CHAPTER NINE

JUDICIAL SYSTEM

The genius of the Constitution of the Republic of the United States of America is in the provision for the balance of power among three branches of government; the Legislative, the Executive and the Judicial.
The first article of the Constitution creates Congress consisting of the House of Representative and the Senate. It clearly defines and describes their terms in office, powers and duties, among them the power to declare war, raise and support armies and to raise and maintain a navy but no appropriation of money to that use shall be longer than two years.
The second article creates the executive power vested in a president, with defined terms in office (later amended), the electoral process, and enumerates powers and duties. The oath of office specifies that the president preserve, protect and defend the constitution of the United States. The president becomes the commander in chief of the armies and navy and the militia of the several states when they are called into the service of the United States.
The third article vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. The article merely states that judges of the supreme and inferior court, shall hold their offices during good behavior. There is no reference to age limits, elections or appointments or length of terms in office.
In the distribution of this power, the Supreme Court shall have original jurisdiction, in all cases affecting ambassadors other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction."
The Bill of Rights amended the Constitution so that equality under the law, and freedom of speech and religion, are among the most precious elements of the liberty that Americans cherish. Unfortunately, from 2000 to January, 2007, the Republican party was in the majority and was unashamedly so partisan that frustrated Democrats and Independents meekly capitulated. It will probably go down in history as the worst political period since the birth of the nation.
There is no duty stated in the Constitution for any branch of government to depose leaders of other nations, declare war on individuals or organizations, nor to bring democracy to the world.
Two wars are in progress. The first is the "war on terrorism" in response to the attack on the World Trade Center in New York on September 11, 2001, by an organization of terrorists, not by a sovereign nation. The second is a war on Iraq to "bring democracy to the world," so described by George W. Bush. Did the Judicial branch question the legality of either or both wars? The American Bar Association nibbled at the idea of bringing a suit against the president for violating citizens' constitutional privacy rights. They did not include the legality of the "war on terrorism" or the invasion of Iraq. At this writing no action has been taken even for loss of privacy rights in the name of security. World-wide sympathy for the victims of 9/11 could have been the catalyst to bring together police and intelligence agencies of all nations to locate the killers and bring them to justice. Congress and the president legitimized a gang that should have been treated as murderers, not as a sovereign nation.
Now in its the fifth year of war in Iraq, our troops are in greater danger than when George W. Bush proclaimed the invasion of Iraq a victory. Former President Clinton's book, My Life, reveals that when Bush visited the White House soon after the Supreme Court ruled he was president, before his inauguration and before 9/11, they talked about dangers facing the nation. Bush said Iraq was his second priority, missile defense his first. Clinton pointed out eight higher priorities which drew no response from Bush.
It is possible that George W. Bush has a secret agenda, which only an investigation might expose. The Judicial branch of government should intervene to determine responsibility of U.S. intelligence agencies that gave false reports to the Bush administration, to the country and the United Nations of Saddam Hussein's intention to use weapons of mass destruction against the United States.
An analysis of the actions of the executive and legislative branches concludes there is no logical reason why the public has not demanded the resignation of the president and his congressional supporters. Had this been a parliamentary government, there would have been a call for a new government at least three years ago.
If they do not resign and if impeachment proceedings do not start, the judicial branch should be called upon to remove them through legal means. However, since the Supreme Court failed in its duty by making the controversial decision that put Bush in office despite serious irregularities in the 2000 presidential election, it is unlikely that it will act.
President Richard Nixon had the character to resign when the country became so polarized, that his impeachment was inevitable. Was the Watergate scandal as bad as the havoc and deaths Bush-43 has caused? Congress tried to remove Bill Clinton for a moral offense. Was that worse than the destruction and hatred of America that George W. Bush has caused?
In its fifth year, Iraq is in a civil war, more American troops have been deployed to continue this senseless war; the end of terrorism has not been achieved, yet members of Congress continue to support the president. They admit, "Yes, there have been mistakes, but our troops must stay until the new Iraqi government takes over." How does that meet the constitutional requirement that they are there to defend the United States? Dumbed-down America's intelligence did not question Iraq's capacity to cross an ocean and attack the U.S as accomplished by the terrorists.
However, there is little hope that the judicial branch will do its duty. Federal judges are appointed by the President with the advice and consent of Congress. It was key Supreme Court justices appointed by previous Republican administrations that put George W. Bush in office.
Congressional hearings in 2006 to consent to Supreme Court appointees make a mockery of the system. The two recent appointees, refused to respond to substantive issues, stating that any comment could impair their ability to adjudicate in future trials.
April, 2007, turmoil again rises between the president and Congress regarding the firing of U.S. prosecutors by Attorney General Alberto Gonzales despite excellent performance ratings. The issue seems to be whether they were fired because they were prosecuting corrupt Republicans. Congress is seeking information and wants to issue subpoenas for the appearance of Gonzales, and specific Bush staff members, which the president vows to fight up to the Supreme Court. He is willing to "permit" them to appear off the record, with no oath to tell the truth, and to submit only documents he chooses. It is under the guise of "executive privilege" but the "steadfast" president and his cronies probably have a great deal to hide. The Judicial branch does not invoke its balance of power.
Gonzales appeared before the Senate Judicial Committee, and 71 times said he did not remember meetings regarding the firings. Even Republicans on the committee registered disgust with his obviously false testimony and suggested he resign. If his testimony was honest, what does it say for the mental capability of the Attorney General? George W. Bush's response was that he did the best he could, and was in full support of his continuance as Attorney General.
A previous acting attorney general announced his resignation on May 18, 2007. He revealed that when Attorney General Ashcroft was in serious medical condition, members of Bush's staff including Gonzales, were sent to his hospital room to urge him to over-ride the decision of the acting attorney general to refuse subpoenas to tap citizens' phones. Ashcroft refused their request.
Recently Congress passed a bill changing the Homeland Security and Patriot Acts, which diminish the role of the judicial branch. The Patriot Act would allow the president to replace U.S. attorneys without the advice and consent of Congress as provided in the Constitution. It was reported that the Patriot Act was illegally used to obtain personal information about U.S. citizens. Thousands of phone and medical records were obtained without the signature of a judge. While American troops die in Iraq to give them freedom, Americans are losing theirs.
There is a flaw in the Constitution. The Attorney General and judges for the supreme court should not be appointed by the president, nor should attorney generals "serve at the president's pleasure." They should be electied, the same as the other branches. The Judicial would then truly be a balancing power. At this moment, it appears that current Attorney General Gonzales does not know that his job is to serve the people of the United States, not the president who has his own legal counsel on staff in the White House.
The Judicial should have its own investigative body to prevent the legislative and executive branches from unlawful actions. The Federal Bureau of Investigation and the Central Intelligence Agency can no longer be trusted to act objectively and efficiently. The impeachment process does not address corruption and blind partisanship, which is far from the founding fathers' view of misdemeanors by representatives of government.
Moreover, this is not exactly an over-worked entity. The Supreme Court hears comparatively few cases, about 5 percent of requests for certiorari. They have clerks who read motions and research the law. Certiorari is not a matter of right, but what the court in its discretion decides to hear. Attorneys are allowed 45 minutes to present their case. The Supreme Court will not hear cases that are governed by state constitutions, such as taking of private property for public use. They are not in session during summer months.
The Supreme Court is supposed to adjudicate actions between individual states, interstate commerce, and some political issues. At most it is more active in matters of commerce than in matters of justice and truth. There is nothing in the Constitution giving them the power to adjudicate personal matters, such as Roe v. Wade re abortions, or same sex marriages and certainly, not to rule in a civil matter of the late celebrity Anna Nicole Smith in her suit for her late husband's estate. They denied certiorari in a case against a condominium board citing unlawful actions, which affects condominium owners in all of the states. (Publication of this case is planned for 2008).
The lower court system is so badly flawed that it needs to be completely restructured. In reality only the wealthy have access to the judicial system, except for very limited legal aid and a few pro bono cases required by the bar association. Only the courageous and hardy can appear pro se.
Small claims court is of little help for the elderly who do not know the process and/or cannot cope with stress, and immigrants who cannot read or speak English. The judicial system, abetted by members of congress and state legislators most of whom are former lawyers, have made it possible for lawyers to deliberately complicate the system, extending pre-trial hearings and trials for years which of course creates enormous legal bills.
State and county judges are not elected, but they appear on ballots asking only whether a specific judge should be retained. It takes perseverance to learn whether a judge is competent enough to keep his position.
Filing fees are low, but retainers for attorneys are seldom under $2,500 for simple civil cases. That is just to start. There is no limit as to the number of billable hours, and usually one-third of a settlement is part of their legal fees. Legal fees for court appearances are astronomical, and if attorneys are late for hearings, the judge puts them at the end of the docket, so that they may charge for half a day in court, at what would have been only a few minutes had they appeared on time.
The efficiency of clerks of the court is remarkable in the handling of limitless volumes of records for each case. However, law firms' staff create strategies to delay or fail to comply with court orders, sometimes under guise of "mistakes," then another 30-days might be granted for correction. The courthouse adage, "the worst settlement is better than a trial," speaks volumes as to the ordeal of seeking justice in states' judicial systems.
In fact, the judicial system has nothing to do with justice or even truth. It is about settlements in civil cases, and plea bargaining in criminal cases, except for wealthy defendants who can afford attorneys. The power of judges is beyond that of other elected officials. In many cases, the success or failure of a day in court depends upon the personal mood of the judge. He/she has no obligation to be courteous, much less patiently explain or clarify rulings on motions or orders. As if the stress of a court action is not enough, plaintiffs and defendants must cope with cantankerous individuals who wield the power of an ancient monarch. There are a few judges who show respect and compassion for the case before them.
Occasionally a judge will lose patience and go against one of the parties by ruling in favor of the opposition on important issues. One example is a judge in Lake County, Illinois who gave explicit instructions to an attorney which is prohibited, as to how to file a motion. "Don't forget to include case law," but would not tell the pro se party the number of days needed to meet the deadline to file an appeal. "I think", she said, "thirty days, but look it up." This was the same judge who denied a motion in the discovery process to inspect books and records of defendant Condominium Board, when state law and association bylaws clearly provide that home-owners are entitled to inspect books and records.
Cases appear in Equity Courts which take years to come to trial. Delaying tactics are the norm as lawyers make more money in civil cases because money or real property is involved. Other cases are weak in substance at the outset which should have been dismissed, but are allowed to come to costly trials.
The judicial system condones racial discrimination. Paul Simon, the late, Illinois Congressman in his book Healing America, pointed out the ratio of offenders on death row as 31 percent Afro-American inmates who murdered whites, but 1 percent of whites who murdered blacks.
In Florida; 47 percent of blacks and 24 percent of whites arrested for the murder of whites received the same sentences. There are no defendants on death row for killing a black person. In Illinois in 2002, 67 percent on death row were people of color who are only 13 percent of the population. In 1998, 98 percent of chief prosecuting attorneys were white and only one percent were African-Americans.
In July, 2000, European parliaments went on record urging the U.S. to drop the death penalty. Since 1990 six nations have executed prisoners for crimes committed when they were under the age of 18. Iran, Nigeria, Pakistan, Saudi Arabia, Yemen, and the U.S as of August, 2002, had the most with 80 on death row.
Former Illinois governor, George Ryan, commuted sentences of prisoners on death row, to life imprisonment. Some incarcerated for many years were found to be innocent and were released. He learned that trials were so tainted that he could not be sure that inmates awaiting death had actually committed the crime.
Governor Ryan was found guilty of charges of fraud in an auto licensing scandal while he was Secretary of State. He was sentenced to six years in prison. The Court of Appeals deferred starting his sentence until his appeal of the trial verdict is heard. His pensions and social security benefits have been revoked. The trial was tainted by the conduct of two jurors. They were both replaced after eight days of deliberation. The trial judge refused to declare a mistrial.
Governor Ryan in his late 70s, and although suffering medical problems, the federal court shows little mercy. His trial is an example of what is wrong with a jury system, especially of non-peers rendering a decision.
Scandals of corruption in the judicial system erupt from time-to time. Any of the parties to an action who is suspicious that a judge has been bribed or otherwise influenced a case, may seek a judicial review from the state. Some resign before any hearings are scheduled.
States vary in their laws and punishment, so that a crime in one state receives greater or lesser punishment than another. As a result many are incarcerated due to incompetent public defenders who urge a plea bargain irrespective of guilt or innocence. One such case, a guest at the home of a single father was accused of child molestation by the mother seeking custody of their 5-year old who had been visiting the father. The accused had seen the child for a few minutes during the visit. He has had a nightmare experience which has not yet ended.
Many are urged to plea bargain if a state was known for its draconian sentences. Some having had no contact with such proceedings receive a few years of probation. Others on parole are railroaded for misunderstanding legal jurisdiction and in what is blatantly a miscarriage of justice, might not have been notified of hearings, and are returned to prison for failing to appear in the original court. Documents are “misplaced” when moved from prison to prison, and between half-way houses in various cities. A probation officer can keep a prisoner incarcerated if he/she refuses to admit guilt to the charge.
What amounts to an insane approach to punishment, the waste of human lives is so appalling, that perhaps thousands of imprisoned people might be innocent. What is so evil about the plea-bargaining system is that it makes a mockery of the law. No trial is held before incarceration. Innocent until proven guilty is a false premise. Suspects are kept in jails for long periods of time while awaiting trial. If found innocent, the experience can only cause bitterness, and turn thoughts into action for revenge.
The lesson is, without funds for legal fees, low-income and the poor who are arrested for probable cause have little chance of finding truth or justice in the criminal system. Unless they admit they committed the crime whether they did or not, they are not likely to receive probation. This policy also was the reason parents of two sons who said they had molested them and recanted when they were of age, had also been denied parole because they were steadfast in their claim of innocence. They won their freedom after serving ten years.
An absurd case was the trial and sentencing of mogul Martha Stewart, which had no victim and no losses for anyone but the defendant. The whole case seemed to stand on her lying to a government agent. She was not under oath. There is no indication that she had been charged with a crime when questioned, nor was she given her Miranda rights. Her broker told her about stock she owned that could be a loser. She sold the stock avoiding a million dollar loss, but she and the broker after a lengthy trial were sentenced to prison, then house arrest.
The value of her company's stock fell. However, upon her release, the value of her stock increased and she was worth as much as when she was incarcerated. The lesson here is, don't buy stock or ask your broker for advice or service, and don't talk to federal agents without your attorney present.
There is an uncanny acceptance of the length of time for a case to be adjudicated and for sentences to be carried out. It is beyond reason that in this age of rapid communication and the ability to store immeasurable amounts of data on computer disks, the ancient system endures. Tons of paper for unlimited motions requiring multiple copies, file folders and boxes, and if appealed, ten times the number, cause whole forests to be destroyed.
Attorneys carry huge briefcases to hearings and for trials, pile box upon box onto furniture-delivery dollies to make the trip to the courtroom. Courthouses have huge rooms for holding files that are being used in current trials, but if full, attorneys load the dollies again for their return the next day in court. In the case of a Las Vegas hotel fire, the records were held on one floor of the huge Century building.
Recent news is that Federal Courts in Chicago are beginning to allow filing by submitting computer disks, perhaps the beginning of a more efficient, less costly method. Clerks and judges in lower courts have computers so that records filed with the clerk of the court could be stored on discs, just as motions on paper. Discs could be sent in advance to all parties and brought to the courthouse, instead of mailing huge envelopes containing printed copies of motions and/or responses. It is almost culture shock to see people using computers at the courthouse to research cases, and then to stand in line for clerks to go to the huge record room and return with arms full of folders.
The law school notion about the virtue of the adversarial system in the search for truth, does not exist. The law is not about truth. It is about negotiation, compromise and manipulation. It doesn't deal in guilt or innocence. It concerns only those who can afford to litigate. It depends upon an experienced lawyer to find flaws and turn them to their advantage. An inexperienced or not so bright opponent has no chance against a seasoned law firm or government-funded prosecutors. In rare cases, a pro se person can defeat a seasoned lawyer.
The Grand Jury step in investigation and indictment procedures is a one-sided event in which the defendant has no legal representation, and comes up against seasoned prosecutors. This is perhaps one of the first flaws in the judicial system. It could not hurt a case if the defense attorney was present, unless the prosecution has not done its work.
The jury system is impaired to the extent that it is supposed to be made up of peers of the parties involved. Jury selection takes up much time before both sides are satisfied. Juries are rarely the peers of litigants in civil or criminal cases. Without the professional ability to know elements of law and procedures, as well as understanding human behavior, it is a feeble system that permits destruction of the human soul, in deciding guilt or innocence especially in capital crime cases. Most cases are decided on the "reasonable man" theory. Society is in such disarray that "reasonable" behavior differs between high-low income, educated vs. uneducated.
Two-million convicts are in a penal system that fails to provide rehabilitation. It accomplishes nothing but misery, brutality, death, and increased recidivism. Gangs run prisons, terror reigns against inmates who try to stay away from them, but with no place to hide, they are attacked, raped and murdered.
Prison guards must be mentality sound to withstand dealing with convicts as a full-time job. It should be no wonder if they descend to the level of the inhumane life of inmates.
In Cook County, Illinois there was enough evidence to prosecute a sheriff who allowed torture of suspects in the '70s and '80s to admit guilt, but the statute of limitations ran out, therefore no trial. .Coincidentally, this case was reopened only a week ago. Another case over a year ago, in which a prison guard accused of helping inmates escape from the county jail who was awaiting trial, has vanished from the news, - outcome unknown.
Laws have become tougher so that the number of prisons in California alone increased from 13 to 31 with 160,000 incarcerated. They have begun to send inmates to other state prisons due to overcrowding. Families are unable to visit and life becomes even more difficult for the very people who need help. Some 24,000 guards earn about $100,000 each including overtime and sick pay. The inconceivable annual budget of $5 billion is beyond understanding in view of what is the most ineffective system ever devised.
A whole new idea of punishment and rehabilitation must be undertaken. Prisons as we know them should be abolished. The current World Court could be the catalyst in devising a whole new planetary and continental judicial function.
Cases should be entered in computers that would be capable of evaluating all elements relating to probable cause, elements of a crime, evidence and witnesses. A panel of judges would determine if computer-rendered verdicts applied. It is more likely that this method would be more efficient and correct than a panel of jurors having little or no knowledge of law. Instead of inflicting different punishment for the same crime by hundreds of nation-states, there would be global justice.
Instead of prisons there would be villages for inmates on uninhabited islands off of each of the continents to separate hard-core criminals from those who might be rehabilitated. The various island villages should include all materials needed to take care of themselves, such as building their own lodging, growing their own food and raising livestock. They should have light manufacturing equipment to make their own clothing, and for tools to maintain facilities. Spare time would be used for courses of study geared specifically for rehabilitation. This could result in savings of billions of dollars currently spent world-wide.
One of the best arguments for the change is the stupidity of treating drug users as hardened criminals. To paraphrase the law, "you are ruining your life by taking drugs. We have caught you using drugs, so now we are going to put you in jail where we can really ruin your life."
A user who robs someone for money to supply the habit is responsible under existing criminal law and the punishment is deserved. However, if anyone uses drugs and does not commit a crime, why is that the government's business? That same question should be asked of any victimless crime such as prostitution and punishment for parents who cannot control errant children.
There are over two million prisoners in the United States and uncounted numbers throughout the world. The U.S. government spends about $15,000 per inmate per year. This is an astronomical amount that if used wisely for rehabilitation and education would be of immeasurable value to the world.
The jacket on John Grisham’s non-fiction book, The Innocent Man, published in 2006, states, “If you believe that in America you are innocent until proven guilty, this book will shock you. If you believe in the death penalty, this book will disturb you. If you believe the criminal justice system is fair, this book will infuriate you.” It is the true story of cases in Oklahoma where innocent men were given life sentences and the death penalty for crimes they did not commit. Grisham states, “Oklahoma was the first state to adopt death by lethal injection. After thirteen years without an execution, in 1990 the
death chamber was used again. Since 1990, Oklahoma executed more convicts on a per capita basis than any other state. No place, not even Texas comes close.”
Grisham was motivated to write his book, after reading Robert Mayer’s book, the Dreams of Ada, about the conviction of a suspect based on a dream he told to police in Ada when he was interrogated. Mayer was appalled by the actions of the police and by the legal proceedings at the trial of the suspect and his alleged accomplice.