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The Bundy Trial: A Verdict On American Justice

07 Monday Nov 2016

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Two Thursdays ago, while I prepared to hit the road, a federal jury did an amazing thing. Herein I answer a reader request for commentary.

Ammon Bundy, Ryan Bundy, Shawna Cox, Jeff Banta, Kenneth Medenbach, David Lee Fry and Neil Wampler were charged and tried for “taking over” a remote federal facility in Oregon. On October 26th a jury found all defendant’s not guilty on all counts. Well, Ammon Bundy still faces a count of tampering for disabling a few cameras. But the long-term sentence charges were dismissed unanimously by the jury.

While the case and verdict is seen by some who seek limited government as a success, it really is just another example (although with a happy ending) of what is wrong with the justice system [SIC]. My summary of these proceedings is that they represent a fluke of judicial process and little more.

First, I find it a little funny that just about everyone on the right (to include many limited government advocates) pulled for the DOJ/FBI last week during the odd continuation of the Hillary email/corruption/pedo-pizza carnival of doom. It was the exact same outfit that prosecuted the Bundys. Now that Comey has once again closed the Clintongate files it is clear to anyone of room temperature IQ or higher that justice in America really isn’t. Unless there’s a slip and a fluke.

I have recounted before how the justice system [SIC] in general, and the federal system in particular, work. 99% of federal defendants are railroaded into court for crimes not set forth in the Constitution. Of those, around 97% enter into some kind of plea agreement. Of those remaining who demand and receive a trial, maybe 90% are convicted. So, within a margin of statistical error, nearly 100% of federal inmates and convicts are in prison for nothing.

That’s not justice. My thoughts on the jury system of today.

 

The Bundy bunch beat the odds here. And that is worth celebrating. From the New York Times:

PORTLAND, Ore. — Armed antigovernment protesters led by Ammon and Ryan Bundy were acquitted Thursday of federal conspiracy and weapons charges stemming from the takeover of a federally owned wildlife sanctuary in Oregon last winter.

The surprise acquittals of all seven defendants in Federal District Court were a blow to government prosecutors, who had argued that the Bundys and five of their followers used force and threats of violence to occupy the reserve. But the jury appeared swayed by the defendants’ contention that they were protesting government overreach and posed no threat to the public.

You may recall that one associate, LaVoy Finicum, was murdered by police as the others were arrested – gunned down in cold blood. Eleven others, playing the statistical game, plead guilty prior to the Bundy trial.

The government had a huge mountain of evidence. The defenses were rather maverick. And they could be as all that evidence still did not establish much. Frequently, when they don’t simply manufacture evidence and testimony from thin air, Justice [SIC] will overload a jury and hope the members become confused. Most do. Not here. In a remarkable turn of events, this jury actually paid attention and gave real thought to what they heard and saw.

Roger Roots, there in person in court, chronicled the various outrages and the unlikely outcome:

The defendants were accused of conspiring to prevent employees of the U.S. Fish & Wildlife Service and Bureau of Land Management from performing their duties at the Malheur National Wildlife Refuge in rural eastern Oregon. Yet federal prosecutors failed to produce a single piece of evidence of any specific threat aimed at a USFWS or BLM employee.

The U.S. Justice Department alleged in Count 1 that the seven defendants (and many others) had engaged in an “armed standoff” at the federal wildlife refuge with the intent of scaring away the various government employees who normally work there. Every defendant was utterly innocent of the allegation. Some were not even aware that federal employees normally worked there). Several defendants were also charged with firearm possession in federal facilities with the intent to commit a federal felony (the conspiracy alleged in Count 1). And two defendants, Ryan Bundy and Ken Medenbach, were accused of stealing federal property valued over a thousand dollars.

In fact, Ammon Bundy and the other defendants took a monumental (and quite daring) stand for the plain text of the Constitution when they occupied the Malheur Refuge in January of this year. They pointed to Article I, Section 8, Clause 17 of the U.S. Constitution which seems to plainly forbid the federal government from owning land inside the states unless the states agree to sell such real estate to the federal government.

Needless to say, the present reality in the American west is in sharp contrast to this piece of constitutional text. The feds claim to own and control millions of acres of land in western states—most of which (such as the Malheur Refuge area) was never purchased from state legislatures or anyone else.

The most frightening revelations from the Malheur 7 trial involved the lengths which the U.S. government went to in its prosecution. During the Bundy occupation, the FBI literally took over the tiny nearby town of Burns, Oregon and transformed it into an Orwellian dystopia. There were license plate scanners mounted on utility poles, drones throughout the skies, and military transport vehicles speeding across the countryside. FBI agents captured and monitored every phone number connected between every accused occupier. Federal and state police appeared in such numbers that their total numbers will probably never be fully tallied.

The occupation was met with a bonanza of government spending by agencies at every level. The U.S. Fish & Wildlife and BLM employees who were supposedly too frightened to go to work were put up in luxury hotels, along with their families. (In the aftermath of the occupation, the feds have spent further millions to “rebuild” the Refuge, supposedly because the occupiers tainted it; prosecutors were openly planning on asserting the inflated “bill for damages” at sentencing in the event the defendants were convicted.)

Most startling of all were the undercover government informants that were revealed in the trial. After weeks of wrangling and arguing with defense lawyers, the Justice Department finally stipulated that at least nine undercover informants were planted among the Refuge occupiers. Thus, informants outnumbered the defendants on trial. One informant was even a “bodyguard” for Ammon Bundy and drove him to his arrest. Another informant admitted he trained occupiers in shooting and combat skills.

After a week of deliberating over the evidence, the jury came back with its verdict yesterday afternoon, acquitting every defendant. (Jurors said they were divided regarding an accusation that Ryan Bundy aided and abetted the theft of government property when he and others climbed utility poles and took down two of the government’s surveillance cameras.)

There are reports that the U.S. Justice Department spent $100 million on the case. But twelve Americans saw through the government’s cloud of disinformation and dealt a mighty blow for liberty.

I would call this less of a mighty blow for liberty and more of a small blow for jury nullification. John Whitehead agrees:

In finding the defendants not guilty—of conspiracy to impede federal officers, of possession of firearms in a federal facility, and of stealing a government-owned truck—the jury sent its own message to the government and those following the case: justice matters.

The Malheur occupiers were found not guilty despite the fact that they had guns in a federal facility (their lawyers argued the guns were “as much a statement of their rural culture as a cowboy hat or a pair of jeans”). They were found not guilty despite the fact that they used government vehicles (although they would argue that government property is public property available to all taxpayers). They were found not guilty despite the fact that they succeeded in occupying a government facility for six weeks, thereby preventing workers from performing their duties (as the Washington Post points out, this charge has also been used to prosecute extremist left-wingers and Earth First protesters).

Many other equally sincere activists with eloquent lawyers and ardent supporters have gone to jail for lesser offenses than those committed at the Malheur Refuge, so what made the difference here?

The jury made all the difference.

These seven Oregon protesters were found not guilty because a jury of their peers recognized the sincerity of their convictions, sympathized with the complaints against an overreaching government, and balanced the scales of justice using the only tools available to them: common sense, compassion and the power of the jury box.

Jury nullification works.

It works when it is applied by an intelligent jury. The problem is in the empaneling of such jurors. Again, here we saw a fluke. And the Bundy’s troubles are not ended. Ammon still faces the remaining federal count and the whole crew faces persecution in the Oregon state system (because Double Jeopardy is an outdated concept and the prohibition has all but vanished in America).

The odds of successfully assembling such a conscious jury elsewhere are slim at best. I always drew the jury pool analogy this way: go to any Walmart around midnight; pick out the first 12 shoppers you see; that is your jury. The results are predictable. Most juries favor whatever the government presents, truthful or lawful, or not. If they have doubts, the system is rigged in the government’s favor – rigged to obscure exculpatory evidence, limit defense arguments, and limit legal knowledge and questions from the jury.

jury-cat

This is more like it. College Humor.

It’s fortunate I had a little time to draft this up. I found an unrelated, recent, and far more typical case for comparison.

Four defendant’s in Richmond County, Georgia were charged with various counts of felony Medicaid fraud and a count of conspiracy to commit the frauds. The indictment said they defrauded the government program (itself nothing but a fraud) of more than $3 Million.

All four were acquitted last week of the underlying fraud charges. Three were acquitted entirely. The fourth, the alleged ringleader, was found guilty by the jury of the conspiracy count. He was promptly sentenced to the maximum prison term allowed, five years.

Here’s the problem here for justice. Under Georgia law, “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” O.C.G.A. 16-4-8 (2010)(emphasis mine).

If all parties were on trial together and the jury acquitted all but one of them of all charges, how then could the same jury find that the lone defendant acted as part of a conspiracy? There’s that elements of the law thing that isn’t met here. The judge should have entered a directed verdict of acquittal as to the last conspiracy count, a correction of jury fallibility in the interests of justice.

Such interest is a rare as the Bundy verdict. Georgia appellate courts (and others around the nation) have ruled such inconsistencies (illegalities) are allowable. They seem to regard them as a consolation prize for the state, which isn’t suppose to lose. The overall stats for state charges and trials mirror the federal trends closely.

Of these two cases, the latter is the standard, the former a fluke. A happy fluke but just that. I don’t see any greater awakening. However, given recent developments against the establishment (Trump, BREXIT, etc.) such a movement may be launching. If so, we must do everything we can to foster and support it. If you find yourself on a jury, take the government to task.

One never knows when one will find oneself seated at the Defendant’s table. Safeguard others’ liberty today as yours might be on the line tomorrow.

Support truth, freedom, and justice.

New Hampshire Nullification

20 Monday Jun 2016

Posted by in Legal/Political Columns, News and Notes

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They are serious about “Live Free or Die”in the Granite State. A buddy of mine just bought a house there and I’m sure he will appreciate the following “leave me alone” news.

The New Hampshire House passed a bill that would make it the first state in the nation to require courts to inform juries of their right to vote not guilty when the verdict would produce an unjust result. This right, which all juries possess but may not be aware of, is called jury nullification. The bill is now awaiting approval in the Senate.

Yes, all juries in the United States possess the right and authority to nullify a law as it affects a particular defendant via a not guilty vote. Think of it as a vote of conscious. Here’s an example from a case that really happened. An underaged, teenage girl took some naughty selfies and sent them to a friend. Kids do stupid things like that. Governments do worse. The state where she lived (actually happened in multiple places) charged her with manufacturing and distributing child pornography – pictures of herself. The government even acknowledged her as both the suspect and the victim. This is near the absolute height of stupidity. A conviction would put such an innocent (if silly) girl on the sex offender registry, which is supposed to protect innocent (even silly) people from real predators. Supposed to. Really, it’s just another state scheme for power.

If such a stupid case ever made it to a jury, the jury could (regardless of the technicalities of the law) return a verdict of “not guilty” as a guilt verdict (even if correct under the law and by the facts) would be an injustice to the young girl – the victim also, remember.

The Free Thought story goes on:

Even if government has proved that someone is guilty under its law, a jury can let the person go free if it disagrees with the law and the punishment. This is one of the few ways in which citizens have power within the system to counter the irrational tendencies of centralized bureaucracy.

New Hampshire currently allows the defense “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” However, the House bill would have judges explain this right to juries which, according to the Tenth Amendment Center, makes it “more likely that a juror will consider this option.”

Judges would be required to make the following statement:

“Even if you find the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case, a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

…

If the New Hampshire bill makes it through the Senate and past the governor, it will be an historic moment in the American justice system. The current legal system is hostile to the idea of jury nullification, with judges threatening “secret juries” and police defying injunctions by removing activists.

However, in past times, jury nullification was viewed as a primary and necessary function of juries. As the Cato Institute points out:

“You can’t find references to “jury nullification” around the time of the American Revolution. That’s because it was considered to be part and parcel of what a jury trial was all about. If jurors thought the government was treating someone unjustly, they could acquit and restore that person’s liberty. Jury trials were celebrated–and explicit provisions were put into the Constitution so that the government could not take them away.”

Perhaps New Hampshire can remind the nation that we are not bound by the dictates of government, and we still have the power to protect our fellow citizens from state-sanctioned injustice.

Openly hostile is putting it mildly. A few states indirectly dance around the issue. For instance, the Georgia Constitution expressly says juries are the judges of the facts and the law. However, in reality in the Peach State – as in most jurisdictions, the judge declares himself the arbiter of what the law is and how the law applies to a given case. Judges give “charges” on the law to a jury at the conclusion of evidence and arguments. Some, most charges are “pattern” and are given preemptively by the judge right out of a handbook (complied by other judges in conference). The parties can make special suggestions. But, in no case, will it be permitted to tell the jury they can find a defendant not guilty because they disagree with the law.

Judges put people in jail for contempt and even jury tampering for even trying to get the word out about nullification. That’s hostility in an attempt to preserve power. As CATO points out, this is part of the traditional system for juries. Not just in America and England but all the way back to Athens and Rome. The violent prevention of nullification knowledge is just another part of the near-terminal decline of the trial by jury.

republicbroadcasting.org.

New Hampshire is often in the vanguard of freedom fighting in the U.S.A. Let’s hope the Senate and Governor feel as strongly about decent legal tradition as the House did.

…well…

I did a little follow-up research and discovered that the Senate did not follow through. Instead, on or around May 5th they let the Bill (HB 1270) die a procedural death. Very noble of them. Perhaps more than a few members will suffer a similar electoral fate come November. Anyway, there’s always next session. Live free or nullify.

Exile of Justice: Snowden Offers to Return for Fair Trial

21 Sunday Feb 2016

Posted by in Legal/Political Columns

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Three years ago Edward Snowden worked as a contractor for the National Security Agency. Alarmed by the NSA’s massive invasion of privacy and violation of civil liberties he leaked thousands of pages of classified information about the program to the public. His revelations were really nothing new; anyone with both eyes open could have learned the truth about the spy agency’s sinister agenda nearly twenty years earlier. They watch and listen to everything and everyone constantly. It’s conceivable that even as I type this article an NSA computer is dissecting it. Certainly within minutes of my official posting the electronic analysis will be completed. The whole thing will be archived. If the computer senses a threat, I will be passed on to human analysts.

Most of these people spend their days on Facebook or playing video games. Usually they miss alerts. That’s good when it comes to dissenting bloggers, bad when it’s ISIS. However, if a human verfies a possible threat, an investigation may ensue.

Again, if the danger is real and the investigative methods legal, it is a good system. There are plenty of real bad guys out there. As for the method, most electronic gathering is accomplished via open air interception. Anyone with a good enough scanner can capture a host of free floating transmissions. If you want your communication secure, either encrypt it, mask it, or don’t transmit it.

Snowden discovered that when open intercepts aren’t enough the government will illegally wiretap and spy as necessary. The illegality comes from a lack of warrant, lack of probable cause, and a total absence of oversight.

Acting as a whistleblower he disclosed this scheme to the public. As thanks the American redneckery and law and order, evangelical types branded him a traitor; the government declared him a fugitive. He now lives somewhere in Russia.

His choice of refuge turns geo-politics on its head. Thirty years ago Russia was a communist dictatorship that kept the people in line through spying and intimidation. Back then America was a freer country, a proud defender of the rights of the citizenry. Things change.

Snowden faces prosecution and assured imprisonment for decades should he return home. Yesterday, via video, he told a group of New Hampshire based libertarians he is willing to come back and face the music – conditionally. “I’ve told the government I would return if they would guarantee a fair trial where I can make a public interest defense of why this was done and allow a jury to decide,” he said.

lady-justice1

Google.

The whole affair is pointless to begin with. Three years later nothing has changed. No tangible evidence of damage to national security has manifested due to the leaks. Another holder of classified information, who leaked the same, is a leading contender for President. The people, most of them, never heard Snowdon’s warning in the first place. Those that heard forgot having more important things to attend – television, tattoos, football, etc. The NH libertarians are part of the .003% that get it. They represent a statistical outlier, an anomaly not worthy of official consideration. The NSA spies on, unhindered.

If Snowden ever returns and is prosecuted, he WILL NOT receive a fair trial. Such things simply do not happen in 21st century America. In fact, the American courtroom is the last place one should expect to find justice. No one gets a fair trial. Most don’t get a trial period. Snowden knows this. Thus, he lives abroad.

He and his attorneys have explored a plea deal with the feds. Most criminal cases end in pleas rather than trials. This is because people understand the system is so corrupt, it is usually better to accept a shorter jail term by coping to lesser charges. There have been exceptions. I recall a woman in Alabama who, faced with criminal tax charges, took the IRS to court and won. James Trafficant did the same thing in the 1980s. Both were plain lucky.

Snowden is looking for something different. He asks that his trial be conducted according to the Constitution. The Sixth Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” It mandates due process of law. That will not happen.

The particular charges are tantamount to Treason, one of the three specifically enumerated crimes in Article One of the Constitution. I’ll give the government that solid ground.

An indictment against Snowden has already been issued by a federal grand jury. Such juries used to be an independent check on prosecutorial misconduct. Today they merely indict as ordered by the U.S. Attorney, being no more than a tool of the DOJ. Defendants do not have a say in the process and the government can present any information, true or false (frequently lies) anyway it wants. Thus, fairness has already been compromised.

The Fifth Amendment mandates Due Process and prohibits double jeopardy. Rest assured that if, by odd chance, Snowden beat the charges, the government could then charge him with something else. Or, they could declare him a material witness, enemy combatant, material witness enemy, leprechaun or any other term(S) they make up and just imprison him. Just because they can. They could also just kill him without pretense or explanation. Just because.

In between the grand jury’s lapdogging and the double jeopardy potentially lies the trial. At trial the government controls everything. They get to present any type of evidence they like, often as a surprise to the defense. The defense is discouraged from attacking said evidence even when it is demonstrably false. The judge will move heaven and earth to keep defense friendly information out of the show. Occasionally defendants try to put the government on trial too. Judges, being government agents themselves, try to stop this. Remember, Snowden could bring in thousands of pages of documents damaging to the state. His ultimate argument could be that even if he technically broke the law, he only did so to expose worse behavior by the feds, thus he is really innocent and should be acquitted.

Such argument leads to potential jury nullification of the specific law as applied to a specific defendant. This is not a theory but an ancient design, a final check against corruption where the entirety of the legal and factual circumstances are left to the enlightened determination of the jury. Judges will defy the laws of physics to try to stop this from happening.

Then there’s the jury itself. Ages ago juries were a collection of intelligent men who were peers of, actual friends of the defendant. Being his friends and knowing his character they could weigh the presented evidence against their knowledge, thereby forming a reasonable judgement.

Today elaborate safeguards are in place to ensure jurors have never heard of the defendant let alone be his friends. The government wants dumb submissive jurors who will easily go along with what they’re told. Modern society makes this a given. A jury is usually nothing more than twelve stupid, poorly dressed, uninterested saps who may just as well be assembled of random midnight Wal-Mart shoppers.

This is the program to which Snowden would return. Sad, yes. Comical, perhaps. Fair? Anything but. Luckily, modern Russia is a pretty nice place.

 

 

 

Trial By Combat

27 Wednesday May 2015

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Not too long ago I wrote about my experiences with the American Jury system in the 21st Century.  It is broken.  End of story.  Any acquittal you read about is an anomaly – a celebration of truth and luck in a world gone wrong.  Juries are no longer the last check against tyranny they were intended to be in ancient Rome or Athens.

Most people plead guilty to criminal offenses.  Most of the rest elect to the convicted (not just tried) by a state appointed and employed Judge.  The small few who make it before a jury – not of their peers – are usually found guilty.  Everything goes the state’s way. Many celebrate this fact. I do not.  We were supposed to have due process and equality under the law.  This is especially important to the little person facing the endless resources of the government.  It is also, now, a fiction.  We have none of it.  Just convictions.

united-states-courthouse

(Temple of doom.  Google.)

The defendant in the Boston Bombing trial, Dzhokhar Tsarnaev, was convicted and sentenced to death.  His was one of the oddest trials I have ever heard of.  It lacked even the plausible credibility of some Soviet-era show trials.  In June Tsarnaev learns whether the judge will condemn him to die.  He surely will be executed.

If, indeed, he did commit the alleged terror attack, Tsarnaev deserves to die.  However, as I have noted before, there is amble evidence to suggest a government link to the plot. If the government is involved in any way, there is usually a plot participation.  This might not excuse Tsarvaev but it would implicate others.  It won’t though.  There was absolutely no mention or murmur of this in court on Tsarnaev’s account.  Alarmingly, there was no murmur at all from the defendant.  There was no defense whatsoever.

In a way the defense strategy made some sense.  They knew, as do I, there is no hope for honest truth or justice in an American court.  Accordingly, they adopted an approach which plead Tsarnaev guilty while attempting to shift the blame to the defendant’s dead brother.  The ultimate attempt was not to evade a conviction (a given) but, rather, to avoid the death penalty.  The approach did not work.

The government opened with a sympathetic case – no-one likes terror attacks on innocent people.  The defense then opened by acknowledging the crime and the defendant’s participation therein.  “Yeah, he did it. But…”  They closed the same way.

Then, the government called witnesses.  These were victims who had survived the attack.  They told the jury and court of their terrible injuries.  Terrible as they are, they do not establish, at all, any criminal culpability.  No mind – Tsarnaev had already admitted guilt. In most cases these statements of victims come at the very end of the trial – after guilt has been adjudicated.  They are usually used to determine what level of punishment is deserved of the convicted.  This case saw all phases conveniently wrapped into one show.  No challenge or examination at all was conducted on behalf of the accused.

I, as a defense attorney, could have lessened the blow of these witnesses but asking them if they had ever seen (in person) my client before.  None of them had.  They had no way to link Tsarnaev to the crime scene.

That tenuous link came from a video and pictorial collage presented by the government. Cameras are everywhere these days and there were numerous shots of the Tsarnaev brothers at the Marathon.  Nothing showed them setting off or planting the bombs. Then again, the defendant had already admitted his guilt.

No challenge came to this presentation.  There was equal evidence of former government employees – current “security” contractors at the event – with the same backpacks and in the same places as the accused.  The difference was that several (not presented) photos showed the brothers leaving with laden backpacks while the agents walk away unencumbered.  Nevermind.  Guilt admitted, remember.

The government presented weak findings as to how the alleged bombs were made.  A good munitions expert could have dissected these as ridiculous.  None did.  All evidence was submitted without protest.  There was then the matter of an alleged admission written on the walls of a hideout boat.  No objections.

Given what they were presented with the jury rightly found the defendant guilty.  He lost his gamble as to the jury’s recommendation of death.  That should have come as no surprise.  To the open-eyed and open-minded it should come as an alarm as to where the system has settled.

This is no system in which to place any faith of fairness.  The prosecution will get whatever it seeks in most cases.  Nothing will change.  There are efforts to reform the game but it is too far gone.  There is no public support for such efforts.  Thus, any alternative seems logical, if it be at all feasible.

Before I go further let me state that everyone is entitled to a defense at trial in cases of alleged criminal offense.  Ages ago several British soldiers were tried and acquitted in the Boston Massacre.  Their attorney believed in justice, no matter how unpopular the accused.  His name was John Adams.  You may have heard of him, he served as our second President.

There is an older, if more archaic, alternative to the jury system in criminal or civil cases.  You have never heard of it.  No American lawyers understand it nor would they encourage it.  The Courts will surely be averse to it though it has never been stricken from the codified law (like that matters anymore).  No law school will teach it.  No agent of the state would wish to face it.  No right-minded person would assert the alternative. But, it is there.

There is (or was) a thing called Trial by Combat.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Wikipedia (May 27, 2015).

trial-by-combat-granger

(Fighting it out.  Google.)

Wikipedia says this was a Germanic legal tradition, which is true.  However, the custom was known to many other ancient cultures.  Also, it continued into the somewhat modern age.

The defense continued in regular practice into the Seventeenth and even Eighteenth Centuries.  The accused or defendant would assert or demand his right. The prosecutor or plaintiff or a chosen champion would then join the accused in singular combat.  This was to the death or to a submission – usually death.  I cannot imagine too many district attorneys, police officers, or offended ex-wives going along, willingly, with such strategy. Then again, I cannot see most fat, lazy Americans demanding such a right let alone conducting such as trial.

In 1774 an attempt was made in Parliament, partly in response to the Boston Tea Party, to abolish the practice.  This and all other reform efforts failed.  No bill or law has ever rescinded the ancient right.  The right was in place, part of the English Common Law, when the American colonies declared independence from the King.  Thus, the right remained available to Americans.  Mostly, such spectacles took form in gentlemanly duels – outside of the courts.  Alexander Hamilton participated in one of these with fatal consequences.

Still, no state or Congress has ever formally repealed the practice.  The courts have not definitively ruled on it either.  This is the case in old England as well as in America.

As recently as 2002 a demand for trial by combat was made in Britain.  In Suffolk a man made the demand as his defense in an administrative hearing concerning the local DMV. The magistrates in charge, deeming, him deranged at best, ignored him and fined him a small sum for failing to register (or de-register) his motorcycle.  No appeal was made.

You would likely never assert this right as a defense or alternative course of trial.  Nor would I.  However, if facing severe criminal charges and punishment, trial by combat might mean the difference between prison and a mental hospital.  Which seems better to you?

If, though, you should succeed in joining a wager of arms, you may count yourself among the fortunate, even mythical, few.  In a federal criminal matter you may consider yourself Fingolfin doing battle with Melkor himself.  May the honor and victory be yours.

Trial By Jury, The Yellow Ribbon Myth and the Decline of an Ancient Institution

29 Wednesday Apr 2015

Posted by in Legal/Political Columns

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The ancient Greeks and Romans had the crazy idea that a man accused of a crime should have the benefit of a public trial.  During this ordeal the accusing party (the State) would have the burden of presenting facts, which might establish a crime.  The Sword of God crowd would hold these base allegations sufficient to show the underlying criminal act.  Our ancient ansestores had other ideas.  To them the issue was important enough to warrant consideration by an assembly of impartial justices – a jury.

Of old the jury consisted of various members of the accused’s peers.  These were his friends whom knew him well.  Why were such pre-disposed men considered impartial, as they were friends of the accused?  The idea was that, being men of honor, they would hear the evidence and weigh it in their minds fairly regardless of their relation to the suspect.  The fact that they were friends of the accused served as a check against an illicit prosecution.

If “X” was charged with a baseless crime, the jury might collectively judge that, “yes, X is given to bouts of indiscretion, but he would never do something like this.  Or, they might find that X, while am affable fellow, might be the sort who would commit such an act as alleged.

The system, while not perfect, worked well.  In Rome, such trials were reserved for the upper classes – for men of privilege.  Commoners were generally tried by magistrates in shorter, more informal settings.  These lessor citizens, being of lessor importance, faced lower burdens of proof and lower levels of punishment.  Fair if not.  Members of the elite classes, given to higher responsibilities, were treated to high levels of justice.  See the defense of Milo (a murder suspect), presented by one Marcus Tullius Cicero, one of the greatest lawyers of antiquity.

This theoretical approach to justice lived on after the 5th Century, being embodied in the Magna Carta, a core right of Englishmen.  Thus, the right to a jury came to America.

Today this right is practically non-existent.  In modern Amerika a jury trial, while nominally “of one’s peers” is one assured not by your peers.  The fact is that very few criminal prosecutions end with a trial.  Most of those end with a conviction (the vast majority).  This is due to the overwhelming influence of the State and the extremely limited powers of the accused to resist such influence.  Every effort is made to ensure that the jury does not, in nay way, know of the accused on a personal level.  Further, only those enslaved to the power and suggestion of the accusing State are favored or empaneled.  The system has been turned on its head.

Lately, several high-profile trials have made the news; these illustrate my point that there is no right to a fair trial in Amerika.

In 1989 Debra Milke was tried for the murder of her four-year-old son, Christopher.  A jury (not of her peers) found her guilty – based solely on the unsupported testimony of a rogue police detective.  Despite all indications of innocence the State’s chosen jury found Milke guilty.  Thus, for several decades Milke lived in the daily terror of Arizona’s death row – dimmed to die for a crime she did not commit.  The guilty parties averred she had nothing to do with the crime.  This did not matter to the State until the matter was finally (thankfully) reviewed by the U.S. Ninth Circuit Court of Appeals and the Arizona Supreme Court.  See also: Arizona Supreme Court Won’t Allow Retrial of Debra Milke. The prosecutor is, naturally, frustrated by this untimely carriage of justice.

Milke was blessed by higher intervention.  Too often the innocent in Amerika are executed for crimes they did not commit.  A recent admission shows that the FBI and its crime lab have doomed at least a dozen innocents to death.  You have probably never heard of these cases of injustice.  So it goes.

Thus do the innocent, robbed of true justice, resort to filing pleadings in courts entitled, “F*ck this Court.”  This one warrants reading and consideration.

Debra Milke faced execution because a heartless police officer lied under oath.  The officer has since “taken the fifth” so as to avoid prosecution himself for his lies.  The citizens of Arizona will pay millions of dollars to right this injustice.

A thousand miles away, in Boston, Dzhokhar Tsarnev has been found guilty of the Boston Marathon Bombings.   His was one of the most bizarre trials I have ever heard of. See: Boston Marathon bombing trial: 18 jurors at a glance.  The jury was selected based on their indifference toward the accused and their alliance with the state.  Tsarnev was not allowed a defense.  Rather, he, by way of his “counsel,” admitted guilt but relied on specious allegations of the undue influence of his older brother.  His brother and other key witnesses were, conveniently, dead.

The case was tried backwards.  The prosecutor first present victims of the bombing and their woeful statements – this usually comes after guilt has been established, during the penalty phase of the trial.  Tsarnev’s counsel never even questioned these witnesses.  The government then presented an unopposed fable of how Tsarnev constructed and utilized homemade bombs.  Again, no challenge came from the “defense.”  The lack of direct evidence was deafening.

Having admitted guilt and completely failing to challenge the government’s base allegations it was a given fact Tsarnev would be found guilty.  They strategy (if any) of his counsel was that he would attempt to evade the death penalty by way of the supposed undue influence of his dead brother.  Charming.  Pathetic.

It is entirely likely that this young man played a part in the bombings.  Thus, he deserves execution for his crimes.  However, I have long suspected he was only a pawn in a false-flag operation designed to test America’s willingness to endure a police state (shelter in place, and all that).   We will never know the truth here.

As a former criminal defense attorney I am well aware of the failings of the modern, American jury system of “justice.”  Here follows the entire account of one of my trials in federal court, before a jury and bereft of justice.  The names have been changed to protect the innocent, the guilty, and me.  This story was originally designed for publication (never achieved) in a major news journal:

The Yellow Ribbon Myth: Amerikans Do Not Support The Troops, Nor Justice.

Do you “support the troops?” One sees countless bumper stickers proclaiming such support. I no longer believe the propaganda. When someone says, “I support the troops,” I hear, “I support the government.” This concept was made painfully obvious to me during a criminal trial last fall.

My client, “Donny’s” case, in a U.S. District Court, 2012:

I’m am calling my client “Donny” as I have not yet sought his permission to use his name; I also may be restrained from using certain facts due to Orders of Sealing/Impoundment.

Donny enlisted in the U.S. Army while in high school and completed basic training the summer before his senior year. Donny received an appointment to West Point though, after one year, he stopped his education and entered the Army as an enlisted man. He served with the 375th Ranger company in Afghanistan where he was forced to kill men, women, and children. The experience haunts him daily.

While in the field and during additional training he sustained major injuries, which necessitated his retirement on disability: I think his physical was 50%; his mental injuries (PTSD, psychosis, etc.) were 100%. During his tenure he rose to the rank of Sargent and was awarded so many medals and commendations that multiple forms DD-214 were necessary to list them all.

He received continuing physical and psychiatric treatment at the Augusta, GA VA hospital; they placed he on enough narcotics and psycho-tropic drugs to turn anyone into a zombie. His mental condition was initially rated as temporary. Throughout 2011 he pursued the status of “permanent and unemployable.” During this time he suffered marital and mental health-related troubles daily. Towards the end of his bureaucratic ordeal he made a phone call to the VA national “service” center.

During the (recorded) call he made statements which the VA took as terroristic threats – they alleged he said he was going to the regional VA office in Atlanta to kill the first 3,000 people he encountered using unspecified weaponry. My review of the call lead me to believe he was not sane during the call, that the government’s allegations were a wild, composite stretch of the words used, and that VA’s service isn’t. He was originally arrested on State charges. He was legally carrying a pistol at the time though the arrest was without incident. Damningly, his permanent status was approved the next day. He was released on bail only to be rearrested by the feds, charged with violating 18 USC 875, interstate terror threats (a 5-year maximum felony). Had he specified a “weapon of mass destruction” he would have faced 40 years in prison.

I was appointed as defense counsel and immediately moved for a psychiatric evaluation, thinking this would easily end the case. After several months I received a lengthy report from the MCC New York which exhaustively listed Donny’s chronic mental problems and concluded he was permanently psychotic. However, the good (government) doctor also stated he was obviously sane at the time of the call and competent to stand trial.

We elected to present the matter to a jury, figuring no twelve people could possibly convict a sick man for seeking help from the only source available. We were wrong. The government’s doctor explained the extent of Donny’s condition. The VA representative from the call stated she was not threatened by Donny’s language. The VA stated they did not take any defensive measures when faced with this 9/11 magnitude threat from a man they had trained to expertly kill other human beings. The VA storm-trooper in charge testified he lied under oath to the Grand Jury to obtain the indictment and that he, for no reason, held Donny’s elderly, disabled father at gunpoint AFTER the arrest. Despite all this the twelve morons returned a guilty verdict in less than half an hour. As an aside, at trial the government sandbagged me with thousands of pages of previously withheld discovery and they handed me the afore-referenced pistol LOADED in open court (I cleared it in disbelief).

Donny was sentenced to time served with the probationary condition that he continue his torture at the VA. When I walked into the hearing I was greeted by the AUSA and the VA goon who both suddenly agreed Donny was out of his mind during his “crime.” Donny accepted his sentence and declined both an appeal and a request for a Presidential pardon. I fear his condition will worsen, perhaps with morbid consequences. He is a delightful but pitiful and broken man. I was saddened and broken by this affair.

In modern Amerika Grand Juries, while supposedly independent in their deliberations, are little more than tools of State prosecutors.  The defense is usually excluded entirely. The State has the free reign to present any “evidence” no matter how contrived.

The trial that follows (if any) is a showing of prosecutorial imagination and juridical ignorance.  Less that 3% of defendants are acquitted under this system.  The innocent are convicted and often executed.  The lucky escape after years of torment.  Life goes on and things are not likely to change any time soon.

I will, shortly, present an alternative, if primitive, alternative to this mad, fixed system of “justice.”  Until then, be forewarned and prepared.

The Sword of Government

14 Saturday Feb 2015

Posted by in Legal/Political Columns

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This morning I read a letter to the editor of the Augusta (GA) Chronicle wherein the author proposed streamlining the dead penalty process.  The author had, I think, a mild semblance of good intentions behind his missive.  He certainly picked a sympathetic test case.  However, his proposal is extraordinarily dangerous.  And, unfortunately, his thinking is all too common in modern America.

His letter recounted the guilty plea entered by a South Carolina defendant accused of murdering a police officer.  As I have written elsewhere most criminal cases end in plea “bargains.” By entering his plea the defendant avoided the possibility of the death penalty.  This is a common practice.

The author argued the defendant deserved to die for his actions.  Perhaps he does.  I am not opposed to the death penalty per se.  Under the right circumstances it is a fitting punishment.  But, as I have written before, an American courtroom is one of the last places on earth one may find appropriate circumstances.

The author notes, correctly, that in South Carolina and Georgia (all civilized jurisdictions) a jury’s decision in a death penalty case must be unanimous – all of the jurors must agree the crime of murder was committed by the accused.  After reaching that conclusion they must separately and unanimously decide if death is the appropriate punishment.

Our letter writer calls on “both state legislatures of Georgia and South Carolina to change the law that requires a unanimous decision by a jury for the defendant to receive the death penalty.”  He proclaims: “When heinous crimes are committed, it should only take a simple majority of jurors for the person to receive the death penalty.”

His most disturbing and telling comment is: “The government should be the sword of God, and the guilty party should be hanged in public in front of the courthouse.”  The government should be the sword of God…  I submit he really believes the government should be … God.  This sentiment is as common as it is alarming.

First, as a legal matter, there is a sober reason why jury verdicts should be unanimous. In a criminal case, especially a death penalty case, the burden of proving the underlying facts and elements of the crime rests solely on the state.  The state must prove these elements beyond all reasonable doubt.  This means a reasonably prudent man (twelve of them) must have no logical reason to question the defendant’s guilt.

JurorsWEB_20120112144338_320_240

(Google.)

I’m working an article about the origins and logic behind the jury system.  In short, it is a last check against a tyrannical prosecution.  Should a corrupt government bring a baseless (or sloppy) case against an accused individual, the jury stands between that individual and injustice – or so it was intended.  Having multiple jurors eliminates the possibility of individual juror prejudice co-opting justice.  In critical murder cases the unanimity rule adds a final layer of protection.  If only one juror maintains doubt, the whole jury is “hung.”

This protection is in place for all of us.  The Chronicle letter was followed (online) by several reader comments.  All but one wholeheartedly agreed with the author.  The lone holdout noted a Ohio case where three men were convicted or murder and sentenced to death.  After 39 years in prison they were exonerated in a crime they never committed.  This too is an all to common occurrence in America.  Hang them and let God sort them out?

If I read the author’s thought correctly, then I suppose he would really like to dispense with the jury and trial altogether.  In his mind an accusation should lead to immediate execution …  for God’s glory, no doubt.

I also suspect he subscribes to the simplistic reading of Romans 13 – that government is a righteous extension of God’s will.  Paul qualified this passage in terms of just law and order.  Should that government derive its authority and actions from Natural Law this assumption would be correct.  I do not know of any government, ever, which has so existed.  By their logic, blanket 13’ers would have to sanction any and all government actions as the will of God – including those of Stalin and Hitler.

The “sword of God?”  Government is just a sword – pure brute force – imposing the will of the ruling (Godly or not) on its subjects.  As I said above, I think the writer would supplant the Almighty with earthly governance.  This blasphemy is in vogue across the political spectrum.

CNN news anchor and Fordham Law School educated Chris Cuomo recently espoused the view that laws and rights come from earthly government and not God.  ‘Our Laws Do Not Come From God’.

Maryland Congressman Elijah Cummings goes further – he says people “come to government to feed their souls.”  Rep. Cummings: People ‘Come to Government To Feed Their Souls’.

The views and quotes show plainly that the new American religion is statism (a pitiful, second-rate brand of Satanism).

As to the suggestion the South Carolina defendant deserved to die, I recall several lines from The Lord of the Rings.  While discussing Gollum’s crimes, Frodo asserted that Gollum deserved to die.  Tentatively agreeing, Gandalf answered masterfully: “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”  As true in South Carolina or Georgia as in Middle Earth.

 

 

It Depends…

16 Saturday Mar 2013

Posted by in Legal/Political Columns

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On any given day I receive requests for legal advice – from clients, friends, and strangers.  Half of the time I am not truly familiar with the subject and usually not that interested.  Lawyers are trained to qualify any response they give to such questions as to their lack of specific knowledge.  They can be sanctioned for malpractice for giving advice which is incompetent.  Thus, I usually make it known that any answer is largely my off the cuff opinion, that I am not giving official advice unless retained to do so, and that any further explanation will require research.  This generally gets rid of most inquirers.  Usually their questions aren’t important enough to spend money answering.

My civil procedure professor in law school told us the answer to any legal question, initially, is always, “it depends.”  As a first year student, in a class that doesn’t begin to make sense until the end of the semester, this statement was perplexing.  It is entirely correct though.

confused

(Uhhhhh…weeeellll.  Google Images.)

“It depends” is a fancy, professional way of saying, “I don’t know.”  Most attorneys don’t know the answer to most legal questions, even in areas they specialize in.  To begin with, the law is such a vast, confusing, and constantly changing field, it is completely impossible to know everything about anything.  That senior lawyer with the “encyclopedic knowledge” of the law from the Tom Hanks’ movie, Philadelphia, resides on the silver screen and nowhere else.  Next, the facts presented by a particular person’s circumstances may differ from any other set of facts conceivable.  Think of laws as wrenches and facts as pipes; a lawyer is like a plumber, applying different wrenches to different pipes.  Most importantly, cases in court will ultimately have conclusions which cannot be foreseen, let alone guaranteed.  Any lawyer who guarantees an outcome is a liar and should be avoided. 

I have won cases I knew I was going to loss.  I have lost cases when I should, by all rights, have won.  Judges are as fallible as any other human beings and juries are like living roulette wheels.  Jurors are often influenced in their decisions by things completely unrelated to the case they’re reviewing.  As a prosecutor I once lost a DUI case just because the jury did not like the way my arresting officer presented himself on the witness stand.  They agreed the law applied to the defendant and the defendant’s actions qualified under the law as clear indications of guilt.  However, the officer kept yawning on the stand and the jury felt he wasn’t interested in the case and didn’t try to convince them of the State’s position.

Jury-Images-1

(Not a good day in court.  Google Images.)

That particular officer was well-seasoned and knew his job.  Unfortunately for me, he had just come straight into court from the night shift and was focusing most of his energy on staying awake.  I did not foresee that and there was nothing I could do about it.  As a consolation prize, I did win on the related minor parking charge.  The judge informed the very happy defendant he had dodged a bullet.  Chance leads to many dodged bullets in the law, and bullets that sometimes find innocent victims.

Usually an experienced attorney, once familiarized with the case in full, has a pretty good idea as to what will happen.  The attorney can relay this confidence to his client.  However, for the reasons I just gave, no attorney should ever declare even the most trivial matter a slam dunk.

In my article Legal Education I noted that law schools primarily teach worship of court decisions and legal research methods.  While it’s impossible to know all the law, it is quite easy for a skilled practitioner to look up and educate himself on any given subject.  I’ve had clients call, upset about “research” charges on their bill.  I always stand by these fees, so long as they are reasonable for the given case.  Doctors do extensive research before they cut a patient in surgery.  Lawyers are no different.

Like doctors, lawyers sometimes feel the need to associate expert counsel to assist with a really complicated area of the law.  Once a client came to me in a tizzy over a copyright infringement case which had been filed against him in federal court.  As the case was in a district where I do not normally practice, and after a cursory review of the maze of intellectual property laws, I concluded justice required me to hire another attorney from a giant Atlanta firm for assistance.  This was a very costly decision for the client.  In the end, though, the money was well spent.  I would draft the responsive pleadings to the best of my ability and with the client’s in-person co-operation.  Then I would email the drafts to the expert for touch-up and filing. 

As a result we were able to re-open the case and have a default judgment set aside as unjust.  Then, we removed the case to my area (where the client lives and operates his business).  There’s something to be said for home-field advantage.  We even got the “foreign” district judge to issue a scathing censure against the opposing counsel for his obnoxious behavior in the case!  That had the dual effect of making me and my expert look good and it took the slimy steam out of the other guy.  He was fired shortly thereafter.  In the end, we wrangled out a terrific settlement for pennies on the dollar out of the whole ordeal.  It was good work of which I am still proud.

Don’t be taken aback if your attorney reveals she isn’t familiar with the topic you present.  Such revelation is the mark of honesty.  Be ready to spend time and money on an investigation which may end up disappointing you.  It’s better to be told your case does not have merit or is unwinnable in the beginning, rather to discover such at a trial.

Remember, the advice I’ve given here is merely legal education for the lay audience, not exact legal advice.  If you have a specific case, you should consult a specific attorney.  Based on the subject and how your facts fit the law the outcome may be difficult to predict and will require some degree of research and work to resolve.  As for what I could tell you right now?  It depends.

Don’t Make A Federal Case Out Of It!

23 Saturday Feb 2013

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The title of this column is a common phrase, the equivalent of “don’t make a mountain out of a mole-hill.”  It is an admonishment to not blow things out of proportion.  I use it, here, as a legitiment plea.  Too many cases, particularly criminal cases, go through the federal court system.  “The more laws, the less justice!” remarked, Cicero, perhaps ancient Rome’s ultimate statesman.  I echo his sentiment as one of my favorite quotes of all time.

In general, in Amerika today, too many things are against the law.  In the old days you have to harm someone or actually threaten them with harm to find yourself in court.  Now, any excuse will do for a persecution .. prosecution, rather.   Owning certain plants is illegal, and not only the ones some people smoke to get high.  “Short” lobsters are illegal.  Not reading a contract in full is illegal.  Everything is illegal.  By the way, I write “Amerika (with a “K”),” like many commentators, to lament the decline of my country, America.  I have watched it change completely during my life, I’m sure you’ve noticed it too.

Back to federal criminal laws.  There are somewhere on the order of 10,000 criminal laws inside and outside of Title 18 of the U.S. Code.  Add to that the innumerable regulations which carry criminal-like penalties and the ways to criminally control and extort the people are almost limitless.

Remember that old rag called the Constitution?  It seems most people have forgotten it, especially those charged with defending and upholding it.  I am one such sworn defender who keeps it in mind more than most. 

Stock Photo of the Consitution of the United States and Feather Quill

(Birth of a government… Source: Google Images).

Oddly, I am not the greatest fan of the Constitution.  This shocks many people who know me as an ardent proponent of the document.  The Constitution was drafted for one reason – to create a new government.  Not being a fan of government, and not being able to find sufficient fault with the previous version under the Articles of Confederation, I view the Constitution and its child as unnecessary, dangerous even.  However, since we have it, one would assume we should use it.  The problem is we don’t.  “We” is misplaced.  The problem is the government’s complete abdication of the limits placed on it by the Constitution.

Lysander Spooner observed, over 100 years ago, “whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it.  In either case, it is unfit to exist.”  And, that was before the exponential growth of the present government. 

As is, I have sworn several oaths to support and defend the Constitution; therefore, I do so.  I read the Constitution literally (adhering to the “strict construction” view) and only put credence in what is actually listed therein, no more.

Back to federal criminal laws, again.  Do you know how many crimes are designated for federal prosecution?  The number is a little less than 10,000.  The Constitution authorized congress to make and allow prosecution of THREE crimes!  Those, all found under Article I, are: 1) counterfeiting money; 2) piracy and; 3) treason.  Most of these are almost exclusively committed by the government these days. They obviously don’t prosecute themselves absent exigent circumstances (political payback, etc.). 

Actually, there are other crimes acceptable as federal crimes.  The great Ron Paul, speaking in the House Floor, noted four federal crimes.  I would not dare dispute the Honorable Doctor.  Thus, I defer to his number, though I will question exactly what the fourth crime is.  There are a few possibilities.  I do not read expansively, as some do, that the other legitimate functions of the government authorized in the Constitution might lead to hypothetical or extrapolated crimes.  That reading is how we got to our present state of insanity.

The Constitution authorizes punishment for violation of the “law of nations.”  I’m not sure what that means but it is written.  The 13th Amendment outlawed slavery (I have a new series coming on the subject!) and provides for punishment.  That would be a federal crime.  It’s possible there are others but the number thereof is very short.

All other crimes, legitimate crimes, are left for state or local prosecution.  That’s what the Constitution says.  You can read the whole thing here and I recommend you do, frequently: http://www.archives.gov/exhibits/charters/constitution.html.

The federal government was never intended to be all-powerful, though it has assumed that god-like position.  Blasphemy, I say!  I have never thought of any easy way to reverse the course of tragedy in our laws.  Therefore, I have resolved myself to faithfully do what I can, individually, to maintain true allegiance to the Constitution, flawed though it may be.  I have met with little success.

Over my professional legal career I have undertaking criminal defense matters with great enthusiasm.  I have worked and tried many cases, including many in federal courts.  During my tenure I have never defended anyone charged with piracy, counterfeiting, treason, or slavery.  One client was close to counterfeiting – accused of identity theft which robbed people and banks of money, kind of like printing the stuff from scratch – like the Federal Reserve does with Congress’s illegal blessing.

Most of my clients were charged with any and everything else, though usually the cases involved firearms and narcotics.  Most of these defendants chose to enter pleas in exchange for reduced sentences.  Most (like 97%) of federal defendants do this.  This is a sad statistic.  Very few cases go to trial and the government wins most of those by a similar margin.  I have successfully had cases dismissed outright.  That is rare in any court system.  I also negotiated better than most attorneys for my clients and any reduction in punishment they might receive.  I am not really proud of that last part and I have found it difficult to accept.  The lesser of two evils is still evil.  I don’t like evil.

The last case I tried to a jury involved charges of terroristic threats against a government agency.  Such vague “threats” as they were probably would not have supported a prosecution had they been leveled at me or you.  Directed towards the government they were unforgivable.  The nefarious methods employed by the government to obtain an indictment and a conviction were similarly outrageous. 

The jury did not hesitate to convict my client, a truly helpless man who had done harm to no-one.  He was released with “time served” with the government’s blessing.  Frequently, they just like to remind people they are in charge, and no more.  I must admit most of the local officials I deal with are more honest and compassionate than the average.  Still, that does not change the system.  My client declined my suggestion of an appeal and even my offer to seek a Presidential pardon (those of usually reserved for “buddies” and campaign contributors).  My guy just wanted to get back to life as normal.  I understand his plight and decisions.

During the trial, before the jury was sent to deliberate the case, I made a legal motion to have the case dismissed for purely legal reasons.  Juries consider all facts in conjunction with the law.  Judges consider matter purely legal in nature.  My motion was three parts, the last being reference to the lack of Constitutional authorization for the charged offense.  The motion was denied completely.  The denial would have survived appellate review.  The courts have consented to Congress’s massive expansion of the criminal laws and the President’s prosecution thereof.  So much for separation of powers.

I have made the same argument before.  To my knowledge I am the only attorney in the area (maybe the nation) who still dares to do so.  I care not for erroneous appellate decisions.  Recall, if you will, that once the Supreme Court said slavery was a-ok.  It never was.  Likewise, honesty and justice compel me to recite the legal truth about law, Natural and statutory, over and over regardless of the ultimate outcome.  When I make such arguments the Courtroom usually goes dead silent and I have gotten used to icy stares.  I have also learned not to push my luck and that these arguments do not work.  Making a simple point is enough, I never argue to the point of being held in contempt.  I have heard others have done that.  I am too much of a coward to risk jail over moot points.   

Some have told me these concerns are better taken up with Congress.  All things being equal, that is correct.  Congress is supposed to be there to hear grievances.  Have you tried communicating with Congress lately?  It was largely a pointless endeavor in days past; almost no members of the assembly cared for truth.  With the departure of Dr. Paul, there is no point now. 

We have lost the greatest champion of Liberty since the passing of the Founders.  We have lost truth and justice.  At least we have 10,000 criminal laws to comfort us.  Enjoy!