Wednesday, October 17, 2007

prosecutorial misconduct




Double click image to enlarge.

The above published prediction by all area attorneys, judges, legislators and ex-prosecutors of potential prosecutorial misconduct becomes reality that is set forth in this blog. All case law represented in the legal papers reproduced in this blog are compilations of judicial opinions and/or legal writings from licensed attorneys. The legal story (brief) is at:

The cover-up (without the mention or analysis of one fact from the briefs or printed case) of prosecutorial misconduct and outright prosecutorial felonies by the Vermont Supreme Court is at:

The full story is at:



The unopposed briefs and printed case apparently were not even read by the Vermont Supreme Court as neither the facts nor law cited appear in the unpublished opinion of the court. The court simply ignored all the paperwork in front of them. Government protects government. I suppose extortion, obstruction of justice and acceptance of a bribe by a state prosecutor is a messy issue to handle so the court thought best to just ignore it and cover it up. See brief and opinion. A glance at the "issues presented" portion of the brief in comparison to the opinion reveals that the Vermont Supreme Court addressed Zero of the appellate issues.

Even in light of it's vagueness, the opinion of the Vermont Supreme Court outlines the extortion and obstruction of justice by the state using the threat of criminal charges to leverage an advantage in civil proceedings. The court conveniently leaves out the part about a written threat from the state prior to the plea agreement. The court does mention that the prosecution retaliated after my wife amended a pleading in a civil suit. No problem with the Sate making good on its written threat to make civil litigation the basis for filing criminal charges, thereby, using criminal proceedings to manipulate civil proceedings (also known as Obstruction of Justice and Extortion).

Then there is the prosecutor participating in a plea agreement that specified the dismissal of civil suits against himself and his best friend. Did the prosecutor recuse because the plea involved a personal benefit to himself and his friends. Of course not, he loved the idea of the lawsuit against him being dismissed. By staying on the case, the prosecutor accepted personal benefit for himself and his close friends, also known as, acceptance of a bribe.

Without a fair tribunal for enforcement, constitutional rights are nothing but empty unenforceable words on an old piece of paper. This case presents a problem for the modern judiciary as the facts supporting a finding of constitutional transgressions are on the record, unopposed and the prosecutorial extortion exists on a written court pleading filed on behalf of the state. A cover up without changing the hard facts required zero analysis of the fact and zero analysis of case law, exactly what the court did. Note the Vermont Supreme Court opinion is devoid of any citation of case law, it is a statement of policy that the court does not have to opine on issues it is uncomfortable with even though it is the only appellate state court in Vermont and it is the sole attorney ethics disciplinary authority in Vermont. This is the status of constitutional rights in this country -- there are no constitutional rights as there is no mechanism for enforcement other than a broken judicial system.

This case reveals that prosecutorial acts of moral turpitude and constitutional transgressions are routinely ignored by the Courts and ethics authorities.

The 144 page printed case (appendix) filing in the Vermont Supreme Court is available upon request.

Scott Huminski

s_huminski –at- live.com

Read and please sign the Obama Justice Reform petition at,

Thursday, October 11, 2007

Prosecutorial Misconduct - Vermont Supreme Court

This is not the primary entry to this blog which details prosecutorial extortion, obstruction of justice, bribe acceptance, witness tampering and criminal civil rights violation by the government. For primary brief and full record filed in this case go to,


Below is the final filing prior to oral argument. Notice the new prosecutor commented that Bennington County was the only county in Vermont to use criminal contempt in the manner described below and she also stated that she discontinued the practice the day she took office. It seems that everyone except the courts see the misconduct.

VERMONT SUPREME COURT

State of Vermont ) Trial Docket No. 167-1-99
)
- v- )
) Vermont Supreme Court
Scott A. Huminski ) Docket # 2007-223



NOTICE OF SUPPLEMENTAL AUTHORITIES

NOW COMES Scott Huminski (“Huminski”), defendant, pro se, and pursuant to V.R.A.P. 28(i) notifies of the supplemental authority of the recently released decision of this Court in State v. Stell, 2007 Vt. 106 (Vt. 09/21/2007) and accompanying commentary by State’s Attorney Marthage. A true and correct copy of Attorney Marthage’s comments on the Stell case are attached hereto as Exhibit “A”, Bennington Banner, 9/22/2007. Stell has given the Court a brief insight into Bennington County criminal justice under former State’s Attorney Wright.

Stell is relevant to this instant matter as it reveals a State’s Attorney unwilling to abide by the law by initiating a practice of charging accused defendants with contempt crimes to pile charges upon the shoulders of the accused. Similarly, the instant matter contains the threat of contempt crimes being levied upon Huminski in retaliation for the “crime” of engaging in civil litigation against the State’s Attorney and his friends. As far as charging crimes go, the former State’s Attorney seemed to have implemented the more is better approach. Former State’s Attorney William Wright was very fond indeed of Rule 42 criminal contempt as a tool of oppression,
"The last claim involves a statement made to attorney Capriola warning that the defendant would be charged with additional crimes if he did not clam down. The statement is a reference to the defendant's continued harassment of the victim and the investigating officer in this case through the court process. The defendant has filed a civil action against the victim because of his participation in this criminal case. The State is currently reviewing a contempt charge against the defendant because of this activity. The statement was a proper warning made through the defendant's representative." (State's Response to Motion to Dismiss #4) (PC at 53-54).
The reasoning behind charging a criminal defendant with crime after crime based upon contempt is completely consistent with the depiction of former State’s Attorney William Wright in the instant matter as a man with the audacity to display a hangman’s noose in his office window, a self-proclaimed “law and order” prosecutor engaged in a battle of “us against them”. (PC at 112) A man so obsessed with persecution instead of fair prosecution that he openly engaged in transparent extortion, obstruction of justice and acceptance of a bribe in the instant matter in his perverse version of convict at all costs law enforcement.

The Stell case and the attached commentary of Attorney Marthage shed some light on her non-participation in these proceedings. At oral argument in Stell, Attorney Marthage declines to comment on the policies/motives of her “predecessor”. Attorney Marthage was being polite as Mr. Wright acted in any manner he could dream up to harm and prejudice the accused, this was his style. She admits that she worked for years as a Deputy State’s Attorney under William Wright (as did her husband Brian Marthage, esq.). The truth is that the conduct in Stell fits in nicely with a neo-fascist approach to law enforcement and dual punishment (violate conditions of release/probation and get a bonus additional criminal charge plus the sanction related to the violation). In Exhibit “A” Attorney Marthage comments that Bennington County was the only county in the entire state to pursue additional contempt crimes set forth in Stell and she confirmed that the day she took office the procedure ended. The Stell case and commentary suggest that Attorney Marthage knew of (or now realizes) the draconian practices of her boss, Mr. Wright, and their inconsistency with the law. Attorney Marthage’s silence in this matter indicates the high probability that she knows that her predecessor’s conduct in the instant matter was completely consistent with the policies and demeanor that she observed over her years working in that office. Thus, Attorney Marthage has logically not opposed this matter in which the illegal conduct of former State’s Attorney William Wright is completely consistent with an oppressive “law and order” mindset that she had seen so often. This conclusion is completely reinforced, with intensity, by the editorial of the Bennington Area Bar in their publication “State’s Attorney Called Frighteningly Ingnorant”. (PC at 112-113) Attorney Marthage behaved correctly and ethically in this matter because the pleadings are so patently obvious, factually and legally, that it requires no State response, however, the State’s position related to the ongoing contempt threat targeting civil litigation would be helpful and welcome at oral argument.

Dated at Cary, North Carolina this 3rd day of October 2007,


_____________________
Scott Huminski, pro se
111-2C Killam Court
Cary, NC 27513
(202) 239-6045 CC: Erica Albin Marthage, esq.

Exhibit "A"

High Court overturns contempt conviction


Bennington Banner, 9/22/2007
MIKE GLEASON, Staff Writer
Saturday, September 22

BENNINGTON -- The Vermont Supreme Court overturned the contempt conviction of an area man in a decision announced Friday.

The court reversed a Bennington District Court ruling, which sentence Paul Stell to community service for failing to comply with a court order.

First time in 30 years.

The case was one of four heard by the state's highest court when it held a session in Bennington Superior Court in March. That marked the first time in 30 years the supreme court visited Bennington.

At the time, public defender Frederick Bragdon and Bennington County State's Attorney Erica Marthage argued in front of the justices about whether Stell's conviction should stand.

Stell originally pleaded guilty to a charge of unlawful mischief and was place on probation and given suspended jail time as a result. Stell's conditions of probation did not contain a provision that he be fingerprinted, but the prosecution had the court issue a separate order that he appear at a police station within five days to be fingerprinted.

Probation violation.

Stell did not appear to be fingerprinted within the time limit, and he was arrested. He was charged with contempt of court as well as violating his probation for being charged with another crime.

Stell appealed the decision, arguing that the court should only be allowed to order fingerprinting as a condition of probation.

"The scheme used in Bennington allows a double penalty to be imposed on the defendant: a
contempt of court and a violation of probation," the defense wrote.

In its decision, written by Justice John Dooley, the Supreme Court cited a Vermont law that says failure to submit to fingerprinting can be punished as a violation of probation.

"The statute plainly directs that the court require that a defendant who is sentenced to imprisonment submit to fingerprinting as a condition of probation," the decision reads. "Thus, the Legislature intended that a failure to submit to fingerprinting will be a violation of probation, punishable like any other violation."

The court, however, said that courts do not have the authority to issue a separate order that would make failure to comply a second crime.

"We conclude that the Legislature intended that the post-judgment requirement for fingerprinting be imposed only in a probation order and not by separate order, as occurred here," the decision reads.

Marthage said Friday evening that she had not yet reviewed the court's decision. According to Marthage, the charges against Stell were filed by her predecessor, former state's attorney William D. Wright. She said she would dismiss the contempt charge against Stell, but the violation of probation conviction would stand, as it had not been appealed.

Marthage said that the state's attorney's office had not issued separate fingerprint orders since she took office. Marthage said Stell's case was a unique one.

"We were the only county to do this to begin with," Marthage said.

*** END ***

The predecessor state's attorney's objective was to pile on wrongful criminal charges upon a defendant to oppress and up the ante. As Vermont rotates judges, one would think a judge would wonder why one county used this illegal technique to harass a defendant with multiple crimes in violation of statute. This went on for 20 years. -- SH

Excellent Slate article on the discipline of prosecutors,
http://slate.com/id/2168680/

Saturday, August 11, 2007

Prosecutorial Misconduct Reply Brief

In The
Vermont Supreme Court


No. 2007-223

_______________________

STATE OF VERMONT,
Appellee,

v.

SCOTT HUMINSKI,
Appellant.



REPLY BRIEF FOR APPELLANT
And
Notification of Oral Argument and Supportive Memorandum

INTRODUCTION

On August 8, 2007, Scott Huminski (“Huminski”) received a copy of the Appellee’s Brief in letter form. Huminski will attempt to cover the issues proffered in the Appellee’s Brief and notifies the Court of his desire to present oral argument as the material presented to the Court on behalf of the State amounts to 3 sentences rendering it impossible for the Court to have adequate input from the State to determine the merits under V.R.A.P. 33(c). Oral argument is mandated by the failure of the State to participate in these proceedings in a meaningful manner. Appellant additionally proffers this filing as a memorandum in support of oral argument. Although Appellant has been pro se during prior phases of this litigation, he now is seeking counsel for oral argument who may be able to effectuate argument in a more scholarly and proficient manner than Huminski who is untrained in the law. Denial of oral argument would foreclose on Huminski’s ability to have legal representation at any phase in the instant litigation.

The last three sections of this reply brief are reproductions of Huminski’s Brief, Vermont v. Huminski, Vt. Supr. Ct. 99-445, 4/17/2000, authored by Allison Fulcher of Martin and Associates, Barre, Vermont illustrating the illegal nature of the state threat of criminal charges to influence civil proceedings. The state has remained silent concerning the threat against Huminski, thereby, indicating the State support of such a threat against Huminski’s civil litigation. This is an on-going and current threat which requires a policy decision by the State’s Attorney that can now only be definitively determined at oral argument. The State has also remained silent on the issue of whether expunction is appropriate prior to final judgment and what the final judgment is, issues that must be reserved for oral argument to ascertain the State’s position. It is imperative that oral argument is undertaken to resolve the positions of the State and for the appellant to present responses to these never revealed State positions.

ARGUMENT

I. PROSECUTOR HAS PERSONAL KNOWLEDGE OF THE FACTS AND LAW OF THIS CASE

The prosecutor has the complete case file concerning this matter as she does on every other case she has taken over from the prior State’s Attorney. State’s Attorney Marthage has taken over every case that her predecessor had pending aside from the instant matter. Simply reading the case file by the new State’s Attorney would have given complete knowledge of the facts and law concerning the instant matter. Why the prosecutor has singled out this case out of the scores of prosecutions she has taken over claiming “no personal knowledge” and the inability to “confirm nor deny the facts” is a mystery when simply reading the case file would have brought her up to speed. Certainly at this late date the State’s Attorney can not “confirm or deny” anything in the record as her opportunity or duty to do so was in the Court below. The “facts” on record are exactly what the State’s Attorney acquiesced to in the Court below regardless of the vague disclaimer now proffered by the State. Most disturbing is the State’s Attorney’s refusal to withdraw the threat pending against Huminski for his protected act of seeking redress in civil courts, which exists as a written pleading filed by the State.

II. EXPUNCTION

Appellee’s Brief states that, “I do not object to the record of the Appellant being expunged.”. First of all, the record has already been expunged and it is not being challenged on appeal. The timeliness of the expunction is being called into question in this appeal (i.e. whether expunction is proper prior to final judgment) and whether or not a finding of void ab initio is required to act as a final judgment. This appeal is centered around the voidness of various acts, and foremost, the status of the non-existent final judgment. Obviously, the State’s Attorney is familiar with the case because she has made a decision concerning expunction which would require a review of the case file and an understanding of the facts and law of the case. The State’s passive consent to the affidavit and every pleading filed in the Court below indicates understanding of fact and law regarding the instant matter. The statement that the State’s Attorney has “no personal knowledge” of the case or “facts” and yet has enough knowledge to form an opinion concerning the very serious act of expunction is curious.

III. THE STATE CANNOT CONSTITUTIONALLY LIMIT THE DEFENDANT'S ACCESS TO THE COURTS.

(Authored by Allison Fulcher, esq., Martin & Assoc., 4/17/2000, 99-445)

As expressed by Judge Hudson, the Defendant, under the Vermont Constitution, has the right to access the Courts and such right could not be foreclosed upon by the State. The Vermont Constitution, Ch. I, Art. 4 states, "[e]very person within the state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws." This Court has held that this constitutional provision, "has been treated as the Vermont equivalent of the federal Due Process Clause...[a]s such it protects recourse to the judicial process..." Levinsky v. Diamond 151 Vt. 178, 197 (1989). "[F]ree access to the courts is an essential right recognized by our state constitution." Kollar v. Martin, 167 Vt. 592, 594 (1997) citing Jacobsen v. Garzo, 149 Vt. 205, 209 (1988). Our constitution further reads, "[t]he Courts of Justice shall be open for the trial of all causes proper for their cognizance; and justice shall be therein impartially administered, without corruption or unnecessary delay." Vermont Constitution, Ch II, _28. The State argues that the Defendant violated the plea agreement by the refiling of the cases by the Defendant's wife. As clearly concluded by Judge Hudson, "[m]ost certainly the Defendant's wife was not a party to this prosecution and her right can in no way be foreclosed by the enforcement sought by the State in this case." Furthermore, Judge Hudson found that "[t]he agreement contemplated a civil dismissal by the Defendant, and he did that. ...The State got exactly what it bargained for: a dismissal without prejudice." The record supports a finding that the Defendant did not breach the plea agreement. But even if there had been a breach by the Defendant, the adoption of the State's interpretation of the plea agreement and the enforcement of that interpretation through vacating the Defendant's plea, would directly contravene public policy and place an unconstitutional burden on the Defendant's access to the Courts. As such, this matter was properly dismissed by Judge Hudson.


IV. THE PRESENTMENT OF CRIMINAL PROCEEDINGS TO OBTAIN ADVANTAGE IN A CIVIL MATTER VIOLATES RULE 4.5 OF THE RULES OF PROFESSIONAL CONDUCT AND DR 7-105 OF THE CODE OF PROFESSIONAL RESPONSIBILITY.

(Authored by Allison Fulcher, esq., Martin & Assoc., 4/17/2000, 99-445)

Rule 4.5 of the Rules of Professional Conduct, entitled, THREATENING CRIMINAL PROSECUTION reads as follows: "A lawyer shall not present, participate in presenting, or threaten to present criminal charges in order to obtain an advantage in a civil matter." The Rules of Professional Conduct were adopted by Vermont on September 1, 1999. Previous to this date, Vermont was a jurisdiction which followed the Code of Professional Responsibility. The Reporters Notes to Rule 4.5 explain that the Rule is essentially identical to the former Vermont DR 7- 105, the only change being the removal of one word. Administrative Orders & Rules, pp. 679-680. The removal of that word, essentially broadens the scope of the rule and heightens the impact of that provision. The State moved to vacate the Defendant's plea on April 9, 1998. On or about December 15, 1999, the State filed its Notice of Appeal. In both actions, the State was seeking to enforce the terms of the collateral agreement, and in so doing was using criminal proceedings or the threat of presenting criminal proceedings to dispense with civil actions. Making it even more egregious, is the fact that the State is a party to the civil proceeding in question. Not only is such practice clearly unethical, under either the Code or the Rules, but it is an abuse of the judicial process and therefore grounds for sanctions. See In Re Sherman Hollow, Inc., 160 Vt. 627, 630 (1993), (Court's possess the inherent power to sanction lawyers for abuse of the judicial process.) The appropriate sanctions to be imposed in this matter is dismissal of the case.

V. THE UTILIZATION OF CRIMINAL PROCEEDINGS TO MANIPULATE CIVIL PROCEEDINGS VIOLATES PUBLIC POLICY.

(Authored by Allison Fulcher, esq., Martin & Assoc., 4/17/2000, 99-445)

Our legal system is comprised of two distinct legal forums, each designed to address matters of its own kind. The civil adjudication process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting the person's legal rights, and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system. Comment to Rule 4.5 of the Rules of professional Conduct, Administrative Orders & Rules, pp. 679-680. Simply stated, the State's use of the criminal process to manipulate civil proceedings, to which it is a party, contravenes public policy. The State's claim that the Defendant breached the plea agreement is unsupported by the record. Yet, even if the Defendant had breached the collateral agreement, the appropriate recourse for the State should be no different than that available to any private citizen who felt that they were a victim of a breach of contract. The State should have sought relief through use of the civil process. In this case, the State could have sought dismissal of the pending action against it, in the Court where the matter was pending. The State's utilization of criminal proceedings to gain advantage in a civil proceeding flies in the face of public policy and as such warrants dismissal of this matter.

CONCLUSION

For the foregoing reasons, and after the parties present oral argument, the Appellant respectfully requests this Court remand with instructions to; (1) declare unconstitutional and vacate the threat against Huminski’s civil litigation, and (2) vacate the entire criminal matter as void ab initio.

This Court should consider invoking its supervisory and disciplinary powers concerning the aforementioned prosecutorial misconduct and consider imposing a disciplinary sanction against former State’s Attorney William Wright in the amount of $8,500.00, plus interest, representing Huminski’s legal costs and fees associated with defending against this patently unconstitutional and frivolous litigation.
Respectfully Submitted,



__________________________________
Scott Huminski, Pro Se
111-2C Killam Court
Cary, NC 27513
(919) 342-6877

Appellant’s Brief Online at,
http://prosecutorialmisconduct.blogspot.com/

August 14, 2007

Vermont Prosecutor Responds to Misconduct Allegations

STATE OF VERMONT
Bennington County State's Attorney's Office
Erica A. Marthage
200 Veterans Memorial Drive, Suite 10
Bennington, Vermont 05201
(802) 442-8116
FAX (802) 442-2775
TTY Available

August 2, 2007

Catherine J. Gattone, Docket Clerk
Supreme Court of Vermont
109 State St.
Montpelier, VT 05609-0801

Re: State of Vermont v Scott Huminski
Docket No. 2007-223

Dear Catherine:

As I am the Newly elected Bennington County State's Attorney I will not be filing an Appellee's Brief because I have no personal knowledge of the situation. I would like to inform the Court that I can neither confirm nor deny the facts set forth in Appellant's Brief. However, I do not object to the record of the Appellant being expunged.


Sincerly,

/S/

Erica Marthage
Bennington State's Attorney

cc: Scott Huminski
111-2c Killam Court
Carey NC 27513

**********************************
Huminski Comment:
Odd that this State's Attorney assumed responsibility for every other case pending in her office except this one. See responsive post.

Saturday, July 7, 2007

Prosecutorial Misconduct - Huminski Case

Prosecutor Misconduct including extortion, obstruction of justice and acceptance of a bribe is portrayed in the below brief filed in the Vermont Supreme Court. This prosecutor certainly knew a lot about crime, specifically, how to commit crimes himself. Durham prosecutor Nifong's misconduct is very mild compared to what goes on in courthouses every day such as the below.

Like the majority of criminal prosecutors in this country, the below brief depicts a person who enioys the destruction of human lives and who is willing to commit any act of moral turpitude to achieve his wicked goals.



Go to the main page of this blog to get an organized account of proceedings and the legal issues.



http://prosecutorialmisconduct.blogspot.com/

In The
Vermont Supreme Court


No. 2007-223

_______________________

STATE OF VERMONT,
Appellee,

v.

SCOTT HUMINSKI,
Appellant.



BRIEF FOR APPELLANT




INTRODUCTION


This case portrays the failings of a County criminal justice system led by a former State’s Attorney who debuted his Vermont prosecutorial career by displaying a hangman’s noose in his office window. (Printed Case (“PC”) at 112). The sadistic arrogance portrayed by a hangman’s noose logically concluded with the potpourri of prosecutorial misconduct set forth in the instant matter.


An overwhelming conflict of interest between the former prosecutor and the investigating officer (deceased- January, 2000) infected this case from the onset. This conflict was accompanied by obvious police affidavit perjury that formed the foundation for probable cause and the authoring of criminal informations. For these reasons alone the entire matter should have been vacated from its inception as void ab initio and inconsistent with Due Process under both the State and Federal constitutions.

The prosecutorial conflict of interest transparently appears in a written threat leveled at Scott Huminski (“Huminski”) warning him that he would be charged with “additional crimes” for engaging in civil litigation against the best friend of the State’s Attorney, the “investigating officer”:

"The last claim involves a statement made to attorney Capriola warning that the
defendant would be charged with additional crimes if he did not clam down. The
statement is a reference to the defendant's continued harassment of the victim
and the investigating officer in this case through the court process. The
defendant has filed a civil action against the victim because of his
participation in this criminal case. The State is currently reviewing a contempt
charge against the defendant because of this activity. The statement was a
proper warning made through the defendant's representative." (State's Response
to Motion to Dismiss #4) (PC at 53-54)


Just like the display of a hangman’s noose in the prosecutor’s window, this written threat indicates extreme arrogance and an attitude that the prosecution is above the law. This unbridled use of prosecutorial power to protect friends from collateral civil litigation is not only unethical, it is criminal extortion and obstruction of justice. The written threat sent a strong message that the prosecution was obsessed with interfering with civil litigation. A plea agreement was negotiated whereby civil cases against the prosecutor and his best friend, the investigating officer, would be dismissed and in return Huminski would pay a $100 fine and plead nolo to the charge of disorderly conduct. Once this scenario entered the criminal case, instead of recusing, the prosecutor jumped at the opportunity to enter into a plea/collateral agreement that personally benefited himself and his closest friend akin to acceptance of a bribe by a State prosecutor.

Shortly after the plea, sentencing and completion of the sentence, the prosecutor made good on his threat to charge Huminski with more crimes for engaging in civil litigation -- with a twist. The prosecution moved to vacate Huminski’s plea based upon the civil litigation of a third party. Huminski’s wife amended a complaint in federal district court and the prosecution considered this a spousal breach of the plea. Not only is giving the prosecution a second chance after completion of sentence in the case completely outrageous, illegal and unconstitutional, it is just as astounding that the prosecution was initiating a prosecution against Huminski based upon the conduct of a outside individual who was not a party to the plea agreement. Vermont v. Huminski, Vt. Supr. Ct., 99-445 (mem.) (“Moreover, Defendant’s wife was not a party to the plea agreement, and thus, there is no breach of the agreement based on her refiling [civil litigation] in federal court.”).

The conflict of interest in this matter is extreme and obvious. The products of the conflict of interest are likewise extreme, obvious and outright criminal manipulations of the civil justice system. This case should have been vacated as void ab initio from its infancy by the District Court.

STATEMENT OF FACTS AND CASE

This appeal stems from a felony arrest and criminal prosecution of Huminski beginning in 1997. A plea/collateral agreement was reached whereby Huminski would enter a nolo plea to disorderly conduct and pay a $100 fine in exchange for his dismissal of civil law suits against the prosecutor, William Wright, and his closest friend, investigating Officer Henry Haverkoch. (PC at 010-011, 018-021, 064-065) William Wright is no longer a State prosecutor and Henry Haverkoch died in January of 2000. (PC at 065) Subsequent to the plea, Huminski’s wife continued on-going litigation against the prosecutor and his police friend. (PC 018-021) William Wright moved to vacate the plea based upon this alleged spousal breach of the plea. (PC at 011, 021) The Motion to Vacate Plea was granted and the $100 fine which Huminski paid was returned to him. (PC at 021) The reinstated charges were ultimately dismissed by Judge Hudson grounded upon double jeopardy and this Court affirmed. (PC at 015-033), State v. Huminski, No. 99-445 (Vt. Dec. 13, 2000) (mem.). The original disorderly conduct sentence and fine have never been reinstated or enforced. (PC at 065)

The State has remained silent during the 2007 phase of this litigation relevant to the instant appeal. See Supplemental Printed Case (Docket Entries) absent any response from the State during the 2007 proceedings in the Court below. The State does not dispute the intensely close relationship and friendship (best man/bride groom) between the Bennington County State’s Attorney Wright (“Wright”) and Bennington Police Officer Haverkoch (“Haverkoch”) and the associated conflict of interest. (PC at 065, 087-088) The State does not dispute that products of the conflict of interest existed and were manifested in the prosecution’s behavior in the state criminal matter against Huminski. There are three blatant corrupt products of this conflict of interest; (1) state threatening criminal charges for Huminski’s engaging in civil litigation protected by the First Amendment, (PC at 053-054, 071) (2) failure of Wright to recuse when dismissal of civil suits against himself and Haverkoch entered into the plea negotiation process, (PC at 021-029) and (3) State moves to re-charge Huminski with two felonies for Huminski’s wife engaging in civil litigation against Haverkoch and Wright. (PC at 012-013, 029-030, 088) The conflict of interest between Haverkoch and Wright forced the very public recusal of the entire Bennington County State’s Attorneys Office from an unrelated 1986 criminal matter concerning a judicial determination of police false statements under oath by Officer Haverkoch. (PC at 065, 071, 088) This conflict of interest and associated recusal, was publicized and well known to the Bennington Bar and community years before the commencement of the prosecution against Huminski.

Haverkoch engaged in obvious perjury in his affidavits filed in this matter that supported probable cause, criminal informations and arrest. (PC at 064, 071, 076-077, 089, 131-134) Wright’s close friendship with Haverkoch prevented an impartial quasi-judicial review of the case prior to charging and arrest. Wright certainly was not about to call his closest friend a liar.
The prosecutorial conflicts of interest were sufficient to violate U.S. Const., Amend XIV (“Due Process”) and taint the criminal proceedings against Huminski from the earliest pre-probable cause phases. (i.e. from Wright’s decision whether to prosecute and author a criminal information at all prior to probable cause determination) The Bennington County State’s Attorneys office, and all prosecutor’s offices, make discretionary and quasi-judicial decisions at the earliest phases of a criminal matter prior to the authoring of a criminal information and prior to the finding of probable cause contained on the criminal information sheet. (PC at 089-090) In Vermont, probable cause determinations are/were made on the bottom of the criminal informations previously authored by the State’s Attorney upon his oath of office.

As Wright and his friend personally benefited, the plea agreement amounted to nothing short of acceptance of bribe by a State prosecutor and, as such, it is inconsistent with Due Process, it is void. (PC at 064, 070, 091) The void and invalid plea agreement is a further confirmation of the conflicts of interest and associated corruption. Judge Hudson properly pointed out that a full time state’s attorney or deputy is prohibited by statute from practicing civil law, which is exactly what Wright did when he engaged in a plea agreement intending to address criminal and civil cases. (PC at 030-031).

The dubious and irregular nature of the plea/collateral agreement is further exemplified by the failure of the State to enforce the penalty/sentence related to the void plea of 3/19/98, now almost ten years old. (PC at 065) Indeed, after almost a decade, this matter has not reached final judgment, sentencing and fulfillment of the sentence. The State failed to take any action to reinstate the original sentence (a $100 fine) or enforce the sentence after the plea agreement and sentence were illegally vacated. (PC at 056-059, 065) A simple motion to reinstate sentence filed in the District Court would have at least brought this matter to final judgment.

Grounded upon the foregoing set of facts, every phase of the state court criminal proceedings involved conflicts of interest, corruption and impropriety and those proceedings are hopelessly void constitutional violations. In the Court below, Huminski filed two motions to Vacate. One to vacate the case from its infancy (probable cause, arrest, criminal informations) and one specifically addressing the threat against Huminski concerning his use of civil courts for redress of grievances. (PC at 051-054, 055-063) The court below failed to consider the two motions to vacate and instead sua sponte expunged the case prior to final judgment or vacation. (PC at 005-008) Huminski never requested expunction, however, he would have moved to expunge had he prevailed in his constitutional attack on the case in his motions to vacate.

The Order to Expunge of the Court below has inconsistencies. (PC at 005) It appears that the Court confused the facts of this case with another case for two reasons; (1) the Court below expunges the case based upon 13 V.S.A. § 7041(d) and, (2) the Court below states “Any restitution that has been ordered has been paid in full.” (PC at 005) As 13 V.S.A. § 7041(d) is a statute dealing with deferred sentencing, it has no place in this case where a deferred sentence was never discussed or contemplated by either party. Contrary to the Order to Expunge, no restitution has been paid. Issues related to sentencing and collection of the $100 fine have never been determined after they were improperly vacated. (PC at 065)

To the credit of the current Bennington County State’s Attorney, Erica Marthage, esq., she has quite ethically not opposed any fact or pleading filed by Huminski related to this appeal because all materials filed by Huminski are truthful representation of fact and law. Facts of this case are also set forth in the Printed Case at:

* Opinion and Order, WmCr 167-1-99, 8/30/99, PC at 015- 017
* 2007 Affidavit of Scott Huminski, 03/19/2007, PC at 064-066
* Attachment to 2007 Affidavit of Scott Huminski, 03/19/2007, Statement of Facts, PC at 070-072
* Attachment to 2007 Affidavit of Scott Huminski, 03/19/2007, Statement of Facts, PC at 087-091.

The veracity of the facts set forth in the attachments to the affidavit are sworn to at paragraph 2 of the affidavit and stand unopposed before this Court. (PC at 64)

ISSUES PRESENTED

1.Whether the Court below erred by failing to vacate the entire case from its inception as void ab initio as a result of Due Process violations arising out of prosecutorial conflict of interest and police perjury?

2.Whether the Court below erred by failing to vacate or declare unconstitutional the threat against Huminski’s use of the civil justice system for redress?

3.Whether the Court below has discretion not to vacate void acts or abused its discretion by failing to vacate void acts?

4.Whether the Court below erred by sua sponte expunging the case prior to final judgment and without deciding on the merits of Huminski’s two motions to vacate?

5.Whether expunction constitutes a final judgment or finding of void ab initio?

6.Whether prosecutorial misconduct whereby the prosecutor participates in a plea agreement which specifies dismissal of civil law suits against himself and his best friends rises to a level of official corruption rendering the case hopelessly void ab initio in its entirety.

ARGUMENT

I. POLICE / PROSECUTOR CONFLICT OF INTEREST

The overwhelming conflict of interest between the prosecutor and the affiant/investigating police officer violates Due Process. Recusal was required for the same reason the entire Bennington County State’s Attorneys office recused in a 1986 court matter involving Officer Haverkoch’s perjury in another unrelated criminal case whereby the entire office recused because of the intense friendship and inability to act impartially concerning Haverkoch.

As detailed in the factual history above, this case has scraped the bottom of the prosecutorial barrel as a result of the conflict between Wright and Haverkoch. First there is the written threat intending to use the intimidation of criminal prosecution to deter Huminski’s assertion of his First Amendment right to engage in federal civil litigation against Haverkoch. This is followed by the plea and failure of Wright to recuse when one of the terms of the plea was dismissal of lawsuits against himself and his best friend, Haverkoch, tantamount to acceptance of a bribe by a State prosecutor. This is followed by the absurd and illegal Motion to Vacate Plea whereby a prosecutor, angry at litigation filed by Huminski’s wife, retaliates against Huminski with frivolous/retaliatory criminal charges based upon alleged third party spousal breach of a plea agreement.

The earlier recusal of the entire Bennington County State’s Attorneys Office sufficiently mandated recusal in the instant matter, however, the corrupt products of the conflict infecting the case (i.e. the written threat, the acceptance of a bribe and the retaliation with the motion to vacate plea) provide an extreme foundation that the well-known police/prosecutor conflict concretely materialized in illegal prosecutorial misdeeds. The conflict and its substantial infiltration into this case can not be disputed. The illegal transgressions of the prosecution turned supposedly serious criminal litigation into a circus of obvious illegal prosecutorial stunts spawned by an overwhelming conflict of interest.

The Wright/Haverkoch conflict is forbidden by Due Process and is a definitive example of government corruption. This police/prosecutor conflict of interest violates due process under the state and federal constitutions. Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (violation of due process clause of Fourteenth Amendment); Sinclair v. State, 278 Md. 243, 255 n.8 (1976) (violation of State policy); People v. Zimmer, 51 N.Y.2d 390, 395 (1980) (violation of State policy); Commonwealth v. Eskridge, 529 Pa. 387, 392 (1992) (violation of State policy); Cantrell v. Commonwealth, 229 Va. 387, 394 (1985) (State Constitution's due process provision violated).

A criminal defendant has a right to a disinterested prosecutor:

"A prosecuting attorney's obligation is to secure a fair and impartial trial for
the public and for the defendant. His obligation to the defendant in this regard
is as great as is his obligation to the public. The district attorney is
vital to the administration of Justice and to the vindication of constitutional
rights. In view of his great responsibilities, a district attorney may not
compromise his impartiality." Commonwealth v. Tabor, 376 Mass. 819-820
(1978), People v Doyle, 159 Mich App 632, 646; 406 NW2d 893 (1987) (entire
prosecutor's office disqualified where supervisory attorney with personal
interest in case was not immediately shielded from any involvement).



To perform its high function in the best way, 'Justice must satisfy the appearance of Justice.'. In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986). Wright was put in the awkward position of reviewing his closest friend’s sworn affidavits to determine their veracity. Had Wright found the police affidavits false (as he should have) and incapable of initiating a criminal prosecution, he would be in the untenable position of calling his closest friend a liar and he would have been confronted with the decision of whether to prosecute his friend for perjury.

The principles concerning conflict of interest with regard to judges would apply to a prosecutor concerning his quasi-judicial duties. In Tumey v. Ohio the Supreme Court stated, "Every procedure which would offer a possible temptation to the average man as a Judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused denies the latter due process of law." 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749 (1927). The Court continued stating, "it certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the Judge of which has a direct, personal, substantial pecuniary interest in reaching a Conclusion against him in his case." Tumey, 273 U.S. at 523. The same theory is true of the conflict in the instant matter in that it violates a defendant's due process rights to subject his life, as well as his liberty and property, to the quasi-judicial acts of a prosecutor who is not neutral or fair because of a particular police officer’s involvement.

The Supreme Court has found that the appearance of Justice is as important as the reality of Justice, or at least important enough that its absence violates Due Process. Taylor v. Hayes, 418 U.S. 488, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974). The Haverkoch/Wright law enforcement combination violates the reality of justice as well as the appearance of justice because products of the conflict have concretely materialized in this case. The instant matter goes far beyond the ‘appearance of justice’ standard.

The Haverkoch/Wright conflict deprived Huminski of a prosecutor whose duty was "to seek justice," ABA Code of Professional Responsibility EC 7-13. ABA Standards for Criminal Justice § 3-1.2 (2d ed. 1980), says simply that "[a] prosecutor should avoid the appearance or reality of a conflict of interest with respect to official duties." The Supreme Court has stated in Marshall v. Jerrico, 446 U.S. 238 (1980), that a "scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions." Id. at 249-50. Haverkoch’s participation in this case created in Wright and the State’s Attorneys Office a direct conflict between the duties of his office as a prosecutor and those owed to his friend. The American Bar Association Standards Relating to the Prosecution Function, § 1.2, provides that "A conflict of interest may arise when, for example, . . . a business partner or associate or a relative has any interest in a criminal case, either as a complaining witness, a party or as counsel." The duty of a public prosecutor is to "seek justice." American Bar Association Standards for Criminal Justice, 2d Ed. Vol. I, 3-1.1(c). Wright used this case to seek personal benefit for himself and his friends instead of complying with his duty to “seek justice”.

The impropriety in this case is obvious, overwhelming, extreme, rises to a constitutional magnitude and epitomizes law enforcement corruption. Under the facts of this case, its not unfeasible for the public to visualize the handing of the police affidavit from Haverkoch to Wright to be accompanied by a nudge and a wink, destroying the public’s confidence in the criminal justice system. One only need to glance at a few simple facts from the record to determine that the Huminski criminal prosecution was prejudicial, corrupt and conflicted; (1) the plea amounting to acceptance of a bribe by a state prosecutor, (2) threat of criminal retaliation for act of civil litigation against Haverkoch, (3) the re-institution of criminal charges in retaliation for civil litigation, and (4) willingness to violate Double Jeopardy to retaliate against Huminski for civil litigation.

The obvious/egregious nature of the conflicts in this case raise the constitutional violations to a heightened level. A substantive Due Process violation occurs when government conduct violates "fundamental fairness" and is "shocking to the universal sense of Justice." Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268 , 80 S. Ct. 297 (1960) (citations and internal quotation marks omitted); accord United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). The facts and circumstances of this case constitute a substantive Due Process violation as spoken of in Singleton. This case does not only reveal gross constitutional violations, it clearly sets forth corruption and a good ol’ boys system that supports a policy of not rocking the boat regardless of the illegality/impropriety of acts occurring in the criminal justice system of Vermont. A special prosecutor should have been appointed in the instant matter in light of State’s Attorney Wright’s entire office recusal after a perjury finding against Haverkoch by a state judge years prior to this litigation. Once Wright recused concerning his conflict with Haverkoch, he was required to recuse in subsequent cases involving Haverkoch including and especially in the instant matter.

The State’s Motion to Vacate Plea filed after completion of sentence correctly characterizes the nature of the conduct of the conflicted prosecution. This legal strategy is equivalent to a prosecutor waiting at the jailhouse door for the release of a criminal defendant and stating that he was unhappy with the sentence, so, he was going to prosecute the released man again regardless that he served a sentence and paid his debt to society. In the instant matter, William Wright, did ask for (and temporarily got) his second bite of the apple, exemplifying the retaliatory, mean-spirited and anti-constitutional blood lust that the conflict of interest spawned in the prosecution. As this Court held in Vermont v. Huminski, 99-445, such prosecutorial conduct, after completion of sentence, has absolutely no support in existing law anywhere in the United States (or, for that matter most of the world) and is egregiously unconstitutional. (PC at 012) Under no set of facts or law can a prosecutor re-prosecute after completion of sentence. To do so is a bold abuse of power signifying that the prosecution knows it is above the law.

The Second Circuit held that "we view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." United States v. Toscanino, 500 F.2d 275 (2d Cir. 1974) In so holding, that court relied on Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952), where the Supreme Court applied the Due Process clause, to the "the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offences." Id. at 169 (citations omitted). See also United States v. Russell, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). The aforementioned prosecutorial misconduct and official crime certainly offends the “canons of decency and fairness” spoken of by the Second Circuit.

II. State Due Process Violation

The Vermont Constitution, Ch. I, Art. 4 states, “[e]very person within the state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, and without being obliged to purchase it; completely and without any denial; …”. The Vermont Supreme Court has held that this constitutional provision, “has been treated as the Vermont equivalent of the federal Due Process Clause…” Levinsky v. Diamond, 151 Vt. 178, 197 (1989). The Vermont Constitution further reads, “[t]he Courts of Justice shall be open for the trial of all causes proper for their cognizance; and Justice shall be therein impartially administered, without corruption or unnecessary delay.” Vermont Constitution, Ch. II, Sect 28. The facts of this case have violated both of these Vermont Due Process provisions as discussed above.

III. Equal Protection and Common Benefits Violation

Equal protection assures that similarly situated person will receive like treatment under the law. U.S. Const., Amend. XIV & Common Benefits Clause, Art. 7, Vermont Const.. Huminski’s subjugation to a criminal arrest and prosecution whereby the participating prosecutor and police officer are best friends, patently violates Equal Protection and Common Benefits. Clearly, similarly situated individuals in other counties in Vermont (and the United States) do not face this bizarre officer/prosecutor friendship team when confronted with arrest and criminal prosecution nor do criminal defendants in Bennington County in cases in which Haverkoch was not involved. The police/prosecutor team of Haverkoch/Wright distorts the evenhanded pursuit of justice thereby violating equal protection.

IV. POLICE AFFIDAVIT PERJURY

Aside from prosecutorial conflict of interest voiding these proceedings, further guidance can be gleaned concerning police perjury in an affidavit by the treatment of search warrants containing police perjury. See Franks v. Delaware, 438 U.S. 154, 171-172, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) (A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probable cause.); State v. Causey, 257 N.W.2d 288, 292 (Minn. 1977). In the instant matter, police perjury was used to support the arrest, criminal informations and probable cause. These fruits of police perjury are void pursuant to Franks. Likewise, fruits of an egregious prosecutorial conflict of interest (ie. the decision to charge, arrest and author criminal informations) are void.

V. GOVERNMENT THREAT SHOCKS THE CONSCIENCE

The written threat issued by the prosecutor warning that Huminski would be charged with “crimes” for merely asserting his protected right to seek redress of grievances in civil court is an abuse of prosecutorial power that certainly violates Due Process and the First Amendment. The threat must be vacated. Not only is the threat unethical, it constitutes the government use of extortion and obstruction of justice in the furtherance of goals prescribed by the conflict of interest existing between Wright and Haverkoch. A substantive Due Process violation occurs when government conduct violates "fundamental fairness" and is "shocking to the universal sense of Justice." Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 4 L. Ed. 2d 268 , 80 S. Ct. 297 (1960) (citations and internal quotation marks omitted). The Court below erred by not declaring the threat void:

"The last claim involves a statement made to attorney Capriola warning that the
defendant would be charged with additional crimes if he did not clam down. The
statement is a reference to the defendant's continued harassment of the victim
and the investigating officer in this case through the court process. The
defendant has filed a civil action against the victim because of his
participation in this criminal case. The State is currently reviewing a contempt
charge against the defendant because of this activity. The statement was a
proper warning made through the defendant's representative." (State's Response
to Motion to Dismiss #4). (PC at 53-54)



VI. PROSECUTORIAL BRIBE ACCEPTANCE

The failure of Wright to recuse when dismissal of civil suits against himself and his closest friend became an issue in plea discussions and then his willingness to engage in the plea and accept the civil dismissals constitute acceptance of a bribe by a State’s Attorney. Dismissal of a law suit constitutes a benefit, pecuniary and otherwise, for the prosecutor and his closest friend. Failure to recuse and then acceptance of a bribe violates “fundamental fairness” and is “shocking to the universal sense of justice” cited in the prior paragraph. Perhaps such a criminal transgression is not shocking when noting that the prosecutor in question began his career with a hangman’s noose displayed in his office window. Not coincidently, the office of this prosecutor was located in the same building which housed Bennington District Court casting a public doubt upon the court as well as the prosecutor.

The conflict, extortion, obstruction of justice, bribe acceptance and other aforementioned morally debased acts of the State constitute corruption and an abuse of governmental power, that so 'shocks the conscience', Rochin v. California, 342 U.S. 165, 172 [72 S. Ct. 205, 96 L. Ed. 183] (1952), as to constitute a substantive Due Process violation. In Rochin, the Supreme Court voided a State conviction based upon a substantive Due Process violation not unlike the remedy Huminski seeks here.

VII. Prosecutorial Abandonment of Case – Failure to Prosecute,
Conviction without Sentencing a Void Judgment

The State (former State’s Attorney William Wright) has completely dropped the ball in this case for ¾ of a decade and has negligently handled a legal matter entrusted to the State. As the conduct of the new State’s Attorney Marthage indicates, it is very clear that the State has no legitimate interest in preserving any portion of this matter or opposing a finding of void ab initio. The ¾ of a decade abandonment is clear indication that this matter has not loomed high in the consciousness of the state for an inexcusably long period of time. As the state has ignored the most important phase of a criminal proceeding, conviction and final judgment (i.e. sentencing), the State has no legitimate interest in seeing that any prior phase of this case is not declared void ab initio. See People v. King, 66 Ill.2d 551, 363 N.E.2d 838 (1977) (conviction without sentence is an incomplete judgment); Martinez v. State, 531 S.W.2d 343 (Tex.Crim.App. 1976) (a conviction is not final until sentencing occurs); Morgan v. State, 515 S.W.2d 278 (Tex.Crim.App. 1974); State v. Siglea, 196 Wash. 283, 82 P.2d 583 (1938) (in a criminal case it is the sentence that makes the judgment. Without the sentence there is no judgment). The sentence and plea in this case were vacated by the District Court and never reinstated by any subsequent order of the District Court. The state never filed a motion to reinstate plea and sentence in the year 2000 after mandate from this Court. A decade long prosecution is repulsive to any concept of speedy trial or due process under the state and federal constitutions.

In its technical legal signification 'sentence' is ordinarily synonymous with 'judgment' and denotes the action of a court of criminal jurisdiction formally declaring to the accused the legal consequences of the guilt which he has confessed or of which he has been convicted. 24 C.J.S. 15, Criminal Law, § 1556. The essential part of the judgment is the punishment and the amount thereof, and until sentence is pronounced there is no final judgment. 1 Black on Judgments (2d ed.), 2, § 1. Rem. Rev. Stat., § 404 [P.C. § 8078], defines 'judgment' as the final determination of the rights of the parties to the action. . . . . " In a criminal case, it is the sentence that constitutes the judgment against the accused, and, hence, there can be no judgment against him until sentence is pronounced [Citing cases]."

This matter was commenced in 1997, defendant’s right to a speedy trial (or in this case, adjudication to judgment) of this matter has been egregiously delayed due to the extreme negligence of the prosecutor in this case, a case which he nefariously and lengthily prosecuted using every illegal and unconstitutional trick possible until his loss in the Vermont Supreme Court. Upon appellate defeat, the prosecutor couldn’t bother with a $100 misdemeanor after dedicating vast resources to the case when it was a felony prosecution. Defendant asserts his rights under the Sixth Amendment and Article 10 of the Vermont Constitution. After the potpourri of illegal and unconstitutional stunts the prosecution undertook in this matter accompanied by a prosecutorial abandonment of this case, it certainly was no duty of the defendant to remind the prosecution to ensure the validity of the judgment. As stated above, sentencing is the crucial element to a conviction implicating speedy trial precepts and Due Process concerns under Federal and State constitutional provisions.

The Hawaii Supreme Court stated in State v. Lau, 890 P.2d 291, 78 Haw. 54 (Haw. 02/22/1995), “Unreasonable delay in the determination of criminal action subverts the public good and disgraces the administration of Justice, and the power of a court to dismiss a case on its own motion for failure to prosecute with due diligence is inherent and exists independently of statute. 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981) (citations and footnote omitted); see also State v. Coyaso, 73 Haw. 352, 833 P.2d 66 (1992).”

The Montana Courts have described the exact duty of a prosecutor and defendant quite well; " '[a] defendant has no duty to bring himself to trial; the State has that duty.' " State v. Tiedemann, 178 Mont. 394, 400, 584 P.2d 1284, 1288 (1978) (emphasis added) (quoting Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190 (1972)). Indeed, it is well settled that it is the responsibility of the prosecution, not the defendant, to ensure a speedy trial, State v. Tweedy, 277 Mont. 313, 320, 922 P.2d 1134, 1138 (1996); State v. Johnson, 2000 MT 180, ¶ 12, 300 Mont. 367, ¶ 12, 4 P.3d 654, ¶ 12, and that the prosecution's failure to prosecute diligently is chargeable against the State for purposes of speedy trial analysis, Tweedy, 277 Mont. at 320-21, 922 P.2d at 1138. In Johnson the Court stated that "[a]s a general matter, the right to a speedy trial places on the State the burden of diligent prosecution at all stages of a criminal proceeding." Johnson, ¶ 12 (emphasis added). Likewise, in Tweedy, the Montana Supreme Court stated that "the State has the obligation to ensure that the prosecution of the case proceeds in a diligent manner." Tweedy, 277 Mont. at 320, 922 P.2d at 1138 (emphasis added). Accordingly, Huminski had absolutely no duty to prosecute himself or to bring his case to the attention of prosecutors. He was legally entitled to do exactly what he did while waiting for the state to get its act together: Nothing!

VIII. NO DISCRETION TO NOT VACATE VOID ACTS

Without the case reaching final judgment, the Court below issued a sua sponte Order to Expunge and declared the remaining motions to vacate moot. An expunction does nothing to change the status of on-going litigation and does not supply a ruling or finality to the criminal matter or to Huminski’s two motions to vacate. The written and oral government threat against Huminski for use of the civil justice system continues and the intent behind it certainly was not affected by the Order to Expunge. Similarly, expunction does not substitute for a final judgment or for Huminski’s request to vacate the case as void ab initio. The Court below put the cart before the horse by expunging prior to addressing the dispositive motion to vacate.

An act or judgment executed in violation of Due Process is void. V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir. 1979) (stating that a default judgment is void if the court "has acted in a manner inconsistent with due process"); Bass v. Hoagland, 172 F.2d 205, 209 (5th Cir. 1949) (holding that a default judgment rendered without notice violates due process and thus is void); see also Wright, Federal Practice and Procedure, § 2862, at 326-29 (1995) ("A judgment is . . . void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.") and cases cited therein. (Footnotes omitted). "A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside.", 7 J. Moore, Moore's Federal Practice, para. 60.25[2] at 301 (2d ed. 1973). A void act or judgment may be attacked in any forum, state or federal, where its validity may be drawn in issue. Pennoyer v. Neff, 95 U.S. 714 [24 L. Ed. 565 ] (1878).

Void acts may be impeached by a party thereto in any way and at any time for they are legal nullities. Alexander & Hutchinson v.Montpelier, 81 Vt 549, 551, 71 A 720; Boyce v.Sumner, 97 Vt 473, 482, 124 A 853. The procedural and constitutional infirmities plaguing this case would be erroneous upon any set of facts, which could be supposed, in which instance this entire case is void and may be attacked at any time and in any court. Barber v. Chase, 101 Vt. 343, 351, 143 A. 302, 305 (1928); In re Estate of Woolley, 96 Vt. 60, 63, 117 A. at 371 (1922). A conviction without sentence, a prosecution based upon police perjury and an egregiously conflicted state’s attorney all violated Due Process and the case is void, a legal nullity, having no force or effect upon the party status of any litigants in this action.

IX. EXPUNCTION NOT A FINAL JUDGMENT

As described above, this case has not reached sentencing and final judgment. The District Court erred by not reaching the merits of Huminski’s motion to vacate the case as void ab initio. A finding that probable cause and the criminal informations were void ab initio would have definitively disposed of the case. Expunction of the record did nothing to bring the legal proceedings closer to final judgment and the Court below erred by sua sponte expunging the case prior to final judgment or vacation of the case. Expunction presupposes the regularity and legality of the prior proceedings when this couldn’t be further from the truth in this matter. There is nothing regular or legitimate concerning the facts of this case.

CONCLUSION

For the foregoing reasons, the Appellant respectfully requests this Court remand with instructions to; (1) declare unconstitutional and vacate the threat against Huminski’s civil litigation, and (2) vacate the entire criminal matter as void ab initio.

This Court should consider invoking its supervisory and disciplinary powers concerning the aforementioned prosecutorial misconduct.

Respectfully Submitted,



__________________________________
Scott Huminski, Pro Se
111-2C Killam Court
Cary, NC 27513
(919) 342-6877

Appellant’s Brief Online at,
http://prosecutorialmisconduct.blogspot.com/

July 18, 2007


s_huminski(-at-)hotmail(-dot-)com