July 4, 1992
Re: Shamema Honzagool Sloan
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I have been hitting the law books lately and have discovered that the prosecution of this entire case has been illegal from the beginning and at every step along the way.
The immediate case started with my arrest on November 13, 1990 on two capiases issued by Judge Janow. However, these capiases were clearly issued illegally.
One capias alleged my failure to attend court on October 8, 1986. However, as my attorney at the time, Steve Martin, testified before you and as Judge Janow himself admitted on the record before him, the October 8, 1986 hearing had been called off and cancelled by Judge Janow himself some time in advance of that date.
However, the important point is that the capias was itself issued illegally. The pertinent section regarding capiases is §19.2-128, which requires that a capias may not be issued by a judge except "after notice to all parties" and even then only not "unless one of the parties can show good cause" as to why it should not be issued.
The normal and required procedure is that when the trial or hearing date arrives, the clerk calls the calendar, the name of the party is called, the judge looks around the courtroom and, if the party is not present, asks his attorney why the party did not come. If the attorney has no good excuse, the judge may then issue a capias.
None of this was done in my case. Steve Martin, my attorney at the time, who diligently prosecuted the matter, testified before you that the last time there was ever a hearing or court appearance in this matter was August 25, 1986. In other words, the clerk never called the calendar on October 8, 1986, the parties were never notified of the possible issuance of the capias and no opportunity was afforded to my attorney to provide "good cause" for my non-appearance.
In short, Judge Janow just issued the capias completely on his own, without telling anybody about it. This was clearly illegal and in violation of the statute.
Regarding the other capias, that alleged my failure to appear on September 8, 1986 plus my disobedience of a court order dated August 25, 1986. Regarding the September 8, 1986 date, the same applies. Not only was I never notified of that date, but there was no court appearance by anyone on that date.
Regarding the alleged disobedience of the written order dated August 25, 1986, again none of the required procedures were followed. I was never personally served with the order, because it happened that I left town on that date. I never even saw or heard about the order until January, 1987, by which time I had reached Abu Dhabi, United Arab Emirates. Again, a capias cannot be issued except pursuant to a validly issued and served order to show cause. This was never done. There was also no hearing and no opportunity for my counsel to provide "good cause". Once again, Judge Janow just issued the capias on his own, did not tell anybody about it, and kept it in his pocket for the next four years.
Another point is that the August 25, 1986 order did not direct me to do or not to did anything. What the order said was that the Roberts were "allowed to enroll the child in the Temple Baptist School". The order said nothing at all about Ismail Sloan. It is well established that to charge a party with contempt, the order must contain "an express command or prohibition", French v. Pobst, 203 Va. 704, 127 S.E.2d 137 (1962).
In addition, Charles Roberts had not filed a custody petition in this case at that time. (He did not file one until two days later). He was therefore without legal standing to complain about an order made in a case to which he was not a party.
Next, getting to the point about the fact that Judge Janow carried the capias around in his pocket for the next four years, it clear that under section §19.2-76.1, Judge Janow was required to deliver the capias to the sheriff, who in turn was required to report the unexecuted capias to the Commonwealth Attorney on a quarterly basis. In that event, the Commonwealth Attorney had the authority to destroy the unexecuted capias if it appeared to be "unprosecutable .... for any reason".
It is clear that Judge Janow never provided the capias to the sheriff or that the sheriff never reported the capias to the Commonwealth Attorney for the reason that the Commonwealth Attorney has stated on the record many times that he was not aware of the capias until the moment of my arrest on November 13, 1990. It is inconceivable that this capias could have been reported to the Commonwealth Attorney every quarter over a period of more than four years and the Commonwealth Attorney not have any knowledge of it.
More than that, since 1986, the statute has been amended. The new version of 19.2-76.1 requires that in all cases, the capias must be destroyed after three years, except in cases of capital murder. This clearly includes the misdemeanor contempt charges under which these two capiases were issued.
Furthermore, the two capiases arise from the same act which formed the basis for a criminal complaint against me. I was arrested under the criminal charge in Guam on June 30, 1988 and later in Honolulu. Both times, the charges were dismissed. The statute under which I was charged was §18.2-47. That statute states that I, as a parent, cannot be charged with a felony and contempt for the same act. Therefore, once the criminal charge was brought and then twice dismissed, I cannot be arrested again for the same act in a civil contempt case.
Furthermore, regarding the criminal case, it is established that once a case has been "nol prosed", it cannot be revived. See American Jurisprudence, Second Series, Vol. 20, Criminal Law, Section 513, page 859. What happened in my case is that on the evening of August 25, 1986, Shelby Roberts went to the Magistrate of Amherst County and swore out a warrant for my arrest. Incidentally, I had no knowledge of this. Years later, I later saw this warrant for the first time in the case file regarding my mother in Sloan v. Miller. (It has since been removed from that file). I was astonished to learn that Shelby Roberts had taken out a warrant for my arrest at such an early date. In any event, the matter was "nol prosed" by the Amherst County Commonwealth Attorney a few days later. Thereby frustrated in their desire to have me arrested, the Roberts then went to the Lynchburg Commonwealth Attorney, who agreed to issue an arrest warrant on the same charge which had been nol prosed by the Amherst Commonwealth Attorney. It is submitted that this was illegal, especially since the matter concerned entirely Amherst and had nothing to do with Lynchburg.
A further factor was that the August 25, 1986 order of Judge Janow had never been personally served upon me. I have made this contention before and you have responded that there are cases stating that personal service is not required and that all that is needed is a showing of "actual knowledge" of the order. I was mystified by this assertion on your part until yesterday when I saw the case of Bellis v. Commonwealth, 402 S.E.2d 211, 214 (1991). However, that case stands for something different altogether. There, the respondent was validly served with a subpoena by substituted service which consisted of service by the sheriff in his office on his secretary. The sheriff had returned the service. Dr. Bellis knew about the service. His secretary testified that she had told him about it. Dr. Bellis testified that he knew about the subpoena, and that he had been in town at the time of the service, although he had left town between then and the court date. These facts established his "actual knowledge".
However, my case is a different matter altogether. In my case, there was no service at all. The sheriff did not file a return of service. There is nothing in the entire file of this voluminous case showing that I had been served with any paper at all, either by personal service or by substituted service, from the very commencement of the case up until after my daughter had already been kidnapped and brought to Virginia. The first service of any kind on me occurred when I was arrested upon the capias issued by Judge Janow on November 13, 1990.
The claim made in this case is that there was a telephone call between myself and my attorney, Steve Martin, while I was in Argentina, and at this time I was informed of the case which had been brought against me and that this telephone call was the equivalent to service of process and therefore I was required to return to America and hand over my daughter. However, this is not the law. It has been held that a finding of disobedience of lawful process cannot be made unless there has been "valid service of the process in one of the modes prescribed by law". Bellis v. Commonwealth, 402 S.E.2d 211, 214 (1991).
In that case, the court specifically stated that a mere telephone call is not sufficient. What is required first is that there must be service of process. After that, the respondent can raise as a defense that he did not have "actual knowledge" of the service.
I have shown this case to a number of lawyers and they all find it laughable that any judge of any court would claim that a telephone call to Argentina was sufficient to confer jurisdiction on the Amherst Country Juvenile and Domestic Relations Court. The first thing one learns in law school is that there must be service of process.
It has been established since at least the opinion of Justice Holmes in Chicago L. Ins. Co. v. Cherry, 244 U.S. 25 (1917) that "a defendant who has not been served with process is free to rely upon his defense by letting judgment go by default." Thus, I was under no legal obligation to bring my daughter back from Argentina to Amherst Country just on the basis of a telephone conversation with my lawyer. It is obvious that Justice Gamble of the Amherst County Circuit Court does not have the authority to overrule the well-established precedent set by Justice Holmes of the United States Supreme Court.
Nevertheless, the contention is being made that now that my daughter has been successfully kidnapped and brought to Amherst County, it no longer matters whether there was valid service of process or not. Comparison is made with cases of criminals who are kidnapped by law enforcement agents and brought to the United States to stand trial. However, my daughter is not a criminal. She is a child who was still only eight years old at the time of her kidnapping. I have recently discovered that there is a federal law, the International Child Kidnapping and Retention Act, 42 U.S.C. 11601, which bars the prosecution of this case, since my daughter got to the United States only as a result of an international kidnapping. This federal law codifies the Hague Convention, to which the United States is a signatory. This law requires that the child must be promptly returned back to the country from which she was taken.
Next, there is that fact that after my initial arrest on contempt charges, Judge Janow refused to prosecute the case. In particular, I posted a one thousand dollars cash appearance bond. The condition of that bond was that I appear in court on December 19, 1990 at 9:30 AM. I did, in fact, appear in court on December 19, 1990 at 9:30 AM, with my counsel, James H. Massie. However, Judge Janow was not there and neither was the Commonwealth Attorney. Only a substitute judge was present, and he knew nothing about the case. The clerk, June Wood, checked the calendar and could find nothing about this case. I produced the paper given to me by the magistrate at the time of my release on bail showing that I was required to be present in court on December 19. My counsel and I noted my appearance for the record. After waiting around to see if anybody would show up, we left the courthouse.
Remember that this is a criminal case in which I am charged with two misdemeanors involving contempt of court. If the Commonwealth Attorney was not prepared to proceed with the case, he should have requested an adjournment, which would have been charged against him. I would have strenuously objected to any continuation. There is simply no such thing as the judge and the Commonwealth Attorney not bothering even to come to court, and still the matter is continued.
The next court date was February 4, 1991. On that date, there was a hearing regarding the custody of Shamema. However, no mention at all was made of the contempt matter. There was no trial, no hearing, and no request for a continuation. The matter was simply forgotten about. A few day later, I called June Wood and demanded my one thousand dollars back, as I had previously demanded, in December. June Wood told me to call back later. When I called back, she reported to me that Judge Janow was refusing to return my one thousand dollars.
At this point, I wrote several letters demanding the return of this one thousand dollars bond. When I received no response, I filed a petition for a writ of mandamus and prohibition demanding the return of the one thousand dollars and the dismissal of this case for want of prosecution.
That petition for a writ of mandamus is still pending today. The reason for this is that Judge Gamble disqualified himself from handling that case and no other judge in the Commonwealth of Virginia has been willing to take it, according to Fred Hodnett.
Judge Janow held further hearings regarding the child custody matter in May and June, 1991. However, again, he refused to take up the matter of the contempt. Finally, after the conclusion of the child custody matter in June, 1991, Judge Janow repeatedly asked me to agree to a continuance of the contempt matter. I refused to agree to a continuance, in spite of the urgings if my counsel that I do so. Judge Janow then held a five minute trial on the matter of the contempt. I was the only significant witness who testified. (Rick Groff testified for one or two minutes regarding a remark which he claimed that he had over-heard in 1991 in the oral argument of a related case before Judge Peatross. However, the testimony of Groff did not pertain to the actual contempt. His testimony was apparently intended to show that I had "actual knowledge" of the case).
In reality, the five minute trial consisted primary of Judge Janow giving his reasons for finding me in contempt. In particular, Judge Janow stated that he had cancelled the October 8, 1986 hearing in advance because he knew that I would not be attending, "so he is guilty of that," said Judge Janow.
Judge Janow also ordered the forfeiture of my one thousand dollars cash appearance bond. No hearing had ever been scheduled regarding the forfeiture of the bond. There was no notice of a pending forfeiture of a bond as required by §19.2-128. A bond is forfeited when the respondent fails to appear, but, in this case, I had appeared at every hearing, whereas the judge and the Commonwealth Attorney had failed to appear. It was clear that the bond was declared forfeited as a way to punish me.
After that, I appealed the case to you. You were then required to put the contempt case on the appeal calendar, pursuant to §19.2-241. However, you did not do so. Instead, you put the contempt case on the back-burner. I have been repeatedly clamoring for a hearing and demanding an immediate trail on the contempt matter, for two reasons. One is that I want to get my one thousand dollars back. However, a second far more important reason is that the sole legal basis for depriving me of my daughter has been the contempt charge. It is clear that had a trial been held on the contempt charge and I been found not guilty, you would have had no choice but to give me my daughter back. That is the reason why you and Judge Janow before you kept refusing to hear the contempt case, stating that it would have to wait until after the child custody case had concluded, whereas I kept insisting on an immediate trial on the contempt matter.
It is clear that had I been tried immediately when Judge Janow ordered me arrested on November 13, 1990, as I demanded at that time, and assuming that Judge Janow had found me guilty, then I could have appealed and Judge Goad would have found me not guilty, for the same reason previously stated, which was that there was no service of process. More than that, the worst thing which could have happened was that I would have been convicted, the conviction upheld, and I would have spent the maximum of ten days in jail. Then, having paid my "debt to society", there would have been no further reason not to give me my daughter back.
It is clear that both you and Judge Janow understand this point. That is why both of you kept refusing to hear the contempt matter, letting it drag on for a total of more than one year, even though it was only a five minute matter.
It must be recalled that this is a criminal case and I am a criminal defendant, with a constitutional and statutory right to a speedy trial. I have copies of a pile of letters to the court, in which I repeatedly demanded an immediate hearing on this matter. Nobody has ever heard of an instance where a criminal case has been required to wait until a civil case has concluded. Usually, it is the other way around.
The end result is that after refusing to try me for all this time, you have now tried me "in absentia". I still have not been able to obtain a copy of your decision in that case. I have filed a notice of appeal from an order which I still have never seen, and my appeal has recently been dismissed by the Court of Appeals as untimely.
It is clear that this court is guilty of latches. I appeared in court many times with counsel in this matter. I repeatedly demanded an immediate trial or hearing. First Judge Janow and then you refused to try the case promptly. Now, I find out that the case has been tried and I have been found guilty "in absentia".
The punishment in the Bellis case, in which the respondent really was guilty, was a fine of $100. However, the actual punishment in my case is that I am deprived of my daughter and my daughter is deprived of her father, her brothers, her sisters and her other family members until adulthood. This is clearly illegal and a violation of our constitutional and human rights.
In short, your conduct of this case is based on a flawed legal theory that service of process is no longer required in Virginia and that all that was needed was a showing of "actual notice". On this basis, you have also deprived the natural mother of any right to custody. In this regard, you have gone even further than Judge Janow. You state in your decision that the fact that letters have been received from Pakistan apparently from the mother is sufficient to confer your court's jurisdiction over her. The fact that the mother has never been and could never possibly be served with process, even in Pakistan, because she is a secluded "purdah observing" woman in accordance with strict Muslim law, is not, in your opinion, sufficient grounds to deprive you of jurisdiction over her. You are apparently not troubled by the fact that the natural mother is in no position to come to America to defend her rights. or by the fact that her child got to America only as the result of being kidnapped from a foreign country by the Roberts. Indeed, you state in your decision that the fact that I often travel to foreign countries, including to Pakistan where the mother resides, is sufficient grounds to deprive me of custody.
Every judge looking at this case would dismiss this entire proceeding immediately. Here is a child custody case brought by a non-relative who is driven solely by religious fanaticism. There was never any service of process. A judge carried two capiases around in his pocket for four years to prevent the Commonwealth Attorney from finding out about and dismissing them. My daughter has been kidnapped and brought to America by entirely illegal means. I have now been arrested a total of seven times through the efforts of Judge Janow and yourself, either to help the Roberts get my daughter away from me or to stop me from getting her back. There has been no due process of law. Every rule of legal procedure has been violated in this case.
This meritless prosecution has been allowed to proceed without care or concern to the destruction it has caused to my family or to the harmful effects on all of the children involved. For these and other reasons, I have filed a motion for you to disqualify yourself and now have a petition for a writ of mandamus pending against you.
For the sake of human decency, I beseech you for once to do a decent thing in your life and dismiss these entire meritless proceedings so that I and my entire family can finally live in peace.
Very Truly Yours,
M. Ismail Sloan
Copy to:
W. Edward Meeks
Linda Groome
J. Thompson Shrader
Lisa Schenkel
James H. Massie
William G. Petty
Barbara J. Gaden