PARENTAL RIGHTS

Even though witnesses (police officers) for the prosecutor testified that the defendant had complied with the affirmative defense part of the statute, he was still sentenced to 3 years in a New Jersey State Penitentiary. This was done in clear violation of N.J.C.J.C. 2C:1-13, "Proof Beyond a Reasonable Doubt; Affirmative Defenses; Burden of Proving Fact When Not an Element of an Offense". How this happened will be covered later. As previously stated: Mr. Weinstein was unlawfully charged with the crime of "Custody and Visitation Interference" under N.J.S.A. 2C:13-14 (a) as you will see from the following: "the Right of parents to care, custody, and nurture of their children is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and such Right is a fundamental Right protected under the I, V, XI and IVX Amendments." ( Doe v. Irwin, 441 F Supp. 1247, U.S. District Ct. of Mich)

Now before I go any further into case law that guarantees Mr. Weinstein the Right to have a loving relationship with his son, and his 2 year battle, I would like to bring to your attention that in another case, Bissell had threatened to take away the children from a witness if she did not cooperate. In other words, holding the children for ransom in return for cooperation. With this in mind, please consider the following.

"No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." (Carson v. Elrod, 411 F.Supp 645, 649) "The Right of the parent not to be deprived of parental Rights without a showing of unfitness, abandonment, or substantial neglect is so fundamental and basic as to rank among the Rights contained in this Amendment ( IX) to the Constitution." (J.P., Utah, 1982, 648 P.2d 1364) "Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of parental rights have more critical need for procedural protections than do those resisting state intervention into family affairs." (Santosky v. Kramer, 102 S. Ct. 1388, 455 U.S. 745) "Parents have fundamental constitutionally protected interest in continuing of legal bond with their children." (Matter of Delaney, 617 P.2d 886, OK) Yet, this legal and natural bond has been destroyed by the parties involved. In other words, the very system of justice that is suppose to uphold his rights have violated the laws of nature.

"The Court has frequently emphasized the importance of the family. The Right to conceive and to raise one's child have been deemed essential", (Meyer v. Nebraska, 262, U.S. 390, 399); "Basic civil rights of man" (Skinner v. Oklahoma, 316 U.S. 535 541); "The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (Goldberg, J. concurring) ". . . Thus the law was judicially construed to mean no power was delegated to the legislature to invade the great natural Rights of the individual." (MAINE'S, The Revival of Natural Law Concepts, pp. 112-113) This is where the separation of powers doctrine comes in. If the legislature cannot invade our Rights, the Judicial system which is their to uphold those Rights, surely cannot invade them from the Bench.

Sir/Madam "The liberty interest and the integrity of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parents custodial rights absent due process protections." (Langton v. Maloney, 257 F. Supp. 538) It is only natural that the courts ruled that a "Father enjoys the Right to associate with his children which is guaranteed by this amendment (1st) as incorporated in Amendment 14, or which is embodied in the concept of 'liberty as that word is used in the due process clause of the 14th Amendment and equal protection clause of 14th." (Mabra v. Schmidt, 356 F. Supp 620, U.S. District Ct. Wisc.) They even said, "The companionship, care, custody and management of his or her children is far more precious than any property Right." (May v. Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843) And, "The Due Process Clause of the 14th Amendment requires that severance in a parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake." (Bell v. City of Milwaukee, 746 F. 2d 1205 (U.S. Ct. App., Wisc.)

"Parent's interest in custody of his/her children is liberty interest which has received considerable constitutional protections; parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection." (In interest of Cooper, 621 P. 2d. 437, 5 Kansas, App. Div. 2d 584)

In the case of Smith v. City of Fontana, a federal appeals court ruled, "We hold that a child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable interest." (818 F2d. 1411, 9th Cir.) "It is cardinale with us that the custody , care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply or hinder." (Prince v. Massachusetts, 321 U.S. 158, 166) "Best interest of the children and the preservation of their relationship with noncustodial parent." (Holder v. Polanski, 111 N.J. 344) Judge Munkacsi and others were not trying to preserve the relationship between the father and son. Instead, they are destroying it. "Parental rights have been recognized as being essential to the orderly pursuit of happiness by free men." (Meyer v. Nebraska, 4262 U.S. 390, 43 S. Ct. 625) I think you will agree that family unity is the backbone for of any civilized society.

N.J.S.A. 9:2-4 states: "A parent shall not be deemed unfit unless the parent's conduct has a substantial effect on the child." Mr. Weinstein has never been found unfit by any court in the Land. In fact, on the contrary, Mr. Weinstein was found to be a good and fit parent by the Monmouth Court, as well as other evaluations.

In contrast, a report by Monty Weinstein, Psy. D.; M.P.A. (no relation to the defendant) stated: " Mr. Weinstein's concern for David's well being and his intellectual growth is clear and evident. The apparent bond that Barry had with his son David should not have been and should not continue to be severed. It is my professional opinion, that Barry and David Weinstein should have immediate access to each other and for an extended period of time so as to re-establish their essential mutual bond, for the benefit of David Weinstein's present and future well being . . . . It is also my professional opinion, that David's father, Barry Weinstein, be custodial parent with liberal visitation for Mrs. Weinstein. This is based upon my belief that Mr. Weinstein, as the custodial parent is thoroughly inclined to help nurture a flourishing relationship between David and his mother, and thereby establish a healthy perspective on life for David. This is certainly in the best interest of the child."

Imagine for one moment if you will, a Man fighting this corrupt judicial system for his God-given Right to see his Son for over 2 years. The judicial system is at fault, not Mr. Weinstein! Mr. Weinstein should never have been indicted for this offense to begin with. Due process thus imposes upon the prosecutor and obligation to find probable cause in order to safeguard against capricious prosecutions as confirmed by the following court decision: "The Fourteenth Amendment imposes a duty on state prosecutors to charge only upon ascertaining probable cause, it follows that one acting under color of state authority . . . can be liable for subverting the performance of that duty, as by maliciously tendering false information." (Wheeler, 734 F2d, 260) The Fifth Circuit analyzed the malicious prosecution in detail in Hand V. Gary, 838 F2d 1420. The court set forth these principles: 1) Bad faith prosecution violates constitutional Rights; 2) Those who join prosecutors in malicious prosecutions may be liable; 3) Simply obtaining an indictment is not enough to insulate state actors from an action for malicious prosecution. The defendant in Hand demonstrated that the prosecution was not malicious by showing that, prior to bringing charges, probable cause was re-ascertained, department procedures were followed, and no relevant information was withheld from the grand jury. This was not the case in Mr. Weinstein's instance. The Detective admitted that he did not investigate whether or not the defendants exwife had a valid court order. Instead he and the prosecutor simply took her word. This was nothing less than dereliction of duty on the part of Detective Lewis and a malicious prosecution on the part of the Prosecutor. In Thomas v. Kipperman, 846 F2d 1009 (5th Cir), the court found that the allegations that the defendant police officer maliciously supplied information knowing it was false, and that this information formed the basis for the plaintiff's arrest, detention, and prosecution, stated claims for false arrest, false imprisonment, and malicious prosecution under Section 1983. A civil action under Section 1983 is also criminal actions. "Absolute immunity does not extend to prosecutor's investigative or administrative acts." (Taylor v. Kavanagh, 640 F 2d 459) And, the "Title of office, quasi-judicial or even judicial, does not of itself immune officer from responsibility for unlawful acts which cannot be said to constitute integral part of judicial process." (Robichaud v. Ronana, 351 F2d 533)

Although an appeal is being prepared, "An appeal is not always a satisfactory remedy. The court itself has recognized that a Citizen's Rights may be seriously violated even if he is not ultimately convicted." (Dombrowski v. Pfister, 380 U.S. 479) The real issue is the crimes against him by the system that is suppose to protect his Rights. Mr. Weinstein has been fighting this out of control judicial system for his God-given the Right to have a loving relationship with his Son. Besides all the above, the divorce agreement clearly states that any visitation disputes would be handled by an arbitrator. So why is the State involved in this civil action with criminal proceedings? This is in violation of Article 1, Section 10: "No State shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

Furthermore, "Where rights secured by the Constitution are involved, there can be no rule-making or legislation which would abrogate them." (Miranda v. Arizona, United States Supreme Ct, decided June 13, 1966) Remember, "All acts of the legislature apparently contrary to natural rights and justice are, in our law unconstitutional and must be in the nature of things be considered void . . . We are in conscience bound to disobey such laws." (Robin vs. Hardaway, 1 Jefferson 109, Va., 1772). And that's just what Mr. Weinstein did! He has a Natural Right to be with his son! His Right comes from God, not government. As the Lord said: "Woe to those who enact evil statues, and to those who constantly record unjust decisions, so as to deprive the needy of justice and the poor of my people of their rights." (Isaiah 10:1-2) And, "Woe to you lawyers! For you weigh men down with heavy burdens [laws] hard to bear, while you yourselves will not even touch the burdens with one of your fingers . . . For you have taken away the key of knowledge; you did not enter in yourselves, and those who were entering you hindered. Therefore, you shall receive even greater damnation" (Luke 11:44 & 52)

Sir/Madam, there is a law for everything we do. Virtually every aspect of our life is governed by a law, code, rule, regulation, license, or permit. To turn love into a crime is despicable. Let me explain! Remember, his exwife fled the state of original jurisdiction and hid his son from him for ten (10) months in violation of "Custody and Visitation Interference" under N.J.S.A. 2C:13-14 (a) which states: "Custody of children. A person, including a parent, guardian or lawful custodian, is guilty of interference if he: Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child's other parent of custody or visitation of the minor child . . . ." Remember, Mr. Weinstein never intended to conceal his child, in fact he contacted two different police departments and notified them that he had his son and that he was going to file "protective custody papers" as confirmed by both witnesses for the prosecutor and signed affidavits from witnesses for the defendant (see attached). "Actus non facit reum nisi mons sit reu . . . . The act itself does not make a man guilty unless his intentions were so." (Brown's Legal Maxims, 226)

What is going on when a man has a divorce agreement which clearly states that the defendant, Mr. Weinstein shall have David, the son, "for the first and last night of Hanukkah; the first and last night of Rosh Hashanah; the first and last night of Passover; the day and night of Yom Kippur; the day and night of Purim, Sukkoth, and Simchas Torah; the parties shall alternate all major secular holidays; share David's birthday; shall have David on Mr. Weinstein's birthday and Fathers Day; and shall have David for 28 days of vacation each year" and he ends up in prison for exercising a valid court order. His wife, the prosecutors, and judge are the guilty parties, because for 10 months, Mr. Weinstein was denied the above visitation by his ex-wife and denied the Right to file the same charge against his former spouse for visitation and custody interference one week prior to his arrest. The very same crime his ex-wife also committed three times in the past. Yet, the very same police department and prosecutor failed to bring forth criminal charges against her and the judge aided and abetted the wrong doing. Is this what they mean by "don't do as I do, do as I say" But, what happened to the "goose and gander" routine, commonly known as "equal protection under the law"?

It has become a serious problem for non-custodial parents, especially the fathers to get county prosecutors to invoke the same law against recalcitrant ex-spouse who blatantly and routinely violate visitation orders and then "thumb their noses" at the family courts because they know the family courts and prosecutors are predisposed to gender bias against fathers who have court ordered visitation and are suffering interference.

If in reverse, a father were to return a child late or accused of custodial interference, prosecutors readily file criminal charges against said father [even when the father is in the right to not return the child as per the statute's affirmative defense under N.J.S.A. 2C:13:14 (c) (1)] in order to maintain the status quo of giving custody to 95% of the divorced women in New Jersey. Affirmative defenses used by fathers are routinely denied in cases where the child is in imminent danger of child abuse by the ex-spouse or someone else --whether it be emotional or physical abuse. Fathers, when asserting this affirmative defense section of the law are arrested, charged and tried for custodial interference even though the father was protecting his children. I ask you, "Is this equal protection under the law?" If what this man did is a crime, may God have mercy on the soul and spirit of our Nation. The crime has been committed by the law itself and the criminals are those who have conspired to subvert the Rights of Man. Mr. Weinstein should never had gone to trial to begin with.

As you can see, this was impossible being tried in a "kangaroo" court, because Judge Munkacsi knowingly, willingly, and intentionally denied him a fair trial. Judge Munkacsi, Bissell, and Special Prosecutor Barto made a mockery out of justice. The judge even denied over 95% of the defendants voidire, despite his objections. Once again, she violated the defendants 6th Amendment Right: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Her bias and prejudice towards the defendant in sentencing him to 3 years is in violation of N.J. C.J.C. 2C:44-1 "Criteria for Withholding or Imposing Sentence of Imprisonment": "In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances: The defendant's conduct neither caused nor threatened serious harm; The defendant did not contemplate that his conduct would cause or threaten serious harm; The defendant has no history of prior delinquency or criminal activity or has led a law abiding life for a substantial period of time before the commission of the crime; The defendants conduct was the result of circumstances unlikely to recur; The character and attitude of the defendant indicate that he is unlikely to commit another offense. . . " Remember, the defendant showed up for each and every hearing over a two and one-half year period and did not during said period make any further attempts to visit his son, nor would he ever do anything to harm his Son. "Laws and court procedures that are 'fair on the faces' but administered 'with an evil eye or heavy hand' was discriminatory and violates the Equal Protection Clause of the Fourteenth Amendment." (Yick Wo v. Hopkins, 118 U.S. 356)

On September 20, 1996, he was found guilty of the charges. And, On November 22, he was sentenced to 3 years in a New Jersey State Prison. Even during sentencing Judge Munkacsi continued to demonstrate her bias with such derogatory remarks as "Your children's music is nonsense". In addition to the 3 year sentence, she also sentenced him to 30 days for criminal contempt. And the 30 days is to run concurrent. In other words, 3 years and 30 days. For a first time offender! It just doesn't make sense when a violent criminals get away with murder and this innocent man gets 3 years plus, 30 days. That is, until we consider Judge Murphy's statement in his letter that "other attorneys, primarily public defenders and assigned counsel of that office received the most harsh sentence recommendation and plea bargains." The law is clear, "Conduct of trial judge must be measured by standard of fairness and impartiality." (Greener v. Green, 460 F2d. 1279 Judge Munkacsi's standard of fairness and impartiality was definitely lacking. And, therefore, "There is no judicial immunity from criminal liability." (Shore v. Howard, 414 F.Supp. 379) " . . . . The judge who knowingly turns a trial into a 'Kangaroo court'? Or one who intentionally flouts the Constitution in order to obtain conviction? Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil Rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil Rights." (Pierson v. Ray, 386 U.S. 547, Justice Douglas, dissenting)

During the sentencing hearing, Special Prosecutor Barto, yelled "Put him in". In other words, send this first time innocent offender to prison. His actions were nothing less than "Vindictive conduct by persons with the awesome power of prosecutor and judge is unacceptable and requires control." (U.S. v. Andrews, 633 F2d. 499) Once again, I refer you to Judge Murphy’s letter concerning the prosecutor’s office. And, the courts have ruled, "Where prosecutor faces an actual conflict of interest and files charges he or she knows to be baseless, prosecutor is acting outside of scope of his or her authority and thus lacks immunity." (Beard v. Udall, 648 F2d. 1264) The court records will support Judge Murphy's statement in his letter that "Assistant Prosecutors were intimidated by the Prosecutor and were much more concerned with facing him after an acquittal than achieving unjust result." Unfortunately, their "dastardly deeds" and need to achieve volume dispositions to the detriment of just results has sent an innocent man to prison. Sir/Madam, you, the Grand Jury hold the power to correct this wrong.

To further illustrate the unequal protection of law, according to newspaper articles, Mrs. Bissell was convicted along with her husband of several counts, including "Racketeering". She was facing a minimum ten (10) year sentence. However, she was shown leniency and was sentenced to only 28 months. The reason for the leniency? "The children!" Can you imagine that? The very system that has deprived a loving father and son a relationship with each other, shows leniency towards Mrs. Bissell because of her children. This kind of travesty of injustice is enough to make the angels weep.

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