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Mongielo contests his new trial with time honored law

By Darryl McPherson



The Niagara Falls Reporter has previously published the account of David Mongielo, a Lockport businessman who was fined and sentenced to 15 days in prison by Town of Lockport Justice Raymond E. Schilling for violating a sign ordinance. Mongielo was granted a stay of his sentence by Niagara County Court Judge Matthew J. Murphy pending appeal.

Judge Murphy, in an eight-page decision, reversed Mongielo’s guilty verdicts from his previous conviction of violating the conditional discharge of his 2009 sign ordinance case and the recent 2011 case.

The grounds for the new trial were based on Town Justice Raymond Schilling’s failure to properly question Mongielo prior to the 2009 trial. Murphy wrote, "The Trial Court here did not conduct a sufficiently searching inquiry on the record exploring with the Defendant his election to proceed pro se and warning him of the dangers and disadvantages of self-representation."

In order to ensure that a defendant’s rights are protected, particularly when there is a chance of incarceration, the trial judge should make sure the defendant is fully aware of what is at stake. Schilling’s failure to do that, "the searching inquiry," provided the basis for Murphy’s ruling.

Notwithstanding the Court’s concern Mongielo is going into the new trial without separate counsel. "I can’t afford an attorney to go any further in this, but what does one do to defend their rights? The only way to do it is to learn the law yourself."

Mongielo is proceeding on a theory of common law. "The only one who can decide if we’re guilty is a jury of our peers. So if they heard both sides of the case, they decide you’re guilty, then you’re guilty,” said Mongielo.

For non-lawyers, this breaks down as the law of common sense.

At Mongielo’s arraignment on November 20 for his new trial, he experienced the risks of self-representation. He had prepared a Motion to Quash, which sought to set aside the need for a trial based on the lack of personal jurisdiction. Quoting Fontenot v. State (932 S.w.2d 185), Mongielo asserted, "Where the court is without jurisdiction, it has no authority to do anything other than to dismiss the case." The Court refused to consider it, based on his failure to note on the record that his original attorney, Frank Housh, was no longer representing him.

If the Motion to Quash fails on December 4, the new court date, and Mongielo proceeds without separate counsel, he will likely speak to the concept of jury nullification. This occurs when a juror, who has the ability to question not just the facts and the application of the law, but the rationality of the law itself, acquits even if the defendant is technically guilty of breaking the law. If the law makes no sense, the duty of the jury (as it was designed and has always the power to do) should find the defendant not guilty. This is what preserves the power in the hands of the people and not the government. If the jury votes to acquit, even in contravention of the judge’s instructions, the acquittal will stand.
The jury has the final say.

Most jurors, however, are unaware of this and instead follow whatever the judge tells them. The ignorance of juries is the one principle ingredient needed to create a police state. The founding fathers felt in order to preserve freedom the right of the jury to veto any law on a case by case basis was essential.

Thomas Jefferson went as far as to say that given a choice between the right of people to vote or to have juries, he would choose juries because legislators could enact any anti-freedom law, but only the jury can enforce them since no one can go to jail without the consent of the jury.

He meant that if jurors refused to convict their fellow citizens on unjust laws, the legislators powers would be ineffective.
A good example of this was the fugitive slave law. Although it was a federal law of the land, northern jurors refused to convict people who helped fellow human beings legally designated as slaves escape.

Jefferson, Franklin, Hamilton and others felt the only way a government could become authoritarian is if the juries forgot their age-old and time honored authority to nullify any law.

Seems to us no informed jury would send a man to jail for violating a sign ordinance.

 

 

Niagara Falls Reporter www.niagarafallsreporter.com

Nov 27 , 2012