The window-tint warrior

“Afternoon, ma’am. Can I get you to roll down your back window? Oh … hello, sir.”
    So began a traffic stop for a window tint violation on December 13, 2013, that would monopolize six weeks of my time and introduce me to the mad, mad world of the sovereign citizen.
    The traffic stop was made on a cold clear afternoon on a beautiful stretch of highway in Jeff Davis County, located in rugged, mountainous, Far West Texas. The county seat is Fort Davis, which is a picturesque, Mayberry kind of place filled with intelligent, independent-minded folks. As the elected (and the only) lawyer for Jeff Davis County, I handle everything including Class A, B, and C misdemeanors, all juvenile cases, and a hodgepodge of civil matters for commissioners court, other elected officials, and the county itself. I work with one constitutional county judge and one justice of the peace. Both are fine judges; neither are attorneys (common in rural counties). Because I am one of the few lawyers that many folks know, my courthouse office sometimes resembles a free legal clinic. My days are jam-packed, never the same, and never boring.

Cloudy with a chance of crazy
When I received a not-guilty plea with a request for a jury trial on a Class C window-tint ticket, it sure seemed odd. Shortly before the scheduled jury trial date, the defendant filed a document called “Ex Parte Re Notice and Motion to Dismiss Traffic Citation No. ***** on the Grounds that Representing Counsel Failed With the Above Court To Bring the Action to Trial Within a Timely Fashion Thus Violating This Petitioner’s 6th & 14th Amendments of Due Process of Law of the State & National Constitution; Affidavit & Points & Authorities in Support and Order Attached” (which the defendant signed himself). What?
    Unfortunately, despite looking high and low, the DPS trooper could not locally secure the in-camera video of the traffic stop. I was determined to have that video for the jury trial, so I filed a motion for continuance to secure a copy from DPS in Austin. The defendant protested but refused to come upstairs to the courtroom to argue against my motion. He yelled at me and the judge in the hall, then hurried out of the courthouse. When the judge granted the continuance, the defendant was incensed and argued that his rights had been violated.
    At this point, I began to realize this was not just another weird Class C case. I decided the defendant was bat-shit crazy. I have over 20 years of experience with incompetent defendants, both as neighboring Presidio County Attorney and as a court-appointed defense lawyer in Travis County. I made a note to research, in all my spare time, what to do with an unrepresented, incompetent defendant on a fine-only case.
    Fortunately, I know people who are smarter than I am. I must pay a huge debt of gratitude at this point to our 394th District Judge, Roy B. Ferguson, who dropped by my office a few days later and nonchalantly said, “I hear you have a sovereign citizen.” He had had a case against one before taking the bench and referred me to an article he had just seen in Voice for the Defense (of all places) that opened my eyes and was footnoted with many helpful references.1

Brave new world
Our federal government, I soon discovered, has classified the sovereign citizen movement as a domestic terror threat for its “extreme anti-government beliefs and violent attacks upon peace officers.”2 Sovereign citizens (SCs) aren’t really a cohesive organization but rather a loose association of individuals and groups that share some common anti-government beliefs and behaviors, largely propagated on the Internet. Their overarching philosophy is that the U.S. government is illegitimate and has no authority over them. Sovereign citizens run the gamut from the majority who talk the talk, which is crazy, quasi-legal gibberish, to the minority who walk the walk and use deadly force to defend their belief system.3
    Sovereign citizens believe that the government established by our Founding Fathers based upon common law was hijacked somewhere along the way and replaced by admiralty law.4 For those of you keeping score at home, common law is good, and admiralty law is very, very bad. SCs can’t agree on exactly when this sea change occurred.5 They claim that when the U.S. was governed by common law, every person was sovereign. After the U.S. changed to admiralty law, the nation transitioned from government to corporation, and the formerly sovereign citizens gave up their individual rights as free men and women.
    SCs believe they can take back their sovereign-citizen, common-law identity by declaring themselves sovereign from the United States government.6 In so doing, they once again become free men and women subject only to common law, not the laws or regulations of the U.S. or any state or local government (which operate under admiralty law and therefore no longer have jurisdiction over them). They therefore believe that the only courts that have jurisdiction over them are “common law” courts set up by other sovereign citizens.7
    They evidence their disassociation from the U.S. government by engaging in bizarre ritualistic behaviors, including but not limited to signing their names in small letters or all capital letters with strange punctuation; adding Sovereign titles to or after their names; citing the Uniform Commercial Code; creating their own license plates, vehicle tags, and driver’s licenses; and filing fictitious documents and liens.8
    If cited or arrested for a crime, the sovereign citizen will ceaselessly question the jurisdiction and authority of the court and the prosecutor and engage in paper terrorism by filing countless nonsensical, quasi-legal documents. Be not confused: No matter the title or its contents, all motions filed by sovereign citizens serve two purposes: 1) to make a mockery of the criminal justice system that they do not acknowledge or believe in; and 2) to frustrate you as the prosecutor and attempt to monopolize your time so that you will file a motion to dismiss simply to be rid of the case and the SC defendant.
    Sovereign citizens will also attempt to represent himself because they distrust lawyers. In the SC world, lawyers cannot be citizens because we have the title of “esquire.” SCs believe this is a title of nobility that precludes us from having citizenship.9 It is a real pain to prosecute a sovereign citizen case, but my heart truly goes out to the unfortunate defense lawyers who get court-appointed to represent SC defendants.

Smells like mean spirit
My local sovereign citizen defendant signed all of his court documents with his name, followed by Sovereign Native American. He looks like Gene Simmons from KISS (long, dark hair) and co-owns an herbal/shaman shop right smack-dab in the middle of downtown conservative little Fort Davis. As far as domestic terrorists go, he wasn’t the full-frontal kind of fellow who would just come to court with an AR-15.
    No, Shaman Gene Simmons was wily.
    Instead of conventional weapons, he utilized a chemical and biological weapon in his assault on the Jeff Davis County criminal justice system. I called it his Stank Sauce, and it was his first line of defense. You could literally smell him coming way before he got to the courthouse, and his malodorous scent remained long after he left. So toxic was the Stank Sauce that multiple county officials and employees had headaches and nausea after his pretrial hearing, and all four courthouse doors had to be propped open all day for the cross breeze. Because of this, the justice court instituted a “no scent” policy for everyone’s protection.
    By the pretrial hearing filing deadline, the defendant had filed the following:
•    Disqualification of All Masonic Lawyers & Judges due to Conflict of Oaths & Unconstitutional Religious Associations;
•    Motion to Recuse Judge Granado for Cause;
•    Judicial Notice of Lack of Jurisdiction, No Person of Proper Power or Authority to Prosecute the Case, Objections for Counsel Having No Standing to Sue on Behalf of State of Texas;
•    a letter to the judge accusing him of violating Every Single Canon of the Judicial Code of Ethics, and
•    (my favorite) Supplemental Exhibits: Objections and Support of Motion for Dismissal (stating in grandiose terms how he had exposed malfeasance and misconduct in several federal and state agencies and in various courts, as well as alleging criminal misconduct [RICO, treason, kidnapping, and unauthorized practice of law] against several area officials including me, the sheriff, and the JP).
    After the pretrial deadline he filed:
•    Motion for Choice of Counsel Points and Authorities in Support Contract & Order;
•    Demand for Court Reporter;
•    Objections for Failure of Court to Give Notice of Hearings;
•    Ex Parte Motion to Dismiss;
•    Recusal of Judge; and
•    Objections to Untimely Preliminary Hearing & Failure to Give a Timely Probable Cause Hearing.
    I researched and filed a response to the few claims that required or merited one and did my best to ignore the host of spurious and slanderous claims. At this point I must effusively thank TDCAA Research Attorney Jon English, who had researched a sovereign citizen case before and was my tripmaster from beginning to end. Without Jon, I would have never separated the wheat from the chaff and would have probably gone crazy myself. I must also thank Staff Attorney Thea Waylon at the Justice Court Training Center for her wise counsel on justice court matters.

Déjà vu? No, thank you.
How you as a prosecutor respond to a sovereign citizen case is up to you and of course depends on the particular circumstances. In hindsight, I could have saved myself a world of hurt by just trying the case and skipping that motion for continuance to secure the missing video. It also wouldn’t have been shameful to have requested dismissal of the citation, especially considering the fact that I have no assistant county attorneys to share the workload.
    I could not do so, however. Jeff Davis County was the site of the Republic of Texas standoff in 1997, when an armed anti-government separatist group took two hostages in the Davis Mountains Resort for a week before a peaceful resolution was reached. It did not become a Ruby Ridge or a Waco, but it easily could have. My damn good reason for taking this $200-plus-court-costs case seriously was that I could not let Jeff Davis County once again become known as friendly headquarters for anti-government zealots. I have to cut this sort of thing off at the knees—every time.
    The defendant was truly mystified when all of his motions and jaw-flappin’, which apparently work for other defendants in other places, only stiffened my resolve and made me more determined to get him before a Jeff Davis County jury for his day of reckoning. And get it he did, in a very surreal trial.

Voir dire straits
Usually in justice court voir dire, I just hope that six qualified jurors show up. This time, however, I actually needed time to talk to the 16-member venire about their views on the government, window tints, and circumstances in which someone might be excused or exempted from following the law. It was like philosophy class, but unfortunately, the fun was short-lived. Once my 15 minutes was up, all hell broke loose. (Going in, I erroneously thought the craziness would build to a crescendo—I didn’t expect the case to go from 0 to 60 on the insanity scale the minute the defendant opened his mouth.)
    Shaman Gene Simmons got up and authoritatively announced to the jury that the United States Supreme Court had said that he was entitled to a jury of his peers, and that meant there had to be at least one Native American on the jury for it to be legal. I popped up to object, but then Juror No. 9 raised her hand and calmly announced that she was 25-percent Native American. I slowly sat back down and watched the drama unfold. The defendant’s jaw dropped, and he demanded to know if she was registered with her tribe. She told him she had always meant to register but just hadn’t done so. He said dismissively, “So you aren’t a card-carrying member?” Juror No. 9 said she was not.
    Out of the blue, Juror No. 24 piped up from the back: “I’m a card-carrying member.” Shaman Gene Simmons couldn’t believe it, and neither could I. Juror No. 24 turned out to be a registered, card-carrying member of the Oklahoma Chocktaw tribe. The defendant attempted to discredit Juror No. 24, but the juror grew tired of the interrogation and summarily ended it by yelling, “I already told you I was Chocktaw!”
    Several jurors were excused for cause including Juror No. 2, who became so disgusted with the defendant’s racial profiling questions (apparently he intended to claim that the trooper pulled him over because he is Native American) that she collected her things and attempted to excuse herself. We then endured the most tortured process of the defendant striking three jurors ever conducted in justice court.10 The jury was finally seated almost an hour later, with both Juror No. 9 and Juror No. 24 in the box. The Sovereign Native American had a true jury of his peers, no doubt to the delight of the U.S. Supreme Court.

Showtime
I had wisely heeded the sage counsel of Jon English, who advised me during one of my more frustrated moments to prepare the case like I was trying it against a very good lawyer, rather than a very slippery character with no grasp of the criminal justice system. This advice paid off in my case-in-chief.
    I had a new but very likable trooper, and this was his first trial ever. We tried this Class C window-tint case with all the seriousness of a first-degree felony. We found the roadside video, and the trooper even did a window-tint meter demonstration. He did an outstanding job for the jury and for the large group of law enforcement in the back of the courtroom. I even introduced my oath of office into evidence to refute the claim that I didn’t have the authority to prosecute cases in the name of the State of Texas.
    In his cross-examination, Shaman Gene Simmons tried to convince the jury that the traffic stop was bad because he was racially profiled. Fortunately, even though my trooper was new, he was very clear on the difference between probable cause and reasonable suspicion and knew the exceptions to the warrant requirement. We had also addressed the “Dude (Looks Like a Lady)”11 video confusion in our case-in-chief (the trooper, when he approached the defendant’s car, mistook him for a woman at first), pointing out to the jury that 1) the defendant’s window tint was 5 percent, which made it impossible for the trooper to see him clearly; and 2) the trooper had never seen the defendant before and had no idea he was Native American.12 Plus, when the nice trooper told the defendant on the video how to get his ticket dismissed, it really took the wind out of the shaman’s racial profiling argument.
    Yes, I realize that some of these are pretrial issues; however, an unrepresented SC will not understand or care about the difference between legal and factual issues, or trial and pretrial issues. The SC will just try to confuse the jury and disrupt the proceedings. A motion in limine will not help, because even if understood, it will be ignored. The best way to proceed is simply to try to anticipate the SC’s best arguments and be prepared to fight that battle over and over again, first with the judge, and then in front of the jury.
    Because we were prepared, the defendant did no real damage to the State’s case. It was time for the defendant to get up and preach, and then he was going to be mine. I had put in the time to prepare a killer cross-examination, and it was going to be a thing of beauty. I never got the opportunity to ask him a single question, though, as he unexpectedly decided to exercise his Fifth Amendment right. Then, suddenly, the case was all over save for the charge and the closing, and far sooner than I had anticipated. By this time, the air in the courtroom was starting to smell eerily familiar. Could it be … Stank Sauce?

All over but the cryin’
The Sovereign Native American vehemently argued to send his own jury charge back alongside the court’s charge, which was a tiny little book entitled Citizens Rule Book Jury Handbook.13 It detailed the SC “common law jury” and explained (sort of, in its own convoluted way) the power of a jury nullification verdict. He had discussed it in voir dire and told the jurors again at closing that they needed to follow their conscience and not enforce any law they thought unjust. I objected each time he made mention of this book, as it had not been admitted into evidence. The judge quickly sustained my objections and made it abundantly clear that there would be one jury charge, and that he would give it.
    When the defendant demanded that the court send the entire file back to the jury room so they could see how he had been “oppressed by the State,” I had no objection. I wanted the jury to see exactly what the defendant had been filing.
    I had thought a lot about how to handle the closing and decided that I was going to take the high road. As Americans, we are fortunate to live in a country where reasonable minds can differ, where we have the freedom to disagree openly with our government. Shaman Gene Simmons isn’t the enemy for hating the government, disrespecting the system, or making me work hard on a $200 ticket. He is entitled to his opinions, and I respect that; however, he doesn’t have to respect me or the government I represent. He just needs to follow the law, like everybody else. If he violates the law, then his anti-government opinions can’t magically turn an equipment violation into a case of constitutional proportion, no matter how much he rants and raves. It wasn’t about the constitution, after all—it was a window tint—and I wouldn’t let the jury forget it. And a window tint case that the State proved way beyond a reasonable doubt.
    After a brief deliberation, the three-woman, three-man jury of his peers found the defendant guilty as charged and gave him the maximum punishment of $200 plus court costs. The defendant promptly paid the fine and court costs, thanked the jury, and attempted to give copies of the Sovereign Citizen’s Handbook to the jurors on the way out. I was one of the few takers.
    To a person, the jury members told me how his attitude had angered them during voir dire and that they were disgusted by his frivolous filings. Several jurors also told me that they appreciated how calm I had been and how I tried the case without disrespecting his views. To my surprise, the defendant did not appeal the case to county court, where I fully expected to try the case de novo to another jury.

Hit the lights on your way out
At the end of the day, was it worth it? Six weeks of my life for a $200 fine?
    Yes.
    Sometimes doing the right thing is a pain in the ass, but it has to be done. And we have to do it the right way—with respect for the accused, no matter how unhinged he may be. When we take the high road as prosecutors, then the “victim” card the defendant tries to play simply won’t stick. Why? Because a jury will believe what is believable. When your green-as-summer-grass trooper refers to the defendant as “ma’am” rather than “sir,” it’s far more believable that the defendant’s 5-percent-tinted windows are too dark (and that maybe he needs a haircut) than that he was racially profiled by the government he doesn’t believe in, led by the elected prosecutor who doesn’t have authority to bring a case in the name of the State of Texas. Right.
    Maybe next time he should work with that “Dude (Looks Like a Lady)” defense. It’s more believable.

Endnotes

1 Melissa L. Shearer and Christina M. Koenig, Representing the Sovereign Citizen, Voice for the Defense, March 2014 at 26-31, and sources cited therein.
2 Id. at 26, citing a DOJ/FBI circular.
3 “A Quick Guide to Sovereign Citizens,” UNC School of Government, September 2012 at 1.
4 Id. at 1-2.
5 Id. at 2, Shearer & Koenig at 27.
6 Shearer & Koenig at 27.
7 Id.
8 Id. at 28-29, Quick Guide at 2-5. “Buzzwords” on page 4 is particularly helpful.
9 Shearer & Koenig at 28.
10 The defendant unsuccessfully argued for permission to use the restroom in the hall rather than the jury room, presumably so he could talk with the potential jurors after voir dire was over; he made the court clerk go over the jury list with him and point out each individual juror and where they were seated because he “didn’t write anything down”; finally he did a strange “roll call” where he called potential jurors’ names out loud so he could match each name with the face to determine whom to strike. Other than insisting that he use the restroom in the jury room, I didn’t object, as all of this upset the potential jurors and strengthened their negative feelings.
11 Aerosmith, “Dude (Looks Like a Lady),” Permanent Vacation, Geffen Records, 1987.
12 If in fact that was the case. The defendant had an Italian surname, and his tribal affiliation was never established during the trial.
13 Citizens Rule Book Jury Handbook is available online at http://famguardian.org/Publications/CitRulebook/rulebook.htm or in hardcopy format from Whitten Printers.  Another popular SC booklet entitled, “Title 4 Flag Says You’re Schwag! The Sovereign Citizen’s Handbook: Version 3.2” (November 11, 2013), by H.I.R.M. J.M. Sovereign: Godsent™, is published by CreateSpace Independent Publishing Platform and is available on amazon.com.