AMERICAN   JUSTICE

On August 25, 1992, Donald Carson, a bank executive believed his home in San Diego County was being invaded by robbers.  He called 911 then grabbed his pistol.  DEA agents shot Carson three times--twice after he was down and clearly disabled.  Carson spent 7 weeks in intensive care fighting for his life.  He has permanent major disabilities.  The DEA had, contrary to policy, acted on a tip without independently verifying the information. No drugs were found.  The DEA had been relying upon a paid informant.

Donald Scott, alarmed by his wife’s distressed cries, emerged from their bedroom carrying a gun.  Deputy sheriffs shot him dead.  The television show “Sixty Minutes” showed that though their prior investigation failed to uncover any drug involvement, the sheriffs “fabricated” such to obtain from a judge a search warrant.  The sheriffs were hoping to obtain Donaldson’s multi-million-dollar Malibu, California, property through forfeiture.

A confidential informant told police of Laconia, New Hampshire, that Philip St. Hilaire, owner of Laconia Auto Wrecking, was selling cocaine at his business. Philip, leaving work had just gotten into his car when he spotted several armed men approaching from behind. Officer Gunter claimed that he saw Philip reaching for a gun, so shot him through the closed car window. Philip, critically wounded, asked the officers: “Why didn’t he identify himself, why didn’t he say he was a cop.”[1]  Philip, paralyzed from the neck down, died from complications 18 months later. No drugs were found.

Two decades ago warrants were, except in special circumstance, served in the daytime, and guns were not drawn.  Something has happened to our court supervision of the police and to our 4th Amendment.

        The 4th Amendment of our Constitution guarantees:  “The right of people to be secure in their person, papers and effects against unreasonable searches and seizures. . . .”  In the spirit of those words the courts have established a number of restriction upon the action of police, restrictions against late—night searches, the Knock and Announce Rule, the obtaining of a warrant supported by an affidavit showing probable cause, to name some of the important ones.  But today’s courts have abrogated (though not formally) their supervisory role through the evisceration of the 4th Amendment. Philip Hilarie, Donald Scott, Donald Carlson and thousands of others have found out.

The Search-and-Seizure Rules, along with every other constraint placed upon police and prosecutor, have been gutted by our Congress through their appointment of prosecutors and like-minded attorneys to judgeships. As Justice Reinhardt of the Ninth Circuit noting this change wrote:  “Certainly, today’s majority [Supreme Court] is no believer in judicial precedent.  Nor does it follow the doctrine of judicial restraint or strict Construction. A far different term from conservative is needed to describe the activist right-wing majority that is currently rewriting the U.S. constitutional law in its own image.”[2]  Their image is one of Congress controlling (if they care to) the U.S. Attorneys, the FBI, the B.O.P., and others without the hindrances of constitutional restraints.  This failure by those who sit and judge to supervise and restrain the law enforcers and prosecutors, this attorney-author Charles Sevilla termed tag-team justice.[3]

  The rewrite began in November of 1975, just months shy of the 200th anniversary of our Declaration of Independence:  Justice William 0. Douglas, a Roosevelt appointee to the Supreme Court (SC hereafter), retired.  With his replacement the Tag-Team conservatives obtained a majority.

The High Court had established, based on the Fourth Amendment, that only if there was probable could a court issue a search warrant; moreover, any evidence obtain through an illegal search was not admissible in court--the Exclusionary Rule.  Given that the application of this rule occasional resulted in a guilty people going free, the court received adverse press.  The new conservative majority responded:  Chief Justice Berger wrote in 1975, year wrote:  “The time has come to modify its (the Exclusionary Rule) reach . . . ."[4]  This was done by eliminating ALL of the situations in which the rule had been applied.

          In the ninth case on Search and Seizure of that 1976 Term, the Tag Team permitted Immigration to set up roadblocks and question occupants of vehicles (and by 1992 to search for drugs).  Prior to this a questioning of a person within our boarders could proceed only in very limited circumstances, for such questioning was held to be a type of search.  The new majority overturned, basically all the restrains upon law enforcement regarding search and seizure, including two cases decided in the previous session.  Justices Marshall and Brennan, now in the minority, wrote of this change in their dissenting opinion: “Today’s [1976] decision is the ninth this term marking the continuing evisceration of the Fourth Amendment protections against unreasonable searches and seizures."[5]  In that case before the High Court, the averments of Charles Sevilla on behalf of Amado Martinez-Fuerte could only fail.

The Tag-Team SC has created the Open Field Doctrine.  It allows government agents to ignore no trespass signs, barbed wire fences and brick walls when they enter a private field during a warrantless search.  Today phones can be tapped and bank records inspected without probable cause.  The conditions under which a search warrant is required have been reduced and the penalty for proceeding without one (the Exclusionary Rule) has been eliminated.  Today evidence is not excluded.

Florida police routinely storm interstate buses and Amtrak trains at the layovers in Fort Lauderdale and Palm Beach.  There they question passengers and search luggage. If they refuse, then they are detained until a search warrant is obtained.  The Florida Supreme Court found this to be an unconstitutional search and seizure. The State’s Attorney General’s Office appealed their High Court’s ruling, and our SC overturned the state’s holding.[6]  A similar fate occurs at our borders.  And if the agent so desires, he will search also the body including its orifices. A refusal to submit will routinely results in that person being held in a locked facility until they can obtain a search warrant.  Any statement by a government agent as to reason will satisfy the court issuing the warrant; and for those searches proceeding without a warrant, the evidence so gathered is admissible in court.  These are the results of our new type of legal conservatism.

        Today, thanks to the Tag Team, we are subject to search at the whim of the police.  The results have been documented in our popular press. Among the reasons given by police officers for detaining travelers as listed in articles by Mother Jones and the Pittsburgh Post includes:  fits the drug profile, carries large bills, lots of cash, paid for ticket in cash, bought a one-way ticket, bought a round trip ticket, travels alone, travels with a companion, has old luggage, has new luggage, first person off plane, among last off plane, in a hurry, walks slowly, walks quickly, appears afraid, tries to lose himself in the crowd.[7]  Thus though a person can refuse a warrantless search, but any statement to the court will suffice for obtaining the warrant.

      Traditionally body fluids have been held to be private, not subject to a warrantless search.  But today's courts uphold “voluntary” testing by employers as a condition for employment.  Schools too have followed suit.  The Veronia School District in Oregon instituted drug testing of participants in their intramural sports. James Acton’s parents refused to sign the consent form for their 7^th-grade son.  The school excluded the child from intramural sports; the parents went to court.  The Court of Appeals upheld the student's rights to his body fluids and ruled against the school's policy of excluding students who refuse testing.[8]  However, the SC in 1995 overturned the appellate court.[9]

This case is one step from permitting roadblocks and ghetto sweeps. The logic thereof would be the same as in the Acton case, a pressing societal need; i.e., security from drug criminals.  The Fourth Amendment states:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."  The Supreme Court has removed this impediment. 

       Of Course the new Court's work didn't stop with the Fourth Amendment, the entire Constitution has been given new meanings, meanings that prosecutors sought. The 8th Amendment states:  “nor cruel and unusual punishment inflicted.” Its purpose is obvious.

William Rummel received life under the Texas three-strikes law for a total of under $230 of financial wrong doings. In 1964 he had been convicted for credit card fraud in the amount of $80; in 1969 for passing a forged check for $28.36; and finally in 1973 for obtaining $120.75 for an air conditioner repair which he never performed.  Punishment out of proportion to the crime has traditionally been held to be cruel and thus unconstitutional.  A majority of the Justice of the Fifth Circuit Court of Appeal found William’s life sentence not to be cruel and the SC agreed.[10]

From this precedent for Rammel, it was a small step to life without the possibility of parole for Ronald Harmelin, a youthful first-time offender.  He was arrested with 672 grams of cocaine--which costs him about $10,000.  Drug distribution is a violation of regulation, not a crime against person or property!  The usage of cocaine is regulated, as is that of alcohol.  In a case that received national attention, Ronald lost all his appeals, including the one before our SC,[11] which found the punishment not to be cruel. 

Given the SC's precedents, an appellate panel of the Fifth Circuit upheld Duhr's receiving a life sentence for a mere DWI (driving while intoxicated).  His priors were the mere possession of marihuana, and the theft of three small checks (one episode).  Under Texas law he got 99 years for a DWI.[12]

Simon Smallwood shoplifted $27.64 worth of meat from a grocery store in Huston, Texas.[13]  He told the arresting officer he was hungry. Now he’ll he eating at the state's expense (about $25,000 per year) for the next 50 years; he got a life sentence.  Cruel-and unusual punishment clause of our Bill of Rights is essential now only of historical interest. 

Our courts have lost the long-established distinction between malum prohibitum and malum per se.  Drunk driving and shoplifting are malum per se, because some one could have been hurt by the vehicle, and shoplifting is theft.   But other activities merely deprive the government of revenue or regulate an activity done by many citizens; for violation of such laws involves acts that are malum prohibitum.   Among the least harmful of this class of acts is the failing to report the amount of cash one has when crossing a border and that of being an ex-felon who has handled a gun.  If the ex-felon has one prior, federal law proscribes a punishment of 5 years, but with a total of 3 separate priors being of drugs or violence, the minimum sentence is 15 years; 15 years for handling what half our citizens own, a gun. For an act that is merely malum prohibitum (results in no harm) prolonged incarceration is cruel.  But after the Rammel ruling, such a defense fails.

                  Our courts now apply the repeat-offender clause to first-time offenders.  Thomas Huspeth late at night in just 36 minutes broke into three adjacent stores in a mall back in 1983.[14]  Joe Maxey sold on two separate days in May of 1981 a $10 PCP joint to a North Los Vegas cop.[15] Chris “Lonesome” Frushon had plead guilty to five burglaries in 1987.[16]  Tom, Lonesome, and Joe all years later possessed a gun. Lonesome, for example, who was managing a service station, had 3 hunting shot guns stored at home. All were arrested, not for criminal activity, but for mere possession of a gun.

They were charged under Section 924(e)(1) of Title 18, which specifies: “has three previous convictions by any court, for a violent felony or serious drug offense, or both, committed on occasions different from one another. . . ."  Why add (e)(1) which increases the sentence from 5 to 15 years?  Why the word pervious?  Is not the added (1)(e) to section 924 designed for repeat offenders, those who have been incarcerated, released, and subsequently incarcerated?  Three previous convictions only makes legal sense if it means three previous convictions on different dates by different courts.  Fully 90% of the cases in court result in multiple convictions from multiple counts, such as with Tom, Lonesome and Joe.  This reasonable interpretation of (e)(1) is that it applies to repeat offenders, so wrote a minority of appellate judges.  As a consequence Tom, Lonesome, and Joe, who had only one prior conviction were each given 15 years because they handled a gun.                                                                                      

The meaning of “violent felony” fares no better.  Even the taking of a spare tire stored in an open garage counts as a crime of violence, for it is a burglary. Our courts have defined all burglaries as crimes of violence.   Other sections of this statute and the related one governing the use of a gun during a crime has received interpretations that also result in travesties of justice.  The first violation of the statute result in the tacking on of a sentence of 5 years, in addition to what is meted out for the actual crime.  Each “subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years . . .” (18 USCS §924 (c)(1)).  One would assume that subsequent conviction means after the first conviction under §924/--only three of the 9 SC Justices thought so.

Thomas Lee Deal discovered the meaning of "subsequent conviction."   Deal between January and April 1990 committed 6 armed bank robberies. The SC upheld Deal's receiving 5 years for the first violation of §924 and 20 each for the remaining 5 violations of §924, a total of 105 years.[17]  There were no acts of violence; but the gun regulation got Deal 125 years added on to the sentence for the bank robberies.

      To correct one of the glaring travesties of justice, Congress in 1986 had[18] modified §922 so that a felon who could possess a gun legally under state statutes, such as when his rights had been restored, would not be in violation of federal statute, §922.  People were being convicted under federal law after the state gave them permission to own a gun.   McGrath's situation was not covered by the new enactment.  He had in 1961 been convicted of the felony larceny under Vermont State law. He served no jail time thus he never lost his right to possess a gun.  However 31 years later he was charged with possession of a gun he could legally carry under state law. The appellate court reasoned in upholding his conviction that since he never lost his rights to carry a gun, he could never have it restored, thus the condition for the 1986 exclusion to §922 could not be applied.

          Great discretion has been given the Assistant U.S. Attorneys Office in how he charges a citizen for the violation of U.S. statutes.  And as we have seen in these published cases of Maxey, Fushon, and Huspeth, this discretion is not wisely used.  It is not just those who violate the law and their friends and family who are the losers, but also our society through taxes.  It cost more than $40,000/year to house a federal prisoner (the Bureau of Prison's budget divided by the number of inmates).  Citizens such as Huspeth, Maxey and Fushon, who were employed, they will each cost us taxpayers over a half a-million dollars.  Money that could have a positive impact on education and housing (and thus reduce crime) has been spent on turning these men into harden criminals. 

 The Founding Fathers who drew up our Constitution sought to preserve the better parts of the British system of government and law and also to exclude the worst parts of their system. This was the purpose of the Bill of Rights (the first 10 Amendments):  to give our courts through its laws the ability to limit Congress in its power to police the American people.  One of the corruptions our Founding Fathers observed in England and France resulted from the taking of property by the state. Under British law there were 3 conditions for forfeiture:  the property caused harm (a bull injuring a person),[19] upon conviction of a felony, and if the objects were used in violation of the law (a boat for smuggling). Seeing much abuse in the taking of a felon’s property,[20] this right of the state was limited to cases of treason.  Article II, Section 4, Clause 2 states: “No attainder of treason shall work corruption of blood or forfeiture except during the life of person attained.” However, this Clause did not preclude a future Congress passing a law which would permit the forfeiture of a felon's estate, so the First Congress in 1790 established a law to rectify this omission:  "No . . . conviction or judgment shall [yield] . . . any forfeiture of a person's estate [meaning all types of property]."[21]  The corruption observed in England in the 18^th century is born anew, for when police, courts, and the treasury benefit from a criminal proceeding through forfeitures, the interest of justice is frequently compromised.[22]

Unfortunately, statutes are easily changed and the wisdom of old has been ignored; dozens of forfeiture statues have been enacted.  The RICO laws have a forfeiture clause.  Though called a racketeering statute, most applications have nothing to do with organized crime. Any Business that twice violates the law has violated the RICO statute.  Alexander Ferris was the owner of more than a dozen stores and theaters dealing in sexually explicit materials.  The S.C. summarized his crimes: “The obscenity convictions--based on the jury’s findings that four magazines and three video tapes sold at several locations were obscene--served a the predicates for his three RICO convictions.”[23]  For the total of seven, deemed obscene items, Ferris was sentenced to 6 years in prison, fined $100,000, forfeited the interest in his businesses and their assets, and in addition through forfeitures of supposedly tainted funds the government took almost $9 million in funds which he acquired through the businesses he operated for nearly 35 years.  There are similar cases.[24] 

One would think that such insults to justice would go unpublished.  Even when the victim seems to have found relief, the redress on appeal is fictive.[25]  Our federal judges, with very few exceptions, have no greater comprehension of justice and fair than do our federal prosecutors.

The destruction of Alexander’s entire business and inventory of legitimate (not obscene) materials on the basis of a few items, which under local Midwest standards were deemed obscene, has a chilling effect upon all businesses that carry sexually explicit materials.  The SC thus has protected under the First Amendment, the right to freedom of expression, but has set a snare whose draconian results has a chilling effect upon such freedom. Such freedom has been made more uncertain by their community standards ruling.  Alexander’s attorneys argued--among other things--that the forfeitures and fines violated the 8th Amendment’s clause “Nor excessive fines imposed.”  This argument failed to persuade the SC.

There is even an Immigration forfeiture statute. Leybda Corporation lost ownership of their Lear Jet through no fault of their own.  Two crew members and the pilot lied on their visa applications, which they filled out upon landing at Miami International Airport.  They all had valid Nicaraguan passports, each listed Cuba as their place of birth, but there were “discrepancies existing among the various visa applications" the Court of Appeals noted.[26] It took four days to service the jet.  Just before their planed departure back to Nicaragua, they were questioned by the FBI, then arrested, and their jet was seized.  The statute provides for forfeiture of “any vessel, vehicle or aircraft used to bring in an alien not duly admitted by an immigration officer.”[27]  Eight years after the plane was seized, Leybda Corporation lost their last appeal. This statute, like most forfeiture statutes, does not make an exclusion for an innocent owner. During all those years of litigation, the plane was being used by the DEA.                                                                             

 The corruption feared by the Founding Fathers is illustrated by how difficult it is to get property back. Anthony Calabro was arrested by the DEA on May 2, 1982. They seized his jewelry and $3,085. The charges were soon after dismissed. Anthony made repeated attempts to get his jewelry back. In fact Judge Nickerson, one of a small minority of judges critical of our war on drugs, “ordered the DEA to return [his] jewelry and money on four occasions beginning in 1982,” another court wrote in 1993.[28]  Incongruously in 1993 the Assistant U.S. Attorney [AUSA] argued before the court in his brief that Anthony “waited ten years before seeking the return of seized property. "[29]  But there was a paper trail left by Anthony and 4 rulings by Judge Nickerson.  One might suppose that the DEA was dealing with a big fish that slipped through their gill net. But the Court mentions that Anthony lives “below the poverty level, he is receiving $191 Social Security, and $329 from S.S.I.[30]  He was disabled.

While Anthony filled out all the right papers, posted bond, and appeared at hearings, a failure to do so will result in a permanent closing of the case, even if the funds can be shown to be from a legitimate source.  This is particularly vexing for those whose cash has been seized while traveling for under federal law the bond must be posted within 2 weeks of the published notice, and not before hand.  The DEA has a deserved reputation of being particular unhelpful to those who wish to post bond for their seized property.  Few attorneys will take a case for property valued under $20,000.  The Pittsburgh Press investigated thousands of cases of such seizures.  They described it as a legal massacre of innocent citizens.[31]

Most of our government's success in forfeiture cases is through procedural default committed by the pro-se claimant, or by statutory interpretation that makes a mockery of justice--such as the use of a phone from the home just one time in furtherance of a dope deal was sufficient to justify the forfeiture of that house.  Forfeitures illustrate the corruption of justice by those who appoint our justices.

 Among the protections built into the 5th Amendment is one against successive prosecutions for the same crime, and consequently successive punishments:  “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Sometimes the Prosecution wishes to retry a person after an acquittal so as to obtain a longer sentence or to drive him from business, and so the Tag Team SC has eviscerated the Double Jeopardy Clause. There is a separate sovereignty exception, which permits successive prosecutions by state, local, and federal governments,[32] even different departments of the federal government such as the U.S. Attorney ‘s Office and the INS or the IRS,[33] and also before different districts of the federal courts when acts supporting the crime occur in more than one district.[34]

Thousands of people found out about different district courts when Attorney General Edmund Meese had set up a National Obscenity Enforcement Unit, which used multiple prosecutions in different district courts to force out of business, companies that distributed sexually oriented materials.  Most companies cannot afford to fight the government in different far-flung jurisdictions, nor does it owner wish to risk a lengthy jail sentence if they loose in one of those jurisdictions.  Thus for example Avram Freeberg plead guilty to federal charges in Utah, Mississippi, and Delaware, dissolved his company, paid a $600,000 fine, received probation, and signed away his rights to distribute sexually explicit material (whether obscene or not, including R rated movies).*  Dozens of other companies folded.

Philip Harvey & 6 codefendants were multiply prosecuted in several far-flung districts.  Philip is president and principle owner of PHE, Inc. (doing business as Adam and Eve), possibly the largest distributor in our nation of soft-core products.  Philip knew of federal persecution of distributors, so he tried unsuccessfully to get federal guidelines on obscenity.  Then he employed an independent psychiatrist and a clinical psychologist to review all the materials he distributed.  Neither the soft-core nature of his products or his other efforts would ward-off prosecution. 

However, Philip Harvey of P.H.E., like Ferris Alexander, chose to fight back.  The first case was in conservative Alamance County, North Carolina.[35]  The conduct of the government in the case, with their numerous searches and 118 subpoenas, was termed “harassment” by the Court of Appeals.[36]  It cost Philip’s company over $700,000 to win an acquittal.  Having lost the first round, the government proceeded to charge P.H.E. in Utah.  But an injunction was obtained from Judge Joyce Green of Washington D.C., whom termed the successive prosecutions as “unconstitutional and bad faith conduct calculated to coerce plaintiffs (P.H.E.) to cease distribution of constitutionally protected speech. or press.”[37]

Nevertheless the government went forward with the prosecution in Utah, and Judge Green backed down: she withdrew the injunction barring subsequent prosecution.  P.H.E., being one of the largest of companies in the trade, was able this time to secure the support of numerous media associations and foundations, and the ACLU--a total of 11 supporters.  Under such attention, there was not the perfunctory denial; nevertheless the Court of Appeals in Utah skirted the issues of successive and vindictive prosecutions in different districts.  They sent this issue back to the District Court, and thus avoided the setting of precedents that would be binding on all the trial (district) courts in their jurisdiction.  This is legal maneuvering by the Court of Appeals. It gives the appearance of meaningful relief, but the appeals panel expected none to be granted by the lower court, and if it did, it would then review favorable the government's petition.  Most of the relief granted in written opinions is of the form of remand to the lower courts.  But what should one expect by courts that sees justice quite different than in other industrialized countries; courts

 The impact of the Messe {Attorney General) Commission, established under President Regan--along with the SC's ruling of applying local standards to determine obscenity--has been that companies which distribute hardcore materials, simply don't deliver to counties and states where federal prosecution is likely.[38]  They can't afford the exposure.

We ought to ask of government what need is there to protect the adult public from obscenity?  What grave harm is done to require the limitation of a personal freedom?  Politicians see their job quite different.  As P. J. O'Rouke stated:  "The only thing you can be sure that a politician standard for, is that of getting elected."  Thus given the sensationalism of our press over certain rulings, Congress avoids the politically inexpedient actions of passing laws and appointing of liberal justices to protect our Constitutional; rather they have packed the courts with former prosecutors and like-minded attorneys 

The result of the political twist to the selection of judge has been to create a court system which no longer functions as a significant check upon the abuse of the law-making power of Congress, a check created by our Founding Fathers.  I am not laying blame on police, prosecutors, and judges for their overly zealous pursuit of criminals, or for compromising our Bill of Rights, but rather placing the blame upon the powers who select the judges. President Washington noted, based upon the example of England, that, "Party politics is the scourge of democracy."  The politicians have passed laws regulating the handling of a gun by a felon, laws that allow the application of the draconian Rico statute upon businesses, laws that abrogate our constitutional rights, and they make judicial. the appointments.  This has resulted in a significant de-evolution of our judicial system since the Warren Court of the 60s.

Consider what has happened to our grand-jury protection, which our Founding Fathers established to prevent abuse of the power to prosecute, to prevent for example the harassment and/or prosecution where the evidence at the time of indictment is insufficient to demonstrate a crime.  The grand jury hearing was gravely flawed because it lacks the defendant's rebuttal of accusations, but after U.S. v Williams,[39] the defendant lost the right to challenge the proceedings and thus quash an indictment before trial.  In 1992 our High Court reviewed a case where an indictment was dismissed because the Assistant U.S. Attorney withheld convincing exculpable evidence from the grand jury.  Now because of the Williams ruling, there is no judicial review of the conduct of the AUSA.  "A federal court has no power to enforce the prosecutor's obligation to protect the fundamental fairness of proceedings before the grand jury."[40]  Another constitutional protection has been lost.

The right to reasonable bail ("Excessive bail shall not be required") evaporated with the Bail Reform Act of 1984,  As expected, our Supreme Court upheld the Constitutionality of the law by overturning a case before the Second Circuit, and thus also a number of the Supreme Court's prior rulings founded upon the bail clause of the Bill of Rights and the principle of being "innocent until proven guilty" were set aside.  The AUSA finds it to his advantage to have a defendant attempt to prepare a defense while behind bars.[1]  Many states still offer reasonable bail based on their state's constitution, but not in our federal government, where justice snores.

 I have collected hundreds of cases that reinforce the conclusion of there being a tag team, of justice being a facade, and of entire process being turned into a bureaucratic night mare, one which shows no concern for the well being of the accused, most of whom had functioned as a productive citizen.  I have reviewed dozens of cases of prisoners, examined their documents, and spoken at length with them; and all this confirms the conclusion that there is no justice in this country, not of the standard practiced in nearly all of the developed countries.[2]

For example, Double Jeopardy, has become a paper right, cases are no longer overturned for its violation.  The 1932 controlling case, Blockburger, has been perverted. Formerly if the facts are the same in the subsequent prosecution, then Double Jeopardy was held to have been violated and the indictment was quashed.  Today the courts, after Dixon in 1993, look to the statutes. Thus a conspiracy to sell heroin and the sales of heroin can be tried on two different occasions, even though the facts used in both trials are essential the same.  Nothing has changed but the charges. The sophistry is that every statute has essential elements (required to be proven) that are different than a related statute.   Under Dixon[3] there is no violations of Double Jeopardy.  The lack of cases being overturned on the authority of Dixon confirms this point.

 Angel Rivera-Feliciano pled guilty to the possession of 22.9 grams of heroin. He received 6 year sentence. A year later while in jail he was charged with a conspiracy to sell the same heroin.  His double-jeopardy defense failed because the elements to prove a violation of each statute are different.[4]

     There are other ways of end-running the clause that limits the U.S. Attorney’s ability to successively prosecute.  Congress set up a commission that has codified sentencing, with the subsequent approval by Congress.  Under this code, the relevant conduct clause permits the violation of the Double Jeopardy Clause of our Constitution.

Kurt Witte was charged with possession of 1,000 pounds of marijuana, for which he pled guilty. The government knew of his involvement with a failed attempt to import through Mexico 500 kilograms of cocaine, but didn’t charge him.  At sentencing the government argued before the judge that the cocaine should also be figured in as Relevant Conduct, and it was.  Witte received the same amount of time as though it had been included as a charge along with the pot.[5]

A year and 6 months later (Sept. of 92), when the government had enough evidence to go to trial over the cocaine, Witte and others were charged, then convicted.  Witte thus was sentenced a second time for the same cocaine.  The S.C. held his first sentence for the cocaine did not constitute “legislative authorized punishment."  This is caca, for the legislature approved (authorized) the Sentencing Guidelines, including the section on relevant conduct. Moreover, relevant conduct is treated in calculating the sentence no differently than a conviction.  Double Jeopardy bars being twice punished for the same act, but our courts don't.

 The Due Process Clause of the 5^th Amendment states "nor be deprived of life, liberty, property without the due process of law."  "Due" in this archaic usage means "fair".  Thus "fair process" entails that there is a high degree of confidence in the results reached from the proceedings.  The treatment of Kurt Witte fell short of this constitutional mandate.  For a plea bargain to comport with this standard requires that it be knowingly done; viz., that Witte would have known of his potential liability.  But Kurt did not know that when he gave up his right to trial and agreed to be sentenced for the marijuana that he would also be sentenced for the cocaine.  Nor did he know that if he was sentenced for the cocaine along with the pot, that he could--and would--be tried and sentenced a second time for the cocaine.  The lack of integrity of our judicial system has been again demonstrated, this time by what the courts permits to be done by the U.S. Attorney's Office to obtain a plea bargain.

Larry Kinder and his brother know well how little American jurisprudence comports with the concept of fairness.  Larry had bragged that he had 17 ounces of meth out on the street, so as to gain the confidence of his supplier, who was accepting partial payment for half a pound of methamphet-amine, which then sold for about $10,000.  Only his supplier was a police agent.[6]  He was charged with both the amount he received and the amount he claimed to have out on the street. The government had no evidence as to what, if any, Kinder had out on the street.  The AUSA as per plea agreement dropped the charge for the alleged 17 ounces out on the street.  However at sentencing, the AUSA argued for its inclusion under the Relevant-Conduct clause.  The tag-team judge agreed, and Larry received 17½ years, his brother a repeat offender received 33½ years.[7]  Larry and his brother to avoid receiving at least double the sentence of what they had been offered through the plea bargain if they had gone to trial.  Even though, it is quite unlikely a jury would have convicted them of the 17 ounces on such thin evidence, but it is just as likely that the trial judge would have sentenced them to the 17 ounce under the Relevant Conduct Clause.[8]  Kinder though he through the bargain he would not do time for the 17 ounces.  The Kinder brothers will be doing 85% of their sentence, one much longer than what they and their attorneys had calculated under the Sentencing Guideline Tables, a calculation that the AUSA pretended to go along with during bargaining with defense counsel and during the court hearing in which the judge accepted the guilty plea.[9]

 The Relevant Conduct Clause of the Sentencing Guidelines has been frequently abused and the standard set up by the Sentencing Guideline commission with its ratification by Congress makes the appellate review worthless.  The appellate court's standard of review (clearly erroneous) entail that the panel must allow all findings of fact at the district level to stand, including those which were quite likely erroneous.  This lower standard of proof permits the district judge to sentence a convicted person for counts that he has been acquitted of.  

 Just a couple decades ago a reasonable doubt based upon unfair proceedings would have sufficed for a new proceedings.  For example, if the proceedings were tainted by misconduct, such as evidence withheld by police or a substandard performance by the defense attorney, than the proceedings were redone.  And if the proceedings were fair, but new evidence raised significant doubts that a jury would have obtained the same results, then a new trial was supposed to be granted.  For plea bargains, if the evidence as to the defendant's innocence or consequences of the plea bargain were not known to the defendant, then on appeal the plea bargain would be overturned and a new proceeding instituted.  Today, however, most misconduct is ruled harmless. 

 For newly discovered evidence to result in a new proceeding, under today's federal standard, it must prove absolute innocence--not mere likely innocence.   For example, in a widely publicized rape-murder case--years later reviewed--the DNA evidence from the semen failed to match that of the convicted.  However, the judge ruled that and an accomplice (unknown to the court) could have taken part in the rape, and the DNA evidence only proved that the appellant didn't cum in the victim.  This is what the judge stated in a television interview as justification for her ruling.  In this case other compelling additional evidence was lacking, and it is most unlikely if a jury had the negative DNA evidence that the defendant would have been found guilty.  However, the conviction stood because the negative DNA evidence was not sufficient to prove the defendant's absolute innocence.

All aspects of our system of jurisprudence have been changed.  It does not surprise me that in a high profile murder case in Philadelphia brought to court years later, and by then the accused had become a French citizen, the French court refused the State's petition for extradition because as it stated:  "there is no justice in America."  The Court went on to comment that it doubted that the defendant, by French standards, would have received a fair trial. 

  The SC gave the prosecutors absolute immunity from suit.  Richard Imbler was convicted of murder in Los Angeles because the prosecutor “knowingly or negligently used false evidence and suppressed material evidence at the criminal trial.”*  In denying the federal suit, the S.C. held: “Better to leave unredressed wrong done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."[10]  Better the dread of living on death row--it took Imbler 8 years to get his conviction overturned--than require police work and prosecution that comports with Due Process.  Judges had long before given themselves Absolute Immunity now prosecutors were also protected.

Police misconduct, whether it was the loss of evidence, “misspeaking”, illegal search, and so on, is treated no differently there immunity to suit is not absolute. They may be sued when acting outside their duty, such as when they steal while doing a search.  The same standard applies to other government workers.  However, in reality, though government employees may be sued, their defense is in most cases by the U.S. Attorney's Office and being so defended, the claimant must go before a tag-team judge.  Few succeed.

Marie Green knows well of these difficulties. She spent more than 14 years pursuing a claim based on the clearly wrongful death of her son, Joseph Jones.  The trail of published opinions includes the case being heard in 1980 by the Supreme Court, & three times to the Court of Appeals.[11]  There were more, numerous hearings before the District Court and other hearings before the Appellate Court, which were never published.

Joseph Jones, a federal prisoner, had an asthmatic attack that required 8 days of outside hospitalization in July of 1975.  Joseph the following month had another asthmatic attack.  The prison doctor over the phone instructed the physician's assistant to inject Joseph with the major tranquilizer, Thorazine, a drug which all doctors know to be contraindicated for asthmatic attacks, for it surpasses respiration.  Joseph died of respiratory arrest shortly after his second injection of Thorazine.  This is clearly a wrongful death amounting to a constitutional violation amounting to Cruel and Unusual Punishment Clause.[12]  Though the case against the doctor and the BOP was clear, the government defended those named in the suit of Mrs. Marie Green.  (The government’s culpability was compounded by the knowingly hiring of a doctor who had a history of psychiatric problems, was on medication, and thus was unfit to practice medicine).   As of 1989 the case had not gone to trial, which is when the trial of citations ended.  That her name is not on the last case means that she will never get her day in court, but rather an executor of her estate might.  The delays and legal hurdles has a chilling effect upon suits.  Few attorneys will accept on contingency a case against the government. 

Heedful of the intent of the framers of our Constitution, first Chief Justice of the Supreme Court Marshall held in SC opinions that Congress has not the power to abridge our constitutional rights.  This holding still stands, but now it has Orwellian meaning.  The Due Process Clause of the Fifth Amendment has been "fleshed out" to entails , among other things, that incarceration can never be based on a fear of future crimes, and in general incarceration must follow the commission of a crime and for which the guilt of the accused has been n adjudicated in a court of law.  The Eighth Amendment, among its clauses states:  "Excessive bail shall not be required."  This has been "fleshed out" so as to mean that the accused is entitled to reasonable bail except where the flight risk is substantial, such as in cases of murder.  The so-called Bail Reform Act of 1984 violated both the 5^th and 8^th Amendments..  The Reform Act permits incarceration of those whom the prosecution deems could possible commit future crimes while on bail.  But under the 5^th Amendment future crimes can never be a cause for incarceration.  Moreover, under the 8^th Amendment there is the right to have reasonable bail set. 

A District Court denied bail to a mafia boss Anthony Salerno and his underling Vincent Cafaro based on the new act of Congress, even though this Court held they were not flight risks.  The Second Circuit found that, "the United States Constitution prohibited pretrial detention on the ground of a danger to the community. . . ."[13]  A basic assumption of our legal system had been that of innocence until proven guilty.  The Second Circuit recognized this in bold print:  "The Due Process Clause reflects the constitutional imperative that incarceration to protect society from criminals may be accomplished only as punishment of those convicted for past crimes and not as regulation of those feared likely to commit future crimes."[14]  There also was the violation of the bail clause of the 8th Amendment.  Thus the Court of Appeals ordered the District Court to set bail.

The government appealed to the SC with predictable success.  They ignored the clear message of the Framers of our Constitution as to the meaning of due process and the right to bail, which had been affirmed by its own prior rulings.  Those Framers and others sitting in the First Congress made the bail clause of the Bill of Rights perfectly clear when they passed the First Judiciary Act, which stated that all citizens have a right to bail, except in capital offense.  The Second Circuit, among others, was not confused about our constitutional rights when it overturned the Bail Reform Act, rather the new conservative SC was.  The new SC no longer considered it obligatory to apply constitutional rules when they were contrary to the expressed intent of Congress.  The SC was allowing Congress to rewrite our constitution.

The majority's of SC Justices today do not hold to the position of Justice Marshall and of the First Congress, they do not consider it part of their duties to fetter the police and prosecutors.  Now in the minority, Justices Marshall and Brennan in dissent wrote:  “Such statutes, consistent with usages of tyranny and the excesses of what bitter experience teaches us to call the police state....”[15]  History, both outside and inside our boarders has verified their warning.  At home there has been the internment of our citizens descended from the Japanese during the Second World War.  And presently there are nearly 3,000 Cubans indefinitely housed in federal prison because they had committed a deportable offense, Cuba won't take them back, and because an INS bureaucrat decided that they shouldn't be released to the street upon completion of their sentence.[16]  They are incarcerated not as part of a sentence for a crime, but because of unconstitutional authority given to the INS by Congress. Such bureaucratic action has a name, "a bill of attainder", made infamous by its abuse in France.  Article 1, Sec. 9, Cl. 3 prohibits the bill of attainder, so too does the requirements of the Due Process Clause of the Bill of Rights. 

The 3-strike laws are a backdoor version of incarceration for fear of future crimes.  He is put away for life to prevent him from committing future crimes. There is no pressing need to give a life sentence for a crime, often minor, when the very structure of the Federal Sentencing Guidelines requires that a judge give a significantly longer time to repeat offenders, and if he doesn't, the AUSA will appeal the sentence.  The vast majority of 3-strike cases, both state and federal, are against people whose criminal history has shown them to be a social problem rather than harden, violent criminal.  Politicians know this; however, they have a political agenda, one that comes before promoting the public weal.

Congress, the President, the Courts, state legislators, and most citizens have demonstrated a myopic understanding of human nature.  Rather than making a concerted effort to rehabilitate and establish the bond between society and all its peoples so that each citizen will look to government as a parent and to their fellow members of society as family members (see Plato on the death of Socrates), our government with the approval of the myopic majority use the boot, bars, and poverty in their attempt to promote public tranquility.  As George Bernard Shaw warned: “Every fools knows that if you chain a dog to a fence, you make him vicious.”  And establishing a society of criminals through long incarceration is equally foolish.

On government cares little for the standards of justice.  What sort of examples is this for the criminal?  I have shown using court cases how little is left of the Founding Father's vision of a three chambered government with a court system applying the intent of our founding fathers by over-turning laws and constraining the actions of the police and federal prosecutors.  Today's High Court has struck down, rather than defend, our Bill of Rights.  Congress has created a much different court. 

In this brief survey of our federal judicial system, I have reviewed the abrogation of our Bill of Rights by the Court that once protected its citizens from certain governmental abuses.  To illustrate this I have examined our Constitutional rights against unreasonable search and seizure; against excessive punishment; to be free from forfeitures except in the case of treason or when the object is the instrument of the crime; to be free of successive punishment for the same criminal act; the requirement that a panel of peers (grand jury) oversee the AUSA's office when they seek to bring criminal charges; that we be given reasonable bail, except in capital cases; that incarceration be the result of due process of law, and that no one should be incarcerated for more than a few days by what is equivalent to of what amounts to a bill of attainder.  I have touched upon freedom of speech and the constriction thereof by applying community standards as to obscenity; the Relevant Conduct Clause of the Sentencing Guidelines, which permits inclusion of alleged acts for which to which there is a minimum indica and also acts which a jury found the defendant not guilty; the plea bargaining process and deceptive practices of the AUSA; the typically double sentence given to those who make the government prove their case; the requirement for newly discover evidence to prove absolute innocence; the bribing of witnesses through sentence reduction; the failure of our courts to supervise the workings of the police and prosecution, the absolute freedom of both judges and prosecutors from civil suit; and the handling of civil suits is quite different from other civil suits when the government is named.  Our Founding Fathers sought through constitutional law to reduce abuses of power.  Today's Congress has a much different vision. 

A F T E R W O R D

To the complex mind, there are complex explanations.  What follows is a revealing simplification of the logic used by the conservative SC Justices. It fits into a simple syllogism.  Chief Justice William Rhenquist and his like function on a simple set of premises.  1) That the will of the people is expressed through the electoral process.  2) The laws the legislatures pass, both state and federal, are thus indirectly an expression of this will of the people.  3) It is not for the courts to undo this expression of the will of the people's elected legislators.[17]  4) As a consequence it is not for the courts to supervise the INS, the prisons, the prosecutors, or the police; this is the turf of the legislative bodies.

As a consequence when there is a conflict between a constitutional clause and a legislative action, in most cases it is the legislative action that is upheld.  Consider for example, the issue of mens rea (guilty conscience).  For regulatory crimes it has been held that the prosecution must make a showing of willfulness; namely, that the accused be aware that his act was a violation of the law.  There is a law against the splitting (structuring) of cash deposits so as to make the deposit under the $10,000, for at that amount the bank must fill out a form to notify the federal government.  Prior to November 1986 it was perfectly legal to structure ones deposits to get around the reporting requirement.  People routinely for privacy and other reasons split their deposits in order to avoid having to fill out a form that would be submitted to the IRS.  The statue which went into effect in 1986 criminalizing structuring contained the legally significant term willful.  In resolving a split in the circuits, the SC held that the depositor who structured his funds must be aware that he is not merely doing so to get around a reporting requirement, but that such skirting is itself a violation of the law; i.e., a willful violation.  The ruling of the SC relied upon prior ruling of regulatory nature and the meaning of willful, both based upon the Due Process Clause of the Bill of Rights.  Namely, that to prosecute for an act which is not obviously criminal, and where the person didn't act with knowledge of a criminal violation of the statute, that his prosecution would violate the Due Process Clause.  Tax laws are so handled:  a good faith violation of a tax law is not a criminal act.  A number of SC ruling held that even when the world "willful" was absent from the statute, it should be understood as applying. 

The following year after the SC ruling, Congress spoke by removing the word willful from the statute.  In deference to Congress, the S.C. in sub silentio upheld this change, even though the change entailed that the statute, as per their previous ruling, violated the Due Process Clause.  When Congress is silent and there is a conflict between the circuit courts, then the SC will act to clarify, even to the point of upholding the Bill of Rights, but when there is an indication from Congress upon a matter which infringes upon the Bill of Rights, then the SC will follow the Congressional lead.  This deference-to-Congress logic (syllogism above) has been used to overturn most of the Bill of Rights.  The SC's ruling in Ratzlaf[18] is not an exception, nor the CS's silence after Congress took out the word willful.  Moreover, the very failure of Congress to act has been viewed by the SC as an action.  Thus when the U.S. Attorney's office violates double jeopardy by twice prosecuting for the same offense, the indifference of Congress as to this constitutional violation entails indifference by the SC.  This follows from the syllogism.  The defacto motto of our High Court is, "Let Congress, elected by the populace, regulate."  Our courts are no longer an independent, regulatory body requiring of the other chambers of government an upholding of the Bill of Rights.  Though established with this power through constitutional charter by our Founding Fathers, this function has been removed through the power of appointment.  We are drifting towards a police state for today there is no third chamber of government functioning to uphold and enforce the Bill of Rights.

Prof. Rod Campbell’s Case:  New evidence absolute proves him innocent, yet the District Court Judge will not release him and the Appellate Court will not intervene.