Burns Chronicles No 17 – “a speedy and public trial”

Burns Chronicles No 17
“a speedy and public trial”

 

Justice w noose

Gary Hunt
Outpost of Freedom
March 29, 2016

Is it for the government to interpret the Constitution, or is it for We, the People, to interpret that document, which, as is so clearly stated in the preamble, approved by us, through conventions of representatives in all thirteen then independent states under the Articles of Confederation?

There can be little doubt that Congress, the Executive, and the Judicial, must, in many instances, determine the intent of the Constitution.  The same was true under British rule.  However, when the government interpretation reaches the point of a gross deviation from intent, we cannot leave it to the government for that interpretation.  For, to do so allows the government to bypass the Amendment Process described in Article 5, and simply pass whatever laws they want.  When that happens, the Constitution is no longer in effect, and we are subjected to nothing less than a despotic government, failing to be government created by the Constitution, rather acting as an oligarchy, with no regard to the limitations imposed upon them by the Constitution.

So, in a larger sense, it must evolve to us, when the government so grossly misapplies those powers and authorities granted to it by the Constitution, to take, again, the reins of government, and to force those who claim to represent us back into their limited authority, by whatever means necessary.

The events in Harney County, Oregon, have brought a rather interesting light upon the actions of government.  So, we will begin by comparing some of their actions to historically recognized abuses, and then the remedies evolving out of those prior violations of our natural rights.

The Declaration of Independence has two complaints against the Royal government that we can easily recognize in our current government.  First is the immunity of government from the imposition of punishment for the violation of our rights, especially that of Life, itself.  In the list of “injuries and usurpations”, there are many abuses.  However, the two most directly related to the current discussion are:

[15] “For protecting them, by mock trial, from punishment for any murders they should commit on the inhabitants of these states

As we have seen so often, and has been shown in the current events in Harney County, the determination of whether LaVoy Finicum was murdered, or his death was, simply, not a matter of consequence, the determination of the “Tri-County Major Incident Team” provides a report that simply explains the roles various officers played in what resulted in what the autopsy described as a homicide” (murder, in lay terms),  is left in the hands of the government. That blue line protects those on the other side of it, and the report of the team, simply a description and justification for, well, murder.  This excludes, completely the federal involvement where FBI agents provoked and participated in the shooting.  (See “As Told and Retold by Government Witnesses“)

This, most assuredly, constitutes, at best, a mock trial.  However, that becomes a stretch when there is even a failure to reach a verdict.

Next, we have:

[18] “For depriving us in many cases, of the benefits of a trial by jury

This is brought up now only as a matter of understanding the intentions of separation from British rule.  The discussion of just what a trial is will be the principle discussion, below.

Once separation from British rule was established, in the third iteration of a form of government, it was, as mentioned above, a Constitution, approved by the people.  The original Constitution contains two elements.  First, the Constitution itself, and second, a Bill of Rights, necessary “in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution” (Preamble to the Bill of Rights).

Within the Constitution, we have only one provision that addresses the current subject.  It is found in Article I, § 2, clause 3, to wit:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Now, this clause provides only that the trial “be held in the State where the said Crimes shall have committed“.

Clearly, the ambiguity of that provision was not what was intended by the People, as the Bill of Rights, in the Sixth Amendment, expounds upon and defines where such trial should be held.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

As far as the “speedy trial” provision, this has been codified in 18 U.S. Code § 3161.  The accused is to be tried within 70 days of arraignment or Indictment, as per 18 U.S. Code § 3161 (c) (1).  However there are exceptions, and the prosecution has sought an exception under 18 U.S. Code § 3161 (h) (7) (b) (ii), which provides an exception if the trial is “complex”, meaning many defendants, which the prosecution is claiming.  They have only had, in the case of most defendants, and nearly all of the charges, since January 2, to prepare to prosecute this case.  The Indictment was dated February 3, 2016, which would anticipate the trail to begin by April 13.  And, it appears that we might be right on course for the trial, though the interruption of an Indictment out of Nevada just may throw a stick in the spokes of the government’s wheel, for the six defendants accused in both Oregon and Nevada.

This, of course, is the result of the federal government in Nevada waiting nearly two years before seeking an Indictment, as if there were no crime until they chose to make one.  So, where in the Constitution is there a provision for the government to make a crime out of nothing, after those two years?  Surely, there is no more evidence of a crime than there was back in 2014.  So, We, the People, must judge whether this action in Nevada is a violation of the intent of that portion of the Sixth Amendment.

Now, let’s move on to the “public trial“, the “impartial jury“, the “State and District… as previously ascertained by law“, and, “to be confronted with the witnesses against him“.

Public Trial

Surprisingly, we only need look back a few decades to see what the application of “public”, with regard to a trial was.  Black and white movies, and some in color, depict the public nature of allegations of a crime.  The press had access to crime scenes, though the government now corrupts that aspect by closing the scene so as “not to taint evidence”.  On occasion, they may let photographers (non-governmental) to take pictures of certain scenes, where that public display will support only the government side of the story.  Free access, by those representatives of the people known as the press, provided the community with knowledge of the crime and as complete an understanding of the circumstances has could be had, until such time as witnesses testified on the stand.

Somehow, beginning in sixties, or thereabouts, the government began clamping down on public access to information regarding crimes.  They stopped allowing photograph coverage and access to crimes scenes, on a slow but continually more restrictive progression.

Then, we come to the witnesses.  Back then, the witnesses often spoke to what their observations were, though not to the extent that they would, later, under examination and cross-examination.  And, that would include witnesses for both the defense and the prosecution.  Now, those who have been accused, and witnesses on their behalf, are restricted by the Court, and by their attorneys, from discussing any matter regarding the alleged crime.

An example in the current matter is the prohibition imposed by “Conditions of Release”.  Though not having been found guilty, the punishment begins by either incarceration, perhaps even solitary confinement, or pre-trial release.  If one is fortunate to obtain the latter.

However, those that were released, I believe with the sole exception of Shawna Cox, have had rather severe restrictions put on them by order of the judge.  An example (comments prefaced with “[Note”):

IT IS ORDERED that the release of the defendant is subject to the following conditions:

(1) The defendant shall not commit any offense in violation of federal, state or local law while on release in this case.

(2) The defendant must cooperate in the collection of a DNA sample if the collection is authorized by 42 U.S.C § 14135a.

(3) The defendant shall immediately advise the court through Pretrial Services or defense counsel in writing of any change in address and telephone number.

( 4) The defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed.

Additional Conditions of Release

IT IS FURTHER ORDERED that the defendant be released provided that the defendant:

Report as directed by the U.S. Pretrial Services Office.

Find and maintain gainful full-time employment, but significant travel for work must be approved in advance by Pretrial Services.

Do not change place of residence without the prior approval of U.S. Pretrial Services.

               [Note: which applies, this or No. 3, above?  They aren’t even consistent in what they require — is it before, or after, a change in address?]

Travel is limited to [home state] and Oregon(for court purposes only) unless prior approval is obtained. from U.S. Pretrial Services.

The defendant shall not enter Harney County Oregon.

Do-not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U .S.C. Section 802, unless prescribed by a licensed medical practitioner. This provision does not permit the use or possession of medical marijuana even with a physician’s written certification. The defendant is prohibited from using or possessing any synthetic intoxicating substance, including but not limited to “Spice”, “K-2” and other forms of synthetic marijuana.

               [Note: this is not a drug crime.  Why does the government impose what is legal (medical marijuana) as a restriction?  Wouldn’t that be covered by No 1, above, if were illegal?]

The defendant shall submit to testing for a prohibited substance if required by the pretrial services office or supervising officer.

Testing may be used with random frequency and may include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. The defendant must not obstruct, attempt to obstruct, or tamper with the efficiency and accuracy of prohibited substance screening or testing.

               [Note: This does not apply to the officers involved in the murder of LaVoy Finicum, since one of them refused a blood/urine sample, and, presumably still has his job.]

Participate in a mental health evaluation and counseling if and as directed by U.S. Pretrial Services. The defendant is also to take all medications as prescribed. The defendant shall participate in medication monitoring if directed by Pretrial Services.

Do not possess, nor control any firearm (or any weapon), ammunition or destructive device.

               [Note: What Second Amendment?]

Avoid all contact and communication with the following named persons: Co-defendants, any individuals involved with the Malheur National Wildlife Refuge occupation or militia members.

               [Note: the government’s witnesses can talk with each other, still work together, and have no such restrictions put on them.]

The defendant shall not make or publish any statements encouraging unlawful activity or about his criminal case.

               [Note: the government has gone public with its case (trial by press), since the day after the murder of LaVoy Finicum.  A wee bit of double standard.]

The defendant is released on zero tolerance and any violations are to be immediately reported to the Court.

Do not use, possess, or consume alcohol.

               [Note: damn, even wine or beer with dinner is no longer a freedom, that is otherwise legal, that can be enjoyed.]

The defendant shall be monitored by the form of location monitoring indicated below and shall abide by all technology requirements. The participant shall pay all or part of the costs of participation in the location monitoring program as directed by the court and/or the pretrial services officer.

               [Note: Type of monitoring device would be indicated, and the cost of freedom prior to trial would include the ‘rental’ of said equipment.]

(XX) Home Detention. You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment, attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the pretrial services officer.

The defendant is placed in the custody of: [named responsible party] who agrees

a) to supervise the defendant in accordance with all conditions of release,

b) to use every effort to assure the appearance of the defendant at all scheduled court proceedings, and

c) to notify the court immediately in the event the defendant violates any conditions of release or disappears.

Travel for appointments must be approved in advance by Pretrial Services. ·

In the event the defendant violates the schedule of location monitoring, cannot be located, or violates any program rule of a residential treatment program or community corrections center, U.S. Pretrial Services is authorized to notify the United States Marshals Service or responsible law enforcement agency who is then commanded to arrest the defendant for the violation and bring him/her before a United States Magistrate Judge without unnecessary delay.

Advice of Penalties and Sanctions

TO THE DEFENDANT:

YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:

A violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, forfeiture of bond, and a prosecution for contempt of court and could result in a term of imprisonment, a fine. or both.

The commission of any crime while on pre-trial release may result in an additional sentence to a term of imprisonment of not more than ten years, if the offense is a felony; or a term of imprisonment of not more than one year, if the offense is a misdemeanor. This sentence shall be in addition to any other sentence.

Federal law makes it a crime punishable by up to ten years of imprisonment, and a $250,000 fine or both to intimidate or attempt to intimidate a witness, victim, juror, informant or officer of the court, or to obstruct a criminal investigation. It is also a crime punishable by up to ten years or imprisonment, a $250,000 fine or both, to tamper with a witness, victim or informant, or to retaliate against a witness, victim or informant, or to threaten or attempt to do so.

If after release, you knowingly fail to appear as required by the conditions of release, or to surrender for the service of sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed. If you are convicted of:

(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, you shall be fined not more than $250,000 or imprisoned for no more than ten years, or both;

(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years, you shall be fined not more than $250,000 or imprisoned for no more than five years, or both;

(3) any other felony, you shall be fined not more than $250,000 or imprisoned no more than two years, or both;

( 4) a misdemeanor, you shall be fined not more than $100,000 or imprisoned not more than one year, or both;

A term of imprisonment imposed for failure to appear or surrender shall be in addition to the sentence for any other offense. In addition, a failure to appear may result in the forfeiture of any bond posted.

Now, the “Conditions of Release” raise another constitutional question, with regard to the Eight Amendment, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Bail, n.  The surety or sureties who procure the release of a person under arrest, by becoming responsible for his appearance at the time sand place designated.  [Black’s 5th Edition]

So, once the “Conditions of Release” go beyond that required to assure appearance in court, as intended by the Framers, is it not Excessive?

Let’s go another step, when you have not been convicted of a crime, and you are bound by conditions that put your life, your daily routine, your health, and your ability to move freely around in society, under rigid restrictions, obedient to both the Court and the bureaucrat known as the “Pre-Trial Services” officer assigned to you, just how far above “involuntary servitude” are you?  Is that any less than “cruel and unusual punishment”?

Yes, I know, the Court will say that you agreed to it when you signed your name, but what choice had you?  The Framers surely did not anticipate the corruption of the Judicial branch, to the extent that we see imposed upon those accused, but not convicted, of a crime.

Impartial Jury & State and District

Though we have all heard the expression, “jury of your peers”, it is not specifically written in the Constitution.  The qualifier for the jury is, simply, “impartial”.

Impartial jury.  The provision of the Bill of Rights requiring that the accused shall have a fair trial by an impartial jury, means that the jury must not be partial, not favoring one party more than another, unprejudiced, disinterested, equitable, and just, and that the merits of the case shall not be prejudiced.  [Black’s 5th Edition]

However, in the Amendment, “impartial jury” is coupled with other criteria, that being, “of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”

So, we shall return to the Constitution to see what was intended by the term “district”.  The first occurrence is found in the description of the intended national capital, “District (not exceeding ten Miles square).”  This is a relatively small district, not to exceed 100 square miles.

Though district isn’t mentioned, we have the first indication of where a trial should be held, “ The Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed” [Art, I, § 2, clause 3].  But, that was, obviously, too broad, since the Sixth Amendment narrowed it down, as stated above, to “the State and district wherein the crime shall have been committed.”  Then, they allowed for a provision allowing that District to be “ascertained by law.”

Now, in Oregon, there are two types of “District” that have been “ascertained by law.”  First is the judicial district of Oregon, which encompasses the entire state.  Washington, the neighbor to the north, as two juridical districts, an Eastern, and Western judicial district.  However, neither of these seems to fit the wording of the Amendment.  So, we should look further and see if there are other districts, more along the line obviously intended, that were established by law.  This, of course, would be those established by the Legislative Branch, the Congressional Districts, which satisfy the criteria of size (smaller than a State) and representation, which is a logical conclusion, being a representative form of government, that the district intended have the commonality of location and representation.

Now, this wouldn’t necessarily require that the Court be located within the District, only that the “impartial jury” be comprised of jurors from that district.  And, this can be supported by the “UNITED STATES DISTRICT COURT, District of Oregon, Juror Management Plan“, adopted by the Court on February 2, 2015, which was also approved by the Ninth Judicial Circuit.

Now, I wouldn’t want to suggest that the government, in particular, the United States Department of Justice, doesn’t know what rules they are bound by, and that they would knowingly violate those rules, simply to assure that they could get an Indictment (in violation of the law) and a conviction (again, in violation of the law), simply to satisfy the desire to persecute (yes, that is correct) some people because they don’t like what those people did.

So, let you be the judge (pardon the expression, if you feel insulted) of just what the Plan says:

Section 1.04 Policy

It is the policy of the Court that all litigants in this Court, entitled to trial by jury, shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the Court convenes, and that all U.S. Citizens resident within the District shall have the opportunity to be considered for service on grand and petit juries, and shall have an obligation to serve as jurors when summoned for that purpose. No U.S. Citizen shall be excluded from service as a grand or petit juror on account of race, color, religion, sex, national origin, or economic status.

So, we have “a fair cross section of the community in the district or division wherein the Court convenes.”  Perhaps poor grammar, however, in meeting with the constitutional criteria for “district”, and not leaving it solely within the “State”, we can find no other solution than to resort to the “division” level to satisfy the evident criteria that has been set forth by the Constitution.

So, just what are the divisions referenced in Section 1.04?  Well, they can be found in Section 1.07:

Section 1.07 Jury Management Divisions (See 28 U.S.C. § 1869(e) and Local Rule 3-2)

In order to facilitate juror management activities, the Clerk is directed to align Oregon’s counties into the following jury management divisions:

(a) Portland Jury Management Division: Clackamas, Clatsop, Columbia, Hood River, Jefferson, Multnomah, Polk, Tillamook, Wasco, Washington, and Yamhill.

(b) Pendleton Jury Management Division: Baker, Crook, Gilliam, Grant, Harney, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler.

(c) Eugene Jury Management Division: Benton, Coos, Deschutes, Douglas, Lane, Lincoln, Linn, and Marion.

(d) Medford Jury Management Division: Curry, Jackson, Josephine, Klamath, and Lake.

Shucks that was easy.  Even I could figure out that the only division in which the grand and/or petit jury could be selected from would be the “Pendleton Jury Management Division”.  I wonder why a United Sates Attorney could not figure it out — unless obsession takes priority over obligation under the Constitution; a true commitment to justice, rather than simply manipulation of the law to obtain a conviction.

 

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