South Carolina's "Picasso-painting" way around the 5th, 6th and 14th Amendments. The wrongful conviction of #SidneyMoore

South Carolina is a death penalty state.

5th Amendment gives the accused in a criminal investigation the right to remain silent.

And, the U.S. Supreme Court required a warning about the right to remain silent and the right to an attorney in custodial interrogations by law enforcement.

Let's look, against the background of this indisputable law, at the criminal conviction - and recent denial of parole - of Sidney Moore, in South Carolina.

A young woman, Heather Elvis, has disappeared in South Carolina.  The police claim that the last location of her cell phone shows at the abandoned Peachtree Boat Landing in Socastee, South Carolina, on December 18, 2013 where her car was also discovered.

She could have left the state for her own reasons, she could drown without anybody's bad will, as an accident, she could have succumbed to sharks or alligators, there are a lot of both in South Carolina.

Why her car was where it was found - nobody knows.

But, with a public outcry and pressure, the police had to deliver a culprit, or culprits in Heather Elvis' disappearance.

No body has ever been found.

There is no evidence that Heather Elvis was killed, or that she is dead.

But, the police believes she is dead - and tried hard to prove it to appease public pressure.

They arrested a married couple, Sidney and Tammy Moore, parents of 3 young children, and charged them with kidnapping and murder of Heather Elvis.

That was in February of 2014.

In 2016, prosecutors dropped the murder charges.

Prosecutors tried to proceed for kidnapping charges against both spouses before the same judge - it is easy to convict this way, one case feeding the other in the same trial.

The case went up to the state Supreme Court, which directed separate trials under two separate judges.

Why were Sidney Moore and his wife Tammy Moore suspects in the police investigation?

Because supposedly Heather Moore was a lover of the husband, Sidney Moore, who was married with 3 children to Tammy Moore.

The wife supposedly found out and viciously exposed the affair in texts online.

The case went to a jury trial against Sidney Moore only on kidnapping charges, and the jury were unable to come up with a unanimous verdict, there was a mistrial announced.

Yet, curiously, Sidney Moore was, indeed, convicted - and sentenced to 10 years in prison.

You know for what?  For "obstruction of justice".

What evidence persuaded the jury to convict?

Now, criminal law in South Carolina, is statutory, and the jury had to find proof beyond the reasonable doubt in what prosecutors provided for them as to the following elements:

Since Sidney Moore is widely reported to have been convicted for "stalling" the police investigation into disappearance of Heather Elvis, he is charged under Section 16-9-340, Subsection (2) - "destroy, impede, or attempt to obstruct or impede the administration of justice in any court".

Remember, beyond the reasonable doubt, on all elements of the crime.

Now, since Sidney Moore was one of the two prime suspects (the married lover of the disappeared person) in a criminal investigation into a murder, a death penalty crime in South Carolina, he not only had a 5th Amendment right to remain silent, but that right was a life or death right, literally, to be treated seriously by the police.

Yet, Sidney Moore, while being interrogated, in custody, by a several law enforcement officers, one after another, he was never given a Miranda warning.

And, when his defense attorney raised that issue at trial, you know what was the response by the "Picasso-painting" prosecutor?  The police did not have to give him the Miranda warning because at that stage "it was not even a crime", it was a missing person investigation:

"Not even a crime".

Let's go back to what Sidney Moore was convicted - and sentenced to 10 years in prison for,
"obstruction of justice":







It is an "interference into a JUDICIAL process", specifically, an "intimidation of court officials, jurors and witnesses.  It is unlawful for a person, by threat or force to destroy, impede, or attempt to obstruct or impede the administration of justice in any court".

What court?

What administration of justice - if the prosecutor herself, while "painting a Picasso" picture for the jurors, admitted that Miranda warning was not given to a capital-murder suspect because at that time "it was not a crime"?

If it was not a crime, Moorer could not be even CHARGED with obstruction of justice - because that charge presupposes interference with a JUDICIAL process, very specifically, in the text of the statute, to be proven beyond the reasonable doubt.

If the charge was a "common law obstruction of justice" (which supposedly exists in South Carolina, too, State v. Love, 275 S.C. 55, 61, 271 S.E.2d 110, 113 (1980) (former magistrate's procurement of invalid driver's license for an individual and promise to fix traffic records and “fix the prosecution” against the individual for $5,500 was sufficient evidence to establish common-law obstruction of justice), cert. denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980), then the entire criminal justice system in South Carolina is unconstitutional because what constitutes a crime must be codified under the separation of powers and fair notice doctrines.

But even then, the common law "obstruction of justice" case must be related to prosecution of a crime in court - not to a missing person investigation which, at the stage when Moorer's statements were made to the police, "was not a crime", as prosecutor herself admitted in order to derail the lack of Miranda warning challenge.

So, there is no body and no proof Heather Elvis died.

The murder charges were dropped by prosecutors themselves.

Kidnapping charges resulted in a mistrial against Sidney Moore and were not retried.

Kidnapping charges against Tammy Moore, brought in 2014, were not even put up for trial in 4 years, which is in itself a constitutional violation, anybody has a right to a speedy trial.

But, the public and the family of Heather Moore demanded "justice", meaning, a conviction.

And a conviction was produced - by ringing a charge that could not be brought because, by the prosecutor's own admission, at the time when Sidney Moorer supposedly "stalled the police investigation", it was "not a crime", but a missing person investigation.

So, the obstruction of justice charge - applicable exclusively to interference with a judicial process - did not apply.

But, prosecutors still obtained a conviction, and a 10-year sentence, and appeased the family and the public - by

• painting a "Picasso picture", as a family member of Heather Elvis admitted;
• having hearsay testimony about cell towers and cell phones of Sidney Moore and Heather Elvis, in violation of the 6th Amendment Confrontation Clause; and
• by presenting an immunized testimony of a person charged with another crime and supplying some "evidence" to the prosecutors in exchange for a plea bargain - a person who, despite stalling what was already a crime investigation, was never charged with purposefully "preventing, obstructing, impeding, or hindering the administration of justice":

Of course, the press claimed that Sidney Moorer's own attorney admitted that Moorer lied to the police.

How did he lie?

Here:

So, the "dishonesty and deceit" that a man is convicted for and sent to 10 years to prison for is:

being confronted with a potential capital murder investigation, and not being advised of his right to remain silent, as the police had a duty to do, he withheld information from the police ("lied"), or remained silent - which was his 5th Amendment right in the first place.

A guy is convicted for not giving to the police information in a capital murder investigation that could potentially put him on a death row.

And recently, he was denied parole for the same reason.

He was denied parole for not telling the police what happened with Heather Elvis, while there are still pending kidnapping charges against him.

Parole was denied for not talking to the police about what happened to Heather Elvis, even though kidnapping charges against him are still pending and were scheduled for trial this past October, 2018, so he had an iron-clad 5th Amendment right to remain silent on the issue.

On October 1, 2018, the top state court denied the prosecution their request to try Sidney and Tammy Moore together, to facilitate a kidnapping conviction.

In retaliation, Moore was denied parole - for not waiving his 5th Amendment right in a kidnapping case that can lead to a capital murder case.

Now, the public generally has a very difficult time with the concept of the presumption of innocence and the right to remain silent protected by the 5th Amendment of the U.S. Constitution.

I see that all the time when yet another criminal charge is posted in an news media article on the Internet and on Facebook.

Overwhelmingly, comments presume guilt and demand immediate punishment, often by torture and death.

This man is accused of kidnapping of Heather Elvis and is presumed innocent of that crime.

He was tried for that crime in 2016 and the jury could not come to a unanimous verdict.

The prosecution has chosen, since 2016, for 2 years, not to retry him.

He has a right to remain silent as to anything in relation to that criminal charge.

Yet, he is denied parole, conveniently, because he did waive his 5th Amendment.

He was PUNISHED by prolonged incarceration to begin with for not talking to the police - which was his right under the 5th Amendment.

And, he was punished yet again, by the board of parole, for not waiving the 5th Amendment when criminal kidnapping proceedings were pending against him.

There is no evidence what happened to Heather Elvis and whether she is now dead or alive.

And, Sidney Moore may or may not have that information.

But, as eager as the public, police and prosecution is to blame Sidney Moore for not disclosing that information, he is protected by law in not doing it.

And, convicting him for doing what the law allows him to do is unconstitutional.

You may hate Sidney Moore, but, your personal feelings notwithstanding, there is no evidence he kidnapped or murdered Heather Elvis, and he has a right not to incriminate himself given to him by the U.S. Constitution, and no matter what "Picassos" are painted by the prosecution, the prosecution cannot change that constitutional right - in fact, prosecutors are sworn to protect it and be fair rather than trying to score convictions.

Sidney Moore was protected by the 5th Amendment and could not be charged for not talking to the police or for not giving the police information in a potential kidnapping and death penalty murder case against him.

Sidney Moore could not be charged, much less convicted, for obstruction of justice at the time when, by prosecutor's own admission, "it was not a crime", and certainly not an interference with a judicial process.

And, Sidney Moore most certainly could not be denied parole for not waiving his 5th Amendment right to remain silent and not to incriminate himself during a pending kidnapping criminal proceedings.

The rule of law means - the government following the set steps to take the person's property, liberty or life.

These steps were grossly violated here.

The 5th Amendment right to remain silent and not to incriminate himself.
The 6th Amendment Confrontation Clause.
The 14th Amendment Due Process Clause to be charged and prosecuted for a crime following due process, and not to have his liberty taken without a due process of law.

Sidney Moore's conviction is a wrongful conviction.

The State of South Carolina, by "painting a Picasso" to the jury, invented an end run around the 5th, 6th and 14th Amendments and a way to use wrongful convictions on fabricated wrongful charges to make people waive their 5th Amendment right to remain silent in a pending charge.

A young girl is missing.

And, her family is wondering where she is and is grieving.

But, that is not a good reason for wrongful convictions without due process.

Courts of law were established to replace the notoriously unfair private blood vendettas - and yet, a blood vendetta it is with Sidney Moore's conviction, and nothing more.

If you think you support such a wrongful conviction because you "believe", because Sidney Moore did not talk to police or was "evasive", he "knows something", and must be convicted for "something" for not disclosing that "something", think again.

You can be charged this way and convicted this way, too.

When the government cuts corners around the U.S. Constitution (which sets an absolute minimum, not maximum of procedural protections for everybody against government's prosecutions), it sets precedents not just against Sidney Moore, but against all of us, too.

Against you.

Sidney Moore's conviction should be overturned.

There is no cure for the stupid-in-power: Chief NYS State Judge Janet DiFiore has just undermined prison security in the state, badly

New York State Department of Corrections has invented a system of "earning good time" for prisoners.

The system is mutually beneficial.

Prisoners comply with certain requirements of DOCs - by not being involved in violent acts while in prison, following directions of prison authorities, complying with different "programs", including mental health programs, like "sex offender treatment", for example - and in return for that prisoners earn "good time", being able to be released earlier than their maximum sentences on parole.

That has just changed - because of just one stupid decision by New York State Chief Judge Janet DiFiore.

As of November 27, 2018 New York prisoners have no incentive to not be involved in violence in prison, to follow prison regulations and - for sex offenders especially - to be engaged in the so-called "sex offender treatment programs", extremely invasive harassment sessions involving polygraphs and penile polygraphs (electrode attached to the prisoner's penis while prisoner is made to watch child porn), disclosing sexual history and preferences not only of the prisoner, but of his sex partners.

All of that was holding up on the flimsy basis that prisoners hoped to get released sooner - by earning "good time".

DiFiore's decision legitimized cheating prisoners out of their good time, for no fault of the prisoners.

A convicted sex offender earned good time, 4 months of it, and was hoping to be released 4 months early.

The Department of Corrections, by law, is supposed to make an effort to help an about-to-be-released sex offender with housing.

But, convicting on coerced plea bargains and under the threat that, if a person does not plead guilty, he will be sentenced to prison, put in general population there and be tortured and killed there, and especially "treating" the untreatable sex offenders is such a lucrative industry in New York - and across the United States - that there are so many sex offenders, and so many municipalities with zoning restrictions prohibiting sex offenders to reside in close proximity with parks, schools and other places where children under the age of 18 "may congregate" (covering about the whole areas of those municipalities) that is practically impossible to find a place for a convicted sex offender to reside.

While residing within such areas may earn a convicted sex offender yet another felony conviction.

So, DOCs either did not want to look for suitable housing for Gonzalez before his release deliberately, wanting him to fail and get convicted for living where he is prohibited to live - because no other housing was available, or did not put enough effort into helping Gonzalez in finding suitable housing.

Because suitable housing was not found, DOCs simply denied Gonzalez the already earned good time and released him at his maximum sentence.

Gonzalez sued.

The case went all the way up to the New York State Court of Appeals.

DiFiore pronounced a decision that DOCs did not have to knock themselves out finding suitable housing for Gonzalez, so it was ok for DOCs to simply cheat Gonzalez out of his earned good time.

Now, DiFiore was a prosecutor all her life before coming to the bench, and for all her career did not have to think to obtain convictions.  As the former NYS Chief Judge (a convicted felon) Sol Wachtler said, one can indict a ham sandwich.  And that is true.

Moreover, one can convict a ham sandwich, too - for a sex offense especially, as long as you:

• publish the charges on the Internet;
• secure contamination of the jury pool - where comments in the media from the time charges are published ask for torturous death of the culprit in prison;
• coerce a guilty plea from a person, without regard of his guilt or innocence, by showing him these comments and telling that he will be raped and killed if he gets into the prison's general population, and that he will be given a break if he "just pleas".

DiFiore, after doing all of the above for her entire prosecutorial career, did not have a need to develop any type of mental acuity, you know, like in a chess game, think about consequences of her decisions at least more than 1 step forward.

So, her no-thinking-required mentality showed, as it always shows when a person with such a mental setup becomes a judge, and the absolute majority of New York State and the country's judges are former prosecutors.

What was the legislative intent to introduce the "good time" credits in the first place?

Not just reintroduction of prisoners into society.

First and foremost - prison security.

So, what did DiFiore do with her decision?  She told prisoners that no matter how much of good time they have earned, in order to be released early from prison, no matter how much humiliation prisoner put up with in the ineffective and unconstitutional "sex offender treatment programs" where sex offenders are coerced to talk to state authorities while their appeals are pending, for example - all of that good time may be taken away, for no fault of prisoners.

In other words, there is no reason to engage in any efforts to earn good time in the first place - you may be cheated out of it anyway.

Good job, Judge DiFiore.

Let's see the next year's safety report from DOCs.  DiFiore's decision can, literally, cost lives of both prisoners and corrections officers.

And that was exactly what the law that DiFiore "applied" through her decision was trying to prevent.

How politically connected judges, former prosecutors, and NYS Attorney General block a legal remedy for a black wrongfully convicted prisoner. And how New York voters have been duped in elections of NYS Attorney General. Again.

Reportedly, the civil rights fighter Barbara Underwood, the NYS Acting Attorney General "won" in appellate court against 2 people who were exonerated after having been wrongfully convicted for murder and spending 23 years in prison.

The victory over victims of a wrongful conviction was that NYS AG obtained a court order proclaiming that a person who was wrongfully convicted may not sue the state for the wrongful conviction if he was also charged with something else in the same indictment - and that conviction was not overturned.

There is, of course, no logic in it.

If you committed ANOTHER crime, you have no right of access to court to sue for wrongful conviction for something else.  Even if it is proven that the conviction was wrongful, and even if you have been exonerated.

That's the logic of these 5 judges:

• presiding - William E. McCarthy, never worked a day either in private practice or in criminal law, but clerked for several judges and advised Governor Pataki;

• former criminal prosecutor, former attorney for Senator James Seward, well known corruptioner Robert Mulvey;

• former CPS and criminal prosecutor Michael Lynch;

• former criminal prosecutor Christine Clark

• former criminal prosecutor, working hand-in-hand with Mulvey on political cases, judge Phillip Rumsey

NONE of the judges have a criminal defense attorney background.

4 out of 5 are former criminal prosecutors, and the remaining one (the presiding judge) never worked in criminal law or in private practice.

5 white judges prevented a remedy of black victims of the racist New York criminal "justice" system which disproportionately investigates and convicts people of color, including wrongful convictions.

And, mind, these judges also regulate licenses of attorneys and, through that, access of all New Yorkers to court.

No logic.  No integrity.  No competency needed.

Just blunt force to "save money" for the state of New York by quashing the rights of victims of wrongful convictions.

You have just voted for a new Attorney General, New Yorkers.

In that election campaign, candidates for that position clamored to you how they will be protecting your civil rights.

Civil rights are protected only and exclusively against the government.

So, note, dear New Yorkers, which side of a civil rights lawsuit the New York State Attorney General is on.  

Definitely not the victim's side.

Defending the wrongdoers' side.

Weren't you all duped?

Again?

On the bar to access to court to disabled and injured children - Part II. New York's statute of limitations for injured chidren

In my previous blog I have started to cover bars to access to court for children - and a case where the U.S. Supreme Court have barred disabled children injured by vaccines from access to court.

Before going further into analysis of that case, I would like to cover the general principles of the "rule of law", as expected by the majority of people - in order to see whether these concepts are alive and effective in application to both adult population, children, and disabled and injured children.

The concept of the "rule of law" is not that complicated, even if there is a pretense to make it so in the United States.

It is, really, quite easy what people want.

1.  an opportunity to complain to an impartial authority about injuries;
2.  an opportunity to obtain a remedy for injuries;
3.  so that this opportunity be equal notwithstanding the social and financial standing of the complainant.

And,

4. in a federation like the United States, what is added is the separation of powers of the federal and state government, where it is the state government, under the 10th Amendment, that must handle the care and protect health and safety of its citizens.

Just 4 concepts.

The 1st, 10th and 14th Amendment.  That's it.

Whether and how the government provides effective remedies to people who have suffered harm, especially grievous harm, like permanent injury or death, is the measure of whether the country has, in reality, "the rule of law".

And, the best test of that rule of law is whether and how the government provides remedies to the least protected members of the citizenry:

1. the poor;
2. the disabled;
3. the legally incompetent - including and especially, children, and especially, disabled and injured children.

And, in the United States, the government provides remedies to injured or disabled children very, very badly.

For example, in New York, the statute of limitations for children to sue for negligent or intentional harm is "tolled" by infancy - meaning that the statute of limitations cannot be used against a child until the child becomes an adult, at 18, and then the statute of limitations starts to be counted.

But, there is a big exception - all in all, the delay to sue, with infancy tolling even, cannot exceed 10 years.

Once again, the text of the statute:

208. Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.

That means that, if a child is 8 when the injury has occurred, at the time the child becomes an adult he is barred from suing for his injury, the infancy toll does not apply to children 8 years of age and younger, those who cannot represent themselves in court because they are legally incompetent - as children - to do so.

Therefore, New York punishes children for inactivity of their legal representatives - parents and guardians - by barring them from obtaining a remedy for their injuries.

That means, for example, that children who have suffered traumas at birth due to negligence of physicians, may sue - and may not sue pro se, since they are legally incompetent, since they are minors - only until they reach 10 years old.

Meaning, they can only sue if their parent or legal guardian chooses to do that until they turn 10.

Note that the 10-year-bar is not applicable to injuries received by the child from negligence of people who are not medical professionals.

Remember that when you take your child to your kind pediatrician - that that kind pediatrician has lobbied for himself not to be subject to lawsuit of the child he provides services to, when the child becomes an adult and considers the quality of such services.

Any other service provider will be subject to your child's lawsuit after the child reaches the age of majority and becomes an adult, but not the child's physicians - if physicians in question injured your child early enough, before the child reaches the age of 8.

That is an open invitation to malpractice and experimentation on children under the age of 8 to New York physicians - especially on those in foster care.  A doctor can do ANYTHING to those children and escape liability.

Think about it.

The child is barred from making his or her own conscious decision when the child becomes an adult to sue or not to sue for her injuries - if those who injured the child are physicians.

Yet, if you do not take your child under the age of 8 to that physician and not subject your child to paid manipulations of those physicians, you will most likely be turned into CPS and ruled a bad parent by courts.

And, there are many, many case reported in the United States when parents who are not happy with the quality of services provided to their young children are turned into CPS by physicians themselves - and when CPS grabs custody of the child in order to subject the child to manipulations of physicians without parental consent, manipulations which the child cannot contest through a lawsuit and CPS, its guardian, will never do.

Apparently, the most vulnerable population injured by CPLR 208 in New York are not just children injured by medical malpractice, but children injured by medical malpractice while in foster care - because physicians in New York, as in other states, are the CPS's best friends to report what doctors think is abuse and neglect, and are, thus, the supplies of children into the CPS pipeline (funded by federal incentive money).

CPS will never shoot themselves in the foot and will never sue doctors for medical malpractice, and children under 8 injured at birth are absolutely barred from bringing a lawsuit for medical malpractice against physicians.

That is a violation of the principle of equal protection of law and access to court.  

Because an adult would be able to sue pro se without asking permission from parents or legal guardians, and no third party, but the adult will be responsible for not filing a lawsuit on time within the statute of limitations - while a child's right of access to court after a birth trauma depends entirely on decisions of third parties.

This 10-year bar, as I was explained in law school, was introduced in New York to give some fairness and finality to those who committed negligence and intentional acts that may have led to injuries, and to allow them to peacefully live their lives, not worrying that they may be sued and that their livelihood or property may be in danger.

Apparently, New York was more concerned about fairness to medical professionals - who have a powerful lobby in the legislature that passed CPLR (Civil Practice Law and Rules) 208 - than about the fate of injured children.

Moreover, even if the child's parent or guardian does sue between the child's birth and 10 years of age, there is no way to establish, before the child became at least 18, what the child is going to do in life, what kind of talents and inclinations the child may have that the injury would prevent him from developing and excelling at - and that is also the result of lobbying by doctors, aimed to block children from ever being able to get adequate damages for their injuries in such lawsuits.

And THIS is the main feature showing whether New York does or does not have the so-called "rule of law" - whether the law protects adults, and adults with powerful lobbies, or legally incompetent individuals, children, who cannot, on their own, protect themselves.

Adults won, children - and the rule of law - lost.

On the bar to access to court to litigate injuries from vaccines, the rule of law and federalism in the United States - Part II. The "rule of law" as measured by comparative power of gun, womens' rights and pharma lobbies.

In my previous blog, here, I published the entire opinion of the U.S. Supreme Court approving - and expanding through a precedent onto the entire United States and on all state courts - the ban to allow children who were injured and legal representatives of children who died from vaccines to obtain any remedy in court for negligent design of such vaccines.

In this blog article, starting legal analysis of that decision.

Tomorrow the nation will go to election polls.

Elections in the United States are often celebrated as the indicator of the so-called "rule of law".

I have written on this blog recently though how, right about election time and during election campaigns, the most powerful and the most unaccountable branch of the government in the United States, the judiciary, reinforced its gag upon the most knowledgeable group of witnesses about misconduct and unfitness of judges and judicial candidates - attorneys, through "regulation of the practice of law".

The judiciary flat out sent a message through a case suspending a New York attorney of 27 years and forbidding him to earn a living in his profession, and the message was that an attorney cannot dare criticize the particular branch of the government that regulates attorneys, the judiciary - 1st Amendment be damned, due process of attorneys' clients and their right to impartial judicial review be damned.

So, an attorney can exercise his client's due process and 1st Amendment rights or his own 1st Amendment rights to criticize the government, if that government is the judiciary, regulator of attorneys, only at the cost of the attorney's livelihood.

And, an attorney, acting as a citizen and taxpayer, can exercise his right as a citizen and taxpayer paying the salary of government officials and employing them - to engage in public debate about fitness of public officials, if he criticizes Trump and helps "the resistance" as part of a plea deal (Michael Cohen) to gain a lighter sentence in December of 2018, than it is laudable, and if it is criticism of the judicial branch, like attorney Gino Giorgini did, then it is a professional suicide.

Go figure.

And, the U.S. government (public servant, servant of We the People, the popular sovereign) forbids its sovereign (members of We the People) from going outside of the country and complain to international courts, like citizens of other countries are allowed to do, about human rights violations within the country.

Once again.  A public servant.  Forbidding.  Its employer and sovereign, We the People.  To complain.  About the public servant's unfitness and misconduct.  Outside of the country.

That is also called "the rule of law", the U.S. version of it.

And, there is yet another variety of the "rule of law", the U.S. version of it, called "federalism".

It is used by courts, federal appointed judges and state judges who you are going to vote for tomorrow, and by the U.S. Congress, the one you are going to vote for in the midterms tomorrow - every which way that would benefit, no, not You the People, but the so-called "institutional interests", those who lobbied better, who have more money and who paid more to "get the ear" of the right "public servants" to quash the rights of You the People - like the rights of the children who were injured or died from application of vaccines.

Let's see what manipulations of "the law" are used to achieve such a glorious result.

I never voted for Trump and, probably, never will, but Trump is such an interesting phenomenon for me as a legal analyst - with election of Trump so many things became clearer and came to the fore in legal analysis.

For example, that same idea of "federalism".

The clash between regulation of state laws by the federal government, and the right of the states to regulate through their own laws on their own and to be left alone and not subject state laws to regulation and pre-emption by the federal government.

We know from school that the U.S. is a nation of a severely limited (supposedly) government that must act for the benefit of We the People only.

We know from school that the U.S. is a nation of an even more severely limited federal government that can act only on the basis of its Supremacy Clause, Article VI Clause 2 of the U.S. Constitution which includes only THREE things:

"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, anything in the Constitution or laws of any State to the contrary notwithstanding."

Once again, the Supremacy Clause includes 3 things:

• The text of the U.S. Constitution itself (which includes the text of its Amendments);
• The text of "the laws of the United States which shall be made in pursuance thereof", and lawmaking powers in the federal government, by the U.S. Constitution are given, under Article I exclusively to the U.S. Congress; and
• "All treaties made, or which shall be made, under the authority of the United States".

Note the absence in the Supremacy Clause of the so-called "precedents", decisions of federal courts including the U.S. Supreme Court.

SCOTUS decisions are, according to the U.S. Constitution, NOT the Supreme Law of the Land.

Let's look further into the law-making power of the federal government, the U.S. Congress.

The U.S. Congress may only make laws based on authority given to it by one of the provisions of the U.S. Constitution - not to infringe of the power of We the People in general and of We the People, voters in the states.

Here is Article I of the U.S. Constitution.  Exclusive law-making powers of the U.S. Congress.

Article I Section 8 and Section 9 Clause 1 define what exactly are the allowed bases of the law-making powers of the U.S. Congress, bear with me, it is about your own rights:

Section 8.

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Section 9.

The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

==

We are reviewing, remember, whether it is legal for the federal government to forbid Americans injured by application of vaccines to seek redress of those injuries through jury trials in state or federal courts.

The U.S. Congress established such a bar by enacting the National Childhood Vaccine Injury Act of 1986, and the U.S. Supreme Court upheld such a bar as lawful in 2011.

The Food and Drug Administration informs you of the long history of how it has come into being and how its existence was approved by the U.S. Supreme Court.

Yet, what it does not inform you about is the very basics of its existence - what clause of Article I was used by the U.S. Congress to enact its enabling federal statute, the Food, Drug and Cosmetics Act of 1938.

It does hint though at which basis was used - by repeatedly using in description of various food and drug-regulating acts "interstate commerce".

Those hints correspond with the description of the National Childhood Vaccine Injury Act of 1986 - and for those preparing to "vote blue because democracy depends on it", consider that this act was passed with bipartisan support:

A Democrat, Rep. Henry A. Waxman, a lawyer, sponsored (introduced) the bill that was enacted as the National Childhood Vaccine Injury Act,

and a Republican president, Ronald Reagan, signed it into law.

Note that in the House the Bill was introduced in the "Energy and Commerce" and the "Ways and Means" Committees.

In other words, the bill was introduced under the power to regulate interstate commerce, not general welfare of people, because - guess what - the U.S. Congress has NO POWER to regulate general welfare of people, that power, under the 10th Amendment, belongs to STATE governments.

But, let's see what the "interstate commerce" clause of Article I - giving exclusive lawmaking power as to federal laws to the U.S. Congress - says.

Article I Section 8 Clause 3 says:

"The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes".

The Congress has no right to regulate commerce between individual sellers within the state, only between governments:

• Between the U.S. government and foreign governments;
• between the states; and
• with the Indian tribes.

That is all.

You may know that every licensed attorney in the United States is taught a mandatory course of constitutional law in law school, then is tested on knowledge of the U.S. Constitution on the bar examination and then takes an oath of loyalty to the U.S. Constitution.

And, every Senator and Representative of the United States takes an oath to uphold the U.S. Constitution.

So, did lawyer Henry A. Waxman, portrayed nowadays as a formidable "warrior" supposedly feared by the drug industry - that was spending, as of 11 years ago, $600,000 on lobbying the U.S. Congress - did that lawyer NOT know that he, as a member of federal government, may not regulate PEOPLE's "general welfare", but can only regulate "general welfare" of the country - meaning, in international forums?

Of course, he knew about that.

That's why he "sponsored" the bill for review of "energy and commerce" Committee in the House of Representatives.

Because - guess what - there is no "general welfare" Committee in the U.S. House of Representatives.

And, there is no Committee in the U.S. House of Representatives dealing with the general welfare of the people at all - because, there is not power given to the U.S. House to deal with general welfare of the people.

And here Trump has come very handy.

Because since his election states have been suing Trump for - guess what - violation of states' 10th Amendment right to handle care about general welfare and safety of the people without intervention from the federal government.

That would be the sanctuary city lawsuits and nationwide injunctions based on it - because, according to federal courts that approved such injunctions, the federal government (Trump) may not interfere with how the state takes care, or prosecutes, people residing within the states.

So, states say to the federal government, citing to the 10th Amendment - buzz off, you may not interfere in how we take care, or prosecute criminally, those who reside in our states, whether they do or do not violate federal immigration law.

The press cites often in that regard to the "anti-commandeering clause" of the 10th Amendment.

Let's see whether there is such a clause there.

Here is the text of the 10th Amendment, in its entirety:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

This is about:

1. powers of the federal government restricted only to the powers given by the text of the U.S. Constitution, no more, and
2. the rights of the states to regulate on issues for which the federal government is not given powers to regulate strictly in the text of the U.S. Constitution, and, most importantly for our analysis, 
3. about individual rights of the people to all rights that are not given to regulate, strictly by the text of the U.S. Constitution, to the U.S. government, and 

the rights of the states to regulate general welfare of THE PEOPLE is not - as many federal courts, through nationwide injunctions against Trump administration on the issues of welfare of illegal immigrants have so far proven - within the power of the federal government to regulate.

Even before Trump's election, a federal statute introduced by the U.S. Congress under its power to regulate interstate commerce, but used to regulate the general welfare of the people and individual rights, was struck by the U.S. Supreme Court as unconstitutional.

You know which statute that was?

A portion of Violence Against Women Act providing for federal civil remedies of victims of gender-motivated violence.

The act was introduced by Democratic Senators Joe Biden and Louise Slaughter and signed into law by the Democratic President Bill Clinton in 1994.

The next year after enactment of the Violence Against Women Act of 1994 (VAWA) the U.S. Supreme Court has struck as unconstitutional the "Gun Free School Zones Act of 1990", making it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

The U.S. Supreme Court said in U.S. v Lopez, upholding the reversal of a criminal conviction of a 12th grader who "arrived at Edison High School in San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets", for a federal crime of possession of a firearm within a "school zone", that "[t]o uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States" and that "[t]o do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local" (internal citations omitted).

More importantly as to the power of the U.S. Congress to even enact The Gun Free School Zones Act of 1990", here is the chain of reasoning of the U.S. Supreme Court in striking down The Gun Free School Zones Act of 1990, in its federal crime part, as unconstitutional and agreeing with the federal court of appeals that reversed the conviction on these grounds:

"respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause".

Here is the chain of the U.S. Supreme Court's reasoning:

• "The Constitution creates a Federal Government of enumerated powers";

• "The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, §8, cl. 3. ";
• "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 
• "The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
• "It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

And here is the kicker in the U.S. Supreme Court's argument:

"Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. ^[n.3] Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce."

So, BUYING a firearm and bullets and bringing it into the school zone is not connected with commerce or "economic enterprise" that Congress is allowed to regulate, especially through criminal law.

Here is how justices voted:

" Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ.,joined. Kennedy, J.,filed a concurring opinion, in which O'Connor, J., joined, post, p. 568. Thomas, J., filed a concurring opinion, Stevens, J., and Souter, J., post, filed dissenting opinions. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined".

Rehnquist and his former lover O'Connor, Scalia and his "shadow" Thomas and Kennedy, the "swing vote", carried the majority in U.S. v. Lopez, with Kennedy and O'Connor (the usual "swing votes") also filing concurring opinions, and there were 4 dissenters: 

1. Stevens;
2. Breyer;
3. Souter, 
4. Ginsburg.

Within 4 years, relying on Lopez, the U.S. Supreme Court struck not a criminal conviction, but a federal civil remedy stemming from commission of a state crime, rape.  

The federal civil remedies portion of The Violence Against Women Act, which sought to protect by federal law victims of gender-motivated violence (rape) was struck down by the U.S. Supreme Court just 6 years into the Act's existence, in 2000.

The voting record was same as in U.S. v. Lopez:

"Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 627. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 628. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I—A, post, p. 655."

The reasoning of the U.S. Supreme Court in denying federal civil remedies to victims of rapes was as follows:

"In these cases we consider the constitutionality of 42 U. S. C. § 13981, which provides a federal civil remedy for the 602

*602 victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down § 13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U. S. 549 (1995), United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883), we affirm."

Note the reasoning.

The U.S. Supreme Court may only apply the written law, and the Supremacy Clause does not include SCOTUS' prior decisions.

Yet, it is their prior decision and not exceeding the power under the Commerce Clause that is prominent in U.S. v. Morrison.

This is what happened to the woman suing for the federal civil remedy after a rape on the campus of Virginia Tech.

"

Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of 1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the attack, Morrison allegedly told Brzonkala, "You better not have any . . . diseases." Complaint ¶ 22. In the months following the rape, Morrison also allegedly announced in the dormitory's dining room that he "like[d] to get girls drunk and . . . ." Id., ¶ 31. The omitted portions, quoted verbatim in the briefs on file with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar remarks that cannot fail to shock and offend.

Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed 603*603 antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.

In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech's Sexual Assault Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact with her despite the fact that she had twice told him "no." After the hearing, Virginia Tech's Judicial Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters."

Note the "finding" of 

"guilty" and "sentencing" not by a court, but by the "Virginia Tech's Judicial Committee" - while the power to find "guilty" for the crime of rape is vested in Virginia only in the state courts.

Note that it is now the students that "upheld the conviction" and the university administration that ultimately "set it aside":

"Virginia Tech's dean of students upheld the judicial committee's sentence. However, in July 1995, Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to remedy the school's error in prosecuting her complaint under that policy, which had not been widely circulated to students. The university therefore conducted a second hearing under its Abusive Conduct Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester suspension. This time, however, the description of Morrison's offense was, without explanation, changed from "sexual assault" to "using abusive language."

Morrison appealed his second conviction through the university's administrative system. On August 21, 1995, Virginia Tech's senior vice president and provost set aside Morrison's punishment. She concluded that it was "`excessive when compared with other cases where there has been a finding of violation of the Abusive Conduct Policy,' " Brzonkala v. Virginia Polytechnic Institute and State Univ., 132 F. 3d 950, 955 (CA4 1997). Virginia Tech did not inform Brzonkala of this decision. After learning from a 604*604 newspaper that Morrison would be returning to Virginia Tech for the fall 1995 semester, she dropped out of the university."

In other words, there was no criminal conviction, and thus, the court could easily dismiss the case on the grounds that the condition precedent (criminal conviction in state court) was not satisfied.

But, the court somehow had to go further and strike the portion of the statute giving the federal civil remedy to state crime (rape) victims as unconstitutional.

The court, first, pointed out that the major point in reviewing constitutionality of a federal statute introduced under the "interstate commerce clause" is whether the statute had anything to do with economic regulation.

"Both petitioners and Justice Souter's dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case."

Continuing review of VAWA according to principles established in review of the Gun Free School Zone Act, the court mentioned that:

"The second consideration that we found important in analyzing § 922(q) was that the statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have

an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.

Third, we noted that neither § 922(q) "`nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.' "

In other words, while the act was introduced under the Commerce Clause, neither its legislative history not its text does not connect it in any way with regulation of commerce.

But, probably, the main, most forceful argument of the U.S. Supreme Court was - while you start trying to stretch the text and meaning of the statute and try to connect anything under the sun with "interstate commerce", when does it end.  Such boundless interpretation of the Interstate Commerce Clause gives unlimited power to the federal legislature and government and undermines the whole idea of "limited federal government", clearly embedded into the U.S. Constitution:

"

Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Ibid.

We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress 613*613 to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564. We noted that, under this but-for reasoning:

"Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories . . . , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid. "

 Since the U.S. Supreme Court found no connection between giving rape victims federal civil remedies for state crimes (note that in that case there was no state criminal conviction, or even state criminal charges filed, or state lawsuit filed by the supposed victim) and regulation of interstate commerce by the federal government, the portion of Violence Against Women Act was struck as unconstitutional.

And here comes another kicker.

There was NO analysis as to whether the U.S. Congress exceeded its powers under the Interstate Commerce in enacting the Food, Drug and Cosmetics Act of 1938, or the National Child Vaccine Injury Act of 1886.

None whatsoever.

Even though it was analyzing a non-economic activity of immunizing children, a medical activity squarely falling within the care for general welfare of the population, reserved to the states and directly to the people by the 10th Amendment.

In fact, the U.S. Supreme Court has actually stated that "in the 1970’s and 1980’s vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves."

So, the case was about the public perception of vaccines as unsafe and risky - causing permanent disabilities and deaths - to children.

And the response of the federal government to that public concern was to block access of victims to state courts to obtain full discovery of what went wrong and full jury adjudication of victims' claims was - to block access of the victims to state courts.

What does it have to do with commerce?

There is not one word in the vaccine case of 2011 about the statute being unconstitutional and in excess of the U.S. Congress commerce power.

Why? 

Likely, because too many careers and too much money was riding on this case, and because the pharma lobby appeared to be more powerful than the gun lobby and the womens' rights lobby.

And that is the only reason why in this "rule of law" nation child victims of unsafe vaccines got barred from access to state court remedies, remedies that are allowed to everybody else for personal injuries from OTC or prescription drugs or from medical devices other than vaccines - which is, to begin with, a major access-to-court, due process and equal protection of laws problem.

And that is despite the fact that barring victims of personal injuries that occurred due to a non-commercial transaction within the state (as in - vaccination of a child) from receiving a remedy for that injury in a state court has absolutely nothing to do with regulation of "interstate commerce", which, as Article I Section 8 Clause 3 provides, has to do ONLY and exclusively with regulation of commerce between GOVERNMENTS and not between private individuals, or between private individuals and private companies/corporations.

For continuation of analysis of that extraordinary case, with its extraordinary background and history and its extraordinary effect upon the rights of children and adults for access to court to redress injuries from unsafe vaccines (including permanent disability and death), stay tuned for my next article.