Outpost of Freedom blog

Burns Chronicles N^o 34
“shall enjoy the right… to have
compulsory process for obtaining witnesses in his favor

Gary Hunt
Outpost of Freedom
October 17, 2016

As I watch these events unfold, I often compare them to the Constitution, as it is written — so that any man could understand it. But, when I try to fit the puzzle pieces into that image of what our Founding Fathers envisioned for us, they just don’t seem to fit.

The had decades of experience of the British government, whether Parliament or the Ministers, slowly encroaching upon their historical rights. So, when it came time to leave the Articles of Confederation behind, and to form a new limited government under the Constitution, they reflected on those encroachments, and both within the Constitution and the Bill of Rights, provided such limitations as they saw fit. Their purpose was to exclude any governmental authority that could subordinate those rights.

In this instance, the amendment that we should concern ourselves with is the Sixth. It reads:

In all criminal prosecutions, the accused [not defendant] shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.

Putting that aside for a moment, we need to consider a couple of phrases that are probably well recognized, with regard to legal proceedings. First is “preponderance of evidence“, which is most often associated with civil actions, where there is not a crime, rather, a determination of which side is most likely to be correct in their claims.

Next is “beyond a reasonable doubt“. Now, this is only applicable to criminal cases and requires that the jury is unanimous in their determination of the guilt of the accused party. However, this doesn’t mean that when a criminal trial has “facts” that are in question, that the preponderance method shouldn’t be applied.

Let’s look at it this way. Suppose Witness “A” says that the Accused did something, and then Witness “B” says that they did not. Both are supposed to be relying on their personal knowledge, though there is always the question of the interpretation of an observation. Now, with both “A” and “B” providing conflicting “facts”, which shall the jury accept as proof?  Suppose, however, that there were a number of other observers to those facts. Let’s say that we have Witnesses “C”, “D”, “E”, “F”, & “G”. Wouldn’t their testimony provide the jury the means to more readily make a determination as to what appears to be the correct “fact”?

.

Now, equating that with the absolute right embodied in that Sixth Amendment, the “compulsory process for obtaining witnesses in his favor“, we can easily understand what was intended. If there is no contest as to the facts, then perhaps no additional witnesses are necessary. However, the Amendment provides that you have the “compulsory” (required to be brought or asserted in a pleading because of having arisen from the occurrence that is the subject of litigation) right. So, if it is “required”, that is an imposition on the judiciary to assure that the right is recognized and secured. It is NOT a discretionary act of the judge; it is “compulsory“. To hell with what the Rules of Criminal Procedure might say to the contrary. How can a self-serving rule override the Constitution?

So, now we see both the role, and the necessity, of “preponderance of evidence“, as it applies to a criminal prosecution. And, we also see that the Founders contemplated such a perversion of justice in providing a means of preventing the government from pursuing the same course the British did.

Now, before we talk about the witnesses, we can first look at what excesses the government was allowed in their presentation of the government’s case. Remember, the government attorneys are all “working for a paycheck”. The Defendants are working for their future. The following is based upon hearsay. In the need to be able to provide a simple demonstration of the government’s deed during the trial, I relied on information from people that were present in Portland, though not present during the display of weapons and ammunition, they only heard about it. I trust that the details are close to the truth of the matter.

The government spent 5 hours over two days in a display that can be considered nothing less than “cumulative”.  The paraded 22 long rifles and 12 handguns, it is easily presented to the jury that there were “twenty-two long guns and twelve handguns recovered at the Refuge. Since they couldn’t tie the weapons to individuals, they didn’t need to provide the detail that they did, on each weapon. Now, “they were found…” would be sufficient for the jury to know what was found where.

Then there was the ammunition they found. They could have simply stated that 18,000 rounds were found, and briefly explain where those rounds were found and what caliber they were. The jury should have no problem with that picture. Instead, the government spent hours discussing the guns and parading plastic containers of those 18,000 rounds in front of the jury.  This was simply a display of exaggerating their performance to increase the juror’s emotional reaction to that evidence.

So, though the government has no “compulsory process“, the Court surely has no desire to diminish the theatrics of the process everybody had to endure.

When we look at what “compulsory process” has become, with regard to the Defendants, we get a different picture. They were denied the testimony of Governor Kate Brown, though she is the one that insisted on the federal government dealing with alleged criminal acts within state jurisdiction. They were denied FBI Special Agent Katherine Armstrong, who could testify as to how false information was included in the Criminal Complaint that was the foundation for the arrest warrants and subsequent Indictment. So, we will never know just how many fabrications were necessary to achieve the warrants and Indictment.

There were over 40 witnesses the Defendants wished to call “in [their] favor“. The judge has gone with the Prosecution’s arguments of “cumulative”, “irrelevant”, and even “hearsay”, when that testimony is of discussion that the potential witness had with some of the Defendants. It is such testimony that has made much of the government’s case. Only a handful of those witnesses called by the Defendants will be allowed to testify. And, when only one witness is allowed refute something a government witness has said, which one, “A” or “B”, will the jury rely upon during their deliberations?

Let’s add a rather interesting aspect to this whole scenario of witnesses. The government has admitted to having 15 informants involved in their investigation. However, only one of those informants has testified, and only one other has been identified but did not testify. So, we must wonder why the government paid people to be witnesses, then denies the Defendants the right to call those witnesses to testify.

Could those witnesses provide exculpatory testimony, demonstrating that what the Defendants claim to be the case really is what happened during those rather interesting days, while the citizens occupied the Refuge? Even more intriguing, would those informants be able to testify as to what their instructions were? Were they instructed to provoke or incite certain activity? What did they learn from their “handlers”?

However, unless Judge Brown allows that “compulsory process”, we will never know what might be kept from the jury.

What was the intention of the Founders? Was it to allow the Defendant that “compulsory process“, and then for the jury to decide as to relevance? Or, did they intend for a government appointed judge, being paid by that government, to determine relevance?

Let me quote from the Declaration of Independence:

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

Why would they have had such a grievance? Why would they have written the Sixth Amendment? Was it because their concerns were much like those that are suggested in the foregoing?