While the racist federal #JudgeEdithJones remains on the bench, her critic, civil rights attorney Jim Harrington is accused - of racism

In 2013, an Austin, Texas civil rights attorney and the then-executive director of the Texas Civil Rights Project Jim Harrington openly criticized Edith Jones, the former Chief Judge of the U.S. Court of Appeals for the 5th Circuit (handling death penalty cases) and a sitting judge of that court for racial bias and participated in filing a complaint against her for violation of judicial ethics.

Here is Edith Jones:

Jim Harrington's not only criticized Judge Jones' statements, but also signed a judicial misconduct complaint filed against Judge Jones by a broad coalition of civil rights organizations.

The statements that Judge Jones made in 2013 - and remained on the federal bench - are close, and some identical, to the statements that Donald Trump is lambasted for today, and correctly so.

Reportedly, Judge Edith Jones stated out of court, at a speech on Feb. 20, 2013, to lawyers at the University of Pennsylvania School of Law (so Judge Jones was clearly subject to judicial discipline and impeachment for her statements):

• That certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “'prone' to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.

• That Mexican nationals would prefer to be on death row in the United States rather than serving prison terms in Mexico, and it's an insult for the United States to look to the laws of other countries such as Mexico.

• That defendants' claims of racism, innocence, arbitrariness and violations of international law and treaties are really nothing more than “red herrings” used by opponents of capital punishment.

• That claims of “mental retardation” by capital defendants disgust her, and the fact such people were convicted of a capital crime is itself sufficient to prove they are not in fact “mentally retarded.”

• That the imposition of a death sentence provides a positive service to capital-case defendants because defendants are likely to make peace with God only in the moment before their imminent execution.

Moreover, "[i]n her speech, Jones discussed specific cases, including those of three inmates on Texas' death row: Ramiro Ibarra Rubi of Mexico; Elroy Chester, an African American man whose intellectual-disability defense Jones rejected and who is scheduled for execution June 12; and Larry Swearingen, whose claim of innocence has received widespread attention and support."

Additionally, #JudgeEdithJones reportedly stated in her speech  "inmates freed from death sentences have been released not because they were innocent, but because of 'technicalities'—including cases where prosecutors hid evidence favorable to the defense—and offered an odd analogy, noting that 'there were just as many innocent people killed in drone strikes as innocent people executed for crimes,' according to several affidavits."

Which means that Judge Edith Jones, a judge presiding over death penalty cases, has a firmly held belief that ANYTHING THAT THE GOVERNMENT DOES IS RIGHT.  ANYTHING.  If the government ordered a drone strike, that means people killed by that strike are not innocent - according to Judge Jones.  There goes the "checks and balances" doctrine, that the judicial branch will control and restrict the executive branch from illegal actions.

With such beliefs, Edith Jones should not be allowed anywhere near the federal bench to handle civil rights cases against the government, or criminal cases by the government against criminal defendants, and especially death row cases, and especially death row cases of Mexicans and African Americans, and especially death row cases where innocence, arbitrariness, mental retardation or violation of international treaties is asserted, because on those issues Judge Edith Jones has a pre-judgment ready in her mind no matter what the law and the record says.

Judge Edith Jones already made a determination based on the CLASS of cases, no matter what is presented to her in any specific case - that is a complete disqualification from judicial office.

Yet, there she still is, unpunished, and instead, people she talked about, 2 out of 3 death row inmates, were quickly killed off.

Ramiro Rubi Ibarra, a Mexican national, claimed mental retardation, violation of Geneva Conventions and ineffective assistance of counsel - all of those claims were rejected by Judge Jones.

Despite the fact that one of the judges who decided his federal appellate cases, Edith Jones, made racist remarks about him and remarks about her position as a matter of POLICY regarding international treaties, mental retardation and the defendant's race and national origin, which, according to the recent U.S. Supreme Court case, Williams v Pennsylvania, tainted the entire panel, Ramiro Rubi Ibarra's was executed in 2014.

Despite Judge Jones' out of court statements discussing Elroy Chester's case which should have led to remand and review of the case since it was decided by a racist judge, Elroy Chester, an African American who claimed intellectual disability (that Judge Jones did not accept as a matter of her own personal ILLEGAL policy, no matter what the facts of the case was), was executed on June 13, 2013, 4 months after #JudgeEdithJones made her statements.

Larry Swearingen is, as far as I could find out, alive at this time and is asserting his innocence - an unacceptable claim for Judge Jones.  In 2015 the Texas Court of Criminal appeals reversed the district court's decision that woud have allowed Larry Swearingen to test DNA evidence from the murder that could have proven his innocence.

The complaint against Judge Edith Jones was DENIED FOR REVIEW.

NO DISCIPLINE was imposed upon Judge Edith Jones for her statements.

The reason for no discipline was that nobody recorded what Judge Jones said - and, apparently, testimony of witnesses as to what she said was not enough for judges judging a judge.

As I stated above, 2 out of 3 death row inmates she discussed - with disdain - in February of 2013 lecture - were quickly executed.

As Joseph Stalin, and countless mafia godfathers said - "no person, no problem". 

Judge Jones got to, quite literally, bury her mistakes - and is allowed to continue to do so.

Judge Edith Jones still continues to remain on the bench of the U.S. Court of Appeals for the 5th Circuit today.

Edith Jones is known not only for her racist remarks, but, according to Texas attorney Ty Clevenger, for a cover up of a sexual assault investigation against federal judge Samuel Kent.

I wrote about the criminal prosecution of Samuel Kent who Judge Edith Jones, the Chief Judge of the 5th Circuit, did not want to discipline.

So, a white judge, Judge Edith Jones, who was on the high horse as to Mexicans and African-Americans being allegedly more predisposed to crimes, reportedly helped cover up sex crimes by a white male fellow judge Samuel Kent, showing the world why racial statistics of crimes in the U.S. may be skewed - because crimes committed by high-ranking white males (and females) are simply hushed up.

Edith Jones was not disciplined - at all - for her racist remarks by her fellow judges.

Yet, as to the civil rights attorney who signed the complaint against Judge Edith Jones, in 2015, Jim Harrington, of Austin, Texas, retired from his position as the Executive Director of the Texas Civil Rights Project.  I do not know whether the retirement was forced or not.

Yet, now, in 2016, 3 years after he signed the complaint against Judge Edith Jones because of her racist and pre-judging remarks discussing death penalty cases, Jim Harrington is reportedly himself fighting charges in federal court - FOR RACISM, asserted by Jim Harrington's long-time opponent who must know Jim Harrington's history of opposing racism.

So, if Jim Harrington, a civil rights attorney who fought racism all his life and - coincidentally - who filed a complaint against the racist Judge Edith Jones - is sanctioned for racism by a Texas federal district court, by a judge who is the subordinate of Judge Edith Jones' court, how coincidental that will be?

And, when this whole country was jumping up and down recently about Donald Trump asking a judge of Mexican origin to recuse from his University's federal case - I will run a separate blog, as I promised, indicating that Judge Curiel should have recused, and for more reasons than Trump has asserted - this whole country did not file petitions, and the media talking heads did not rise a campaign to impeach Judge Edith Jones.

And I wonder why.

EVERY ONE OF HER CASES is tainted, going back from the date of her February 2013 speech, and going forward.

EVERY SINGLE ONE.

Because Judge Edith Jones openly professed a firm personal belief that:

1. criminal prosecutions may target people based on race;
2. the government is always right, even when it kills people without prior judicial review;
3. intellectual disability defense to the death penalty is - always - without merit, per se; and
4. it is an insult to follow "international law", even if such international law is a treaty that is within the U.S. Constitution, Supremacy Clause - the Clause that Judge Jones have been sworn to uphold.

And, in view of the reasoning in the decision of her fellow judges that refused to punish her - isn't it then mandatory to allow recording of ALL court proceedings, of EVERYTHING what judges say, to any people present in court or in chambers for conferences - because otherwise the fellow judges will refuse to believe even affidavits of witnesses if they assert misconduct of a judge?

Why then federal courts have written announcements that telephones MUST be switched off?

So that judges cannot be caught in misconduct?

Let's remember - judges are public SERVANTS.  OUR SERVANTS.

They cannot dictate to us that we cannot collect evidence of their misconduct.

So - allowing EVERYBODY to record in court proceedings, state and federal, is a MUST.  It is a public right.

And, Judge Jones MUST BE IMPEACHED, since no discipline was or is likely to be imposed upon her.

When this country is bashing Donald Trump for raising the issue of "appearance of impropriety" that a judge with certain racial roots presides over his case - remember, that people with views like Donald Trump are already there, inside the court, firmly on the bench, and ruling on your cases.

Be afraid of those.

Be vigilant about those.

And be active in asserting to authorities that Judge Edith Jones, and judges like her, cannot be anywhere near the bench.

Is there any basis for federal criminal indictments against #DylannRoof interfering with the state prosecution? - Part III

I continue to analyze jurisdictional basis for the federal indictment of Dylann Roof for the June 2015 shooting deaths of 9 people in an African-American church in South Carolina and injuries to 3 more people.

Counts 1 to 9 and 10 to 12 charge violation of 18 U.S.C. 249(a)(1).

18 U.S.C. 249 (a)(1) is part of Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (“HCPA”), 18 U.S.C. § 249 and provides:

18 U.S.C. 249(b) requires that no offenses committed under 18 U.S.C. 249 are prosecutable without this certification:

Roof's federal indictment contains a certification by U.S. Attorney General Loretta Lynch pursuant to 18 U.S.C. 249(b)(1)(A) and (D), see U.S. v Roof, 2:15-cr-00472-RMG, Dkt. 2 of 07/22/2015, page 14:

"CERTIFICATE OF THE ATTORNEY GENERAL

I, Loretta E. Lynch, hereby certify that in my judgment, prosecution by the United States of Dylann Roof for violating Title 18, United States Code, paragraph 249(a)91), is in the public interest and is necessary to secure substantial justice and the state lacks jurisdiction to bring a hate crime prosecution".

Yet, certification under subsection (b)(D) is invalid as unconstitutional: 

"a prosecution by the United States is in the public interest and necessary to secure substantial justice" has nothing to do with Congressional power and does not overcome exclusive jurisdiction of the State of South Carolina under its exclusive police powers granted to the states to prosecute crimes committed within their own territories under the 10th Amendment.

Finally, Subsection (b)(A) is not applicable, because the State of South Carolina does have jurisdiction over the murders and attempted murders, and is vigorously prosecuting Dylann Roof at present.

It is true that, reportedly, South Carolina does not have enhancement of penalties for hate crimes:

"[South Carolina] has no specific hate-crime legislation on the books. ... unlike nearly every other state, South Carolina doesn’t specify tougher sentences or widen the group of people who can be victims of hate crimes."

Yet, in this particular case that it irrelevant and does not justify a costly parallel federal prosecution, and especially one that is, according to the State Solicitor, interfering with the state prosecution.

Dylann Roof has only one life.

He is charged with 9 murders and 3 attempted murders in the State of South Carolina.

Punishment for murder in the State of South Carolina is death.

How much more "enhanced" can that be if what Dylann Roof did would be classified as hate crime.

Dylann Roof racism and the fact that he killed specifically and only African Americans, at their place of worship, can be offered in the state trial as proof of his motive and intent.

Dylann Roof has only one life to pay for his crimes, and the alternative is also the same in both state and federal courts - life in prison.

So, the State of South Carolina absolutely has jurisdiction to prosecute Dylann Roof for a racially motivated crime of murder, and asserting it in a separate court as a hate crime will not bring a higher penalty, it is simply a waste of time, effort, money and an additional torture of the witnesses.

The jury pool alone is going to be, reportedly, 1200 to 1500 people.

All in all, prosecution under 18 U.S.C. 249 appears to be jurisdictionally invalid:

1) because a crime committed with a firearm or a "dangerous weapon" does not, in and of itself, justify invocation of federal jurisdiction in what is already prosecuted as a state crime;

2) because there is no required statutory certification under 18 U.S.C. 249 (b), and such a certification would not be possible or constitutional.

In other words, Counts 1 through 9 and 10 through 12 of the federal indictment are also a waste of taxpayers' money, time of all professionals involved in the prosecution or defense, and constitutes and unnecessary torture of the surviving witnesses of the crime.

As I said previously, the State of South Carolina is vigorously prosecuting the murders and attempted murders, and there is absolutely no basis for the feds to step in and do a parallel (and interfering) investigation and prosecution.

There is no reason why U.S. and South Carolina taxpayers should pay for the murder trial of Dylann Roof twice:

for the state murder trial that was scheduled long ago for January 17, 2017, and for the November 7, 2016 trial that was scheduled recently.

The problem is also that, once Dylann Roof is convicted in federal court, the State of South Carolina might be precluded by the Double Jeopardy Clause from trying him, basically, for the same crimes of murders and attempted murders.

So, the feds in this case appear to be filibustering a state prosecution conducted under the state's exclusive police power protected by the 10th Amendment.

As legal scholars have been warning since 2013, federal hate crimes are unconstitutional, and that "the Court should decide the legitimacy of these laws before a more highly publicized and politicized case comes along and makes that task even harder".

The U.S. Court of Appeals for the 10th Circuit already rejected a challenge to constitutionality of 18 U.S.C. 249(a)(1) asserting that the U.S. Congress had authority to enact that statute in the 90s of the 20th century under the 13th amendment - to eradicate consequences of slavery that was abolished 130 years prior:

"Congress has power under the Thirteenth Amendment to enact § 249(a)(1).

Although the Thirteenth Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress's authority to legislate against slavery's “badges and incidents” as well.

In particular, the Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of action against private individuals for housing discrimination—that Congress itself has power to determine those badges and incidents.

Section 249(a)(1) rests on the notion that a violent attack on an individual because of his or her race is a badge or incident of slavery.

Congress reached this conclusion by accounting for the meaning of “race” when the Thirteenth Amendment was adopted, the state of mind of the attacker, and the attack itself. By so doing, and under the authority of Jones, we conclude Congress rationally determined that racially motivated violence is a badge or incident of slavery against which it may legislate through its power to enforce the Thirteenth Amendment."

As it was argued in the amicus brief of the CATO Institute in the case U.S. v Hatch,

Moreover, it was argued in the amicus brief that 18 U.S.C. 249 was enacted in answer to the pressure from lobbying civil rights groups, even though there was no reason to believe that state prosecutions of hate crimes were ineffective.

In Dylann Roof's case, these lobbying efforts are coming back to bite everybody involved:

1) Dylann Roof who is exposed to the threat of double jeopardy;

2) taxpayers who have to pay for two enormously expensive trials, with double the enormously expensive appeal process;

3) the State of South Carolina whose exclusive authority to prosecute crimes committed in its territory is usurped by the feds without reasonable grounds, and, last but absolutely not least,

4) the witnesses who have to be tortured through two trials rather than one.

Such double prosecutions do not help anybody, but they hurt a lot.

The State of South Carolina can handle the prosecution for murders and attempted murders just fine, as do other states.

The feds should prosecute the uniquely federal crimes, pertaining to interstate commerce and international treaties.

This country can go bankrupt allowing double-dipping prosecutions which impeded and interfere with one another.

For the analysis of the remaining counts of the federal indictment against Dylann Roof,

stay tuned.

Is there any basis for federal criminal indictments against Dylann Roof interfering with the state prosecution? - Part II

In my previous two blogs, I described:

1) the standoff between the State Solicitor of the State of South Carolina and federal prosecutors where the State Solicitor asserted that the trial schedule in federal prosecution interferes and impedes the state prosecution in the murder trial of Dylann Roof, who shot to death 9 people and injured 3 in June of 2015 in an African-American church, and

2) general jurisdictional requirements for a legitimate federal criminal charge - and quoted a U.S. Supreme Court that invalidated a criminal conviction because it was based on a federal statute that the U.S. Congress had no power to enact.

I will now analyze each of the statutes that Dylann Roof was charged with violating from the point of view of their validity.

Dylann Roof was charged under the following criminal statutes:

1. 18 U.S.C. 247(a)(2), (d)(1)
2. 18 U.S.C. 249 (a)(1)
3. 18 U.S.C. 924(c )(1)(A);
4. 18 U.S.C. 924(c )(1)(C);
5. 18 U.S.C. 924 (j)(1), charging:
6.  Hate Crime Murder;

• Murder to obstruct free exercise of religion and affecting interstate commerce;
• Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

18 U.S.C. 247(a)(2) and (d)(1)

Charging Dylann Roof under this section was giving him too much credit.

There is no evidence that Dylann Roof had an intent to interfere with anybody's religious belief.

Dylann Roof shot up the church because it was convenient for his crime-planning, because Dylann Roof knew that the church was a place where, at a certain time, a large number of African Americans will be present.

His crime was a hate crime, but the prosecution will have a really hard time proving that Roof had an intent to interfere with the exercise of religion, and especially proving that beyond the reasonable doubt.

Moreover, subsection (b) which is incorporated into subsection (a) clearly indicates that Dylann Roof was chargeable with this crime is "in interstate or foreign commerce" or "affects interstate or foreign commerce".

And there lays another big problem for the federal prosecution.  Worshiping activities cannot, by any stretch of imagination, be equated with interstate commerce, and, under U.S. v Lopez, claiming that committing a crime in a church somehow interferes with interstate commerce is too attenuated to provide for federal jurisdiction.

This statute, 18 U.S.C. 247, goes back, reportedly, to

QUOTE
-----------

"the Church Arsons Prevention Act, sponsored by Sens. Lauch Faircloth (R-NC) and Edward Kennedy (D-MA), and, in the House, by Reps.

Henry Hyde (R-IL) and John Conyers (D-MI), was originally designed solely to facilitate Federal investigations and prosecutions of these crimes by amending 18 U.S.C. 247, a statute enacted by Congress in 1988 to provide Federal jurisdiction for religious vandalism cases in which the destruction exceeds $10,000.

Hearings were held on both the impact of these crimes and the appropriate response of government.

Federal prosecutors testified that the statute's restrictive interstate commerce requirement and its relatively significant damages threshold had been obstacles to Federal prosecutions. 

Following the hearings, Congress found that "[t]he incidence of arson of places of religious worship has recently increased, especially in the context of places of religious worship that serve predominately African-American congregations."

Legislators appropriately recognized that the nation's response to the rash of arsons should be more ambitious and comprehensive than mere efforts to ensure swift and sure punishment for the perpetrators.

In a welcome example of bipartisanship, both the House and the Senate unanimously approved legislation which broadened existing Federal criminal jurisdiction and facilitated criminal prosecutions for attacks against houses of worship, increased penalties for these crimes, established a loan guarantee recovery fund for rebuilding, and authorized additional personnel for BATF, the FBI, Justice Department prosecutors, and the Justice Department's Community Relations Service to "investigate, prevent, and respond" to these incidents. "

UNQUOTE
=========

So, criminal federal jurisdiction for 18 U.S.C. 247 was invoked because something MORE than efficient prosecution of perpetrators was needed.

What MORE than efficient prosecution of perpetrators in a criminal case is needed?

And how does this "more" justify invocation of federal jurisdiction over a purely state crime, committed on a state territory, in a church?

But, that pronouncement, in and of itself, indicated that the statute is unconstitutional.

States already have, under the 10th Amendment, exclusive police power over crimes committed in their territories, and exercise that power for the efficient prosecution and punishment of perpetrators of such offenses.

That was the power recognized by the U.S. Supreme Court in U.S. v Lopez in 1995 when the U.S. Supreme Court affirmed dismissal of a conviction based on the Gun-Free School Zones Act of 1990.

In fact, as Dylann Roof's case shows, the State of South Carolina's efforts to prosecute Dylann Roof is impeded by federal prosecution, where the defendant is trying to use the federal prosecution (based, likely, on unconstitutional statute enacted, in its criminal part at least, without any congressional authority) to delay and/or impede state prosecution which hurts, not helps the victims and hurts, not helps, the necessary prosecution of a HEINOUS crime - murder of 9 people and injury to three people.

Same as schools were held in U.S. v Lopez have nothing to do with interstate commerce, churches also have nothing to do with interstate commerce, or with commerce of any kind.

In fact, the Christian religion asserts that the church does not have ANYTHING to do with ANY commerce - where Jesus Christ has actually cleansed the Temple of merchants and money-changers.

Worship is a spiritual activity which has nothing to do with commerce, interstate, foreign or otherwise.

So, it is likely that counts 13 to 21 and 22 to 24 in U.S. v Roof (see table describing all counts here) are jurisdictionally invalid, and the federal government is wasting taxpayer money to prosecute Roof where the State of South Carolina is already prosecuting him for common murder, which is much easier to prove.

For the analysis of other statutes used as a basis of the federal indictment against Dylann Roof, stay tuned.

RE federal jurisdiction over violent crimes - #DylannRoof's federal and state murder trials; Part I

Recently, I described in this blog a standoff between South Carolina State prosecutors and federal prosecutors as to the timing of trials of criminal defendant Dylann Roof, a white man who stands accused of the shooting deaths of 9 people and of attempting to kill three other people in an African-American church in June of 2015.

I mentioned in that blog that I question validity of federal jurisdiction over violent crimes committed on state property and committed without any connection with interstate commerce.

To verify why exactly federal jurisdiction was invoked in #DylannRoof's case, I obtained his indictment from Pacer.gov and reviewed it.

Dylann Roof was indicted on July 22, 2015 on 33 counts under various federal statutes.

Here is the table of counts, statutes, and grounds to invoke federal jurisdiction in Dylann Roof's case.

Victims	Counts	Statutes	Basis of federal jurisdiction as stated in the indictment
Victims who were killed	1 to 9 13 to 21 25 to 33	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1) 18 U.S.C. 924(c )(1)(A); 18 U.S.C. 924(c )(1)(C); 18 U.S.C. 924 (j)(1)	Murder: caused bodily injury to the victim because of the victim’s actual and perceived race and color, resulted in death of the victim Obstruction of exercise of religion resulting in death, the crime “was in and affected interstate commerce” Murder as defined in 18 U.S.C. 1111, killing each victim with a firearm with malice aforethought
Victims who survived	10 to 12 22 to 24	18 U.S.C. 249 (a)(1) 18 U.S.C. 247(a)(2), (d)(1), (d)(3)	Attempt to kill:  attempted to cause bodily injury to the victim because of the victim’s actual and perceived race and color Attempt to kill the victim, involved the use of a dangerous weapon and were in and affected interstate commerce

So, for each victim who was killed, Dylann Roof was charged with 3 counts of the federal indictment, under the following statutes:

1. 18 U.S.C. 249 (a)(1)
2. 18 U.S.C. 247(a)(2), (d)(1)
3. 18 U.S.C. 924(c )(1)(A);
4. 18 U.S.C. 924(c )(1)(C);
5. 18 U.S.C. 924 (j)(1), charging:

•  Hate Crime Murder;
• Murder to obstruct free exercise of religion and affecting interstate commerce;
• Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

For each surviving victim Dylann Roof was charged with 2 counts of the indictment:

1. 18 U.S.C. 249 (a)(1)
2.  18 U.S.C. 247(a)(2), (d)(1), (d)(3) charging

• attempt to kill based on race or color;
• attempt to kill involving a dangerous weapon and affecting interstate commerce

 No motions to dismiss were filed yet by the defendant, even though there may be glaring jurisdictional defects in the case.  It appears that it is the strategy of the defendant to keep the case in federal court, hoping for a more lenient outcome, despite jurisdictional defects.

What I mean by jurisdictional defects is that federal courts are courts of limited jurisdiction, and federal courts' jurisdiction is invoked only under two circumstances:

1) diversity,  28 U.S.C. 1332 (not applicable in criminal cases) and
2) federal question, 28 U.S.C. 1331:  

"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Moreover, the federal statute under which the "federal question" jurisdiction is invoked, must be constitutional, which means, it should be enacted within the powers of the U.S. Congress.

There is a 1995 criminal U.S. Supreme Court case so far where a criminal conviction based on federal statutes were vacated by the U.S. Supreme Court because the U.S. Congress had no authority to enact at least some portions of those statues.

That case is U.S. v Lopez and it has similarities with U.S. v Roof.

Here is the entire text of the case and citation, U.S. v. Lopez, 514 U.S. 549 (1995).

Alfonso Lopez was charged for violation of the "Gun-Free School Zones Act of 1990", 18 U.S.C. 922(q).

The U.S. Supreme Court ruled that the U.S. Congress had no authority to enact the Gun-Free School Zones Act of 1990, as regulation of schools has nothing to do with regulation of interstate commerce, the legal basis for Congressional authority to enact that statute.

The U.S. Supreme Court held in U.S. v Lopez:

"Held: The Act exceeds Congress' Commerce Clause authority.

First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. 

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 those terms are defined.

Nor is it 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 the Court's 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.

Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to
authority to a general police power of the sort held only by the States. "
In view of the U.S. Supreme Court decision in U.S. v Lopez and in view of the standoff between the state and federal prosecution in U.S. v Roof, where the State Prosecutor from the State of South Carolina asserts that the federal prosecution impedes the speedy state prosecution and hurts the victims of Dylann Roof's crimes, let's see if federal statutes under which Dylann Roof was indicted were based on proper congressional authority, and if federal prosecution of Dylann Roof, interfering with the state prosecution, is even legitimate.

I will post review of statutes which formed the basis of the federal indictment against Dylann Roof in a separate blog or blogs.

Stay tuned.

Clarence Thomas on the right to due process: in "real" civil cases - yes, in criminal and related habeas cases - never

Judge Clarence Thomas is an interesting judge.

His confirmation was tainted with accusations of sexual harassment of a female attorney - while presiding over no less than the Equal Employment Opportunity Commission.

He is the only black judge on the U.S. Supreme Court - it is relevant, as you will see below in this post.

He is also the only judge who did not pronounce one word during oral arguments for 10 years - until the death of Judge Antonin Scalia whose decisions Judge Thomas always supported and joined with.

Therefore, Judge Thomas's post-Scalia opinions are most interesting.

I've analyzed so far three opinions of Judge Thomas made in June of 2016 - two dissents and one majority opinion.

Case No. 1.

Dissent in Williams v Pennsylvania - Judge Thomas opposed a reversal of a decision reinstating death penalty in a case where one of the judges participating in reinstatement, who was the Chief judge of the top appellate Court of the State of Pennsylvania and who killed 4 habeas petitions of the condemned defendant, was actually the prosecutor in the same case who made the decision seeking the death penalty and whose subordinates obtained the conviction by fraud, withholding of Brady material, eliminating black jurors from the case (the defendant was black, and a victim of sexual abuse since the age of 13 at the hands of the person who he killed when he turned 18) and repeated solicitation of perjury.

In Williams v Pennsylvania, Justice Thomas claimed in his dissent, among other things, that:

• when judge Ronald Castille (who was the DA authorizing the seeking of the death penalty of Terrance Williams) presided over habeas corpus proceedings, that was not "the same" case,
• the post-conviction proceedings - even where Judge/prosecutor Castille reinstated the death penalty he sought as a prosecutor - do not provide the same level of due process as criminal proceedings (even though criminal conviction was obtained by fraud by DA Castille's office), and
• common law does not justify reversal of a death penalty reinstated by judge-prosecutor.

In support of his "common law does not justify" line of argument, Justice Thomas said, among other things, the following:

"Most jurisdictions required judges to recuse when they stood to profit from their involvement or, more broadly, when their property was involved. ... see also Jim v. State, 3 Mo. 147, 155 (1832) (deciding that a judge was unlawfully interested in a criminal case in which his slave was the defendant)."

Now, this "argument" takes the concept of "disgusting" to a whole new level.

Think about it.

• A black judge who would have been a slave had his ancestors not been liberated during the Civil War,
• whose whole life and career would have been impossible without passing of the 13th and 14th Amendments,
• rules in favor of upholding reinstatement of death penalty against a black defendant
• who was convicted and sentenced to death because the white prosecutor's office excluded 14 out of 16 black jurors from the jury pool, withheld exculpatory evidence, elicited perjured testimony from their star witness on two key issues, and, where the prosecutor became an appellate judge refused to recuse from the defendant's case - FOUR times and reinstated his death penalty when another court reversed and remanded it based on testimony about misconduct of prosecutor/judge's own office.

And, under THESE circumstances, Judge Thomas considered it appropriate to cite, on the issue of whether the 14th Amendment Due Process was violated, a pre-14th Amendment case, from 1832, where a judge had to recuse because his own slave was a defendant in front of him - and had to characterize that case as a case of judge owning "property".

The judge owned the defendant.

That's the most disgusting ruling that can be expected from a black judge and from a person whose life and career would not have been possible without the 14th Amendment.

The question is - WHY?

Out of a great number of cases, WHY would a black judge pull an irrelevant case, predating the enactment of the constitutional amendment that is being litigated, and put in black and white that a white judge owned a black defendant as a slave, and because of that he could not preside - and that is supposedly the ONLY due process restriction for judges presiding over criminal cases and related cases?

All in all, Judge Thomas would have left the death penalty intact, allowing the white prosecutor to first obtain the death penalty, through criminal conduct of his office, get elected based on that death penalty conviction, and then block reversal and habeas corpus petition as a judge.

Such behavior of a prosecutor/judge does not, in Judge Thomas' view, create an appearance of impropriety and does not constitute judicial or prosecutorial misconduct in violation of the 14th Amendment.

Case No. 2

Majority opinion in Utah v Strief, June 20, 2016

Justice Thomas authored a majority opinion reversing the UNANIMOUS decision of the Utah Supreme Court and allowing police officers to engage in the following practice:

1) conduct an illegal stop;
2) obtain, through the illegal stop, information about identity of the stopped individual;
3) check that identity through the electronic system verifying whether the stopped individual has outstanding warrants, including for unpaid traffic and parking tickets, and
4) then arrest the individual and legitimize the illegal stop by the later-discovered outstanding warrant, and legitimize the results of the search.

Judge Thomas indicated that the police officer was not engaged in "flagrant misconduct", and that circumstances of the case are "attenuated", thus "curing" the initial illegality of the stop.

That was a criminal case.

The end justifies the means.

Case No. 3

Dissent in Dietz v Bouldin

In this case, a civil case, Judge Thomas said all the right words as to the possibility and presumption of taint where a jury is recalled after being dismissed.

Yet, once again, that was a civil case.

So, for Justice Thomas a presumption of taint - and thus due process violation - exists in a civil case, while the same Justice Thomas argued in Williams v Pennsylvania that there is no presumption of taint and appearance of impropriety where the prosecutor who sought and obtained the death penalty presided over the habeas corpus appeal by the prosecution and reinstated the death penalty, with a separate concurring opinion blasting the defense as "having an agenda" and engaging in frivolous (death penalty) litigation.

And, in Williams v Pennsylvania, Justice Thomas argued specifically that a post-conviction case is a CIVIL case and, consequently, less due process is allowed in such cases.

Which then raises a question, why Justice Thomas thinks that more due process should be allowed in a civil litigation over a car accident than in a death penalty case.

One "rule of Justice Thomas" is clear though - he favors finality of criminal convictions over fairness and constitutionality, and believes that fairness should be afforded only in "truly civil" cases. 

So, Justice Thomas' when making claims in his dissent in Williams v Pennsylvania that post-conviction habeas corpus relief is a "civil" case, the claims were pretextual, and Justice Thomas himself did not believe in such a designation of post-conviction habeas corpus cases.  He considered them criminal, because in the "regular" civil cases, like a car accident common law negligence case, he argued for higher level of due process than he would afford a condemned death penalty prisoner, a habeas petitioner.

I posted two blog articles about opinions of judges "on the left" and "on the right" of the U.S. Supreme Court, but displaying the same problem:

they act on their personal convictions and not the law, and they believe in the end of litigation justifying the means as to how the end is achieved.

That is, in and of itself, a result-oriented jurisprudence and a due process violation.

Which brings me to the big question - do we really need the U.S. Supreme Court?

Do we really need 9 people acting on their whims when taking a small number of cases out of an ocean of cases and issues that need to be decided, and when they decide cases and then imposing upon the entire country based their personal opinion about the law, irrespectively of what the U.S. Constitution that they are sworn to uphold, says?