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