Obfuscation of Justice #1
The Appellate Court’s continuation of a charade
Gary Hunt
Outpost of Freedom
November 4, 2001
There are some basic principles that must apply if Justice is to prevail. This was one of the concerns of the Founders of this once great nation, as they pondered the form of government which would replace the one that they had given blood to cast off.
As a result of this concern, they decided that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,…" [Constitution, Article III, Section 1]. The idea, quite simply, was that the judges would not feel bound to a higher authority in the administration of justice.
This principle was also carried through with the concept that we are a nation of laws, not of men. For the first few decades of this government, Federal Statutes were adopted to define what rules government would abide by in its dealings. Though they, eventually, began enacting laws which, they felt, would hold the people in obedience to the government. But, this is a whole other subject, and is not the purpose of this article.
There can be little doubt, however, that government is bound, absolutely, by the laws which it enacts to conduct its business.
One of those laws, was enacted to provide an equitable qualification for jurors in Federal trials, regardless of what applied in the various states, and without regard to definition, rather to application.
28 USC § 1865., "Qualifications for jury service" is the particular law which applies to what qualifications are required to become a juror, and, by exclusion, what would disqualify someone from that capacity.
Understanding that the original intention of the jury was to balance the government and the laws it enacted, it is one of the paramount responsibilities of the citizens of a free nation. The responsibility of a juror cannot be taken lightly, and reason for disqualification must be such that it is consistent, clearly defined and fair to both juror and defendant.
28 USC § 1865 provides us the specific conditions that would disqualify a potential juror:
(1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district;
(2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form;
(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or
(5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.The first four items which would disqualify a potential juror have to do with the persons birth and abilities. The fifth, however, deals with the nature of the person as he fits into a society. It would be fair to assume that such a person, assuming he had been convicted of such a crime, has demonstrated his predisposition to ignore the rules of the society, including a disregard for others and, quite probably, a proclivity to lie.
Therein lies the apparent illegality of an "anonymous jury", or, what is deemed an "innominate jury" in this case. As the decision explains, "The district judge preferred to describe the jury as 'innominate,' not 'anonymous,' because anonymous connotes a 'clandestine, forbidden, and obscure jury panel.'" Page 1, Footnote]
When the jury is innominate, or hidden from the accused, at least in name, background, etc., it denies the defendant any check against certain rights he has to determine if the jury truly is peerage. This condition must impose upon the judge an absolute responsibility to assure that all of the conditions of law, for qualifications of jurors, have been met.
If the judge assumes, for whatever reason, the authority to deny the defendant, and his attorney, all available information on a potential juror – which might give the means to determine whether the juror might be biased – then the judge must be bound to assure that the jury is totally qualified.
Without assurance that these conditions have been met, how can the trial possibly be considered a "public trial" [Constitution, Sixth Article in Amendment] and satisfy the protections of the Constitution?
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From the Decision [Page 4]:
"During voir dire, the district judge asked each prospective juror whether he or she had been 'charged with a crime?' And by that I mean something you understood might have resulted in being imprisoned if you were convicted." 6/3/97 Transcript, at 147. Juror 505 responded, "I was stopped last year and charged with driving with a suspended driver’s license. It was an unpaid traffic ticket. It has since been resolved, no problem." The district judge stated, "All right," and proceeded to the next juror. In fact, during the entire trial, Juror 505 was: (1) on probation following a Florida felony arrest for driving with a suspended license; and (2) required to serve 60 days in jail on weekends… It is unclear from the record whether any portion of this sentence was actually served during the trial.
Well, this is almost all of the truth of the matter. But, let’s go a little further. The Appellate Court seems to believe he was "on probation following a Florida felony arrest for driving with a suspended license". This is where the obfuscation comes in. "Juror 505", aka, Matthew Lee Finch, had signed, in open court, a document in which he agreed that, "I give up (waive) my right to a jury trial, and that I will be sentenced as a felony offender, based upon my plea.". Now, this is a far cry, technically, which is the criteria that must be used to evaluate such a matter (remember, someone’s freedom is at stake), from "on probation following a Florida felony arrest".
If that is insufficient, in the mind of the reader, let’s look at the letter of the Federal Law. The applicable statute says, "or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored."
Let’s go back to the plea agreement wherein Finch swears that, "I understand …. The maximum penalty for the crime(s) to which I am pleading guilty or no contest. Which is 5 [years in prison…" I’m sure that nobody will have trouble with understanding that he had plead to a crime that was "punishable by imprisonment for more than one year" and, that, since he was still on probation, it is quite clear that "his civil rights have not been restored."
See, we are moving away from Obstruction of Justice and moving into a new realm – Obfuscation of Justice.
But, we are not done, yet. The level of incompetence, obstruction, or obfuscation demonstrated in this case will achieve even greater magnitude.
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In the letter that broke this "innominate jury" issue open, the man’s (Finch) wife had told her attorney, in preparation for divorce proceedings, that her husband (Finch) was on probation the entire time that he served on the Florida Common Law Court jury.
The Verdict in the Florida Common Law Court trial was announced on August 13, 1997. On November 4, 1997, the letter was sent to Judge Merryday. I believe that it was at this point that Judge Merryday had a decision to make as to whether to pursue justice or cover Judge Merryday’s ass. After all, he had stepped into the realm of a quasi, or, perhaps, illegal jury. He had made a decision and, I’m sure, was sure that there would be no problems. He had not, however, anticipated what had just come to his knowledge – and, would most assuredly, haunt him.
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Merryday, perceiving the severity, and anxious avoid responsibility, asked the Federal Bureau of Investigation (FBI) to identify and investigate the juror and his criminal record. The FBI assigned Special Agent Robert D. Coffin to investigate the matter.
Coffin interviewed Finch in the presence of the government attorneys, but the defendants attorneys (and the Defendants) were left in the dark. He was interviewed on two other occasions, and in subsequent hearings, SA Coffin was unable to answer many questions about Finch’s criminal record. Only one of the defendant attorneys was allowed to review the information that Coffin had compiled. For whatever reason, and even though it was one of the defendant attorneys who had brought forward the allegations about Finch, the Court never would entrust them with any knowledge (with the single exception) of the identity or criminal record of the defendant.
The record, however, did reflect that "between 1988 and 1997, Juror 505 was charged with burglary, contributing to the delinquency of a minor, disorderly conduct, grand theft, and driving with a license suspended or revoked. Each charge was either dropped or received an 'adjudication withheld,' a Florida procedure suspending a jail sentence and placing defendant directly on probation."
What the FBI was unable to determine, however, was that Finch had pled to a felony, which carried up to five years imprisonment – well beyond the statutory one year criteria.
They also seem to have determined that, since he was on probation, with "adjudication withheld", he was neither charged nor convicted, as the same statute states. This raises the question, if someone plea bargains to, say, murder, he has not been convicted of that crime?
Knowing that the government would never wish to imply impropriety by subsequent actions, Florida Judge Douglas Baird, the judge who had taken the plea agreement, once he found that Finch has served the government by sitting on this controversial jury, suspended both jail time and fines -- allowing Finch to be a free man (though he still has a record as a felon).
One interesting aside from the case is that the decision indicates that the NCIC (National Crime Information Center) computer did not have all of the information on Finch – if what we have been told is true.
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Merryday continued to express reluctance to order a new trial, "presumably because of the length and complexity" of the trial. It would seem that justice took second seat to expedience.
Merryday did divert the issue from the law (28 USC 1865) to one of that of whether the juror was "dishonest or biased". Well, there can be little doubt of his dishonesty.
As the Decision records, Merryday "found that Juror 505: (1) had adjudications withheld on several occasions and served several probationary terms, but had no federal or state felony convictions; (2) never had his civil rights suspended or terminated; (3) had no felony charges pending against him at the time of trial; and (4) satisfied the statutory qualification to sit as a juror under 28 U.S.C. § 1865."
Well, that is quite a conclusion, and, one that you will see, does not meet the test that the Appellate Court holds, though they do appear to attempt to protect Merryday with their conclusions.
In their efforts to vindicate Merryday, they conclude that Merryday "reasoned that: (1) the mixed verdict was strong evidence that Juror 505 was not biased; (2) retrial would involve large expenditures of time and expense; and (3) Juror 505 did not actively elect to withhold or deflect his criminal record, and if he did, it was to minimize his embarrassment. The district judge implied that any error related to Juror 505 was harmless error. The district judge based his decision on Coffin’s hearsay testimony of Juror 505's criminal record and motive."
Well, No. 1 and 2 seem to fly in the face of the concept of justice that we are told exists in this country. Number 3 finds a way to excuse a felon, since he didn’t want to suffer embarrassment. Merryday, they suggest, find the error harmless – but, they excuse Merryday’s conclusion on, well, the incompetence of the FBI investigation.
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In April 1998, the Outpost of Freedom broke the story on the identity of Juror 505 – Matthew Lee Finch. His rap sheet, picture and plea agreement were posted on the internet – at the Outpost of Freedom (and, they are still there). It appears, however, that the Appellate Court and the FBI, who were directed to investigate the release of the Juror 505 identity, have been as inept in that investigation as they were in the investigation into the criminal record of Finch. You see, they have never even contacted me about the information, so, I speak with first-hand knowledge.
The government is incapable of conducting a proper investigation, though they will make the motions of competence, and submit, no matter how erroneous or meager, their findings to the Court. And, the Court will assume that the have been provided all of the information that is available, and proceed on that assumption – regardless of whether justice will be served, or not. The end game, you see, is to continue the simulation of integrity in the system.
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Though the Appellate Court has tried to divert the issue to bias, rather than hold to the written law, which makes no mention of prior knowledge of a defendant, reading newspapers during deliberations, and the multitude of other no-nos that have been imposed by rules of court rather than legislation, the have – a saving grace – remanded the matter back to the District Judge Merryday.
They have, however, laid the groundwork for the hearing to be conditioned on bias rather than on law. Let us hope that, after six years in prison for an alleged violation of the law, the defendants are able to rely upon law, rather than bias, to remove the blemish of this corrupted verdict from their record.
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