The 'flesh and blood' defense.

• Author: Evans, James Erickson
• Position: Fundamental right to self-representation

TABLE OF CONTENTS INTRODUCTION I. THE FLESH AND BLOOD DEFENSE A. History 1. The Posse Comitatus 2. From the Heartland to Baltimore B. Characteristics of the Defense 1. Theory 2. Practice II. THE RIGHT TO SELF-REPRESENTATION A. History 1. Legal Tradition 2. Faretta v. California B. Requirements 1. Clear and Unequivocal 2. Knowing, Intelligent, and Voluntary 3. Timely C. Exceptions D. Alternatives III. EXCEPTING THE FLESH AND BLOOD DEFENSE FROM THE RIGHT TO SELF-REPRESENTATION CONCLUSION APPENDIX INTRODUCTION

THE COURT: Please be seated. Good morning. Counsel, do we want to move to the evidentiary matters first?

DEFENDANT MITCHELL: I object. I object. For the record, I am Willie Edward Mitchell, Third, in a special visitation, under threats, duress, and coercion, not general, not pro se. This Court lacks subject matter jurisdiction for a lack of verified complaint and lack of verified complaint sworn under oath. This Court by its own motion can dismiss the alleged charge and the alleged case against Willie Edward Mitchell, Third, live flesh and blood man. (1)

So began Willie Mitchell's articulation of his defense to racketeering and murder charges in federal court in Baltimore in 2005. (2) Judge Andre Davis, ruling on various pro se motions in the case, reflected that the nonsensical claims Mr. Mitchell and his codefendants raised "would even be humorous--were the stakes not so high." (3) After summarily rejecting the defendants' arguments as "patently without merit," (4) Judge Davis explored the origins of their "in-court tirades and irrational written objections based on 'jurisdiction.'" (5) Tracing these misguided arguments back through American history revealed connections to a colorful cast of "religious zealots, gun nuts, tax protestors, and violent separatists ... who believe that America was irrevocably broken when the 14th Amendment provided equal rights to former slaves." (6) Judge Davis found it "truly ironic that four African-American defendants here apparently rely on an ideology derived from a famously discredited notion: the illegitimacy of the Fourteenth Amendments." (7)

This phenomenon, known colloquially in some jurisdictions as the "flesh and blood defense," (8) is the embodiment in federal criminal cases of a movement sometimes referred to as the "sovereign citizen" or "anti-government" movement. (9) Commentators trace this movement back to the "Posse Comitatus," a loosely organized group of right-wing extremists most active in the 1970s and '80s. (10) Only pro se defendants advance this "defense" because no competent attorney would attempt to defend a criminal prosecution on such grounds. (11) Indeed, the flesh and blood defense is legally frivolous--"in a court's eyes, it is as if the proponent had advanced no argument at all." (12) The flesh and blood defense is made possible by the Supreme Court's recognition of a fundamental right to self-representation in criminal trials in Faretta v. California. (13) The Court, even in first recognizing this right, however, acknowledged the danger inherent in self-representation--namely that pro se defendants may work "ultimately to [their] own detriment." (14) There is no doubt that defendants who invoke the flesh and blood defense are indeed working to their own detriment. (15)

Although the Faretta Court declared that "[p]ersonal liberties are not rooted in the law of averages," (16) the flesh and blood defense has no average success rate--as a legally frivolous argument it "simply ignores the law as it currently exists" (17) and fails every time. Accordingly, this Note suggests that when defendants advance the flesh and blood defense, they should be denied their right to self-representation in order to forestall them from using Faretta to ensure their own conviction. Part I examines the evolution of the flesh and blood defense itself--from its use by midwestern white supremacist farmers in the 1970s to black Baltimore drug dealers in the 2000s--and its modern theory and practice. Part II discusses the right to self-representation: its history, requirements, exceptions, and alternatives. Finally, Part III argues that when confronted with the flesh and blood defense or similar nonsensical legal theories, courts should refuse to respect a defendant's waiver of counsel. This policy would serve the interests of the defendant and of society by allowing the adversarial system of justice to work as intended, even if the defendant is allowed, at an appropriate time, to make whatever bizarre claims he or she would like. A refusal to allow a flesh and blood defendant to fire his or her counsel can be grounded in the existing law of self-representation and ensures that such defendants will not suffer from their decision to bring "the intellectual legacy of white supremacists" (18) into the courtroom.

1. THE FLESH AND BLOOD DEFENSE

   1. History

      1. The Posse Comitatus

         At the peak of its popularity among midwestern and Great Plains farmers in the 1970s and '80s, adherents to the Posse Comitatus movement held that the Founding Fathers intended to create a "Christian Republic" of individually sovereign citizens. (19) In a democracy, they believed, the poor could vote to create social welfare programs, whereas in a republic, "the individual [is] sovereign and the government ha[s] no power to enact laws that will loot and plunder the wealth produced by the sovereign individual." (20) The loosely organized group encouraged members to return identification cards and other government-issued documents in an effort to "reclaim their sovereignty." (21) In one of its more bizarre holdings, the Posse believed that Social Security numbers represented "secret government account[s]" through which the American populace was put up as collateral against the national debt. (22) Further, they asserted that one's name on the Social Security card and secret government account, spelled in all capital letters, represented a fictional legal construct, not "them--natural, live, flesh and blood men." (23)

         Members of the Posse and similar offshoot movements used the courts in an attempt to further their agenda. For example, one former Colorado dairy farmer sold indebted farmers a "kit" that assisted them in filing pro se lawsuits demanding millions of dollars from their mortgage banks and the Federal Reserve. (24) Not surprisingly, courts uniformly dismissed these suits as frivolous. (25) Posse members also recorded baseless liens against property owned by government officials--liens that were costly to clear and that may have remained undiscovered until the victim of the scam attempted to sell the property. (26) This bothersome tactic was also dead on arrival in the courts. (27) These activities stemmed from frustration and desperation with a slumping agricultural economy, inspiring Posse members to resort to "extralegal procedures that challenged the legitimacy of established systems of justice." (28)

         The Posse's activities were also defined by racial and religious supremacism, which fueled the Posse's views on law and government. For instance, "Christian Identity" was a "quasi-religious movement," or "theology," that preached the "Christian Republic" doctrine to Posse members, asserting that law in the United States was based in "Christian Common Law" rather than law created by legislatures. (29) Christian Identity "contended that the Constitution expressly forbids citizenship to Jews and people of color," and accordingly racial and religious minorities, as well as women, had "no legal standing in a Posse government." (30)

         Its name meaning "[p]ower of the [c]ounty" in Latin, the Posse Comitatus looked to ancient English common law to support its convictions that there were no legitimate forms of government higher than the county, no legitimate law enforcement authorities higher than the sheriff, and no legitimate judicial authorities higher than the Justice of the Peace. (31) The organization also derived inspiration from the Posse Comitatus Act of 1878, which constrained the federal government's ability to use the military on domestic soil to protect African-Americans, a move that ushered in the Jim Crow era. (32) Although the organization did respect a strict construction of the Constitution, believing it to be derived from God, Posse members did not believe any amendments passed after the Bill of Rights were legitimate because Jews and other minorities had ostensibly corrupted the government. (33)

         The Posse found many sympathetic ears across the country. A 1976 FBI report estimated the movement had 12,000 to 50,000 members encompassing seventy-eight chapters in twenty-three states, as well as at least ten times as many casual supporters. (34) As the agricultural economy soured in the 1980s, the Posse was increasingly successful in peddling its theories in middle America. (35) Though many farmers were too skeptical or busy to listen, some, who were desperate for hope in tough economic times, found something tenable in the organization's doctrines. (36) New members joined the Posse believing it would help them avoid legal and financial responsibilities that they could not fulfill. (37) The message "was not one contingent upon a kind of backwater ignorance"; rather, it was a frustrated reaction of people who felt they had 'lost control of their lives." (38) These feelings of desperation and fear are what unite the Posse Comitatus with Willie Mitchell and the flesh and blood defendants.

      2. From the Heartland to Baltimore

         As the agricultural economic crisis of the 1980s corrected itself, and as Posse Comitatus leaders died or were locked up, the movement sputtered. (39) However, the beliefs advanced by the Posse remained deeply rooted in middle America, often under the banner of the "patriot movement," which included the bombers of the Murrah Federal Building in Oklahoma City in April 1995. (40) After the Oklahoma City bombing, federal law enforcement began paying closer...