09/14/2004

    1.) The right to Fundamental Fairness between the citizens of the United States and the Government in all dealings the Government has with its people;
    2.) The right of the people to be free from arbitrary and capricious Government conduct in all matters it conducts with the people;
    3.) The right of the people to be free from all Government conduct that shocks the conscious.

These three rights are the Substantive Due Process rights established by the Founding Fathers in the Constitution's Due Process guarantees of the Fifth Amendment, and are the Cornerstone of any society governed by the Rule of Law. These are self-arising protected liberty interests. 

From these three inalienable rights evolved every Rule of Evidence, every Civil Rule of Procedure, every Criminal Rule of Procedure found at the Local, State or Federal levels of our present Court system. 

These three inalienable rights are the quintessential ingredients of a free people. 

The Constitution of the United States was written to protect the people of the United States from the Government. Unfortunately those protections are being obfuscated by artifice and indirection; diluted at best, ignored at worst, through the use by the sophisticated of layer upon layer of words and definitions purported as clarification, yet in truth designed to place a veil of political correctness and propriety on political power grabbing and injustice, or worse, to impose religious beliefs and values upon those deemed sinners by those in power. 

The law is nothing but a word game. Those who control the definitions of words control how the laws are enforced and to whom they are applied. For instance, numerous laws passed by Congress are written with a built- in exemption excluding both Senators and Congressman from being arrested or subjected to civil action for the breaking of those laws. Judges have Absolute Immunity from being sued for any act they perform that can be construed as being within the scope of their official duties.

Prosecutors have Absolute Immunity from being sued for any action, or inaction, they are involved in if it can be construed as being within the scope of their official duties. Police Officers have Qualified Immunity. Prison guards have Qualified Immunity. These protections even extend to low level civil servants performing "judicial" functions, such as reviewing an administrative appeals filed by you of the denial of a Freedom of Information/Privacy Act request, an error of the government resulting in the loss of your Driver1s License, or a decision by a Children's Services case worker to remove your children from your home, even if those government actions turn out later to have been entirely erroneous. Regardless of the harm you suffered. 

The Rules of Evidence, Rules of Civil Procedure and Rules of Criminal Procedure are rules of Procedural Due Process. Procedural Due Process rules were created and enacted with the intent of creating an orderly process by which your Substantive Due Process rights would be afforded to you in all of your dealings with the government, or between citizens, in our courts of law. 

I cannot stress the importance of understanding that Procedural Due Process rights have no purpose in existing except to ensure the orderly and correct according to you of the inalienable Substantive Due Process rights in all of your dealings with the government. Once that simple concept is understood, the unfairness that arises by how these procedures are being enforced by our courts, and how they allow both the circumvention and abrogating of the people’s right to Substantive Due Process, becomes clear. The platform upon which you must stand when viewing the convoluted, and sometimes unfortunately, intellectually dishonest interpretations applied to the rules governing Procedural Due Process, is that of the rights arising under the Due Process Clause to Substantive Due Process. No other perspective allows you to see what is wrong with our courts today. 

A classic example of this is the Procedural Default Doctrine which is used as an artifice and indirection to deprive United States citizens of their Constitutional rights in Habeas Corpus actions. A United States citizen who is convicted in a State court, under the Procedural Default Doctrine, loses his or her Constitutional Rights to a fair trial, to due process of law, to confrontation of the witnesses against him, to a trial by jury, and in fact, to myriad criminal trial protections specifically set forth in the Bill of Rights, if the attorney the defendant is forced to use during the State appeal process fails to follow extremely technical and intricate requirements for raising those errors in the State courts. 

The Procedural Default Doctrine is a bastard child of the Exhaustion Doctrine wherein the United States Supreme Court decided, solely because the States are considered separate sovereign entities under our Federal Republican form of government, that a U.S. citizen, convicted in a State court, must first give the State a fair opportunity to meet the promises it made when it applied for Statehood, i.e., to comply with the laws, statutes and treaties of the United States. The Exhaustion Doctrine requires a citizen convicted of a crime by a State court to set forth not only any State law errors, based on either State Court Rules or the State Constitution, but also depict and explain both the complete factual basis of the error and the specific legal basis of the error in the form of reference to a specific Constitutional clause, right or protection. Failure to follow that format results in the invocation of a  "Procedural Default" by the United States District Court, and its refusal to review or address that specific Constitutional violation, even one that is blatant and resulted in a trial that was fundamentally unfair. 

The author does not take issue with the reasoning behind the Exhaustion Doctrine. States should have the first opportunity to correct violations of the Constitution appearing in their criminal trial court proceedings. But why should a United States citizen lose the protection of both the United States Constitution and the Federal Judiciary simply because the attorney appointed to represent that citizen on Direct Appeal by the same Judge who presided over that citizens jury trial, fails to meet federal requirements that were instigated solely to give the State a first opportunity to correct their own errors? Why not simply send the case back to the State Courts and allow them that opportunity? Doesn't that seem logical? 

It is and was the logical answer. In fact, for most of the history of the United States prisoners were allowed to return to the State courts and have their non-exhausted issues heard, then return to Federal Court for a ruling by a United States District Judge, who, unlike their State counterparts, are appointed for life and not subject to re-election pressures in close cases. But then the States convinced the Federal Courts that the Procedural Default Doctrine not only encompassed failure to comply with the Exhaustion Doctrine, but with any State procedural requirement, and the race was on. Time limits were imposed on State prisoners, then shortened, and shortened again. Page limitations were imposed on prisoners.

As an example, a man named Joesph Piesciuk was recently convicted of a Pattern of Corrupt Activity, Money Laundering and Theft by Deception in Butler County, Ohio. Altogether there are roughly 35 charged counts in the indictment for which he was sentenced. Two dozen witnesses testified at his trial. His crime? Joe ran the Original Home Improvement Company in Middletown, Ohio. His wife divorced him and stole his computers with all his business records in them in the middle of the night. Some of his sub-contractors failed to complete different jobs. He completes 25 of 35 remodeling jobs he contracted for, then the business goes belly-up. Now here in my cell block, Joe finds out the hundreds of trial exhibits, over two dozen witnesses testimony, and over 2,000 pages of transcripts are required by the Twelfth District Court of Appeal for Butler County, Ohio's Local Rules to be completely discussed, as required by the Exhaustion Doctrine as described above, in a total of twenty (20) double-spaced, 10 pitch typed pages. We have thus far identified at least six (6) separate Assignments of Error that should be raised on appeal. 

Of course that isn't the most difficult part. If Joe must take his case to the Ohio Supreme Court, he is only allowed 15 pages of double-spaced, 10 pitch typed pages. And he is not entitled to an appointed attorney in the Ohio Supreme Court. That Memorandum In Support of Jurisdiction he must do from scratch by himself, and the latest case law out of the United States Court of Appeals for the Sixth Circuit, which governs Ohio, holds Joe may not file it beyond the 45 day time limit allowed by the Ohio Supreme Court, even though the Ohio Supreme Court has a specific Rule for Delayed Appeals in Felony cases. The Sixth Circuit now holds missing that 45 day time limit is another procedural default preventing Joe from being allowed to invoke the United States Constitution as is his right as a citizen. 

Am I the only one who sees something wrong with this picture? What has happened to fundamental fairness between Joe and the Government? If Joe violates the law, he goes to prison. Yet the State violates the law, makes rules impossible for a prisoner to follow, then yells "Procedural Default," in federal court, and the court dismisses Joe's appeal. The State violates the Constitution with impunity, and moves on to do it to the next defendant in the next case. If Joe's attorney does not do her job, Joe loses his fundamental rights as a citizen. If Joe is unable to learn enough about the law, briefing, time limits and the Exhaustion Doctrine before it is time for him to file an appeal to the Ohio Supreme Court, he loses his most basic rights as a citizen of the United States. 

I am coming to a point which should be obvious by now, but which is surprisingly missed by many astute minds. Prior to making that point, as an aside, I wish to say something in Joe's defense. Each of the remodeling jobs for which Joe was charged were from 50% to 80% completed before his company reached the point of being unable to meet its obligations. Case law states that under those facts no "intent to deceive" can be found, since by completing a portion of the jobs the failure to complete the job cannot be assumed to have been intended at the time the contract was entered into. Joe was, in essence, charged with a crime for going bankrupt. The charges were contrived from the deliberate misinterpretation of State statutes never intended to be used for the purpose of indicting a bad businessman. For further enlightenment on how Ohio treats businessmen, please See, State of Ohio v. Steven Coleman, Case No. 2002-CA-17, Second District court of Appeals for Ohio, October 24, 2003.(2003 WL 22429686 (Ohio App. 2 Dist.). 

That aside, the main point of this treatise should stand out to those who have given what I've said some thought. The Procedures that exist only to allow the orderly review of citizens' claims of a violation of their fundamental rights have somehow evolved into a separate set of government rights, which if the citizen fails to follow exactly, can abrogate the very Constitutional rights those Procedures were initially enacted to protect and to provide for an orderly forum in which they could be enforced to protect the citizenry against the government. 

The cart is before the horse, and ran over the horse in the process of getting there. Procedural rights enacted with the announced purpose of ensuring the orderly enforcement of the Bill of Rights against the government, are now the tool by which the government denies those rights to its citizens. 

Now I'm just a dumb old West Virginia country boy, but even I can see what is happening. I hope you can also. One thing that I know would help to bring more public awareness to this problem is for the Alumni at the Universities of this nation to insist on increased courses in the Law Schools regarding Habeas Corpus Laws and litigation. The new attorneys I meet coming out of the law schools can't even spell Habeas Corpus, much less preserve the issues for one in a State Appeals Court. Other than that the only thing I can suggest is serious judicial reform, almost to the point of trashing the whole system and starting over. 

Either that, or accept the fact that the Constitution is dead for indigent criminal defendants, because that is the net affect of the present procedural system. 

Do you know what the most dangerous thing in any prison is? A hillbilly with a law book. :-) 

Until next time this is Jim Love reporting From The Front Line.
September 14th, 2004

James F. Love #329-475
Lebanon Correctional Inst.
P.O. Box 56
Lebanon, Ohio 45036