4 September 1998: Add anonymous message

3 September 1998

Date: Thu, 3 Sep 1998 17:44:23 -0700 (PDT)
From: Greg Broiles <gbroiles@netbox.com>
To: cypherpunks@cyberpass.net
Subject: Jim Bell update

I looked at John Young's page re Jim Bell <http://jya.com/jdbfiles.htm>
and was surprised to see on the docket entry that his appeal has been
heard, and his sentence (including onerous terms of probation) has been

Oral argument was held August 5 in Seattle, before Judges Dorothy Nelson
(the mother of the Judge Nelson who heard the Bernstein appeal), Alex
Kozinski (who corresponded with some cpunks in mid-1996, if I remember
correctly, re a right to anonymity), and William Schwarzer, a Senior US
District Judge from the Northern District of CA sitting by designation.

On August 21, an unsigned (written by Kozinski or his clerks) memorandum
opinion/order affirming the trial court was entered. A printed copy of an
e-mail was stapled to the order in the court's file; it reads:

Author:		Judge Kozinski at ~9CA-PASADENA
Date:		8/19/98	5:51 PM
Priority:	Normal
TO:		Clerk Memoranda at ~9CA-CLERK, Dorothy Nelson
Subject:	United States v. Bell, 97-30384

	I certify that all judges concerned concur in the attached 2-page
memorandum.  Please file it.  Thank you.

cc:	Judge Schwarzer (by fax)

The opinion itself (designated "Not for Publication", which means it's not
of precedential value and should not be cited as a Ninth Circuit opinion
except in Jim's case) reads:

  "	The conditions of Bell's supervised release do not constitute an abuse
  of discretion. Individually and as a whole, they are reasonably related to
  the circumstances of his offense and his characteristics, have deterrent
  value and protect the public. See 18 U.S.C. s. 3583(d)(1)(1994); id;
  § 3553(a). Further, they involve "no greater deprivation of liberty than
  is reasonably necessary." Id. § 3583(d)(2). Bell may engage in several
  otherwise prohibited activities as long as he receives permission. He also
  retains the right to challenge any attempt to revoke his supervised
  release that is based on an unreasonable interpretation of any condition.
  See United States v. Romero, 676 F.2d 406, 407 (9th Cir. 1982).

       The district judge determined that the probation office needed
  Bell's mental health report to structure his release program. While both
  parties object to this, the district judge could reasonably conclude that
  the probation officer -- who would be supervising Bell's release -- needed
  to be aware of his mental condition.


There has also been some confusion/uncertainty about Jim's current status
and location, which I'd hoped to resolve by looking at the district
court's file which has apparently been forwarded to the appellate court
for its review. Unfortunately, the file was not in the clerk's office (and
I suspect it was not in the building at all); the records department told
me that it was in one of the judges' chambers (didn't say which judge),
that they had no idea when it'd be returned to them, if it'd be returned
to them, or if the judge would forward it directly back to the trial

It's shameful that the defense in U.S. v. Bell didn't get the solicitous
treatment and careful analysis from the courts that the defense
has received in Bernstein v. Dept of State.

Greg Broiles

Date: Fri, 4 Sep 1998 11:48:45 +0200 From: Anonymous <nobody@replay.com> Subject: Re: Jim Bell update To: cypherpunks@cyberpass.net On Thu, 3 Sep 1998 17:44:23 -0700 (PDT), Greg Broiles wrote: > I looked at John Young's page re Jim Bell > <http://jya.com/jdbfiles.htm> and was surprised to > see on the docket entry that his appeal has been > heard, and his sentence (including onerous terms of > probation) has been affirmed. > ... > The opinion itself (designated "Not for Publication", > which means it's not of precedential value and should > not be cited as a Ninth Circuit opinion except in > Jim's case)... That's just the _official_ reason for unpublished decisions. There is another, sinister, and relatively unknown reason: to sweep under the rug and keep out of sight a decision tailored to a political defendent that would wreak havoc with the legal system if relied on by anyone else. Typically in this usage, a defendant might raise several issues on appeal, one or more of them substantive, only to have them all ignored except a minor one or two used as examples of why the appeal had no substance. If published, other attorneys in other cases (either defense or government, depending on which side the implications of the decision would favor) would seize on the decision and all hell would break loose. When used thusly, unpublished decisions are one of the grossest abuses perpetrated by the judicial system. The judges reassure themselves that there is no other way -- that some things are just messy, that there is no perfect way to handle them in the humanly flawed legal system. That is utter elitist bullshit. Such decisions are private justice for political prisoners, and the fact that they have to be hidden from view, prevented from appearing in the law books, has nothing to do with their having no precedential value, but precisely because they set precedent that the judiciary dare not let loose in the legal system. This one of the dirty little secrets of the judiciary. Of course, there also are many completely unnoteworthy decisions. The declaration that a decision is not to be published or otherwise relied on in any other case is a practical way to keep the law books, already vast in scope, from becoming enormously cluttered with the large number of decisions that say nothing new. It is possible that the decision on Jim's appeal says nothing new, but reading the decision won't reveal that. The decision would omit mention of any substantive issues by design. The only way to know is to get the appeal as filed into the hands of a qualified appeals attorney who isn't system-brainwashed. It would be even better to also have had someone attend the oral arguments, if indeed any were heard. One of the most sadly amusing things one can see in this life is the dawning realization hitting an experienced, brainwashed, but otherwise honest attorney when he comes face to face with the truth of something like the unpublished decision. It shakes everything he thought he knew, to the very core. Some can face it, and are changed forever. Most cannot, and rationalize it until it is locked away in a dusty corner of their memory, an ugly thing not to be taken out and looked at because of the risk to his sanity. It's very much like one imagines it might be to see someone discovering that space aliens are, indeed here, and are entwined in all aspects of our life and culture. Deep, serious shock. Example of how unpublished decisions are used in political cases: A really troublesome irritant of a defendant comes to trial. The judge allows a conviction secured without the presention of any evidence that the accused committed the crime. He denies the standard defense motion for such cases. The prosecution didn't make a case, but the defendant is too hot a potato to let go, since he will promptly appear on nationwide television and thumb his nose at the government. Again. So he is railroaded, but he and his clueless attorney are quite confident of winning the appeal. After all, no meaningful evidence was presented against him, and the trial judge clearly erred. On appeal, if there are oral arguments, the panel wastes the victim's attorney's precious minutes with trivia to prevent onlookers awaiting their turn at the bar comprehending the scam being perpetrated. Some time later the lower court decision is affirmed, to the shocked disbelief of the appelant and his attorney. When the written decision is issued, often oddly delayed, lost, or otherwise bureaucratically obscured, it mentions none of the issues or only one of the weak arguments made by the appellant, summarily affirms the lower court decision and gets stamped "UNPUBLISHED." All the people who come in contact with it or hear of it automatically dismiss it as being of no consequence, and it never appears in the law books. As a result, other prosecutors do not apply the precedent and do not (in this example) go on a feeding frenzy prosecuting other people without benefit of evidence. The problem case is handled to the government's benefit and no other harm is done to the body of precedent. Very neat. Also very pregnant with opportunities for grave abuse, abuse I have seen take place just as I have described here. Toto