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Phoenix Goddess Temple Tracy 4 Motions denied
04-27-2018, 01:06 AM (This post was last modified: 04-27-2018 01:16 AM by davephx.)
Post: #1
Phoenix Goddess Temple Tracy 4 Motions denied
Details of Tracy's New Motions April 2018 to Court of Appeals - all denied

Here are the 4 motions denied and my non-lawyer comments for what they are worth. I totally support Tracy, always have and for the decriminalization of private consenting adult prostitution. Sadly, with the recent loss at the 9th Circuit, there is little hope for decriminalization at least in this decade.

Motion 1: Motion To Amend Or Refile Opening Brief
Is 40 pages with attachments.

I enjoyed her "flowers and fruit baskets" comment. However, while I am on her side, her motion is simply a rehash of arguments already in the record, her teaching and other mostly irrelevant issues legally.

Her lawyers original brief in my view was a concise legal argument on religious grounds, The original brief does a good job in my non-lawyer view that her rights to due process were violated when because of being in Rule 11, she was excluded from the evidentiary hearing related to State's motion to exclude a religious defense. Since there was no objection the States motion was to exclude religious defense was the rule for the trial. The original brief also went into the really only relevant legal issue Arizona's FERA (Free Exercise of Religion Act), compelling state interest and least reasonable means. These are the concise issues in my view that can be raised on this appeal. The brief has good with cites and references to the law. It is a good legal brief in my view, although misses what I would argue - no fee arrangement that is required for what the case is about - prostitution not religion.

Tracy's motion is mostly her "teachings" and non-existent right to break State prostitution laws - for which religion, in general, is not an excuse - except for FERA which the original opening brief argues. Tracy brings up such issues as the Temple being sacred ground blessed by the ONAC elders, which in my view is totally irrelevant. Most of her motion is rehashing of what is already in the record and of little relevance to the actual legal issues or a challenge to specifics of the trial court rulings.

I have often suggested a fruitful argument may be the lack of a fee arrangement required under Arizona law to be prostitution. Accepting suggested but not required donations after the fact would not seem to be a "fee arrangement". As Nevada brothel owner Dennis Hof, testified just asking for money afterward not negotiating before services rendered is no way to run a business (and in my view not a "fee arrangement.")

Her huge attachments of prior motions are already in the record and all denied at trial with for the most part irrelevant arguments to the legal issues.

Motion 2: To Waive Right of Counsel and Proceed Pro Per (act without counsel). She did this at the trial which in my view was a huge mistake. 18 pages.

I understand why Tracy is so frustrated from this part of her motion saying after a phone discussion with appointed counsel Mays, she (Mays) discouraged her from expecting a positive outcome on appeal. "This is unacceptable...(since she seeks to set precedent for her faith). Dave notes her faith is not an issue - prostitution is the issue unless the exemption under FERA applies.

She argues the opening brief was only 3.633 words when up to 14,000 are allowed. In my view, the original brief was concise on the relevant issues other than any mention of the "no fee arrangement" argument.

Tracy thinks her appeal should include the contextual story how the Temple serves the community etc... all irrelevant to the legal issues and an appeal.

She does accurately address a few technical issues. Or, why she was in Rule 11 at the time of the religious exclusion motion - "to stop the prosecutors from calling her a 'crazy, charismatic cult leader.'"

An interesting point - I have mentioned the reason I thought the two defendants did not oppose the motion to exclude religion because as I recall, Tracy told me that the judge told her she would have to admit guilt of prostitution in order to use the religious defense. This doesn't fully sound right to me. However, in this motion, Tracy says her original attorney (Vigileos) advised her not to declare any affirmative defenses (such as FERA?) since it would require an admission of guilt.

Tracy does make "my" argument (I reminded her of this at various times) that they didn't offer "sexual conduct" for a "fee arrangement". However, then she goes on with a "priestess" freedom of religion argument vs. quoting the Arizona statute regarding the requirement of a "fee arrangement" for prostitution - and addressing the prostitution issue, not religion.

Motion 3: Petition - to proceed Pro Per
Argues that because she has been informed by her attorney "she should 'not expect to prevail on appeal,'" she can do a better job of defending the case. The motion is 31 pages mostly including as attachments many motions from the trial that are I assume already in the court records.

Motion 4: Stay of Execution & Credit for Time
38 pages.

Is confusing. Mostly an attack on the trial court with many arguments and that her case will be reversed on appeal. Argues Judge Stevens "instructed the (sympathetic) jury to give zero consideration to the U.S. an Arizona constitutions, which protect religious freedom". Again, ignores the fact it is clear there is no U.S. constitutional protection from state crimes and her attorney in the original brief did a good concise argument for AZ FERA law (isn't AZ constitutional issue). The judge gave the instruction to ignore religious issues because there was no objection to the States motion to exclude religious defenses so it was so ruled by Judge Welty, later McMurdie and then Stephens simply followed the ruling. This issue was well covered by denial of due process argument again by her lawyer's opening brief.

Tracy argues should have been released in custody of her church - ONAC- or her family without bond. In discussing the case with attorney's at the time I was told it was very unusual in a State case to stay prison after conviction. It was more likely in a Federal case.

Conclusion
I understand Tracy's frustration but she is trying to re-litigate the case which is not what an appeal does. An appeal is a narrow focus on significant reversible error made by the lower court. No new evidence is allowed, only what was presented at the original trial - only arguments as her attorney did in the opening brief such as the violation of her right to due process since she never had a chance to challenge the State Motion to Exclude Religious Defense which again in my non-lawyer view is a legitimate appeal issue.

The Appeals Court within a few days denied all of these motions and ordered they be returned to her by mail. I assume this means they are totally rejected and will not have any consideration by the court, although the filings are in the public record.]
Attached are four motions.
These views are purely editorial and do not reflect the specific legal strategy of any case. I am not a lawyer; any legal issues should be addressed by a competent attorney.


Attached File(s)
.pdf  0000-MotionToAmendOrRefileOpeningBriefCertificateO-02882776-0.pdf (Size: 1.37 MB / Downloads: 7)
.pdf  0000-MotionToWaiveRightToCounselProceedProPerAppoi-02882775-0.pdf (Size: 500.05 KB / Downloads: 7)
.pdf  0000-PetitionCertificateOfServiceappellantProPer-02882774-0.pdf (Size: 1.03 MB / Downloads: 4)
.pdf  0000-StayOfExecutionCreditForTimeCertificateOfServ-02882773-0.pdf (Size: 1.13 MB / Downloads: 5)

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