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