Hello Whitney,
Saari, Claudia
Thu 1/26/2017 9:13 AM
To: Gibbs, Whitney <wgibbs@dekalbcountyga.gov>;
Cc: McGaughey, Ingrid <ijmcgaug@dekalbcountyga.gov>;
Whitney,
Can you please contact Mr. Avery and see if he wants to appeal and if so, will he hire his own attorney or does he want the court to appoint us to represent him on appeal. This was quite a case and it appears to me there are some excellent issues to appeal. I also heard that you did a wonderful job representing a very challenging client.
Thanks,
Claudia
Claudia S. Saari
Circuit Public Defender
Law Office of the Public Defender
DeKalb County, Stone Mountain Circuit
320 Church Street
Decatur, GA 30030
404.371.2222
cssaari@dekalbcountyga.gov
As you were the public defender representing me during the trial, would it be possible of me getting you replying back to me with an email repeating as much as you can remember me explaining as to my reasons why I was not going to appeal this case? I've gotten absolutely nothing but stone cold silence from Ingrid and Claudia in my multiple emailed attempts getting an answer as to what was told these two? Maybe nothing was told to them? All I know is that there was no mention of any discussions about me appealing this case among the requested copy of file I"m having with our Law Office of Public Defender DeKalb County except for a copy of the above email to you from Circuit Public Defender Claudia Saari. So it seems to me an answer to this email should also have been included in this file I'm having with our Law Office of Public Defender DeKalb County?
Also...
As this discussion as to why I was not appealing this case took place preceding the first hearing after the trial where the Terms and Conditions of Probation Agreement explained to me, could you tell me the name of the gentleman having accompanied you to this hearing in place of Public Defender Ingrid McGaughey? What was his reason (responsibility) accompanying you to this hearing? He was standing right beside you when you inquiring about me appealing this case.
Also...
By any chance did Ms. Saari discuss with you any of what she thought "excellent issues to appeal?" Possible of you sharing this information with me? Again, nothing but stone cold silence in my multiple attempts with Ingrid and Claudia getting an answer to this concern of mine as well!
Also...
THE COURT: ALL RIGHT. THE COUNTY HAS RESTED. DOES THE DEFENSE HAVE ANYTHING IT WISHES TO PRESENT?
MS. GIBBS: THE DEFENSE DOES NOT WISH TO PRESENT ANY WITNESSES AT THIS TIME, YOUR HONOR.
THE COURT: OKAY. DOES THE DEFENSE HAVE ANY MOTIONS OR ANYTHING ELSE FOR THE COURT TO CONSIDER?
MS. GIBBS: YES, YOUR HONOR. I GUESS AT THIS POINT I WOULD MOVE FOR A JUDGMENT OF ACQUITTAL ON ONE OF THE CITATIONS. MR. AVERY WAS CHARGED WITH 11 TOTAL CITATIONS. ONE -- THERE WAS NO EVIDENCE PRESENTED FOR ONE CITATION ON SEPTEMBER 17TH AND I WOULD MOVE FOR A JUDGMENT OF ACQUITTAL ON THAT CITATION AS NO EVIDENCE WAS PRESENTED THAT HE WAS OVER THE SQUARE FOOTAGE SIGNAGE FOR THAT DATE.
MR. GETZ: THAT'S CORRECT, YOUR HONOR. THAT'S CITATION 028257 AND THE COUNTY DID NOT PRESENT ANY EVIDENCE ON THAT MATTER. SO THERE NO EVIDENCE ON THAT
BEFORE THE COURT, SO THAT MOTION IS PROPER.
THE COURT: ALL RIGHT. SO I WILL DIRECT THE JUDGMENT OF ACQUITTAL AS TO CITATION 028257 RELATED TO THE DATE OF SEPTEMBER 17, 2016.
MS. GIBBS: THANK YOU, YOUR HONOR.
THE COURT: YES, MA'AM. ALL RIGHT. IS THERE ANYTHING ELSE?
(NO RESPONSE)
plus
MR. GETZ: THE COUNTY'S RECOMMENDATION IS GOING TO BE AN AGGREGATE SENTENCE OF 24 MONTHS OF PROBATION. SO THAT WOULD REQUIRE AT LEAST FOUR COUNTS TO RUN CONCURRENT OR CONSECUTIVE TO EACH OTHER BECAUSE THE MAXIMUM PENALTY FOR EACH OF THE INDIVIDUAL CITATIONS IS A HUNDRED AND EIGHTY DAYS.
THE COUNTY WOULD ASK THAT THE COURT IMPOSE A $1,000 FINE, THAT THAT FINE BE IMPOSED. THE COUNTY WOULD THEN ASK THAT $9,000 IN FINES BE SUSPENDED UPON COMPLIANCE WITH THE LAW AND ALSO THAT THE COURT AS A CONDITION OF PROBATION PRECLUDE ANY SIGNAGE OR ANY SUCH DISPLAYS FROM BEING PRESENT IN THE YARD AT 1840 MASON MILL AVENUE (SIC). THAT WOULD BE A CONDITION OF PROBATION THAT'S REASONABLY RELATED TO REMEDYING THIS ONGOING SITUATION, AND THE LAW WOULD GIVE THE COURT THE ABILITY TO IMPOSE SUCH A RESTRICTION ON SIGNAGE AND OTHER SUCH DISPLAYS IN THE YARD UNDER THAT THEORY. IT WOULD BE EQUIVALENT, YOUR HONOR, TO, SAY, A FOURTH AMENDMENT WAIVER IN A DRUG CASE, WHICH THE COURTS HAVE SAID IS REASONABLE BECAUSE IT IS DESIGNED TO REMEDY A SITUATION WHICH CREATES AN ONGOING PROBLEM.
YOUR HONOR, WE WOULD ASK THAT THE $9,000 IN SIGNAGE (SIC), THAT THAT BE SUSPENDED UPON COMPLIANCE, AND WE WOULD ASK THAT THERE BE PERIODIC STATUS CHECKS ON THIS CASE AND THAT EACH 90 DAYS THAT -- WHAT WOULD THAT BE -- THAT EACH 90 DAYS A THOUSAND DOLLARS OF THAT FINE BE SUSPENDED TO GIVE THE DEFENDANT AN INCENTIVE TO DO WHAT HE IS SUPPOSED TO DO UNDER THE LAW AND TO STOP THIS BEHAVIOR THAT'S CAUSING PROBLEMS FOR THE FOLKS OUT IN THE
COMMUNITY.
THE DEFENDANT: WHAT BEHAVIOR?
MR. GETZ: (TO THE GALLERY): WHO IS IT THAT WOULD LIKE TO -- IT'S MISS HINKLE; IS THAT CORRECT?
MISS HINKLE: YES.
MR. GETZ: MA'AM, IF YOU WOULD PLEASE COME FORWARD.
MISS HINKLE: (COMPLIES)
MR. GETZ: JUST STATE YOUR NAME FOR THE COURT AND LET THE JUDGE KNOW WHAT YOU WOULD LIKE HIM TO CONSIDER.
THE WITNESS: MARY HINKLE. AS YOU CONSIDER SENTENCING MR. AVERY, I HOPE YOU WILL REVIEW THE STATEMENTS THAT MR. GETZ HAS MADE AVAILABLE TO YOU FROM
OUR NEIGHBORHOOD AND CONSIDER THAT OUR NEIGHBORHOOD HAS ENDURED MR. AVERY'S SIGNAGE AND DISRESPECTFUL BEHAVIOR FOR THE PAST SIX YEARS. THROUGH HIS SIGNAGE, BEHAVIORS, E-MAILS, AND BLOGS, HE HAS SHOWN US CONTEMPT, VILLIFIED OUR LEADERS, AND THREATENED OUR NEIGHBORHOOD.
WE DO NOT COME BEFORE YOU IN A CAPRICIOUS OR LIGHTHEARTED MANNER BUT WITH A HEAVY HEART. WE CAN NO LONGER DEAL WITH OUR NEIGHBOR BY OURSELVES. WE NEED YOUR HELP AND SO DOES HE.
SINCE THIS IS A CODE-VIOLATION TRIAL, OUR VIEW IS THIS. WHEN PEOPLE CHOOSE TO BECOME PROPERTY OWNERS IN DEKALB COUNTY, THEY INHERENTLY ASSUME THE RESPONSIBILITY OF LIVING WITHIN THE RULES AND REGULATIONS OF THE COUNTY.
THIS CODE SETS FORTH JUST THE MINIMUM STANDARDS THAT WE AS PROPERTY OWNERS ARE EXPECTED TO FOLLOW FOR PROPERTY USE AND HEALTH AND SAFETY ISSUES IN THE MINIMUM STANDARDS THAT WE EXPECT OUR NEIGHBORS TO FOLLOW. EVEN IF, AS IN THE CASE OF MR. AVERY, WE BECOME ANGRY AT COUNTY GOVERNMENT, COMMUNITY INSTITUTIONS --
THE DEFENDANT: (INDISCERNIBLE)
MISS HINKLE: -- OR OUR NEIGHBORS, WE ARE EXPECTED TO ADHERE TO THESE ORDINANCES AND CONDUCT OUR BEHAVIOR ACCORDINGLY.
FOR THE PAST SIX YEARS, MR. AVERY HAS VIOLATED THE CODE CONTINUOUSLY TO THE DETRIMENT OF OUR NEIGHBORHOOD. HIS SIGNAGE AND BEHAVIORS HAVE HAD A NEGATIVE IMPACT ON OUR RESIDENTS' PROPERTY VALUES AND OUR EMOTIONAL HEALTH AS DESCRIBED IN THE STATEMENTS. MOREOVER, HE HAS FLAUNTED HIS COMPLETE DISREGARD FOR OUR NEIGHBORHOOD AND THE JUSTICE SYSTEM BY CONTINUALLY MOUNTING AN EXCESSIVE NUMBER OF SIGNS AND INFLATABLES ON A DAILY BASIS IN SPITE OF RECEIVING NUMEROUS CITATIONS.
HIS BLOG AND E-MAILS SUGGEST THAT HE FINDS ALL OF THIS HUMOROUS AND THAT HE IS, QUOTE, "PLAYING A GAME WITH US." WELL, WE DO NOT VIEW HIS SADISTIC AND ANTAGONISTIC BEHAVIOR AS A GAME NOR DO WE FIND IT HUMOROUS. WE ASK THAT THE COURT SENTENCE HIM IN SUCH A MANNER THAT WILL ENSURE HIS ADHERENCE TO THE CODE --
THE DEFENDANT: SHE'S GOING TO KILL ME.
THE WITNESS: -- AND PROTECT OUR NEIGHBORHOOD. WE ALSO ASK FOR A SENTENCE THAT WILL GUARANTEE HIS FACING MORE SERIOUS CONSEQUENCES IF HE CONTINUES TO VIOLATE THE CODE AND THREATEN OUR RESIDENTS.
(APPLAUSE FROM THE GALLERY)
THE DEFENDANT: (INDISCERNIBLE)
(DEFENDANT GESTURED TO THE GALLERY.)
THE DEFENDANT: DON'T FORGET CHARLES DUCK BECAUSE THAT'S PAID BY TAXPAYER'S EXPENSE IN JAIL IN (INDISCERNIBLE) TENNESSEE.
MS. MCGAUGHEY: ALL RIGHT.
THE DEFENDANT: THAT'S IT.
THE COURT: ALL RIGHT. I'LL HEAR FROM THE DEFENSE.
MS. GIBBS: YES, YOUR HONOR. WHILE WE MAINTAIN THAT MR. AVERY IS NOT COMPETENT TO STAND TRIAL, WITH RESPECT TO YOUR HONOR'S FINDING THAT HE HAS BEEN FOUND GUILTY OF THESE CITATIONS, WE WOULD ASK THE COURT TO CONSIDER THAT MR. AVERY IS CURRENTLY UNEMPLOYED AT THIS TIME.
AND REGARDING THE STATE'S REQUEST THAT THE COURT PRECLUDE ANY SIGNS BEING POSTED IN HIS YARD, YOUR HONOR, WE WOULD ASK THAT THE SIGNS NOT -- IF THERE WAS A CONDITION IMPOSED BY THE COURT, THAT IT WOULD BE ONE THAT WAS IN ACCORDANCE WITH CODE ORDINANCE WHICH STATES THAT THEY CAN'T BE OVER THE SIGNAGE LIMIT, THE 24 SQUARE FEET. BUT TO RULE OR TO STATE THAT MR. AVERY DOESN'T HAVE -- OR CANNOT POST ANY SIGNS IN HIS YARD IS CERTAINLY INTRUSIVE UPON HIS RIGHTS TO EXPRESS HIMSELF AND CERTAINLY NOT ANALOGOUS TO A FOURTH AMENDMENT WAIVER WHICH HAS TO DO WITH SEARCH AND SEIZURE OF A PERSON'S PLACE AND PROPERTY AND IT HAS NOTHING TO DO WITH MR. AVERY'S RIGHT TO -- FIRST AMENDMENT RIGHT TO EXPRESS HIMSELF.
SO, YOUR HONOR, WE WOULD ASK THAT YOU WOULD KEEP ALL OF THOSE FACTORS IN MIND AS YOU ARE MAKING YOUR DECISION ON SENTENCING.
Really do believe the prosecution planted these two technicalities for you finding during this sham trial. Just another manipulative deception by DeKalb County's elective representatives posing for the applause of an undiscriminating general public that's not to be understood by the uninitiated; Emory's leadership silently consenting.
So...
DEFENSE CLOSING ARGUMENT
MS. GIBBS: YOUR HONOR, THIS CASE IS IN PART -- SEEMS TO BE KIND OF TWO BIFURCATED ISSUE FOR THIS -- OR ISSUES FOR THIS TRIAL.
THERE IS THE -- ON THE ONE HAND, THE ARGUMENT OR ISSUE OF MR. AVERY'S RIGHT TO HIS SPEECH, TO HIS FREE SPEECH, YOUR HONOR. IT'S BEEN TESTIFIED HERE TODAY THAT MR. AVERY PUTS THE SIGNS OUT IN HIS YARD. HE CREATES THE SIGNS, PLACES THEM IN HIS YARD TO EXPRESS HIS OPINION. YOU KNOW, HE USES HIS -- USES HIS PROPERTY AS A PULPIT, IF YOU WILL, TO EXPRESS HIS OPINIONS ABOUT -- ABOUT THE --
MR. GETZ: YOUR HONOR, THAT'S NOT REALLY APPROPRIATE ARGUMENT BECAUSE THE CONTENTS OF THE SIGNS ARE NOT AT ISSUE FOR THESE VIOLATIONS.
THE COURT: I WOULD TEND TO AGREE. THERE HAS BEEN NO -- THE CITATIONS THAT ARE ISSUED DON'T APPEAR TO RELATE IN ANY WAY TO THE CONTENT OF THE SPEECH CONTAINED IN THE SIGNS, AND YOU WOULD HAVE TO BE MAKING AN ARGUMENT THAT THE PARTICULAR RESTRICTION, LIMITING IT TO NO MORE THAN 24 SQUARE FEET, IS ESSENTIALLY A DENIAL OF THE FIRST AMENDMENT RIGHT TO FREE SPEECH. THAT'S A CONSTITUTIONAL ISSUE THAT WOULD NEED TO HAVE BEEN RAISED AND IT WASN'T.
SO I WOULD UNDERSTAND THAT ISSUE'S NOT BEFORE THE COURT.
MS. GIBBS: YES, YOUR HONOR.
Why was there not a demurrer arguing that the particular restriction, limiting my signs to no more than 24 square feet, is essentially a denial of the first amendment right to free speech? Based on what our acting President of Mason Mill Civic Association Mary Hinkel having to say, seeming to me...CONTENT...of these signs...EXACTLY...what we should have been the focus of this trial?
Certainly did play a role in the sentencing!
Sincerely yours,
Simply Jim
P.S. Why were all these emails from me to our Law Office of Public Defender DeKalb County not also included in my file with them?! Certainly do not consider emails sent from me to be Attorney generated work-product!
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