Treatise: Insidious Breach of the Courts' Public Charter
For Posting to www.jail4judges.org

Thanks to Gary Treistman (garyonthenet@yahoo.com) for asking J.A.I.L. to post his masterful written composition, with some minor editing with his permission. This exposure of corruption covers all courts at all levels--federal, state, and local.  
 
This treatise/petition is posted on the website to expose to the world what the People are faced with regarding the corruption of our judicial system throughout the country.
 
The People's Statement and Petition of Grievance
Against The Judiciary 1

By Gary Treistman, garyonthenet@yahoo.com
(Minor editing by Barbie, ACIC National J.A.I.L.)

The People hereby present a review of the State and condition of our  Judiciary, its systemic inequities, constitutional drift and institutional malaise; a call for the betterment and return to the purity of due process, enforcement of caliber in our judicial administration, and official recognition of our demands.

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed us in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping little and little, the foundations of the Constitution, before anyone perceived that invisible and helpless worm had been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."   --Thomas Jefferson, 1823.
We, the class of persons aggrieved in the courts, do hereby formally proffer our petition of grievance and demand for redress and amelioration, as is constitutionally guaranteed and provided for by the First Amendment to the U.S. Constitution. It has come to our attention that the federal judiciary, which serves as the role model and exemplar idyllic for all American courts, has gone terribly astray in its practice and administration of the law, and has de facto breached both its Constitutional idealism to unbiased justice and its purport to its public charter, from which its power is derived.

We impute the judiciary's breach of its duty, where its adherence to written procedure and law has degraded to such a degree, that the outcome and resolution of cases in these forums has become probabilistic at best, and oligarchically complicit at its worst.


1.   Copyright 2001, Gary Treistman garyonthenet@yahoo.com: The People's Statement and Petition of Grievance Against The Judiciary. Mr. Treistman can also be reached @ Lori Sherman & Associates, Legal Advocates and Support, POB 563, Bearsville, NY 12409, Tel: 845-679-7095; email: LoriShermanAsc@hvc.rr.com He is the Editor of FreeNY. This work is copyrighted; no part or parts may be taken or used, nor the text herein changed without written permission of the author; any modifications made to this work that has been authorized by the author shall become the sole property of the author and who thereby retains all rights to any such derivative work.
(Minor editing by J.A.I.L. by permission of the author)

We, those of us among the public who have had first-hand and informed experience in the court system(s), have taken up indignant notice of the discrepancies between the theory and the practice of the law; have suffered unjustly due to those discrepancies, and hereby articulate these abuses and breaches; we speak for ourselves and for the unknowing laity whose liberties and properties are at jeopardy where the judiciary has abrogated its Constitutional charter.

Preamble and Declaration of Condition

We assert that the current state of the courts' standard modus operandi has devolved into one of caprice and peremptory resolution --a condition where the judges now consistently rule with expedience and favoritism, with a post hoc mentality, geared more toward a synthesized end result than of a resolution wrought by the impartial weighing of the facts as directed to by the law. Whether it be because the issues therein are deemed too disruptive to society or the legal mettle, or because one of the litigants is politically more precedential than the other, or other reason, this is a breach of the public role of the judiciary.

Cognizant of the above, we also note that there appears to be an orchestrated effort by the judiciary to uphold the appearance of intact due process in the public eye. We also observe that, due to the technical nature of these matters, this effort is generally successful, and the very many micro injustices perpetrated as a matter of course in these forums side-step and escape the attention of the uninvolved public at large, who continue to retain a confidence of faith that all is basically well with the system.

As more members of the laity unavoidably get involved in the legal arena, these problems will not be concealable much longer. Although the details of the situation may continue to evade the general public's comprehension, the sentiment will not, as those who have had the misfortune of being subject to these inequities complain loudly to all that would listen.

And in that vein, it can be seen that a plethora of grass roots political action committees and coalitions, highly critical of the state of the various judiciaries and demanding change, have emerged.

Each one of these groups is representative of thousands of people who have deep-set grievances with the judicial system in its current defective incarnation, and have been unjustly affronted by their participation with it. The members don't complain about unfavorable decisions to themselves; they complain about the institutionally corrupt way decisions are arrived at and handed down.

We don't demand favoritism from the courts; we demand impartiality and plain adherence to the rule of written law.

Historical Review and Analysis

It has long been past since the federal courts upheld their rightful roles as guardians of the ideals of the Constitution, a bulwark against greater political and social powers seeking to establish an agenda at the expense of the common man's rights and guarantees.

There was a time when the federal courts did not recoil at the incidental possibility that a decision or ruling might have uncontrolled or unforeseen ramifications, rather they let the facts of the case and the law as written be their guides to just resolution, and let the results go where they may. They were the leaders of law, and set the outer limits to what was right and wrong.

Their decisions issued were pertinent and succinct to each case at hand; legal findings issued righted the wrongs at bar without reserve or fear that such a decision would or could affect other cases. There was a purity of process, compartmentalized, as it should be, within the instant cases being entertained, and beholden only to the applicable law at hand. Pristine in the application of the facts and law to the case at hand, such process was not soiled either by outside influences nor by the socio-political status of either litigant.

However, where there once was a dynamism, an open-mindedness to lead wherever the logic of the law may take it, without reservation to pragmatic forces or eventualities, there has now come a miserly stodginess of thought and forethought, where the results of judicial decision making are feared by those making them, and decisions' scope are artificially constrained, held tightly and reigned in as close as they can, so as to preempt what may come of them.

The fall-out from this change, from the free-form intellectual clarity of purpose and the openhanded idealistic application of the law, to the close fisted and small minded micro-management of the judicial administration (i.e., decision making and application), has been the practical degeneration of the legal system to the point where there is now particularized "justice" for one, not for all. Litigants cannot reliably depend on written law, because it could be "interpreted" to mean anything the courts want it to mean.

Legal truths no longer apply to all people everywhere similarly situated; rather, rulings and order memorandums are crafted to single persons or entities, constrained in scope solely to the instant cases, with judicially stamped captions boldly stating just that.

Such individualized justice systemically inevitably permits an arbitrariness of law; equal protection becomes meaningless as the law is applied fundamentally differently, depending on who you are and what impact your circumstance may have on the status quo.

This sloppiness and lack of legal consistency, and the accompanying loss of quality of decision issuance and analysis, has become a mindset and model for the judiciary at large. No longer are the previous ideals of adherence to the written rule of law held in sacred esteem, as something meant to be inviolate and kept pure. Now the judiciary feels free to "interpret" and reinterpret clearly written laws, unambiguous on their face, in whatever way seems pragmatically suited to the circumstance at bar.2 (It must be noted that in concert with this judicial trend is the contemporary legislative tendency to enact ambiguously written law, often incomplete and by design requiring interpretation by the courts to make any sense. Yet the courts' refusal to readily overturn such laws on the grounds of ambiguity makes them complicit in this dereliction).


2.  Such a legal system, brought to its logical conclusion, is indistinguishable from the Chinese judicial system of "laws" and ruling; there are no codified laws - judges hand down decisions based upon the reigning power structure's sentiment, presumed to be known to all, implicitly and without prior notice. Chinese judges do not publish their decisions or reasons thereof; all decisions are sealed and kept secret from the public. In practice, this is similarly indistinguishable to our judiciary's increasing habit of issuances of orders without opinion, or qualified with some cryptic summary statement, such as "based on the record and pleadings before the court it is so ordered." This is how Chinese leaders thus maintain flexibility in their courts.

Inevitably, what "seems suited" manifests itself as an overt bias to the socio-politically stronger litigant, and a statist mentality to maintain the existing power structures intact, even at the expense of fundamental rights and liberties.

Where once the rights of the individual were treated as almost sovereign and respected above all else, as it was written into our Constitution, the rights of the collective are now considered superior, and are ceded a deference above those of any one person. This tendency, repeated many times over the years in controlling legal precedent, has slowly teased our society into a socialist mindset, spirit and practice. This quiescent tendency of belief is now normal and accepted, and it is the presumption and acceptance that all individual rights are only provisional, and are only granted solely at the discretion and benevolence of our governmental leaders. 3

We assert that without correction, this trend will lend itself to a slippery slope. As one set of injustices wrought becomes convention, it will become implicit foundation for the next set.

Without review and effective critique, as time goes on, these inequities will only become more entrenched and a part of the standard fare, a systemic cancer that will not budge, and we as a society will be left with nothing more than a changeling of what the American standards of justice once were. It will be a burden of unimaginable proportions and injustice to the people, and a bee-line toward tyranny.


3.  Like many prior civilizations, while the government keeps the public trust, or at least respect, it thrives with the full verve and participation of the populace; as it begins its systemic decay and decline, serving the oligarchy ever so much more obviously at the expense of the populace, its public respect is replaced with resentment and disdain. Consequently, in order to maintain an illusion of cohesiveness, such regimes commence the descent of all failed societies, replacing popular voluntary participation in the society with forcible coercion of the people to conform with intolerable conditions. These regimes last an average of 30 years before collapsing on their own hypocrisies.

The Particulars

Our observations and complaints as detailed above are not the results of guesses or supposition.

These grievances come about from our collective, arduous interaction and direct experience with the court systems, a culmination of many years of legal engagement with the various courts and adversarial entities ranging from individuals to corporations to governmental bodies; in controversies involving everything from tort law, civil rights, immigration, bankruptcies, and criminal proceedings.

Perspective has been gleaned in these matters in the crossing of the lines of administrative, small claims, bankruptcy, civil, and criminal cases, and noticing the various character and tone of the courts, depending on the issues and forum. We submit that occasionally justice is actually done when the judge is independent, 4 true to the law and attentive, but invariably the proceedings and case resolution suffer from the systemic problems outlined herein.

Throughout all the pleadings, motions, appearances, and interactions with the courts, we have noticed a series of disturbing and recurring symptoms surface in the course of the proceedings, which after review lead us to conclude they are expressive of the underlying systemic illness about which we complain.

Most probably not an exhaustive list, we consider these to be the worst offenses of the judiciary, that most insults our sense of due process and trust in the integrity of the judiciary.


4.  We say this with admiration for such judges, even when we lose the case. If the judiciary were populated with such independent judges the system would not be in the sorry state it is headed. Final resolution of the cases are often reliant on juries. Juries, although theoretically independent, are heavily influenced by the judge's persona and demeanor, as are what they are permitted to know, legally and factually, by the judge.

Court Issuances Violative of Due Process:

1. Decisions with no deciding cause or justification
    "Leave them guessing" orders:

Orders that have no finding of facts or law; orders, often summary and dispositive of the case, leaving a would-be appellant in the position of not knowing what or why he is appealing the case other than the sheer dismissal or denial. Sometimes these orders have a boilerplate language: "Upon consideration of the record it is so ordered", or a citing of the statute's standard of proof which is asserted to be unmet, or equivalent.

In the case of appellate courts, orders of affirmance (or even sometimes remand) without opinion, or with summary point assertions and no analysis.

It should be noted that all these types of decisions are in fact in violation of the federal statute Rule 52(a) F.R.Cv.P., which mandates that any decision issued by a judge be justified by an accompanying finding of fact and law. However this law is widely and systematically ignored by the courts.

2. "Hidden" or sealed decisions
    Justice for one, not for all:

Particularized memorandum decisions, where the court issues a ruling with the caveat that the findings, analysis and applicable law cannot be used as legal precedent in any other case, nor to be cited or referred to in any other case.

This practice undermines the whole intent of equal protection, as well as public trial/proceedings mandates. It permits another court in the same jurisdiction, in another case, the ability to rule differently on the exact same facts and circumstances.

3. "Pending" decisions, and case resolution
    Justice delayed is justice denied:

Where an interlocutory or dispositive decision is awaiting issuance from the court before the case can proceed, and does not get handed down for long periods of time, e.g., 9 months, 18 months, or even years.

It is this tendency of the courts, more than anything else, that causes cases to drag on for years, clogging our case dockets and causing a conjugation of further delays; instead of the quick resolution that would normally occur if the court responded within a reasonable time for review (30 days at most) 5 on motions, the courts take their own sweet time, limited by no fixed duration or self-discipline.


5.  This penchant for taking its own time is compounded by the unreasonable patience and tolerance of the courts for frivolous requests for time extensions, and the permitting of the parties to play back and forth on the same issue that either was already resolved once on previous motion, or should have been by a defaulted response.


4. "Ghost" written decisions
    Delegated Justice:

Although vehemently denied as happening, as would be expected, the issuances of decisions and memorandums crafted and authored by judge's underlings - chamber's clerks, assistant staff attorneys, etc. - with only the judge signing off on it.

Such decisions are delegated to staff when the judge already has his mind made up as to the prevailing party, and either is too busy to analyze the case or too lazy to do so himself, so he gives the case file to the subject ghost writer and directs him to compose a memorandum justifying the given denial or granting of the order.

5. Copy cat decisions
    Transliteration is the sincerest form of slothery:

Decision memorandums that so closely follows the argument, logic and text of the prevailing party so as to be considered a literal transcription of that party's brief. This begs the question, if the court thought the party was that correct, then why wasn't the case resolved on summary motion?

Such a ruling shows no independent decision or thought on the part of the court, and probably reveals an instance of Point 4 above.

6. Default Judgment refusal
    The unattainable judgment:

Peculiar to the federal judiciary (although common to some other jurisdictions as well) is the sheer allergy of the courts to the issuance of default judgments (or findings) on points of controversy, or of case disposition.

The statutes provide simply that if a party fails to respond to an assertion on motion or a summons & complaint, the court is to rule in favor of the moving or summoning party; see Rule 55 and Rule 8(d) F.R.Cv.P.

It appears however, from case law and from experience, that no matter how violative an adversarial party is of answering summonses and complaints, no matter how egregiously the party disregards the summons and time constraints therein, despite uncontroverted proper service of a lawsuit or motion, the courts simply refuse to issue a default judgment to the moving party, preferring to give the defaulting party far more than the benefit of the doubt, accepting any excuse, and denying any motion for default judgment.

This practice extends to intra-case dynamics where a responding party simply refuses to defend or address a point raised or asserted on motion, and the court, instead of automatically granting that point of controversy to the moving party, still considers it unresolved.

Such neglect as to the precepts and mandate of the applicable statutes, only serve to delay, extend, draw out the proceedings and case duration, and reward non-responsive answers or replies in the pleadings; see Point 3 above.

Court Trends Transgressive of Equal Protection and Due Process:

1. The Eradication of Brightline Rules of Law

The reliability of written law, in meaning what it says and saying what it means, has suffered to the detriment of all.

Modern court jurisprudence treats plainly written law as if it were a mystical tongue, unreadable on its face, requiring predigestion of each component term and of needing reassessment as a whole. Alternatively, it is treated as a rhetorical suggestion, as if the text only provides a generalized guide as to what is actually stated.

There was a time when the law was comfortably replete with definite on-point directives and succinct elements of proof or touchstone. Therefrom, the courts respected it as such, relying on the statute as it was put down - not double-guessing the intent, nor attempting to generalize its meaning beyond what was written.

Such laws as effected and interpreted, gave actual and substantive notice to civil and criminal parties that an applicable law would reliably lead to a point of decision, and could be depended upon as a pivotal point in legal argument and case dynamics.

Since then however, through a complicit combination of lazy (or noncommittal) legislators, and precedent case law utilizing creative leaps of judicial interpretation,6 the trend has been inexorably drifting towards the effectuation of polymorphic laws and rules of procedure-- laws, that although written one way, could mean just about anything depending on fickleness of the circumstance.

Newly enacted laws, as of late, are rarely finished or complete, and by design give such great "wiggle room" that judges are compelled to fill in the blanks and substitute their own individualized interpretations, depending on the arbitrary circumstances, so as to make sense of what exactly the subject law means. 7 Unfortunately this usually results in law of the worst kind, legislated at the bench, where considerations of facts and circumstance unrelated to the case at bar become controlling. 8


6.  Or perhaps it is simply the trend to make the law mean whatever is convenient for it to mean, regardless of what is actually codified. Another instance of leaders maintaining flexibility in their court system; see 2 supra.

7.  It might be noted that even in the rare instance where a brightline rule of law still exists, the appellate courts are still loathe to remand a district court's erroneous breach of its mandates.

8.  Such as which litigant is socio-politically more powerful, what the political fallout will be if the decision is criticized, what pragmatic effect the decision will have on other cases or social causes external to the case at hand.

The other side of the same coin occurs where the courts of precedential authority have combined to reinterpret obvious (and even historically treated) brightline rules of law into much more muted and unmoored facsimiles of their former incarnations.

Both sources of this trend have served to permit the judiciary to reinterpret the law in virtually any way it feels like at the time, introducing unwritten exceptions to the rule, guided only slightly by the written law, regardless of what the actual text of the subject law may explicitly state.

This leads once again to the qualitative degradation of judicial decisions, the lack of dependability of those decisions for all similar circumstances, and renders suspect our courts as an impartial forum for conflict resolution.

As aforementioned, when brought to its logical conclusion, such treatment of the law results in a system not dissimilar to the Chinese judiciary, where there are no codified laws, and the courts find the law based upon the issuances of current authoritative sentiment or proclamation.

2. Pro Se Prejudice

Although it has been recognized by the U.S. Supreme Court that a litigant has an absolute right to prosecute or defend his own case in civil and criminal matters,9 and that such a litigant must be given latitude in the technical form of the court submissions (i.e. the court should not hold pro se litigants to the same standards as to court procedure and forms not related to the substance of the claim),10 on the average, the courts still let the status of the litigant affect their substantive rulings on the matters before them.

The courts treat these litigants like an unruly son, worthy of one who breaches the rule "any one who represents himself has a fool for an attorney/client", and one who would be taught a lesson not to play with forces he does not understand.

There is a not-so-subtle presumption that not only is the pro se litigant ignorant of what he is doing procedurally, but that the litigant neither knows the law well enough to have a real claim beneath the surface of the pleadings. His submissions are read with a dismissive demeanor and not taken seriously or with any acute responsiveness.


9.  Farretta v. California

10.  Haines v. Kerner


3. Erosion of the vitality and plain language of the U.S. Bill of Rights

With the notable exception of the First Amendment to the U.S. Constitution (and perhaps the Third), almost to the word, every amendment to the U.S. Constitution has been re-interpreted and effectively emasculated from the powers and inherent rights it grants to the People, and from what it plainly states.

Like an old grandparent one is obligated to honour but who is actually considered dated and infirm, the courts treat the Constitution with a jaundiced respect, recognizing its authority in theory, but dismissing any direct conclusions stemming from its mandates as too impractical to entertain. Instead, statutory law is given de facto precedence over it, and wherever there is a conflict between them, statutory law usually prevails.

The illegitimate encroachment of federal jurisdiction over purely intrastate activities:
"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing it's noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. ... when all government ... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."   --Thomas Jefferson, 1821

In the system of federal government set up by our Founding Fathers, and in their informed wisdom and justified fear of an uber-power centralized government, the U.S. government was intentionally trifurcated into three equally important parts, neither one of them vested with the sole power to control the land. In this manner the intention was to inter-moderate and buffer each other's possible efforts at supremacy.

In the order of effectuation of federal governing, they created the Legislative, the Executive, and the Judicial branches of our government. And they concurrently created the Constitution which defined and delegated the respective powers, duties and limits of the three branches.

The Legislative was the creator of laws, the Executive was the effectuator of the laws, and the Judicial was to be the ideological enforcer, the policer of the other two branches that kept them in line with the Constitution, and in administration of the laws upon the People.

In this way their respective powers were limited in scope, and neither had enough power to rule solely; the Legislative could make laws but not carry them out; the Executive could only carry out the laws that the Legislative made (or that existed in the Constitution); and the Judicial was constrained to proclaiming whether the Legislative's laws subserved the Constitution and whether the Executive, in carrying them out, had adhered to the laws made by the Legislative (or to the Constitution directly). 11

(In many ways the Judicial was vested with the highest and most noble task: to protect our system of government against Constitutional heresy and keep pure our system of laws, rights and Constitutional precepts.)


11.  The Constitution was to be our legal DNA of sorts, the law cardinal, a source law not created by the legislature, but presumed to be a given and inviolate. Within the framework of that base set of precept laws, and consistent wherefrom, the Legislative was permitted to make any appropriate laws needed.

Furthermore, in order to respect the sovereignty the States, who in fact initially chartered the federal government and which was the result of a compact between them, the Constitution mandated that the U.S. government could only control or regulate the commercial trade occurring between the States or their respective citizens. It was explicit that the federal government was to have no other jurisdiction or controlling powers to normal activities internal to the respective States.12

This bar to intrastate activities was long an established and unremarkable fixture in our system of government(s), until about 1942, when the U.S. Government prosecuted an Ohio wheat farmer who had decided to grow an additional 11.9 acres of wheat, on his own land for his own consumption, against Governmental edict.

The controversy was appealed to the Supreme Court 13 on the grounds that what the farmer did on his own property, and for his own intrastate purposes, was outside the federal government's power to penalize.


12.  Of course there are other intrastate activities detailed in the Constitution (which embodies the assent that the States entered into with each other and with the federal government), that are regulatable by the federal government, most notably enforcement of the Bill of Rights' guarantees to the People and how State government laws and administrations comport with it.

13.  Wickard v Filburn 317 U.S. 111 (1942)

Utilizing a wartime mentality, the legacy of which we are saddled with today, the Supreme Court ruled that the federal government could regulate such intrastate activities because the farmer's consumption of his own wheat somehow ethereally14 affected the total interstate supplies and transport of wheat across the nation. (This was akin to saying that breathing affected interstate commerce, because the air was used up faster and couldn't be used for other interstate activities, thus justifying federal authority over breathing.)

In violation of the clear limits set forth in the Constitution, and based upon this landmark case, this newly minted federal authority to control intrastate life and activities exceeded all bounds, and currently knows no practical limits.15

All that is now required for the federal legislature to control an arbitrary intrastate activity is a public proclamation of Congress that it "finds" some activity somehow, someway indirectly (be it in concept or scope) affects interstate commerce. There is no requirement of finding an actual connection between a particular incidence of that activity and something interstate.16


14.  The logic put forth by the court was, since the farmer's consumption of his own wheat could cause him to not buy it from the national pool, his activity somehow actually affects interstate commerce.

15.  The author notes that the Supreme Court has in recent years struck down a number of statutes on the basis of insufficient interstate commercial nexus, but these are [1] few and far between, [2] miss the gravamen and scope of the existing over-extended federal regulatory powers, and [3] are usually applied only to the outer periphery of Congress' statutory structures, which in themselves are often just test statutes to see how far the Court would currently permit them to further extend federal jurisdiction into intrastate activities.

16.  As the archetypal example, see 21 U.S.C. 801; the full presumption of federal intrastate authority in these types of statutes can be seen in practice, where in federal prosecutions the Government is no longer required to accuse or even prove at trial the essential element of an interstate nexus - it is already presumed "proved" by the proclaimed "findings" of Congress.

Thus we are affronted with the circumstance our Founding Fathers were most afraid of, an overarching central authority that had unlimited precedence over State's internal laws and activities, effectively forming a new politburo that completely abrogates the States' sovereignty.

Such a system is not only Constitutional heresy, but is insensitive to the various regional conditions across the nation, dismissive of the respective local social sentiments and mores, and contemptuous of the prevailing individual characters endemic to the various states.

Such a system preempts the rights of the People to govern themselves as Constitutionally provided for, and seeks to impose a homogeny of thought, lifestyle and way.

Retort

An overview of the above Points of Particulars reveals a pattern and underlying theme.

That theme is our courts' abrogation of the oath of allegiance and dedication to the precepts of due process, and the impartial administration of the law.

Where once there was a robust and vital expression of due process prevalent in our federal courts, compromised by no one, there is now a shallow callous mask of its former existence.

And like a mask, our system today appears on the surface to the casual observer to be the recognizable face of classical American Justice, as depicted in our popular icons and stories.17

What lies beneath, however, is a very different persona: an institution of machinations, political favoritism, procedural expedience, arbitrariness, conceptual prejudice, laziness, pettiness, and apparatchik ministrations.

Into this artifice of integrity and honor, we vest our public trust, hope and confidence for equity under the law, and the establishment of our rights and freedoms.

The causes of this judicial degradation are hard to pinpoint or rationalize, for in the federal judiciary, judges are appointed for life, and are virtually guaranteed that status no matter what their decisional propensity may be. There would seem to be no incentive other than to rule with utmost ideals and professionalism.


17.  Much like a safety net made out of tissue paper, our legal system of rights, guarantees and due process look safe and secured-- that is, until they are actually needed. Then a very uncomforting surprise is revealed.

However, not being privy to the very closed, cabalistic social circles to which the members of the federal judiciary bind themselves, we can only surmise the underlying causes permitting this loss of quality and reliability. To clarify the possibilities, we proffer the following probable causes:

(1) The consequent quid pro quo that is expected of them in exchange for the appointments. Obviously powerful interests are responsible for putting federal judges in place; these interests often have agendas independent of unbiased due process and justice, and no doubt upon appointment, judges are implicitly expected to return decisions in complement to those interests.

(2) The quality of intellect of the appointees, and their acumen for the theory behind application of the law. Without the ability and penchant for independent and original thinking, such appointed judges simply affirm or rubberstamp pleadings that they perceive are statist, unremarkable or in line with prevailing legal sentiment; an actual weighing of facts and law is usually too tiring to consistently manage. The depth of analysis coming from such judges is revealed in memorandum decisions (if even issued) that are perfunctory and superficial to the facts and case at hand.

(3) The influences of the prevailing attitude and sentiment of Executive and Legislative officials, and of course superior courts.

(4) The lack of any meaningful accountability or review. Judges stand to lose nothing by sloppy administration --the worst they suffer for bad procedure and law is a mild rebuff from their superior courts. This is nothing more than a fraternal rebuke, and is not felt with any acuteness. Often these same rebuffed judges are indignant upon remand, and take their angst out on the successful appellant --yielding an equivalent or worse ruling for them on the remand, while still technically abiding by the superior court's mandate.

(5) The social or professional shunning by their peers, and/or other public officials (see Hon. Baer, USDJ SD/NY, ND/NY [http://www.spectacle.org/496/baer.html], etc)

(6) The carrot-and-stick conditioning to which they are subjected, as to whether they are considered for advancement to the appellate courts. Unless they consistently kowtow to the party line, they are intentionally disregarded in any consideration for higher court appointment.

An Addendum to the Lack of Meaningful Judicial Accountability

It should be noted that all the judicial review committees, offices of professional responsibility, mandamus review mechanisms, and other administrative forums for review of judicial complaints all suffer from the same implicit conflicts of interest.

Although a direct connection or interest between the masters of these complaint forums and the subject judicial officers cannot usually be demonstrated, they are in fact all heavily interested parties, by the sheer fact that they are part of the same guild and must face their peers' rebuke in social and professional circles if they rule in a critical manner.

Relatedly, the group of people who would know best and are most stung by wayward judges are the attorneys that must practice law beneath them. However, they too are effectively gagged in any public criticism of the judges, as they are too vulnerable to judicial blacklisting and subtle prejudices in future or ongoing cases, of which they are much aware.

The only involved vocal group left that is not constrained by special interests and has nothing to lose by shouting their frustrations are the pro se litigants, but this group unfortunately as a whole lacks the legal vernacular and contextual complaint capability to meaningfully articulate their frustrations, as well as lacking significant political influence; as a consequence they are never taken seriously and their complaints are usually dismissed out of hand.18

As such it can be seen that there is no independent, effective and disinterested review mechanism in place to stand vigil over errant judges or other officers of the court.

In sum, although the causes and continuing condition that the judiciary suffers from cannot be definitely determined with the available information, it is nonetheless unacceptable and is thus in demand of reform and rectification.


18.  Much as a crying baby may have a very real need or complaint, but is unable to enunciate the problem or unfulfilled need in any meaningful terms.

Summons to our Leaders and the Judiciary for Review of Defects and Amelioration

In light of the above, we of the judicially aggrieved class, and the People of the United States of America, do hereby indict the judiciary as responsible for all of the above defects and infirmities incumbent in our legal system. It is they who have let it go astray, and who are always in the position to reform it instantly.

We assert that this condition is a cancer upon us and distinctly unAmerican in its state.

All we as a people ask and seek from our judiciary, the most important branch of our unique form of government, is adherence to the principles and implementation of due process and respect for the precepts of the U.S. Constitution.

We would be satisfied with judges and courts that are simply professional, unbiased, neutral, attentive and even dispassionate/ indifferent to the cases and litigants before them.

We want the triers of law (and often times of the facts) to adhere simply and formally to the written rule of law, showing no favoritism for particular litigants or causes or social platforms, and bereft of the tendency to reinterpret or expand the law into something other than what is exactly written.

Conversely we want the judiciary to not shy away from the liberal application of its legislation-invalidation powers, i.e., the striking down of laws and statutes that either [1] do not comport with the bald edicts of the U.S. Constitution, [2] are prima facially ambiguous or incomplete, or [3] are logically inconsistent with their own construction or with that of other existent laws.

Our hope and expectation is that with such proper policing, a message would be sent to our lawmakers that the end product of their legislative process should be released only after proper investigation, conference, public comment and consideration, and a true weighing of the pros and cons of the ramifications the subject law would have, and thus would regain the level of conciseness, integrity and true form that has been sorely lacking in the past few decades. Instead of laws designed more for the acronyms they moniker (e.g., USA PATRIOT ACT, RICO), the Legislative should be concerned with the viability and cohesive substantive content of the laws they produce.

As it appears that the judiciary has failed to police itself along these lines and in the administration of the laws (an inevitability when there is no higher authority in the land), and that it appears to be careering toward a system of both slovenly form and stricture, combined with an extreme statist mentality, we hereby submit for and demand the following reforms to be effected:

1. Absolute time limits on pending decision issuances.

2. An absolute requirement that all decisions must be justified with an itemized list of factual and legal findings supporting the subject decision and order; no empty summary orders, boiler plate re-enunciation of statutes, or memorandumless orders.

3. Require and set up pro se liaisons for each court, with the authority to guide and direct pro se litigants in the technical details of presenting their cases to the court.19

4. Requirement that the courts follow the subject case controlling laws as they are written, with no hyperbole or expanded interpretation.20


19.  But not to provide legal research or give legal advice going to the substance or the tactical strategy of their cases. Just a court representative who could answer direct questions about how the court expects the presentation of the case elements and procedure.

20.  Presuming it passes the aforementioned tests for ambiguity, consistency and Constitutional muster.

5. Requirement that the courts mandatorily adhere to their own written laws of court procedure (e.g. Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Bankruptcy Procedure, etc.) These procedural laws should be just as binding on judges as any law is binding upon the rest of us.

6. Facilitate and encourage the judicial invalidation and condemnation of laws and statutes that are not well-formed, either due to ambiguous construct, inconsistency, or because they violate the mandates and guarantees of the U.S. Constitution.

7. Establish citizen review committees for judges and all other officers of the court. Such review boards should have authority to receive and review any and all complaints made against judges, make an unbiased determination as to whether the subject judge broke procedural or substantive law, and to issue condemnation or exoneration of the complaint, and the power to effect punitive measures. The members of the committee should be completely independent of the judiciary and immune to any pressures therefrom or from other political powers. Furthermore such reviews should be entirely public from start to finish, so that any such complaints, claims, discussions, proceedings and resolutions would be available for public purview; there is a public trust vested in these judicial officers, and if that trust is put into question, then that question, review, and resolution should be made public as well.

8. Review, question and repeal absolute immunity laws, so that no one can evade personal liability when they have broken the law.

9. As a symbolic measure against even the appearance of conflict of interests, judges' paychecks should not be issued by the U.S. Justice Department.

10. Provide for and institute some meaningful, routine and standardized sanction procedure for wayward judges, judges who regularly breach the rules of procedure, or refuse to apply the law as written. Such sanction may take on the form of anything from public rebuke to reduction of pay, to relegation of their duties to non-trial tasks.

Conclusion

All we are seeking is the process due as guaranteed by equity and the Constitution.

We are not looking for favors, preferential treatment or bias, just the neutrality, and unembellished attentiveness from our judges that the ideals of the Constitution and adherence to rules of written law demand. We seek return to a state in preserving the ideals our Founding Fathers originally realized, and reified during the conception of our nation.

On the face of it, the set of laws and procedural rules that govern us as written, by and large, form a comprehensive, just and practical template for jurisprudence; in the implementation of them they have been perverted beyond recognition.21


21.  We are reminded of the Soviet Russian Constitution, an admirable document full of guaranteed rights and citizenry empowerments, but one completely unfollowed and ignored by the Russian judiciary and Politburo.

Unfortunately, the judiciary is no longer bound to any fixed touchstone or brightline rules, and has strayed far in the interpretation of the laws from what the laws actually are. Compounding their own sins, the judiciary has permitted the legislature to run willy nilly in the issuances of what is considered legally acceptable and well-formed law.

It is for these reasons we, as representatives of the People, combine and compact together to petition for grievance on these matters.

It is for these reasons that we demand forthwith a meaningful and effective reform of the judiciary, as fully detailed above.

We seek a reform that includes an interactive public forum and tribunal to review all complaints and proceedings against members of the judiciary and other officers of the court, with enforcement capabilities to sanction violations of procedure and law. Such forum must have the power to keep in check instances of judicial excess, as it appears that no system unmoored can effectively police itself. (Absolute power permits corruption absolutely)

We assert that upon such reforms and continuing public review, the judiciary will once again rightly take reign as the shining example to the free world, in its purity of process and loyalty to the Constitution, so that it may carry out its obligations, responsibilities and service to the People.

"A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery..."  -Thomas Jefferson, 1816


[Note: The following points are currently reserved for more detailed analysis within the federal criminal Statement of Grievance] - Gary Treistman
  • Unattainable standards for proving ineffective assistance of counsel (IAC).
  • Unconstitutional standards of evidentiary proof in federal prosecutions, e.g., convictions permitted based upon the sole uncorroborated testimony of a cooperating witness who is being paid for his testimony or being forgiven for his own crimes for said testimony.
  • The false federal jurisdiction over intrastate Conspiracy crimes/acts, and other purely intrastate activities.
  • Unconstitutional delegation of criminal law and/or punishment of legislative powers to the Administrative/Executive Agencies (e.g, controlled substance assignments, illegalization/scheduling, and criminal penalties enacted by the DEA).
  • The Abolition of Private Property in America.
  • The waning practice and concept of innocence before being proven guilty, and the ever-multiplying categories of "innocence" of which  courts are making distinctions (e.g. factual innocence, actual innocence, legal innocence, civil guilt vs. criminal guilt, pretrial innocence rights conditioned upon state of detention/incarceration (e.g. access to courts/legal reference, punishment via detention, impediments to forming/actualizing defense, in forma pauperis rights and court filing requirements). [This last item refers to pretrial detained defendants who are heavily prejudiced against in their Constitutional rights, and that are treated in every practical sense as convicted persons].
  • Habeas Corpus inequities, and standards of review.
  • Reconciliation of criminal defendant's rights with what is demanded by the Constitution (e.g., punitive vs. administrative detention, search warrant standards, coercion to waive trial, penalty for refusing to self-incriminate or affirmatively defending at trial, derivative/enhancement criminal charges, court substituted findings of required jury findings, etc.)
  • Juries should be informed of the applicable law as well as the penalties.
  • Never ending penalties, even after service of sentence (e.g. civil confinement after sentence completion, alien detainees).
  • The need for test/sting cases to be put through the criminal court system to inspect the legitimacy of a given criminal forum, to maintain quality control, and give notice to the court(s) that the case before them may very well be a test to see how well they are performing and adhering to the law.
  • The requirement for the same standards of proof to be imposed for introduced evidences developed from circumstances prior to arrest, i.e. require all law enforcement agents to record the facts justifying or leading up to an arrest before being admissible as probable cause.
About the Author:
Born in 1961 and raised in Manhattan, N.Y., Mr. Treistman moved to the Woodstock area (N.Y.) at the age of ten. Having the ambition of becoming a scientist/engineer, he graduated from high school in 1978 and went on to earn a technical degree at Capitol Radio Engineering Institute, Washington D.C., followed by attending New York Institute of Technology in New York City. He then studied physics, math, and computer courses at Ulster County Community College in Stone Ridge, N.Y., having gained extensive knowledge and skills in all aspects of computer technology and is a Member Electronic Technician Association; Member of Mensa since 1981 and a Microsoft Certified Professional.

Mr. Treistman's legal experiences began in the early 90s when he was arrested for an alleged federal crime. He quickly discovered that it was irrelevant to either the officers or the prosecution as to what he was actually doing or the truth behind their charges. All that counted was that they could make a case against him. He became blind-sided by machinations of both the prosecutor and his own attorney who worked against all efforts to preserve his rights and opportunity to trial. His attorney affirmatively told the judge that he did not seek bail; met with him only twice during the proceedings; sought no discovery; filed only one frivolous motion that tolled his speedy trial rights; and threatened him with 30 years imprisonment if he did not agree to accept 15 years.

After firing his first attorney at a cost of over $10K who had been hired by a relative without his permission, he hired another one that he picked himself. But by then, the improprieties permitted by his first attorney had been too late to correct. The judge had issued a gag order preventing communication between all the parties in the case. This order was never challenged, and Mr. Treistman did not realize the impropriety of this order, nor how to get it rectified; his attorneys did nothing, even upon his questioning of it. The prosecutor falsely represented to his attorney that a codefendant had agreed to lie at trial. Later, going against his own instincts, and only after having been assured by his attorney he would get to trial if he could prove his plea was based on lies from the prosecution, he was tricked into pleading guilty under extreme duress.

After sentencing, Mr. Treistman believed there would be no problem getting justice since he had subsequently discovered all the evidence that his plea was based on lies (it was well documented) and fraud on the court by the prosecution. So he filed a post-conviction motion, fully expecting to regain the trial he was cheated and coerced out of. He soon found out that it made absolutely no difference what fraud was committed to trick him into pleading. The court dismissed the motion without even a comment. That was his introduction to the legal system.

Mr. Treistman then began to research and study the law feverishly, it becoming a new obsession with him. In short order he put in another claim (not waived, not decided). All the time he was subject to this illegal sentence, he had a pending petition. During that time he also assisted others in many types of court proceedings-- some civil, some criminal, all post conviction. He also took a paralegal correspondence course in that time as well. Eventually, one of his running claims was recognized by the Supreme Court as valid all that time, and he was able to remove a count of conviction from his sentence, and it was reduced to half of what it was.

His experience with the courts was truly in the trenches. He filed for himself and other people at least 45 suits, and saw them to completion. Only about 2% resulted in any relief. The courts simply did not follow the mandates of the law as written, and would dismiss virtually all, irrespective of whatever was presented to them. Generally, the only time relief was granted was when the Supreme Court made a recent change in the running interpretation of a given legal fact or rule. It was here that he learned the things one would NEVER learn in law school. After his sentence was completed, he continued to be involved in the law, and assisted pro se individuals in their quest for justice in the courts, usually civil rights cases and habeas corpus, but also some bankruptcy cases, immigration cases and civil torts in the state as well as the federal courts.

When he was commissioned to write a platform plank on the stance of the judiciary, he was originally asked to put something together about 3 or 4 pages long, summarizing the complaint on the state of the judiciary. But once he started writing it, all his pent-up frustrations began to flow, and every nuance of the pro forma injustices that the courts routinely issue came to mind as he had experienced in litigation. As he wrote, he realized that this was actually very privileged information, because one simply does not read about it anywhere. It is not advertised or complained about in any detail. He realized that this was his gift to the People, and his opportunity to reveal the corruption, institutional bias toward expedience over justice, and insidious breach of the courts' public charter.