Appendix Pages 14, 15, 16 and 17


Robert F. Allston


County of Lee, Florida
State of Florida


Plaintiff submits his brief filed in Circuit Court criminal action 94-803CF, Motion to Consider Brief and this brief in support of his Complaint for Declaratory judgment.

This brief is in support of the proposition that if a criminal defendant can demonstrate that (a) the action against him involves his criticism of government in substantial part and (b) government has employed unethical practices against him associated with the same action than (c) he is entitled to any private counsel of his choice and mailing costs paid by government in seeking such counsel and any expert witnesses.

Plaintiff is incarcerated in the Lee County Stockade and has no access to legal materials and has no background or knowledge of law so he argues the matter on equitable grounds to be considered along with his brief named above filed in 94-803CF.

The relief sought concerns plaintiff's status as defendant in 94-803CF. The documents referenced herein are from the record in 94-803CF as follows: Plaintiff's "Notes on Institutionalized Corruption in the Lee County Attorney's Office" p. 43, Owen Memo. P. 101, Sworn Statements of David Owen, P. 62, Ann Ali, P. 72, Chris Earhart P. 76, and booking report, P. 31. Also the Fort Myers News Press article of 3/27/94 entitled Lee Man Charged with Threatening to Kill County Attorneys". There are apparently two such articles of that date. The one referenced is the longer one. It may also be found in the exhibits in defendant's Answer filed in civil action 94-1818.

Comment: For the time being, only the two references above with links are provided.

The purpose of this brief is to demonstrate unethical acts by government so no attempt is made to discuss issues on the merits or defend plaintiff's position other than in support of the above purpose.

For brevity, the plaintiff will change to the first person.

I will demonstrate the following: 1, I had a problem for which I petitioned government 2, government reacted to protect itself by generating a series of events and documents 3, the documents were employed to destroy my character and incarcerate me which 4, in turn discredited and defeated my criticism and 5, depends for its success upon the compliance of counsel representing me.

On 3/23/94, a Wednesday, I delivered a paper "Notes on Institutionalized Corruption in the Lee County Attorney's Office" to the Lee County Attorney's Office receptionists, Ann Ali and Chris Earhart after which I went to an adjacent building to deliver the paper with a cover letter (addressed to Commissioner Judah dated 3/22/94) to all five commissioners. The first stop was Commissioner Judah who invited me back to the County Attorney's Office to see Assistant County Attorney David Owen.

Since it was after five PM when I left Owen's office I delivered the remaining four copies of my paper and cover letter the next day.

Two days later Officer Futch took sworn statements from David Owen, Ann Ali and Chris Earhart regarding the above stated delivery of the papers and meeting with Owen.

Taking these three statements at face value we see that in the time interval when I originally arrived at 4:45 to when I returned again at 4:30 with Judah to see Owen, the following transpired: 1, Another attorney on the MSBU project, Jim Madden, saw and recognized me and my paper 2, Ann Ali read my "bomb threat" and was frightened and 3, David Owen went through the reception area to the bathroom.

Since the main criticism in the paper was against Owen (read sec. I of "Notes" and consider a typical street with houses and residentially zoned vacant lots and Owen's letter of 3/14/94 if available) we must assume that Owen obtained a copy of the paper at that time although he denies it.

It is also a reasonable assumption that Owen skimmed it quickly and saw 3 things; it seriously criticized him and 2, there was a potential bomb threat and 3, if he didn't do something all 15 attorney's would have copies.

Assuming he knew (or looked up) the statutes, he also would have known that he would need to generate more evidence that he had at that point to make the bomb threat stick in Court in 1, personal delivery of a copy to him and 2, his opportunity to give a sworn statement quoting me threatening him.

The most obvious person to call to find me was Judah. This would account for why Judah took me to see Owen spontaneously when I had always had to go through my attorney, Terry Lenick, previously to get a meeting set weeks ahead if at all.

Owen knew that once on this course he had to follow through with a conviction. The obvious way to do that was to characterize me as dangerous and insane to give the threat credibility.

However he omitted to put these elements in his sworn statement. Officer Futch took Owen's, Alli's, and Earhart's sworn statements one after another 2 days later. In Owen's 10 page statement he mentions me blowing things up about 16 times and he associates me with the teacher who killed Dr. Adams and committed suicide at the same time.

However he fails to describe any behavior on my part suggesting I was the least angry or upset or that I was ranting or rambling on about him, other County Officials, or the County Attorney's Office in any way. One might think I was sitting there describing over and over how I might blow my host and the building up to be followed by my suicide all in a pleasant normal business conversation.

Agent Futch did not put leading questions to Owen on how upset or aggravated I might be. However, when taking statements from Ali and Earhart he did so to which they responded. They also both had said they had read the bomb threat and were frightened.

Thus of the three taped statements both of the receptionists found both elements, bomb threat and aggravated mental condition.

The information from the three taped statements and Owen's memo regarding incriminating information was fed into the probable cause affidavit in the following manner:

Earhart's and Ali's came from their statements claiming both bomb threat and aggravated mental condition. Owen's came almost verbatim from his memo claiming both bomb threat and aggravated mental condition.

To see this, the first three paragraphs of the second page in the probable cause affidavit are the same as Owen's memo. The closest thing to the first paragraph in Owen's statement is at the top of page 8 which has no suggestion of anything but a normal business conversation. However Owen's memo and the affidavit add dimensions giving it an irrational flavor. It is unsupportable from Owen's statement because he doesn't say I went into a diatribe, accused anyone of ridiculous decisions or difficulties with Osprey Village.

It appears all of the incriminating material (bomb threat, mental condition) from Owen and the receptionists was either volunteered but unchallenged or the result of leading questions. In all three statements Agent Futch never challenged the truth of anything.

The result in the probable cause affidavit was a composite of Owen's memo and unchallenged statements from the receptionists. Thus it is not a result of investigative techniques sifting and sorting the truth but just what the witnesses chose to say or in the case of Owen what he chose to put in his memo.

I don't pretend to have any background or knowledge in police investigative work but if I were investigating the matter I would do the following:

First, police are supposed to be concerned with what motives people have. So I would take Section I of my paper to an attorney and get a reading on how reasonable my criticism of Owen was.

Then since law and reason require every writing to be considered in its context, I would seek some experts to look it over, educate me and give their opinion on it.

Then I would take statements from the same three witnesses asking what the overall purpose and content of the paper is. Who is Aristotle, Machiavelli, Locke? What is the market system? How does it function? What is social contract?

If the receptionists didn't know, I would ask them how they could judge the paper a bomb threat if they had no understanding of it? I would ask if anyone suggested to them that it was a bomb threat? I would ask who got copies of the paper before I returned with Judah?

I would find out from Owen whether he got the paper earlier than he claimed and I would ask Owen's and Judah's secretaries about phone calls between them. I would ask Owen if there was any conflict in his position. I would ask Jim Madden about what happened after he saw me that afternoon. And I would ask other county attorneys to study the paper and give me their opinion of whether it is a bomb threat.

I would ask a mental health person to examine the paper for the mental state of mind of the person who wrote it.

In other words I wouldn't just accept a well crafted self serving memo from a person with a strong motive to fabricate a threat and which is in serious conflict with his own taped statement.

Nor would I assign any value to such superficially obtained statements from two other witnesses who, having not a clue to the paper's content or purpose, judged it a bomb threat having seen it only a few minutes while busy with office duties and who could easily have been prejudiced of mislead by superiors they would wish to please.

This process is carried a step further in the News-Press story. I am quoted a saying I would kill everyone in Owen's office where my paper makes no such statement. I am quoted as saying I would use the "deadliest shrapnel" whereas what I said was "dandy shrapnel" which doesn't fit the character of the angry dangerous person they wished to project. The two county attorneys quoted in the News-Press story were doing their best to add to the insane image and sensationalize the story going way beyond their ethical limits as county staff or attorneys quite boldly before the public. As mentioned previously the key word "rambling" was added from Owen in the booking report and attorney Renner picked up on this making it "stream of consciousness rambling" which portrays me before my fellow citizens as sick indeed.

The record in 94-803CF also portrays me in a bad light. In my paper "Notes", the first section discusses the MSBU problem and the second section is my defense of democratic ideals ("My argument Against Corruption"). Each section is three pages long.

In my copy of the record which I got on June 28, the day before my scheduled trial, the last page of section I and the first page of section II are reversed. As well, the bottom margin is cut very close, leaving off my page numbers. The result is that anyone trying to understand either section will not be able to and again I am portrayed as crazy. These are pages 45 and 46 of the record.

Thus I am converted from a polite reserved individual with a paper criticizing government and pleading the cause of democratic ideals into a dangerous and insane individual by government.

It is not necessary for me to claim every step is supportable by the evidence to claim that there are clearly gross violations of law and ethical standards which to my knowledge have never been addressed although I have been in jail 6 months.

If government was worried about being exposed by any public defender they would not have done it in the first instance.

I am not here addressing any issues about my former public defender because government could easily twist and exploit any such dispute, characterizing me as further insane, should a dispute be stated between me and my former public defender. There are some issues any attorney would need to address in my Motion to Proceed Pro Se and for a Continuance in 94-803CF.

As things now stand, according to judge nelson's assistant, I am scheduled for trial 10/10/94. I have requested the court to hear my motions now pending including my Motion to Proceed Pro Se and for a Continuance and a motion seeking a letter of introduction from the court to send to prospective experts. Being characterized the way I am does not facilitate the process of finding people.

I certainly do not wish to have to go to trial pro se, with my public defender or without the necessary experts.

In conclusion, those who criticize government need to be adequately defended against attempts by government to avoid addressing criticism by attacking their accuser especially when done through enethical means.

I hope the solution I have suggested looks reasonable to the court. However if not I will of course appreciate any other consideration of the court in the matter.

Respectfully submitted this 3rd day of October, 1994.

Robert F. Allston

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