Saturday, July 16, 2011

Constitutional Rights Privileges and Responsibilities a la James Arthur Ray

When I asked my husband if he knew what the 6th Amendment of the US Constitution said … I was met with a blank gaze. When I asked him if he knew what rights were guaranteed under the 1st Amendment I was greeted by stony silence.

History was never my strong suit.” He answered with a sheepish smile.

So I thought I’d take a different tact. “Johnnie ... you know how you’re always talking about the ACLU?

Yeah, so what?

What does the ACLU do?

Make trouble for everyone.”

Johnnie … no no no no no no no! Geeze ... wrong answer.

Christ Jeanne, you know it’s true.

Johnnie, it’s still the wrong answer you Bozo. What does the ACLU do?

The ACLU are a bunch of leftist pundits and lawyers who’ll take on any stupid cause -- as long as it furthers their own agenda … regardless who gets hurt by it.

Johnnie!  You’re NOT listening to my question. What, does, the, A C L U do?”  By this point Johnnie had turned around and was stomping off to watch The O'Reilly factor. “Johnnie … ever hear of the first Amendment?” I screamed at his rapidly retreating form. “The ACLU litigates to protect people’s 1st Amendment rights.

I don’t give a shit what you think they do Jeanne … or why … they’re still a bunch of fucking morons.  I'm sick of this conversation Jeanne.  Why can't you and me ever discuss normal shit?

At this point I wisely gave up trying to debate the finer points of constitutional law with my husband. (sigh)

My later attempts at discussing U.S. Constitutional Statutes and how they apply to the law with various friends and acquaintances.
Question 1:
Name the first 10 Amendments?

Answer 1:
“You mean there are more than 10?”
(There are 27 enacted Amendments and six pending, including the Equal Rights Amendment.)

Question 2:
What is the 6th Amendment?

Answer 2:
“Thou shall not kill?”
(I think you've got the 6th Amendment confused with the 6th Commandment)

Text of the 6th 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.

Question 3:
What do you think about the 5th Amendment?

Answer 3:
“My Mom was really into Marilyn McCoo and that entire “Aquarius” thing.

People Just Don't Care ...

It has since dawned on me that the average person on the street doesn’t share my interest in the U.S. Constitution.  Until one of those rights gets trampled on ... or taken away ... then they're all over it.  Better wake up people ... because EVERYONE'S rights are being trampled on BIG TIME.

James Arthur Ray would rather you Didn't Care ...

OK, James Arthur Ray was found guilty of negligent homicide -- TIMES 3.  Not exactly what the prosecution and the families wanted, but hey it's a major felony (with jail time), which still counts.

So is James Arthur Ray sitting in a nice jail?  Er, um, ahhh, the answer to that would be ... ah NO.  Which sucks ... BIG time.  (High fives for Munger Tolles & Olson and James Arthur Ray's super special Defense Team.)

Why isn't James Arthur Ray sitting in jail (Ms Polk asked nice)?  Because Judge Darrow said he could stay out on his own recognisance until he was able to sort through all the paperwork James Arthur Ray's super special Defense Team filed.  (How's about an other round of high fives for Munger Tolles & Olson and James Arthur Ray's super special Defense Team.)

Guess James Arthur Ray figures the longer he gets to stay out of the poky ... the more likely Judge Darrow will be to let him stay out.  At least that's the way it looks to me.  But then what do I know ::: I'm just a fat middle aged woman. 

But wait ... this story get's even better!  Now James Arthur Ray wants all three charges dropped (how's that for a slap in the face of everyone involved in the trial?) and a new trial. 

I mean who gives a damn how much a new trial will cost the Yavapai County Court System (You just know Munger Tolles & Olson and James Arthur Ray's super special Defense Team is going to file even MORE paperwork) ... let alone ALL the witnesses (lost family time, plane fare, lost wages, hotels, car rentals, etc.) which includes doctors and medical examiners and paramedics AND VICTIMS, AND family members and ... the list goes on and on and on.  Oh and the Jury ... let's not forget the NEW jury ... endless side bar ojections ... mistrial motions ... you know the drill.

James Arthur Ray certainly doesn't give a damn about anyone but himself ... that much is obvious.  Seems like it's OK for James Arthur Ray to FUCK over the court system and EMOTIONALLY RAPE anyone brave enough to speak up against him and basically toss anyone and everyone he perceives as NOT ON HIS SIDE ... under the proverbial BUS.  ALL in the name of James Arthur Ray's personal brand of Justice.

The law states that before anyone ... James Arthur Ray included ... can be found guilty a crime, he gets a fair trial.  A wonderful idea ... a GREAT idea actually ... with one small problem.  This process only works when EVERYONE plays fair.  What happens when the bad guy and the bad guy's legal team DOESN'T PLAY FAIR?   The entire judicial process turns into a huge stinky messy pile of crap.

James Arthur Ray had a fair trial ... everyone bent over sideways to give him a fair trial.  Trial over, the witnesses and the jury have all gone home ... the only thing left is sentencing.  Unfortunately James Arthur Ray doesn't want to go to jail.  (Wow, I so didn't see that coming.)

Geeze ... I'm sorry dude ... but this trial is so over.  It's time for YOU to suck it up and take it ::: like the man you so obviously ARE NOT.  Don't forget ::: it was YOUR actions (and inaction) which helped kill three people ... you don't hear them complaining do you!  Oh yeah, in case you forgot ... the reason they're not complaining ... is because THEY'RE ALL DEAD!

I'll tell you a big secret.  Just in case anyone else hasn't already figured this one out ... James Arthur Ray doesn't give a damn if he's innocent or not (he's guilty by the way) and DOES NOT want a new trial.  He's just saying that to scare and intimidate people.  James Arthur Ray wants to go free ... he wants the DA, the Judge, the witnesses and everyone breathing down his ugly throat to leave him the hell alone ... so he can go back to doing the same-old same-old.

It's time for us to demand justice ...
NOW before it's too late!

That's OUR constitutional RIGHT!
So join me today ... MAKE NOISE ... CALL EVERY GOVERNMENT OFFICIAL YOU CAN THINK OF ... and then call them again.  Demand accountability BEFORE this situation gets even worse!

Contact the media, write your local newspaper, your favorite television and radio station.  Contact 60 minutes ... CNN ... FOX News ... MSNBC ... NPR ... BBC World News America ... Larry King ... Oprah (gott'a love her) ... Doctor Phil (wouldn't that be a hell of a show) ... write Op Ed pieces for your local newspaper ... Newsweek ... Time ... MAKE NOISE!!!
Then contact your friends and family members and ask them to contact everyone they can think of.

So don't wait ... start making noise today!

email the Governor of Arizona and tell her how you feel about the James Arthur Ray trial.

Contact your State Senator and tell them how you feel about the James Arthur Ray Trial

email President Obama and tell him how you feel about the James Arthur Ray Trial

File a complaint against James Arthur Ray's California based Defense Team at:

Info on the Constitution, Brady and other fun legal stuff.

Amendment VI

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.

Speedy trial
Defendants in criminal cases have the right to a speedy trial. In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court laid down a four-part case-by-case balancing test for determining whether the defendant's speedy trial right has been violated in the case. The four factors are:
  • Length of delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial," but the Court has never explicitly ruled that any absolute time limit applies.
  • Reason for the delay: The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.
  • Time and manner in which the defendant has asserted his right: If a defendant agrees to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.
  • Degree of prejudice to the defendant which the delay has caused.
In Strunk v. United States, 412 U.S. 434 (1973), the Supreme Court ruled that if the reviewing court finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned. The Court has held that, since the delayed trial is the state action which violates the defendant's rights, no other remedy would be appropriate. Thus, a reversal or dismissal of a criminal case on speedy trial grounds means that no further prosecution for the alleged offense can take place.

[1] from Stanford University
Substantive Due Process

"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights.

However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process. Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

This is an extremely significant idea because of how it greatly expands the power of judicial review exercised by the federal courts. This happens in two ways:

First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:

· Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."

· Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendment’s Due Process Clause.

Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights.

In the original U.S. Constitution itself, there are not that many express restrictions on the power of the states. Most are in Art. I § 10 and in Art. VI. The Bill of Rights was added in 1791. But by it own terms, applies only to the federal government. See Barron v. Baltimore, 7 Pet. 243 (1833). The Bill of Rights contains both substantive and procedural rights designed to limit the power of the federal government. After the adoption of the 14th Amendment in 1868, the Supreme Court determined that many of the procedural provisions of the Bill of Rights (like the Fourth and Fifth Amendments) would also be protected by the 14th Amendment’s Due Process Clause, which was directed at the states. However, the Court also used the theory of Substantive Due Process to apply ("incorporate") many of the substantive provisions of the Bill of Rights (like the First Amendment) to the states as well. E.g. Gitlow v. NewYork, 268 U.S. 652 (1925). In the late 1800’s the Supreme Court also began to use Substantive Due Process to establish various substantive rights not actually articulated in the Constitution under the "Fundamental Rights" theory. See Lochner v. New York, 198 U.S. 45 (1905). Later on, the Court would repudiate the "fundamental rights" version of Substantive Due Process as an infringement on the authority of state legislatures. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Ferguson v. Skrupa, 372 U.S. 726 (1963). In Griswold v. Connecticut, 381 U.S. 479 (1965), at least four of the seven votes that affirmed the right to privacy were based on the fundamental rights theory. This reliance continued in Roe and Casey. Even while different constitutional theories were advanced in Griswold, Roe and Casey to support the right to privacy all of them, directly or indirectly, rely on Substantive Due Process.

Critics of Substantive Due Process claim that it is not the laws it strikes down, but rather the theory itself which is "unconstitutional." They claim that it is a pure usurpation of power by the Court since they Court can’t use Judicial Review to strike down a state law unless the law is really contrary to the Constitution. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights. They say that when the Court uses judicial review to enforce these pseudo-Constitutional rights they are stealing the legitimate law-making power from the state legislatures.

Supporters of Substantive Due Process, on the other hand, point to its long history and its dynamic ability to defend basic human rights from infringement by the government. They argue that Substantive Due Process provides comprehensive nation-wide protection for all our most cherished rights, which might otherwise be at the mercy of state governments. They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it.

Critics respond by saying that just because something is a basic human right does not make it a "Constitutional" right. Constitutional rights, by definition are enshrined in the Constitution.

Most Justices on the current Court support the theory to some extent or another, but there are grave differences as to how freely the Court should be willing to assert the Fundamental Rights theory that originally spawned the right to privacy.

[NOTE: While there actually are two slightly different "Due Process" clauses in the U.S. Constitution, one in the Fifth Amendment, applying to the federal government, and the second in the Fourteenth Amendment, applying to the states, it is the 14th Amendment’s Due Process Clause which is really important here, because it applies to the states. The Supreme Court has generally interpreted them to be identical in meaning. While substantive due process applies to both clauses, because it is the state law that is most relevant here, this treatment we will be speaking to the 14th Amendment clause in particular. It should be noted that there is a history of substantive due process in American federal and state jurisprudence well before the adoption of the Fourteenth Amendment in 1868.]

[2] From Wikipedia, the free encyclopedia
Brady material
Brady v. Maryland, 373 U. S. 83 (1963), [1] was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Maryland prosecuted Brady and a companion, Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had withheld a written statement by Boblit confessing that he had committed the act of killing by himself. The Maryland Court of Appeals had affirmed the conviction and remanded the case for a retrial only of the question of punishment.

The court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed.

Brady refers to the holding of the Brady case, and the numerous state and federal cases that interpret its requirement that the prosecution disclose material exculpatory evidence to the defense. Exculpatory evidence is “material” if “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed. ” [1] Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution's witnesses [2], and evidence that could allow the defense to impeach the credibility of a prosecution witness.[3]

Police officers who have been dishonest are sometimes referred to as "Brady cops. " Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.[4] Brady evidence also includes evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant.[5]

[3] From the Yale Law Journal
Great Article on Brady Violations

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