The People
hereby present a review
of the State and condition
of our Judiciary,
its systemic inequities,
constitutional drift and
institutional malaise; a
call for the betterment
and return to the purity
of due process, enforcement
of caliber in our judicial
administration, and official
recognition of our demands.
"At the
establishment of our constitutions,
the judiciary bodies were
supposed to be the most
helpless and harmless members
of the government. Experience,
however, soon showed us
in what way they were to
become the most dangerous;
that the insufficiency of
the means provided for their
removal gave them a freehold
and irresponsibility in
office; that their decisions,
seeming to concern individual
suitors only, pass silent
and unheeded by the public
at large; that these decisions,
nevertheless, become law
by precedent, sapping little
and little, the foundations
of the Constitution, before
anyone perceived that invisible
and helpless worm had been
busily employed in consuming
its substance. In truth,
man is not made to be trusted
for life, if secured against
all liability to account."
--Thomas Jefferson, 1823.
We,
the class of persons aggrieved
in the courts, do hereby
formally proffer our petition
of grievance and demand
for redress and amelioration,
as is constitutionally guaranteed
and provided for by the
First Amendment to the U.S.
Constitution. It has come
to our attention that the
federal judiciary, which
serves as the role model
and exemplar idyllic for
all American courts, has
gone terribly astray in
its practice and administration
of the law, and has de facto
breached both its Constitutional
idealism to unbiased justice
and its purport to its public
charter, from which its
power is derived.
We impute
the judiciary's breach of
its duty, where its adherence
to written procedure and
law has degraded to such
a degree, that the outcome
and resolution of cases
in these forums has become
probabilistic at best, and
oligarchically complicit
at its worst.
1. ©
Copyright 2001, Gary Treistman
garyonthenet@yahoo.com:
The People's Statement and
Petition of Grievance Against
The Judiciary. Mr.
Treistman can also be reached
@ Lori Sherman & Associates,
Legal Advocates and Support,
POB 563, Bearsville, NY
12409, Tel: 845-679-7095;
email: LoriShermanAsc@hvc.rr.com
He is the Editor of
FreeNY. This work is copyrighted;
no part or parts may be
taken or used, nor the text
herein changed without written
permission of the author;
any modifications made to
this work that has been
authorized by the author
shall become the sole property
of the author and who thereby
retains all rights to any
such derivative work. (Minor
editing by J.A.I.L. by permission
of the author)
We, those
of us among the public who
have had first-hand and
informed experience in the
court system(s), have taken
up indignant notice of the
discrepancies between the
theory and the practice
of the law; have suffered
unjustly due to those discrepancies,
and hereby articulate these
abuses and breaches; we
speak for ourselves and
for the unknowing laity
whose liberties and properties
are at jeopardy where the
judiciary has abrogated
its Constitutional charter.
Preamble
and Declaration of Condition
We assert
that the current state of
the courts' standard modus
operandi has devolved into
one of caprice and peremptory
resolution --a condition
where the judges now consistently
rule with expedience and
favoritism, with a post
hoc mentality, geared more
toward a synthesized end
result than of a resolution
wrought by the impartial
weighing of the facts as
directed to by the law.
Whether it be because the
issues therein are deemed
too disruptive to society
or the legal mettle, or
because one of the litigants
is politically more precedential
than the other, or other
reason, this is a breach
of the public role of the
judiciary.
Cognizant
of the above, we also note
that there appears to be
an orchestrated effort by
the judiciary to uphold
the appearance of intact
due process in the public
eye. We also observe that,
due to the technical nature
of these matters, this effort
is generally successful,
and the very many micro
injustices perpetrated as
a matter of course in these
forums side-step and escape
the attention of the uninvolved
public at large, who continue
to retain a confidence of
faith that all is basically
well with the system.
As more
members of the laity unavoidably
get involved in the legal
arena, these problems will
not be concealable much
longer. Although the details
of the situation may continue
to evade the general public's
comprehension, the sentiment
will not, as those who have
had the misfortune of being
subject to these inequities
complain loudly to all that
would listen.
And in
that vein, it can be seen
that a plethora of grass
roots political action committees
and coalitions, highly critical
of the state of the various
judiciaries and demanding
change, have emerged.
Each one
of these groups is representative
of thousands of people who
have deep-set grievances
with the judicial system
in its current defective
incarnation, and have been
unjustly affronted by their
participation with it. The
members don't complain about
unfavorable decisions to
themselves; they complain
about the institutionally
corrupt way decisions are
arrived at and handed down.
We don't
demand favoritism from the
courts; we demand impartiality
and plain adherence to the
rule of written law.
Historical
Review and Analysis
It has
long been past since the
federal courts upheld their
rightful roles as guardians
of the ideals of the Constitution,
a bulwark against greater
political and social powers
seeking to establish an
agenda at the expense of
the common man's rights
and guarantees.
There was
a time when the federal
courts did not recoil at
the incidental possibility
that a decision or ruling
might have uncontrolled
or unforeseen ramifications,
rather they let the facts
of the case and the law
as written be their guides
to just resolution, and
let the results go where
they may. They were the
leaders of law, and set
the outer limits to what
was right and wrong.
Their decisions
issued were pertinent and
succinct to each case at
hand; legal findings issued
righted the wrongs at bar
without reserve or fear
that such a decision would
or could affect other cases.
There was a purity of process,
compartmentalized, as it
should be, within the instant
cases being entertained,
and beholden only to the
applicable law at hand.
Pristine in the application
of the facts and law to
the case at hand, such process
was not soiled either by
outside influences nor by
the socio-political status
of either litigant.
However,
where there once was a dynamism,
an open-mindedness to lead
wherever the logic of the
law may take it, without
reservation to pragmatic
forces or eventualities,
there has now come a miserly
stodginess of thought and
forethought, where the results
of judicial decision making
are feared by those making
them, and decisions' scope
are artificially constrained,
held tightly and reigned
in as close as they can,
so as to preempt what may
come of them.
The fall-out
from this change, from the
free-form intellectual clarity
of purpose and the openhanded
idealistic application of
the law, to the close fisted
and small minded micro-management
of the judicial administration
(i.e., decision making and
application), has been the
practical degeneration of
the legal system to the
point where there is now
particularized "justice"
for one, not for all. Litigants
cannot reliably depend on
written law, because it
could be "interpreted"
to mean anything the courts
want it to mean.
Legal truths
no longer apply to all people
everywhere similarly situated;
rather, rulings and order
memorandums are crafted
to single persons or entities,
constrained in scope solely
to the instant cases, with
judicially stamped captions
boldly stating just that.
Such individualized
justice systemically inevitably
permits an arbitrariness
of law; equal protection
becomes meaningless as the
law is applied fundamentally
differently, depending on
who you are and what impact
your circumstance may have
on the status quo.
This sloppiness
and lack of legal consistency,
and the accompanying loss
of quality of decision issuance
and analysis, has become
a mindset and model for
the judiciary at large.
No longer are the previous
ideals of adherence to the
written rule of law held
in sacred esteem, as something
meant to be inviolate and
kept pure. Now the judiciary
feels free to "interpret"
and reinterpret clearly
written laws, unambiguous
on their face, in whatever
way seems pragmatically
suited to the circumstance
at bar.2 (It
must be noted that in concert
with this judicial trend
is the contemporary legislative
tendency to enact ambiguously
written law, often incomplete
and by design requiring
interpretation by the courts
to make any sense. Yet the
courts' refusal to readily
overturn such laws on the
grounds of ambiguity makes
them complicit in this dereliction).
2. Such
a legal system, brought
to its logical conclusion,
is indistinguishable from
the Chinese judicial system
of "laws" and
ruling; there are no codified
laws - judges hand down
decisions based upon the
reigning power structure's
sentiment, presumed to be
known to all, implicitly
and without prior notice.
Chinese judges do not publish
their decisions or reasons
thereof; all decisions are
sealed and kept secret from
the public. In practice,
this is similarly indistinguishable
to our judiciary's increasing
habit of issuances of orders
without opinion, or qualified
with some cryptic summary
statement, such as "based
on the record and pleadings
before the court it is so
ordered." This is how
Chinese leaders thus maintain
flexibility in their courts.
Inevitably,
what "seems suited"
manifests itself as an overt
bias to the socio-politically
stronger litigant, and a
statist mentality to maintain
the existing power structures
intact, even at the expense
of fundamental rights and
liberties.
Where once
the rights of the individual
were treated as almost sovereign
and respected above all
else, as it was written
into our Constitution, the
rights of the collective
are now considered superior,
and are ceded a deference
above those of any one person.
This tendency, repeated
many times over the years
in controlling legal precedent,
has slowly teased our society
into a socialist mindset,
spirit and practice. This
quiescent tendency of belief
is now normal and accepted,
and it is the presumption
and acceptance that all
individual rights are only
provisional, and are only
granted solely at the discretion
and benevolence of our governmental
leaders. 3
We assert
that without correction,
this trend will lend itself
to a slippery slope. As
one set of injustices wrought
becomes convention, it will
become implicit foundation
for the next set.
Without
review and effective critique,
as time goes on, these inequities
will only become more entrenched
and a part of the standard
fare, a systemic cancer
that will not budge, and
we as a society will be
left with nothing more than
a changeling of what the
American standards of justice
once were. It will be a
burden of unimaginable proportions
and injustice to the people,
and a bee-line toward tyranny.
3. Like many prior
civilizations, while the government
keeps the public trust, or
at least respect, it thrives
with the full verve and participation
of the populace; as it begins
its systemic decay and decline,
serving the oligarchy ever
so much more obviously at
the expense of the populace,
its public respect is replaced
with resentment and disdain.
Consequently, in order to
maintain an illusion of cohesiveness,
such regimes commence the
descent of all failed societies,
replacing popular voluntary
participation in the society
with forcible coercion of
the people to conform with
intolerable conditions. These
regimes last an average of
30 years before collapsing
on their own hypocrisies.
The Particulars
Our observations
and complaints as detailed
above are not the results
of guesses or supposition.
These grievances
come about from our collective,
arduous interaction and direct
experience with the court
systems, a culmination of
many years of legal engagement
with the various courts and
adversarial entities ranging
from individuals to corporations
to governmental bodies; in
controversies involving everything
from tort law, civil rights,
immigration, bankruptcies,
and criminal proceedings.
Perspective
has been gleaned in these
matters in the crossing of
the lines of administrative,
small claims, bankruptcy,
civil, and criminal cases,
and noticing the various character
and tone of the courts, depending
on the issues and forum. We
submit that occasionally justice
is actually done when the
judge is independent, 4 true
to the law and attentive,
but invariably the proceedings
and case resolution suffer
from the systemic problems
outlined herein.
Throughout
all the pleadings, motions,
appearances, and interactions
with the courts, we have noticed
a series of disturbing and
recurring symptoms surface
in the course of the proceedings,
which after review lead us
to conclude they are expressive
of the underlying systemic
illness about which we complain.
Most probably
not an exhaustive list, we
consider these to be the worst
offenses of the judiciary,
that most insults our sense
of due process and trust in
the integrity of the judiciary.
4. We
say this with admiration for
such judges, even when we
lose the case. If the judiciary
were populated with such independent
judges the system would not
be in the sorry state it is
headed. Final resolution of
the cases are often reliant
on juries. Juries, although
theoretically independent,
are heavily influenced by
the judge's persona and demeanor,
as are what they are permitted
to know, legally and factually,
by the judge.
Court Issuances
Violative of Due Process:
1. Decisions
with no deciding cause or
justification
"Leave them guessing"
orders:
Orders
that have no finding of facts
or law; orders, often summary
and dispositive of the case,
leaving a would-be appellant
in the position of not knowing
what or why he is appealing
the case other than the sheer
dismissal or denial. Sometimes
these orders have a boilerplate
language: "Upon consideration
of the record it is so ordered",
or a citing of the statute's
standard of proof which is
asserted to be unmet, or equivalent.
In the
case of appellate courts,
orders of affirmance (or
even sometimes remand) without
opinion, or with summary
point assertions and no
analysis.
It should
be noted that all these
types of decisions are in
fact in violation of the
federal statute Rule 52(a)
F.R.Cv.P., which mandates
that any decision issued
by a judge be justified
by an accompanying finding
of fact and law. However
this law is widely and systematically
ignored by the courts. 2. "Hidden"
or sealed decisions
Justice for one, not for all:
Particularized
memorandum decisions, where
the court issues a ruling
with the caveat that the findings,
analysis and applicable law
cannot be used as legal precedent
in any other case, nor to
be cited or referred to in
any other case.
This practice
undermines the whole intent
of equal protection, as
well as public trial/proceedings
mandates. It permits another
court in the same jurisdiction,
in another case, the ability
to rule differently on the
exact same facts and circumstances. 3. "Pending"
decisions, and case resolution
Justice delayed is justice
denied:
Where an
interlocutory or dispositive
decision is awaiting issuance
from the court before the
case can proceed, and does
not get handed down for long
periods of time, e.g., 9 months,
18 months, or even years.
It is this
tendency of the courts, more
than anything else, that causes
cases to drag on for years,
clogging our case dockets
and causing a conjugation
of further delays; instead
of the quick resolution that
would normally occur if the
court responded within a reasonable
time for review (30 days at
most) 5 on motions,
the courts take their own
sweet time, limited by no
fixed duration or self-discipline.
5. This
penchant for taking its own
time is compounded by the
unreasonable patience and
tolerance of the courts for
frivolous requests for time
extensions, and the permitting
of the parties to play back
and forth on the same issue
that either was already resolved
once on previous motion, or
should have been by a defaulted
response.
4. "Ghost"
written decisions
Delegated Justice:
Although
vehemently denied as happening,
as would be expected, the
issuances of decisions and
memorandums crafted and authored
by judge's underlings - chamber's
clerks, assistant staff attorneys,
etc. - with only the judge
signing off on it.
Such decisions
are delegated to staff when
the judge already has his
mind made up as to the prevailing
party, and either is too
busy to analyze the case
or too lazy to do so himself,
so he gives the case file
to the subject ghost writer
and directs him to compose
a memorandum justifying
the given denial or granting
of the order. 5. Copy
cat decisions
Transliteration is the sincerest
form of slothery:
Decision
memorandums that so closely
follows the argument, logic
and text of the prevailing
party so as to be considered
a literal transcription of
that party's brief. This begs
the question, if the court
thought the party was that
correct, then why wasn't the
case resolved on summary motion?
Such a
ruling shows no independent
decision or thought on the
part of the court, and probably
reveals an instance of Point
4 above. 6. Default
Judgment refusal
The unattainable judgment:
Peculiar
to the federal judiciary (although
common to some other jurisdictions
as well) is the sheer allergy
of the courts to the issuance
of default judgments (or findings)
on points of controversy,
or of case disposition.
The statutes
provide simply that if a party
fails to respond to an assertion
on motion or a summons &
complaint, the court is to
rule in favor of the moving
or summoning party; see Rule
55 and Rule 8(d) F.R.Cv.P.
It appears
however, from case law and
from experience, that no matter
how violative an adversarial
party is of answering summonses
and complaints, no matter
how egregiously the party
disregards the summons and
time constraints therein,
despite uncontroverted proper
service of a lawsuit or motion,
the courts simply refuse to
issue a default judgment to
the moving party, preferring
to give the defaulting party
far more than the benefit
of the doubt, accepting any
excuse, and denying any motion
for default judgment.
This practice
extends to intra-case dynamics
where a responding party simply
refuses to defend or address
a point raised or asserted
on motion, and the court,
instead of automatically granting
that point of controversy
to the moving party, still
considers it unresolved.
Such neglect
as to the precepts and mandate
of the applicable statutes,
only serve to delay, extend,
draw out the proceedings and
case duration, and reward
non-responsive answers or
replies in the pleadings;
see Point 3 above.
Court Trends
Transgressive of Equal Protection
and Due Process:
1. The Eradication
of Brightline Rules of Law
The reliability
of written law, in meaning
what it says and saying what
it means, has suffered to
the detriment of all.
Modern court
jurisprudence treats plainly
written law as if it were
a mystical tongue, unreadable
on its face, requiring predigestion
of each component term and
of needing reassessment as
a whole. Alternatively, it
is treated as a rhetorical
suggestion, as if the text
only provides a generalized
guide as to what is actually
stated.
There was
a time when the law was comfortably
replete with definite on-point
directives and succinct elements
of proof or touchstone. Therefrom,
the courts respected it as
such, relying on the statute
as it was put down - not double-guessing
the intent, nor attempting
to generalize its meaning
beyond what was written.
Such laws
as effected and interpreted,
gave actual and substantive
notice to civil and criminal
parties that an applicable
law would reliably lead to
a point of decision, and could
be depended upon as a pivotal
point in legal argument and
case dynamics.
Since then
however, through a complicit
combination of lazy (or noncommittal)
legislators, and precedent
case law utilizing creative
leaps of judicial interpretation,6
the trend has been inexorably
drifting towards the effectuation
of polymorphic laws and rules
of procedure-- laws, that
although written one way,
could mean just about anything
depending on fickleness of
the circumstance.
Newly enacted
laws, as of late, are rarely
finished or complete, and
by design give such great
"wiggle room" that
judges are compelled to fill
in the blanks and substitute
their own individualized interpretations,
depending on the arbitrary
circumstances, so as to make
sense of what exactly the
subject law means. 7
Unfortunately this usually
results in law of the worst
kind, legislated at the bench,
where considerations of facts
and circumstance unrelated
to the case at bar become
controlling. 8
6. Or
perhaps it is simply the trend
to make the law mean whatever
is convenient for it to mean,
regardless of what is actually
codified. Another instance
of leaders maintaining flexibility
in their court system; see
2 supra.
7. It
might be noted that even in
the rare instance where a
brightline rule of law still
exists, the appellate courts
are still loathe to remand
a district court's erroneous
breach of its mandates.
8. Such
as which litigant is socio-politically
more powerful, what the political
fallout will be if the decision
is criticized, what pragmatic
effect the decision will have
on other cases or social causes
external to the case at hand.
The
other side of the same coin
occurs where the courts of
precedential authority have
combined to reinterpret obvious
(and even historically treated)
brightline rules of law into
much more muted and unmoored
facsimiles of their former
incarnations.
Both sources
of this trend have served
to permit the judiciary to
reinterpret the law in virtually
any way it feels like at the
time, introducing unwritten
exceptions to the rule, guided
only slightly by the written
law, regardless of what the
actual text of the subject
law may explicitly state.
This leads
once again to the qualitative
degradation of judicial decisions,
the lack of dependability
of those decisions for all
similar circumstances, and
renders suspect our courts
as an impartial forum
for conflict resolution.
As aforementioned,
when brought to its logical
conclusion, such treatment
of the law results in a system
not dissimilar to the Chinese
judiciary, where there are
no codified laws, and the
courts find the law based
upon the issuances of current
authoritative sentiment or
proclamation.
2. Pro Se
Prejudice
Although
it has been recognized by
the U.S. Supreme Court that
a litigant has an absolute
right to prosecute or defend
his own case in civil and
criminal matters,9
and that such a litigant must
be given latitude in the technical
form of the court submissions
(i.e. the court should not
hold pro se litigants to the
same standards as to court
procedure and forms not related
to the substance of the claim),10
on the average, the courts
still let the status of the
litigant affect their substantive
rulings on the matters before
them.
The courts
treat these litigants like
an unruly son, worthy of one
who breaches the rule "any
one who represents himself
has a fool for an attorney/client",
and one who would be taught
a lesson not to play with
forces he does not understand.
There is
a not-so-subtle presumption
that not only is the pro se
litigant ignorant of what
he is doing procedurally,
but that the litigant neither
knows the law well enough
to have a real claim beneath
the surface of the pleadings.
His submissions are read with
a dismissive demeanor and
not taken seriously or with
any acute responsiveness.
9. Farretta
v. California
10. Haines
v. Kerner
3. Erosion
of the vitality and plain
language of the U.S. Bill
of Rights
With the
notable exception of the First
Amendment to the U.S. Constitution
(and perhaps the Third), almost
to the word, every amendment
to the U.S. Constitution has
been re-interpreted and effectively
emasculated from the powers
and inherent rights it grants
to the People, and from what
it plainly states.
Like an old
grandparent one is obligated
to honour but who is actually
considered dated and infirm,
the courts treat the Constitution
with a jaundiced respect,
recognizing its authority
in theory, but dismissing
any direct conclusions stemming
from its mandates as too impractical
to entertain. Instead, statutory
law is given de facto precedence
over it, and wherever there
is a conflict between them,
statutory law usually prevails.
The illegitimate
encroachment of federal jurisdiction
over purely intrastate activities:
"...the
Federal Judiciary; an irresponsible
body (for impeachment is
scarcely a scarecrow), working
like gravity by night and
by day, gaining a little
to-day and a little tomorrow,
and advancing it's noiseless
step like a thief, over
the field of jurisdiction,
until all shall be usurped
from the States, and the
government of all be consolidated
into one. ... when all government
... in little as in great
things, shall be drawn to
Washington as the centre
of all power, it will render
powerless the checks provided
of one government on another
and will become as venal
and oppressive as the government
from which we separated."
--Thomas Jefferson, 1821
In the system
of federal government set
up by our Founding Fathers,
and in their informed wisdom
and justified fear of an uber-power
centralized government, the
U.S. government was intentionally
trifurcated into three equally
important parts, neither one
of them vested with the sole
power to control the land.
In this manner the intention
was to inter-moderate and
buffer each other's possible
efforts at supremacy.
In the order
of effectuation of federal
governing, they created the
Legislative, the Executive,
and the Judicial branches
of our government. And they
concurrently created the Constitution
which defined and delegated
the respective powers, duties
and limits of the three branches.
The Legislative
was the creator of laws, the
Executive was the effectuator
of the laws, and the Judicial
was to be the ideological
enforcer, the policer of the
other two branches that kept
them in line with the Constitution,
and in administration of the
laws upon the People.
In this way
their respective powers were
limited in scope, and neither
had enough power to rule solely;
the Legislative could make
laws but not carry them out;
the Executive could only carry
out the laws that the Legislative
made (or that existed in the
Constitution); and the Judicial
was constrained to proclaiming
whether the Legislative's
laws subserved the Constitution
and whether the Executive,
in carrying them out, had
adhered to the laws made by
the Legislative (or to the
Constitution directly). 11
(In many
ways the Judicial was vested
with the highest and most
noble task: to protect our
system of government against
Constitutional heresy and
keep pure our system of laws,
rights and Constitutional
precepts.)
11. The
Constitution was to be our
legal DNA of sorts, the law
cardinal, a source law not
created by the legislature,
but presumed to be a given
and inviolate. Within the
framework of that base set
of precept laws, and consistent
wherefrom, the Legislative
was permitted to make any
appropriate laws needed.
Furthermore,
in order to respect the sovereignty
the States, who in fact initially
chartered the federal government
and which was the result of
a compact between them, the
Constitution mandated that
the U.S. government could
only control or regulate the
commercial trade occurring
between the States or their
respective citizens. It was
explicit that the federal
government was to have no
other jurisdiction or controlling
powers to normal activities
internal to the respective
States.12
This bar
to intrastate activities was
long an established and unremarkable
fixture in our system of government(s),
until about 1942, when the
U.S. Government prosecuted
an Ohio wheat farmer who had
decided to grow an additional
11.9 acres of wheat, on his
own land for his own consumption,
against Governmental edict.
The controversy
was appealed to the Supreme
Court 13 on the
grounds that what the farmer
did on his own property, and
for his own intrastate purposes,
was outside the federal government's
power to penalize.
12. Of
course there are other intrastate
activities detailed in the
Constitution (which embodies
the assent that the States
entered into with each other
and with the federal government),
that are regulatable by the
federal government, most notably
enforcement of the Bill of
Rights' guarantees to the
People and how State government
laws and administrations comport
with it.
13. Wickard
v Filburn 317 U.S. 111 (1942)
Utilizing a wartime mentality,
the legacy of which we are
saddled with today, the Supreme
Court ruled that the federal
government could regulate
such intrastate activities
because the farmer's consumption
of his own wheat somehow ethereally14
affected the total interstate
supplies and transport of
wheat across the nation. (This
was akin to saying that breathing
affected interstate commerce,
because the air was used up
faster and couldn't be used
for other interstate activities,
thus justifying federal authority
over breathing.)
In violation
of the clear limits set forth
in the Constitution, and based
upon this landmark case, this
newly minted federal authority
to control intrastate life
and activities exceeded all
bounds, and currently knows
no practical limits.15
All that
is now required for the federal
legislature to control an
arbitrary intrastate activity
is a public proclamation of
Congress that it "finds"
some activity somehow, someway
indirectly (be it in concept
or scope) affects interstate
commerce. There is no requirement
of finding an actual connection
between a particular incidence
of that activity and something
interstate.16
14. The
logic put forth by the court
was, since the farmer's consumption
of his own wheat could cause
him to not buy it from the
national pool, his activity
somehow actually affects interstate
commerce.
15. The
author notes that the Supreme
Court has in recent years
struck down a number of
statutes on the basis of
insufficient interstate
commercial nexus, but these
are [1] few and far between,
[2] miss the gravamen and
scope of the existing over-extended
federal regulatory powers,
and [3] are usually applied
only to the outer periphery
of Congress' statutory structures,
which in themselves are
often just test statutes
to see how far the Court
would currently permit them
to further extend federal
jurisdiction into intrastate
activities. 16. As
the archetypal example, see
21 U.S.C. §801; the full presumption
of federal intrastate authority
in these types of statutes
can be seen in practice, where
in federal prosecutions the
Government is no longer required
to accuse or even prove at
trial the essential element
of an interstate nexus - it
is already presumed "proved"
by the proclaimed "findings"
of Congress.
Thus we are affronted with
the circumstance our Founding
Fathers were most afraid of,
an overarching central authority
that had unlimited precedence
over State's internal laws
and activities, effectively
forming a new politburo that
completely abrogates the States'
sovereignty.
Such a system
is not only Constitutional
heresy, but is insensitive to
the various regional conditions
across the nation, dismissive
of the respective local social
sentiments and mores, and
contemptuous of the prevailing
individual characters endemic
to the various states.
Such a system
preempts the rights of the
People to govern themselves
as Constitutionally provided
for, and seeks to impose a
homogeny of thought, lifestyle
and way.
Retort
An overview
of the above Points of Particulars
reveals a pattern and underlying
theme.
That theme
is our courts' abrogation
of the oath of allegiance
and dedication to the precepts
of due process, and the impartial
administration of the law.
Where once
there was a robust and vital
expression of due process
prevalent in our federal courts,
compromised by no one, there
is now a shallow callous mask
of its former existence.
And like
a mask, our system today appears
on the surface to the casual
observer to be the recognizable
face of classical American
Justice, as depicted in our
popular icons and stories.17
What lies
beneath, however, is a very
different persona: an institution
of machinations, political
favoritism, procedural expedience,
arbitrariness, conceptual
prejudice, laziness, pettiness,
and apparatchik ministrations.
Into this
artifice of integrity and
honor, we vest our public
trust, hope and confidence
for equity under the law,
and the establishment of our
rights and freedoms.
The causes
of this judicial degradation
are hard to pinpoint or rationalize,
for in the federal judiciary,
judges are appointed for life,
and are virtually guaranteed
that status no matter what
their decisional propensity
may be. There would seem to
be no incentive other than
to rule with utmost ideals
and professionalism.
17. Much
like a safety net made out
of tissue paper, our legal
system of rights, guarantees
and due process look safe
and secured-- that is, until
they are actually needed.
Then a very uncomforting surprise
is revealed.
However,
not being privy to the very
closed, cabalistic social
circles to which the members
of the federal judiciary bind
themselves, we can only surmise
the underlying causes permitting
this loss of quality and reliability.
To clarify the possibilities,
we proffer the following probable
causes:
(1) The consequent
quid pro quo that is expected
of them in exchange for the
appointments. Obviously powerful
interests are responsible
for putting federal judges
in place; these interests
often have agendas independent
of unbiased due process and
justice, and no doubt upon
appointment, judges are implicitly
expected to return decisions
in complement to those interests.
(2) The quality
of intellect of the appointees,
and their acumen for the theory
behind application of the
law. Without the ability and
penchant for independent and
original thinking, such appointed
judges simply affirm or rubberstamp
pleadings that they perceive
are statist, unremarkable
or in line with prevailing
legal sentiment; an actual
weighing of facts and law
is usually too tiring to consistently
manage. The depth of analysis
coming from such judges is
revealed in memorandum decisions
(if even issued) that are
perfunctory and superficial
to the facts and case at hand.
(3) The influences
of the prevailing attitude
and sentiment of Executive
and Legislative officials,
and of course superior courts.
(4) The lack
of any meaningful accountability
or review. Judges stand to
lose nothing by sloppy administration --the
worst they suffer for bad
procedure and law is a mild
rebuff from their superior
courts. This is nothing more
than a fraternal rebuke, and
is not felt with any acuteness.
Often these same rebuffed
judges are indignant upon
remand, and take their angst
out on the successful appellant
--yielding an equivalent or
worse ruling for them on the
remand, while still technically
abiding by the superior court's
mandate.
(5) The social
or professional shunning by
their peers, and/or other
public officials (see Hon.
Baer, USDJ SD/NY, ND/NY [http://www.spectacle.org/496/baer.html],
etc)
(6) The carrot-and-stick
conditioning to which they
are subjected, as to whether
they are considered for advancement
to the appellate courts. Unless
they consistently kowtow to
the party line, they are intentionally
disregarded in any consideration
for higher court appointment.
An Addendum
to the Lack of Meaningful
Judicial Accountability
It should
be noted that all the judicial
review committees, offices
of professional responsibility,
mandamus review mechanisms,
and other administrative forums
for review of judicial complaints
all suffer from the same implicit
conflicts of interest.
Although
a direct connection or interest
between the masters of these
complaint forums and the subject
judicial officers cannot usually
be demonstrated, they are
in fact all heavily interested
parties, by the sheer fact
that they are part of the
same guild and must face their
peers' rebuke in social and
professional circles if they
rule in a critical manner.
Relatedly,
the group of people who would
know best and are most stung
by wayward judges are the
attorneys that must practice
law beneath them. However,
they too are effectively gagged
in any public criticism of
the judges, as they are too
vulnerable to judicial blacklisting
and subtle prejudices in future
or ongoing cases, of which
they are much aware.
The only
involved vocal group left
that is not constrained by
special interests and has
nothing to lose by shouting
their frustrations are the
pro se litigants, but this
group unfortunately as a whole
lacks the legal vernacular
and contextual complaint capability
to meaningfully articulate
their frustrations, as well
as lacking significant political
influence; as a consequence
they are never taken seriously
and their complaints are usually
dismissed out of hand.18
As such it
can be seen that there is
no independent, effective
and disinterested review mechanism
in place to stand vigil over
errant judges or other officers
of the court.
In sum, although
the causes and continuing
condition that the judiciary
suffers from cannot be definitely
determined with the available
information, it is nonetheless
unacceptable and is thus in
demand of reform and rectification.
18. Much
as a crying baby may have
a very real need or complaint,
but is unable to enunciate
the problem or unfulfilled
need in any meaningful terms.
Summons to
our Leaders and the Judiciary
for Review of Defects and
Amelioration
In light
of the above, we of the judicially
aggrieved class, and the People
of the United States of America,
do hereby indict the judiciary
as responsible for all of
the above defects and infirmities
incumbent in our legal system.
It is they who have let it
go astray, and who are always
in the position to reform
it instantly.
We assert
that this condition is a cancer
upon us and distinctly unAmerican
in its state.
All we as
a people ask and seek from
our judiciary, the most important
branch of our unique form
of government, is adherence
to the principles and implementation
of due process and respect
for the precepts of the U.S.
Constitution.
We would
be satisfied with judges and
courts that are simply professional,
unbiased, neutral, attentive
and even dispassionate/ indifferent
to the cases and litigants
before them.
We want the
triers of law (and often times
of the facts) to adhere simply
and formally to the written
rule of law, showing no favoritism
for particular litigants or
causes or social platforms,
and bereft of the tendency
to reinterpret or expand the
law into something other than
what is exactly written.
Conversely
we want the judiciary to not
shy away from the liberal
application of its legislation-invalidation
powers, i.e., the striking
down of laws and statutes
that either [1] do not comport
with the bald edicts of the
U.S. Constitution, [2] are
prima facially ambiguous or
incomplete, or [3] are logically
inconsistent with their own
construction or with that
of other existent laws.
Our hope
and expectation is that with
such proper policing, a message
would be sent to our lawmakers
that the end product of their
legislative process should
be released only after proper
investigation, conference,
public comment and consideration,
and a true weighing of the
pros and cons of the ramifications
the subject law would have,
and thus would regain the
level of conciseness, integrity
and true form that has been
sorely lacking in the past
few decades. Instead of laws
designed more for the acronyms
they moniker (e.g., USA PATRIOT
ACT, RICO), the Legislative
should be concerned with the
viability and cohesive substantive
content of the laws they produce.
As it appears
that the judiciary has failed
to police itself along these
lines and in the administration
of the laws (an inevitability
when there is no higher authority
in the land), and that it
appears to be careering toward
a system of both slovenly
form and stricture, combined
with an extreme statist mentality,
we hereby submit for and demand
the following reforms to be
effected:
1. Absolute
time limits on pending decision
issuances.
2. An absolute
requirement that all decisions
must be justified with an
itemized list of factual and
legal findings supporting
the subject decision and order;
no empty summary orders, boiler
plate re-enunciation of statutes,
or memorandumless orders.
3. Require
and set up pro se liaisons
for each court, with the authority
to guide and direct pro se
litigants in the technical
details of presenting their
cases to the court.19
4. Requirement
that the courts follow the
subject case controlling laws
as they are written, with
no hyperbole or expanded interpretation.20
19. But
not to provide legal research
or give legal advice going
to the substance or the tactical
strategy of their cases. Just
a court representative who
could answer direct questions
about how the court expects
the presentation of the case
elements and procedure.
20. Presuming
it passes the aforementioned
tests for ambiguity, consistency
and Constitutional muster.
5. Requirement that the courts
mandatorily adhere to their
own written laws of court
procedure (e.g. Federal Rules
of Civil Procedure, Federal
Rules of Criminal Procedure,
Bankruptcy Procedure, etc.)
These procedural laws should
be just as binding on judges
as any law is binding upon
the rest of us.
6. Facilitate
and encourage the judicial
invalidation and condemnation
of laws and statutes that
are not well-formed, either
due to ambiguous construct,
inconsistency, or because
they violate the mandates
and guarantees of the U.S.
Constitution.
7. Establish
citizen review committees
for judges and all other officers
of the court. Such review
boards should have authority
to receive and review any
and all complaints made against
judges, make an unbiased determination
as to whether the subject
judge broke procedural or
substantive law, and to issue
condemnation or exoneration
of the complaint, and the
power to effect punitive measures.
The members of the committee
should be completely independent
of the judiciary and immune
to any pressures therefrom
or from other political powers.
Furthermore such reviews should
be entirely public from start
to finish, so that any such
complaints, claims, discussions,
proceedings and resolutions
would be available for public
purview; there is a public
trust vested in these judicial
officers, and if that trust
is put into question, then
that question, review, and
resolution should be made
public as well.
8. Review,
question and repeal absolute
immunity laws, so that no
one can evade personal liability
when they have broken the
law.
9. As a symbolic
measure against even the appearance
of conflict of interests,
judges' paychecks should not
be issued by the U.S. Justice
Department.
10. Provide
for and institute some meaningful,
routine and standardized sanction
procedure for wayward judges,
judges who regularly breach
the rules of procedure, or
refuse to apply the law as
written. Such sanction may
take on the form of anything
from public rebuke to reduction
of pay, to relegation of their
duties to non-trial tasks.
Conclusion
All we are
seeking is the process due
as guaranteed by equity and
the Constitution.
We are not
looking for favors, preferential
treatment or bias, just the
neutrality, and unembellished
attentiveness from our judges
that the ideals of the Constitution
and adherence to rules of
written law demand. We seek
return to a state in preserving
the ideals our Founding Fathers
originally realized, and reified
during the conception of our
nation.
On the face
of it, the set of laws and
procedural rules that govern
us as written, by and large,
form a comprehensive, just
and practical template for
jurisprudence; in the implementation
of them they have been perverted
beyond recognition.21
21. We
are reminded of the Soviet
Russian Constitution, an admirable
document full of guaranteed
rights and citizenry empowerments,
but one completely unfollowed
and ignored by the Russian
judiciary and Politburo.
Unfortunately,
the judiciary is no longer
bound to any fixed touchstone
or brightline rules, and has
strayed far in the interpretation
of the laws from what the
laws actually are. Compounding
their own sins, the judiciary
has permitted the legislature
to run willy nilly in the
issuances of what is considered
legally acceptable and well-formed
law.
It is for
these reasons we, as representatives
of the People, combine and
compact together to petition
for grievance on these matters.
It is for
these reasons that we demand
forthwith a meaningful and
effective reform of the judiciary,
as fully detailed above.
We seek a
reform that includes an interactive
public forum and tribunal
to review all complaints and
proceedings against members
of the judiciary and other
officers of the court, with
enforcement capabilities to
sanction violations of procedure
and law. Such forum must have
the power to keep in check
instances of judicial excess,
as it appears that no system
unmoored can effectively police
itself. (Absolute power permits
corruption absolutely)
We assert
that upon such reforms and
continuing public review,
the judiciary will once again
rightly take reign as the
shining example to the free
world, in its purity of process
and loyalty to the Constitution,
so that it may carry out its
obligations, responsibilities
and service to the People.
"A departure
from principle in one instance
becomes a precedent for a
second; that second for a
third; and so on, till the
bulk of the society is reduced
to be mere automatons of misery..."
-Thomas Jefferson, 1816
[Note: The following points
are currently reserved for
more detailed analysis within
the federal criminal Statement
of Grievance] - Gary Treistman
- Unattainable standards
for proving ineffective
assistance of counsel
(IAC).
- Unconstitutional standards
of evidentiary proof in
federal prosecutions,
e.g., convictions permitted
based upon the sole uncorroborated
testimony of a cooperating
witness who is being paid
for his testimony or being
forgiven for his own crimes
for said testimony.
- The false federal jurisdiction
over intrastate Conspiracy
crimes/acts, and other
purely intrastate activities.
- Unconstitutional delegation
of criminal law and/or
punishment of legislative
powers to the Administrative/Executive
Agencies (e.g, controlled
substance assignments,
illegalization/scheduling,
and criminal penalties
enacted by the DEA).
- The Abolition of Private
Property in America.
- The waning practice
and concept of innocence
before being proven guilty,
and the ever-multiplying
categories of "innocence"
of which courts
are making distinctions
(e.g. factual innocence,
actual innocence, legal
innocence, civil guilt
vs. criminal guilt, pretrial
innocence rights conditioned
upon state of detention/incarceration
(e.g. access to courts/legal
reference, punishment
via detention, impediments
to forming/actualizing
defense, in forma pauperis
rights and court filing
requirements). [This last
item refers to pretrial
detained defendants who
are heavily prejudiced
against in their Constitutional
rights, and that are treated
in every practical sense
as convicted persons].
- Habeas Corpus inequities,
and standards of review.
- Reconciliation of criminal
defendant's rights with
what is demanded by the
Constitution (e.g., punitive
vs. administrative detention,
search warrant standards,
coercion to waive trial,
penalty for refusing to
self-incriminate or affirmatively
defending at trial, derivative/enhancement
criminal charges, court
substituted findings of
required jury findings,
etc.)
- Juries should be informed
of the applicable law
as well as the penalties.
- Never ending penalties,
even after service of
sentence (e.g. civil confinement
after sentence completion,
alien detainees).
- The need for test/sting
cases to be put through
the criminal court system
to inspect the legitimacy
of a given criminal forum,
to maintain quality control,
and give notice to the
court(s) that the case
before them may very well
be a test to see how well
they are performing and
adhering to the law.
- The requirement for
the same standards of
proof to be imposed for
introduced evidences developed
from circumstances prior
to arrest, i.e. require
all law enforcement agents
to record the facts justifying
or leading up to an arrest
before being admissible
as probable cause.
About
the Author:
Born in
1961 and raised in Manhattan,
N.Y., Mr. Treistman moved
to the Woodstock area (N.Y.)
at the age of ten. Having the
ambition of becoming a scientist/engineer,
he graduated from high school
in 1978 and went on to earn
a technical degree at Capitol
Radio Engineering Institute,
Washington D.C., followed
by attending New York Institute
of Technology in New York
City. He then studied physics,
math, and computer courses
at Ulster County Community
College in Stone Ridge, N.Y.,
having gained extensive knowledge
and skills in all aspects
of computer technology and
is a Member Electronic Technician
Association; Member of Mensa
since 1981 and a Microsoft
Certified Professional.
Mr. Treistman's
legal experiences began in
the early 90s when he was
arrested for an alleged federal
crime. He quickly discovered
that it was irrelevant to
either the officers or the
prosecution as to what he
was actually doing or the
truth behind their charges.
All that counted was that
they could make a case against
him. He became blind-sided
by machinations of both the
prosecutor and his own attorney
who worked against all efforts
to preserve his rights and
opportunity to trial. His
attorney affirmatively told
the judge that he did not
seek bail; met with him only
twice during the proceedings;
sought no discovery; filed
only one frivolous motion
that tolled his speedy trial
rights; and threatened him
with 30 years imprisonment
if he did not agree to accept
15 years.
After firing
his first attorney at a cost
of over $10K who had been
hired by a relative without
his permission, he hired another
one that he picked himself.
But by then, the improprieties
permitted by his first attorney
had been too late to correct.
The judge had issued a gag
order preventing communication
between all the parties in
the case. This order was never
challenged, and Mr. Treistman
did not realize the impropriety
of this order, nor how to
get it rectified; his attorneys
did nothing, even upon his
questioning of it. The prosecutor
falsely represented to his
attorney that a codefendant
had agreed to lie at trial.
Later, going against his own
instincts, and only after
having been assured by his
attorney he would get
to trial if he could prove
his plea was based on lies
from the prosecution, he was
tricked into pleading guilty
under extreme duress.
After sentencing,
Mr. Treistman believed there
would be no problem getting
justice since he had subsequently
discovered all the evidence
that his plea was based on
lies (it was well documented)
and fraud on the court by
the prosecution. So he filed
a post-conviction motion,
fully expecting to regain
the trial he was cheated and
coerced out of. He soon found
out that it made absolutely
no difference what fraud was
committed to trick him into
pleading. The court dismissed
the motion without even a
comment. That was his introduction
to the legal system.
Mr. Treistman
then began to research and
study the law feverishly,
it becoming a new obsession
with him. In short order he
put in another claim (not
waived, not decided). All
the time he was subject to
this illegal sentence, he
had a pending petition. During
that time he also assisted
others in many types of court
proceedings-- some civil,
some criminal, all post conviction.
He also took a paralegal correspondence
course in that time as well.
Eventually, one of his running
claims was recognized by the
Supreme Court as valid all
that time, and he was able
to remove a count of conviction
from his sentence, and it
was reduced to half of what
it was.
His experience
with the courts was truly
in the trenches. He filed
for himself and other people
at least 45 suits, and saw
them to completion. Only about
2% resulted in any relief.
The courts simply did not
follow the mandates of the
law as written, and would
dismiss virtually all, irrespective
of whatever was presented
to them. Generally, the only
time relief was granted was
when the Supreme Court made
a recent change in the running
interpretation of a given
legal fact or rule. It was
here that he learned the things
one would NEVER learn in law
school. After his sentence
was completed, he continued
to be involved in the law,
and assisted pro se individuals
in their quest for justice
in the courts, usually civil
rights cases and habeas corpus,
but also some bankruptcy cases,
immigration cases and civil
torts in the state as well
as the federal courts.
When he was
commissioned to write a platform
plank on the stance of the
judiciary, he was originally
asked to put something together
about 3 or 4 pages long, summarizing
the complaint on the state
of the judiciary. But once
he started writing it, all
his pent-up frustrations began
to flow, and every nuance
of the pro forma injustices
that the courts routinely
issue came to mind as he had
experienced in litigation.
As he wrote, he realized that
this was actually very privileged
information, because one simply
does not read about it anywhere.
It is not advertised or complained
about in any detail. He realized
that this was his gift to
the People, and his opportunity
to reveal the corruption,
institutional bias toward
expedience over justice, and
insidious breach of the courts'
public charter. |
