# Petition for Writ of Certiorari — Welz v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1283%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 929 ## Text ILE D- F I 9G 225 AG 519% 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 { : 4 j 4 3 8 wt ei ton cl bh Sey. Bae ters / 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. : 5 > | 5 7 | ‘ 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 t . b' & ” a 4 4 % ‘a * 4 } A % ; 7 ‘ 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 lee SL ttl Rem.” ut en Saal we Ant Bes ieee 0 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 4 : : a wd % 67 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 ¢ & 8 = | PP PAC 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, hat OME NG GERM E iele Rea da, ay Re + aia aie i a ae ad 2 Tae Ahlen ve 79 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 Foe See ee 81 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 | : rey a Cee a eee het alla Gap i titan A ADP ST ¢ ¥ | a | 2 85 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 ) i ; : 87 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1283%3A1. Public record. Not legal advice.