Vindictive Prosecution
“Prosecutorial vindictiveness is defined as vengeful prosecution for the recovery of damages to
person, property, of reputation, shown to have approximately resulted from a previous civil or
criminal proceeding, which was commenced or continued without probable cause, but with
vengeance, and which has terminated unsuccessfully. Riegel v. Hygrade Seed Co., 47 F. Supp.
290, 293 (D.N.Y. 1942)
[http://www.leagle.com/decision/194233747FSupp290_1264]
Prosecutorial vindictiveness refers to filing a lawsuit for purposes of harassing the defendant
when there is no genuine basis for the suit. If the defendant in the lawsuit wins and has
evidence that the suit was filed out of harassing or vengeful motives and without any legal or
factual foundation, it may be the basis of a claim for damages against the person who filed the
original action. If vindictive prosecution is clearly proved against the party who brought the
original suit, punitive damages may be awarded along with special and general damages.”
http://definitions.uslegal.com/p/prosecutorial-vindictiveness/
A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate. (see e.g., People v Walker, 180 Colo 84, 504 P2d 1098 (1972) in re “A prosecutors
duty is to seek justice, not merely convict”; People v Drake, 841 P2d 364 (Colo App 1992); see
also, People v Elliston, 181 Colo 118, 508 P2d 379 (1973) in re “A prosecutor must be careful in
his conduct to ensure that the jury tries a case solely on the basis of the facts presented to it.”)
The following is a motion I did submit Pro Se to the Adams County District Court:
IN RE “Motion to Dismiss for Vindictive Prosecution”:
A. LEGAL STANDARD
1) Infranca #897, Don Quick, Daniel T. Brechbuhl, et seq, while exercising, as public
employee’s under color of state law, their responsibilities pursuant to state law
pursuant to state law have engaged and are engaging in conduct that has/is depriving
Billy bob Bramscher of rights, privileges and immunities secured by the United States
Constitution and laws of the United States (see 42 USCS 1983).
2) IN RE Infranca #897, Maiuche #807, Wollack #874, Sgambelluri #854, Clark #202 [et seq]
acted under color of state law in relation to the performance of police duties (see West
v Atkins, 487 US 42, 50, 101 L Ed 2d40, 108 S Ct 2250) maliciously arresting defendant.
[http://www.law.cornell.edu/supremecourt/text/487/42]
3) IN RE Don Quick and Daniel T. Brechbuhl [et seq], accused, Billy bob Bramscher makes
claim of a vindictive prosecution (see United States v Jenkins, 537 F3d 1, 3 1 st Cir 2008).
Indeed, courts have long abided by the “Uncontroversial Principle” that “To punish a
person because he has done what the law plainly allows him to do is a Due Process
Violation ‘of the most basic sort’” (see United States v Goodwin, 457 US 368, 372, 102, S
Ct 2485, 73 L Ed 2d 74 (1982) quoting Bordenkircher v Hayes, 434 US 357, 363, 98 S Ct
663 54 L Ed 2d 604 (1978)). Of course, “The very purpose of instituting criminal
proceedings against an individual is to punish, therefore the mere presence of a punitive
motivation behind prosecutorial action does not render such action constitutionally
violative” (see United States v Aviles-Sierra, 576 F Supp 2d 235, 237 (D.P.R. 2008). Thus,
a defendant [Billy bob Bramscher] may be penalized for a violation of the law, but not
punished for excercising his rights (see Goodwin, 457 US at 372; see also United States v
Tobin, 598 F Supp 2d, 02/18/2009).
[https://casetext.com/case/us-v-jenkins-75/]
[http://www.law.cornell.edu/supremecourt/text/457/368]
[https://casetext.com/case/us-v-aviles-sierra-3/]
[http://www.leagle.com/decision/2009723598tfsupp2d125_1704]
4) A defendant may establish a Vindictive Prosecution either (a) by producing evidence of
actual vindictiveness, or (b) by demonstrating circumstances that reveal a sufficient
likelihood of vindictiveness to warrant a presumption of vindictiveness (see Jenkins,
supra, Id at 537 F3d at 3)
5) Don Quick and Daniel T. Brechbuhl seek to punish defendant, Billy bob Bramscher, and
his constitutional rights including yet not limited to his First Amendment Right to
Freedom of Expression including Speech, Press and his Fourteenth [14 th] Amendment.
[*also to included is the Right to Redress the Government for Grienvances]
For actual Vindictiveness defendant cites Daniel T. Brechbuhl, #31047, in re “People’s
Notice of Intent” filed 08/12/11, District Court Adams County, Colorado, “The
defendant’s weapon is words. He seeks to destroy those who he feels has wronged him
by using his weapon of choice [words] to threaten people with his goal of getting people
fired from their jobs.”
CRPC Rule 3.8(1)(b): “The prosecutor in a criminal case shall (a) regrain from prosecutin
a charge that the prosecutor knows is not supported by probable cause.
CRPC Rule 3.8(2): “The evidence sought is essential to the successful completion of an
ongoing investigation or prosecution.”
[http://www.cobar.org/index.cfm/ID/20494/subID/22455/CETH/]
CRPC Rule 8.4: Misconduct violations of (a), (c), (d) and (h).
[http://www.coltaf.org/wp-content/uploads/2012/10/Colorado-RPC-20071.pdf]
[http://www.law.cornell.edu/ethics/co/narr/CO_NARR_8.HTM]
[Additionally] in court, on record, Brechbuhl has committed slander and told blantant
lies to the court.
[Additionally in court], on record, Brechbuhl committed liable [and slander] with
fabricated statements.
For demonstrating circumstances defendant reveals [*omitted for now].
B. DISCUSSION
1) On November 24, 2010, defendant, William Robert Votel, filed a request for
investigation of John A. Stipech, #2010-2798, with the Supreme Court of Colorado
Attorney Regulation Counsel, pursuant to Chapter 20, CRPC Rules 251.5 aware that a
violation of Rule 251.6 forms of discipline may be imposed. Defendants request for
investigation made by any person and directed to the Regulation Counsel,
punishment for violation of CRPC could be suspension and could be termination and
disbarment.
2) In addition, in a letter dated June 14, 2011, and authored by Ellen Toomey Hale with
the Colorado Criminal Justice Reform Coalition, “And you may file grievances against
any legal professional that you feel have violated the fules of professional conduct.”
3) In the American Civil Liberties Union (ACLU) of Colorado “Inmate Referral updated
Mar 2010” it lists the Attorney Regulation Counsel “Provides support for those who
wish to file complaints about attorney misconduct.
4) Further support that the investigation defendant requested was legal and with his
First and Fourteenth Rights is a letter dated 09/14/11 authored by Citizen Advocate
Office of Governor Hickenlooper, “The Colorado Supreme Court Office of Attorney
Regulation Counsel is authorized to investigate allegations of misconduct by the
following: (1) Colorado Licensed Attorney’s…”
5) Daniel Brechbuhl shows his true colors and his true motive and goal in his vindictive
prosecution when he states to the court in motion, “Case number 06-3163, the
subsequent telephone calls with the City of Westminster personnel, and the letters
are admissible as Res Gestae Evidence because it frames and explains the charged
criminal episode [Retaliation Against a Judge “An Act of Harassment”] on November
29, 2010. The Defendants motive for threatening [John] Stipech was to put in fear
so that he would resign, be fired or otherwise be held accountable for the wrongs
the defendant felt had been committed against him by [John] Stipech (pg 11,
08/12/11).
6) Brechbuhl exposes that defendants charge is fruit from his legal discourse and
complaints regarding [the] City of Westminster, Colorado, and Don Quick, Dan
Brechbuhl, and the Westminster Police Department are engaging in censorship of
defendants First and Fourteenth Amendment Rights because certain public officials
believe it is within their public capacity under Color of State Law to devalue,
minimize and marginalize defendants perceived and legitimate criticism of Public
Officials.
7) On October 31, 2011, on record, Judge Popovich sustained defendants’ rights to file
complaints with the Attorney Regulation Counsel as the law plainly allows and
encourages.
8) Citing New York Times v Sullivan, “Injury to official reputation affords no more
warrant for repressing speech that would otherwise be free than does factual error.
Where judicial officers are involved, [the US Supreme Court] has held that concern
for the dignity and reputation of the courts does not justify the punishment {376 US
273} as criminal contempt of criticism of the judge or his decision.
[*I really like NY TIMES, supra!!! It was one of the first cases I found and it was
decided on the month and day of my birth… March 9
http://www.law.cornell.edu/supremecourt/text/376/254]
[see also: http://www.tmz.com/2013/11/08/charlie-sheen-tweet-gag-ordercustody-judge-contempt-jail-brooke-mueller/]
9) Citing Hustler Magazine & Larry C Flynt v Jerry Falwell, 485 US 46, 99 L Ed 2d 41, 108
S Ct 876 [no 86-1278] 02/24/88, “Justice Frankfurter put it succinctly in Baumgartner
v United States, 522 US 655, 673-674, 88 L Ed 1525, 64 S Ct 1240 (1944), when he
said that “[O]ne of the prerogatives of American Citizenship is the right to criticize
public men and measures.” Such criticism, inevitably, will not always be reasoned or
moderate; public figures as well as public officials will be subject to “Vehement,
Casuistic, and sometimes unpleasantly sharp attacks.” “[T]he candidate who vaunts
his spotless record and sterling integrity cannot convincingly cry ‘foul’ when an
opponent or an industrious reporter attempts {485 US 52} to demonstrate the
contrary. (see also Monitor Patriot Co v Roy (1971))
[http://www.law.cornell.edu/supremecourt/text/485/46]
[http://www.law.cornell.edu/supremecourt/text/401/265]
10) Citing Street v New York, 394 US 576, 592, 22 L Ed 2d 572, 895 S Ct 1354 (1969), “It is
firmly settled…the public expression of ideas may not be prohibited merely because
the ideas themselves are offensive to some of their hearers.”
[see http://www.law.cornell.edu/supremecourt/text/405/518]
11) Citing FCC v Pacifica Foundation (1978), “[T]he fact that society may find speech
offensive is not a sufficient person for suppressing it. Indeed, if it is the speaker’s
opinion that gives offense, that consequence is a reason for according it
constitutional protection. {485 US 56} for it is a central tenet of the Frist
Amendment that the government must remain neutral in the marketplace of ideas.”
[http://www.law.cornell.edu/supremecourt/text/438/726]
12) Citing Hustler Magazine & Larry C Flynt, supra, “But in the world of debate about
public affairs, many things done with motives that are less than admirable are
protected by the First Amendment. In Garrison v Louisiana, 379 US 64, 13 L Ed 2d
125, 85 S Ct 209 (1964), [the Supreme Court] held that even when a speaker or
writer is motivated by hatred or ill-will his expression [is] protected by the Frist
Amendment.”
[http://www.law.cornell.edu/supremecourt/text/379/64]
13) In re the Sedition Act of 1978, 1 Stat 596, which first crystallized a national
awareness of the central meaning of the First Amendment, the invalidity of the act
has been assumed by justices of the Supreme Court, and these views reflect a broad
consensus that the act, because of the restraint it imposed upon criticism of the
government and public officials, was inconsistent with the First Amendment” (see
Holmes, J., dissenting and joined by Brandeis, J., in Abrams v United States,
11/10/1919; Douglas, The Right of the People (1958) p47; Cooley, Constitutional
Limitations (8th Ed, Carrington, 1927) pp 899-900; Chafee, Free Speech in the United
States (1942) pp 27-28; Levy, Legacy of Suppression (1960) p258 et seq; Smiths,
Freedom Fetters (1956) p426 & 431; Lillian R. Bevier, The Issue of Advocacy: An
Economic, Political, and Constitutional Analysis (1999).
[http://www.law.cornell.edu/supremecourt/text/250/616]
~BbB~
CONCLUSION
As I have written previously, “I am the victim of a ‘War of Attrition’ and truly thankful I was well
versed on The Art of War by Sun Tzu.
01/30/2012: Trial started on January 30, 2012 ending on February 6, 2012 and as my own
lawyer (pro se) I was found “NOT GUILTY” by a jury of my peers. At this time, I was charged with
C.R.S. 18-8-615 via 18-9-111(1)(e) and the mens rea was changed to “Specific Intent” instead of
“Knowingly” as incorrectly alleged for over thirteen (13) months.
In my jury trial, the Defendant’s Theory of Defense, provided to the Jury:
“It is the Defendant’s theory of defense that the prosecution of this case was based upon
retaliation by the City of Westminster. The Defendant contends that he was exercising his First
Amendment rights of free speech and to redress grievances he had with the City of
Westminster and that this prosecution is based on bad faith investigation, legal harassment and
retaliation against him Defendant for exercising his First Amendment Rights.”
I am Billy bob Bramscher and I am a victim of bullying, bad-faith investigation, vindictive
prosecution, malicious prosecution, First Amendment Retaliation and Civil Rights violations by
the City of Westminster, Westminster Police Department, Westminster Municipal Court, Adams
County/District Court, Adams County District Attorney, Colorado Public Defender/Alternative
Defense Counsel and others!!!
~Aloha
~Billy bob Bramscher
~BbB~
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