AN ACTUAL WINNING CRIMINAL CASE!
Now let’s put some of these ideas to the test in an actual criminal case, just so you can see how the process works and… that it does indeed work.
Like Judge Andrew P. Napolitano, one of my favorite people, says in his new book, “It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom”, in this real life example below you will discover that this is very true. However, most people don’t realize that you can turn “bad police conduct” into a decent profit. That profit is to be found under Title 42 Section 1983 of the United States Code and is entitled the Federal “Civil Rights Act”.
In, “Glik v. Cunniffe”, the court case I mentioned previously, Mr. Glik was arrested for recording the Boston Police on his cell phone while they were arresting someone. Mr. Glik filed his Civil Rights Suit under Title 42 Section 1983 in the First District Court. According to the “ACLU” Mr. Simon Glik was awarded a $170,000 settlement on March 27, 2012 against the City of Boston for his false arrest, which violated both his First and Fourth Amendment Rights.
Below is an excerpt from an actual criminal case won by one of my former students which directly relates to the legal questions, “Do I have to produce identification upon demand to a police officer? And/or, Do I have a duty to speak to the police or cooperate with their criminal investigation? And/or, Can I just simply walk away from a Police Officer who is questioning me about a criminal matter?
This case was accomplished entirely without an attorney and based upon what Mr. Jenniches learned through my classes, which he attended on a weekly basis in the evenings. Mr. Jenniches had no legal training; only a high school education; was of average intelligence; and had never been arrested prior to this incident. This case took place over a period of approximately eleven months; is a matter of public record; and the Judge and Case number below are real and can be verified.
This incident involved Robert Jenniches who was allegedly arguing with a clerk in a video store and thereby allegedly causing a disturbance. Mr. Jenniches was ordered to vacate the premises by the store manager and he refused. Subsequently, the Fort Lauderdale police were summoned to the scene by the store manager. When confronted by the Police, Mr. Jenniches refused to produce identification to them, refused to talk to them about the incident, and attempted to walk away during their questioning. The Police arrested Mr. Jenniches and took him to jail charging him with “843.02 - Resisting officer without violence to his or her person - in violation of Florida State Statute 843.02.
Mr. Jenniches filed a “Motion to Dismiss”, which is a remedy available in most every State. The purpose of his motion was to force the Judge to rule on the law. In order for that to happen, Mr. Jenniches and the State Prosecutor had to be in agreement that none of the material factual matters in the case were in dispute. This remedy is for those who are innocent of the crime they are charged with and want the matter resolved before the actual trial, or instead of a trial. What I mean by “no material facts in dispute” is explained in the following example.
Example:
Let’s say that I attend the Democratic Convention and while I am there I eat a banana in its entirety. A Police Officer singles me out, arrests me, and charges me with the crime of “Eating a Banana at the Democratic Convention” and halls me off to jail.
In order for me to get a Judge to rule on that law, I have to get the Judge to determine whether my actions, “Eating a Banana at the Democratic Convention”, rose to the level of criminal activity. Now in order to do this I must show that there are no material facts in controversy between me and the State. In other words, I must make a Motion to Dismiss and in that motion I must admit “under oath” to all the allegations against me by the State. In my motion I would have to agree that; (1) I was in attendance at the Democratic Convention on the date and time of the incident; and (2) that I did in fact eat a banana in its entirety during my attendance at the convention. So in court, through a process called “discovery”, I would have to agree to all of the material facts alleged by the State.
In order to understand this point you must be made aware that a “jury” only judges the facts, never the law. [Except of course for “Jury Nullification” which I won’t attend to here] Thus, since I admit that that I did exactly what the Officer said I did, there are no material facts for a jury to judge. The Judge must rule on whether my stated undisputed actions were criminal, or if the law was improperly being applied, or if the law itself was unconstitutional. Now, I would conclude that since it’s not illegal for me to attend the Democratic Convention; and, it is not illegal to eat a banana while in attendance there; the case must be dismissed by the Court without being heard by a jury.
That is the purpose of Mr. Jenniches Motion to Dismiss. Mr. Jenniches is saying; (1) yes, I refused to speak to the police; (2) yes, I refused to produce identification to the police; and (3) yes, I tried to walk away while the Police Officer was trying to question me about the disturbance. In conclusion, since Mr. Jenniches is asserting to the Judge that none of those three facts are illegal, then she should dismiss the case against him.
To recap, the motion you are about to read is designed to have Mr. Jenniches’ case dismissed by the Judge without him having to go through a full blown trial. If Mr. Jenniches can illustrate to the Judge that, although he did everything the Officer accused him of, those actions did not break any laws.
So, let’s take a look at it and see how it unfolds for Mr. Jenniches. My comments and notes to the reader will be identified in brackets [ ]. All other wording is based on what Mr. Jenniches wrote in his Motion.
In the County Court of the 17th Judicial Circuit, in and for Broward County, Florida
STATE OF FLORIDA,
The Plaintiff,
vs.
CASE NO.: 01-017875MM10A
JUDGE: LISA TRACHMAN
Robert A. Jenniches, In Propria Persona,
Sui Juris,
The Accused/Defendant.
/
ACCUSED’S AMENDED VERIFIED 3.190(C)(4)
MOTION TO DISMISS
I, Robert A. Jenniches, In Propria Persona, the Accused in this matter, hereby moves to dismiss this criminal case pursuant to Criminal Rule 3.190(C)(4) on the following facts and grounds:
1. The undisputed facts of this case arose from an incident where I was allegedly creating a disturbance, by allegedly arguing with the store clerk and refusing to leave from a local business in Dania, Broward County, Florida. See Police Incident Report attached hereto marked as Exhibit “A”.
[Author’s note: the Police Report is omitted for the sake of brevity.]
2. The Arresting Officer, Jose Izquierdo, (hereinafter also “Officer”) stated in his deposition and throughout his incident report that I was observed as being calm when the Officer first arrived at the scene and that my behavior escalated to anger once the I was outside the Store. See copy of Transcript of Arresting Officer attached hereto marked as Exhibit “A”.
[Author’s note: The pertinent parts of the Sworn Transcript are referred to below. The Transcript itself is not published in this writing, but it is quoted here verbatim.]
[Author’s note: The following is a copy of the Transcript of the Deposition of the Arresting Officer. This deposition was conducted by Mr. Jenniches without an attorney helping him. After Mr. Jenniches’ arrest, it’s was very empowering to be able to subpoena the Officer in front of him, have the court reporter make the Officer raise his hand, swear an oath and then make him answer questions about his conduct. As you will see below, Mr. Jenniches refers back and forth to the Transcripts and his Motion to Dismiss.]
TRANSCRIPT:
ACCUSED Robert Jenniches:
“What would you say my demeanor was throughout the incident from the time you arrived to the time that you left there?” (Transcript, page 10, line 9)
OFFICER Izquierdo:
“Angry, calm.” (Transcript, page 10, line 12)
ACCUSED Robert Jenniches:
“Which one – at what point was I calm and what point was I angry?” (Transcript page 10, line 15)
OFFICER Izquierdo:
“I believe you were calm at the time I entered the store. At that point on it escalated to anger.” (Transcript, page 10, line 17)
ACCUSED Robert Jenniches:
“So from the point you entered the store nothing was really going on, you entered and what did you observe?” (Transcript, page 10, line 20)
OFFICER Izquierdo:
“I observed you and the clerk standing closely to each other, he was behind the counter. I walked in. I spoke to the clerk to see what was going on. And I believe I asked you a question which I don’t recall at this point in time, but I spoke to both of you.” (Transcript, page 10, line 23)
ACCUSED Robert Jenniches:
“And my demeanor at that time was you say was calm?” (Transcript, page 11, line 4)
OFFICER Izquierdo:
”It was calm at one point and began escalating to a higher degree as you stepped out of the video store.” (Transcript, page 11, line 6)
3. The Arresting Officer also stated that he observed no criminal activity on my part at any time during his investigation, other than what the Officer interpreted as my refusal to give him identification, as being criminal conduct.
TRANSCRIPT:
ACCUSED Robert Jenniches:
“Did you observe any kind of disturbance when you first arrived?” (Transcript, page 14, line 13)
OFFICER Izquierdo:
”Not when I initially entered the store.” (Transcript, page 14, line 15)
ACCUSED Robert Jenniches:
“Did you feel threatened at all when you were at the scene?” (Transcript, page 14, line 16)
OFFICER Izquierdo:
”No.” (Transcript, page 14, line 18)
ACCUSED Robert Jenniches:
”Did you observe any disturbance at any point during your time there? (Transcript, page 14, line 19)
OFFICER Izquierdo:
”Yes.” (Transcript, page 14, line 21)
ACCUSED Robert Jenniches:
”What point was that?” (Transcript, page 14, line 22)
OFFICER Izquierdo:
”Where you began to argue with the clerk.” (Transcript, page 14, line 23)
ACCUSED Robert Jenniches:
”And what was my argument?” (Transcript, page 14, line 24)
OFFICER Izquierdo:
”I believe it was to the effect that you wanted to speak to somebody other than the clerk himself.” (Transcript, page 14, line 25)
4. The Arresting Officer stated that my “calm” escalated into “anger” once I stepped outside of the Store, however the Arresting Officer’s testimony did not support his contention that I was angry. In any event, I was not charged with disorderly conduct or trespassing, the sole criminal conduct alleged by the Arresting Officer was that it was a criminal act for me to refuse to give him identification while he was conducting an investigation and for not answering his questions about his investigation.
TRANSCRIPT:
ACCUSED Robert Jenniches:
”Would you consider that when asking a question of a person, that if that person does not answer that question it’s an obstruction of justice?” (Transcript, page 27, line 15)
OFFICER Izquierdo:
”I believe if I ask a person to identify themselves due to the fact that I was conducting an investigation to give me any kind of facts of what’s going on from their behalf, then it’s obstruction.” (Transcript, page 27, line 19)
ACCUSED Robert Jenniches:
”If they choose not to speak at all, would that be considered obstruction of justice?” (Transcript, page 27, line 24)
OFFICER Izquierdo:
”It could be construed as obstruction.” (Transcript, page 28, line 1)
ACCUSED Robert Jenniches:
”It could be construed as obstruction? Is that the only law that you know of that covers obstruction in your mind? Obstruction of justice, is this the only law that you are familiar with that pertains to that situation?” (Transcript, page 28, line 12)
OFFICER Izquierdo:
”Also resisting.” (Transcript, page 28, line 7)
ACCUSED Robert Jenniches:
”Resisting. And that would be resisting an officer?” (Transcript, page 28, line 8)
OFFICER Izquierdo:
(Officer Nodding Yes) (Transcript, page 28, line 10)
ACCUSED Robert Jenniches:
”Would I be correct in concluding that you arrested me solely for not giving you identification?” (Transcript, page 31, line 6)
OFFICER Izquierdo:
”Correct. And refusing to answer my questions and attempting to leave from me as I was attempting to question you in regards to the events that occurred.” (Transcript, page 31, line 9)
5. It is abundantly clear that the grounds used to support the Arresting Officer’s charge of obstruction against me was that I refused to give him identification when he asked for it and for not answering the Officer’s questions regarding my side of the events which had previously occurred that day.
6. I object to any oral traverse by the State, to wit:
[Author’s note: This rule simply requires the State Prosecutor to either agree or disagree, under written oath, that Mr. Jenniches’ Motion to Dismiss alleges specific pertinent and material factual matters. For example, if Mr. Jenniches’ statement of the facts in his Motion did not meet with the State Prosecutor’s version of the facts, then the Prosecutor must explain so in writing and under oath in a responsive paper back to Mr. Jenniches.]
RULE 3.190.PRETRIAL MOTIONS-(d) Traverse or Demurrer. The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c) (4) of this rule shall be deemed admitted unless specifically denied by the State in the traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss. The demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss. (Accused’s emphasis added)
7. Moreover, the lack of enforcement of rule 3.190(d) is reversible error, to wit:
Florida Rule of Criminal Procedure 3.190(d) requires a written traverse or demurrer to a motion to dismiss that alleges factual matters. Although the rule undoubtedly requires the traverse to be in writing, this requirement may be waived and an oral traverse may be permitted if there is no objection by the defendant. Newman v. State, Court of Appeal of Florida, Fourth District; also, See State v. Upton, 392 So.2d 1013(Fla. 5th DCA 1981); and Turner v. State, 388 So.2d 254 (Fla. 1st DCA), dismissed, 394 So.2d 1154 (Fla. 1980).
8. I have set forth facts in my affidavit in support of this Motion.
WHEREFORE, I respectfully requests that this Court compel the State to traverse or demurrer [agree or disagree under oath] as required by rule 3.190(d). Moreover, I move this Honorable Court to dismiss this case for failure of the State to be able to prove a prima facie case of guilt for resisting/obstruction (Florida Statute 843.02) against me based upon the undisputed facts of both myself and the Arresting Officer, which are fully before the Court and for any and such further relief as the Court deems just and proper.
Respectfully Submitted,
_______________________
Robert A. Jenniches