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Tag: hearing

Letter to the Court

October 11, 2018

Clerk of Court:
District Attorney:
Honorable Judge:

Regarding bond 18 CR 050313 which was forfeited. I implore your mercy and forgiveness for my failure to appear resulting in this forfeiture. I apologize for not immediately notifying the court after my absence which compounded the trouble. Although my circumstance is not an excuse, I humbly ask that you consider the circumstance surrounding this failure to appear:

I live in a very rural area with no taxi service and no public transportation. I have no drivers license and an even larger hindrance is that I have no vehicle. I was so new to the area that i had not been introduced to mg neighbors who may have been able to help with transportation. Living 10 to 20 miles from court and being unfamiliar with the roads here made walking/hitchhiking/or bicycling difficult. Regardless, i seek not to excuse my absence but to apologize for it.

That $15,000 “Cash Only” bond for the marijuana charge was extremely difficult to make. The surety signer, my employer, had to drive up from Asheville and the funds came from family in Colorado.

The subsequent case regarding my medicine research lab has a $300,000 bond which is impossible for me to make. My research findings are published online in Ph.D. medicine forums and I had expected that the rising interest in my publications would have lead to obtaining a sponsor or a research grant by now, however this lengthy incarceration has prevented that. Furthermore, at present I am unable to call upon family or friends to help me make this unreasonably high bond.

This pretrial detainment, without legal counsel, and in a facility without resources for referencing current law, case law, or general court rules and procedures leaves me significantly hindered from legal preparation.

In my current situation, the only bond I can possibly make is an unsecured appearance bond. Please find mercy on my situation and consider that my research work and nearly 25 years professional experience surrounding medicine and health care systems has the best intentions for society and the community. I submit that my case is misunderstood and the facts will reveal themselves. In the interest of justice, please entitle me to a presumption of innocence by granting me an unsecured bond.

Without any legal references I am unsure how to put myself on the court calendar to hear this motion. My resources have been unable to locate the 23rd Judicial District local rules of the District Court Division, however rule 14.1 for the 26th District states that “Attorneys requesting cases to be added should request the District Attorney to sign the addition slip” therefore this letter has been mailed in duplicate to both the DA and the Clerk of Court.

The extremely lengthy delay in my case in District Court bestows an unfair advantage to the prosecution who perpetually continues the case. Lacking reference for the 23rd District , in the 26th District rules 4.3b states that trial shall be within 30 days of charge. Rules 4.5 state factors to be considered when deciding continuances.

Rules 4.5 state factors to be considered when deciding to grant or deny a motion to continue:

a) effective assistance of counsel
b) the age of the case
c)the incarceration or detention status of the defendant

In consideration of all this, in the interest of justice, and presumption of innocence please grant this motion for an unsecured bond on the next available court calendar.

Furthermore, in the event that we can settle this matter in District Court, I am willing to negotiate. I admit to having been conducting my research without permits, however I have never been party to any sales of controlled substances neither was I in possession of any more than very small amounts consistent with research purposes. To reach a quick resolution, I will forego all civil charges against Ashe County for violation of Due Process, for Malicious Prosecution, for Defamation of Character in erroneous media publications, for confiscation of 138 items which were not subject to confiscation, and for the improper conditions during detainment. Otherwise all of these items will be submitted to the Federal US District Court in the form of a U.S.C. 1983 Civil Suit which is already largely prepared based on the history of this case which is published online at: http://www.GuiltyUntilProvenWealthy.home.blog

The ACLU is interested in representing my case. Please advise me if I should retain them or if we might come to a speedy resolution.

I hope that mercy and forgiveness might prevail between Ashe County and myself for our failures to adhere to proper procedures.

Sincerely,

Brian Aberle

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Motions in Court

The purpose of today’s hearing was because my court-appointed counsel withdrew from my case.  He said to me privately “you are in a hole – and digging it deeper with the website”.  I disagree.  The judge granted his request to withdraw.  I asked for “standby counsel.”  The judge said that would be an issue for Superior Court, and then asked the DA when it will be bound over to Superior Court.  The DA replied, “Maybe this year, if we can get it before the Grand Jury that fast.”

The judge read all six of my charges and the time I am facing for each charge – it’s something like 20 years total.  The DA said, “It is the policy of our office that pleas are only discussed with an attorney representing the defense, never directly with the defendant.”

I asked if I could file more motions at today’s hearing.  The judge said, “You may hand them to the Clerk of Court as you leave.”  They could not be read aloud and discussed today.  Garland Baker kindly said he would hand them to the Clerk and “have them served on the DA – which makes them valid.”  The four new motions were filed properly today:

September 20, 2018
Now comes Brian Aberle with this Motion for Discovery of Brady Material.  The constitution requires that prosecution disclose to the defense exculpatory evidence within its possession or control.  Therefore, I pray the Court order the information turned over to the defense.

September 20, 2018
Now comes Brian Aberle with this Motion to Suppress Evidence.  Following an arrest for mushrooms, the search warrant obtained was based on hearsay.  Thus, all evidence collected as a result of this illegal search warrant should be considered “fruit of the poisonous tree” and be deemed inadmissible.  Therefore, I pray the Court order this Motion to Suppress Evidence.

September 20, 2018
Now comes Brian Aberle with this Motion for Release of Evidence.  The laptop has no records of sales or any information supporting illegal activity.  If prosecution does not allege that it does, I pray the Court order that the property be returned because it contains invaluable research notes and information regarding neuro-medicine that will be used by the defense.

September 20, 2018
Now comes Brian Aberle with this Motion to Compel Discovery.  Following an aggressive search for two hours by ten men, I was arrested for mushrooms suspected to be hallucinogenic.  I suspect the mushrooms were common vegetables.  There was no probable cause for such an aggressive search and suspicion which resulted in the initial arrest.  Therefore, I pray the Court order that the mushrooms and the lab results from the mushrooms be available to the defense.  Please order prosecution to follow pretrial obligations to reveal evidence because discovery responses thus far are incomplete.

Discovery #2 of 3 – and Counting

This won’t be the last discovery; Motions to Compel notwithstanding, still missing are the lab results from the mushrooms, i.e. the probable cause for the original arrest.  Interestingly about the mushrooms that Brian harvested from his front yard, while they likely contained no psilocybin, they absolutely contained DMT.

Brian has truth and righteousness on his side, ACSO has search and seizure warrants based on hearsay if anything at all, and the public is witness to how they could be treated by ACSO.  As for the spectacle of how ACSO handles its business, certainly its “Grievance Process”:  I bet Sheriff Hartley is looking forward to December 31st.

Brian has his biggest “hearing” to-date tomorrow.  His third in as many weeks, in as many months.

Fish or Cut Bait

Brian caught the court with their pants down last week with his Pro Se defense; so this week, at his second appearance, the court accepted his dire motion to preserve evidence and then granted the DA’s request for a continuance – until the end of November!  Brian is already waiting for another hearing which is currently scheduled for October.

By the time I talked to Brian that afternoon, he was preparing for another two months inside the Ashe County Detention Center.  He’s already been there for three months.

Case Number:  2018050638 CR  (Offense Codes on the left, Statutes on the right):

  • 3522      Felony FELONY POSSESSION SCH I CS               90-95(A)(3) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(3) To possess a controlled substance.

Case Number:   2018050658 CR

  • 3346       Felony PWIM PRECURSOR-NOT METH             90-95(D1)(1)A 
    (d1)(1) Except as authorized by this Article, it is unlawful for any person to:
a. Possess an immediate precursor chemical with intent to manufacture a controlled substance;

    9968       Felony MAINTN VEH/DWELL/PLACE CS (F)      90-108(A)(7)

    (a) It shall be unlawful for any person:
(7) To knowingly keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled substances in violation of this Article for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this Article;

Case Number:  2018050892 CR

  • 3501      Felony MANUFACTURE SCH I CS                      90-95(A)(1) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;
  • 3522      Felony FELONY POSSESSION SCH I CS           90-95(A)(3) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(3) To possess a controlled substance.

Case Number:  2018050893 CR

  • 3515       Felony PWIMSD SCH I CS                                  90-95(A)(1) 
    (a) Except as authorized by this Article, it is unlawful for any person:
(1) To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;

 

Here’s the short-list of the charges, color-coded for clerical error/maliciousness:

2018050638 3522  Felony FELONY POSSESSION SCH I CS  90-95(A)(3)
2018050658 3346  Felony PWIM PRECURSOR-NOT METH  90-95(D1)(1)A
  9968  Felony MAINTN VEH/DWELL/PLACE CS (F)  90-108(A)(7)
2018050892 3501  Felony MANUFACTURE SCH I CS  90-95(A)(1)
  3522  Felony FELONY POSSESSION SCH I CS  90-95(A)(3)
2018050893 3515  Felony PWIMSD SCH I CS  90-95(A)(1)

 

 

Motion to Dismiss Retaliatory Charges

Brian has his second hearing today for his second round of felony charges.  Brian is moving to have them dismissed:

Sept 12, 2018
Now comes Brian Aberle, represented Pro Se, with this Motion to Dismiss.  These three felony charges were filed with Malice, Ignorance, and possibly Retaliation.

Malice – because they are nearly duplicate charges. They are nearly the same charge filed differently.  This is nearly double jeopardy.  This charge is also filed to be intentionally misleading because when a fraction of a gram is dissolved in 320 grams of liquid, the weight of the liquid is irrelevant.

Ignorance – because DMT is only one of the neurotransmitters present in the solution, along with the object of my research – serotonin.  Both are found naturally in the human body and in plants.  The District Attorney currently has DMT in his body.  Should he be charged for manufacturing 170 pounds of DMT, or would that be an incorrect charge?

Retaliation – because these charges were filed immediately after I called the Department of Health to inspect the jail due to over 50% of ‘F’ dorm having bacterial and skin conditions contracted while in custody.

Breakthrough Hearing

Brian’s two new felony cases – retaliation and punishment for a complaint to the Department of Health – were slipped into the Add-on docket of today’s Regular docket of the Main Courtroom.  The Add-on docket is for last-minute, unplanned cases – Brian’s case, as of today, is 77 days old – and he is still being held at the Ashe County Detention Center.

There are no transcripts or audio recordings from the District Court so only those present witnessed Brian wisely represent himself Pro Se, thus forcing the court to finally recognize him; he has thus far been denied an appearance before a court – in fact, he has not even been indicted on the first two felony cases.

Finally in the presence of public court, Brian reiterated his motions and filed them again with the Clerk of the Court and the District Attorney, which are republished again here:

“September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion To Preserve Evidence. Specifically, the laptop that was confiscated by ACSO contains my research work.  I research and publish in BOTH technology and medicine forums on the internet promoting academic and industry advancement.  My technology work is published at CodeProject.com under the project titled XMLFoundation and my medicine research is published at ResearchGate.net under the project titled “Neurodegenerative Disease Cure 2018”.

I need the laptop returned in the same condition it was taken – specifically do NOT wipe the hard disk and do NOT erase browser cookies containing website login information.

In the interest of justice and honest defense, as explained to the court on September 6, 2018 please order this Motion To Preserve Evidence and return the property to the defense since the prosecutorial team has had it in their possession for 77 days and had ample opportunity to seek for evidence of narcotic sales which I know for certain does not exist on the laptop because I do not sell the small amounts of research items I experiment with.

September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion for Discovery.  This motion was presented orally to the court on September 6 after asking the District Attorney if the 3 new felony charges were based on new evidence.  The District Attorney refused to answer the question, therefore I pray the court orders prosecution to release all evidence to myself without further delay.  The delays to date have been unacceptable and can no longer be tolerated because we are now under the time restraints of the Motion for a Fast and Speedy Trial which was also spoken orally to the court on September 6 and served in writing to the District Attorney, the copy served to the DA was marked received by the Clerk of Court on August 7, 2018.

September 6, 2018
Now comes Brian Aberle, represented Pro Se with this Motion for a Fast and Speedy Trial.  This motion was first filed in a letter dated August 1, 2018 and received and filed with the Clerk of Court on August 7, 2018 along with my motion to represent myself Pro Se pursuant to 15A-1242.  This motion asserts and reaffirms intentions filed on August 7, 2018.

September 6, 2018
Clerk of Court:
On September 6, 2018 Brian Aberle was before the court and on that day the District Attorney claims he did not receive documents that were marked received by the Clerk of Court on August 7, 2018.  I served him with my only copy of these documents other than the handwritten originals which are still in my possession.  Please mail me copies of these documents and copies of all Motions, Statements, and Letters on file with the Clerk of Court for the case of Brian Aberle who is represented Pro Se.

Thank you for your time on this important matter.”

In Brian’s own words:

I just got back from court.  I hope to God that the news was there.  I elected to represent myself in front of the courtroom.  I asked what my maximum sentence was:  130 months on just the three felonies that were before the judge.

First things first – Motion to Preserve Evidence – I told the court I am a medicine researcher and that the laptop contains evidence essential to my defense.  The judge said that the motion must be served to the DA’s office, I said “I thought that a motion filed with the Clerk of the Court is serving the DA.”  The judge was unsure of the procedure.

I said, “Since there were three new felonies filed, was there any new evidence?”  The District Attorney could not say or did not know?  WTF?  So I filed a Motion for Discovery of Evidence.  The judge said that the motion must be filed with the DA, I said it already was, and I have that motion right here stamped ‘received’ by the Clerk of the Court.  I served my copy to the DA right there.

The judge recommended that I use appointed-counsel.  I asked if I could retain my previously-appointed counsel as standby counsel.  The judge said, “I don’t think that North Carolina allows that anymore.”  I told him that the jail only gives me access to a law book that is 25 years old – and that book says that the court can appoint counsel as standby.  I asked the court to have the jail give me current legal reference – the judge said, “I don’t know what the jail must provide you with.”

See if the court proceedings were recorded, and if can you obtain the transcripts.

I hope the news was there.

God was with me.”