Tag Archive for: judiciary

A Dirty Little Judicial Secret

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USURPATION OF JUDICIAL POWER:

A practice has grown among the judiciary to reserve, exclusively, to a trial judge, the power of judging the law. This is not to say that judges, per se, refuse all knowledge of the Jury’s right to judge the law. Many courts have recognized this right. However, what the judicial branch, per se, does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so either (Sparf & Hansen v. U.S. 1895, 156 U.S. 102).

There are two primary reasons judges insist on being the only definer of the law. 1) Because they believe common jurors are just that – regular people that are not sophisticated enough to understand the law unless a judge explains it to them; 2) Judges do not want to surrender their self-granted power to attorneys.

Judges, officiate in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level – not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well.

When a jury judges the law it has been commonly called Jury Nullification. It could be better labeled, Jury Prerogative, a recognition of the juror’s right (duty) to judge the law as well as the facts of a case. Judging the law means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal.

Jurors do not have the license to judge a law to their personal standard or opinions. To allow one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

HISTORICAL BACKGROUND:

The 6th Amendment to the U.S. constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….” It doesn’t say by a judge; it specifies an IMPARTIAL jury. A government employee, using his or her powerful position to ‘charge’ or ‘instruct’ a jury, is violating the 6th, 9th and 10th Amendments of the U.S. Constitution. A jury that has been subjected to this usurpation of power is no longer impartial – it has been influenced to the judge’s uncontested bias.

Our Constitution, our rule-of-law, was written by laymen for laymen. No where in its articles or amendments is the judicial branch empowered to TELL a jury anything, much less how to apply a law. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge!

Our fore fathers realized that judges, being human, carry their own prejudices. Because of this, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, a practice has evolved where judges do testify in the form of their ‘instructions’ or ‘charges’ to the jury. It is during this ‘testimony’ – this propagation of their own power – that the judge will NOT tell the whole truth. The whole truth being a jury’s right and power to decide the constitutionality of a law.

Many precedent setting rulings, dating from the decade of this country’s inception to as late as 1972, have confirmed that Jury Prerogative is a bono fide right and power of a jury.

COMPARATIVE EXAMPLE:

Just for the sake of argument, let’s say that Public Law X makes it a crime to speak or write anything derogatory about any federal employee. Soon thereafter, your car is struck by a vehicle negligently operated by a FBI agent. In the heat of the moment and outraged that this bozo had damaged your new BMW, you call the agent an incompetent jerk whereas you are immediately arrested for violation of Public Law X.

You’re an honest person and do not deny that you made those comments. You place your faith in the fact that Public Law X is obviously in direct violation of the 1st Amendment to the U. S. Constitution. However, and for whatever reason the judge in your trial denies your attorney’s motions for summary judgement, i.e., that Public Law X is unconstitutional. At the conclusion of the trial the judge ‘instructs’ the jury that if they find that you did utter derogatory comments to a federal employee they, the jury, MUST find you guilty as charged. Of course, the jury has the right and power to determine that Public Law X is in violation of the First Amendment. However, if the judge refuses to tell the jury that they have this right and your attorney is not allowed (ibid, Sparf & Hansen) then that leaves you in a shooting war – and without a gun.

JURY PREROGATIVE – WHAT IT IS/IS NOT

Circa 1988, a group of citizens formed a grassroots organization, The Fully Informed Jury Association (www.fija.org). Their intention was to inform jurors of their right to judge laws. However the FIJA misinterpreted the meaning and definition of Jury Nullification/Prerogative and have skewered, twisted and misapplied this 200 year old concept. They promote the notion that juries have the right to decide if a law is good or bad as judged against their own (individual juror’s own) standards of good and bad. (http://fija.org/)

In a recent case, the California Supreme Court (People v. Williams, S066106, 2001), found that a juror who told a trial judge, “I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason.” This juror raised no issue of constitutionality – he was applying the law to his own personal standards. The juror was replaced by an alternate in what has been called a “Jury Nullification” case. It was not. There was no issue of constitutionality at bar.

The California Supreme Court correctly upheld the dismissal of the juror for applying his own standard to what the law meant. To evoke Jury Prerogative, a juror must believe the law under which a defendant is charged is unconstitutional. For example: if a defendant is charged with violation a law “A” and a juror votes for acquittal because this juror believes that law “A” is unfair, defective, unjust, not a good law or the law is stupid, the juror is not doing his duty. However, if the juror is convinced that law “A” is in violation of a state or a federal constitutional guarantee, then the juror is obligated to vote not-guilty.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

POSSIBLE REMEDIES:

  • Demand a full legal representation. Forcing a defendant to become his own lawyer just for the sake of arguing the law’s constitutionality is a clear violation of the 6th Amendment right to counsel. In other words, it is well established in case law, that the accused is entitled to representation at ALL levels of trial including even pre-trial interrogation and post-trial sentencing. Therefore, how can the courts continue to support Sparf (ibid) which clearly forbids representation at a most critical stage of a trial – the “instructions/charge” to the jury? This quirk of forbidding attorneys to argue the law before the jury, but permit pro se testimony seems to have escaped the logic of the judicial system. By this same reasoning, if the courts are permitted to bar an attorney from presenting evidence, testimony and/or summation concerning the constitutionality of a law, then what is to prevent the court from forbidding an attorney from arguing the credibility of a witness or any other issue before the jury? No doubt the trial judge will deny your request thus allowing you to appeal to a higher court where this matter should be settled.
  • Join the JUDICIAL ACCOUNTABILITY INITIATIVE LAW organization. J.A.I.L. is working to enact Special Grand Juries to sanction judges by levying fines, forfeitures and possible removal from the bench against judges who usurp their powers. (www.jail4judges.org).
  • Consider filing suit against your local Jury Commissioner to require the Jury Prerogative option be disseminated to prospective jurors.
  • If you are charged with a crime and you can show the law under which you are charged is in violation of your state’s or the Federal Constitution, demand a jury trial and mount a challenge to Sparf & Hansen v. U.S.
  • If you are not successful with your challenge to Sparf & Hansen at the trial level, have Plan ‘B’ ready: Consider acting as co-counsel. Because the judge will not advise your jury of their right to judge the law and also refuses your attorney that power, your only option might be to tender the summation yourself.

Acting pro se, you can say almost anything to a jury as acknowledged by the 1972 case, U.S. vs Dougherty (473 F.2d, pg 1137):  “Thus, a defendant’s ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation….”

Sidebar: “The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, Chief Justice U. S. Supreme Court (1941). “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….” (U.S. vs. Dougherty, 473 F.2d 1139 [1972]). “The jury has a right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court (1789).

The jury does and always has had, in the words of Justice Holmes, “the power to bring in a verdict in the teeth of both law and facts” (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).

© 2014 Chuck Klein www.chuckklein.com

EDITORS NOTE: The featured image is a screenshot of “A dirty little secret” from Frasier episode, “The Show Where Sam Shows Up” in 1995 courtesy of Paramount Television and Grub Street Productions.

West Point Study: The Founding Fathers are the “Violent Far-Right”

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Dr. Arie Perliger from the Combating Terrorism Center located at West Point, NY issued a report titled, Challengers From The Sidelines: Understanding America’s Violent Far-Right. The report states, “There are three major ideological movements within the American violent far right: a racist/white supremacy movement, an anti-federalist movement and a fundamentalist movement.”

What are the roots of the American anti-Federalist movement?

Anti-Federalism refers to a movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the Constitution of 1787. The previous constitution, called the Articles of Confederation, gave state governments more authority. Led by Patrick Henry of Virginia, Anti-Federalists worried, among other things, that the position of president, then a novelty, might evolve into a monarchy. A book titled “The Anti-Federalist Papers“ is a detailed explanation of American Anti-Federalist thought.

Anti-Federalist No. 1 titled “General Introduction: A Dangerous Plan of Benefit Only to The ‘Aristocratick Combination’.” was printed in the The Boston Gazette and Country Journal on November 26, 1787 and warned, “Their [Federalist] menacing cry is for a RIGID government, it matters little to them of what kind, provided it answers THAT description.”

Noted anti-Federalists included: Patrick Henry, Samuel Adams, George Mason, Richard Henry Lee, Robert Yates, James Monroe, Mercy Otis Warren, George Clinton, Melancton Smith, Arthur Fenner, James Winthrop and Luther Martin.

Thomas Jefferson expressed several anti-federalist thoughts throughout his life, but his involvement in the discussion was limited, since he was stationed as Ambassador to France while the debate over federalism was going on in America in the Federalist papers and Anti-Federalist Papers.

Perliger states:

‘”Anti-federalist and anti-government sentiments were present in American society before the 1990s in diverse movements and ideological associations promoting anti-taxation, gun rights, survivalist practices, and libertarian ideas.”

The Executive Summary notes, “It is important to note that this study concentrates on those individuals and groups who have actually perpetuated violence and is not a comprehensive analysis of the political causes with which some far-right extremists identify. While the ability to hold and appropriately articulate diverse political views is an American strength, extremists committing acts of violence in the name of those causes undermine the freedoms that they purport to espouse.”

How does Perliger portray the modern day anti-Federalists?

Perliger states, “Violence derived from the modern anti-federalist movement appeared in full force only in the early to mid-1990s and is interested in undermining the influence, legitimacy and effective sovereignty of the federal government and its proxy organizations. The anti-federalist rationale is multifaceted, and includes the beliefs that the American political system and its proxies were hijacked by external forces interested in promoting a “New World Order” (NWO) in which the United States will be absorbed into the United Nations or another version of global government. They also espouse strong convictions regarding the federal government, believing it to be corrupt and tyrannical, with a natural tendency to intrude on individuals’ civil and constitutional rights. Finally, they support civil activism, individual freedoms, and self government. Extremists in the anti-federalist movement direct most their violence against the federal government and its proxies in law enforcement.”

What evidence  of violence perpetrated by the anti-Federalist movement does Perliger document?

Perliger reports (pages 136-137):

 “Our dataset documented 87 cases of violent attacks that were initiated by militias or other anti-federal associations between 1990 and 2011. As expected, almost half of the attacks were perpetrated during the movement’s popular period, the second half of the 1990s (48.2%). Since then we have witnessed limited violent activities by the militias, except for a sharp rise during 2010 of 13 attacks. Nonetheless, in 2011 the number returns to the level observed in previous years (between 1–4 attacks per year; 2 attacks in 2011). Thus, while there may be a rise in the number of active militia groups, except for 2010 we still do not see this systematically manifested in the level of violence. As for the geographical dispersion of the attacks, California again is highly prominent (18.4%) alongside Texas (10.3%). The rest of the attacks are distributed more or less equally among 28 other states. The areas that are excluded are parts of the northeast: no attacks were reported in New York, New Jersey, Connecticut, Delaware, Maine, Vermont, Rhode Island, and there was only one attack each in Massachusetts and New Hampshire; the northern Midwest: there were no attacks in Illinois, Iowa, North and South Dakota; and some Southern states: Kentucky, Louisiana, Mississippi and Missouri. Thus, it is difficult to find a geographic rationale for the violence.”

How many casualties have been caused by the anti-Federalist movement?

Perliger reports, “[T]he average number of fatalities and injuries is 14.04 injured and 3.97 fatalities; when omitting the attack in Oklahoma [by Timothy McVeigh], the average goes down considerably [to] 0.77 [injured] and 0.55 [fatalities] respectively.” (page 138)

Do eighty-seven cases of violent attacks over a 21 year period constitute a violent movement or isolated criminal acts? Perliger does not address this question.

Perliger concludes, “[I]t should be noted that historically some of the anti-federalist groups have absorbed racist and Christian Identity sentiments; nonetheless, the glue binding their membership and driving their activism has been and remains hostility, fear and the need to challenge or restrict the sovereignty of the federal government.”

Do those who identify as Christians belong in the same category as skinheads and Neo-Nazis? Perliger believes so when he states, “Among these are militias, Christian Identity groups, Skinheads and neo-Nazis.”

This study is flawed when it only defines anti-Federalist groups as “violent far-right”. Are Federalist groups not violent?

Any group that seeks to impose its will on all of the people either by edict or violence is by definition “Federalism”. Federalism in the United States is the evolving relationship between U.S. state governments and the federal government of the United States. Since the founding of the country, and particularly with the end of the American Civil War, power shifted away from the states and towards the national government.

Is this what the people fear most – the expansion of federalism? Is this fear real and worthy of concern?

Watch this video of interviews done in New York City asking “Do you fear tyranny in America?” Note at the end the responses of young Americans. Are they recruits for the “violent far-right”?

Florida has lowest crime rate in 41 years

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Florida Department of Law Enforcement Commissioner Gerald Bailey joined local and state criminal justice officials today to announce the 2011 Annual Uniform Crime Report. The report shows Florida’s crime rate dropped 0.8 percent compared to 2010.

In the past few years the Florida has passed legislation that allows citizens to defend themselves under the “Stand Your Ground” laws. Floridians may carry concealed weapons and the use of a firearm in the conduct of a crime carries stiff penalties.

“While it is good news that Florida’s crime rate is at a 41-year low, we must continue to remember that each crime represents a victim whose rights must be protected,” said Governor Rick Scott. “On behalf of all Floridians and visitors to our state, I applaud the dedication and hard work of our law enforcement officers who risk their lives every day to make our state safer and our communities more secure.”

The total number of crimes dropped 0.1 percent last year. The number of violent crimes (murder, forcible sex offenses, robbery and aggravated assault) was down by 3.7 percent.

“Florida’s crime rate is the lowest it has been in 41 years,” stated Attorney General Pam Bondi. “We are blessed to live in a state with such dedicated law enforcement officers and prosecutors, and we must always remember the great sacrifices they make for our safety.”

“Overall, the 2011 Uniform Crime Report is good news,” said Commissioner Gerald Bailey. “Since FDLE began tracking crime statistics in 1971, citizens are safer today than any time in the last four decades.”

The report showed a 0.2 percent decrease in the number of murders, a 0.1 percent decrease in forcible sex offenses, a 1.8 percent decrease in robberies and a 5 percent drop in aggravated assault.

Non-violent crime (burglary, larceny and motor vehicle theft) increased 0.4 percent. Burglary and larceny each rose 0.7 percent. The number of motor vehicle thefts decreased by 4.4 percent.

“Florida’s Sheriffs and Deputies are willing to give their lives to protect Florida, and we are grateful for their sacrifice and for another year of reduced crime,” said Steve Casey, executive director of the Florida Sheriffs Association. “The 2011 Uniform Crime Report demonstrates our collaborative work is paying off and that we are maintaining our quality of life.”

“The continued decline in Florida’s overall crime rate is a positive reflection of the hard work being done by law enforcement officers around the state in cooperation with the citizens they serve,” said Florida Police Chief’s Association First Vice President and Tallahassee Police Department Chief Dennis Jones. “Without the support of our community partners, our efforts to reduce and prevent crime would not be possible.”

Domestic violence offenses continued to decline in 2011, showing a 1.5 percent drop from 2010 numbers. Cohabitants continue to be the largest group of victims in this category, with spouses remaining the second largest group.

“We appreciate the hard work and partnerships with law enforcement to keep domestic violence survivors and their children safe and hold perpetrators accountable,” said Florida Coalition Against Domestic Violence President and CEO Tiffany Carr. “While we are certainly pleased to see that overall domestic violence crimes continued to decline slightly in 2011, we are committed to work with our law enforcement partners to address the significant increase in stalking.”

Violent crimes committed by firearms continued to drop from 25,184 in 2010 to 24,737 in 2011. The number of justifiable homicides increased in 2011. Seventy felons were killed by police officers, compared to 56 in 2010. The number of felons killed by private citizens increased to 48, compared to 40 in 2010.

The report also contains information on officers killed feloniously. Seven law enforcement officers and one correctional officer died from criminal causes while on duty during 2011. In addition, three law enforcement officers died accidently during the course of duty.

The complete 2011 Annual Uniform Crime Report, including county-by-county breakdowns, can be found on FDLE’s website at www.fdle.state.fl.us/fsac/ucr/.

Obama Turning Americans into “Economic Slaves”

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Florida Congressman Allen West (R-22) stated at a Port Saint Lucie campaign speech President that President Obama wants to turn Americans into “economic slaves.”

At the event Congressman West spoke about the importance of lowering taxes, minimizing regulations on business and bringing jobs back to Florida. Congressman West criticized President Obama on his failure to create private sector jobs.

“Self-esteem comes from doing esteemable things. Sitting at home and getting a check from the government is not going to help your self-esteem. What it will do is make you an economic slave to people living in a far, far, distant place,” West remarked.

Congressman West stated, “He does not want you to have the self-esteem of getting up and earning and having that title of ‘American’. He’d rather you be his slave and be economically dependent upon him.”

Congressman West said during a Conservative Black Forum said that President Obama “doesn’t have a vision for the black community” in America. Congressman West’s website notes:

“In the beginning, in chapter one, it talks about over the past 30 years, billions of dollars have been poured into black communities across the country in hopes of curing well-documented socio-economic problems including failing schools and adequate housing, rampant crime and drug abuse, black on black killings, unemployment and more,” West said. “Despite the courageous efforts of many local institutions, agencies, school leaders, grassroots organizations and community residents, the problems remain.”

“In many instances, these problems have grown worse,” he continued. “I believe it will take new ideas and new voices to find solutions, and that is exactly why we’re here. We’re here today to talk about economic freedom as opposed to economic dependency. We’re here today to talk about four basic conservative principles and how they can apply to economic revitalization for the black community: That’s limited government, being fiscally responsible, individual industrialism that leads to self-sufficiency and the free market that grows business, and lastly and most importantly, it’s about equality of opportunity which comes from a good education.”

West points to the black community’s 14 percent unemployment rate as an indicator that the current economic policies aimed at helping minorities aren’t working, adding that “if you understand actual unemployment, it’s probably closer to 18 or 20 percent.”

On top of that, West pulled out statistics showing how blacks aren’t proportionally represented population-wise in the percentage of new start-up businesses around the country.

“60 percent of new startups are in the white community, 23 percent of new startups [are] in the Hispanic community, 5 percent [of] new startups [are] in the Asian community and, with 13 percent of the population, you’re only seeing nine percent of new startups coming out of the black community,” West said.

Over the more than two-hour-long discussion about issues facing these communities and possible solutions, President Barack Obama hardly came up. After the event, West told The Daily Caller that’s because Obama “doesn’t have a vision for the black community and economic development.”

“He doesn’t have a vision for America,” West told TheDC. “So, I think that’s why we see all of these horrible economic indicators turning in the way that they are. His vision is just to get re-elected and that’s not what I’m here talking about.”

West issued a warning concerning the Supreme Court’s recent decision to uphold the Affordable Care Act. “Now we find ourselves in a situation where the tax code of the United States of America is being used as a weapon against the American people. It is being used for behavior modification. That is exactly what came from the Supreme Court decision last week,” said West.

Congressman West is campaigning for a second term in the U.S. House in Florida’s newly-drawn district 18. He faces County Sheriff Bob Crowder in the GOP primary on August 14 for a chance at the party’s nomination.

FL Primary Voting Registration Ends July 16, 2012

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With a primary election approaching, here is voter information from the Sarasota County Supervisor of Elections office:

In order to register to vote in Florida, you must:

  • Be a citizen of the United States of America
  • Be a Florida resident
  • Be 18 years old (A person who is otherwise qualified may preregister on or after his/her 16th birthday and may vote in any election on or after his/her 18th birthday.)
  • Not now be adjudicated mentally incapacitated with respect to voting in Florida or any other state
  • Not have been convicted of a felony without your right to vote having been restored
  • Provide your current and valid Florida driver license number or Florida identification card number. You must provide the last four of your Social Security number if you do not have a Florida driver license number or a Florida identification card number. If you have not been issued any of these items, you must write “NONE” in the box indicated on the Voter Registration Application.

How to Apply to Register to Vote

  • Fill in the Voter Registration Application online. If you wish, you can print the application and write your information in with a black ballpoint pen.
  • For the Voter Registration Online Application in Spanish select this link.
  • Print the application out.
  • Verify that all the information on your application is complete. The office where you register, your decision not to register, your Social Security number, Florida driver license number and Florida ID card number will remain confidential and will be used only for voter registration purposes.
  • Sign your application. The application requires an original signature because you are swearing to or affirming an oath.
  • Mail your application to your county supervisor of elections. (Requires first class postage stamp.) You may also hand-deliver the application to any supervisor of elections office in the state, a driver license office, a voter registration agency or armed forces recruitment office, or to the Division of Elections.
  • If your application is complete and you qualify as a voter, the supervisor of elections will mail you a voter information letter as official notification that you are registered to vote. Make sure all of the information in your letter is correct. If you do not receive a confirmation letter within 8 weeks, or if you have any questions, call your supervisor of elections.

NOTE: You must be registered for at least 29 days before you can vote in an election.

If the information on the application is not true, the applicant can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to 5 years.

English WINS in Florida Court

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The Eleventh Circuit Court of Appeals has upheld an earlier ruling from the U.S. District Court that product manufacturers and distributors are not obligated to provide warnings in languages other than English. The ruling applies to both assembly instructions and manuals for consumer products. This is the second victory for English in the courts in the past few months. The Arizona Supreme Court recently defended English proficiency as a requirement to run for public office.

This new ruling stems from a 2009 incident when a Florida resident who understands only Spanish bought two propane heaters from Home Depot in Miami. The woman mistakenly used the heaters indoors, even though they were outdoor-only heaters, and the resulting fire caused hundreds of thousands of dollars in damage to her home.

The woman sued both the manufacturers of the heaters as well as Home Depot claiming they were liable since the safety and assembly instructions on the heaters were provided not in Spanish, but only in English.

Subsequently in 2010, the U.S. District Court ruled that the woman exhibited “willful ignorance” in assembling the products without understanding the instructions and neglecting to seek additional assistance, and just last week, the Eleventh Circuit concurred that the English-only safety warnings were adequate and noted that even though the woman did not speak English, the pictures on the instructions were perfectly clear.

The English Language Unity (ELU) act has been introduced in Congress – S. 503 and H.R. 997. The English language advocacy group Pro-English supports the ELU act.