Speedy Trial – Denver Colo. and the Adventures of Billy bob Bramscher – PART IX

Speedy Trial

“Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.”

~Martin Luther King, Jr.

“That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the [judgment] of his peers.”

~George Mason, Virginia Declaration of Rights  June 12, 1776


STORYLINE:  Within the next few days the following motion will be submitted to the Denver Municipal Court and the Colorado Supreme Court as I continue to fight and protect our constitutional freedoms…

The City and County of Denver

v.

BRAMSCHER, William R

Municipal Case Number: 14GS000200

District Court Case Number: 2014CV030627

Colorado Supreme Court Case Number: 2014SA318

***Motion to Dismiss for Want of Due Prosecution Part III***

TABLE OF CONTENTS

I.  STATEMENT OF FACTS

II.  STATEMENT OF CASE

III. STANDARD OF REVIEW

IV.  ARGUMENT

  1. Procedural Due Process
  2. Substantive Due Process
  3. Speedy Trial

A. Length of delay

B.  Reason for delay

C.  Prejudice to William Robert “Billy bob” Bramscher

D.  Demand for SPEEDY TRIAL

V.  CONCLUSION

TABLE OF AUTHORITIES

Cases

People v. Small, 631 P.2d 148 (Colo.) cert. denied, 454 U.S. 1101, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981)

Coca v. District Court 7th Judicial District, 187 Colo. 280 (01/13/75)

People v. O’Neill, 185 Colo. 202, 523 P. 2d 123 (1974)

Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S.Ct. 523, 17 L.Ed.2d 441 (1966)

Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964)

People v. Saiz, 923 P2d 197 (11/24/95)

Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971)

People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973)

People v. Atkins, App.1994, 885 P.2d 243, rehearing denied, certiorari denied (1994)

People v. Chavez, 779 P2d 375 (Colo. 1989)

People v. Abeyta, Montoya & Santistevan, 195 Colo. 338, 578 P2d 645 (05/08/1/78)

Valdez v. People, 174 Colo. 2 68, 483 P2d 1333 (1971)

Jaramillo v. Dist. Ct., 174 Colo. 561, 484 P2d 1219 (1971)

Lucero v. People, 173 Colo. 94, 476 P2d 257 (1970)

Watson v. People, 700 P.2d 544 (Colo. 1985)

People v. Auld, 815 P2d 956 (Colo. App. 1991)

People v. Naulls, 937 P2d 778 (Colo App 1996)

In Re Bueno, 248 B.R. 581, 582-83 (D. Colo. 2000)

Todd v. Bear Valley Village Apartments, 980 P2d 973, 977 (Colo. 1999)

People v. Martinez, 185 Colo. 187 (Colo. 1974)

Tumey v. Ohio, 273 US 510, 47 S Ct 437, 71 L Ed 749 (1927)

Whitaker v. McClean, 73 APP DC 259, 118 F2d 596  (1941)

Berger v. United States, 255 US 22, 65 L Ed 481, 41 S Ct 230 (1921)

Offutt v. United States, 348 US 11, 99 L Ed 11, 75 S Ct 11 (1954)

Falgout v. People, 170 Colo 32, 459 P2d 572, (1969)

People v. Spencer, 182 Colo 189, 512 P2d (1973)

People v. Buggs, 186 Colo. 13, 525 P2d 421 (1974)

Gefland v. People, 196 Colo. 487, 586 P2d 1331 (1978)

PV v. District Court, 609 P. 2d 110, 199 Colo. 357 (1978)

Other Authorities

The United States Federal Constitution

Colorado Constitution

Federal Rules of Criminal Procedure

Case Precedent

Canon 1, Colorado Code of Judicial Ethics


I.  STATEMENT OF FACTS

The false allegations in this case are/were that on December 23, 2013, Defendant William Robert “Billy bob” Bramscher was terminated by his employer and that after leaving the building, Bramscher repeatedly called River Rock Dispensary harassing the employees by using foul language and threatening them. The General Sessions Summons and Complaint was issued and signed by Denver Police Detective D. Diaz Deleon #P04405 who is currently on paid leave as reported by The Denver Channel.

On January 06, 2014 ICJ FILE SCAN

On January 31, 2014 ARRAINGMENT “Defendant pleads Not Guilty, desires that the matter be set for a (Court) (Jury) trial….

On February 11, 2014, Judge Johnny C. Barajas DISMISSED 14GS000200 ruling, “Okay, well it does say it has to be a brief description, so that suggests to me that there has to be more than just the boxes being checked off. So I am going to go ahead and dismiss it without prejudice” (pg. 14, 5-9) TRANSCRIPT

On February 12, 2014, Denver City Attorney’s Vincent A. DiCroce, No. 23157 and Megan A. Jones, No. 40197 filed a “NOTICE OF APPEAL AND DESIGNATION OF RECORD ON APPEAL” with the District Court 2014CV030627.

On April 25, 2014, Denver City Attorney’s Vincent A. DiCroce, No. 23157 and Megan A. Jones, No. 40197 filed a “MOTION FOR RECONSIDERATION OF CASE DISMISSAL WITHOUT PREJUDICE” with the Municipal Court Judge Johnny C. Barajas 74 days or 2 months and 15 days after this case was dismissed according to rule/law.

On May 20, 2014, Municipal Court and Judge Johnny C. Barajas granted the prosecutions 04/25/15 motion reinstating this case 99 days or 3 months and 10 days after Barajas did dismiss this case according to rule/law.

On July 10, 2014, 161 days or 5 months and 11 days after the Arraignment and William Robert “Billy bob” Bramschers’ “Not Guilty” plea on January 31, 2014 Municipal Court Judge Johnny C. Barajas restarts SPEEDY TRIAL.

On September 9, 2014 the APPEAL to the District Court 2014CV030627 orchestrated and authored by Denver City Attorney’s Vincent A. DiCroce, No. 23157 and Megan A. Jones, No. 40197 is DISMISSED and ENDED.

On February 9, 2015 this case is set for JURY TRIAL.

II.  STATEMENT OF CASE

Case 14GS000200/2014CV030627/2014SA318 is a vindictive/malicious prosecution based on a bad-faith investigation dismissed according to rule/law on 02/11/2014.  Judge Johnny C. Barajas reinstated this case on 05/20/2014 99 days or 3 months and 10 days after the arraignment in violation of William Robert “Billy bob” Bramschers’ substantial and procedural due process rights and is shocking conduct on the behalf of our government and agents under color-of-state.  Speedy Trial EXPIRED!!!

III.  STANDARD OF REVIEW

Defendant must assert right. A criminal defendant has no duty to bring himself to trial; but he does have a responsibility to assert his right to a speedy trial. People v. Small, 631 P.2d 148 (Colo.) cert. denied, 454 U.S. 1101, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981).  Right to a speedy trial has been formulated to force the prosecution to try a defendant promptly in compliance with the statutes, rules, and constitutional requirements of each case. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975).

The constitutional provisions, statutes, and rules relating to a speedy trial cannot support a claim for relief when a factual basis does not appear in the record. U.S.Const. Amend. VI; Colo.Const. Art. II, Sec. 6; C.R.S. 18-1-405; Crim.P. 48(b)(1); Speedy Trial Act of 1974; 18 U.S.C.A. § 3161.

Both our rule and the statute require that a defendant be brought to trial within six months after the entry of a plea of not guilty.  See C.R.S. 18-1-405(1); Crim.P. 48(b)(1). See also Potter v. District Court, 186 Colo. 1, 525 P.2d 429 *1295 (1974). The burden, however, is upon the defendant to establish that he has been denied a speedy trial in violation of the statute or rule or that his constitutional right to a speedy trial requires dismissal. See People v. O’Neill, 185 Colo. 202, 523 P. 2d 123 (1974); Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S.Ct. 523, 17 L.Ed.2d 441 (1966); Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964).  People v. Saiz, 923 P2d 197 (11/24/95); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

In order to determine whether the constitutional right to a speedy trial has been violated, it is necessary to make an ad hoc judgment based on the facts of each case. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971); Potter v. District Court, supra.  Factors to be considered include length of delay, the reason for the delay, defendant’s assertion of the right, and any prejudice to the defendant. Barker v. Wingo, supra; Potter v. District Court, supra; People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

IV.  ARGUMENT

Defendant cannot stand mute and allow trial schedule to be adopted without registering his complaint that such schedule violates his speedy trial rights. People v. Atkins, App.1994, 885 P.2d 243, rehearing denied, certiorari denied (1994).  It is duty of prosecutor and trial judge to secure and protect the defendant’s right to speedy trial (People v. Chavez, 779 P2d 375 (Colo. 1989); People v. Abeyta, Montoya & Santistevan, 195 Colo. 338, 578 P2d 645 (05/08/1/78)).

The right to a speedy trial is a basic constitutional right guaranteed by both the Colorado and United States Constitutions in essentially the same language (Valdez v. People, 174 Colo. 2 68, 483 P2d 1333 (1971); Jaramillo v. Dist. Ct., 174 Colo. 561, 484 P2d 1219 (1971); People v. Small, 177 Colo. 118, 493 P2d 15 (1972); Lucero v. People, 173 Colo. 94, 476 P2d 257 (1970)).  The right to a speedy trial is not only for the benefit of the accused, but also for the protection of the public.  It is essential that an early determination of guilt be made, so that the innocent may be exonerated and the guilty punished (Jaramillo, supra).

Quoting Cornell University Law School, “The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be ‘deprived of life, liberty or property without due process of law.’ The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (‘legality’) and provide fair procedures.”

Procedural due process

Defendant William Robert “Billy bob” Bramscher petitions this court that 14GS2000200 is a vindictive and malicious prosecution based on a bad-faith investigation. Bramscher has (1) suffered injury in fact deprived of fundamental fairness, (2) this deprivation constitutes a deprivation of life, liberty, property, and (3) DISMISSAL with PREJUDICE is required.

The fundamental right of an accused to a speedy trial arises from § 16 of art. II, Colo. Const. This section must be regarded as having been enacted for the purpose of rendering the constitutional guaranty effective and providing a method of securing the right declared. Ex parte Schechtel, 103 Colo. 77, 82 P.2d 762 (1938), overruled on other grounds in Watson v. People, 700 P.2d 544 (Colo. 1985). See C.R.S. 18-1-405; USCS 3161.

Substantive due process

The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.  See also Sixth Amendment.

Speedy Trial

“Application of a courts supervisory powers in dismissing a criminal case may be proper if the governments conduct has violated fundamental fairness and is shocking to the universal sense of Justice” and “Outrageous governmental conduct need not be prejudicial to defendant to constitute a violation of Due Process (People v. Auld, 815 P2d 956 (Colo. App. 1991).

“Right of accused to speedy trial is an important right and when the constitutional mandate is invoked, the matter should receive careful consideration by the by the courts” (Ex Parte Russo, 104 Colo 91, 88 P2d 953 (1939); see also C.R.S. 18-1-405.

“Failure to hold trial within prescribed time period pursuant to C.R.S. 24-60-501 ART III(a) requires dismissal of charges.  This article by its express terms is jurisdictional, hence dismissal is required regardless of whether defendant was prejudiced by delay” (People v. Naulls, 937 P2d 778 (Colo App 1996)).

Four factors relate to the constitutional concept of a speedy trial:

A.  Length of delay – 375 days from the Arraignment or 1 year, 10 days

B.  Reason for delay – Billy bob Bramscher petitions the Judge Johnny C. Barajas’s conduct displayed a deep-seated favoritism and antagonism that would make fair judgments impossible.  Billy bob Bramscher makes claim that the trial courts decisions were manifestly arbitrary, unreasonable, and unfair and the trial court failed to articulate a reason for some decisions and not such reason was readily apparent from the record or the Judges articulated reasons which had no basis in fact or the reason so articulated is contrary to law. (See In Re Bueno, 248 B.R. 581, 582-83 (D. Colo. 2000); Todd v. Bear Valley Village Apartments, 980 P2d 973, 977 (Colo. 1999) “trial court’s broad discretion to act in a ‘managerial role’”); see also CRCP 16 Committee Cmt. “It is expected that trial judges will assertively lead the management of cases to ensure justice is served.”)  The role of the Judiciary, if its integrity is to be maintained, is one of impartiality.  (See People v. Martinez, 185 Colo. 187 (Colo. 1974); Canon 1, Colorado Code of Judicial Ethics (1973)).  The Judge who presides over civil and criminal cases should be fair, unbiased and completely impartial.  Any bias, hostility or prejudice or even interest in the outcome of a given civil or criminal case will disqualify a judge from presiding over that case.  (see Tumey v. Ohio, 273 US 510, 47 S Ct 437, 71 L Ed 749 (1927); Whitaker v. McClean, 73 APP DC 259, 118 F2d 596  (1941); Berger v. United States, 255 US 22, 65 L Ed 481, 41 S Ct 230 (1921); Offutt v. United States, 348 US 11, 99 L Ed 11, 75 S Ct 11 (1954)).

C.  Prejudice to defendant – Procedural, Substantial, First Amendment, Fifth Amendment, Sixth Amendment, Fourteenth Amendment, Civil Rights, et seq….

D.  Accused, William Robert “Billy bob” Bramscher has/is demanding SPEEDY TRIAL.

V.  CONCLUSION

The accused, William Robert “Billy bob” Bramscher has been denied the constitutional right to SPEEDY TRIAL (see Falgout v. People, 170 Colo. 32, 459 P2d 572, (1969); People v. Spencer, 182 Colo. 189, 512 P2d (1973); People v. Buggs, 186 Colo. 13, 525 P2d 421 (1974); Gefland v. People, 196 Colo. 487, 586 P2d 1331 (1978)) and “If the constitution, the statutes, the rules or case law require dismissal, it is the duty of the trial court to order that the case be dismissed” (Coca, supra)  and “No person shall be deprived of life, liberty or property, without due process of law” from the Constitution of the State of Colorado, Article II, Bill of Rights; see also PV v. District Court, 609 P. 2d 110, 199 Colo. 357 (1978)).

For the aforementioned reasons, William Robert “Billy bob” Bramscher, respectfully requests that this court grant the defendants Motion to Dismiss for Want of Due Prosecution; Speedy Trial Expired.

By: /s/ ~BbB~

William Robert “Billy bob” Bramscher, No. 1

FACEBOOK:  Blue Dakini

~BbB~


“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, … to the excesses of the English Court of Star Chamber, … and to the French monarchy’s abuse of the lettre de cachet. … All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups, each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, … the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”

~Mr. Justice Black

In re Oliver (1948)

U.S. Supreme Court

March 8, 1948

“The very first step toward despotism is to establish courts that can be rigged and juries that can be stacked by those in power to effectuate their will and policies, which they always affirm to be ‘best for the country.’

One jury may give an unjust verdict, but since jurors are drawn at random from the body of the people, unjust verdicts cannot become a habit. We still hear an accused put himself ‘on the country.’ That means that he puts his case and fate in the hands of a jury. Jurors were justly known to the common law as ‘the country.’ A jury represents country not government. A jury judges facts with the feelings of men who must live under government not with the impatience and passion of those who seek to administer government as if they own it. Impartial juries are essential to freedom, just as partial judges or juries are essentials to despotism.”

~R. Carter Pittman

The Safeguards of the Sixth Amendment

Speaker’s Digest of the Bill of Rights Commemoration Committee

 “This [Sixth Amendment] guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”

~Mr. Justice White

United States v. Ewell (1966)

U.S. Supreme Court

February 23, 1966

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