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IN THE PIMA COUNTY SUPERIOR COURT State of Arizona, Appellee ) vs ) John Jay Underhill ) ) ) Appellee _______________________________ ) ) ) Lower Court

Case No TR-13063378 ) )

APPELLANTS MEMORANDUM

John Jay Underhill 3625 W Gailey Drive Tucson Arizona 85741 349-0794

John Jay Underhill Agent for JOHN JAY UNDERHILL 3625 W Gailey Drive
Statement of Facts

My appeal is based on: One, parts of the recording of the trial are unintelligible, especially when the police officer spoke. Therefore I asked Judge Leavitt to consider a new trial. Two, certain procedures were not followed prior to the trial and perhaps not during the trial. Procedural errors may have occurred as well regarding how items were placed into evidence. Therefore I will ask that certain items discussed in the trial be placed into evidence. Three, I was deprived of property without due process of law. Finally, the judges in city court may have conflict of interest issues. Parts of the audio record of the trial proceedings were unintelligible. This occurred mostly with the officers testimony pages 1-8(1 minute to 8 minutes), and his rebuttal pages 28-29 of the transcript(66 minutes to 68 minutes). See Exhibit 1A. Other places where he spoke I could not transcribe also. Inaudible portions were caused by static in the recording and/or perhaps because the parties were turned away from the microphones. Please see Exhibits 1 to find the times when this occurred in the recording and Exhibit 1A, a transcription of the trial that I wrote. In the portions that I could not transcribe I put ?? or I noted the number of sentences I could not hear. These notes can be also compared to the actual recording of the trial. Procedural errors occurred before the trial. Before the trial the police officer representing the citys burden of proof, reviewed the video clip of my citation with me. When I offered evidence questioning his presumption of my guilt he ended up saying. I dont have time to listen to this! You can have your day in court. Go sit down! I believe he and perhaps the judge, violated rule 11 related to
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Discovery See Exhibit 2. Also during the trial procedural errors may have occurred. See the transcript pages 24-26(66 minutes to 68 minutes) in Exhibit 1A. The judge admitted the forensic video experts video but did not take his affidavit Exhibit 2A because I found it in my materials. I do not know if they entered the curriculum vitae into evidence because I cannot find it. However, they did not mention to me that they took the curriculum vitae (Exhibit 2B). It seems illogical to take the forensic experts video without taking the affidavit(Exhibit 2A) because the signed affidavit is the foundation of his evidence where he explains how he came up with the numbers concerning the yellow light phase in his video that was taken into evidence. I request that the affidavit be placed into evidence. If the curriculum vitae(Exhibit 2B) is not in evidence I request it also be placed into evidence because it describes the forensic video experts qualifications and experience. See transcript pages 24 paragraph 5 to page 26 paragraph 5(55 minutes to 61 minutes) Exhibit 1A to hear the dialog I recorded about this. Finally the last potential procedural error occurred after I

gave my testimony and the officer gave his rebuttal. I was not asked if I had any objections to his rebuttal. Instead she pronounced her decision about the case. See the transcript Exhibit 1A the bottom of page 28 and the top of page 29(66 minutes until 68 minutes). See Exhibit 2C also explaining this in further detail. I believe I was deprived of property without due process. I was cited by a red light camera for violation of the code 28-645A#A (failure to stop at a red light). Since I could not cross examine the camera or the light to determine its accuracy or validity, I requested maintenance records and certification for accuracy of the

red light camera and timing surveys and maintenance records for the traffic lights. See pages 9-13 of the transcript(16 minutes to 28 minutes) in Exhibit 1A. In communications (letters and phone conversations to and from various city officials and an American Traffic Solutions official, I also requested information about what local state or federal agencies independently monitor or certify these cameras. I never received any of these documents. Exhibit 3 contains further details about my questions and the officials answers. Exhibit 3A catalogs all

the Federal, State and local agencies I called to determine what agency or agencies regulate or certify photo enforcement camera companies. I found no affirmative answers to those questions. Exhibit 3B contains Federal guidelines that I believe the city of Tucson is violating in maintaining their traffic signals. All of these areas are covered in the transcript from pages 18 paragraph 8 until page 23 including the first paragraph. It is approximately from 38 minutes to 53 minutes in (Exhibit 1A). Also in the prior Exhibit 1A, briefly on the last paragraph on page 5 and continuing through paragraph six on the next page on the transcript of the court record, I state, that I object to the 2nd still photograph in the violation video but I cant remember why? See Exhibit 3C for the specific violations. Next specifically in the transcript on pages 23 paragraph 2, I briefly discuss comparing with a stop watch the time of the yellow light phase on the violation video to the yellow light phase on the Forensic video experts video. I explain it in further detail on page 26 paragraph 6 to the top of page 27 starting at 53 minutes then going into more detail from 61 minutes to 63 minutes. See also Exhibit 3D that describes in detail how I came up with the stop watch times for

the yellow light phase in both videos. I would like to include these exhibits because they were discussed in the record and indicate that I had no way to examine the reliability of the machines that caused me to obtain this ticket. These exhibits are important to my case because the city has not proven that the yellow light phase was 3.5 seconds at the time of the citation, rather than close to 3.1 seconds as my forensic video expert alleges. If the video experts analysis is correct and the phase is shorter than stated on the citation, I would not be contesting this today because I would have reached the intersection before the light changed to red. City Court judges are in an awkward position because they rule on cases where their decisions impact money received by the courts. If this is not directly a conflict of interest, it seems like it is. According to the documents I found on the Tucson Police Traffic Division website, the city receives substantial profits from the photo radar program and a substantial portion returns to the court to fund its operations. See the transcript pages 25 paragraph 5 to page 26 paragraph six. See also Exhibit 4. I request this exhibit be placed in evidence because the fact that decisions that judges make can affect the well being of the court may influence the decisions that they make.

Statement of Law
As for the court record, 17C A.R.S. City Ct Local Practices and Procedures Rule 19 states A record of the proceedings shall be made by audiotape digital recording or audiotape. It does not specify quality of the record. According to http://www.azcourts.gov/Portals/74/KTR/Dec04InterimRpt.pdf

Over the past twenty years, electronic recording systems have proven themselves capable of often producing a clear, accurate record of what is said during a court proceeding. For me to adequately appeal my case I believe a clearer recording than what I received is necessary. Procedural errors occurred in my trial as described above. 17C A.R.S. City Ct Loc Prac and Proc Rules Tucson Rule 11 discovery states B. Immediately prior to the hearing, both parties shall produce for inspection any exhibits and written or recorded statements of any witness wich have been prepared and may offered at the hearing. Failure to comply with this rule may result, in the courts discretion in granting of a recess or continuance to permit such inspection or the exclusion of the evidence not so exchanged In my case immediately prior to the judges arrival the official representing the city in my trial reviewed my violation video with me. However after I questioned his presumption of my guilt and suggesting evidence to back up my view he exclaimed I dont have time to listen to this and he order me to sit down. The judge did not ask to examine my exhibits nor did she ask whether the officer did so. See Exhibit 2 Loc Prac and Proc Rules Tucson Rule 18 Order of Discovery I believe was violated as well Rule 18. Order of Proceedings The order of proceedings shall be as follows: A. Testimony of Citys witnesses B. Testimony of defense witnesses C. Testimony of Citys rebuttal witnesses if any D. Testimony of defense surrebuttal witnesses is any E. Argument of the parties or their counsel if permitted by the court. F. Ruling by the court.

In my case after the officer gave his rebuttal the judge asked the officer a couple of questions then she pronounced her judgment in favor of the city. I was not allowed to provide any witnesses for the surrebuttal. See the transcript Exhibit 1A

the bottom of page 28 and the top of page 29(66 minutes until 68 minutes). See Exhibit 2C also explaining this in further detail. Amendment six of the Constitution declares that in a criminal case I cannot be deprived of life, liberty or property without due process of law including questioning and examining those who bring charges against me. Oddly running a red light which could result in horrific injury to myself and others, is not considered a crime. Thus I am not entitled to these rights. Rule 17C A.R.S. Traffic Violation Cases Civ.Proc. Rules, Rule 17 states: (a) The Arizona Rules of Evidence shall not apply in civil cases. Evidence may be admitted subject to a determination that the evidence has some probative value to a fact at issue. Nothing in this rule is to be construed as abrogating any statutory provision relating to privileged communications. (b) The States burden of proof shall be by a preponderance of the evidence. Contrast this to rule 17C A.R.S. Traffic Cases Rules of Proc., Rule 8 (a) At the arraignment of a defendant for a Traffic or Boating offense and before accepting a plea of guilty in open court, the Court shall inform the defendant of his or her legal rights, including the right to retain an attorney; to plead not guilty, in which event the presumption of innocence until proven guilty beyond a reasonable doubt applies: to have a speedy public trial and to face and cross-examine the witnesses against him or her and to present evidence in his or her defense: to have subpoenas issue by theCourt to compel the attendance of any witness in his or her behalf The first rule applies to civil trials where the standard for evidence is much less extreme to convict and one is not have the right to face and cross examine and face witnesses against me. Interestingly the 7th amendment guarantees the right to a jury trial in suits that exceed $20 dollars. How did the courts get around that? Is it a part of the Constitution that I do not have these rights to due process in civil trials?

The Constitution protects citizens against deprivation of Life liberty and property without due process of law. The Supreme Court up holds two general principles regarding defendants: the presumption of innocence and the right to confront your accusers. See 1965 Supreme Court Pointer v Texas, 380 U.S. 400, 403 (holding the Sixth Amendments right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the states by the Fourteenth Amendment. See article Wrong on Red, the Constitutional Case Against Red Light Cameras and the 14th Amendment in the Washington University Journal of Law and Policy. See also 6th Amendment Right to Face Accusers Confrontation Clause Crawford verses Washington 541 U.S. 38 2004.

Conclusions
Unfortunately it is not stated clearly in the Constitution that 6th amendment rights are provided for defendants in civil trials. This is very dangerous because most people do not engage in actions and are not falsely accused of committing criminal acts where they would need the protection of their rights to defend themselves. On the other hand probably almost everyone has been charged with committing traffic violations a civil defense. This being true and the fact that we do not have these due process rights to face our accusers means that bureaucracies like the camera companies do not have checks on them to keep them from cheating. If the large camera companies throughout the nation do not have any independent agency checking

on them to see that they are not cheating on their calibration of their instruments, why shouldnt they fudge the times to gain more revenue? I presume since they are the only ones responsible to themselves to be honest perhaps somehow the laws in the legislatures were written to allow them to have no accountability. These raises deeper more troubling issues beyond the scope of this court but I present it for educational purposes only. Our Constitutional rights are gradually being chipped away. It is my contention we have lost our rights. What rights we have are at the pleasure of our executive branch. Based on reading many executive orders signed by the various presidents and the 2010 NDAA act the government can declare an emergency and take away our right to habeas corpus and due process and imprison or kill us with no trial. I do not understand why we stand for this. The other disturbing trend that has been occurring for years is the growing power of the executive branch of our government. Agencies regulate every aspect of our lives yet they are not directly elected by the people. Congress routinely passes large bills no one reads. The recently passed health care act is thousands of pages long. Bureaucrats unelected officials but part of the very powerful executive branch will create thousands of pages of laws to regulate more aspects of our lives. If they dont gradually impose tyranny over us, the myriad laws and regulations they create will become so contradictory that people will decide to embrace tyranny. One side affect of all these laws and regulations is the only people who can win in this world our the people who can afford the lawyers to navigate safely
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around these giant bureaucratic companies so they dont violate some regulatory rule. Personally I considered hiring an attorney to fight this ticket. I talked to several who told me they could easily get me off the ticket for between 350 to 750 dollars. They are doing this for a living so I guess since people are paying them they must be getting them off. Sadly this shows we dont have equal protection under the law. Perhaps we need to rethink law and consider simplifying it when we can as it once was under common law. Thank you for your time.

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