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WILL CIRCUIT COURT JUDGE “DO WHAT IS RIGHT?”
by Sharon Rondeau
(Sep. 7, 2014) — Last weekend, The Post & Email published Part 1 and Part 2 of an interview with Arthur Hirsch, who was arrested without a warrant in December of last year while entering a local grocery store in his community in Lawrence County, TN.
Of the beginnings of his case, Hirsch told The Post & Email:
A state trooper came in behind me and called me over and said, “I’m curious about your non-Tennessee license plate” and began what is known as a “custodial interrogation.”
The officer also asked Hirsch for his driver’s license, to which he responded:
No, I don’t have a “driver’s license.” When he asked why, I said, “Because I don’t drive.” And he said, “I just saw you driving.” And I said, “No, I travel. I have a right to travel in my private pickup truck; I’m not engaged in commerce or using the highways for profit.” He said that no one has a right to use the public highways without the government’s approval and without obtaining a government issued driver’s license which gives you the privilege of driving on the public roads and highways.
By law, a police officer is required to warn and advise a person of his Miranda rights prior to initiating a custodial interrogation in order to protect the constitutionally secured right to remain silent and not to self-incriminate. It’s not an option; it’s mandatory. U.S. Supreme Court and Tennessee high courts have held that everything said in the absence of a Miranda warning cannot be entered into evidence. Nothing said was valid after the trooper began his first questions without the required Miranda warning. A custodial interrogation is when you’re not free to turn around on your heels and walk away. “It was obvious from the minute I got there that he would not have allowed me to walk away. Besides, by then, he had already called for law enforcement officer backup with three showing up in a couple minutes. Two law enforcement officers stood by the trooper, and another police patrol car began circling the parking lot. So, it was a real show of force and intimidation. It was interesting to note that none of the law enforcement officers ever turned on their blue lights. They are just like the courts; they rarely, if ever, follow the mandatory rules of procedure. They do whatever they want.
When we arrived at the jail the arresting officer would not take me to a magistrate for a probable cause hearing, which is in violation of mandatory Rule 5 and a violation of my constitutionally secured right to due process, to equal protection of the laws, and to be informed of the nature and cause of my accusation, and to receive a copy of the charging instrument. The initial appearance hearing to determine probable cause is mandatory, especially on a warrantless arrest. But the trooper ignored the law and left me locked up in a holding cell, went to meet with Judge Patricia McGuire and had an ex parte, private meeting with her. The judge hates me because of knowledge I have of her serious judicial misconduct some years ago with respect to an inmate being held in jail and tortured on false charges and denied bail, phone calls, and prevented from getting help from an attorney. Eventually he was released. So she already had an axe to grind.
Judge Patricia McGuire runs the Lawrence County General Sessions Court outside the statutory rules of law and routinely violates people’s constitutionally secured rights, e.g., right to due process and to equal protection of the laws. Last December 2013 she violated Rule 5 of the Tennessee Rules of Criminal Procedure with respect to my warrantless arrest. She denied me my statutory and constitutionally secured right to be taken immediately before a judge/magistrate for an initial appearance hearing for probable cause determination upon a warrantless arrest. She met privately ex parte with the arresting officer, determined probable cause without my being present, and set my bail bond at $10,000 (which usually would be around $1,000.) Judge McGuire did not issue an arrest warrant which is required by law upon finding probable cause, in violation of Rule 4. Later that evening, Judge McGuire secretly tried by a phone call to the bail bondsman to prevent me from obtaining a co-signer for my bail bond which would have caused me to remain in jail for six weeks while my handicapped, terminally-ill 96-year-old mother was left dying alone, bedridden, and without necessary care.
When I was released from jail Judge McGuire scheduled my “initial appearance” for January 24, 2014, which was 45 days past Rule 5, which states a 72-hour maximum. This was a complete violation of the Rules of Procedure. By this time, my mom was getting really sick and getting close to dying, and she had to go in the hospital in intensive care.
I went to the hearing on January 24, 2014, thinking that it was a probable cause hearing. My big mistake was that I didn’t have a court reporter for this first hearing. NEVER GO IN TO A HEARING WITHOUT WITNESSES AND A COURT REPORTER.
Judge McGuire presumed jurisdiction which is contrary to established case law and continued on with the sham proceeding. She tried to humiliate me in front of hundreds of people present in the courtroom who were there because of the state troopers “saturation patrols” which bring in huge numbers of prey. Judge McGuire said loudly, “Oh, Mr. Hirsch thinks that he is so special that he is above the law and doesn’t have to obey the law like everyone else here does.” Any prejudice here? Note: Tennessee is leading the way in implementing the “police state” with awful asset forfeiture seizures (see www.fear.org), with “saturation patrols” (which brings in hundreds of victims monthly), with “no refusal” blood sample roadblocks, etc.
Judge McGuire violated Rule 10 which says that there’s to be strict observance of arraignment procedures; there can be no discretion following the prescribed steps for arraignments. It is mandatory that there be a valid charging instrument listing all the accusations. There was none. Further, I was to have a copy of the charging instrument, to have the accusations read, to know the nature and cause of the accusations, and be asked how I intended to plead. None of this happened. This surprise “arraignment” was totally outside the statutory rules and a complete sham.
After a hearing on his case on April 11, Hirsch wrote to the grand jury foreman and included evidence of alleged criminality on the part of McGuire and others, asking for a subpoena to be issued for him to appear to testify before the grand jury, the same body which had indicted him on June 26.
Hirsch told The Post & Email that he did not want to approach the grand jury without an invitation because “they make up charges against you.”
In July, Hirsch received the subpoena and testified for about 40 minutes to the grand jury. Afterward, when the foreman asked, “What do you want us to do?” Hirsch responded that he advised them simply to “do what is right.”
Hirsch also made the decision to file a federal lawsuit citing violations of 42 USC 1983 on the part of officials in Lawrence County, including McGuire and District Attorney General Mike Bottoms.
Of the federal lawsuit, Hirsch told us:
I filed a 52-page complaint, got the summonses, brought the summonses back to have them served, and everyone freaked out. I walked into the sheriff’s department and told them I wanted to speak to the person who does their service. They said, “We don’t do this kind of stuff. No one has ever walked into here off the street – a lay person – and asked us to serve federal summonses. We just can’t do it.” I said, “Listen, it’s no different…everything is certified. See? Everything’s certified. It’s no different; you hand it to them, there’s a little form; you fill it in, you give it to me…” It took forever, round and round; it must have been an hour.
Then they sent me up to the Circuit Court Clerk’s office. I went in there, and they all freaked out; same thing. The clerk came over, and she really was nice. I think she has thoughts of trying to get things cleaned up; I get that feeling. She said, “We don’t do this. The sheriff is going to have to handle this. We’re not going to take care of the paperwork and the accounting for him.”
So I went back down there, and they didn’t want to do it, but they called a fellow named Adam Brewer, who was part of the group that met with the Tea Party every month. He does know the Constitution; he’s a nice fellow; he’s wonderful, and I wish he were sheriff. He was captain. So he came out, and said, “Come on back to my office,” and I showed him my documents. He looked them over and said, “I don’t see a problem here. Let’s see if we can get it resolved.” He took me down to the warrant clerk, and I paid him the money, and it was $224; they have really gone up on their fees. You’re guilty until proven rich.
So we got everything done. I called a successful paralegal in Arkansas who has given me some tips. He said, “Man, you really blew it. They can just sit on this thing for 90 days,” and I said, “oh, no…” Fortunately, they were scared enough that they didn’t delay. They hadn’t gotten hard and calloused and driven me into the ground. So the next day I went and got six of the eight summonses and sent those off to the national federal clerk’s office. The next day, I got the two remaining copies which I sent off.
When I was in the clerk’s office, I wanted to make sure that I had everything in my case file. I got 49 pages that I didn’t have. There was a lot of stuff they put in there that they don’t tell you about. I never got a copy of the indictment. If I hadn’t gone in there, I would never have seen an indictment. I would not have known who this assistant, or temporary, DA was, the one who came in. I’m going to have her named in my lawsuit.
She gave me copies of things and was very nice. I said, “Do I have everything?” and she said, “Except the mittimus.” “What’s the mittimus?” and she told me and said, “We don’t keep them on file here.” Well, they should be because they’re public record and they’re very important. So I went to the sheriff’s office and asked for it again, and they said, “Oh, we don’t do that; we’ve never given one out.” Out comes Adam Brewer, and he said, “I think I can help you; sit down here.” It took a half an hour to just go to a file and pull out something. So they must have a lot of arguments over it.
So I got it, and the deputy who gave it to me was quite abrupt and angry. He said, “I’m not angry at you; I’m angry at the clerk’s office upstairs. They’re supposed to have this stuff and they’re wasting our time running around here for paperwork that they’re supposed to have on file.” He said, “When you go up there, you tell them.”
I did, and I took that mittimus and had it stamped, and it’s in my file, the first one ever to be filed for public record in the county’s history. Then I went across the street to the county clerk’s office and asked to see the oath of office and the bond. I’m going to file a complaint on the bond.
He was very nice, much more cordial than I thought he’d be. He took me in a back room where they have their vault of records. He showed me the DA’s folder, and there was nothing in it, so apparently the DA probably has all his records in another county. But the judge is strictly a county judge, and her oath of office was there, and I got a copy. There was no bond information, so I don’t know whether they keep it there or somewhere else. The clerk of the county told me that there’s a blanket bond for all the other employees but not the judge; they’re supposed to have their own. So I said, “I want you to type it out on your stationery that I asked for it, and you looked, and it’s not there.” He did. So now I had those files. I went back over to the court and they stamped those and put them in the file.
I don’t know whether she has one and it’s elsewhere, but if she doesn’t, she’s toast. the reason she’s toast is because I know they’re going to try to argue against my federal case because t.hey have immunity. You can’t have immunity when you engage in criminal activity; you lose all your immunity completely from the inferior court. That’s why it’s important to stay in the inferior courts as long as you can and fight it because the more they say and do that’s to your prejudice, the more you have a chance of winning big-time against them.
Now I have all the documents. If you can them from the record that they have violated certain things, and it’s right from the documents that are in your case file, the judge really can’t even hold a hearing. I’ve got cases to show that he has to do a ministerial act. He has a ministerial duty to dismiss the case; nothing else; nothing said, no arguments. He has no jurisdiction to hear a case and make a determination of facts and issue a ruling. If there’s no jurisdiction, he can do nothing except dismiss.
Hirsh said he included in the lawsuit a notice of criminal activity and affidavits from “credible friends” who were present at the “arraignment” hearing on January 24 stating that proper procedure was not followed.
In Hirsch’s criminal complaint, he named Judge McGuire, District Attorney General Mike Bottoms and others as having committed perjury, destruction of and tampering with governmental records, and treason. The case is being heard by Circuit Court Judge Jim Hamilton.
When I went over to the clerk’s office, I said, “You’re supposed to have a warrant book. I’d like to see it.” She said, “We don’t have one. We’re allowed to keep it on computer.” I said, “OK, if it’s on computer, what was the time that this was issued?” and she said, “We don’t have a field in our computer for the time.” I said, “How do you know when this thing was entered?” and she said, “They bring us the papers, and they could be here for days or weeks.” “What???” I said. She ran off a piece of paper that says that my case began on January 7, but everything happened on December 10. It says right there, “Case commenced.” So they had that wrong.
I also said, “I want to see a copy of the warrant,” and she said, “We don’t have warrants.” I said, “What do you use?” and she said, “We use the citation that the cop has.” There’s a little place for an affidavit where they fill it out. She was nice, and I said, “Come over here, and put your glasses on,” and I said, “Read both sides, and you point out the word ‘warrant.'” She said, “There’s nothing on here about a warrant.” I said, “If they’re serving somebody out in the county and they’re uneducated, and the deputy hands them this, how are you supposed to know this is a warrant? There’s not a word on here about a warrant.”
I did research on it, and that is part of my Motion to Dismiss. The warrant, citation and the affidavit are all separate documents. They’re not the same, but they’re saying because most of the information you would find on a warrant is on the citation, we’re just going to use this as a warrant. I have cases here in Tennessee that went to the Supreme Court that say that’s not so.
In his supplemental brief, Hirsch cited the 2008 case of State of Tennessee v. Ferrante, which includes the following opinion:
The court also reviewed carefully the applicable Rules of Criminal Procedure. After noting that “no arrest warrant was issued contemporaneously with the affidavit of complaint” and that “[s]uch a practice of not issuing a warrant . . . begs some rather important questions,” the court correctly concluded that the charge against the Defendant had to be dismissed because of the State’s failure to “comply with the requirements of” Tennessee Rules of Criminal Procedure 3, 4 and 5.
STATE v. FERRANTE, 269 S.W.3d 908, 915 (Tenn. 2008)
Hirsch filed a Motion for Return of Property on the morning of August 28, the first hearing on his federal lawsuit.
He reported later that day:
This judge has a weak spot. He was publicly reprimanded for misconduct a few years ago and the Supreme Court disciplinary committee warned him not to violate the rules of the Tennessee Code of Judicial Conduct any more. . . or else. I plan to file a motion for strict adherence to the Code and the rules of criminal procedure before Sept. 8th so as to alert him to his Supreme Court ultimatum and get a fair hearing.
The motion to which Hirsch referred asks that “in all future criminal proceedings of this case that the Court’s Judge will follow strict adherence and avoidance as follows, thus ensuring accused of fair and impartial treatment by a neutral and detached tribunal in this cause.”