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
affirmed.
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The opinion itself (designated "Not for Publication", which means it's not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.
AFFIRMED."
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
court.
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
gbroiles@netbox.com
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