The Bundy Affair #14 – “public trial” v. Star Chamber

The Bundy Affair – #14
public trial” v. Star Chamber

star chamber 01

Gary Hunt
Outpost of Freedom
August 11, 2016

Recently, the Las Vegas Review Journal petitioned the Court to allow access to certain evidence that would be used against the Defendants.  They even asserted that they would have no problem if names were omitted from the documents.  This was filed in response to the government’s Proposed Protective Order, a request that the Court seal and keep from the public some of the discovery materials, certain evidentiary documents, and exhibits that could be used in the trial against the Defendants.  Quite simply, it is all of the evidence acquired by the government in their pursuit of the persecution of 19 people that were involved in the Bundy Ranch Affair, nearly two years before the matter was indicted by a Grand Jury.  The Court has yet to rule on the matter.

Before we proceed, the discovery material would show what the government did, what they acquired, what their practices are, and whether they had subversive agents embedded within the group that afforded protection to the Bundy Ranch in April 2014.

As you follow along in pursuit of the government’s position, and the legal precedence, some of it even distorted perversions regarding the original intent of the Founders, also keep in mind that, historically, spies and entrapment were used against enemies, and spies against foreign governments, but never sent within the population that was supposed to be protected by that government.  For, to do so essentially, makes the people an enemy of the government, or, rather, the government the enemy of the people.

So, let’s look at what the Supreme Court has said, with regard to the Sixth Amendment.

In 1979, the United States Supreme Court, in Gannett Co. v. DePasquale, 443 US 368, addressed whether the press and public could be denied access to the court and evidence in a pre-trial hearing.  Although the decision was based solely (and rightfully) on a pre-trial hearing, the decision of the Court ventured further into the entire concept of the intent and purpose of a “public trial”, as guaranteed by the Sixth Amendment:

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.

The Petitioner, Gannett Co., is a publisher and among others, published USA Today.  Greathouse and Jones were defendants in a state prosecution for second-degree murder, robbery, and grand larceny.  They requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial.  The trial judge granted the motion.  The following are excerpts from that decision:

Petitioner [Gannett] then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants’ right to a fair trial.

The New York Court of Appeals… [held] the exclusion of the press and the public from the pretrial proceeding.

The Constitution does not give petitioner [Gannett] an affirmative right of access to the pretrial proceeding, all the participants in the litigation having agreed that it should be closed to protect the fair-trial rights of the defendants.

Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.

The Sixth Amendment’s guarantee of a public trial is for the benefit of the defendant alone.  The Constitution nowhere mentions any right of access to a criminal trial on the part of the public.  While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation.  The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation.

So, we have dealt with a pre-trial hearing, however, in continuing through the decision, we will see that it is both the pre-trial aspect as well as the entire concept of “public trial” that is being addressed.  Justice Stewart gave the decision, of which some excerpts are included.

The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees such as the rights to notice, confrontation, and compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abusesAmong the guarantees that the Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the “right to a speedy and public trial, by an impartial jury.”  The Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee, like the others enumerated, is personal to the accused.

Our cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.  In In re Oliver, 333 U.S. 257, this Court held that the secrecy of a criminal contempt trial violated the accused’s right to a public trial under the Fourteenth Amendment.  The right to a public trial, the Court stated, “has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.  The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”  In an explanatory footnote, the Court stated that the public-trial guarantee

“. . . `is for the protection of all persons accused of crime – the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial – that one rule [as to public trials] must be observed and applied to all.’  Frequently quoted is the statement in 1. Cooley, Constitutional Limitations (8th ed. 1927) at 647: `The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions . . . .'”

Similarly, in Estes v. Texas, 381 U.S., at 538, the Court held that a defendant was deprived of his right to due process of law under the Fourteenth Amendment by the televising and broadcasting of his trial.  In rejecting the claim that the media representatives had a constitutional right to televise the trial, the Court stated that “[t]he purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned.”  “Thus the right of `public trial’ is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered“).  (“[T]he public trial provision of the Sixth Amendment is a `guarantee to an accused’. . . [and] a necessary component of an accused’s right to a fair trial . . .”).

There can be no blinking the fact that there is a strong societal interest in public trials.  Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system, Estes v. Texas.  But there is a strong societal interest in other constitutional guarantees extended to the accused as well.  The public, for example, has a definite and concrete interest in seeing that justice is swiftly and fairly administered.

Mr. Chief Justice Burger, concurring.

The Sixth Amendment tells us that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial.”  It is the practice in Western societies, and has been part of the common-law tradition for centuries, that trials generally be public.  This is an important prophylaxis of the system of justice that constitutes the adhesive element of our society.  The public has an interest in observing the performance not only of the litigants and the witnesses, but also of the advocates and the presiding judge.  Similarly, if the accused testifies, there is a proper public interest in that testimony.  But interest alone does not create a constitutional right.

In cases such as this, where competing constitutional rights must be weighed in the context of a criminal trial, the often difficult question is whether unrestrained exercise of First Amendment rights poses a serious danger to the fairness of a defendant’s trial.  “As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.”

Mr. Justice Powell, concurring.

Although I join the opinion of the Court, I would address the question that it reserves.  Because of the importance of the public’s having accurate information concerning the operation of its criminal justice system, I would hold explicitly that petitioner’s reporter had an interest protected by the First and Fourteenth Amendments in being present at the pretrial suppression hearing.  As I have argued in Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974), this constitutional protection derives, not from any special status of members of the press as such, but rather because “[i]n seeking out the news the press . . . acts as an agent of the public at large,” each individual member of which cannot obtain for himself “the information needed for the intelligent discharge of his political responsibilities.”

The right of access to courtroom proceedings, of course, is not absolute.  It is limited both by the constitutional right of defendants to a fair trial, see Estes, and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants.

As Justice Powell said, the government needs “to preserve the confidentiality of sensitive information and the identity of informants.”  So, we must consider whether these objectives are in favor of the people, or of the government.  If the former, then we have justice.  If the latter, then we have relinquished our freedoms to the objective of a pervasive government – a police state.

Traditionally, they have been allowed to block out names of informants or agents, identified them with initials, or with abbreviations such as, “CI”, meaning Confidential Informant, or “UCE”, being an undercover employee (agent).  However, the context was retained with regard to what was said, what was observed, and details surrounding the testimony that the witness might testify to, and other information that would indicate the practices used to obtain the evidence or testimony.

Of course, that privilege is reserved for the government, though it makes one wonder what might have motivated an informant — what he received in return for his testimony.  That might help the jury decide how reliable that testimony is.  For example, in the case of United States v. Schuyler Barbeau, we know that the informant received “over $3,500”, as referenced in Search Warrant Affidavit or Fishing License.  This, for example, raises the question as to whether the information and/or subsequent testimony is truthful, or had been bought.

In United States v. William Keebler, Criminal Complaint (Bill was present at the Bundy Ranch in 2014), we know that there were at least two UCEs that provided explosives, encouraged the acts, and simply handed Keebler a detonating device that was inoperative.  It appears by the Complaint that Keebler may have been induced to go along with the agents, since the have had extensive training in manipulation; in other words, entrapment.

Then, there is the “sensitive information“.  Well, does this mean a threat to national security, or the tactics and technology used to obtain information and evidence?  Isn’t the practice, especially in criminal proceedings, something that the public has a right to know?  Or, are we expected to be lemmings, simply assuming that what the government is doing must be right, and we will willingly follow along and allow them to do whatever they want to do, so long as they get a conviction of someone they claim to be a bad guy.

That phrase that Justice Powell used, “sensitive information“, is, in itself, rather daunting in that it is left to subsequent interpretation — a handle by which the government can expand its control over non-disclosure of information that the Founders would have perceived as our right to know.

The right of exclusion of the public from trial proceedings is a right retained only by the Defendant:

  • to protect the fair-trial rights of the defendants.
  • The Sixth Amendment’s guarantee of a public trial is for the benefit of the defendant alone.
  • … the [Sixth] Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the “right to a speedy and public trial, by an impartial juryits guarantee, like the others enumerated, is personal to the accused.
  • The requirement of a public trial is for the benefit of the accused.
  • Thus the right of `public trial’ is not one belonging to the public, but one belonging to the accused
  • the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged.”

So, as can be seen, the Founders reasoning for the Sixth Amendment was ONLY for the accused.  It was never intended to be in favor of the Court or the Prosecutor.  Only if the accused desired barring the public from the trial (yes, the whole darned thing, from beginning to end, with perhaps the exception of the Grand Jury deliberations), could the Court then accommodate the request of the only one afforded that right.

As we continue on in the abbreviated excerpting of the decision, we find that

  • compulsory process that have as their overriding purpose the protection of the accused from prosecutorial and judicial abuses
  • The right to a public trial, the Court stated, “has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
  • [A public trial] is for the protection of all persons accused of crime – the innocently accused, that they may not become the victim of an unjust prosecution.
  • that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions
  • “[t]he purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned… – and inhering in the institutional process by which justice is administered“.
  • There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system…  The public, for example, has a definite and concrete interest in seeing that justice is swiftly and fairly administered.
  • The public has an interest in observing the performance not only of the litigants and the witnesses, but also of the advocates and the presiding judge.

Now, here is where the public really comes in to play.  We, the American public, have every right, barring the exception in favor of the accused, mentioned above, to know just how OUR government works; whether it works for us, or against us and for its own protection and secrecy.  We must demand of the Court a full disclosure of ALL evidence in discovery, allowing only the protection of the names of the informants or agents.

Unless the case involves national security, there should be full disclosure of the practices that OUR government uses in protecting US from OURSELVES.  We believe that we don’t live in a police state, however, if we allow the government to continue to expand their secretive methods, we will, like the boiled frog, soon wake up and find that we have become subjects in the most extensive police state the world has ever known.

Tags: , , , , , , , , , , , , ,

Leave a Reply