STATE OF MICHIGAN

IN THE MICHIGAN SUPREME COURT

__________________________________________________________________
Appeal from the Muskegon County Circuit Court
Judge
And
From the Michigan Court of Appeals
__________________________________________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,
Supreme Court No: 141513
v.
Court of Appeals No: 297182
SCOTT BENNETT HARRIS,
Defendant-Appellant.

_________________________________________________________________/

AMICI CURIAE BRIEF IN SUPPORT OF

THE DEFENDANT-APPELLANT

Mark Jackson, Pro Se

129 North Lowell Road
Windham, NH 03087
313-478-8061


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AMICI CURIAE INDEX
I.

STATEMENT
OF
JURISDICTION ................................................................................................... 1

II.

STATEMENT
OF
QUESTIONS
PRESENTED .............................................................................. 2

III.

INTEREST
OF
THE
AMICI
CURIAE ............................................................................................. 3

IV.
LEGAL
DISCUSSION ........................................................................................................................ 3

V.
CONCLUSION...................................................................................................................................... 8

VI.
EXHIBITS........................................................................................................................................... 9

VII.
VERIFICATION ............................................................................................................................... 9

VIII.
PROOF
OF
SERVICE ..................................................................................................................... 9





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INDEX OF AUTHORITIES
UNITED STATES CONSTITUTION
Article I § 9..…………………………………………………………………………………………page 20
Article IV......…………………………………………………………………………………………page 20
Article IV, Section 4......…………………………………....………………………………………page 31
3rd Amendment…………………………………………….…..….………………………………….page 15
4th Amendment…………………………………………….…..…….……………….………….pages 14,15
6th Amendment…………………………………………….…..…….…………….....….………….pages 29
8th Amendment…………………………………………….…..….…………..………………….page 22,33
14th Amendment…………………………………………….…..….…………..……………...…….page 38

MICHIGAN CONSTITUTION
Article I § 1…......……………………………………………………………………………………page 31
Article I § 11….…………………………………………...…………………………………………page 16
Article I § 12…………………………………………………………………………………………page 20
Article I § 16…………………………………………………………………………………………page 23
Article XI § 11….……………………………………………………………………………………page 24

STATUTES
Federal
H.R. 279, January 17, 1832, 22nd Congress, 1st Session.......................................................page 4

Michigan
MCL 750.165.....................................................................................................................page 1,

COURT RULES
MCR 2.613(C).......................................................................................................................page 39
MCR 6.102(B)………………………………………………….…………………………………….page 13
MCR 6.102(E)………………………………………………….…………………………………….page 16
MCR 6.302.....………………………………………………….…………………………………….page 28
MCR 6.302(A)………………………………………………….…………………………………….page 28
MCR 6.500…………………………………………………….…………………………….…………page 1


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MCR 9.104…………………………………………………….……………………………..………page 30

CASES
Federal
Ex Parte Watkins, 32 U. S. 568 (1833)...................................................................................page 3
Marbury v. Madison (1803)..................................................................................................page 32
United States v. Apfelbaum, 445 U.S. 115, 131 (1980)..........................................................page 5

Michigan
People v. Adams, 262 Mich App 89 (2004)......................................................................page 1,
Port Huron v. Jenkinson, 77 Mich 414 (1889)....................................................................page 1,

Other States
Bernard v. Palo Alto, 699 F. 2d 1023 (CA9 1983)...............................................................page 18
Lively v. Cullinane, 451 F. Supp. 1000 (DC 1978)..............................................................page 18
McGregor v. County of San Bernardino, 888 F. 2d 1276 (CA9 1989)…...…….……………page 18
Prieto Bail Bonds v. The STATE of Texas (1999) 994 S. W. 2d 316....................................page 27
Sanders v. Houston, 543 F. Supp. 694 (SD Tex. 1982)........................................................page 18
Scott v. Gates, Civ. No. 84-8647 (CD Cal. Oct. 3, 1988).....................................................page 18
Stine v. State, 908 S.W. .2d 429, 434 (Tex. Crim. App. 1995)..............................................page 32

OTHER
Code of Professional Responsibility.....................................................................................page 30
Michigan Judicial Institute © 2006–April 2009, Monograph 1, Page 23-24……...……page 13,14
Michigan Judicial Institute © 2006–April 2009, Monograph 1, Page 25……..…....…..page 16-17
Michigan Rules of Professional Conduct.............................................................................page 30


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 I. STATEMENT OF JURISDICTION

Amici adopts the jurisdictional statement as it appears in the appellant’s brief.


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 II. STATEMENT OF QUESTIONS PRESENTED

1. WHETHER THE RULE OF PEOPLE V. ADAMS, 262 MICH APP 89 (2004) –

HOLDING THAT INABILITY TO PAY IS NOT A DEFENSE TO THE CRIME

OF FELONY NON-SUPPORT UNDER MCL 750.165 – IS AN INCORRECT

READING OF THE STATUTE OR UNCONSTITUTIONAL, SEE PORT HURON

V. JENKINSON, 77 MICH 414 (1889);

2. WHETHER THE TRIAL COURT ABUSED ITS DESCRETION WHEN IT

DENIED THE DEFENDANT’S POST-SENTENCING MOTION TO WITHDRAW

HIS PLEA; AND

3. WHETHER THE TRIAL COURT ERRED WHEN IT ADOPTED THE CHILD

SUPPORT ARREARAGE AMOUNT THAT HAD BEEN DETERMINED BY

FAMILY COURT AS THE RESTITUTION TO BE IMPOSED IN THIS

CRIMINAL CASE, OR WHETHER THE DEFENDANT WAIVED THAT ISSUE.


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 III. INTEREST OF THE AMICI CURIAE

1. The issue before the court is one that affects the nature of due process and the tone of

cases before the court for years to come. It is a rare opportunity for the court to correct stare

decisis made in error by standing in the gap for those who cannot defend themselves.

2. For the reasons stated above, all citizens have an interest in this issue. The slippery slope

of criminalizing those who are unable to pay, among many issues presented in this case, is a slow

pattern of Constitutional provisions being negated in the eyes of the courts.

3. The amici has taken an oath to protect and defend the Constitution against all enemies,

foreign and domestic. It is for this reason that the amici approaches the court with this brief.

IV. LEGAL DISCUSSION

i. Introduction

a. The concept of “debtor’s prison” is not a new one. The founding fathers certainly

understood the concept well. Some of the signers of the Declaration of Independence even

experienced debtor’s prison, first hand, for unpaid debts. The writers of the Constitution and

the Bill of Rights specifically allowed the process in certain circumstances by not choosing to

address the issue.

b. However, Congress did see the abuses of debtor’s prison and the toll that it took on

individuals charged with owing a debt. Both criminal and civil penalties imposed on

someone amounted to harsher penalties than anyone faced in other “crimes”. A debtor could

be held in perpetuity, long past his/her initial sentence imposed and could stay imprisoned

until the debt was paid without means to pay that debt, see EX PARTE WATKINS, 32 U. S.

568 (1833). This irony is still highly contested, today.


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 c. On January 17, 1832, Congress addressed this issue by enacting H.R. 279, A Bill to

Abolish Imprisonment for Debt. This was a measure to end the debate for all time. Issues of

Debt, alone, would forever be a civil issue with civil penalties.

1st. “That it shall not be lawful for any of the Courts of the United States to issue a
capias ad satisfaciendum, or any other process, by which the body may be subject
to arrest or imprisonment, upon any judgment at law or final degree in chancery,
for payment of money founded upon any contract, express or implied, which may
have been entered into, or upon cause of action, which may have accrued after
the fourth day of July next; and upon all such contracts and causes of action after
judgment, imprisonment shall be totally and absolutely abolished.”

d. H.R. 279 goes on to explain that, “no bail or security for the appearance of any

defendant or defendants shall, hereafter, be required upon the service of the original or

mesne (middle) process issuing out of the courts of the United States...” The spirit of the Bill

is clear, no one should be jailed for a debt that they cannot pay.

e. The bill also later describes situations where deceit is present in trying to dodge the debt.

Even in those instances, H.R. 279 allows for compulsory processes and due process to

remain in tact, requiring that an “oath or affirmation “ be presented that shows good faith that

concealment is taking place.

f. Furthermore, the Michigan Constitution of 1962 in Article I § 21 states that,

1st. Article I § 21
Imprisonment for debt.
Sec. 21. No person shall be imprisoned for debt arising out of or founded on
contract, express or implied, except in cases of fraud or breach of trust.

g. The issue before the court is not if the law is constitutional, although it should be, or even

if enforcement of that law is constitutional, but rather, are the safeguards provided in

constitution, of a possibly unconstitutional law, being followed.


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 h. Michigan has adopted the Model Penal code. The model Penal code has made three (3)

necessary elements to be proven in a crime. The necessary elements of a crime include:

1st. a mens rea or “guilty mind” and

2nd. an actus reas or a “guilty act” and

3rd. an attendant circumstance.

i. In United States v. Apfelbaum, 445 U.S. 115, 131 (1980), Judge Renquest stated that, “In

the criminal law, both a culpable mens rea and a criminal actus reus are generally required

for an offense to occur.”

j. In the amici’s brief, the application of the principles and the principles of due process will

be applied to the facts of this case and the questions before this honorable court.

1. YES, THE RULE OF PEOPLE V. ADAMS, 262 MICH APP 89 (2004) – HOLDING

THAT INABILITY TO PAY IS NOT A DEFENSE TO THE CRIME OF FELONY

NON-SUPPORT UNDER MCL 750.165 – IS UNCONSTITUTIONAL.

a. The rule of People v. Adams, 262 Mich App 89 (2004) does not consider the issues of

mens rea or actus reus, nor does it comply with Article 1 § 9 of the U.S. Constitution nor

does it comply with Article I § 17 of the Michigan State Constitution:

i. Article I § 9 of the U.S. Constitution reads:

1. “No bill of attainder or ex post facto Law shall be passed.”

ii. Article I § 17 of the Michigan State Constitution reads:

1. “No bill of attainder, ex post facto law, or law impairing the obligation of

contracts, shall be passed.”


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 b. Once again, the mens rea of a crime is the “guilty mind”. In taking away the plea of

“Inability to Pay” as an affirmative defense, the defendant is left with limited options.

While many pleas might be available, examining the major plea options of “not guilty” or

“guilty”, the defendant is left with a legal quandary.

c. Assuming that the defendant does not have the means to pay the support obligation, in

full or in part, if the defendant chooses to plead “not guilty”, he/she has no defense to

stand on other than to offer up a defense of “inability to pay”. The defendant cannot

prove that he/she has paid the obligation because he/she has not. The defendant is simply

dragging on a process designed to convict.

d. A guilty plea is not an honest plea, either, when the defendant does not have the means to

pay. The defendant has not met the element of the mens rea. A plea of guilty would

amount to a perjurous statement. In taking away this affirmative defense, the court has

asked the defendant to lie to the court.

e. Maxims of law tell us that, “He is clear of blame who knows, but cannot prevent.” Dig.

50, 15, 50 and “In a criminal matter, the act does not make a person guilty unless

intention be guilty also.” Broom, Max. 270, 275; 7 Term. 514; 4 N.Y. 159, 163; 2 Bouv.

Inst. note 2211.

f. The actus reus is the “guilty act” that must be shown in order to convict and is generally

held that it is an “overt act”. The Model Penal Code says in § 2.01(1):

i. “A person is not guilty of an offense unless his liability is based on conduct which

includes a voluntary act or the omission to perform an act of which he is physically

capable.”


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 g. An omission to perform an act implies that a duty is required to perform the act and that

the ability is there to carry that act out.

h. The affirmative defense of “Inability to pay” is stating just that: the defendant does not

have the ability to perform; not even an order from this honorable court, can create

monies for the defendant to fulfill this obligation.

i. “Impossibility is an excuse in law.” Co. Litt. 29; Broom, Max. 223.

j. MCL 750.165 is not a Bill of Attainder. The amici is not suggesting to this honorable

court that it is. However, when the affirmative defense of “inability to pay” is

disallowed, it certainly has that force and effect in law.

k. Through genuine legislative attempts to safe guard spouses and children, the judiciary,

which should be aware of the elements of criminal statutes and the Model Penal Codes

and the intent in law, has essentially attached to this enactment a clause which renders it

indefensible for the indigent. The judiciary has given the executive branch the keys to

hold every indigent parent criminally liable.

l. Those defendants who cannot pay, logic would follow, cannot afford an attorney that

oversees and safeguards every detail of their case to ensure that support obligation

formulas are followed and accurately applied. Even if that were the case, the court can

imagine situations that might exist that make even normal support obligations, that would

otherwise be easy to fulfill, impossible to carry out, from time to time. Instead of latitude

and mercy, the state falls upon that individual with the full weight of the system, ensuring

that a conviction is a guaranteed outcome, as the law stands today.

m. This honorable court has not been asked to deal with the question of “if the defendant

truly cannot pay his obligations”, but rather if this is a viable defense. A myriad of


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 “criminal acts” have an affirmative defense. It is unfortunate that some of these events

take place, but the judiciary has provided that, sometimes, a greater harm occurs if there

are not exceptions provided in law, such as self-defense, necessity and insanity. The

court has acknowledged that, from time to time, extraordinary circumstances exist that

renders a defendant’s actions lawful. The court may not condone the act, but recognizes

the circumstances that lead to it.

n. As the law stands today, in combination with stare decisis and legislative enactments, it is

a crime to be a poor parent with a support obligation.

2. YES, THE TRIAL COURT ABUSED ITS DESCRETION WHEN IT DENIED THE

DEFENDANT’S POST-SENTENCING MOTION TO WITHDRAW HIS PLEA.

3. YES, THE TRIAL COURT ERRED WHEN IT ADOPTED THE CHILD SUPPORT

ARREARAGE AMOUNT THAT HAD BEEN DETERMINED BY FAMILY COURT

AS THE RESTITUTION TO BE IMPOSED IN THIS CRIMINAL CASE.

a. NO, THE DEFENDANT DID NOT WAIVE THAT ISSUE.

V. CONCLUSION

Respectfully Submitted,

______________________ Notary Stamp Here

Mark Alan Jackson


 8

129 North Lowell Road

Windham, NH 03087

313-478-8061

marcosagostos@gmail.com

VI. EXHIBITS

All exhibits have been attached to the end of this document and labeled.

A.

VII. VERIFICATION

I, Mark Alan Jackson, do swear and affirm that all statements made herein are true and

accurate to the best of my knowledge, in all respects.

Jurat

Signed
and
sworn
before
me
________________________________,
on
this
day,
the
_____
day
of

_________,
2010.

Notary
Signature:



____________________________________



VIII. PROOF OF SERVICE

To be completed by the court.

I certify on this date a copy of this motion was served upon the prosecutor by


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Personal Service: Mail:


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