tried in a criminal case without an oath by the accuser before a judge. Such conduct is by training of all parties under a presumption of regularity.
- The brief is an attempt to obscure how summary proceedings routinely deny due process and violate the law. This cause gives the court notice of these wrongs. The basic duties of the prosecutor when charging a person with a crime is to marshall facts of the alleged crime and to narrate in a charging instrument the factual sufficiency that amounts to an offense in the terms that are the elements of the ultimate fact to he proved according to the wording of the statute. The state officer is required by Rule 3A to have “facts relating to the commission of an alleged offense.”
- Appellee intends to maintain the status quo in Virginia, criminalizing a civil matter between the state and people using its roads — people subject to regulation under federal law at U.S.C. Title 49, transportation, in interstate commerce, people exercising a state privilege. (See mandatory judicial notice, record pp. 17-21. See record, Tennessee transportation administrative notice, pp. 23-42.) The privilege is subject to Virginia’s regulation of operators and drivers using motor vehicles on the public right of way for private profit and gain, as carriers of either goods or paying passengers (occupants of a car are passengers if they pay to be carried in commerce. Gale v. Wilber, 163 Va. 211, 175 S.E. 739, 743 (1934)).
- The commonwealth’s transportation code is limited to commerce on the roads, which is regulation administrative and civil in nature. Criminalization of offenses and breaches must meet the higher standard of proof required of criminal matters.
- The state argues its witness need not present evidentiary facts of the essential elements of the definition of the statutory terms at trial if the state witness has not alleged them. This case has no facts except that of movement on the road. Appellee’s “statement of facts” on p. 2 tells of the proceedings; it fails to deal with evidentiary facts and justiciable issues.
- The summons fails to provide particularized and actual facts traceable to the defendant which would allow the commonwealth to have standing. Mere recital of a statute does not provide particularized facts. United States V. Hess., 124 U.S. 483, 8 S. Ct. 571.
- The commonwealth brief relies on the standard that a warrant “need only to be able to ‘point out the offense for which the defendant is to stand trial,’” citing Bissell v. Commonwealth, 199 Va. 397, 399 (1957). The high court “recognizes” that a warrant “need not have the same meticulousness of a formal indictment,” the brief says.
- Appellee admits the summons as sole charging instrument, saying it lacks “meticulousness” of an indictment — but has “sufficiency.” The state relies on Rule 3A:4, which says a warrant must “describe the offense charged.” There are no facts in evidence that amount to the elements of the definition of the terms of the statute. The words of the statue are the ultimate facts to be found; the words of the statute have definitions, and there are elements to each of those definitions. The officer must have in view the evidentiary facts described by the ultimate fact, which is the wording in the statute.
- A warrant fails to meet the strict construction requirement of a criminal complaint as required in Turner v. Commonwealth. “[B]ecause the statute in question is penal in nature, it must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute” Turner, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
- The state’s use of a summons in a criminal trial is to engage in a tautology.
- Appellant was tried without a description of the evidentiary facts of the offense charged. The officer did not put into the record evidentiary facts. Appellant was denied a probable cause hearing. She was denied an evidentiary hearing (record pp. 100, 101).
- Appellee runs a system of baseless prosecutions of members of the public on nonparticularized allegations by an officer who makes a pseudo-judicial determination on the side of the road of a crime, with no judicial followthrough to protect the rights of the accused, even after trial.
- The state’s brief states the first trial is an evidentiary hearing on sufficiency of evidence and the second trial is an evidentiary hearing on sufficiency. Appellant researched elements of reckless driving. Those rulings are the basis of her questions to the trooper. Does he have any factual sufficiency he is going to testify to each of the elements addressed in Virginia’s controlling cases? Frye denies any facts sufficient to which to testify according to the elements of reckless driving in Virginia’s cases.
- Such sequence is surely “a process.” It is obvious there is no recognition of appellant’s right to due process.
II. Burden of proof is defendant’s
- The brief in opposition gives the impression that production of evidence is the task of a defendant. It says circuit “heard evidence from the Trooper” (p. 2) and that because there is no “transcript or a statement of facts” from appellant that the commonwealth should prevail.
As the Appellant has failed to provide this Court with either a transcript or a statement of facts from the Smyth County Circuit Court bench trial, the Commonwealth argues that it must prevail on the sufficiency of the evidence as Appellant has offered no evidence to contradict the Circuit Court’s finding.
Brief p. 3
- The commonwealth says “the Circuit Court judge heard the evidence, and having none produced by the defendant under oath at trial, found her guilty” (p. 5).
- The burden of proof is entirely on the commonwealth. Under the constitution, it is required to have facts of a crime before creating a criminal prosecution. It must describe facts of the essential elements of the crime (a) to a magistrate for judicial sanction before trial, and (b) at trial before the judge.
- Trooper Frye alleges he saw appellant looking down and there was light on her face (record, p. 106, ¶¶ 77-80). Under Va. Code Ann. § 19.2-81, he may arrest “any person who commits any crime in the presence of the officer.” Frye arrests appellant without his having seen her commit a crime and issues her a non-judicially-reviewed summons under his own authority.
- The uniform summons serves a vast system of denying people due process of law. This cause shows Virginia widely uses general warrants, forbidden in Article 1, section 10 of the constitution. The warrants are unsworn, not judicially approved, are empty of evidentiary facts.
- The uniform summons in Error No. 1 is a niggardly instrument allowing roadside fraud by police.
- No judge minding due process protections would have signed Frye’s summons or warrant as submitted in this case had Frye submitted it for approval. To have arrested appellant without his having seen her commit a crime, Frye would have had to have obtained a sworn warrant under 19.2-72 from a magistrate or judge. Seeing a person in a car glancing downward does not give him probable cause.
- The record shows, however, that in the extortion of $500, the judge becomes witness in the case — giving ambush testimony during sentencing. He testifies from the bench about the circumstances that night on the highway, (petition ¶¶ 82, 83), imposing perjury into the case about spectral other motorists on the roadway to afford the commonwealth attorney a missing essential element (proximity of others).
III. Commonwealth has evidence of a crime
- Appellee uses the word “evidence” 11 times in its brief.
- Circuit “reviewed the file and heard the evidence” and convicted appellant. Appellee describes this material as “evidence” of which appellant “did not hear” any” (p. 2). Circuit heard “evidence from the Trooper” (p. 2). The brief prattles on: “The Court of Appeals also has acknowledged that when a party understands the charge against her and it is fully supported by evidence, her conviction should not be overturned on appeal” (p. 4). “[T]he Circuit Court judge heard the evidence, and having none produced by the defendant under oath at trial,” found appellant guilty (p. 5). Miss Tulis “produced no evidence” and “failed to produce any evidence” (p. 6).
- The commonwealth does not deny the accuracy of appellant’s narrative of events in district court, where appellant code- and case-pleaded her defense.
- What evidence exists is fraudulent, in keeping with the summons’ misdirection that its user narrate no essential elements and develop no lawful case in writing. Frye perjures himself by claiming appellant’s speed was 50 mph, which if it were true would not be a crime, given the late-hour empty highway and no posted minimum. His testimony eats away at the essential elements that should be his case.
- Also fraudulent, Judge Lee’s testimony about wraithlike 120-mph users of the highway, similar to spectral evidence at the Salem Witch Trials in 1692. His non-eyewitness ambush-style ad hoc testimony after Jill Lawson closes her case nets the commonwealth its conviction without corroborating testimony by Frye. (Record pp. 117, 118.)
- To willfully subscribe as true any material matter which one does not believe is true is perjury at Va. Code Ann. § 18.2-434. That’s exactly what Hon. Judge Lee does. Perjury from the bench. Ms. Lawson imposes lack of candor and fraud on the circuit court by failing to have Judge Lee appear to testify against appellant and secure conviction a second time.
- However, the Lee evidence introduces alleged facts about other malefactors far more dangerous than appellant — people speeding 50 mph or 70 mph over the posted limit. Except for his absurd fictitious narrative, no party describes her conduct as improper.
- Judge Lee’s testimony violates the Brady Rule (see Brady v. Maryland, 373 U.S. 83, 1963). Appellant had no way to prepare for it. The “evidence” is hidden from her until sentencing. Earlier, Lee denies appellant’s open records request to the state police for video (record, pp. 10, 12). In circuit, appellant demands full discovery of Frye’s ESI, or electronically stored information. In denying a discovery motion (record, pp. 52-54), circuit cites Rule 3A:12(m) that says the court “must state on the record, or in writing, its reasons.” It doesn’t; circuit fails to notify appellant of the rejection, and appellant can’t amend and refile).
- The court’s Rule 2:605 says, “No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before the judge in the course of official duties.”
- These customs and usages are malicious. The petition exposes misprison of felony. Virginia courts work in tandem with police to tap a rich stream of guilty pleas, fines and fees for local government and the state.
IV. Summary proceedings respect due process rights
- The opposing brief gives a simulacrum of Smyth County’s upholding Virginia’s just laws and known legal duties.
- Chief in the tale is the startling claim: Appellant had two evidentiary hearings.
[T]he Appellant had a very lengthy trial in the General District Court of Smyth County in which she was able to question the officer who was the witness against her, and argue the facts and the law. The trial in General District Court in which Appellant participated was in fact an evidentiary hearing on the merits of the charge against her. [emphasis added]
Brief p. 5
- As if one evidentiary hearing were not enough to handle its total absence of evidentiary facts, the commonwealth provides a second one, post-trial, in circuit. “The Appellant was afforded an ‘evidentiary hearing’, her properly noticed bench trial, in which she failed to participate. *** The Appellant was afforded an evidentiary hearing and chose not to appear” (pp. 3, 5) (emphasis added). The prosecutor fails to meet Brady requirements for evidence.
- The state argues an evidentiary hearing ends in a conviction.
- Appellant’s two trials are void for lack of subject matter jurisdiction. No complaint has been made in the charging instrument. Alternatively, they are void for lack of evidentiary facts.
A judgment is void ab initio *** if it has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties.
Thompson v. Commonwealth, 27 Va. App. 620, 500 S.E.2d 823 (1998)
The state’s brief cites Thompson to assert “presumption of regularity.” Appellant understands why this point is made. The commonwealth wants no disturbance of its lucrative scheme.
- Its brief is a chaotic attempt to retroactively interpret its Smyth County doings. Appellee recasts the court sequence to give its victim two evidentiary hearings (each hearing ending in a “conviction” on no complaint and no facts).
V. Trial de novo right deletes district court record
- Commonwealth says a transcript of fact (record pp. 98-120) agreed to by attorney Lawson is “irrelevant” because, seemingly, an appeal de novo deletes district court proceedings.
- Lawson relies on the record to describe the trial as “very lengthy” and for evidence on which to say that appellant is “very capable of making a defense for herself by finding the statute and arguing it” (p. 5). Lawson does not want appellant to quote the record because it exposes fraud and lack of subject matter jurisdiction.
- The court has plenary authority for review in a case where neither lower court has met strict construction requirements under Thompson, and each operates irregularly on presumption of regularity. De novo limits are irrelevant when proceedings are void ab initio.
- Appellant’s assignment of errors sees the uniform summons as linchpin of a large disorder dressed up as public justice. She demands the court hold its subordinates to account.