Justice Cannot Sanction Corruption!
Good Cannot Sanction Evil!
The FLAWS in American Justice
Thursday, July 21, 2011, 5:54:51 PM
"Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit."[1] Justice is and always will be an essential element of any civilization. For individuals to interact within a civilization there has to be a set of rules of for individual conduct defining the acceptable limits of individual liberty. Civilization formalizes rules for individual conduct into more formal laws.
To avoid arbitrary bias Civilization has always had the necessary and proper function to establish Justice for the administration of the laws. We the People in the beginning of our beginning, the preamble to the Constitution, put forward-most our intent to "establish Justice."[2]
The legal definition of Justice, per Black's Law Dictionary and I would assert any "person of ordinary intelligence,"[3] is "The fair and proper administration of the laws." By definition Justice cannot sanction the malicious and corrupt administration of the laws. Malicious and corrupt, again by definition, both, absolutely oppose "fair and proper."
Justice Cannot Sanction Corruption!
Common Law (non-written) predated what is today referred to as statute law (written). Common law, yes, had an intrinsic requirement for judicial immunity. The Judge was the law. The unwritten Common Law could not be separated from its vessel, the Judge. The Judicial Officer was the Law and therefore they could not be accountable to the law.
With our revolution We the People through off the infallible, immune, all-powerful, and unimpeachable pronouncement of law by the King, his chief justice, his officials, or any of his servants. We the People created, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby."[4] This Constitution, and the Laws stood apart and separate from any individual. We the People and specifically, the Judges, "in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [5]
Immunity was no longer a possibility nor was judicial immunity an intrinsic requirement of the now WRITTEN LAW. Every person[6] or Whoever[7] caused the violation or "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States of America"[8] could be held accountable to "This Constitution, and the Laws of the United States." Our forefathers having historical precedent and experience of the Magna Carta § 61 and the "repeated Petitions" "for Redress in the most humble terms" of The Declaration of Independence (1776), constitutionally secured for themselves the First Amendment lawfully un-abridge-able right:
"Congress shall make no law abridging the right of the people to petition the Government for a redress of grievances."
And we were fine for 100 years.
The American Judiciary survived and prospered for nearly 100 years (1776-1871) without any need for the self-serving grant of absolute immunity. The Civil War changed things.
"A condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate.[9] That the power to correct these evils is beyond the control of State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore, I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . . "[10]
"States have denied to persons within their jurisdiction the equal protection of the laws. The proof on this point is voluminous and unquestionable. . . . [M]en were murdered, houses were burned, women were outraged, men were scourged, and officers of the law shot down, and the State made no successful effort to bring the guilty to punishment or afford protection or redress to the outraged and innocent. The State, from lack of power or inclination, practically denied the equal protection of the law to these persons.[11]"
"That the State courts in the several States have been unable to enforce the criminal laws of their respective States or to suppress the disorders existing, and, in fact, that the preservation of life and property in many sections of the country is beyond the power of the State government, is a sufficient reason why Congress should, so far as they have authority under the Constitution, enact the laws necessary for the protection of citizens of the United States. The question of the constitutional authority for the requisite legislation has been sufficiently discussed."[12]
"The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties. The question is not whether the majority of the people in every State are not likely to desire to secure their own rights. It is whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own as to insure that under no temptation of party spirit, under no political excitement, under no jealousy of race or caste, will the majority, either in numbers or strength, in any State seek to deprive the remainder of the population of their civil rights."[13]
"Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." "The courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity." I say it NOW, 2011!!! Justice William O. Douglas said it in 1961 and 1967.[14] Mr. Lowe of Kansas and Mr. Rainey of South Carolina respectively said it in 1871[15].
The precedents that supposedly created immunity from the Supreme Law of the Land were Randall v. Brigham, Page 74 U. S. 536 (1868) and Bradley v. Fisher, (13 Wall) 80 U. S. 335 (1871). Randall and Bradley were created three years apart and contemporaneous with the passage of the § 2 of the 1866 Civil Rights Act (now Title Criminal 18, U.S.C, § 241 & 242) that clearly made "whoever" i.e., Judges, statutorily criminally liable for the deprivation of rights and § 1 of the 1871 Civil Rights Act (now Title Civil 42 U.S.C. § 1983 & 1985) that made "Every person" i.e., Judges, statutorily civilly liable.
"To assume that Congress, which had enacted a criminal sanction directed against state judicial officials, intended sub silentio to exempt those same officials from the civil counterpart approaches the incredible."[16]
Clearly as "Representative Shellabarger stated, § 1 of the 1871 Act provided a civil remedy "in identically the same case" or "on the same state of facts" as § 2 of the 1866 Act, it obviously overrode whatever immunity may have existed at common law for these participants in the judicial process in 1871."[17] It should also be noted that in the subsequent 140 years since Bradley (1871) American society has endured the Jim Crow era, the Jane Crow era and the five fold increase in our per capita prison population versus the rest of the world.[18]
The Supreme Court in the most heinous usurpation of power created the self serving judge made rule of absolute immunity per Bradley v. Fisher, (13 Wall) 80 U. S. 349 (1871), it states:
"This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of (the people being robbed and disenfranchised) the public, whose interest it is that the judges should be at liberty (to act without regard to the law or the rights of "We the People") to exercise their functions with independence and without fear of consequences." (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 80 U. S. 335, 80 U. S. 349, note, at 80 U. S. 350.) (PIERSON V. RAY, 386 U. S. 547 (1967)) non-italic parenthetical editing added for emphasis).[19]
The Supreme Court admits that their UNCONSTITUTIONAL grant of absolute immunity, before out of court, protects the "malicious or corrupt judge,"[20] that is a sanction of malice and corruption. The sanction of malice and corruption violates the meaning and intent of the Constitution's preamble assertion to "establish Justice."[21]
Briscoe v. LaHue, 460 U.S. 325 (1983) @ Page 460 U. S. 345 re-states in different terms a more modern less racially oriented still unconstitutional precedent via Judge Learned Hand's opinion in Gregoire v. Biddle (1950). I address and include here the larger context of Gregoire while noting the excerpt from Briscoe with a different font:
"The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried (This is an outright lie or at best a false statement, the prosecutors and Judges get unfounded claims and dismiss cases all the time for lack of evidence. That is part of the job as professionals in the judicial process.), and that to submit all officials,(only the ones for whom "probable cause" can be substantiated) the innocent as well as the guilty, to the burden of a trial and to the inevitable danger (how is there "inevitable danger" in a system dedicated to justice) of its outcome would dampen the ardor (I unabashedly want to dampen the ardor of those that would maliciously, corruptly or INCOMPETENTLY persecute the innocent) of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake,[22] in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties, but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. "As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance, it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation..."[23]"[24] (Non-italic parenthetical, emphasis, underlining editing added)[25]
This entire argument is sophistry, false on its FACE, it asserts as a premise "There must indeed be means of punishing public officers" then concludes, with "thought", alone without any justification the complete opposite "it has been thought in the end better to leave unredressed the wrongs" i.e., immunity for "public officers." "It has been thought" is self-serving sophistry of "public officers" by and for "public officers."
Secondly to assert "a balance between the evils inevitable" is again sophistry, to obscure the good and promote the evil. What are the supposed evils?
1. Prosecuting, "dishonest officers," the wrong doers
2. Subjecting, "those who try to do their duty," the innocents to a DETERRENT for wrongdoing?
I say again, where is the evil? That is as it should be. Those are not evils. Those are both POSITIVE affirmations of the RULE OF LAW! It is clear to anyone other than the vested recipient of "absolute immunity" that "absolute immunity" is the EVIL.
"There is, of course, the possibility that, despite the truthfinding safeguards of the judicial process, some defendants might indeed be unjustly convicted on the basis of knowingly[26] false testimony by police officers. Footnote 31"
Because of the mens rea and actus reus the criminal parties involved the "knowingly false testimony" is COMPLETELY different from the "misidentification or other unintentional mistake." And when this "knowingly false testimony" is under color of law via our governmental grant, the government has respondeat superior liability for their actions i.e., that is to say, without the grant of authority from the government the "knowingly false testimony" would not have had the authority or affect of under color of law. The court thus sanctions the denial of justice with the very real possibility of the "unjustly convicted." In a system committed to and based on the intent to establish Justice[27] this should be unacceptable? Footnote 31, as references above provides an additional failed attempt at a justification:
"There is no reason to believe, however, that this risk is any greater than, or indeed as great as, the risk of an unjust conviction resulting from a misidentification or other unintentional mistake. There is no federal damages remedy for such innocent persons, or for those who are acquitted after undergoing the burdens of a criminal trial."
The Supreme Court while asserting a statistical comparison clearly has no basic grasp of statistics. They attempt through force of their sophistry alone to cover up the risk of "knowingly false testimony" with an asserted equal risk of "misidentification or other unintentional mistake." Risks are cumulative not overlapping. For example IF there is a 20 in 1000 risk of "knowingly false testimony" and 100 in 1000 risk of "misidentification or other unintentional mistake" that will result in a 120 in 1000 risk of a wrongful conviction, NOT a 100 in 1000. The 20 persons in 1000 who were wrongfully convicted, the result of the mens rea and actus reus of a preventable prosecutable crime, "knowingly false testimony." Where as the 100 in 1000 that were inadvertently convicted, the result of unavoidable human error, there is no one individually criminal or civil responsibility. There is very little if any difference between being convicted via "misidentification or other unintentional mistake" or being stuck by lighting. As further example Supreme court's example is like saying, "We are all going to die sometime. Why worry about how, murder or natural cause?" The risk of murder, 1/100,000 (.000001%), is insignificant as compared to the inevitability of dying, 100,000/100,000 (100%), so why worry?
Good Cannot Sanction Evil!
I assert that CIVIL RIGHTS are the most important law of all. If I have to live in fear of criminals under color of law[28] along with the criminals outside the law,[29] I have no place that I am safe. To establish ourselves as a viable civilization we have to establish the Rule of Law. The Rule of Law FIRST and foremost has to bind ALL THOSE acting under its authority. Alexander Hamilton, in 1788, in regard to our constitution, The Judiciary Department, said it first and better, "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void."[30]
This was ALL almost immediately and clearly confirmed in the Supreme Court opinion by John Marshall (1755-1835), 4th Chief Justice of the Supreme Court (1801-1835) in Marbury v. Madison, 5 U. S. 137 (1803):
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection" (Page 5 U. S. 163).
"Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy" (Page 5 U. S. 166).
The Protection of the Laws is ESSENTIAL
to any civilization!!!!!!!!!!
They took my son, they took my home, they took my liberty and I am suppose to just capitulate because they have conjured up out of sophistry and nothingness this corrupt, malicious and incompetent grant of Absolute Immunity????????
"Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress." "The courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity." I say it NOW, 2011!!! Justice William O. Douglas said it in 1961 and 1967.[31] Mr. Lowe of Kansas and Mr. Rainey of South Carolina respectively said it in 1871[32].
Impeach the Supreme Court FIVE[33]
for condoning the denial of a Constitutionally secured and congressionally un-abridge-able right to justice and
"fraud upon the court."
Impeach the Supreme Court FIVE for verifiable NOT "good Behaviour,[34]" denying the establishment of justice and abridging a Constitutionally secured and congressionally un-abridge-able right, with their deprivation of substantive 7th Amendment[35] justice between the government and the people, Connick, District Attorney, et al. v. Thompson No. 09–571 Decided March 29, 2011 and "fraud upon the court" with Ashcroft v. al-Kidd No. 10–98 Decided May 31, 2011!!!
The Right of Petition is the right to substantive justice between the government and the people. We do not have any individually enforceable rights in this country, "Everybody, BUT the innocent victim, has "ABSOLUTE IMMUNITY"" for the deprivation of "any rights, privileges, or immunities secured by the Constitution and laws of the United States of America"[36] e.g., To Kill a Mocking Bird, The Denial of Due Process, The Exclusionary Rule, Grounds for Impeachment, Jeep v Obama, Jeep v United States of America 10-1947, Jeep v Jones "The most humble Petition for a Wirt of Certiorari to the Supreme Court 07-11115."
DGJeep "The Earth and everything that's in it" (www.dgjeep.blogspot.com)
Thursday, July 21, 2011, 5:54:51 PM, 2011 07-19-11 Bradley, Briscoe and Learned Hand REV 02.doc
[1] The Federalist No. 51, "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments" Independent Journal, Wednesday, February 6, 1788, by James Madison
[2] "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." The preamble to the Constitution for the United States of America 1789
[3] SYKES v. UNITED STATES Cite as: 564 U. S. ____ (2011) 7, SCALIA, J., dissenting
[4] Constitution for the United States of America Article. VI. Second paragraph
[5] Constitution for the United States of America Article. VI. Second paragraph
[9] Monroe v. Pape, 365 U.S. 167 (1961) at Page 365 U. S. 175 This Act of April 20, 1871, sometimes called "the third force bill,'" was passed by a Congress that had the Klan "particularly in mind." The debates are replete with references to the lawless conditions existing in the South in 1871. There was available to the Congress during these debates a report, nearly 600 pages in length, dealing with the activities of the Klan and the inability of the state governments to cope with it. This report was drawn on by many of the speakers. It was not the unavailability of state remedies, but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this "force bill."
[10] Excerpted from a message sent to Congress by President Grant on March 23, 1871
[11] Mr. Beatty of Ohio, No. 1, 42d Cong., 1st Sess. p. 428.
[12] Senator Osborn of Florida Cong.Globe, 42d Cong., 1st Sess. 653
[13] Mr. Hoar of Massachusetts Cong.Globe, 42d Cong., 1st Sess., pp. 334-335
[15] At the ratification of § 1 of the 1871 Civil Rights Act (Title Civil 42 U.S.C. § 1983 & 1985) Cong.Globe, 42d Cong., 1st Sess., 374 & 394
[16] Justice Thurgood Marshall dissenting in Briscoe v. LaHue, 460 U.S. 362 (1983)
[17] Justice Thurgood Marshall dissenting in Briscoe v. LaHue, 460 U.S. 363 (1983) (emphasis and underlining added)
[18] ."With 5% of the world's population, our country now houses nearly 25% of the world's reported prisoners. We currently incarcerate 756 inmates per 100,000 residents, a rate nearly five times the average worldwide of 158 for every 100,000. " I refuse to believe we are 5 times as criminal as any other country. "Why We Must Fix Our Prisons", By Senator Jim Webb, Parade Magazine published: March 29, 2009, U.S. Imprisons One in 100 Adults, Report Finds New York Times, By ADAM LIPTAK, Published: February 29, 2008, Our Real Prison Problem. Why are we so worried about Gitmo? Newsweek by Dahlia Lithwick Published June 5, 2009
[19] Uneditted text from Page 80 U. S. 349 "This immunity applies even when the judge is accused of acting maliciously and corruptly, and it "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 80 U. S. 335, 80 U. S. 349, note, at 80 U. S. 350. ) (PIERSON V. RAY, 386 U. S. 547 (1967))
[20] Bradley v. Fisher, (13 Wall) 80 U. S. 335 (1871) @ Page 80 U. S. 349) (origin Judicial "Absolute Immunity). That is to say also Imbler v. Pachtman, 424 U. S. 409 (1976) (prosecutorial "Absolute Immunity"), Stump v. Sparkman, 435 U.S. 349 (1978) (Judicial "Absolute Immunity"), Butz v. Economou, 438 U.S. 478 (1978) (an agency attorney has "Absolute Immunity") Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (Judicial "Absolute Immunity"), Briscoe v. LaHue, 460 U.S. 325 (1983) ("Absolute Immunity" for all persons that were integral in the Judicial Process)
[21] "We the People of the United States, in Order to form a more perfect Union, establish Justice…" ibid.
[22] Any professional should be able to handle emergency exigent circumstances; but in such cases "Good Faith" could be the presumption. But because immunity is, before out of court, emergency exigent circumstances, good faith, bad faith, overwhelming proof is never even an ISSUE!!!!!!!!!
[25] Unedited Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949 (1950) "The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation."
[26] The operative word here is knowingly. The act of knowingly doing something makes it first a crime, with mens rea and actus reus. Because it is then different from and inadvertent mistake
[27] We the People of the United States, in Order to form a more perfect Union, establish Justice…" ibid.
[28] wearing badges, suits and the black robes of the police, prosecutors and judges respectively
[29] wearing ski masks and carrying guns
[30] Alexander Hamilton in the Federalist Paper #78 "The Judiciary Department," Saturday, June 14, 1788
[32] At the ratification of § 1 of the 1871 Civil Rights Act (Title Civil 42 U.S.C. § 1983 & 1985) Cong.Globe, 42d Cong., 1st Sess., 374 & 394
[33] Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy, and Chief Justice John G. Roberts
[34] Article III Section 1 the Constitution for the United States of America "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour"
[35] Amendment VII In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
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