PETITIONER’S ARREST WAS UNLAWFUL
THE TRIAL COURT LACKED PERSONAL JURISDICTION
THE CALIFORNIA ORDER IS INVALID
Petitioner
was arrested on March 1, 2012 by Berkeley, California Police Department
for violating a restraining order. Petitioner alleges that her
conviction rests on, among other things, an unlawful arrest and
evidence obtained by an illegal search and seizure, in violation of the
Fourth Amendment to the Constitution of the United States. Petitioner
contends that she was convicted in violation of the rights guaranteed to
her by the Constitution of the United States based on violations of due
process, lack of service, evidence used against her at the trial that
was the product of an unlawful search and seizure, violations of her
First Amendment rights, ineffective assistance of counsel, and egregious
prosecutorial misconduct. Specifically, emails that could not be
authenticated, were forwarded and possibly altered and/or edited to
remove attorney/client privileged information, and voice mail messages
that were out of sequence and could not be date or time stamped.
Evidence
that the emails were altered by Cohen when he forwarded them. This
email was clearly inadvertently sent to Kelley Lynch by Leonard Cohen
who testified that this is his email address.
From: <baldymonk@aol.com>
Date: Fri, Sep 23, 2011 at 10:35 PM
Subject: from LC -Re: Kelley Lynch - 2004 and 2005 Federal and State Tax Returns
To: kelley.lynch.2010@gmail.com
correction:
i see Rutger is copied in
The
alleged evidence was seized without a search warrant, based on
fraudulent misrepresentations to the Threat Management Unit of the Los
Angeles Police Department by Leonard Cohen, Robert Kory, and Michelle
Rice. Additionally, Petitioner contends that the arresting officers had
insufficient information, which would include
an investigation that consisted of a conversation with Petitioner (and a
review of the evidence Petitioner has in her possession), on which to
base the probable cause needed for an arrest. The Trial Court erred in
not dismissing the action because of the lack of service with respect to
the California wrongfully registered order, unlawful arrest and
wrongful search and seizure. LAPD’s report states that “The messages
date stamps are out of sequence because the victim did not set his
answering machine to the correct date and time. The victim can testify
that the messages were left on the documented dates.” “The violations
occurred via direct phone calls to the victim and emails to the victim’s
attorneys, Rice and Kory. The emails generally were in request of tax
and financial information to amend Kelly Rice [Lynch] 2001 through 2010
tax returns.” LAPD viewed the emails as requests for tax and financial
information which is a good faith business purpose for contacting
Leonard Cohen. The voice mails - per LAPD’s summaries - also contain
repeated requests for tax and financial information. It is difficult to
understand why this case was forwarded to the City Attorney’s office
and why the City Attorney’s office decided to prosecute the matter,
apart from the fact that Leonard Cohen is a celebrity.
Public
Defender - Closing Argument: She [Michelle Rice, Leonard Cohen’s
lawyer] also said she sent an email to my client on February 14, 2011.
In that email she said “we registered an order in California” ...
There’s a Colorado order that was issued, and then the registration of
that order in a California court, recognizing the Colorado’s order.
Now, the registration of the Colorado order in California on May 25th.
Ms. Rice admitted to that. But she also said she sent an email to my
client, Ms. Lynch, and said “we registered the order in California” ...
When I asked her, well why did you say that? You actually hadn’t
registered it yet. You didn’t register it until three months later.
(RT 586) You didn’t register it, but you falsely said that ... She
made a lie, a material misrepresentation in an email to my client. (RT
587) As you read the jury instructions, it will say a valid protective
order was issued in two cases, a Colorado case, and was subsequently
recognized in a California order. You’ll see these documents. There
are two pages; there’s an attachment and there’s a California order. The
California order is number BQO33717. (RT 591) Now, I also want to
talk about knowledge. Because there is no proof of service of this
California order. (RT 593) But there are two separate orders ... one
in Colorado and one in California. And the California order, Ms.
Lynch’s signature is not on that sheet. RT 593 Her signature is not on
this sheet. Streeter: Objection; misstatement of the law, Your Honor.
Court: Overruled. There is no attached proof of service ... In
California we have a thing called proof of service. But there is no
such proof of service on the California 2011 order. None at all. (RT
594)
There
was no proof of service attached to the California order. The required
Proof of Service definitively proves to the court and law enforcement
that the restrained individual was duly served or notified of the order.
California Code of Civil Procedure Section 527.6 states that: “If the
law enforcement officer determines that a protective order has been
issued, but not served, the officer shall immediately notify the
respondent of the terms of the order and shall at that time also enforce
the order. Verbal notice of the terms of the order shall constitute
service of the order and is sufficient notice for the purposes of this
section and for the purposes of Section 29825 of the Penal Code.”
Petitioner was never notified or served the California domestic violence
order registered on May 25, 2011 and no evidence contradicting that
assertion exists.
The
due process clause of the Fourteenth Amendment governs any action of a
State through its legislature, its courts, or its executive officers,
including action through its prosecuting officers. Personal service
upon the person who is presumably restrained is required by a valid
court order. Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction
over that person so as to enable that person to respond to the
proceeding before the court, body, or other tribunal. Proper service of
process establishes personal jurisdiction
of the court over the person served. The Due Process Clause prohibits
state and local governments from depriving persons of life, liberty, or
property without certain steps being taken to ensure fairness. It acts
as a safeguard from arbitrary denial of life, liberty, or property by
the government outside the sanction of law.
The
plaintiff is required to meet the burden of proof with respect to
personal jurisdiction. No such burden was met with respect to
Petitioner. The prosecution presented no evidence proving Petitioner
was either notified or served of the California order. A court of this
state may exercise jurisdiction on any basis that is not inconsistent
with the Constitution of this state or of the United States.
“To
determine whether the assertion of personal jurisdiction is consistent
with due process, this Court has long relied on the principles
traditionally followed by American courts in marking out the territorial
limits of each State's authority. See Pennoyer v. Neff, 95 U.S. 714, 722 . The classic expression of that criterion appeared in International Shoe Co. v. Washington, 326 U.S. 310, 316
, which held that a state court's assertion of personal jurisdiction
must not violate ‘traditional notions of fair play and substantial
justice.’” Burnham v. Superior Court - 495 U.S. 604 (1990).
Burnham v. Superior Court concluded that “a
formidable body of precedent, stretching from common-law antecedents
through decisions at or near the crucial time of the Fourteenth
Amendment's adoption to many recent cases, reflects the near-unanimous
view that service of process confers state-court jurisdiction.”
In Burnham v. Superior Court, the U.S. Supreme Court clearly stated that: “The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y. B. Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng. Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng. Rep. 1027, 1041 (K. B. 1612). Traditionally that proposition was embodied in the phrase coram non judice, [495 U.S. 604, 609] "before a person not a judge" - meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment. American courts invalidated, or denied recognition to, judgments that violated this common-law principle long before the Fourteenth Amendment was adopted. See, e. g., Grumon v. Raymond, 1 Conn. 40 (1814); Picquet v. Swan, 19 F. Cas. 609 (No. 11,134) (CC Mass. 1828); Dunn v. Dunn, 4 Paige 425 (N. Y. Ch. 1834); Evans v. Instine, 7 Ohio 273 (1835); Steel v. Smith, 7 Watts & Serg. 447 (Pa. 1844); Boswell's Lessee v. Otis, 9 How. 336, 350 (1850). In Pennoyer v. Neff, 95 U.S. 714, 732 (1878), we announced that the judgment of a court lacking personal jurisdiction violated the Due Process Clause of the Fourteenth Amendment as well.”
Additionally, the U.S. Supreme Court, in Burnham,
held: “To determine whether the assertion of personal jurisdiction is
consistent with due process, we have long relied on the principles
traditionally followed by American courts in marking out the territorial
limits of each State's authority. That criterion was first announced in
Pennoyer v. Neff,
supra, in which we stated that due process "mean[s] a course of legal
proceedings according to those rules and principles which have been
established in our systems of jurisprudence for the protection and
enforcement of private rights," id., at 733, including the
"well-established principles of public law respecting the jurisdiction
of an independent State over persons and property," id., at 722. In what
has become the classic expression of the criterion, we said in International Shoe Co. v. Washington, 326 U.S. 310 (1945),
that a state court's assertion of personal jurisdiction satisfies the
Due Process Clause if it does not violate "`traditional notions of fair
play and substantial justice.'" Id., at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). See also Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703
(1982).”” And, “Among the most firmly established principles of
personal jurisdiction in American tradition is that the courts of a
State have jurisdiction over nonresidents who are physically present in
the State. The view developed early that each State had the power to
hale before its courts any individual who could be found within its
borders, and that once having acquired jurisdiction over such a person
by properly serving him with process, the State could retain
jurisdiction to enter [495 U.S. 604, 611] judgment against him, no matter how fleeting his visit. See, e. g., Potter v. Allin, 2 Root 63, 67 (Conn. 1793); Barrell v. Benjamin,
15 Mass. 354 (1819). That view had antecedents in English common-law
practice, which sometimes allowed "transitory" actions, arising out of
events outside the country, to be maintained against seemingly
nonresident defendants who were present in England. See, e. g., Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K. B. 1774); Cartwright v. Pettus,
22 Eng. Rep. 916 (Ch. 1675). Justice Story believed the principle,
which he traced to Roman origins, to be firmly grounded in English
tradition: "[B]y the common law[,] personal actions, being transitory,
may be brought in any place, where the party defendant may be found,"
for "every nation may . . . rightfully exercise jurisdiction over all
persons within its domains." J. Story, Commentaries on the Conflict of
Laws 554, 543 (1846). See also id., 530-538; Picquet v. Swan, supra, at
611-612 (Story, J.) ("Where a party is within a territory, he may justly
be subjected to its process, and bound personally by the judgment
pronounced, on such process, against him").”
The
Due Process Clause of the Fourteenth Amendment permits a state court to
exercise jurisdiction over a defendant if he or she is served with
process while voluntarily present in the forum State. A false arrest is
a violation of the Fourth Amendment right against unreasonable seizure
of persons.
The state court's assertion of personal jurisdiction violates traditional notions of fair play and substantial justice.
