Petition for Writ of Certiorari — Welz v. New York
Supreme Court brief1996
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OFFICE OF THE CLERK
No.
In The
SU REME COURT OF THE UNITED STATES
October Term, 1996
Nancy Welz, George McShane,
Daniel Sherry,Stephen Yellico,
William E. Waugh,Lola Yellico.
Raymond L. Mylott, Jr.,
Edward Green,Gerald Lehmann,
William Draghi,
Pro se Petitioners,
Vv.
PEOPLE OF THE STATE OF NEW YORK
Respondents.
Petition For Writ Of
Certiorari To The Appellate
of the Supreme Court of The
State of New York for the
Ninth and Tenth Judicial
Districts
PETITION FOR WRIT OF CERTIORARI
Nancy Welz, George McShane,
Daniel Sherry, Stephen Yellico,
William E. Waugh, Lola Yellico,
Raymond L. Mylott, Jr.,
Edward Green,Gerald Lehmann,
William Draghi, Pro se
Petitioners
A. QUESTION PRESENTED FOR REVIEW
In the words of Dr. Martin Luthe2
King in his "I Have A Dream" speech at the
Washington Monument, will this nation
finally "rise up and live up to its creed
that all men are created equal" and put an
end to the government sanctioned
infanticide of allowing innocent American
babies in the womb to be unjustly murdered
without due process of law and equal
protection of the law in violation of
their natural and constitutional right to
life from the moment of creation?
Nancy Welz
George McShane
Daniel Sherry
Stephen Yellico
William E. Waugh
Lola Yellico
Raymond L. Mylott, Jr.
Edward Green
Gerald Lehmann
William Draghi (three cases)
The Westchester County District
Attorney's Office, N.Y.
i TABLE OF CONTENTS
Page
QUESTIONS PRESENTED--------~......-~-.....---..---- |
PARTIES ------------------------------------------------------ ii
TABLE OF AUTHORITIES-------------------------------- Vv
DECISIONS BELOW.-----------2encecnnccwnnnecnneseeesne- 2
JURISDICTION - 2
STATEMENTS OF THE CASES------------------------- 3
REASONS FOR GRANTING THE WRIT-------------- 25
I. Harvard Medical School Brief Reasons------------ 25
II. Genetic Reasons--------------------------------------- 25
III. Constitutional Reasons----------------------------- 26
IV. Roe v. Wade Considerations----------------------- 27
CONCLUSION --------------------------------------------- 30
APPENDICES
A. Orders, New York State Court of Appeals
( May 6, 1996) ---------------------------------------
B. Orders, Decisions, Supreme Court of State of New York
Appeals for the 9th and 10 th Judicial Districts
(April 15, 1996) --------------------.---.-------.-- 8
C. Companion Cases ---------------------------------- 23
D. No Rehearing --------------------------------------- none
E. Judgments and Opinions Are Same Dates------- none
F. Quotes of Statues and Authorities---------------- 24
G. Federal Questions Raised on the Record ------- 33
lV
1. Other Material Essential To Understand Petition R
1). OPINION, Municipal Court of New Jersey
(April 29, 1991)------.-----.-------.-----.---2-
aised
33
2) Opinion, District Court, Sedgewick County, Kansas
4, geeeeiienin i ote ec Ors NRE A
76
3) Opinion, Criminal Court, New York County, N_Y.
(Jan 20, 1992) --- -- 118
4) Human Life Proclamation---- -- 18]
5) Hippocratic Oath (460- 357 B.C.) ----------- 186
6) Preamble of the U.S. Constitution ----------- 186
7) Article 5, 9 & 14 Amendments to the U.S.-- 187
Constitution
8) Declaration of Independence (July 4, 1776)--188
10) Federalist Papers (Jan 4, 1788, & other dates from
same period)----------------------------..----- 197
TABLE OF CITED AUTHORITIES
We hold these truths to be self
evident that all men are created equal and
are endowed by their Creator with certain
inalienable rights, that among these are
the right to life, liberty, and the
pursuit of happiness.
Natural Law
Man's participation in God's
Eternal Law
God's Eternal Law
The laws of nature and science
that govern the universe and God's
creatures
God's Revealed Law
The Ten Commandments, Exodus
20:13
The Fifth Commandment, Thou
Shalt Not Kill
Do not hesitate to rescue those
about to be unjustly killed. Proverbs
24:11
The Didache, the first writing
of the Early Church that condemned
abortion
vi
Abortion and the Barly Church;
Christian, Jewish, and Pagan Attitudes in
the Greco-Roman World, by Michael
J.Gorman, Paulist Press, 1982
Cicero, An unjust law is no law.
Sophocles' Antigone, God's laws
are higher than man's laws.
The Common Law
Blackstone's Commentaries on the
Common Law
The U.S. Constitution
The Preamble, the right to
defend life starting at the moment of its
creation
The Fifth Amendment Due Process
Clause and Implied Equal Protection Clause
The Fourteenth Amendment Due
Process and Equal Protection Clauses
The Ninth Amendment
The Federalist Papers
vii
The U.S. Constitution based on
the law of nature and of nature's God,
Federalist Paper No. 43 by James Madison,
drafter of the U.S. Constitution
The right to defend life,
Federalist Paper No. 28 by Alexander
Hamilton, and Federalist Paper No. 43 by
James Madison (right of self preservation)
The Justification Defense,
embodied in the Summa Theologiae by Saint
Thomas Aquinas and New York State Penal
Law Section 35.05(2) and People v. John
Gray, et al., New York County Criminal
Court, Jury Part 10, decision by Judge
Espinoza, reported in the New York Law
Journal, March 25, 1991, p. 26.
Article I of the Constitution of
the State of New Jersey The right to
Gefend life President Ronald Regan's
January 14, 1988 Presidential Proclamation
that human life must be proctected
starting at the moment of its creation
I Am Roe: My Life, Roe v. Wade,
and Freedom of Choice by Norma McCorvey
with Andy Meisler, N.Y., Harper Collins,
Publishers, 1994.
viii
Roe v. Wade, by Marian Faux, a
Mentor Book, published by Penguin Books
USA Inc., N.Y., N.Y., 1989
Justice At Nuremberg
The Right to Life A natural
right The doctrine on which this, nation
was founded Implied in the U.S.
Constitution implied in the Preamble
In the Fifth Amendment Due Process Clause
In the right to equal protection of the
law implied in the Fifth Amendment
In the Fourteenth Amendment Due Process
and Equal Protection Clauses In the Ninth
Amendment
The Right to Life From the
Moment of Creation
The self evident truth that all
men are created equal, so all rights
attach at creation
Personhood arises at creation,
when the 23 chromosome male sperm unites
with the 23 female egg creating a 46
chromosome human person with its genetic
package intact and its DNA code locked in
oe PLANAR Li
Ne ee oe
Pend al telat NE TN
ix
forever
Fifth Amendment Due Process
Clause and implied Equal Protection Clause
attach
Fourteenth Amendment Due Process
Clause and Equal Protection Clause attach
Ninth Amendment attaches
The Right to Defend Life A
natural right
In the Preamble of the U.S.
Constitution The Right to Defend Life
Starting At the Moment of Its Creation
We hold these truths to be self
evident that all men are created equal and
are endowed by their Creator with the
inalienable right to life
The Preamble of the U.S.
Constitution
President Ronald Regan's January
14, 1988 Presidential Proclamation that
human life must be protected starting at
the moment of its creation
x
The Right to Privacy
A natural right Implied in the u.s.
Constitution, under right not to be
searched without probable cause
The Right to Privacy From the
Moment of Creation
The self evident truth that all
men are created equal, so all rights
attach at creation
Fifth Amendment implied Equal
Protection Clause
Fourteenth Amendment Equal
Protection Clause
Byrn v. New York City Health and
Hospitals Corp. (New York State Court of
Appeals, 1972), 31 N.Y. 2a 194, 335 N.Y.s.
2d 390, to the extent it holds that
individual human life begins at the moment
of creation, and the dissents to the main
opinion
Papal Encyclical Humanae Vitae,
by Pope Paul vI
Papal Encyclical Evangelium
Vitae, by Pope John Paul II
xi
Corfield v. Coryell, Fed. Cas.
No. 3,230, 4 Wash. C.C.371, stating that
some rights are so fundamental, they do
not depend on any document
People v. John Gray, et al., New
York County Criminal Court, Jury Part 10,
decision by Judge Espinoza, reported in
the New York Law Journal, March 25, 1991,
p. 26, setting forth the criteria for the
application of the Justification Defense
under New York State Penal Law Section
35.05 (2)
Medical Brief submitted Amicus
Curiae in Roe v. Wade by doctors from the
Harvard Medical School, the Mayo Clinic,
et al., stating the baby is a person at
the moment of creation and the Equal
Protection and Due Process Clauses of the
U.S. Constitution attach at the moment of
creation
Davis v. Davis v. King, d/b/a
Fertility Center of East Tennessee (the
Tennessee Frozen Embryo Case), No. E-
14496, Sept. 21, 1989 decision by the
Circuit Judge W. Dale Young, Circuit Court
for Blount County, Tenn. at Maryville,
xij
Equity Division (Div. [ )
state of New Jersey v. Alexander
Loce, et al., April 29, 1991 decision by
Judge Michael g. Noonan, Municipal Court
of New Jersey, Law Division, Morris
County, Criminal Action, Docket No. 61771,
et seq.
City of Witchita v. Elizabeth aA.
Tilson, No. 91 MC 108, July 20, 1992,
Memorandum Opinion by Judge Paul w. Clark,
in the Criminal Department of the District
Court for the Eighteenth Judicial
District, Sedgwick County, Kansas
May It Please The Court, The
Most Significant Oral Arguments Made
Before The Supreme Court Since i955,
Edited by Peter Irons and Stephanie
Guitton, published by The New Press, N.Y.,
1993, distributed by W. W. Norton «¢ a
Inc.
xiii
AUTHORITIES CRITICISED
Roe v. Wade, 410 U.S. 113 (1973)
Doe v. Bolton, 410 U.S. 179
(1973)
Their progeny, purportedly
allowing abortion to continue
N.Y. State statute, Penal Law
125.05, purportedly allowing abortion
People v. Craig, 78 N.Y.2d 616,
578 N.Y.S.2d 47
That part of Byrn v. New York
City Health and Hospitals Corp. (N.Y.
Court of Appeals, 1972) 31 N.Y.2d 194, 335
N.Y.S.2d 390, that claims that under a
right to privacy a mother has the right to
kill her baby in the womb
The U.S. Second Circuit Court of
Appeals decision in New York N.O.W. v.
Randall Terry, 886 F.2d 1339(2nd Cir.
1989) that claims that under the Commerce
Clause of the U.S. Constitution that a
mother can cross state lines to kill the
baby in her womb
Xiv
The F.A.C.R. Statute, 28 v¥.8.C.
248, and similiar Statutes passed by the
N.Y. City Council, etc. purportedly
prohibiting anyone from defending the
life of a baby about to be aborted
Any injunction or purported
protective order, State, federal, or
local, purportedly prohibiting anyone
from defending the life of a baby about to
be aborted
The U.S. Court of Appeals
decision in Oregon purportedly allowing
assisted suicide, Citing reasoning
stemming from the Progeny of Roe v. Wade
and Doe v. Bolton
The Executive Order by President
Clinton in the Opening days of his
administration purportedly allowing the
use of body parts and tissue from aborted
babies for medical experimentation and
other purposes
No.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1996
Nancy Welz, George McShane,
Daniel Sherry,Stephen Yellico,
William E. Waugh,Lola Yellico.
Raymond L. Mylott, Jr.,
Edward Green,Gerald Lehmann,
William Draghi,
Pro se Petitioners,
Vv.
PEOPLE OF THE STATE OF NEW YORK
Respondents.
Petition For Writ Of
Certiorari To The Appellate
of the Supreme Court of The
State of New York for the
Ninth and Tenth Judicial
Districts
PETITION FOR WRIT OF CERTIORARI
Nancy Welz, George McShane,
Daniel Sherry, Stephen Yellico,
William E. Waugh, Lola Yellico,
Raymond L. Mylott, Jr.,
Edward Green,Gerald Lehmann,
William Draghi, -Pro se
Petitioners
(addresses can be found on
page 219 of appendix)
2
LOWER COURT DECISIONS WERE NOT
PUBLISHED
BASIS FOR U.S. SUPREME COURT
JURISDICTION
i. Date of entry of judgment
sought to be reviewed N..y.
State Court of Appeals
decisions dated May 6, 1996
denying leave to appeal
to the New York State Court of
Appeals
ii. There was no order for
rehearing
There was no request for
extension of time to file
petition
iii. There was no cross petition
av... Tie statutory provision
conferring jurisdiction on the
U.S. Supreme Court is 28 U.S.
Code Section 1257
Vv. Notifications:
New York State Attorney
General 120 Broadway, New
York, New York regarding the
N.Y. State statute purportedly
allowing abortions, 28 U.S.C.
§2403(b) may apply
2 SIAR ACNE jill me
ee ee ee ee
STATUTES AND AUTHORITIES CITED (see
Appendix)
STATEMENT OF THE CASES
People v. Nancy Welz
At the very beginning of the Nancy
Welz case, a written motion was made that
if the burden of proof shifted at the end
of the prosecution's case, the defendant
intended to assert the right to defend
life defense under the U.S. Constitution,
and the justification defense under Penal
Law Section 35.05 (2) of the State of New
York. Nancy Welz was charged with
trespass under Section 140.05 of the Penal
Law of the State of New York, a violation,
for having allegedly blocked the doors of
the abortion clinic at 88 Ashford Avenue,
Dobbs Ferry, New York on the morning of
April 3, 1993. The motion to assert the
right to defend life defense and the
justification defense was denied. The
defendant was apparently only charged with
a violation because when the Westchester
D.A.'s office used to charge'a
misdemeanor in these types of cases, the
defendant was entitled to a jury trial,
and the jury often acquitted in the past.
The Nancy Welz case was the last of
the cases in this present group to be
4
tried. The scheduling book containing the
scheduled appointments for the date of the
alleged arrest at the abortion clinic was
subpoenaed by the defense to be present at
the trial. It was not honored and the
trial court did nothing to enforce it at
the trial on March 10, 1994. This was the
last of the cases to be tried in this
group of Dobbs Ferry Right to Life Cases.
The prosecution apparently learned from
its mistakes in the previous trials in not
having Dr. Kaali, the abortionist and
owner of the abortion clinic testify. Dr.
Kaali was a witness for the prosecution in
this case. But the prosecution still made
a serious error. Dr. Kaali was asked in
cross examination if he brought the
scheduling book for the date of the
alleged arrest. He said no. When he was
asked if he knew the name of the defendant
in this case, he answered no. The defense
moved to dismiss on the grounds that the
prosecution could not prove that the
defendant did not have an appointment and
did not have a right to be on the
premises. The case should have been
dismissed at that point. The prosecution
tried to resuscitate its case by having
Dr. Kaali then testify, after it was
already too late, that Dr. Kaali withdrew
any permission that anyone had to be on
the property and told the police to remove
everyone. This, of course, was not within
5
the power of Dr. Kaali to do. He had no
right to have the police remove anyone who
was exercising their right under the U.S.
Constitution to defend the lives of babies
about to be aborted. Any order to leave
was unconstitutional as a denial to the
defendant of the right to defend life and
to the babies of their right to life. The
motion to present the right to defend life
defense and the justification defense was
renewed at the end of the prosecution's
case. It was denied. Defendant was found
guilty and was sentenced to 15 days
incarceration and was ordered to stay
away from the abortion clinic for 1 year.
This order to stay away was null and void
as a violation of the defendant's right to
defend the lives of the babies about to be
aborted. The surrender date for
incarceration was adjourned to give the
defendant a chance to get a_ stay pending
appeal to the Appellate Term. Justice
West of the New York State Supreme Court,
Westchester County, granted the stay
pending the appeal. The stay was extended
by the Appellate Term. The appeal of all
these cases was heard by the Appellate
Term. All the technicalities were argued
, aS well as the right to life from the
moment of creation, the right to defend
{ life as a basic fundamental right and as a
right under the U.S. Constitution and the
justification defense under New York
Lee
5
‘
a
5
6
State Penal Law Section 35.05 (2). The
Appellate Term decision Stated that in the
interests of justice in the exercise of
discretion the defendant's jail sentence
was modified down to 5 days
incarceration, and aS SO modified, was
affirmed. This was an illegal decision,
as the Appellate Term could not legally
march the defendant off to jail for
exercising the constitutional right to
defend the lives of the babies about to be
aborted who had the right to life from the
moment of creation. As the Appellate Term
modified the jail sentence and ordered
corrective action that was illegal, the
N.Y. State Court of Appeals had the power
to take the case on appeal. But the n.y.
State Court of Appeals in effect took the
position that because the Appellate Term
used the words "in the interest of justice
in the exercise of discretion" the Court
Of Appeals did not have the power to
review an exercise of discretion, but only
a matter of law. The Court of Appeals
refusal to accept this case on appeal
erroneously stated that the decision by
the Appellate Term did not involve a
matter of law that should be reviewed by
the Court of Appeals. This was erroneous,
because a matter of law was involved - the
most important matter of law in this
nation - the fundamental right to life
from the moment of creation and the right
aetna ad ps ee ee
to defend that life. In fact, the
Appellate Term decision in the Nancy Welz
case cited People v. Craig, 78 N.Y.2d
616, 578 N.Y.S.2d 47, the New York State
Court of Appeals decision which denied
the justification defense in anti abortion
cases, which was unconstitutional anyway
as a denial of Equal Protection of the
Laws. So the Appellate Term was deciding
these cases as a matter of law, but
erroneously, as it is a denial of the
Constitutional Right to Equal Protection
of the Laws to deny the justification
defense only to defendants in anti
abortion cases and not to deny it to other
defendants. The Court of Appeals should
have looked beyond the words used on the
face of the Appellate Term decision and
looked to the substance of what the
Appellate Term was doing in deciding the
appeal - violating a constitutional right,
in ordering illegal corrective action.
The U.S. Supreme Court should grant the
application for the writ of certiorari.
People v. William Draghi Alleged
Disorderly Conduct
July 31, 1993
People v. William Draghi Alleged
Violation of Protective
Order, October 9, 1993
People v. William Draghi Alleged
8
Violation of Protective
Order, July 31, 1993
Procedurally these cases got to
the U.S. Supreme Court in this manner.
William Draghi was charged with Disorderly
Conduct for having allegedly blocked the
doors on July 31, 1993 to the abortion
clinic at 88 Ashford Avenue in Dobbs
Ferry, N.Y. He was charged by the Office
of the District Attorney of Westchester
County, N.Y. under New York State Penal
Law 240.20 with Disorderly Conduct which
is a violation.
At the very beginning of this Case,
a written motion was made on Mr. Draghi's
behalf asserting that if the burden of
proof would shift at the end of the
prosecution's case at trial, then Mr.
Draghi had the right as a basic
fundamental right and as a right under the
U.S. Constitution to defend the lives of
the babies about to be killed by abortion
at the abortion clinic, which babies had
the right to life from the moment of
creation as a basic self evident Creator
endowed fundamental inalienable right, as
it is self evident that all men are
created equal, and as a right under the
U.S. Constitution, as the baby is a person
at the moment of creation when the 23
chromosome male sperm unites with the 23
chromosome female egg, and a 46 chromosome
9
human person comes into existence, which
46 chromosomes and the way they link up
structurally defines a human person. At
that moment of creation the genetic
package of that person is intact and its
DNA code locks in forever identifying it
as that human person and none other for
all eternity. The motion made at the very
beginning of the case also asserted Mr.
Draghi's right to defend life under
Article 1 of the New Jersey Constitution,
as he is a citizen of the state of New
Jersey, and the right to assert the
justification defense under Section
35.05(2) of the Penal Law of the State of
New York, if the burden of proof shifted
at the end of the prosecution's case.
Attached to the motion papers below was a
copy of the Yellow Pages advertisement
proving that abortions are performed at
the abortion clinic and a copy an excerpt
from the D.A.'s brief from a prior case
proving abortions are performed at the
abortion clinic at 88 Ashford Avenue in
Dobbs Ferry. Also attached to the motion
were three decisions, Davis v. Davis v.
King, d/b/a Fertility Center of East
Tennessee, No. E-14496, Sept. 21, 1989
decision by the Circuit Judge W. Dale
Young, Circuit Court for Blount County,
Tenn. at Maryville, Equity Division (Div.
I), the Tennessee Frozen Embryo case,
State of New Jersey v. Alex Loce, et al,
10
April 29, 1991 decision by Judge Michael
J. Noonan, Municipal Court of New Jersey,
Law Division, Morris County, Criminal
Action, Docket No. C1771, et seq., also
City of Wichita v. Elizabeth a. Tilson,
No.91 MC 108, July 20, 1992, Memorandum
Opinion by Judge Paul W. Clark, in the
Criminal Department of the District Court
for the Eighteenth Judicial District,
Sedgwick County, Kansas, all quoting the
world famous embryologist Dr. Jerome
LeJeune as to how the link up of the 46
chromosomes at the moment of creation
creates a human person with its genetic
package intact at the moment of creation,
and how the DNA code locks in at the
moment of creation identifying that person
for all eternity.
Mr. Draghi had another case, having
been arrested on October 9, 1993 for
allegedly blocking the doors to the
abortion clinic at 88 Ashford Avenue. He
was represented by attorney John Broderick
and went through a so called stipulated
facts trial, at the end of which he was
found guilty and sentenced to
incarceration, which jail sentence he
served. He then received notice in the
mail that he was being charged with
allegedly violating an order to stay away
from the abortion clinic for that October
9, 1993 arrest. A motion was filed on
behalf of Mr. Draghi in that case charging
11
him with violation of the protective order
asserting that if the burden of proof
shifted in that case, then the protective
order was null and void as he had the
right to defend the lives of the babies
about to have been aborted at the
abortion clinic as a basic fundamental
human right and as a right under the
Preamble of the U.S. Constitution, and the
babies had the self evident Creator
endowed inalienable right to life from the
moment of creation as it is self evident
that all men are created equal, and as a
right under the U.S. Constitution from the
moment of creation when the male sperm
united with the female egg creating a 46
chromosome human person, and their genetic
package was intact and their DNA code
locked in forever.
On the date of trial for these two
charges Assistant District Attorney Susan
Costabile informed Mr. Draghi that he was
being charged with a new third charge,
having allegedly violated an order of
protection on July 31, 1993, the date of
the arrest on his disorderly conduct
charge, for allegedly blocking the
entrance to the abortion clinic. Mr.
Winnemore, Mr. Draghi's attorney, informed
the Court that he wanted the opportunity
to submit a motion on this new third
charge of allegedly violating a so called
protective order, asserting that Mr.
12
Draghi had the right to defend the lives
of the babies about to be have been
aborted, and any protective order was null
and void as a violation of Mr. Draghi's
right to defend human life and of the
babies' right to life from the moment of
creation. At trial and on appeal it was
asserted by the defense that Mr. Draghi
was entitled to a jury trial on the
charges of alleged violation of the
protective order. That issue is before
this U.S. Supreme Court on appeal, as well
as other issues, but most especially the
right of the babies about to be aborted to
life from the moment of creation and Mr.
Draghi's right to defend that life.
The Appellate Term reduced Mr.
Draghi's 195 day jail sentence to 55 days,
stating that it was doing so in the
exercise of discretion in the interests of
justice. The New York State Court of
Appeals by Judge Simons declined to take
the case on appeal, stating that it was
not a matter of law. But it was the most
important matter of law in this nation
that should have been considered - that
all men are created equal, that they have
the right to life from the moment of
creation. Mr. Draghi had the right to
defend that life. The Appellate Term, in
the sister case to Mr. Draghi's, People v.
Nancy Welz, cited the New York State Court
of Appeals decision in People v. Craig,
13
Supra, denying defendants in anti-abortion
cases the justification defense. So Mr.
Draghi's case was decided on the basis of
law, and erroneously, for to deny only
those defendants trying to protect human
life starting from the moment of its
creation of the justification defense,
when it is effectively allowed to all
other defendants who otherwise meet the
criteria for the defense, is a denial of
Equal Protection of the Laws and is
unconstitutional, and is a denial to the
babies about to be aborted of their
constitutional and self evident Creator
endowed and inalienable right to life.
Stays in the execution of sentence
have been granted all the way up to the
Appellate Term. When the Court of Appeals
declined to accept the cases, it denied
the request for the stay as academic.
People v, George McShane, Daniel Sherry,
and Stephen Yellico
Procedurallyvy. this case arrived
at the U.S. Supreme Court in the following
manner.
At the very beginning of this case,
these three defendants, along with
defendant Stephen Lang, made a written
14
motion that if the burden of proof shifted
during the trial, that the defendants had
the right to assert the right, under the
Preamble of the U.S. Constitution, to
defend the lives of the babies about to be
aborted at the abortion clinic, which
babies had the right to life starting at
the moment of their creation. Defendants
were charged with trespass under New York
State Penal Law Section 140.05, a
violation, for allegedly blocking the
entrance to the abortion clinic at 88
Ashford Avenue, Dobbs Ferry, New York, on
October 9, 1993. During the trial. the
police officer whom the prosecution
expected to identify all the defendants in
the court room got Mr. Sherry mixed up
with Mr. Lang. As a result, neither one
was properly identified. The prosecution
had sent another police officer home. At
1:15 A.M. which was the end of the
prosecution's case, except for the
inability to identify these two
defendants, the Court dismissed as to
Stephen Lang. The Defense moved to
dismiss as to Dan Sherry also. The
prosecution wanted an adjournment as to
Dan Sherry to bring back the other police
officer the next day to identify Dan
Sherry. The Defense objected that this
was a denial of Equal Protection of the
Laws and was unconstitutional. If the
Court was dismissing as to Stephen Lang,
a>
it had to dismiss as to Dan Sherry.
Moreover, it was prejudicial. The next
day, the only one in the court room who
was not a police officer, a judge, a court
reporter, a court officer, a court clerk,
or an attorney was Dan Sherry. Anyone who
showed up would have been identified as
Dan Sherry. The night before, the court
room was packed with people and the
defendants, at defense attorney's request,
were not required to sit at the defense
table. Now, the next day, Mr. Sherry was
forced to incriminate himself just by
showing up for the reminder of the trial,
the identification. The motion to dismiss
as to him should have been granted the
night before. Mr. Sherry was found
guilty, as was Mr. McShane and Stephen
Yellico the night before. Mr. Sherry was
given a 15 day sentence and Mr. McShane
and Mr. Yellico were each given a 10 day
sentence.
A stay was granted pending appeal, as
was done in all these cases. The
Appellate Term modified the jail sentences
to approximately 1/3 of their lower court
sentence (a 15 day sentence was modified
to 5 days), stating that they were doing
so in the exercise of discretion in the
interests of justice. That basically
stripped the New York State Court of
Appeals of jurisdiction. The New York
16
State Court of Appeals stated that there
was not a matter of law which the New York
State Court of Appeals should consider on
appeal. There clearly was. The trial
court denied Mr. Sherry his constitutional
right to Equal Protection of the Laws in
not dismissing the case against him when
Stephen Lang's case was dismissed. The
trial court denied all the defendants
their right to Equal Protection of the
Laws in denying them the right to defend
life defense, and the justification
defense. It sentenced them to jail for
exercising their constitutional right to
defend life, and the Appellate Term
ordered them to jail for exercising that
right. By sending these defendants to
jail for defending the lives of the babies
about to be aborted, the trial court and
the Appellate Term denied the babies
their basic fundamental self evident
Creator endowed inalienable right to life
and their right to life and privacy under
the U. S. Constitution, as they are
persons from the moment of creation when
the male sperm unites with the female egg
and a 46 chromosome human person comes
into existence with its genetic package
intact and its DNA code locked in forever.
The motions below had attached the
decisions in the Tennessee Frozen Embryo
Case, supra the Loce case, supra and the
17
Wichita case, supra, all of which quoted
Dr. Jerome LeJeune proving that individual
human life begins when the sperm unites
with the egg and a 46 chromosome human
person comes into existence, with the
genetic package intact, and the DNA code
locked in for all eternity. Thus, the
baby is a person from the moment of
creation and its constitutional rights
attach as well as the basic inalienable
Creator endowed self evident right to
life. The mother thereby has no right to
kill the baby by abortion, and the
defendants have the right to protect the
life of the baby about to be aborted as a
basic right and as a right under the U.S.
Constitution.
People v. William E. Waugh, Lola Yellico,
Raymond L. Mylott, Jr., Edward Greene,
and Gerald Lehmann
Procedurally, this case has arrived
at the U.S. Supreme Court in this manner.
The defendants are alleged to have
blocked the entrance to the abortion
clinic at 88 Ashford Avenue in Dobbs
Ferry, Westchester County, New York, on
October 9, 1993. They are charged with
trespass under N.Y. State Penal Law
Section 140.05. Additionally, Gerald
Lehmann, Lola Yellico, and Edward Green by
18
the same alleged acts, allegedly blocking
the doors to the abortion clinic, are
alleged to have violated an order to stay
away from the abortion clinic, defendants
Gerald Lehmann and Lola Yellico for one
such violation of a protective order, and
Edward Green for two such alleged
violations (the other one on July 31, 1993
at the same abortion clinic). The
defendants were tried in the Village
Justice Court of Dobbs Ferry, New York on
March 21, 1994 in a non-jury trial in
which they were represented by attorney
John Broderick. It has become the
practice of the Westchester County
District Attorney's Office to charge these
defendants with only a violation, which
deprives them of a jury trial. Defendants
defending the lives of babies about to be
aborted have won a number of jury trials
in Dobbs Ferry, and some of those
convicted have gotten their convictions
reversed on appeal.
These defendants were tried with
defendants Patricia Daly and Ruby McDaniel
for the same alleged act of blocking the
entrance to the abortion clinic in Dobbs
Ferry on October 9, 1993. Patricia Daly
and Ruby McDaniel were represented by
attorney Robert J. Winnemore who, at the
very beginning of the case, filed a
written motion on their behalf asserting
that if the burden of proof shifted at the
19
end of the prosecution's case, then the
defendants had the right, as a basic human
right, and as a right under the U.S.
Constitution, to defend the lives of the
babies about to be aborted at the abortion
clinic, who had a right to life from the
moment of creation as a basic fundamental
self evident Creator endowed inalienable
right, and as a right to life under the
U.S. Constitution, as they are persons at
the moment of creation when the sperm
unites with the egg and a 46 chromosome
human person comes into existence, with
the genetic package intact, and the baby's
DNA code locked in forever. Mr.
Winnemore's written motion on behalf of
Pat Daly and Ruby McDaniel also asserted
the defendant's right to the justification
defense under N.Y. State Penal Law Section
35.05 (2) if the burden of proof shifted
at the end of the prosecution's case.
Technicalities were raised during the
trial by the defense, asserting that the
prosecution had not proven its case beyond
a reasonable doubt against any defendant.
That is still the position of all the
defendants in all of these cases.
At the end of the prosecution's
case, appropriate motions were made and
denied by the Judge. Mr. Winnemore then
renewed the motion to assert the defense
of the defendants' right to defend human
life starting from the moment of creation,
20
both as a basic human right, and as a
right under the U.S. Constitution, and the
defendants' right to assert the
justification defense under N.Y. State
Penal Law Section 35.05 (2). Attorney
John Broderick joined in that motion in
behalf of defendants Edward Green, Lola
Yellico, William Waugh, Raymond Mylott
Jr., and Gerald Lehmann. The motion was
denied by the Judge without even granting
the necessary hearing on whether the
defendants are entitled to the
justification defense. Denying the
justification defense only to defendants
charged with trying to prevent abortions
from taking place, when they meet the
criteria for the defense, and to allow it
to all other the defendants who meet the
criteria, is a denial of Equal Protection
of the Laws and is unconstitutional. The
defendants were found guilty. Defendants
Edward Green, Lola Yellico, and Gerald
Lehmann were then accused, by the same
alleged acts they were just tried on, of
violating an alleged protective order to
stay away from the abortion clinic and
found guilty. Defendant Edward Green was
also charged and found guilty of violating
an alleged order of protection on July 31,
1993. Defenses were raised to this charge
of allegedly violating the protective
order. Any order that the defendants stay
away from the abortion clinic and refrain
.
.
21
from protecting the lives of the babies
about to be aborted therein was null and
void. The babies had the basic
fundamental self evident Creator endowed
inalienable right to life from the moment
of their creation as all men are created
equal, and had the right to life from the
moment of creation under the U.S.
Constitution, as they were persons from
the moment the sperm united with the egg
and a 46 chromosome human person came into
existence with the genetic package intact
and the DNA code locked in forever. The
defendants had the right, as a basic human
right, and as a right under the U.S.
Constitution, to defend that life and had
the right to the justification defense on
this charge of allegedly violating the
protective order. Other defenses to this
charge were raised. The defendants were
found guilty and sentenced to 90 days for
each protective order violation and 15
days for each trespass except for Lola
Yellico who received 7 days for her
alleged trespass. Those with a trespass
charge and a violation of an order of
protection had their sentences run
consecutively. Edward Green had his two
90 day sentences for his two violations of
the order of protection run concurrently,
but to run consecutively with his trespass
violation sentence of 15 days. Raymond
Mylott was fined 100 dollars plus 45
22
dollars surcharge. At the beginning of
the trial on the underlying charge, the
defense asserted the right of Edward
Green, Gerald Lehmann, and Lola Yellico to
a jury trial on the alleged violation of
the protective order, and because of the
aggregate jail time they faced. This was
denied. Notices of appeal were filed for
all defendants . Stays were granted for
all defendants in all of these cases
pending appeal to the Appellate Term.
The Appellate Term, Ninth and Tenth
Judicial Districts, of the Supreme Court
of the State of New York, heard these
appeals and modified the jail sentences to
approximately 1/3 of their lower court
sentences. For example a 90 day sentence
was modified to 30 days and the 15 day
trespass sentences were modified to 5
days. The Appellate Term has just
rendered a decision on the Patricia Daly
and Ruby McDaniel case, reducing Ruby
McDaniel's sentence to 5 days in the
exercise of discretion in the interests of
justice, and dismissed as to Patricia Daly
who has passed away. The Appellate Term
stated that it was modifying the sentences
in the exercise of its discretion in the
interests of justice. The N.Y. State
Court of Appeals, by Judge Simons, then
declined to accept the cases on appeal,
23
Stating that there was no question of law
which ought to be reviewed by the N.Y.
State Court of Appeals. Of course there
was the most basic issue of law in this
nation that all men are created equal and
are endowed by their Creator with the
inalienable right to life , and that the
babies about to have been aborted had the
right to life and privacy under the U.S.
Constitution, as they are persons from the
moment of creation, when the male sperm
unites with the female egg and a 46
chromosome human person comes into
existence, with its genetic package
intact, and its DNA code locked in
forever. The defendants had the right to
defend that life as a basic human right
and as a right under the U.S.
Constitution.
All these defendants now ask the U.S.
Supreme Court to state what the law has
been all along - that as a basic human
right, outside of my document, it is self
evident that all men are created equal,
and are endowed by their Creator with the
inalienable right to life. That this self
evident Creator endowed inalienable right
to life attaches at the moment of
creation, as it is self evident that all
men are created equal, so the right to
life attaches at creation, when the 23
chromosome male sperm unites with the 23
chromosome female egg, and a 46 chromosome
24
human person comes into existence with its
genetic package intact, and its DNA code
locked in forever, identifying that person
for all eternity. That Roe v. Wade, 410
U.S. 113 (1973), Doe v. Bolton, 410 U.S.
179 (1973) and their progeny, and the N.Y.
State abortion statute, to the extent they
allow abortions at all for any reason, are
null and void. That any order or law
purporting to prevent anyone from
defending the life of a baby about to be
aborted is null and void. That defendants
trying to defend the lives of babies about
to be aborted have the basic fundamental
right and the right under the U.S.
Constitution to defend lives from the
moment of creation on, and the right to
assert the justification defense under the
Penal Law of the State of New York in any
prosecution for blocking the doors of a
location where abortions are performed to
defend the lives of the babies about to be
killed by abortion.
A motion has been made to the
Appellate Term for
a stay of execution of sentences and fines
pending the petition to the U.S. Supreme
Court for the granting of a
writ of certiorari, and the temporary
restraining order
staying the execution of sentences and
fines pending the
25
decision by the Appellate Term on the
motion is still in effect.
H. PETITION FOR WRIT OF CERTIORARI SHOULD
BE GRANTED
The U.S. Supreme Court should
grant the request for the issuance of a
writ of certiorari because the U.S.
Supreme Court was told in the medical
brief submitted amicus curiae in Roe v.
Wade by doctors from the Harvard Medical
School, the Mayo Clinic, et al., that the
baby is a person at the moment of
creation.
The genetic package is intact at
the moment of creation, therefore the baby
is a person at the moment of creation,
when the 23 chromosome male sperm unites
with the 23 chromosome female egg,
creating a 46 chromosome human person.
Those 46 chromosomes and the way they link
up structurally define a human person at
the moment of creation, distinct from all
other species in the universe. The DNA
code for that individual person locks in
at the moment of creation, which DNA code
identifies that person as a unique
26
individual unlike any other for all
eternity.
The baby is a separate set of 46
chromosomes from the mother at the moment
of the baby's creation when the 23
chromosome male sperm unites with the 23
chromosome female egg. Those 46
chromosomes and the way they link up
structurally define a human person. The
baby is a separate human person from its
mother at the moment of the baby's
creation. The baby is not the mother's
body at the moment of the baby's creation.
The baby is a separate human person at the
moment of its creation.
Therefore, the baby's right to
life under the Fifth Amendment Due Process
Clause and implied Equal Protection Clause
and under the Fourteenth Amendment Due
Process and Equal Protection Clauses had
to attach, as well as the right to life
under the Ninth Amendment, as the baby is
a person at the moment of creation. The
right to life as a natural right and as a
right implied in the U.S. Constitution and
in the Preamble of the U.S. Constitution
had to attach.
The right to life as a natural
right attaches at the moment of creation.
We hold these truths to be self evident
that all men are created equal and are
endowed by their Creator with the
inalienable right to life. The
27
inalienable right to life attaches at
creation as it is self evident that all
men are created equal. So all rights
attach at creation.
The right to life is implied in
the U.S. Constitution or you could not
have the rights enumerated therein. It
attaches at the moment of creation, as it
is self evident that all men are created
equal, so all rights attach at creation.
The right to life is implied in
the Preamble, as the Preamble states a
right to defend life, so there must be a
right to life to be defended. Common
defense includes the defense of life of
our neighbors, which include the babies in
the womb about to be aborted. Securing
the blessings of liberty to our posterity
includes the defense of life of babies in
the womb about to be aborted. They are
the nation's posterity. They cannot have
liberty unless they are alive. Since
there is a right to defend their lives,
they must have the right to life in order
to be defended. Their right to life
attaches at creation, as it is self
evident that all men are created equal.
So all rights attach at creation.
Roe v. Wade is null and void. The
baby has an equal right to life as the
mother at the moment of the baby's
creation, as we hold these truths to be
self evident that all men are created
28
equal, and are endowed by their Creator
with the inalienable right to life. at
the moment of the baby's creation the
baby's right to life is equal to the
mother's. So is the baby's right to
privacy, as it is self evident that all
men are created equal, so all rights
attach at creation. As the baby's right
to privacy is equal to its mother's at the
moment of the baby's creation, the mother
cannot kill the baby under a right to
privacy. No right to privacy gives a
right to kill anyway. So Roe v. Wade is
null and void. And since the baby's right
to life is equal to the mother's at the
moment of the baby's creation and is
inalienable, Doe v. Bolton is null and
void. The mother has no paramount right
to life over her baby. She cannot kill
her baby even for her own protection. The
baby has an equal right to life as the
mother from the moment of the baby's
creation.
The mother has no right to choose
to kill the baby. There is no
reproductive right to kill the baby. The
mother has no right to cross state lines
to kill her baby under the Commerce
Clause. Roe v. Wade and Doe v. Bolton
and their progeny are null and void. Any
Statute or court order that purports to
allow abortion of to prevent anyone from
defending the life of a baby about to be
Oe a ee nite
Re ee
29
aborted is null and void.
The U.S. Supreme Court in Roe v.
Wade has allowed what now amounts to over
30 million American babies to have been
unjustly murdered by abortion. That is a
crime against humanity, and specifically
against the American babies allowed to
have been killed. It is government
sanctioned infanticide. Allowing 30
million American deaths without due
process of law is an act of war against
the American People, which is defined as
treason under Article III, Section III of
the U.S. Constitution. Moreover, this
nation indicted the Nazi officers at the
Nuremberg Trials for crimes against
humanity. See the book entitled Justice
at Nuremberg. Allowing the deaths of 30
million innocent American babies is a
crime against humanity.
The U.S. Supreme Court must
reverse this course of conduct and declare
Roe v. Wade and Doe v. Bolton and their
progeny and any case, statute, or order
which purports to allow abortion
unconstitutional, as well as any case,
statute, or order which purports to
prevent the defense of any baby about to
be aborted.
30
CONCLUSION
ROE v. Wade and Doe vy. Bolton
and their progeny and any decision,
order, or statute, including the N.Y.
State abortion statute, Penal Law 125.05,
which allows abortion and does not uphold
the right to life starting from the moment
of creation must be struck down, as well
as any decision, order, or statute which
purports to prevent the defense of life
starting from the moment of creation.
Respectfully submitted,
Nancy Welz, George McShane,
Daniel Sherry, Stephen Yellico,
William E.Waugh, Lola Yellico,
Raymond L. Mylott, Jr.,
Edward Green, Gerald Lehmann,
William Draghi,
Pro se Petitioners
(see last page of appendix,
pg 219, for petitioners'
addresses)
eo
> we P eee
~~
ote i
Ch Ae
es
Aer te I ae ne ns epi RD . w
State of New
York Court
of Appeals
THE PEOPLE OF THE STATE
OF NEW YORK,
PLAINTIFFS-RESPONDENTS
v. NANCY WELZ,
DEFENDANT-APPELLANT .
Decided May 6, 1996
I, RICHARD D. SIMONS, Associate
Judge of the Court of Appeals of
the State of New York, do hereby
certify that, upon application
timely made by the above-named
appellant for a certificate
pursuant to CPL 460.20 and upon
the record and proceedings
herein,* there is no question of
law presented which ought to be
reviewed by the Court of Appeals
and permission to appeal is
hereby denied. Request for stay
dismissed as academic.
Dated at Rome , New York
May 6 , 1996
Richard D. Simons
Associate Judge
Appeal from an order of the
Appellate Term of Supreme Court,
for the 9th and 10th Judicial
Districts, Nassau County, dated
April 15, 1996 which modified,
and as so modified, affirmed a
judgment of ,.Justice Court,
Village of Dobbs Ferry,
Westchester County, dated March
10, 1994.
State of New York Court
of Appeals
THE PEOPLE OF THE STATE OF NEW
YORK, PLAINTIFFS-RESPONDENTS Vv.
WILLIAM R. DRAGHI, DEFENDANT-
APPELLANT.
Decided May 6, 1996
I, RICHARD D. SIMONS, Associate
Judge of the Court of Appeals of
the State of New York, do hereby
certify that, upon application
timely made by the above-named
appellant for a certificate
pursuant to CPL 460.20 and upon
the record and proceedings
herein,* there is no question of
law presented which ought to be
reviewed by the Court of Appeals
and permission to appeal is
hereby denied. Request for stay
dismissed as academic.
Dated at Rome , New York
May 6 , 1996
Richard D. Simons
Associate Judge
Appeal from an order of the
Appellate Term of Supreme Court,
for the 9th and 10th Judicial
Districts, Nassau County, dated
April 15, 1996 which modified,
and as so modified, affirmed a
judgment of Justice Court,
Village of Dobbs Ferry,
Westchester County.
State of New York Court
of Appeals
THE PEOPLE OF THE STATE OF NEW
YORK, PLAINTIFFS RESPONDENTS v.
WILLIAM R. DRAGHI, DEFENDANT -
APPELLANT.
Decided May 6, 1996
I, RICHARD D. SIMONS, Associate
Judge of the Court of Appeals of
the State of New York, do hereby
certify that, upon application
timely made by the above-named
appellant for a certificate
pursuant to CPL 460.20 and upon
the record and proceedings
herein,* there is no question of
law presented which ought to be
reviewed by the Court of Appeals
and permission to appeal is
hereby denied. Request for stay
dismissed as academic.
Dated at Rome , New York
May 6, 1996
Richard D. Simons
Associate Judge
Appeal from an order of the
Appellate Term of Supreme Court,
for the 9th and 10th Judicial
Districts, Nassau County, dated
April 15, 1996 which modified,
and as so modified, affirmed a
judgment of Justice Court,
Village of Dobbs Ferry,
Westchester County, dated
February 17, 1994.
State of New York Court
of Appeals
THE PEOPLE OF THE STATE OF NEW
YORK, PLAINTIFFS-RESPONDENTS v.
GEORGE MC SHANE, DANIEL SHERRY,
and STEPHEN YELLICO DEFENDANT-
APPELLANTS.
Decided May 6, 1996
I, RICHARD D. SIMONS, Associate
Judge of the Court of Appeals of
the State of New York, do hereby
certify that, upon application
timely made by the above-named
appellant for a certificate
pursuant to CPL 460.20 and upon
the record and proceedings
herein,* there is no question of
law presented which ought to be
reviewed by the Court of Appeals
and permission to appeal is
hereby denied. Request for stay
dismissed as academic.
Dated at Rome , New York
May 6, 1996
Richard D. Simons
Associate Judge
Appeal from an
order of the Appellate Term of
Supreme Court, for the 9th and
10th Judicial Districts, Nassau
County, dated April 15, 1996
which modified, and as so
modified, affirmed a judgment of
Justice Court, Village of Dobbs
Ferry, Westchester County, dated
February 15, 1994.
State of New York Court
of Appeals
LOL tn niet an aanalEs fire Me a z .
ee ML
THE PEOPLE OF THE STATE OF NEW
YORK, PLAINTIFFS RESPONDENTS v.
WILLIAM E. WAUGH, LOLA YELLICO,
RAYMOND L. MYLOTT, JR., EDWARD
GREEN and GERALD LEHMANN
DEFENDANT-APPELLANTS.
Decided May 6, 1996
I, RICHARD D. SIMONS, Associate
Judge of the Court of Appeals of
the State of New York, do hereby
certify that, upon application
timely made by the above-named
appellant for a certificate
pursuant to CPL 460.20 and upon
the record and proceedings
herein,* there is no question of
law presented which cyyht to be
reviewed by the Court of Appeals
and permission to appeal is
hereby denied. Request for stay
dismissed as academic.
Dated at Rome , New York, May 6, 1996
Richard D. Simons, Associate Judge
Appeal from an order of the
Appellate Term of Supreme Court,
8
Violation of Protective
Order, July 31, 1993
Procedurally these cases got to
the U.S. Supreme Court in this manner.
William Draghi was charged with Disorderly
Conduct for having allegedly blocked the
doors on July 31, 1993 to the abortion
clinic at 88 Ashford Avenue in Dobbs
Ferry, N.Y. He was charged by the Office
of the District Attorney of Westchester
County, N.Y. under New York State Penal
Law 240.20 with Disorderly Conduct which
is a violation.
At the very beginning of this case,
a written motion was made on Mr. Draghi's
behalf asserting that if the burden of
proof would shift at the end of the
prosecution's case at trial, then Mr.
Draghi had the right as a basic
fundamental right and as a right under the
U.S. Constitution to defend the lives of
the babies about to be killed by abortion
at the abortion clinic, which babies had
the right to life from the moment of
creation as a basic self evident Creator
endowed fundamental inalienable right, as
it is self evident that all men are
created equal, and as a right under the
U.S. Constitution, as the baby is a person
at the moment of creation when the 23
chromosome male sperm unites with the 23
chromosome female egg, and a 46 chromosome
ow os
9
Westchester County (Iler, J.) dated February
15, 1994 (McShane and Yellico) and February
17, 1994 (Sherry), convicting them of
trespass and imposing sentences ;
and the appeal having been argued by ROBERT
WINNEMORE, ESQ.
for the appellant and by MICHAEL
BORRELLI,ESQ. for the respondent and due
deliberation having been had thereon;
It is hereby ordered and adjudged that the
judgments of conviction are unanimously
modified as a matter of discretion in the
interest of justice, by reducing the
sentences of imprisonment to five days for
each defendant and, as so _ modified,
judgments affirmed.
ROBERT WINNEMORE, ESQ.
84-52 GRAND AVE.
ELMHURST, N.Y. 11373
DISTRICT ATTORNEY
APPEALS BUREAU
111 GROVE STREET
10
WHITE PLAINS, N.Y.
94-986-88 W CR
Supreme Court of the State of
New York
for the 9th and 10th Judicial
Districts
THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT v. GEORGE MC SHANE, DANIEL SHERRY
and STEPHEN YELLICO DEFENDANTS APPELLANTS
Appeal by defendants from judgments of
the Justice Court, Village of Dobbs Ferry,
Westchester County (Iler, J.) dated February
15, 1994 (McShane and Yellico) and February
17, 1994 (Sherry), convicting them of
trespass and imposing sentences.
Judgments of conviction unanimously
i
:
z
11
modified as a matter of discretion in the
interest of justice, by reducing the
sentences of imprisonment to five days for
each defendant '- and, as so modified,
judgments affirmed.
The convictions of defendants’ for
trespass were properly established beyond a
reasonable doubt. The sentences were
excessive to the extent indicated above.
94-1088-89 W CR 94-1088-89 W CR
At a Appellate Term of the Supreme Court of
the State of New York for the 9th
and 10th Judicial Districts
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT v.
WILLIAM R. DRAGHI, DEFENDANT-APPELLANT.
Decided April 15, 1996.
The above named appellant having appealed to
this court from orders of the
Justice Court, Village of Dobbs
Ferry,Westchester County (Iler, J.) entered
on February 17, 1994, finding him to be in
12
criminal contempt on two counts of
violating an order of protection and
imposing sentence ;
and the appeal having been argued by ROBERT
WINNEMORE,ESQ. and LAWRENCE
WASHBURN, ESQ. for the appellant and by MARY
RIZZO, ESQ.
and CHRISTOPHER SHAW, ESQ for the respondent
and due deliberation having been
had thereon;
It is hereby ordered and adjudged that the
orders are unanimously modified as a matter
of discretion in the interest of justice by
reducing the term of imprisonment on each
count of violating the order of protection
to 45 days, the sentences to run
concurrently with the sentence imposed for
disorderly conduct on February 17, 1994 and,
as so modified, affirmed.
ROBERT WINNEMORE, ESQ.
84-52 GRAND AVE.
ELMHURST, N.Y. 11373
13
DISTRICT ATTORNEY
APPEALS BUREAU
111 GROVE STREET
WHITER PLAINS, N.Y.
94-1088-89 W CR 94-1088-89 W CR
At a Appellate Term of the Supreme Court of
the State of New York for the 9th
and 10th Judicial Districts
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT v.
WILLIAM R. DRAGHI, DEFENDANT-APPELLANT.
Appeal by defendant from orders of the
Justice Court, Village of Dobbs
Ferry,Westchester County (Iler, J.) entered
14
on February 17, 1994, finding him to be in
criminal contempt on two counts of violating
an order of protection and imposing sentence
Orders unanimously modified as a matter
of discretion in the interest of justice
by reducing the term of imprisonment on each
count of violating the order of protection
to 45 days, the sentences to run
concurrently with the sentence imposed for
disorderly conduct on
February 17, 1994 and, as so modified,
affirmed.
Defendant's violations of the order of
protection were established beyond a
reasonable doubt. He did not challenge the
proof offered by the People that he knew of
the order of protection and its contents and
received notice of the violation (see,
Donnino, Practice Commentaries, 39
McKinney's Consol Laws of N.¥., pp 578-
579z). The sentences were excessive to the
extent indicated above.
94-1090 W CR
APPELLATE TERM OF THE SUPREME COURT OF THE
STATE OF NEW YORK FOR THE 9TH AND 10TH
AO hath ave Seo ne Me inet ileal: \ 4.5 ea Gea * Nb
ih Ri CLR ROBE AGES
15
JUDICIAL DISTRICTS
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT v. WILLIAM R. DRAGHI,
DEFENDANT-APPELLANT .
Decided on April 15, 1996.
The above named appellant having appealed to
this court
from a judgment of the Justice Court,
Village of Dobbs Ferry,
Westchester County (Iler, J.- Trial and
Sentence) convicting him of disorderly
conduct and sentencing him to 15 days
imprisonment. He was also issued a final
order of protection ;
and the appeal having been argued by ROBERT
J. WINNEMORE, ESQ.
and by LAWRENCE WASHBURN,ESQ. for the
appellant and by MARIE RIZZO and 0by
CHRISTOPHER SHAW, ESQ, for the respondent
and due deliberation having been had
thereon;
It is hereby ordered and adjudged that the
16
judgment of conviction is unanimously
modified as a matter of discretion in the
interest of
justice by reducing the sentence of
imprisonment to five days and,
as so modified, affirmed.
94-1090 W CR
APPELLATE TERM OF THE SUPREME COURT OF THE
STATE OF NEW YORK FOR THE 9TH AND 10TH
JUDICIAL DISTRICTS
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT v. WILLIAM R. DRAGHI,
DEFENDANT-APPELLANT.
Decided on April 15, 1996.
Appeal by defendant from a judgment of
the Justice Court, Village of Dobbs Ferry,
Westchester County (Iler, J.- Trial and
{
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17
Sentence) convicting him of disorderly
conduct and sentencing him to 15 days
imprisonment. He was also issued a final
order of protection.
Judgment of conviction unanimously
modified as a matter of discretion in the
interest of justice by reducing the sentence
of imprisonment to five days and, as so
modified, affirmed. The guilt of defendant
was established beyond a reasonable doubt in
a trial free from error. The sentence was
excessive to the extent indicated above.
94-581-82 W CR
94-991, 94-993-94 W CR
March 26, 1996 TERM
At a term of the Supreme Court
of the State of New York for the 9th and
10th Judicial Districts :
THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT v. WILLIAM E. WAUGH,
LOLA YELLICO, RAYMOND L. MYLOTT, JR., EDWARD
GREEN and GERALD LEHMANN, APPELLANTS
The above named appellants having appealed
18
to this court
from judgments of the Justice Court, Village
of Dobbs Ferry
Westchester County (Badie, J.) entered an
March 21, @994, convicting all of defendants
of trespass and adjudicating defendants
Green, Lehmann and Yellico to be in contempt
of court for violating orders of protection
and imposing sentences ;
and the appeal having been argued by ROBERT
WINNEMORE, ESQ and by LAWRENCE WASHBURN,
ESQ. for the appellants and by CHRISTOPHER
SHAW, ESQ. for the respondent and due
deliberation having been had thereon ;
It is hereby ordered and adjudged that the
judgments are unanimously ,modified as a
matter of discretion in the interest of
justice by reducing the terms of
imprisonment for trespass to 5 days and by
reducing the terms of imprisonment for
violating the Orders of protection to 30
days, the sentences to run concurrently and,
as so modified, judgments affirmed.
94-581-82 W CR
94-991, 94-993-94 W CR
March 26, 1996 TERM
At a term of the Supreme Court
of the State of New York
for the 9th and 10th Judicial
Districts
THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT v. WILLIAM E. WAUGH,
LOLA YELLICO, RAYMOND L. MYLOTT, JR., EDWARD
GREEN and GERALD LEHMANN, APPELLANTS
Appeal by defendants from judgments of
the Justice Court, Village of Dobbs Ferry ,
Westchester County (Badie, J.) entered an
March 21, @994, convicting all of defendants
20
of trespass and adjudicating defendants
Green, Lehmann and Yellico to be in contempt
of court for violating orders of protection
and imposing sentences.
Judgments unanimously modified as a
matter of discretion in the interest of
justice by reducing the terms of
imprisonment for trespass to 5 days and by
reducing the terms of imprisonment for
violating the Orders of protection to 30
days, the sentences to run concurrently and,
as so modified, judgments affirmed.
Defendants' guilt of trespass was
established beyond a reasonable doubt in a
trial free from reversible error. Moreover
those defendants found to have violated the
provisions of orders of protection did not
challenge the proof offered by the People
that they knew of the order of protection
and its contents and received notice of the
violation (see, Donnino, Practice
Commentaries, 39 McKinney's Consol Laws of
N.Y., pp 578-579z).
21
94-1090 W CR
APPELLATE TERM OF THE SUPREME COURT OF THE
STATE OF NEW YORK FOR THE 9TH AND 10TH
JUDICIAL DISTRICTS
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF -RESPONDENT Vv. NANCY WELZ,
DEFENDANT-APPELLANT.
Decided on April 15, 1996.
The above named appellant having appealed to
this court
from a judgment of the Justice Court,
Village of Dobbs Ferry,
Westchester County (Iler, J.- Trial and
Sentence) dated March 10, 1994 convicting
her of trespass and sentencing him to 15
days imprisonment and a one year permanent
order of protection;
and the appeal having been argued by ROBERT
J. WINNEMORE, ESQ.
and by LAWRENCE WASHBURN,ESQ. for the
22
appellant and by MARIE RIZZO and by
CHRISTOPHER SHAW, ESQ, for the respondent
and due deliberation having been had
thereon;
It is hereby ordered and adjudged that the
judgment of conviction is unanimously
modified as a matter of discretion in the
interest of justice by reducing the
sentence of imprisonment to five days and,
as so modified, affirmed.
94-1090 W CR
APPELLATE TERM OF THE SUPREME COURT OF THE
STATE OF NEW YORK FOR THE STH AND 10TH
JUDICIAL DISTRICTS
THE PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT Vv. NANCY WELZ,
DEFENDANT-APPELLANT.
:
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ARTY Ramet 2D
23
Decided on April 15, 1996.
Appeal by defendant from a judgment of
the Justice Court, Village of Dobbs Ferry,
Westchester County (Iler, J.- Trial and
Sentence) dated March 10, 1994 convicting
her of disorderly conduct and sentencing her
to 15 days imprisonment. He was also issued
a final order of protection.
Judgment of conviction unanimously
modified as a matter of discretion in the
interest of justice by reducing the sentence
of imprisonment to five days and, as so
modified, affirmed.
The conviction of defendant for the
offense charged was properly established by
the People. The contentions raised by
defendant as to the defense of
justification, are lacking in merit (see,
People v. Craig, 78 NY2d 616). The
sentence was excessive to the extent
indicated above.
COMPANION CASES
People v. Ruby McDaniel
Pending before N.Y. Court of
Appeals
People v. Daniel Sherry
Pending before Appellate Term
Supreme Court of N.Y. for 9th
and 10th Judicial Districts
QUOTES OF STATUTES AND AUTHORITIES
We hold these truths to be self
evident that all men are created equal and
are endowed by their Creator with certain
inalienable rights, that among these are
the right to life, liberty, and the
pursuit of happiness.
Preamble of the U.S. Constitution
That the Constitution was created
to"provide for the common defense... and
secure the blessings of liberty to
ourselves and our posterity..."
Fifth Amendment Due Process Clause
No person shall be...deprived
of life, liberty, or property, without due
process of law Implied Fifth Amendment
Equal Protection Clause No person shall be
denied the equal protection of the laws
25
Fourteenth Amendment Due Process
Clause No State shall...deprive any person
of life, liberty, or property without due
process of law
Fourteenth Amendment Equal
Protection Clause No State shall...deny to
any person within its jurisdiction the
equal protection of the laws
Ninth Amendment The
enumeration in the Constitution of certain
rights shall not be construed to deny or
disparage others retained by the people
Article I, Section 1 of the New
Jersey Constitution
All persons are by nature free
and independent, and have certain natural
and inalienable rights, among which are
those of enjoying and defending
life and liberty...
N.Y. State statute purportedly
allowing abortion
Commerce Clause of the U.S.
Constitution
Article I, Section 8
Provides Congress with the
power to “regulate
commerce with foreign nations,
and among the
several states, and with the
Indian tribes"
First tenet of Natural Law:
Do good and avoid evil
Cicero: An unjust law is no law
The Federalist Papers
A Mentor Book of the New
American Library,
of Penguin, Inc., published
N.L. Penguin, Inc., edited by
aper No. 43 by James
27
Madison, at p. 279
Paper No. 34 by Alexander
Hamilton, at p. 207
Paper No. 8 by Alexander
Hamilton, at p. 68
Paper No. 78 by Alexander
Hamilton, at p. 468
Paper No. 25 by Alexander
Hamilton, at p. 166
The Oath of Hippocrates (460-357
B.C.)
I swear by Apollo Physician,
by Asclepias, by Health, by Panacea, and
by all the gods and goddesses, making them
my witnesses, that I will carry out,
according to my ability and judgment,
this oath and this indenture...I will use
treatment to help the sick according to my
ability and judgment, but never with a
view to injury and wrong-doing. Neither
will I administer a poison to anybody when
asked to do so, nor will I suggest
such a course. Similarly, I will not give
to a woman a pessary to cause abortion.
Blackstone's Commentaries on the
28
Common Law
State that the Common Law is
based on Natural Law
and God's Revealed Law, and
"upon these depend all
human laws", and "no human
laws should be suffered
to contradict these." Jones’
Blackstone, Vol. 1,
Section 40, at p. 42, Ed. by
William Casey Jones,
Clatter's Publishing Division,
4943, i976,
Baton Rouge, Louisiana.
Natural Law are the
"immutable laws of human
nature" laid down by God
regulating and restraining
man's free will.
Jones' Blackstone, Ibid., Vol.
1, Section 39.
The Book of Exodus
The Fifth Commandment: Thou
Shalt Not Kill
Exodus 20:13
The Book of Proverbs
Do not hesitate to rescue
those about to be
29
unjustly killed
Proverbs 24:11
Summa Theologiae, by Saint Thomas
Aquinas
F. STATUTES AND AUTHORITIES CITED
We hold these truths to be self
evident that all men are created equal and
are endowed by their Creator with certain
inalienable rights, that among these are
the right to life, liberty, and the
pursuit of happiness.
Preamble of the U.S.
Constitution
That the Constitution was
created to "provide for the common
defense... and secure the blessings of
liberty to ourselves and our posterity..."
Fifth Amendment Due Process
Clause
No person shall be...deprived of
life, liberty, or property, without due
process of law
Implied Fifth Amendment Equal
30
Protection Clause
No person shall be denied the
equal protection of the laws
Fourteenth Amendment Due Process
Clause
No State shall...deprive any person
of life, liberty, or property without due
process of law
Fourteenth Amendment Equal
Protection Clause
No State shall...deny to any person
within its jurisdiction the equal
protection of the laws
Ninth Amendment
The enumeration in the Constitution
of certain rights shall not be construed
to deny or disparage others retained by
the people
Article I, Section 1 of the New
Jersey Constitution
All persons are by nature free
and independent, and have certain natural
and inalienable rights, among which are
those of enjoying and defending life and
31
liberty...
N.Y. State statute purportedly
allowing abortion
N.Y. State Penal Law Section
making abortion murder
Commerce Clause of the U.S.
Constitution
Article I, Section 8 Provides
Congress with the power to "regulate
commerce with foreign nations, and among
the several states, and with the Indian
tribes"
First tenet of Natural Law:
Do good and avoid evil
‘cba. sensi aod arsenals
Cicero: An unjust law is no law
POAT AAD CALI IRS Bigg os: 2 5
The Federalist Papers
A Mentor Book of the New American
j Library, of Penguin, Inc., published in
i 1961 by N.L. Penguin, Inc., edited by
: Clinton Receiptor,
32
Paper No. 43 by James Madison, at p.
279
Paper No. 34 by Alexander Hamilton,
at p. 207
Paper No. 8 by Alexander Hamilton, at
p. 68
Paper No. 78 by Alexander Hamilton,
at p. 468
Paper No. 25 by Alexander Hamilton,
at p. 166
The Oath of Hippocrates (460-357
Blackstone's Commentaries on the
Common Law
State that the Common Law is
based on Natural Law and God's Revealed
Law, and "upon these depend all human
laws", and "no human laws should be
suffered to contradict these." Jones'
Blackstone, Vol. 1, Section 40, at p. 42,
Ed. by William Casey Jones, Clatter's
Publishing Division, 1915, 1976, Baton
Rouge, Louisiana. Natural Law are the
"immutable laws of human nature" laid
down by God regulating and restraining
33
man's free will.
Jones' Blackstone, Ibid., Vol.
1, Section 39.
The Book of Exodus
The Fifth Commandment: Thou
Shalt Not Kill
Exodus 20:13
The Book of Proverbs
Do not hesitate to rescue
those about to be unjustly killed
Proverbs 24:11
Summa Theologiae, by Saint Thomas
Aquinas
Federal Questions Raised on the Record
People v. William Waugh, et al
March 21, 1994, oral motion to
; present the justification
defense, pp 98, ln 13-
15 of minutes
Also pp 98, ln 20-25, Mr. MYLOTT
filed a written motion for the |
justification defense
COURT CASES
MUNICIPAL COURT OF NEW JERSEY
LAW DIVISION - MORRIS COUNTY
34
CRIMINAL ACTION
DOCKET NO. C1771, ET SEQ.
STATE OF NEW JERSEY
V. RESPONDENTS
DECISION
ALEXANDER LOCE, et als.
DEFENDANTS.
APRIL 29, 1991
B EF ORE: HONORABLE MICHAEL J.
NOONAN
APPEARANCES:
PROSECUTOR: PAUL BANGIOLA,
ESQ.
FOR THE STATE OF NEW JERSEY
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35
RICHARD J. TRAYNOP, ESQ.
PATRICK J. MULLANEY, ESQ.
ROGER W. DALEY, ESQ.
FOR THE DEPENDANTS
SUZANNE HAUSEP..
c.
S.
R.
36
JUDGE : Please be seated, ladies
and gentlemen.
The prosecutors is outside? Good
afternoon gentlemen.
We already have summations, I am
going to read my decision into the record.
Does anyone want to be heard before I
begin?
MR. MULLANEY: Put my appearance on
the record. I'm Pat Mullaney. I am Mr.
Loce's attorney. And just put on the
record, we are also going to raise the
constitutional right to life under the
14th Amendment, of Mr. Loce's child, which
we believe was proven to be a human being
and therefore a constitutionally protected
person.
We do run into the issue of standing,
in other words, how can Mr. Loce raise the
constitutional rights of another. And I
would just call the Court's attention to
the case of Griswald vs. Connecticut which
was a 1965 Supreme Court decision, therein
-- actually in that case the right to
privacy was created.
And it was having suffered the injury
of a municipal court conviction, the
physician who sold the birth control pills
37
to the married couple and prosecuted under
the local statute prohibiting that,
appealed and said that these people have a
constitutionally right to privacy, and
that the conviction that they suffered was
a violation of -- the conviction gave the
doctor standing to raise the third party
right.
Just to establish here and get on the
record, I appreciate the fact that Mr.
Loce may not be convicted and if he is the
standing issue isn't perfected, I would
suspect, under the injury of his
conviction is actually added.
But to cover all the bases, I think
it's important to say we will raise, Mr.
Loce is raising the unborn 14th amendment
constitutional rights of a person and
under the influence of that the statute
should be correctly construed to, so as to
give them legal protection at this time.
THE JUDGE: All right, counselor, you
want to be heard?
MR. TRAYNOR: Judge, I want to join
in that application, in those comments
concerning the other defendants, at least
the defendants that I represent.
And I presume Mr. Daley would join
38
also with respect to the balance of the
defendants. There are 14 other defendants
besides Loce.
And those, that application I will
ask to be joined by the other defendants.
MR. BANGIOLA: I will stand upon mu
previous remarks and summation and submit
to your Honor's judgment at this time.
THE JUDGE: All right, gentlemen, I
am going to read my findings of fact and
the findings of law into the record and
after I get done if there are any other
questions or any requests of additional
findings of fact or whatever, you can
bring them up at that time.
I hope that the findings are
sufficient to answer all those questions,
especially the ones you have just raised
here today.
If not, however I will entertain any
other requests at that time just to clear
the record for your purposes and for the
purposes of the Court.
MR. TRAYNOR: Judge, one procedural
thing. There were certain waivers and
consents and certifications submitted. I
don't know whether your Honor wants those
offered into evidence or whether your
Honor will simply take them?
THE JUDGE: I would like all the
certifications of all the defendants. I
will read the names in the record now and
I assume that eventually, hopefully,
shortly all the affidavits will be placed
in the record, and marked accordingly.
I understand, have been talking with
the parties, that there are a couple of
affidavits outstanding, these people are
not in the state?
MR. TRAYNOR: That's correct.
THE JUDGE: Administerial problems
that have to be taken care of. I
understand that.
So what I am going to do is I am
going to read the names into the record,
and any affidavits that are outstanding
will, I hope, follow shortly after today.
MR. TRAYNOR: Yes.
THE JUDGE: Now, first of all, on
September 8, 1990, all the following
defendants were charged with the defiant
trespass by entering the premises of 101
Madison Avenue, fourth floor, certain
doctors' offices; when they knew they were
not privileged to do so and after being
told to leave the premises. In violation
40
Of N.J.S. 2C:18-3(b) +o
Now defiant trespass is as follows:
"A person commits an offense if knowing
that he is not licenses or privileged to
do so enters or surreptitiously remains in
any structure of separately secured or
occupied portion thereof."
In Section B, defiant trespass: A
person commits a petit disorderly persons
offense if knowing that he or she enters
or remains in any place as to which notice
against trespass is given by actual
communication to the actor;..." which is
basically the facts in this particular
case.
The defendants. are John Adams, Lisa
Adams, Lori Chadwick, Fredrick Harrison,
Jeannie Henderson, Tina Keil, k-e-a- 2-1.
MR. TRAYNOR: Judge, Krail k-r-a-I-l.
THE JUDGE: K-r-a-I-l. Okey, Daniel
Lickteig, Alex Loce, Tyrone Malone,
Charles Matson, James McWilliams,
Christopher Moscinski, Deborah Smaldore,
Ralph Traphagen, Neal Webster.
And if there are affidavits are not
in the record I would like them to be
placed in the record as soon as possible.
The affidavits I'm talking about, of
41
course, are those that talk in terms of
waiver of any conflict because we only
have three convince attorneys and we have
a number of defendants.
Now there are certain stipulations
that were entered into in this case.
The defendants admitted and
acknowledged as true and stipulated as
finding of fact by the Court, to all
elements of the offense with the exception
of mens rea requirement as set forth in
N.J.S. 2C:18-3(b) and which I have already
read.
In other words, the defendants
stipulated to the fact that, number one,
that their identity, to their identity as
being there on the premises and
trespassing, there presence on the subject
premise through forceful entry as charged.
There is a stipulation that they have
been given notice adequately as required
by statute. In other words, notice that
there were supposes to trespass and they
disregarded the notice and forcibly
entered the doctor's offices.
And all other proofs as stipulated as
may be required by the State in
establishing the charge except mens rea.
42
So that is clear, the State has the
burden of proving each and every element
of every offense beyond a reasonable
doubt. :
The burden is on the State and never
shifts to the defendants.
In this case, it is stipulated, all
elements of this offense as I have read it
here today, all elements are Stipulated by
the defense except the element of mens rea
or criminal intent.
So, therefore, the State had one
element left that was not stipulated to.
The State acknowledges as true and
stipulates as findings of fact by the
COURT the following facts to be relied
upon by the defendants in the case
affirmative defenses offered at trial.
One: And this, of course, was
stipulated between the parties. That one
September 8, 1990 the date of the criminal
trespass herein charged as identified
young woman who was Mr. Loce's fiancee,
was eight week pregnant. That is
Stipulated to.
That Mr. Loce was the biological
father of the fetus which was the object
of the aforesaid pregnancy; and on
43
September 8, 1990 the aforesaid pregnancy
was terminated by an act induced abortion
by a medical doctor, at the time and place
charged by the State, as being the time
and place of the charged trespass.
That was stipulated to.
At trial Mr. Loce and the other
defendants raised the following defenses:
Use of force for the Protection of Other
Persons, N.J.S. 2C:3-5; Necessity and
Other Justifications, N.J.S.2C:3-2;
Justification and Property Crimes,. N.J.S.
2C:3-10.
The Right to Defend Life according to
the New Jersey Constitution, Article One,
Section One; and the Right as a Father to
Defend Progeny, 14th Amendment, U.S.
Constitution.
This, of course, was Mr. Loce's
individual defense.
Mr. Loce also raises the defense of
Use of Force by Persons with Special
Responsibility N.J.S.2A:3-8, based on his
status as the father of the fetus about to
be aborted.
Each defense was presented in the
context that the fetus aborted at the
facility on September 8, 1990 was, in
44
fact, a human being.
The defense then proffered the
testimony of Dr. Jerome LeJeune, an M.D, a
Ph.D, a geneticist from the University of
Paris who discovered Down's Syndrome and
its causes.
It was proffered by the defense that
Dr. LeJeune would offer expert testimony
as to when individual life begins. This
testimony was argued, was relevant to the
defense of all defendants on the issue of
mans rea and in establishing the eight
week old fetus as a person pursuant to the
Statuary defenses previously mentioned
herein.
Dr. Bernard Nathanson, -expert in
obstetrics and gynecology and Dr. Russell
Hittinger, an expert in philosophy; were
proffered as experts on the issue whether
the eight week old fetus was a person
separate and apart from its mother.
I allow their testimony.
Few rights are more fundamental than
that of an accused to present witnesses in
his or her own defense. State vs. Harold,
183 N.J. Super. 485 (App. Div. 1982).
45
This
right extends to all relevant evidence.
Relevant evidence is defined by Evidence
Rule
1, Section 2, N.J.S. 2A:84 A-3, as "...
evidence having any tendency in a reason
to
prove any material fact"
On the issue of criminal intent, on
the issue of the meaning of what is a
person, in
the context of this case I allow their
testimony.
And thus the parties focussed on the
key issue in this case -- when does
individual life begin.
Dr. LeJeune testified first.
He's a professor of fundamental genetics
in
the Children's Hospital, Paris. He is a
pediatrician and a geneticist. He
represented France on the United Nation's
scientific committee on the danger of
46
atomic
radiation. He established the first
course of human genetics at the California
Institute of Technology.
He is credited with the discovery of
the first chromosomal abnormality in man,
Dow's syndrome. He was awarded the
William
Allen Memorial medal in the United States
for his work in genetics.
He was specifically asked the
question:
When does human life begin? His answer was
very interesting.
He said he does not know and he did
not
know when human life began, for human life
is continuous; and that is a question of
evolutionary theory.
However, he did have an opinion as to
47
when individual human life began. And he
testified that individual human life
begins
at conception.
Dr. LeJeune explained that nature has
invented an extraordinary device in her
defense to protect the privacy of the very
first stage of human being.
He said the right of privacy is
written
in the following way in biology. The egg
is surrounded by a permeable membrane
called
zona pellucida.
Once one sperm cell penetrates the
egg this membrane becomes impermeable.
According to the doctor 's testimony this
change in permeability occurs ina
microsecond.
Thus all other sperm cells are
prevented from entering the egg. At this
moment the genetic material from the male
sperm and the genetic material from the
48
female egg are locked in together.
No other genetic material can enter
from that point on, according to the
doctor's testimony.
And all of the genetic material is in
place at that moment, which Dr. LeJeune
calls fecundation or conception.
According to the doctor's opinion, this
moment when individual human life begins.
This court accepts Dr. LeJeune's
opinion as true and finds that the
individual human life begins at
conception.
Now Roe vs. Wade concerned the
constitutionality of Texas' Criminal
Abortion Statute. State of Texas argued
that life begins at conception. Texas, in
Roe vs. Wade, 410. U.S.133 at page 159,
1973 decision. The Court noted at page
159, Texas urges that apart from the 14th
Amendment, life begins at conception and
is present throughout pregnancy.
And that therefore the state has a
compelling interest in protecting that
life from and after conception. The
United States Supreme Court in Roe v. Wade
49
1973 said, at page 159: "...We need not
resolve the difficult question when life
begins.
"When those trained in respective
disciplines of medicine, philosophy, and
theology are unable to arrive at any
consensus, the judiciary, at this point in
the development of man's knowledge is not
in a position to speculate as to the
answer."
That was 1973. This is 1991.
Based upon the undisputed testimony of Dr.
LeJeune those trained in the respective
discipline of medicine have arrived at a
consensus in 1991. And that consensus is
that individual human life begins at
conception.
This court, therefore, makes a
finding
of fact based upon Dr, LeJeune's testimony
that individual human life begins when the
male sperm penetrates the female egg cell.
All the genetic material a human being
will
50
ever need is locked in the egg at that
moment, according to Dr. LeJune's
testimony.
He testified that there is no
disagreement among biologists throughout
the
entire world that after fecundation no new
genetic information enters the egg. At
that
moment a new individual, a new human
constitution begins to live.
In this regard I would like to read
Dr. LeJeune's response to two very
important questions.
The two questions were: One, when
does the individual human life or
constitution begin? And, two, what is a
human being?
His response is as follows: A human
constitution -- and this is at page 62 of
the transcript, line 18.
"The human constitution happens at
the moment the genetic information coming
from the father goes into the cell which
is ready to have it, which is the female
cell. And once the zona pellucida has
closed entirely the information is locked
in.
"No one can enter later. And all of
it has to be there. To answer your
question when does this special
constitution begin, it's very simple: At
the moment which is microseconds of
change, of the zone pellucida, which now
is locking in this particular human
constitution, which is a new being.
"Now what is a human being? That's
very simple. A human being has to be
human; has to be a being. Then a human
being is only a member of our species.
And an egg of a chimpanzee can't be a
human being because it is a chimpanzee
being. But every time that genetic
information is human, every time this
message which is at the beginning of life
which is alive and which is life, as soon
as this message is really a human message,
then this life is a human life.
"And if it is a being, this being is
a human being."
Dr. LeJeune also testified that new
discoveries in genetic research have
created a consensus among biologists and
geneticists around the world that not only
does individual human life begin at
52
conception, but it can be identified as a
unique individual within its own species.
He explained that the Jeffries DNA
identification system which was invented
about four years ago, allows this to
happen. The DNA ribbon which rates the
chromosome of the male and female and can
be read like the bar code system in the
supermarket. |
The Jeffries system examines the DNA 3
ribbons within the chromosome and can
identify the unique DNA codes in every
individual human being much like a genetic
fingerprint.
This empirical data was not available
in 1973 when Roe vs. Wade was decided.
Additional new scientific and medical
discoveries since 1973 testified to by Dr.
Bernard Nathonson include: fetal surgery,
new ultra sound advances where the fetus
can now be observed in animated fashion
within the womb; and some interesting data
on the immunization system of the mother
and its effect during pregnancy.
Again these discoveries were not
available in 1973. Dr. Nathanson also
testified on the issue of the fetus being
separate and apart from the mother, thus
supporting Dr. LeJuene's testimony that at
conception two separate, individual human
beings harmoniously share their life
together. Dr. Nathanson used the human
immunization system to prove that the
mother and the fetus are two separate
human beings.
Page 108 of the transcript.
White blood cells and our immune
system do not destroy our own kidneys, or
our own livers, because our white blood
cells can recognize self from non-self.
And when there's a foreign substance
put into one's body, the white blood cells
will recognize and immediately attack it
in an attempt to throw it out, to get rid
of it because it is foreign. it's not
self.
Now when that pregnancy implants and
makes a nexus with the mother's
circulation so that chemical messengers
are sent of the mother, the white blood
cells and, in fact, the entire immune
system is galvanized because it recognizes
there is something in the mother's body,
her body which is not self.
It is foreign. It is this baby who
is a foreign person to the mother. And a
54
{
concerted immune attack is focussed on the
baby, the attempt being to expel the
foreign intruder.
It is recognized, as I say, as non-
self. However, over the eons, obviously,
we have -- we meaning all of us who have
been unborn babies at some point, we have
erected a defense against this attack.
We have what is called the
trophoblast. This layer of cells which
constitutes our placenta, our afterbirth.
And what is really a wall, an
immunological wall, behind which we can
find sanctuary.
It stops the attack. And for the
most part all of us survive the attack.
Those who don't survive are expelled as
spontaneous abortions.
Those are the people, the unborn
babies who did not survive the attack.
They are cast out as non-self or foreign
bodies. But for the most part we do
succeed in repelling this attack ans
that's the reason we are all here today.
The person or human being sought to
be saved in this case was an eight week
old human fetus.
When Dr. LeJeune was asked to
2
describe an eight week old fetus, he
referred to it a Tom Thumb because it
measures one inch from head to toe,
approximately the size of your thumb.
He described it as a tiny human being
with fingers and toes, and with palm
prints you could read with a microscope.
When asked what effect an abortion
would have on an eight week fetus, Dr.
LeJeune said, "It kills a member of our
species."
The United States Supreme Court in
Roe vs. Wade conducted an exhaustive
search for the definition of person within
the United States Constitution.
They reviewed the entire Constitution
and found that the use of the word
"person" in the constitution was such that
its only application was postnatal.
Nowhere in the Constitution, they
said was there any prenatal application.
410 U.S. at page 157.
In this regard Dr. LeJeune found it
interesting that this country's laws
recognized a company as a person, but will
not recognize a company of cells as a
person.
I find based upon the undisputed
;
56
medical and scientific testimony presented
before this Court that the eight week old
fetus in this case was a living person, a
human being and a unique and individual
company of cells.
) Roe vs. Wade held that the right of
personal privacy includes the abortion
decision. But that this right to privacy
of the mother was not unqualified and must
be considered against important state
interests in regulation. 410 U.S. at 154.
The United States Supreme Court in
Roe vs. Wade also held that for the stage
prior to approximately the end of the
first trimester the abortion decision and
its effectuation must be left to the
medical judgement of the pregnant woman's
attending physician. 410 U.S. at 164.
In this case it has been stipulated
that the fetus was eight weeks old thus
within the first trimester. Here the
pregnant woman chose to abort. Her
physician was attempting to grant her
request to abort when the Dr. Nathanson,
an expert in obstetrics and gynecology
testified that, well, he asked this
question: Doctor, is the reborn baby
separate from its mother? His answer was
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57
as follows: Yes, it is always a separate
person. The circulations are separate.
They never mix. And if they do mix, it
can be lethal to the baby or, in fact to
the mother too. But principally to the
baby.
We know they are separate human
beings from immunological studies. By
that I mean this: The baby is composed,
as Dr. LeJeune pointed out repeatedly, of
elements, genetic elements from both
mother and father. Now it is housed
separately as a kind of tenant in the
mother's body.
But it does have paternal genes and
paternal chromosomal substance. So it is
in effect, another person. It is not just
the mother. Now the white blood cells and
the immune system of the mother's body or
anybody's body have the ability to
recognize and distinguish self from non-
self.
And that is really the reason why our
defendants forcibly entered and trespassed
upon the physician's property in an
attempt to prevent the abortion.
The prosecutor in his summation drew
an analogy to a legal execution pursuant
58
to the capital punishment statute. He
said that if someone forcibly entered the
jail and trespassed and tried to stop a
legal execution of a convicted murderer
then this person would surely be guilty
of trespass because the execution was
legal according to the law and thus there
would be no justifiable reason under the
law to prevent it from occurring.
And this person would be guilty of
trespassing. I agree with the prosecutor
a person who trespassed to prevent a legal
execution would be guilty of trespass
notwithstanding the fact that their
defense was to save a convicted murderer's
life.
Roe vs. Wade was decided 18 years
ago. Had they had the benefit of all the
scientific discoveries over those past 18
years, their decision might have been
different. But, obviously they did not.
In 1973 they chose not to resolve the
difficult question of when life begins.
Their reasoning at that time was based
upon the fact there was no consensus in
the medical and scientific communities as
to when individual human life began.
But times have changed, and perhaps
bast free Sse e.
59
that question should be addressed by the
United States Supreme Court today.
However Roe vs. Wade is still the law
of the land and this court is bound by it.
Therefore I find that the eight week old
fetus in this case was a living human
being that was legally executed pursuant
to the United States Supreme Court
decision in Roe vs. Wade.
And therefore there was no
justifiable excuse to trespass in this
case in an attempt to prevent a legal act
of abortion.
All the defendants herein are held to
know the law and are thus bound by it. In
this case all the elements of trespass
have been stipulated to except mens rea or
criminal intent.
I find that the State has proven the
element of men's rea beyond a reasonable
doubt. The defendants knew exactly what
they were doing and they are held to know
the status of prevailing law in this
country.
In other words whether they fully
comprehended Roe vs. Wade or not, they are
bound by it. Their affirmative defenses
fall because the abortion they attempted
60
to prevent was legal under the principles
set down in Roe vs. Wade.
Therefore for these reasons I find :
all of the named defendants guilty of ;
trespass pursuant 2C:18-3(b). And
counsel, I'll hear as you as to
sentencing.
MR. TRAYNOR: Your Honor please, with
respect to those defendants that I
represent and they are as follows:
William Harrison, James McWilliams,
Deborah Smaldore, Lori Chadwick, Tina
Frail, Christopher Moscinski, John Adams
and Lisa Adams, I would ask your Honor in
mitigation of sentence to consider the
fact that these persons, these defendants
as indicated in their stipulations joined
Mr. Loce in defending human life, in
seeking to prevent the destruction of a
human being.
And their efforts that day failed,
but was their reason for being on the
premises. These are not persons who are
opposed to the law of our society.
The law of our society should be
based upon reason. Roe vs. Wade is not
based upon reason. It does not conform
with reality. So that despite the fact
61
your Honor has found them guilty, and your
Honor mete out sentence. I would ask you
in mitigation of the severity of the
penalty to take into consideration that
these were not street criminals in the
sense that they were attempting to disrupt
the laws of society.
They were attempting to guard
civilization and protect human life. Sol
would ask that your Honor take that into
consideration in giving sentence as to all
those defendants.
MR. MULLANEY: Your Honor, law is
ultimately an embodiment of values and
values are permanent from, more permanent
than independent of the law itself. And
the conflict, as you so beautifully
described is what do you do when the
obvious value to be embodied by law is
not only not embodied, but is ignored.
The only answer to that is it's a bad law.
I agree. You're absolutely right that
there's -- and as Mr. Bangiola pointed out
absolutely correctly in his summation at
trial there's a time and place and a forum
to point out when law is wrong and its
remedy.
And I'd like to say that this case
62
has been honor to be a part of because it
explored the facts, because it compared
the law to what is right.
And what is right the Supreme Court
does not decide is right or wrong. What
is right and wrong is your connection with
the greater power.
And the greater power that speaks to
this particular issue is thou shall not
kill. What so you do when the law says
that thou shall not kill does not apply?
Where does that take a society when
that concept is expanded to considerations
other than the unborn. And when you give
the Supreme Court the power to make the
distinction as to what life is meaningful
and what types of life aren't meaningful,
.as to who can live and who can't, where
does society go.
To use the old phrase slippery slope,
there's no more slippery slope for
Civilization than an abortion. Mr. Loce,
very much to his credit, took
responsibility for his acts. He looked at
what the consequences of his acts were,
and he tried. He saw his obligation as a
father and he tried to live up to it.
I would just like to say that we will
63
do everything we can as we go forward with
the Appellate process in this case to try
and bring into congruence right values and
wrong.
And that this decision by this Court
is an opportunity on a very, very large
scale to write right a very, very large
wrong.
Now in sentencing Mr. Loce I think it
is quite clear that he is a man who was
acting with the greatest amount of good
intention. And I would ask the Court to
give him the most lenient penalty possible
because given the facts of the case I
think that's proper. Thank you.
THE JUDGE: Mr. Daley?
MR.DALEY: Thank you. Roger Daley
and my clients are Charles Matson, Daniel
Lickteig, Neal Webster, Tyrone Malone,
Jeannie Henderson and Ralph Traphagen.
Your Honor, the holding and the Court
is bound by Roe v. Wade, demonstrates that
there's a great darkness that covers our
land. That we as a people are bound by a
law that allows the killing of human life.
The darkness at some point must come to an
end.
My people, the people that I defend
64
and the people I now speak for, stand in
the same position I now speak for, stand
in the same position that the people in
Germany and in the Netherlands and France,
who hid the Jew, who had the courage to
stand in the place of the Jew.
My people were the same people who
helped our black people escape from the
South, hid them in their basements and put
their own lives in danger.
Roe vs. Wade is a big legal lie. The
country will not stand if it continues to
proceed on that particular lie and allow
the unborn to be killed with the language
that George Orwell warned us about, when
peace would become war and love would
become hate. Roe v. Wade and all the
language that surrounds this particular
issue, is the very thing that George
Orwell warned us of, that we would call
life death.
That's what is going on. That's what
is going on in this courtroom. And that's
what we intend on appealing this case to
the highest court of the land. Because if
we do not stop this killing then we are
all doomed to be judged by God.
So my people are people, who truly
65
care about human life. The fact that they
are willing to put their lives on the
line, I would ask the Court to take that
into mitigation as a mitigating factor and
have mercy on them as they had mercy on
the children.
THE JUDGE: Mr. Prosecutor.
MR. BANGIOLA: Counsel, your Honor,
there's a very provocative issue raised by
your findings on the issue when human life
begins.
And there's a very provocative issue
raised as well by the existing status of
the law governing abortion.
But I offer to the Court the other
proposition which is the darkness that
would exist, and the light that would
exist on civilization, especially this
civilization, if the orderly process of
law were not followed.
And the orderly process of law in
criminal courts requires following
findings of guilt and a finding of guilt
by a Court, a finding of an appropriate
sentence based upon the status of the
defendant before the bar of justice.
And in this case where do these
defendant's stand as trespassers in
66
relationship to your Honor as sentencing
court? |
Now, your Honor, we should probably
get on this case I would think and counsel
are probably ready to tell us about the
prior convictions the of the individual
defendants, as to where they stand. I
have a feeling Mr. Loce has never been
convicted.
Is the same true for the other 14
defendants? I don't know. But these are
appropriate considerations for your Honor
to consider.
And I think it is appropriate,
important, when the defense speaks about
darkness that the court continued to take
an unflinching look at this case in the
area of the sentencing as well.
And an unflinching look at this case
requires that sentencing be meted out as
in other cases under the law, because this
is what the orderly process of the law,
and this is what civilization also,
requires.
If we wink at the law, if we say we
are sympathetic, although the law requires
conviction, if we do that, we have winked
at the right. We haven't faced it. We
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haven't applied it.
Another court evaluating this
decision is invited to wink as well.
That won't serve these defendants
even if they are right. These defendants
should be sentenced as other trespassing
defendants based upon their prior
convictions and prior criminal records,
without more.
These defendants knowingly violated
the law. These defendants as Mr. Daley
has mentioned have placed themselves on
very high moral terrain.
The analogy to people who defended
Jews during the horror of the Third Reich,
the people who ran the Freedom Train and
the civil rights demonstrators in the
south that were raised on summation again
at this time, that's not an argument for
mercy. That is an argument for a stiff
sentence. Because none of those groups,
Gandhi, and civil disobedience was
referred to as well, I believe.
None of these groups pled for mercy.
All of these groups recognized the
consequences of their actions and rolled
upon the final judgement of the
civilization through the orderly progress
68
of the law.
This is what the law requires. This
is what the law and the system in which I
believe requires.
This system is important. It is as
important as this case. This is our
system. And if we do not uphold it, if we
wink we have undermined something much,
much more important than the issue in this
case.
We have undermined the fundamental
process of law. So, your Honor, I urge
you to solicit pre sentence report on
behalf of the defendants and I'd like to
explore the criminal records of defendants
and set sentencing down for another day.
Thank you.
THE JUDGE: All right, counsel, all
counsel, as officers of the Court, I
assume. I hope that you know your
clients.
Is there anyone here, any defendant
in this case, without me doing a criminal
work up on each defendant of this case, is
there anyone here who has a prior
conviction specifically for trespass?
MR.TRAYNOR: Judge the general answer
to that question is, yes. The specific
Sh ae et, Ce ieee: 62
69
answer is a little more difficult.
I did not obtain a detailed record of
any prior arrests of my defendants in this
case, but having represented some of them
before in other courts of this state for
this same type of offense, 2C:18-3(b) and,
I do know there have been some prior
convictions.
I am not prepared at this point in
response to the prosecutor's demand to say
which defendant has been arrested and
which has not.
I know of several that have.
THE JUDGE: When you say they have
been arrested, in a similar situation?
Mr. Traynor: The same sort of case,
Judge. It is no secret that the press has
reported something known as Operation
Rescue where these people go to a place
where abortions are performed and they put
there bodies in front of the door to
attempt to block the door. I can say this
to your Honor, and this to the counsel,
that in every instance I know of where
individuals have been arrested in prior
arrests, they have been arrested of this
sort.
And your Honor should be apprised of
70
the fact that these individuals are not in
the line of Gandhi and the civil rights
demonstrators who sought to vindicate the
rights or freedom of themselves, to expand
their rights under the law.
These -- every individual here is
what is known, properly know as a rescuer,
a person who goes out to save the life of
the human about to be killed.
And that's a very clear distinction.
These are not demonstrators seeking to --
they are demonstrating to elevate the
public consciousness.
There is no question about that, to
attempt to restore society to civilization
to the notion of civilization.
But beyond that the specific incident
that they are there for is to rescue, in
this case, Mr. Loce's baby, a human being,
from destruction.
That is not in the line of Gandhi or
the civil rights demonstrators in the
south.
That is in the nature of the people
who violated the law against siding slaves
who were condemned under the Fugitive
Slave Act and who exposed themselves to
jeopardy under the Fugitive Slave Act.
71
I can represent as an officer of the
Court that notwithstanding the fact that
there were prior convictions, they have
all been convictions of the nature that
I'm describing.
And that, I believe, would permit
this Court in view of your ruling today
that human life begins at conception, that
upon that representation you could make
your sentencing today.
MR. DALEY: Your Honor, my client
Jeannie Henderson, does not have any prior
convictions.
MR.MULLANEY: Mr. lLoce hasn't had
any convictions, your Honor.
THE JUDGE: First of all, I take into
consideration that this was basically a
non-violent situation.
And I also take into consideration
the unique aspect of this case that the
father -- the individual whose offspring
was aborted, was involved in the trespass
and that was Mr. Loce.
And other evidence as I understand it
is such that they passively locked
themselves up in the doctor's office and
had to be removed. I don't have any
complaints for assault and battery ona
72
police officer or for that matter any
assault and battery charge within all
those complaints.
So I am faced with what is arguably a
passive resistance or passive trespass not
withstanding the fact that they did
forcibly enter according to the facts of
the case.
And, of course, their entry was
without permission, and took place after
they were told not to enter and it was a
defiant trespass.
But because of the unique
circumstances of this particular case,
especially since it involves the
individual whose offspring was aborted and
because of the non-violent aspect of the
case, I am prepared , notwithstanding the
fact there are other trespass convictions
for some of the defendants, I am prepared
to sentence at this time.
I am also cognizant of the fact that
Mr. Loce went all the way up to the New
Jersey Supreme Court in this case prior to
entering the doctor's office to prevent
the abortion of his offspring.
So that in that respect he did
exhaust accordingly, his remedies, so to
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73
speak. But what he did do was wrong.
What he did do was against the law.
What he did, I take into
consideration that he did go all the way
to the New Jersey Supreme Court to prevent
this abortion, and based upon the
undisputed medical testimony by arguably
the foremost authority in genetics in the
world. I found that human life begins at
conception; and that Roe vs. Wade permits
the legal execution of that human being.
And because of those findings of
fact, because of the nonviolent aspect of
this trespass, I am going to sentence all
defendants except Mr. Loce to a fine of
$250, $25 court costs, and $30 to the VCCV
Penalty Board.
That's a fund that goes to help the
victims of violate crimes which is in some
ways an irony in the case.
As far as Mr. Loce is concerned under
these circumstances, the fact he did have
to go to New Jersey Supreme Court, was
denied, and the fact he was non-violent in
his attempt to save his offspring, there
is no fine.
Good afternoon.
MR. MULLANEY: Thank you, your Honor.
74
MR. TRAYNOR: Judge, would you stay
the penalty pending appeal?
THE JUDGE: Yes, but I want the
appropriate paper work. You know what the
rules are as far as the ten day period,
the filling of the stay. I will stay it.
No problem.
THE JUDGE: Wait. Gentleman, my
clerk has just informed me, she's my
right-hand man er woman I would say, that
Mr. Loce, the State of New Jersey says
that you must pay $30 for the vccv Penalty
Board, so you must contribute $30 because
of your conviction to the Victims of
Violent Crimes.
MR. MULLANEY: Fine, your Honor.
THE JUDGE: So that's what you owe.
The rest of you $250. $25 to court costs
and $30 to the VCCV Board. Take it easy.
(Hearing adjourned)
I HEREBY CERTIFY that this is a true
and accurate transcript of the proceedings
as taken stenographically by me at the
time and place hereinbefore set forth.
SUZANNE HAUSER, C.S.R. XI01414
A Notary Public of the State of New
io
91 MC 108
76
In the Eighteenth Judicial District Court,
Sedgwick County, Kansas Criminal
Department
CITY OF WICHITA, PLAINTIFF RESPONDENT vs.
ELIZABETH A. TILSON, DEFENDANT APPELLANT
MEMORANDUM OF OPINION FOLLOWING BENCH
TRIAL
In compliance with the provisions found at
K.S.A. 22-3609 and K.S.A. 12-4601, Mrs.
Tilson appeals a ruling made by the
Municipal Court of the City of Wichita,
Kansas, wherein she was found to have
violated a city ordinance prohibiting
"criminal trespass" (5.66.050, 12-31-89,
the Code of the City of Wichita, Kansas)
for which she was ordered to pay a fine of
$1,000.00, serve six (6) months in the
Sedgwick County Adult Detention Facility,
and pay court costs of $27.00. She has
waived her right to trial by jury (Kan.
B.O.R. Sec. 10; U.S. Constitution, Am. 6).
August 3, 1991 is the date of the
occurrence resulting in the prosecution.
The place was within the corporate city
limits of the City of Wich#rta, Kansas.
ea
77
Those participants whose actions on
the date of occurrence are material to the
issues presented here are as follows:
A corporate entity was there. It was
an Ohio, for-profit corporation,
authorized to do business in the State of
Kansas. To do its business, the company
kept a commercial building on real
property at the place of occurrence. It
invited the public there to purchase a
service from the corporation. The company
hired physicians to render the service.
the service was the performance of
certain medical procedures that result in
the termination of pregnancy other than by
live birth.
Certain members of the public were
there that day as business invitees. they
were there to purchase the service.
Mrs. Tilson was there on the date of
the occurrence. Here are a few of the
reasons:
"Because I know that they perform
abortions there and abortion takes the
life of an unborn baby and I
wanted to prevent that and I wanted to
prevent the detrimental effect
78
that happens to the woman, the father of
the baby, the grandparents and brothers
and Sisters involved."
"Because that was the date that the
pastors were going to rescue and many of
my friends were there and I felt impressed
by the Holy Spirit to be there."
The evidence proffered to prove those
acts of the participants done on the date
and at the place of the occurrence that
precipitated the prosecution of Mrs.
Tilson are summarized below:
Mrs. Tilson entered upon the
corporate property as any other member of
the public could do. She did not, |
however, enter the building. Her purpose
was not to purchase a service. Her
purpose was to stand on the walkway in
front of the entrance so as to impede
those business invitees trying to enter
the company's building to purchase the
service offered there. While so situated,
she did not say nor do anything except
perhaps participate in a song of praise or
a prayer to the same “Supreme Judge of the
World" upon whom Messrs. Hancock, Adams,
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Jefferson, Franklin, Clark and their
colleagues at Philadelphia in 1776 relied
" for the rectitude of [their]
intentions..." (The Declaration of
Independence., Kansas and the United
States Constitution Pg.159 & 160, 1988).
The police say that they heard such
activity.
Mrs Tilson testified that by
hindering the purpose of the corporate
business invitees, she hoped to give
others united in cause with her an
opportunity to ask the invitees to reverse
their decisions to buy the corporation's
service. Mrs. Tilson calls these
colleagues of hers "sidewalk counselors."
Her colleagues were in place on the public
sidewalks and certain real property
adjoining the corporate real property for
the purpose of attracting the attention of
the business invitees through verbal or
visual communication and thereby endeavor
to dissuade the invitee.
Mrs. Tilson takes umbrage at any
attempt to label her an “abortion
protestor." She says that she was not
there to protest anything. Her goal was
to "rescue" the unborn, their progenitors
80
and the families of both from the ill
effects that might follow termination of
pregnancy.
At this stage the police were
summoned to the place of occurrence and
asked by the corporate "authorized person"
(5.66.050, Code, City of Wichita, Kansas,
Supra, ibid) to remove any person from the
premises who was not there to purchase or
participate in the service offered by the
corporation.
A Deputy Police Chief of the City
testified at trial that he broadcast this
request in such a way that Mrs. Tilson did
or should have known of it. She did not
move. A police officer then placed her
under arrest for criminal trespass. She
accompanied the policeman to jail without
further incident (State's Exhibit No. 1).
Exhibit No. 4 is the city ordinance
in question here. That part pertinent is
this:
"Criminal trespass is...remaining
upon...any land... by a person who
knows...she is not authorized or
privileged to do so, and: (a)such
person...remains therein in defiance of an
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order...to leave such premises...
personally communicated to such person by
{ae authorized person:.
Mrs. Tilson violated the ordinance.
She admits as much under oath, thereby
removing any reasonable doubt left
following the City's case in chief. She
asks for a finding of not guilty, however,
claiming at Page 3 of her trial brief ,
that
" ..she was justified to go on the
property ... as such entry was necessary
to protect human life and health.
...such entry ... is a lesser evil than
either the taking of the lives of the
babies ... or the potential harm to
mothers, and other affected persons..."
The defense of justification by
necessity relieves her of criminal
responsibility under the facts here, she
says.
The City contests the applicability
of the defense of justification by
necessity. At Page 12 of its trial brief,
the reason is stated in this way:
82
"
because the harm (abortion)
sought to be prevented is not a legally
recognized injury ., there were
legal alternatives available to the
defendant. ... the legislature has
effectively excluded the prevention
of abortion as a justification for the
commission of a crime. ..."
At common law, justification by
necessity developed as a doctrine whereby
under certain factual situations, the
perpetrator is forgiven an act otherwise
criminal.
The mind set supporting the doctrine
is set out in a part of Magna Carta (15
June 1215) where those men, who for one
brief moment of time were charged with
administering the government, reaffirmed
by mutual agreement that:
"No free man shall be seized, or
imprisoned, or dispossessed, or outlawed,
or in any way destroyed; nor
will we condemn him, nor will we commit
him to prison excepting by the legal
judgment of his peers, or by the law of
the land. To none will we sell, to none
83
will we deny, to none will we
delay right or justice."
The first ten amendments to the
Constitution of the United States (25
September 1789) are but reaffirmation of
these basic principles of freedom
following more than 500 years of practice.
All 16 amendments following find root
there.
The Bill of Rights incorporated into
the Constitution of the State of Kansas
(proposed 29 July 1859; adopted by the
people 4 October 1859) is but a
reaffirmation of the same basic principles
following 644 years of practice.
The common law is whence our
jurisprudence evolved in North America.
In Kansas our Supreme Court said:
"From the beginning of our history,
the common law of England has been the
basis of the law ... and except as
modified by constitutional or statutory
provisions, by Judaical decisions,
or by the wants and needs of the people,
it has continued to remain the law
of this state." (Clark vs. Allaman,
84
71 Kan. 206, 80 Pac. 571; Fergus vs.
Tomlinson, 126 Kan. 427,268 Pac.
849; State, ex rel vs. State Bd. of Ag.,
158 Kan. 603 at 605, 149 P. 2a 604; In
re Frye, 173 Kan. 392; 246 p.2d 313;
Gonzales vs. A.T.S.F., 189 Kan 689, 371 P
2d 193; Hoffman vs. Dantel, 192 Kan.
406, 388 P. 2d 61)
In Perkins on Criminal Law
(Foundation Press, Inc., 1957) at. page
848, justification by necessity is
explained in this manner:
"Where the act done was necessary or
reasonably seemed to be necessary , to
save life or limb or health, and did
not in itself in any way endanger life,
limb or health, the exculpatory
effect of necessity is too clear for
argument; but where the offense charged
is not one of particular
gravity, the courts have not hesitated to
recognize necessity as en excuse
where the danger or apparent danger to be
avoided was less serious in its
nature. Thus one unavoidably caught in a
traffic jam is not guilty of violating the
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law which forbids stopping at that
place, and a carrier has not violated the
statute which requires a specified
coach if the failure to provide that coach
on a particular trip was due to an
unavoidable accident which ordinary
prudence could not have guarded against.
These are not situations, it
should be noted, in which no choice is
possible. The driver elected to
stop rather than proceed until his vehicle
was brought to a halt by actual
contact with the one ahead, and the
carrier could have avoided sending the
train without the specified coach by
sending no trial at all. The harm
threatened in these cases,
moreover, is not to life or limb or
health. The motorist is excused for
stopping even if proceeding so
slowly that the bumper-to-bumper contact
would cause neither personal injury
nor appreciable property damage, and the
carrier would have suffered only
financial loss by complying with the
letter of the law. In another case, it
may be added, the court reversed a
conviction of killing a deer in violation
86
of the game laws because it was
Shown this killing was reasonably
necessary to prevent substantia; damage to
the defendant's property."
The federal courts recognize the
doctrine (U.S, vs, Simpson 460 F.2d 515,
9th Cir. 1972; U.S, vs, Seward, 687 p.2d
1270, 10th Cir. 1983).
Neither party cites Kansas case law
treating the doctrine. State vs, Taylor,
(138 Kan. 407, 26 P.2d 598), though not
dispositive, is instructive, is
instructive on the subject. The defendant
had appealed his conviction, claiming
error in an instruction given the jury at
his trial. It seems that defendant and
his wife were estranged with the wife and
children taking shelter at her brother's
house. Defendant appeared there and in
spite of his wife's protestations,
exercised his parental right to custody of
a child. Defendant shot the brother
because he tried to intervene in
defendant's efforts to exercise his
parental rights.
The jury instruction complained of,
in that part pertinent, explained the law
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in this manner:
11. The defendant, George Taylor, and
Bessie Taylor, his wife, ordinarily would
have an equal right to the custody
of their children, and either one of them
would have the right to repel,
reasonably, any invasion of their right to
such custody; however, I believe that if
the defendant, George Taylor,
and his wife were estranged, and Bessie
Taylor had for some time had the
unopposed possession of her children, and
there was an-attempt on the part of
George Taylor to take one or more of his
children from her by force, over her
objections, then her brother, Everett
Christenson, would be justified in
rendering her such reasonable
assistance as might be necessary to
prevent able George Taylor from
taking any of the children away from her.
On the other hand, Everett Christenson had
no right to the care, custody or
control of the Taylor's children,
independent of the desires or wishes
of his sister, Bessie Taylor, and if, of
his own motion, he interfered with George
Taylor, then Taylor would be
88
justified in enforcing his right to the
custody of the children..."
The Supreme Court of Kansas said of
the instructions (page 413) "We think they
were a fair statement of pertinent law."
The City claims that "the legislature
has effectively excluded the prevention of
abortion as a justification for the
commission of a crime..." (page 12, trial
brief). At closing argument, the City
pointed to H.B. 2646 Sec. 6(a) (2) where
the legislature did in part define
criminal trespass as:
",.. (2) entering or remaining upon
private land or structure in a manner that
interferes with access to or from
any health care facility..."
That law (H.B. 2646) is effective
from and after July 1, 1992. It does not
have the effect on this case that the City
would give it.
I will this day hold that the
doctrine of justification by necessity was
legally recognized in the State of Kansas
On August 3, 1991. The roots are anchored
89
in common law. The purpose is to protect
the people from their government by an
assurance that in all matters right will
be done and justice rendered.
The doctrine is found at A.L.I. Model
Penal Code, Sec. 3.02. It is instructive
as a guide for practical application.
These are the elements:
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"(1) Conduct which the actor
believes to be necessary to avoid a harm
or evil to himself or to another is
justifiable, provided that: (a) the harm
t or evil sought to be avoided by
such conduct is greater than that sought
to be prevented by the law defining the
offense charged; and (b) neither
the Code nor other law defining the
offense provides exceptions
or defenses dealing with the specific
situation involved; and © a legislative
purpose to exclude the
justification claimed does not otherwise
plainly appear."
As aforesaid, Mrs. Tilson admits
violation of the ordinance. No
"legislative purpose to exclude" the
Pins Soh athe Rare bw Hemet
90
defense is applicable to this set of
facts. No exceptions or defenses are set
out in the ordinance or other law.
The provisions of (b) and © above
contain no exclusion of the doctrine. We
will then turn to the provisions of (a).
The “harm or evil" sought to be
avoided by Mrs. Tilson through her
violation of law on August 3, 1991 was
premature termination of pregnancy and the
harm that may flow therefrom.
The City argues that premature
termination of pregnancy not "harm or
evil" nor is it a wrong to be compared
with Mrs. Tilson's defiance of a police
order because Roe vs. Wade, (401 U.S. 113,
35 L.Ed 147, 93 S.Ct. 705) set the law
whereby the constitution guarantees a
right whereby a pregnant woman, during the
first trimester, may make a decision
whether to terminate her pregnancy without
governmental interference in that
decision.
Those are positions. To resolve the
issue, we need to explore some general
concepts of constitutional law, the
history of law in Kansas and apply the
same to the facts.
BR SSA RS
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Every female at the site of
occurrence on August 3, 1991 had a right
to make an individual decision whether to
terminate pregnancy (Roe vs. Wade, Supra).
Any member of the public there that day
had a right to purchase a service from
the corporation.
The corporation had a right to do
business there on that day. It was so
authorized by the State of Kansas.
Mrs. Tilson had a 1st Amendment
(United States Constitution) and Section
11 (Kansas Constitution ) right to express
her opinion on any subject concerning
governmental action or nonaction. Her
opinion could be expressed by action,
nonaction or words (Texas vs. Johnson, 491
U.S. 397, 105 L.Ed.2d 342, 109 S.Ct. 2533;
U.S. vs. Eichman, e't al, 496 U.S.
110 L.Ed.2d 287, 110 S.Ct. is
None of these individual rights are
subservient to others. As with all
constitutionality protected rights, each
here involved has parameters (Burson vs.
Freeman, 504 U.S. , $29 &, 86. 26 S,
112 S.Ct Decided May 26, 1992; Michigan
Department of Police vs. Sitz, et al, 96
U.S. , 110 L.Ed.2d 412, 110 §.Ct.
92
(1990); Roe vs, Wade, Supra; State vs.
Cleveland, 205 Kan,. 426, 469 P.2d 251;
State vs, Great American Theatre, 227 Kan.
633, 608 p.2d 951; _State vs, Crouch, 92
Kan. 602, 389 P.2d 824). The Bill of
Rights, federal and state, is law that
protects the people from their government.
Neither was meant to protect people from
citizens (Purdeau vs, McDowell, 41 S.Ct.
574, 65 L.Ed. 1048, 256 U.S. 465).
The City of Wichita's ordinance
prohibiting "criminal trespass" (Ex. 4,
Supra) protects the right of a corporation
and its business invites to do lawful
business without interference. In this
particular case, the ordinance can be
viewed as establishing parameters on Mrs.
Tilson's right to be on business property
for the purpose of expressing an opinion.
When Mrs.Tilson remained on the
corporate property in defiance of an
order... to leave such premises...
personally communicated to..." her by the
police, she violated the law. The
question then becomes is her violation
excused by the doctrine of justification
by necessity under the facts here
presented?
93
Mrs. Tilson points out that her act
of defiance “did not in itself in any way
endanger life, limb or health" (Perkins,
Supra) .
The City's evidence proves that the
corporation did business on August 3,
1991, but only after Mrs. Tilson was
removed by the police.
The defense evidence shows that the
corporation lost business that day,
perhaps indirectly by Mrs. Tilson's
conduct. A Ms. Tina McLaughlin gave
evidence at trial. She said that she went
to the scene of the occurrence on the day
Mrs. Tilson was there. She was a member
of the public, there to have a medical
procedure done for the purpose of
terminating her pregnancy. Ms.
McLaughlin left the scene because of the
activity there before she had the medical
procedure. She later made contact by
telephone with Mrs. Tilson's colleagues
and made an appointment to talk. After
the talk, she reversed her decision to
terminate her pregnancy prematurely. Her
pregnancy went to term , whereupon a
normal, healthy girl was delivered. The
girl is named Destiny. She sat on her
94
mother's lap during the testimony of her
mother.
The overall evidence proves that
those members of the public there that day
as business invitees were at the least
inconvenienced and at the most, obstructed
because of Mrs. Tilson's act. No one was
prevented from carrying out a decision to
terminate a pregnancy that day, so far as
the evidence shows.
Mrs. Tilson was on that day a
housewife and mother from Wichita, Kansas,
whose formal education terminated prior to
the 12th grade, but who has been awarded a
Kansas State High School Equivalency
Diploma (K.S.A. 72-4530; K.A.R. 91-10-1).
Her training in obstetrics and gynecology
is limited to the practical gained through
experiences as a mother and woman, so far
as the evidence here shows. As to the
fields of human genetics and histogenesis
of homo sapiens while en ventre sa mere,
her knowledge comes from a magazine
article (Life Before Birth, Life, April
30, 1965; Defense Exhibit B). Practical
experience gained by personal actions and
observations in human relationships
constitute her psychological knowledge.
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So far as the evidence here proves, she
probably has limited knowledge of and
little interest in concepts of
constitutional law evolving as American
jurisprudence from common law of England.
She sees through her heart. Her
inner voice tells her that the premature
termination of pregnancy by surgical
procedure terminates life By intuition,
she maintains that it can also cause great
psychological harm to "the woman , the
father of the baby, the grandparents, and
brothers and sisters involved." It was
intuition that drove her actions on August
3, 1991. she did what she thought was
right, but it is law of the land from
where the light comes to judge whether or
not her actions were justified under law.
To prove her point that the service
offered by the corporation on that day
terminated life, she offered the testimony
of experts. From Paris, France, she
called to testify one Dr. Jerome LeJeune.
He holds doctorate degrees in medicine and
science. He has for the last 40 years
divided his time between the practice of
medicine and research of human genetics in
teaching environment. His credentials
96
prove that he is at this time recognized
by the scientific community as the world's
expert in the field of human genetics.
Pathology of the chromosome is his
particular specialty.
Dr. LeJeunes is of the opinion that
human beings (homo sapiens) begin life at
conception. He gave reason for his
opinion certain scientific facts. A few
are set out here. When the ovum donated
by the woman is fertilized by the sperm
from the man, all ingredients and all
instructions necessary to make a human
being are therein contained. The new
human has a unique genetic organization.
The mother is the sole source of shelter
and vital fluids for the term of the
pregnancy. This need not be the
biological mother; any woman's body will
do so long as the recipient's body is in
the same stage of ovulation as the donor.
The new being forms all its own body
systems, to include circulatory. It is "a
little man in a space capsule," Dr.
LeJeune says.
In further support of his opinion,
Dr. LeJeune points out that tests done
after the fertilized ovum has divided one
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time shows the protein of the new being is
distinct from its progenitors.
The "D.N.A. bsr code" - now popular
in criminal identification (K.S.A. 1991
Supp. 21-2511) is present after the eighth
division from fertilization. At 90 days
from fertilization, all systems are fully
developed. The fingerprints and
palmprints are present and could be taken
and recorded at that time. Those will be
the same forever. Growth of the new being
and its various organs continue for 25
years after fertilization, the doctor
testified.
Dr. Thomas Hilgers was called from
Nebraska to give evidence. He is a
medical doctor, certified as trained in
obstetrics and gynecology. His speciality
is reproductive medicine. He has 20 years
experience in his profession. He has
authored several books and scientific
papers of significance in his field.
Dr. Hilgers opens that life for the
human being begins at conception. Through
him, certain exhibits were brought as
evidence, meant to prove his point.
Exhibit D is a video tape made by the
witness. It was nine years in production.
98
It depicts scenes meant to demonstrate
development of homo sapiens in utero from
conception through a few minutes after
normal, live birth. Sonogram is the
primary tool used for the depiction of
Exhibit D. All the subjects where
sonography is used are live patients,
pregnant at the time. It shows, among
other things, considerable embryonic
movement before the mother can feel it
within her body. It shows fertilization,
then heart beat at 16 days following.
The witness says that brain waves
have been demonstrated at 42 days after
fertilization in humans. His experience
is that 12 weeks from fertilization, all
normal, well-baby reflexes are present in
the new being and at approximately 22
weeks gestational (20 weeks after
fertilization, all normal, well-baby
reflexes are present in the new being and
at approximately 22 weeks gestational (20
weeks after fertilization) the body of the
mother is not necessary for the further
life of the new being, given modern
medical techniques, Dr. Hilgers explains.
Vincent Montgomery Rue, Ph.D. was
called by Mrs. Tilson. His qualifications
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fill 13 pages (Defendant's Exhibit 0). He
is recognized in his field as one of the
world's leading experts on the post
psychological ramifications, diagnosis of
mental illness arising therefrom and
treatment therefore of those persons so
affected following the voluntary premature
termination of pregnancy. His patients
over the years have included mothers,
fathers, siblings and grandparents
suffering the symptoms ascribed to a
diagnosis of post-traumatic stress
disorder (D.S.M. III 309.81 Axis IV (pg.
26) - Physical Injury or Illness as a
Stressor). It follows a feeling of guilt
or a sense of loss, Dr. Rue says, both
natural occurrences in the psyche of human
beings.
From Jackson, Mississippi, Mrs.
Tilson called a physician named Beverly
McMillan, who specializes in obstetrics-
gynecology. She has performed numerous
procedures that result in the premature
termination of pregnancy. By testimony
and demonstrative aids, she explained the
four medical procedures used to terminate
pregnancy. She testified that each
procedure results in termination of life
100
at the time or within minutes of the time
of the procedure. According to Mrs.
Tilson, the purpose of this evidence is to
show the threatened harm she was trying to
stop was imminent.
What Mrs. Tilson has proven by her
witnesses LeJeune, Hilgers, and McMillan
is that genetically, histologically,
obstetrically, and gynecological, the
scientific community is of the opinion
that life in homo sapiens begins at
conception and continues on for an average
life span unless interrupted by trauma or
disease.
With witness Rue, Mrs. Tilson proves
the scientific community is of opinion
that great harm can occur to any number of
persons joined in interest following
termination of pregnancy other than by
natural birth.
This scientific evidence of Mrs.
Tilson's demonstrates that the scientific
community has proved through research and
discovery what Mrs. Tilson believes by
intuition.
The City's objection thereto is that
this evidence is not relevant to the issue
being litigated (K.S.A. 60-401(b)). The
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City does not contest
To determine the
Tilson's evidence, as
of her defense, it is
the law applicable on
101
the truth thereof.
relevancy of Mrs.
well as the validity
necessary to note
August 3, 1991 at
the place of occurrence, particularly that
pertaining to the issue of whether or not
the voluntary premature termination of
pregnancy is wrong or
Tilson's defiance can
harm with Mrs.
be compared.
The voluntary premature termination
of pregnancy was at common law deemed a
criminal act.
80) wrote that:
"To kill a child
is now no murder, but
(W. Blackstone,
William Blackstone (1723-
in its mother's womb
great mis prision,"
4 Commentaries on
the Law of England 198).
At 1 Hale's P.C.
vs. Harris , 90 Kan.
the law of England in
429 (cited in State
807 P. de
the year 1670 is
stated in this way at page 812:
"But if a woman be with child and any
gives her a potion to
within her, and
destroy the child
she takes it and
102
it works so strongly that it kills her,
this murder..."
The Kansas Supreme Court in State vs.
Harris was interpreting a statute that had
been the law of Kansas since territory
days whereby the legislature made "it a
misdemeanor willfully to administer to any
pregnant woman any medicine, drug or
substance or use any instrument or means
with intent thereby to produce abortion or
the miscarriage of such woman, unless
necessary or medically advised to be
necessary to preserve life," (Terr. Stat.
1855, Ch. 48, Sec. 39' G.S. 1868 Ch. Si,
Sec. 44; R.S. 1923 21-437; G.S. 1949 21-
437).
Our Supreme Court reasoned in Harris
that the act of intentionally terminating
a pregnancy was one male in se. In
Support of such reasoning, other cases
were cited within the opinion. Here is a
part:
"The act was not only immoral,
Violative of the law of nature and
deliberate in character,
but reckless of life and wrongful per
103
se"(At Page 814)
"At common law life is not only
sacred but it s inalienable. To attempt
to produce an abortion or
miscarriage, except when necessary to save
the life of the mother under advice
of medical men, is an unlawful act and has
always been regarded as fatal to the
child and dangerous to the mother."
It is instructive to note the court's
reference to the beginning of life at page
817:
"The arbitrary refusal of the common
law to regard the fetus as alive in such
cases until quick was based on no
sound physiological principles. Becl
makes it plain that the
movement recognized by the mother, and
which is supposed to prove that her unborn
child is alive, is merely one
evidence of life, whereas unless life had
existed long before the most
disastrous consequences to the mother must
have already been suffered (1
Beck Medical Jurisprudence 464-467).
104
Mrs. Tilson's scientific evidence
seems to prove what the Supreme Court of
Kansas believed in 1913.
The same statutory law interpreted in
Harris, Supra, became G.S. 1923, 21-437.
Here is the statute defining Kansas
state policy:
"Every physician or other person who
shall willfully administer to any pregnant
woman any medicine, drug or
substance whatsoever or shall use or
employ any instrument or means
whatsoever with intent thereby to procure
abortion or the miscarriage of any such
woman, unless the same shall have
been necessary to preserve the life of
such a woman, or shall have been
advised by a physician to be necessary for
that purpose, shall upon conviction
be adjudged guilty of a misdemeanor and
punished by imprisonment in
the county jail not exceeding five hundred
dollars or by both such fine and
imprisonment."
The same state policy was codified at
G.S. 1949, 21-437.
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The Supreme Court of Kansas in 1953
at Joy vs. Brown 173 Kan. 823, 252 P.2d
889 @ Page 839) noted that the above
statute was one of three enacted:
"For the purpose of protecting the
life not only of the unborn child, but
that of the mother
"The state has a vital interest" in
both, the court said in the same opinion.
The statute was repealed in 1969
(Chap. 180, Page 503, 1969 Ses. Laws of
Kansas).
July 1, 1970 (Ses. Laws of Kan. 1969,
Chap. 180, Sec. 21-3407) is the effective
date of the legislative enactment that
replaced G.S. 1949 21-437, Supra. The
replacement statute provided that:
"(1) Criminal abortion is The
purposeful and unjustifiable termination
of the pregnancy of any female other than
by a live birth. (2) a person licensed to
practice medicine and surgery is justified
in terminating a pregnancy if he believes
there is substantial risk that a
106
continuance of the pregnancy would impair
the physical or mental health of the
mother or that the child would be born
with physical or mental defect, or that
the pregnancy resulted from rape, incest
or other felonious intercourse; and
either; (a) Three persons licensed to
practice medicine and surgery, one of whom
may be the person performing the abortion,
have certified in writing their belief in
the justifying circumstances, and have
filed such otHler place as may be
designated by law; or (b) an emergency
exists which requires that such abortion
be performed immediately in order to
preserve the life of the mother. (3) For
the purpose of this section pregnancy
means that condition of a female from the
date of conception to the birth of her
child (2) Of this section all illicit
intercourse with a female under the age of
sixteen (16) years shall be deemed
felonious. (5) Criminal abortion is a
class D felony."
K.S.A. 65-443 is of interest. It goes to
the general policy of the State of Kansas.
There it is provided that:
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"No person shall be required to
perform or participate in medical
procedures which result in the
termination of a pregnancy and the refusal
of any person to perform or
participate in those medical procedures
shall not be a basis for civil liability
to any person. No hospital,
hospital administrator or governing board
of any hospital shall terminate
the employment of, prevent or impair the
practice or occupation of or impose
any other sanction on any person
because of such person's refusal to
perform or participate in the
termination."
Anotl.er statute illustrative of state
policy in the area is K.S.A. 65-2837.
That part pertinent here is this:
"(b) ‘unprofessional conduct' means:
(5) performing, procuring or
aiding and abetting in the performance or
procurement of a criminal
abortion."
The statute applies to all persons
108
licensed by the State Board of Healing
Arts (K.S.A. 65-2812).
In 1972 the United States District
Court for the District of Kansas declared
(339 F.Supp.986) Section 2(a) of K.S.A.
21-3407 violative of the equal protection
clause of the 14th Amendment to the U.S.
Constitution.
It is not necessary to decide here
what, if any, ramifications the federal
District court's opinion may have had on
prosecutions for violation of the statute
in Kansas, because in January, 1973, the
Supreme Court of the United States handed
down Roe vs. Wade, Supra, and its
companion case, Doe vs. Bolton, (410 U.S.
179, 35 L.Ed.2d 201, 93 S.Ct. 739, reh den
410 U.S. 959, 35 L.Ed.2d 694, 93 S.Ct
1410).
Insofar as concerns the resolution of
the issue here, the ruling in Roe is best
summarized by the reporter of decisions at
page 155, Paragraph 3, where it is written
that:
"State criminal abortion laws, like
those involved here, that except from
criminality only a life-saving procedure
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109
on the mother's behalf without regard t:
the stage of pregnancy and other
interests involved violate the Due Process
Clause of the Fourteenth
Amendment, which protects against state
action the right to privacy, including a
woman's qualified right to
terminate her pregnancy. Though the State
cannot override that right, it
has legitimate interests in protecting
both the pregnant woman's health and
the potentiality of human life, each
of which interests grows and reaches a
"compelling" point at various
stages of the woman's approach to term.
...(c) For the stage
subsequent to viability the State, in
promoting its interest in the potentiality
of human life, may if it chooses,
regulate and even proscribe, abortion
except where necessary, in
appropriate medical judgement, for the
preservation of the life or health of the
mother."
Doe, Supra, rendered unconstitutional any
attempts by the legislature to impose into
the decision to terminate a pregnancy the
110
concurrence of physicians or groups other
than the pregnant woman's personal
physician and herself.
When K.S.A. 21-3407 is viewed in
light of Doe, Supra, with the guidance of
that rule of statutory construction laid
down in State vs. Trudel] (243 Kan. 29,
755 P.2d 511) where, in part, at Syl. 2,
the court said that "... a criminal
statute, with its punitive effect, must be
strictly construed against the state ..."
it is clear that the statute is
unconstitutional on its face.
The legal history of Kansas teaches
that as a matter of public policy, the act
of voluntarily terminating a pregnancy
prior to term has been considered a
wrongful act except when done under strict
guidelines. The purpose is to protect the
life of the unborn child and the mother
(Joy vs, Brown, Supra). Roe, Supra, and
Doe, Supra. dec;ared a qualified
constitutional right protecting a woman
"from unduly burdensome interference with
her freedom to decide whether to terminate
her pregnancy, "(Casey vs. Planned
Parenthood of Southeastern Penn,, et al,
1992 W.L. 142546, decided June 29, 1992);
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but left the state government with a
legitimate interest in both the woman and
the premature life during the entire
period of pregnancy (Roe, Supra; Webster
Vv iv vy,., 492 U.S.
490, 106 L.Ed.2d 410, 109 S.Ct. 3040
(1989); Casey, Supra; see also Joy vs.
Brown , Supra) .
It may be said that on August 3,
1991, a pregnant woman in the State of
Kansas had an unqualified right to undergo
a medical procedure meant to terminate her
pregnancy at any time prior to term. Roe
vs. Wade, Supra, and Doe vs. Bolton, Supra
(1973) rendered K.S.A 21-3407, Supra,
constitutionality void. Perhaps that is
why there were no reported cases of
prosecution thereunder during the 20 year
life of the statute. The legislature took
no action during the 18 years following.
The Supreme Court of Kansas, during the
same time period, did not act on the
particular issue but did find that the
unborn are not human being at any stage of
pregnancy so far as the law of criminal
homicide is concerned (State vs, Green,
245 Kan. 398; 781 P.2d 678; State vs.
Trudell, Supra).
112
Mrs. Tilson says that this
unqualified right to terminate a pregnancy
at any stage contradicted the state's
historical public policy. That is the
wrong with which her defiance, of the
City's criminal trespass ordinance must be
compared, she maintains.
In addition to the argument that the
woman's right to terminate is not wrong,
the City argues (Tr. brief, Supra) that
alternatives to law-breaking were
available to Mrs. Tilson on that day.
Mrs. Tilson's evidence on that point
proves that she had, prior to August 3,
1991, made contact with the legislature,
federal and state, by telephone, writing
and lobbying. She has protested the
government's action in Roe vs. Wade,
Supra, and the Kansas state government's
nonaction following. She has peacefully
assembled to petition her government for a
redress of what she felt to be a
grievance. She has exhausted her
alternative remedies. The City's point is
not well taken.
I will find that the City's evidence
(Through Ms. Riggs) meant to show that the
corporation's services were sold only to
113
those pregnant women in the first
trimester of pregnancy is not credible.
The same is disbelieved.
I will find Mrs. Tilson's evidence
proffered through witnesses LeJeune,
Hilgers, McMillan and Rue relevant to the
issue here. The entire evidence of her
experts is admitted. The evidence proves
that the medical and scientific
communities dealing with the subject
matter on a daily basis are of opinion
that life in homo sapiens begins at
conception; and harm is result of
termination of life under most
circumstances.
That opinion--as a proposition based
on intuition in earlier years--has always
been foundation for the public in Kansas
(State vs, Harris, Supra; Joy vs. Brown,
Supra)
The City argues (page 4, above) that
Roe vs. Wade, Supra declares that the
voluntary termination of pregnancy cannot
be a harm because it is legal. That is
too broad an application.
Neither Roe vs, Wade, Supra; its
companion case Doe vs. Bolton, Supra; nor
their progeny (Webster vs. _Reproductive
114
Services et al, Supra; Casey vs. Planned
Parenthood of Southeastern Penn., Supra)
worked to abrogate the public policy of
the State of Kansas that the voluntary act
of prematurely terminating a pregnancy
without qualifications is a wrongful act.
Those federal cases only qualified that
policy by constitutionality guaranteeing
to each woman in Kansas or elsewhere a
"qualified right" (Roe, Doe, Webster,
Casey) to decide whether to terminate her
pregnancy.
The act of termination of pregnancy
without qualifications, always violative
of state policy as mala in se, was not by
Statute prohibited on August 3, 1991,
given the peculiar state of affairs caused
by the action of federal government (Roe
vs. Wade), combined with the inaction of
the state government.
The wrongfulness of The act (i.e.
unqualified termination of pregnancy) is
what must be compared with the
wrongfulness of Mrs. Tilson's act of
interfering with the right of a
corporation and its invitees to engage in
lawful business.
The courts in Kansas by tradition
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225
have been a place where citizens find a
forum at which all with grievances can be
heard, their actions measured by proper
application of law, under an assurance
that right be done and justice
administered in every instance.
I will find that the doctrine of
justification by necessity is applicable
to the facts of this case. The facts of
the case must be viewed in light of the
law on August 3, 1991.
The doctrine is applied by weighing
the two wrongs, while comparing the harm
each seeks to avoid. The weighing must be
done while balancing constitutionality
guaranteed activities associated with
these acts. The weighing and balancing
must be done in light of the peculiar
facts of the individual case.
The legislature of our state has
acted since and perhaps in part because of
Mrs. Tilson's defiance. It has by House
Bill No. 2646 (effective July 1, 1992)
reaffirmed the state's policy discussed
above by exercising control of and
regulating the act of voluntarily
terminating a pregnancy prior to live
birth. The legislature addressed the
116
situation where citizens might do the same
act as Mrs. Tilson did here.
Since Mrs. Tilson's defiance, the
Supreme Court of the United States has
reaffirmed the constitutional right of a
woman to "decide whether to terminate her
pregnancy," (Casey, Supra) prior to
viability of the new life. -
Any corporation authorized to do
business and its clientele still have a
right to do lawful business without
inference under the law of this state.
Insofar as concerns the present
matter, keeping the tradition that in all
matters, right to be done and justice
administered, Mrs. Tilson's wrongful act
done by violating the ordinance (Supra)
was done to prevent a greater "harm" to
society t large than that harm those
running the city government for a time
sought to prevent by enactment and
enforcement of the ordinance.
Mrs. Tilson's wrongful act is
forgiven in the eyes of the law under the
doctrine of justification by necessity.
She is discharged from further
responsibility in the case.
The City's ordinance is still the
a
we
117
law, even though certain application of it
may be subject to interpretation in light
of the provisions of H.B. 2646, but that
is a subject for another day.
As in all legal matters, this case is
decided on the peculiar facts of this
particular case. It is not dispositive on
any other matter whatsoever.
The length of this opinion can be
attributed to the important of the subject
matter addressed.
Judge Paul W.
Clark
July 20, 1992
DECISIONS
First Judicial Department
118
NEW YORK
COUNTY
JURY PART 10
Judge Espinoza
PEOPLE v. JOHN GRAY, JOHN KAEHNY, CHARLES
KOMANOFF, STEPHEN KRETZMANN, JONATHAN
ORCUTT and ANN SULLIVAN - Each of the
defendants in this case is charged with
disorderly conduct (Penal Law 240.20,
subdivisions 5 and 6). These charges are
a result of their participation ina
demonstration organized by Transportation
Alternatives on October 22, 1990, at the
entrance to the south outer roadway of the
Queensboro Bridge, in opposition to the
opening to vehicular traffic of the one
lane that had been reserved for bicycles
and pedestrians, during evening rush
119
hours.
Pursuant to an agreement with the
Manhattan District Attorney's office,
defendants stipulated to the facts
constituting the People's direct case. In
substance, they admitted their presence on
the south outer roadway of the Queensboro
Bridge at approximately 4:00 p.m. on
October 22, 1990. They also admitted that
at about 4:15 p.m., a New York City Police
Officer ordered them to move, and that
they did not comply with that order until
they were placed under arrest, at which
time they moved voluntarily and did not
resist in any way.
In return for this stipulation, the
prosecution agreed not to offer any
objections to the presentation of a
necessity defense by these defendants.
a non-jury trial was held before this
Court on February 5th and 6th 1991. The
People's case consisted of the above-
mentioned stipulation. Defendants
presented their own testimony, as well as
that of several witnesses, including Dr.
Steven Markowitz, a specialist in
community medicine with the Division of
Environmental and Occupational medicine at
Mount Sinai Medical Center and forme,
Commissioner of Transportation, Ross
Sandler, as expert witnesses. Several]
exhibits consisting of Department of
Transportation memos were then entered
into evidence by the People as rebuttal.
The Necessity Defense and Citizen
Intervention
New York Penal Law Section 35.05(2)
provides:
Unless otherwise limited by the
ensuing provisions of this article
defining justifiable use of physical
force, conduct which would otherwise
constitute as offense is justifiable and
not criminal when:
Such conduct is necessary as an
emergency measure to avoid an imminent
public or private injury which is about to
occur by reason of a situation occasioned
or developed through no fault of the
actor, and which is of such gravity that,
according to ordinary standards of
intelligence and morality, the
desirability and urgency of avoiding such
121
injury clearly outweigh the desirability
of avoiding the injury sought to be
prevented by the statute defining the
offense in issue.
The necessity and justiciability of
such conduct may not rest upon
considerations pertaining only to the
morality and advisability of the statute,
either in its general application or with
respect to its application to a particular
class of cases arising thereunder.
Whenever evidence relating to the defense
of justification under this subdivision is
offered by the defendant, the court shall
rule as a matter of law whether the
claimed facts and circumstances would if
established, constitute a defense."
Extensive research revealed that
while judges in New York (with one partial
exception, discussed infra at 17) have so
far declined to rule that a necessity
defense has been sufficiently established
to allow the trier of fact to consider it
in their deliberations in cases involving
defendants who have engaged in citizen
intervention/civil disobedience, numerous
state trial judges. In other
jurisdictions, as well as some federal
122
District court judges, have so charged
juries or acquitted defendants after bench
trials in similar cases.
Moreover, when the necessity defense
is actually submitted to the trier of fact
in such cases, defendants have usually
been acquitted (United States v. La Forge
and Katt, No. Cr 4-84-66 [U.S. Dist.
Ct.Minn. Nov. 8, 19984]; State v. Mouer,
No. 77-246 through 77-324 [Columbia Co.
Dist. Ct., Dec. 12-16 1977]; People v.
Brown, No. 78CM2520-40 [Lake City, Ill.
January 1979]; People v. Block, et
al. (Gault Judicial Dist., Sacramento Co.
Muni C.,Cal, Aug. 14, 1979] West Valley
City v. Hamilton, Nos. 891003031-3 MC
(Cty. Ct., Salty Lake Cty., Utah, 1990];
People v. Jarka, Nos. 002170, 002196-212,
002214, 002236-002238 [Cir.Ct. of Lake
City, III April 1985]; Washington v.
Karon, No. J85-11-36 [D Wash., Dec.
10,1985]; People v. Alridge, No. 49091
[Sunnyvale-Cupertino Jud. Dist., Santa
Clara Co. Muni Ct., May 21-23, 1979];
People v. Lemnitzer, No. 27106E
[Pleasanton-Livermore Judicial District,
Almeda Co. Muni Ct., 1982]; People v.
Boelcke No. 101194-101203 [52nd Jud.
123
Dist., Jan.7-12,1985] Chicago v. Mayer,
308 NE2d 601 [III, Sup. Ct. 1974]
[conviction reversed, def. entitled to
necessity defense]; California v.
McMilian, [San Luis Obispo Jud., Dist.
#D005, 18, 1988] [long written opinion
upholding necessity defense]; Michigan v.
Jones, Michigan v. Heyer [Dist. Ct.,
Oakland Co., 52nd Dist. lst Div. Nos. 83-
101194-101228,1985] California v. Action
PL-341/55 (S. Coast Jud. DisL.Santa
Barbara Co. #282899, 1987); Massachusetts
v. Scott Schaefier-Duffy, PL-426/57
Worchester Dist. Ct. [1989]; Commonwealth
v. Ansellem, No. 84-CR 3137 [Hampshire
Dist. Ct.o (Mass. 1984]).
While far from an exhaustive listing,
these cases are representative of the
range of perceived harms against which
defendants' actions have been found to be
justified; including the effects of
nuclear weapons and nuclear power.
There are also a number of cases in
which charges were dropped
after the judges rulings that a necessity
defense would be permitted (U.S. v.
Braden, PL-139/20[WD KY [1985]; New Jersey
v. Driscoll, PL-172/50[(Muni Ct., New
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