Judge Admits Ignoring Fundamental Due Process Right In Imposing Illegal Sentence Without The Certificate In Violation Of The Law.
01.17.2003, the government decides to hold a hearing. Present are the prosecutor, the judge and the hand-picked attorney whom the judge decided to force on Killercop.
Nicolaysen: “May I inquire of Your Honor whether or not the court is planning to make any "factual findings" in regard to the "reasonable cause standard" under the stature since there are no findings that have been submitted by the government?”
Judge: “Reasonable cause standard for the requirements of the competency exam?” [Ahhh, Oh yea, shucks, darn near forgot about that there thingy-ma-bob.]
Nicolaysen: “Yes, Your Honor. Under [Title 18] 4241, Subsection A, as the court very well knows, there’s a reasonable cause requirement.”
Judge: “I already did but I will repeat them. You were not there.”
Judge: “Those finding in turn arise out of and refer to and include findings that Killercop has displayed apparent confusion about the proper rolls of any counsel and all counsel, at least those counsel who have represented him thus far in this case, vis-à-vis the client and particular vi-a-vis him. Killercop has displayed some apparent confusion as to the actual charges and what they consist of and what the elements are.”
NOTE: This didn't seem to bother Matz when he never insured a “Certificate of Competency” was filed before conducting hearing on 08.27.03
The Ninth Circuit has called insuring a Certificate of Competency is filed a “Vital Responsibility” of the judge’s duties. This violated U.S. v. Phelps, 283 F.3d 1176 (9th Cir. 2002)
Nor did Judge Matz make the required finding that there is a “substantial probability of future competency,” required under Jackson v. Indiana, 406 US 715, 738 (1972).
He also made a finding that the defendant should be sent for “treatment” even though no finding had been made of such fact.
The Judge clearly displayed some apparent confusion as to the actual charges of incompetence and what the elements are.
While Killercop was traveling handcuffed across the country to see Dr. Who they realized they all forgot to follow the law, so they then meet again and hold a secret hearing, without telling the Killercop.
Transcript of 04.07.2003
Docket 158
Page 3, Lines 9-10
Defendant’s Counsel: “Gregory Nicolaysen appearing for the defendant, who is not present, Your Honor.”
Court: “Okay. I arranged this status conference because I had some questions about the joint proposed amended order that was lodged last week under Rule 42. The defendant’s presence is not necessary, given that he’s currently represented by Mr. Nicolaysen. This is primarily an issue, at the very least, a mixed issue of fact and law, probably a legal issue.” Page 4, Lines 4-7
WRONG AGAIN JUDGE MATZ!!!
The court’s determination of competency is a factual, rather than legal, determination.
United States v. Makovich, 209 F.3d 1227, 1232 (10th Cir. 2000).
Matz: [a]nd under the applicable provisions of the federal statute involved, 18 U.S.C. 4241(D), I was directing that he be examined in an FMC for the purposes of evaluating3 that determination. I did not make a finding. Page 4,
Lines 24-25, Id.
Prosecutor: “[a]nd even though we were aware that the court didn't’t make the specific finding at the hearing,…”
Don't Let Your Worries Get The Best Of You, Remember, Moses Started Out As A Basket Case!
FACTS:
Dr. Who never "treats" or even examines me.
FACT:
Nor does the Director of the facility ever send the Certificate, required by the law, when he sends me back to California, after finally learning about the secret hearing from me, directly in his office. More on that later.
March of 2003 rolls around. Killercop arrives back for another hearing and informs everyone of the facts above at the next hearing.The judge, of course, covers this fact up and ignores the reality that Dr.Who didn't treat the accused, or even examine him, but in fact had made up the report, just like he had made up these other reports. "Doctored Reports:" 1 2 3
Even the Warden from the Nut House chimes in on the issue, supporting my statements above.
Matz covers this up and everyone else involved then forgot the oh so "vital" certificate required by the law. Well, more like ignored it. Another mistake?
1. Standard. In order to find a defendant competent, a court must find by
a preponderance of the evidence that he or she has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding and that he has a
rational as well as factual understanding of the proceedings against him. Dusky v. U.S.,
362 U.S. 402 (1960).
This standard is stated slightly differently in 18 U.S.C. § 4241(d).
Under the current federal statute, a defendant is incompetent if the court finds by a
preponderance of the evidence that he or she “is presently suffering from a mental
disease or defect rendering him mentally incompetent to the extent that he is unable to
understand the nature and consequences of the proceedings against him or to assist
properly in his defense.” See also, Incompetency to Stand Trial, 81 Harv. L. Rev. 454
(1967); Indiana v. Edwards, ___ U.S. ___ , 128 S.Ct. 2379 (2008).
In Cooper v. Oklahoma, 116 S 3 .Ct. 1373 (1996), the Supreme Court determined that it
would violate due process to require a defendant to prove incompetence by clear and convincing
evidence. The appropriate Constitutional standard is ‘preponderance of the evidence’.
The Department of Justice Manual 9-9.110 recommends that the
initial competency evaluation be done locally, citing In re Newchurch, 807 F.2d 404 (5th
Cir. 1986).
In Killercop's case he was sent to the opposite side of the United States of America.
Commitments after a judicial finding of incompetency.
A. Upon a judicial determination of reasonable cause to believe the
defendant is incompetent, the court may order a 30 day in-patient examination under 18
U.S.C. §4241(b) and 18 U.S.C. §4247(b). The court cannot begin with a four month
commitment under §4241(d) without this intermediary step. U.S. v. White, 887 F.2d 705,
710 (6th Cir. 1989).
The four month commitment requires a finding of incompetency.
b. Once a court has determined, after a [secret] hearing, that a defendant is
incompetent, 18 U.S.C. §4241(d) provides for a temporary commitment. The section
permits custody and treatment for up to four months.
A court cannot have a hearing, to make a "present" finding, if the accused is "presently" being treated. Only in the land of Oz.
18 U.S.C. § 4241(d), which permits custodial treatment "for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed." 18 U.S.C. § 4241(d)(1),
4241(d) IT IS NOT, I REPEAT, NOT FOR AN EVALUATION. GET IT?
IT"S NOT "PRETTY CLEAR," IT'S CRYSTAL CLEAR. ELENA AND DEBRA BOTH KNEW. IT IS FOR TREATMENT. PERIOD. EVEN IF MATZ PLAYED STUPID.
PLACED IN FILE. USED
