shorty writ for mandamus to convene a grand jury

7/27/2019 Shorty Writ for Mandamus to Convene a Grand Jury

1/15

[Summary of pleading] - 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Pro SeDuane Gerald Davis, Sr.7904 Jody Knoll DriveOwings Mills, MD 21249(443) 831-1188

IN THE CIRCUIT COURT FOR MARYLAND

BALTIMORE COUNTY

Duane Gerald Davis, Sr. ))

Plaintiff ))

vs. )

)THE UNITED STATES, ) Case No.

)THE State of Maryland, )

)

Governor Martin OMalley, ) WRIT OF MANDAMUS)

Baltimore County Police Chief )James W. Johnson, )

)

Baltimore City States Attorney )Gregg L. Bernstein, )

)and )

)Baltimore County States Attorney )Scott D. Schellenberger, )

)in their official capacities and )as individuals )

)Defendants )

_______________________________________

WRIT OF MANDAMUS

Pro Se, upon personal knowledge of the facts contained in this complaint and the

contents of the documents referred to herein, and upon information and belief as to all matters


2/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

concerned, hereby brings this corruption and negligence protest action against all Defendants

and the UNITED STATES.

THE Conventions of a number of the States having at the time of their adoptingthe Constitution, expressed a desire, in order to prevent misconstruction or abuse

of its powers, that further declaratory and restrictive clauses should be added:

And as extending the ground of public confidence in the Government, will bestinsure the beneficent ends of its institution.

1

NOW COMES, Duane Gerald Davis, Sr., Under Duress, All Rights, by Special Appearance,

in accord with all of the Amendments to the Constitution of the United States of America, the

Maryland Declaration of Rights and the Maryland Constitution and hereby makes this demand

in the Nature of An Action for Writ of Mandamus, and request a hearing hereon, and as

grounds hereto states the following:

NATURE OF THE ACTION

Plaintiff in proper person, hereby respectfully submits the following, which led to the

theft of Plaintiffs property, as well as his identity.

JURISDICTION & VENUE

.

At all relevant times, Plaintiff has been and is an individual residing in Maryland.

Plaintiff is informed and believes and thereon alleges that at all relevant times, as contained in

this complaint, that Defendants have been and are individuals residing in Baltimore, Maryland.

1 Preamble to the US Constitution Bill of Rights,the First 10 Amendments to the Constitution as Ratifiedby the States December 15, 1791


3/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Plaintiff is informed and believes and thereon alleges that at all relevant times, as

contained in this complaint, that the City of Baltimore is a municipal corporation duly

organized and existing under the laws of the State of Maryland.

Plaintiff is a citizen of Maryland who alleges that Defendants violated rights conferred

upon him by the United States Constitution, Maryland State Constitution and other State and

Local Laws. Plaintiff filed a civil claim against the Defendants in the United States District

Court for the District of Maryland, pursuant to 28 USC 1331 upon the raising of a federal

question. The Circuit Court has jurisdiction to hear Plaintiffs claim.

INCORPORATION BY REFERENCE

Duane Gerald Davis, Sr. hereby incorporates by reference thereto the Corporate Surety

Bonds of Baltimore County States Attorney Scott D. Schellenberger, Baltimore County Police

Chief James W. Johnson, and Baltimore City States Attorney Gregg L. Bernstein, to this

action required by the Maryland Constitution at Article 5, Section 12 and hereby makes an

official claim against said bonds.

Duane Gerald Davis, Sr. hereby incorporates by reference thereto the Sworn and

Subscribed Oath of Office of Judge Susan Souder, Assistant Judge of the Third Judicial Circuit

Court of Maryland, a copy of which is attached hereto, and any corporate surety bond for

faithful performance to act within the bounds of the law and the discretionary dictates of her

own conscience in favor of her fellow Maryland Bar members.

DEMAND IN THE NATURE OF AN ACTION

FOR THE RETURN OF PERSONAL PROPERTY


4/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

That the Baltimore County Police Department by and through the Office of the States

Attorney of Baltimore County are in unlawful possession of the personal property of Duane

Gerald Davis, Sr. and are under a lawful duty to return said property undamaged and in the

good and proper condition in which it was confiscated by a purported search warrant that was

never served on Duane Gerald Davis, Sr.

The property includes but is not limited to a 1999 Charcoal Grey Chevrolet Suburban;

A Daily Diary from 1986 made of yellow legal papers; Black Legal Briefcase with legal

material, as well as, Private Business Organizational and Tax Papers; a Video Camera; a

Digital Camera; SD Cards; (9) Video Documentaries and Video Film, a book entitled The

Minority Report by Duane Shorty Davis; and various keys. The estimated value of the

above listed property is $250,000.00.

Duane Gerald Davis, Sr. is lawfully entitled to repossession of said property, and that

Scott D. Schellenberger is lawfully accountable to return the aforesaid property or the

monetary value thereof.

STATEMENT OF CLAIM

Plaintiff incorporates the Bill of Rights to the United States Constitution as reference

herein and presents that he was unlawfully detained due to prejudice and discrimination alleged

to have been demonstrated by the above named Defendants. Plaintiff was preparing a

documentary pertaining to racism in the American judicial system. The Defendants were fully

aware of the existence of this documentary, as well as were other public and elected officials in

the White House, United States Congress, and in Maryland and Illinois. Chief Justice John


5/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Roberts, of the United States Supreme Court went as far as instructing Plaintiff on how he

should proceed with his case, in light of his pro se status. Plaintiff further incorporates a

collection of public videos made by him and others, as evidence in this case and provides

detailed information sufficient enough to support the allegations contained in this complaint.2

There are approximately 238 videos available for public review internationally.

AMENDMENT I

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a redress

of grievances.

Plaintiff published a study entitled the Minority Report, which is the result of a social

economic study that applies directly to the issue of racism in the American judicial system and

relevant to the overall topic discussed. As a result of the aforementioned alleged illegal

incarceration of Plaintiff, this personal and intellectual property belonging to Plaintiff is

currently in the possession of the Baltimore County Police Department.

States Attorney Shellenberger had full knowledge of the events detailed in this

complaint since October of 2008, as he was the subject of one of 14 movies Plaintiff made

while researching content for the documentary.

AMENDMENT IV

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrantsshall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

2http://www.youtube.com/user/ShortysVoice.com


6/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Plaintiff is missing, among other things, a total of 285 hours of incriminating videotape

associated with this documentary, diary entries written in 1986 and 2008, during Plaintiffs

direct knowledge of unlawful prison conditions and inmate discrimination, letters to President

Barack OBama, the Washington, DC, Baltimore, and Chicago offices of the F.B.I., letters

from Maryland Court Judges Holland, Bell, Pierson, as well as the United States Supreme

Court.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time of War or public danger;

nor shall any person be subject for the same offence to be twice put in jeopardy of lifeor limb; nor shall be compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law; nor shall

private property be taken for public use, without just compensation.

When Plaintiff was indicted for the action giving rise to this complaint, Mr.

Shellenberger did not present the material confiscated as a result of a search warrant conducted

on his residence, which was done to mislead the Grand Jury and obtain an indictment against

Plaintiff. This evidence clearly shows the intent of Plaintiff, in relation to the actions

precipitating his chosen manner of demonstrating his First Amendment right to free speech by

demonstrating his displeasure with the Maryland Judiciary. The Plaintiffs right to Due Process

was violated by Mr. Shellenbergers foregoing of conducting a Preliminary Hearing prior to

the trial occurring, which is required by Maryland Rules of Procedure. Plaintiff immediately


7/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

fired his attorney and motioned for the Court to permit him to represent himself in the

proceedings, which is his Constitutional right.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have beencommitted, which district shall have been previously ascertained by law, and to beinformed of the nature and cause of the accusation; to be confronted with the witnessesagainst him; to have compulsory process for obtaining witnesses in his favor, and tohave the Assistance of Counsel for his defense.

As Plaintiff has, and is, representing himself in these actions, he has the right to

subpoena the Defendants and call them to testify before the Court, to produce all of the videos

and written material in his possession belonging to Plaintiff. This would demonstrate that

Defendants had prior knowledge of Plaintiffs actions and manner of expression, in relation to

his right to free speech.

In an action brought through the judicial process of Mandamus by William F. Brack

against J. Bernard Wells, State's Attorney of Baltimore City, the plaintiff sought to compel the

State's Attorney to present certain evidence to the grand jury. Generally, whether state's

attorney does or does not institute a particular prosecution is a matter which rests in his

discretion. Code 1939, art. 10, 33; Const. art. 5, 19.

Mandamus does not lie to compel state's attorney to institute a particular prosecution

unless discretion of state's attorney in such matter is grossly abused, or such duty is compelled

by statute, or there is a clear showing that such duty exists. Code 1939, art. 10, 33; Const. art.

5, 9.


8/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

The inquisitorial powers of the grand jury are broad, full and of a plenary character and

are not limited to cases in which there has been a preliminary proceeding before a magistrate or

to cases laid before them by the court or state's attorney, and the grand jury may investigate a

case which state's attorney, in his discretion, has decided not to present to that body. Code

1939, art. 10, 33; Const. art. 5, 9.

The Court further instructs that an individual who unsuccessfully had requested the

state's attorney to present to grand jury a case involving alleged violation of criminal laws, and

who also made a complaint before a magistrate and a warrant was refused, was entitled to an

opportunity to present his complaint to the grand jury for whatever action that body desired to

take.

A citizen desiring to bring to grand jury's attention alleged violations of criminal laws

should exhaust his remedy before the magistrate and state's attorney, and if relief cannot be had

there, citizen then may ask foreman of grand jury for permission to appear before that body.

By the Constitution of Maryland, Article 5, Section 9, the State's Attorney shall

perform such duties as may be law be prescribed. By section 33 of Article 10 of the Code, that

officer is required to prosecute and defend, on the part of the State, all cases in which the

State may be interested. In such prosecutions of persons accused of crime, he must exercise a

sound discretion to distinguish between the guilty and the innocent. He must be trusted with

broad official discretion to institute and prosecute criminal causes, subject generally to judicial

control.

The office is one not purely ministerial, but involves the exercise of learning and

discretion 42 American Jurisprudence, p. 245. As a general rule, whether the State's Attorney

does or does not institute a particular prosecution is a matter which rests in his discretion.


9/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

Unless that discretion is grossly abused or such duty compelled by statute or there is a

clear showing that such duty exists, mandamus will not lie. 38 Corpus Juris, p. 623; Boyne v.

Ryan, 100 Cal. 265, 34 P. 707; McLaughlin v. Burroughs, 90 Mich. 311, 51 N.W. 283; State v.

Talty, 166 Mo. 529, 66 S.W. 361.

Maryland law dictates that the adequate remedy to which a petitioner is entitled to is

that of personally presenting his case to the grand jury of Baltimore City. Whether the

petitioner should without formality present himself at the door of the grand jury room and ask

to state his case or whether he should communicate with the foreman of the grand jury and ask

for an opportunity to appear before that body is not for this Court to say. The members of the

grand jury in their oath prescribed by the common law, in addition to other things, swore that

they would diligently inquire and true presentment make of all such matters and things as shall

be given them in charge or shall otherwise come to their knowledge.

The inquisitorial powers of the grand jury are not limited to cases in which there has

been a preliminary proceeding before a magistrate nor to cases laid before them by the Court or

State's Attorney. Whatever may be the duties and powers of that important body in other

jurisdictions, in Maryland those inquisitorial powers are broad, full and of a plenary character.

The Court, speaking through Judge McSherry in the case of Blaney v. State, 74 Md.

153, 156, 21 A. 547, 548, said: However restricted the functions of grand juries may be

elsewhere, we holdthat in this state they have plenary inquisitorial powers, and may lawfully

themselves, and upon their own motion, originate charges against offenders, though no

preliminary proceedings have been had before a magistrate, and though neither the court nor

the state'sattorney has laid the matter before them.


10/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

The peace, the government, and the dignity of the state, the well-being of society, and

the security of the individual demand that this ancient and important attribute of a grand jury

should not be narrowed or interfered with when legitimately exerted. In that same case and at

the same reference is contained a very pertinent quotation as to the duties of the grand jury in

language which cannot be improved upon here: To them is committed the preservation of the

peace of the county; the care of bringing to light for examination, trial, and punishment, all

violence, outrage, indecency, and terror; everything that may occasion danger, disturbance, or

dismay to the citizen. They are watchmen, stationed by the laws to survey the conduct of their

fellow-citizens, and inquire where and by whom public authority has been violated or the laws

infringed.

These broad inquisitorial powers of the grand jury in this State have been further

affirmed in many other cases among which are: In re Report of Grand Jury, 152 Md. 616, 621,

137 A. 370; Coblentz v. State, 164 Md. 558, 566, 166 A. 45, 88 A.L.R. 886; Hitzelberger v.

State, 173 Md. 435, 440, 196 A.288. Under these broad inquisitorial powers the grand jury

may, of course, investigate a case which the State's Attorney, in his discretion, has decided not

to present to that body.

Upon the proper functioning of the grand jury the lives, security, and property of the

people largely depend in the case of In re Lester, Mayor, 1886, 77 Ga. 143, at page 148: It is

the right of any citizen or any individual of lawful age to come forward and prosecute for

offenses against the state, or when he does not wish to become the prosecutor, he may give

information of the fact to the grand jury, or any member of the body, and in either case, it will

become their duty to investigate the matter thus communicated to them, or made known to one

of them, whose obligation it would be to lay his information before that body. And further in


11/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

the case of State v. Stewart, 45 La.Ann. 1164, 14 So. at page 145, supra: It is complained by

the defendant that one S. A. Morgan, the leading state witness, went without summons or

request before the grand jury, and gave his own version of the case against defendant, and

instituted this prosecution. The witness had the undoubted right to go before the grand jury

voluntarily, and disclose his knowledge of the case. As a good citizen, it was his duty to do so.

No one can be excused for withholding knowledge of a crime from the public until he is

summoned to give his testimony of its commission. Hott v. Yarborough, 112 Tex. 179, 245

S.W. 676, supra.

It seems, therefore, from the cases herein cited, which might not be all on that subject,

that the right of a private person to appear before the grand jury to make a complaint has been

affirmed in the states of Louisiana, Alabama, Texas, and Georgia and denied in the state of

Pennsylvania and also denied in Tennessee where the witness was not under oath. The Illinois

Court seems to hold that there is adequate remedy before a magistrate and redress must be first

sought there.

The Federal decisions are not controlling, as there is a Federal statute on the subject.

The broad common law inquisitorial powers of the grand jury never have been curtailed by

statute in this state but have been reaffirmed as set out in the opinion in this case. As stated in

the opinion upon which this motion is based, this Court said in the case of Blaney v. State,

supra, 74 Md. At page 156, 21 A. at page 548: However restricted the functions of grand

juries may be elsewhere, we hold that in this state they have plenary inquisitorial powers, and

may lawfully themselves, and upon their own motion, originate charges against offenders,

though no preliminary proceedings have been had before a magistrate, and though neither the

court nor the state's attorney has laid the matter before them. This Court further said in the


12/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

case of In re Report of Grand Jury, 152 Md. 616, at page 622, 137, A. 370, at page 372:

Presentments are accusations of crime made by the grand jury from their own knowledge or

from evidence furnished them by witnesses or one or more of their members. If the

presentation of cases before the grand jury in Baltimore City is controlled entirely by the

State's attorney as the appellant contends in his brief, the question naturally arises as to why

thereshould be a grand jury. It has been the custom in many of the counties of this State for

private persons to make complaints to the grand juries. In this State no action has been taken to

do away with that important body.

CONCLUSION

While prosecutorial discretion is admittedly broad, the court has recognized that it is subject

to some judicial oversight. What the court has said on the subject in Brackv. Wells, is worth

repeating: By the Constitution of Maryland, Article 5, Section 9, the States Attorney shall

perform such duties as may by law be prescribed. By Section [34] of Article 10 of the [current]

Code, that officer is required to prosecute and defend, on the part of the State, all cases in which

the State may be interested. In such prosecutions of persons accused of crime, he must exercise

a sound discretion to distinguish between the guilty and the innocent. He must be trusted with

broad official discretion to institute and prosecute criminal causes, subject generally to judicial

control. 184 Md. 86, 90, 40 A.2d 319, 321 (1944) (emphasis added) (citation omitted) While, as the

court has recognized, that prosecutorial discretion is broad, see Evans v. State, 396 Md. 256, 298,

914 A.2d 25, 49 (2006)(States attorneys retain the broad discretion . . . in determining which

cases to prosecute, which offenses to charge, and how to prosecute the cases they bring.); see

also Beverly v. State, 349 Md. 106, 121, 707 A.2d 91, 98 (1998) (It is well-settled that the

determination of which criminal charges, if any, to bring is a matter of prosecutorial


13/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

discretion.); Sinclair v. State, 278 Md. 243, 252, 363 A.2d 468, 474 (1976) Because it is clear

that the states attorneys in this State have very wide and largely unreviewable discretion as to

whether or not to pursue the prosecution of criminal offenses, an independent investigation by

the Grand Jury should be commenced to ensure that justice and fairness is upheld in this case.

Respectfully Submitted,

Duane G. Davis7904 Jody Knoll DriveWindsor Mill, MD 21249(443) 831-118821st day of January 2013.

AFFIDAVIT

I, Duane G. Davis, state that I have read the Verified Complaint and that the same is true and

correct to the best of my knowledge, information and belief this 8 th day of August 2013.

Duane G. Davis7904 Jody Knoll DriveWindsor Mill, MD 21249(443) 831-1188


14/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

CERTIFICATE OF SERVICE

I, Duane G. Davis, Plaintiff in proper person in the above captioned matter do hereby solemnly

affirm that the contents of the enclosed Complaint has been forwarded on to the defendants by US mail on

the 8thday of August 2013., first class, postage prepaid.

Respectfully,

Duane G. Davis

7904 Jody Knoll DriveWindsor Mill, MD 21249(443) 831-1188

Dated this [Date]___________________________

[Attorneys' address]

[Attorneys' names]


15/15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

shorty writ for mandamus to convene a grand jury

Documents