THE FROG FARM CONSPIRACY
How Texas Criminal Justice Became a Street Gang
Randall D. Kelton
PO Box 1
Boyd, TX 76023
MO: 940. 399.9922
HOW GOOD THINGS GO BAD
If you live in these United States and are accused of crime, you will not get a fair trial. That is not to say you can't get acquitted, just, nothing about the process is fair and just by accident. The public officials we put in place to protect our rights abuse, abridge, and abate them as a matter of course with absolute impunity. You just try to do something about it and see what happens.
This document definitively demonstrates dastardly deeds and outrageous wrongs wrought, not by the worst but the truest of heart from the best of faith. It shows, with 'specificity and particularity' how, in Texas, otherwise well meaning officials regularly and routinely deny us in our sworn protection, basic rights, simple dignity and common civility.
It further shows how, in criminally culpable collusion with an ongoing criminal conspiracy to deprive us all the protection of our constitutions and laws they, and we, have all been coerced into accepting the unacceptable. Even our public officials, acting from behind the threat of the policing powers, while extorting money from us under pretense of criminal procedure, have been seduced as well. They are convinced what appears to be wrong and in violation of clear law is somehow authorized.
What is happening is not law. It only vaguely resembles law but has nothing to do with justice.
It is a conspiracy I tell you, a low down dirty rotten out right sneaking conniving conspiracy. Oh, this is a sorry sordid business.
If you think this sounds a bit outrageous you are right; it is outrageous. If you donít think this is right, you're right again, itís not right, but its how things work in Texas and the States with which its United.
Getting a bit incredulous are we? About this time you are probably considering this the ravings of one of those outrageous radicals who rant in the public ear and rail in righteous indignation about an unidentified 'they' who conspire to enslave us all. And there are those who find demons under every bed and conspiracies behind every motive. Be warned of the broad brush.
Freedom, whatever else, is not free. It commands constant conscientious care and critique. Its enemies are everywhere, from inside as well as out. If we are to be responsible stewards and bequeath freedom intact to our children, we must doggedly demonstrate due diligence. We must be prepared to confront all its enemies, not just the convenient and colorful ones.
There is an enemy out there that needs confronting. Seductive and seditious, it hides in the common and the everyday, wedged between the details. It's not some demonic despot against whom we can rail in indignation, dehumanize beyond all compassion then loose the dogs of war in righteous retribution. This one is filled with guile and subtlety. It prays on our distraction and self-deception.
While the problem is persistent and pervasive, it is not inevitable. While the problem is complex in its manifestation (this document demonstrating it is 69 pages long), the solution is simple. This problem exists from no lack of law. This problem exists simply from failure to follow law. Read the book, do what it says and the problem will simply go away. For all its complex manifestations, it will simply go away.
Our Constitutional Framers and subsequent Legislators put together a comprehensive body of law. Corpus juris, body of law, means it is all one homogeneous whole; it all works together. If you read the Texas Code of Criminal Procedure and Penal Code then examine the current practice of criminal justice, you will, at first, think you have stepped through the looking glass. You will find yourself in a wonderland where nothing is as it seems, where one thing is said and another meant. It affects attorneys; it gets them talking about things like 'legal fiction,' and therein lies the core of the problem.
The problems I present stem from this simple perceptional aberration, the ill-conceived notion our statutory construction is somehow capricious and arbitrary, the Legislators and Constitutional Framers didnít really mean what they said. The solution is, therefore, simple. Go back to the basics. Follow the law as written even if it is not administratively convenient or adjudicatively expedient.
This is not only a good strategy, it is the only strategy as the problem exists not from lack of law, but deference to variance from law.
The first hurdle to overcome is the inherent fear of our own. There is this common notion our police and public officials are to be feared.
"You better watch out. They will get you if you buck the system."
"You can't fight city hall."
"Bla bla, bla; yada, yada, yada."
We have all hear it, many even used it, but it is a dodge. It is simply not true. They will not get you. You don't have to fight city hall, they are your employees and your allies. To assert our public officials are somehow adversaries is simply irresponsible and unacceptable. We, as mature responsible adults, simply cannot allow ourselves to become terrified of the governmental instruments we have created.
Our government is made up of people just like you and me; they are our neighbors, our countrymen and women. For the most part, they go into government service to serve and support us. To then dishonor them by doubting their good faith is adolescent; it is betrayal.
We look to our police and courts to protect us from our own distraction, to keep us focused and careful so we donít wind up a statistic. Our public officials deserve the same protection we ask from them. It was our duty, yours and mine, to demand and insure our public officials stay well within the limits we set for them, but we have failed them in this and our children.
The second hurdle is an illusion, a mental momentum we perpetuate out of our need to believe we are free and protected by our laws. We know things seem unfair, but we assume there is something important we simply donít know. We figure judges, prosecutors, and defense counsel are legal professionals, and they know something we don't that explains the apparent contradictions.
When demonstrated with specifics, how the law is being subverted and perverted by our trusted public officials, people tend to feel threatened and vulnerable, as well they should. They feel helpless to address or alter the practices of the powers that be, as they should not, and they then simply refuse to face the undeniable. It is a common characteristic of the human condition to deny the unacceptable.
What are you talking about? I simply refuse to accept that I am in denial.
How can any true American accept that there is no law, that we are not free from the capricious and arbitrary exercise of power to our detriment? How does one admit that everything is a lie? To accept we are not protected by our Constitution and laws is to accept our vulnerability, and we can't do that.
We all know how things are, but it is an unspoken rule, we donít say it out loud. Consequently, the first response I generally get is,
"No way. There is no way things ca be as bad as you say, after all, we have rights."
We certainly like to think that. We were told that and taught that, but even as children we knew better. While in school, while being indoctrinated into the benefits of the American form of government and our inalienable rights under it, the reality was being demonstrated otherwise. As we were being instructed in the immutable nature of our sovereignty and rights there under, it was made clear; any attempt to claim or exercise those rights would be considered insubordination and swiftly bring the full weight of the system on our heads.
Yes, I have heard all the reasonable rationale from our educators about how a single chink in their authoritarian armor will cascade inevitably into chaos. I understand how treating the children with dignity and respect for their rights would be administratively inconvenient but consider the consequences.
From our children's first experience with government, the difference between the rhetoric and reality is stark. While they have rights somewhere, school is not somewhere. School is world they have to live in. They are compelled by law to rehearse the words and talk the talk, while toeing a totally different line. When these children become adults, how could you expect them to miraculously transform into empowered citizens when any attempt at empowerment for the last twelve years was met with overwhelming retribution?
People donít vote because they feel powerless to affect the system. People donít scream in righteous indignation when wronged by the governmental instruments they empower as they have been indoctrinated into powerlessness.
This is not an indictment of the school systems. I have the utmost respect for our educators and accept them as consumate professionals doing the best they can, given their circumstance. Blaming the schools would be as over simplistic as blaming the public for not policing their police. The problem with the problem is more sophisticated. For all that is wrong, there are no bad guys to blame. Well, there may be one or two, but they are not the problem. The problem is, the good guys, doing the best they know how, have been compromised.
I only mention the schools above and the judges below in order to draw a line from the cause to the outcome of a basic, underlying problem in this country. This background is not intended to imply justification for the Frog Farm Conspiracy I will demonstrate later, but only as a way to demonstrate how something so outrageous can creep up on us. The hardest hurdle I will have to handle is mental momentum. I understand the difficulty of stepping through the looking glass as our concocted reflection or our own expectations and need for a safe protective system is too comfortable to cast aside easily.
Our Constitutional framers and subsequent Legislators laid down a very sophisticated and well-structured body of law. Like any body, when we change parts around, even apparently small and insignificant ones, consequences inevitably evolve we never contemplated.
Therefore, it is short sighted and irresponsible to blame individuals when a problem is pervasive across a system. This is not a problem with individuals. It is a problem with ideals, expediency, and focus. We naturally tend to focus on immediate concerns, bend toward expediency, and often lose sight of basic guiding principals.
When we betray basic principals, problems radiate out, often with no clear and obvious connection. When problems accrue across a system, you must always look to the basics and the legal system is no exception. Judicial integrity is decaying across the board, from the top to the bottom so, where do we look for answers?
Our Capricious Courts
The ultimate and most basic problem with our legal system stems from the Supreme Court. We can point back to 1872 when the Justices ruled on a matter directly affecting their individual financial liability. In an asserted effort to protect the honor and sanctity of the courts, they created a condition insuring the opposite. They ruled the Legislature did not mean exactly what it clearly stated when it intended to make judges subject to civil suit for acts in violation of a citizens rights from the bench and rendered themselves above and beyond rule of law.
Consequently, in this country, the only ones who trust the courts have never been before them. We know Judges are essentially above the law. They can do whatever they please and there is little or nothing you can do about it. When you or I stand before a Judge we are bound to the letter of law. If we have counsel s/he is similarly bound to law and the appropriate bar association standards, and we are both bound to the caprice of the judge. The judges, in their turn are bound to nothing but their individual personal passions and convictions or lack thereof.
What reasonable person of ordinary prudence would consider such a circumstance anything but inherently unfair? In such a situation, a fair trial is simply not possible. That is not to say you can't prevail in court; one party or the other inevitably does; only that nothing about the process is fair.
Attorneys spend 6 years in school coming out ready to change the world only to find the holy grail of rights and freedom was all smoke and mirrors. They quickly find, in the real world, rule of law has been supplanted by judicial personalities. All that matters is rather or not you appeal to the personal passions of the judge you are before. If an attorney can't sufficiently coddle and conjole the judge, they will never get to anything even resembling law and a successful career before the bar simply will not happen.
How we got from where we were intended to where we are is a classic example of the best of intentions.
During the reconstruction of the nation after the Civil War, the governmental structures in the south were left in place. The police, judges, mayors and other officials needed to maintain order and civil administration were retained but under direction of the North. The Yankee interference, however, was much detested and mostly disregarded. It was difficult to ensure compliance at a local level and appeals to the courts for justice went unheeded, so the Congress enacted legislation that would, first, make a public official subject to civil suit for violating a citizens rights and second, make it a criminal act.
On January 29, 1866, Senator Trumbull took the floor to describe S. 61 to his colleagues. Trumbull indicated that "the first section will amount to nothing more than the declaration in the Constitution itself unless we have the machinery to carry it into effect." Id., at 475. The Senator then alluded to the second section of the bill which provided:
In the Legislative hearings, it was made clear:
That any person who under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, . . . or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court." Ibid.
This ultimately became the Ku Klux Klan Act of 1871 and was eventually codified into Federal law as 42USC1983 and 18USC242. 43USC1983 states:
18 USC 1983. - Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia
This would make every public official subject to civil suit if they violated a citizenís rights.
18USC242 made the above a criminal act.
Sec. 242. - Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death
Judges considered this a direct threat to their autonomy and potential personal liability. They knew full well this would require them to act within the limits of law or suffer consequences.
This is how the Court dealt with it.
"Title 42 U.S.C. s 1983 is written in broad terms. It purports to subject "[e]very person: acting under color of state law to liability for depriving any other person in the unite States of "rights, privileges, or immunities secured by the Constitution and law." The Court has consistently recognized, however, that s 1983 was not meant "to abolish wholesale all common-law immunities."
"As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, supra, at 347.For that reason the Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 13 Wall., at 351. Later we held that this doctrine of judicial immunity was applicable in suits under ß 1 of the Civil Rights Act of 1871, 42 U.S.C. ß 1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle. " Pierson v. Ray, 386 U.S. 547 (1967).
Nonsense, of course the Legislative debates gave indication it intended this to apply to the courts. It is clear the bill was specifically intended to create a new remedy that would protect citizens from the improper rulings of judges.
Representative Wilson of Iowa, Chairman of the House Judiciary Committee, introduced S. 61 in the House on March 1, 1866. Of 1 of the bill, he said:
"Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment of civil rights and immunities merely affirms existing law. We are following the Constitution. . . . It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen." Id., at 1117.
That the Legislature meant to abolish the prior common law protecting recalcitrant judges was made even clearer when President Johnson vetoed the bill claiming it would allow Legislators to be sued:
Trumbull took issue with both statements. As to the charge that 2 would result in the criminal prosecution of state legislators, Trumbull replied
"Who is to be punished? Is the law to be punished? Are the men who make the law to be punished? Is that the language of the bill? Not at all. If any person, 'under color of any law,' shall subject another to the deprivation of a right to which he is entitled, he is to be punished. Who? The person who, under the color of the law, does the act, not the men who made the law. In some communities in the South a custom prevails by which different punishment is inflicted upon the blacks from that meted out to whites for the same offense. Does this section propose to punish the community where the custom prevails? Or is it to punish the person who, under color of the custom, deprives the party of his right? It is a manifest perversion of the meaning of the section to assert anything else." Id., at 1758.
To assert that this act was meant other than to punish judges is a "manifest perversion fo the meaning of the section." As to the nonsense about creating a new remedy, they were very cognizant that was exactly what they were doing.
Representative Shellabarger added that 1 provided a civil remedy "on the same state of facts" as 2 of the Civil Rights Act of 1866. Ibid. Obviously Representative Shellabarger's introduction of 1 of the bill to his colleagues would have been altogether different if he had been of the view that the 39th Congress, of which he had been a Member, had already created a broader federal damages remedy against state actors in 1866. The view that 1 of the 1871 Act was an amendment of or supplement to the 1866 Act designed to create a new civil remedy against state actors was echoed throughout the debates in the House. See id., at 461 (Rep. Coburn); id., at App. 312-313 (Rep. Burchard). Opponents of 1 operated on this same understanding. See id., at 429 (Rep. McHenry) ("The first section of the bill is intended as an amendment of the civil rights act"); id., at 365 (Rep. Arthur).
Both proponents and opponents in the House viewed 1 as working an expansion of federal jurisdiction. Supporters continually referred to the failure of the state courts to enforce federal law designed for the protection of the freedman, and saw 1 as remedying this situation by interposing the federal courts between the State and citizens of the United States. See id., at 376 (Rep. Lowe) ("The case has arisen . . . when the Federal Government must resort to its own agencies to carry its own authority into execution. Hence this bill throws open the doors of the United States courts to those whose rights under the Constitution are denied or impaired"). Opponents recognized the expansion of original jurisdiction and railed against it on policy and constitutional grounds. See id., at 429 (Rep. McHenry) ("The first section of the bill . . . vests in the Federal courts jurisdiction to determine the individual rights of citizens of the same State; a jurisdiction which of right belongs only to the State tribunals"); id., at App. 50 (Rep. Kerr); id., at 365-366 (Rep. Authur); id., at 373 (Rep. Archer). JETT v. DALLAS INDEPENDENT SCHOOL DISTRICT 1989
This is so blatant it cannot be construed these experienced learned men were somehow ignorant of exactly what they were doing. This act was in clear defiance of the clear intent of the law.
A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary common meaning. rns v. Alcala, 420 U.S. 575, 580-581 (1975). See Perrin v State (1979).
What worse betrayal can a people suffer than that of the most revered and trusted. How great the wrong is was stipulated by an earlier court, back in 1821.
It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)
H.G. Wells, in his outline of history, while speaking to the corruption of the Popes during the dark ages, aptly observed:
"The giver of the law most owes the law allegiance. He of all beings should behave as if the law compels him. But, it is the universal failing of mankind that what we are given to administer we promptly presume we own,"
No reasonable person of ordinary prudence can study this decision and not be dismayed at the audacity. The courts have ruled a police officer on the street, making decisions in the heat of the moment even at the point of a gun, can be subject to suit. In their wisdom they required a heightened pleading standard but left police at risk as they felt it necessary to prevent abuse. But, when it came to the acts of themselves, taken at their leisure, after careful contemplation in possession of all the facts, ruled the public had no similar right to protection.
At best this is outrageous, at worst, Seditious Conspiracy.
|TITLE 18 > PART I > CHAPTER 115 > Sec. 2384.|
Sec. 2384. - Seditious conspiracy
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both
By this breach of the public trust, the clearly stated letter of law, and the body of their own decisions they created a situation whereby every person within the jurisdiction of any American Court must necessarily be denied the equal protection of the laws guaranteed by the Constitution.
So, when the highest court, the remedy of last resort so abuses the rule of law to their own personal benefit as to shock the conscious of any reasonable neutral observer, what recourse remains?
I suggest two. The first is a matter of jurisdiction. The Justices who made these rulings had a personal stake in the outcome of their rulings and this points to a well-established remedy.
As we held in Aetna life Ins. Co. v. Lavoie, 475 U.S. 813 (1986), this concern has constitutional dimensions. In that case we wrote:
"We conclude that Justice Embry's participation in this case violated appellant's due process rights as explicated in Tumey, Murchison, and Ward. We make clear that we are not required to decide whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama '"would offer a possible temptation to the average [judge] . . . [to] lead him not to hold the balance nice, clear and true."' The Due Process Clause 'may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, "justice must satisfy the appearance of justice."'" Id., at 825
The Court would have it that "when all are disqualified, none are disqualified." They would have us accept that judges may make decisions affecting judges with impunity. I suggest, when a matter affects all judges must either follow the strict letter of the law or defer to the Legislature for direction. But to say, if none of us should rule on a subject, it is perfectly fine for any of us to rule is utter nonsense.
This matter involved much more than the appearance of bias; it involved a situation where the Justices stood to be personally liable in their individual capacities if they violated a personís rights under color of their authority. So long as the court stayed within the limits of law they were at no risk, so what was the problem?
One meaning of "impartiality" in the judicial context -- and of course its root meaning -- is the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster's New International Dictionary 1247 (2d ed. 1950) (defining "impartial" as "[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just"). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U. S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) Republican Party of Minnesota v. White, 122 S.Ct. 2528, 153 L.Ed.2d 694 (U.S. 06/27/2002)
Failing disqualification of the Justices, we might consider the potential criminal aspect of their actions. By denying every citizen in the United States in their right to a fair trial, how do the Justices avoid culpability under criminal law?
Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)
While they provided themselves immunity from civil litigation, I find nothing absolving them of criminal responsibility. They didnít have the audacity to go quite that far. However, what they couldn't do directly, they did on the sly. In order to protect themselves from criminal prosecution they extended immunity to those individuals who could potentially prosecute them, prosecutors.
There was a time when a citizen could pursue prosecution of a judge or other lawbreaker as a private prosecutor. That made for a very effective check to the balance of judicial power, but no longer. The right of the citizen to police our police has been usurped. Contrary to the rule of law, complaints against public officials are always sent to prosecutors instead of the Grand Jury as specifically commanded by law.
In the case of federal prosecutors, the courts have given them the authority to usurp the Judiciary and make judicial decisions concerning the sufficiency of allegations. They have given federal prosecutors the authority to dismiss prosecutions. Since Federal Prosecutors are members of the Executive Branch of government, this works an outrageous violation of the separation of powers and virtually insures no judge will be prosecuted for criminal acts unless the President finds it politically expedient.
If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason.
By creating an immunity specifically denied by clear legislation and granting judicial powers to prosecutors, the Supreme Court has acted well beyond any jurisdiction, but what is to be done when the highest court in our land stoops to the lowest of levels.
In the current climate, when a judge acts in violation of law and denies a citizen in one of his/her rights there is nothing a citizen can do about it? When those put in place to enforce law become the violators, who is left to raise a red flag?
In such a situation, no lawyer in his/her right professional mind would do anything to incur the ire of any judge or prosecutor, not if s/he ever wants to win another case. So donít expect your defense counsel to raise much ruckus. And the Legislature will tell you real quick they just make the laws, they have nothing to do with enforcement besides, Legislators are as frightened of Judges as anyone else.
Maybe the FBI or Federal Prosecutors could be counted on to protect our rights. Not in this life. They are members of the Executive branch of government. They work for the President who appoints the Federal Judges. As must be clear to even a casual observer, those aspects of law enforcement who work for the Presidents of this country are little more than political arms if the incumbent administrations. You can't expect them to do anything that is not politically expedient in the short term.
When the only Constitutional Court in the land abolishes the Constitution at its whim, who would risk raising a threatening issue?
American Legal System Is Corrupt Beyond Recognition
...Judge Tells Harvard Law School
By Geraldine Hawkins
The American legal system has been corrupted almost beyond recognition, Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, told the Federalist Society of Harvard Law School on February 28.
She said that the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism.
Reading the Court's reasoning they present a logical case, but remember,
"Logic is not truth; it merely has the ring of truth and, therefore, is the first refuge of the scoundrel."
In this case the logic is specious (based on false premise) at best and the reasoning without foundation.
If you want the real reason for their betrayal look to Imbler v Patchman:
"it is better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." Imbler v Patchman 424 U.S. 409 @ 428.
It seems the Court totally missed the point. The dread of consequences of criminal behavior on the bench to which they speak was exactly the legislative point. The only reason they would have for dread is a culpable violation of law and it was the intent of our Legislators to instill just such a dread in the courts.
How could honorable judges have a problem with that?
In a decision relevant to legislation that was only two years old, if the Justices had any interest in the intent of the Legislature, asking them if they really meant "every" when they said, "every person," would have sufficed.
Since the court's job is to interpret the intent of the Legislature, a few statements of intent from the Legislature when passing laws would do a world of good.
As it is, the Supreme Court gave the appearance their judgement was clouded by personal interest and instead of heightened standards, they opted for no standards.
Now we have courts without honor that no one trusts or respects. We have a truly capricious courts before whom citizens and attorneys alike must bow and scrape if they expect to win cases. Just ask any attorney if a Judge will screw their clients in retaliation for any slight or annoyance.
When I ask attorneys to take cases wherein I have made criminal allegations against judges and other public officials, they all tell me the same thing:
"Are you out of your mind? I can't take your case. I have to represent clients in this county."
The Supreme Court, in rendering that horrendous ruling, stated there were other avenues of redress. From the record it appears they were referring to higher courts of appeal. They can't be serious. Could they really consider one capricious court as a remedy for another?
Surely they weren't referring to the fallacy of the ballot box. Federal judges aren't elected and local Judges are protected by an incredible ring of secrecy. Complaints against Judges are secret and Judges aren't allowed to point out the poor record of other judges when running against them.
This brings us to the Bar. With truly capricious courts, who have set themselves outside the law, what protection do we as citizens have?
Well, there is always the Bar. We have attorneys whose duty it is to protect our rights, regardless of what the judges think or prefer. It is the duty of our attorney to vigorously represent us and insure all our rights are scrupulously guarded. But, what is an attorney to do? If s/he raises a red flag and tries to take the courts to task, s/he will be committing professional suicide.
The Bar Association is supposedly there to hold all attorneys (judges, prosecutors, and defense counsel) to the highest standards of professional ethics; to insure all act with honor and integrity. So what happened? You can find the answer in any book of lawyer jokes? Consider, what other profession inspires such universal distrust and derision?
Electricians, plumbers, doctors, engineers, stockbrokers and most every other profession is held to high standards of professional ethics by governmental agencies set up for purpose of regulating them. You donít see books of doctor jokes or electrician jokes. Outside oversight is a tried and true method of maintaining a relatively high degree of professionalism in an industry. So, my question is, why not the Bar?
The Bar, unlike every other licensed professional oversight organization, is regulated by itself. The very profession we depend on to protect us we denied the protection of outside oversight. What attorney is going to be impartial when critiquing a crony? Who is going to risk strict adherence when they could wind up on the other end of their stern decisions?
In such a circumstance, what else could you expect? Do you really expect an association of attorneys to police itself, especially when they face member judges who can ruin any one of them at the drop of a hat?
The Frog Farm Conspiracy below demonstrates how most every step from arrest to trial, as presently practiced by the Criminal Justice System in Texas is not only wrong, but very specifically against particular law. Not only is most every step at variance to law, it is at variance toward very specific purpose, set up and maintained by our esteemed members of the Bar.
Judges, prosecutors, and defense counsel all benefit from the practices. High ethical and moral standards would only cost them money, so who is there to step up and (if you will excuse the pun) risk their career by raising the bar? If not for the Bar this would never be. But for the Bar with its peer cooperation and collaboration, we would still live in a land of law governed with honor and dignity. But for the Bar, lawyers and courts would still be held in the high esteem our Constitutional Framers enjoyed and intended to preserve.
THE PROBLEM WITH THE PROBLEM
I realize this may sound as though I have some axe to grind or personal a vendetta. If that were all, this would be much easier; but such is not the case. The problem with this problem is there is no apparent demonic inspired malignant calculus at which to point the indignant finger of righteous condemnation.
Once the Supreme Court, by their injudicious act toward self preservation managed to crack our judicial egg, a bad outcome was inevitable. The Legislature, in its turn drove a defining wedge while acting in apparent best of faith toward the noblest of intents, which virtually assured the system would decay to just the circumstance we now experience.
The Legislature, in its wisdom, opted for the expedient of exploiting learned counsel already in public employ and directed prosecutors to provide legal advice to the police and lower courts. On cursory consideration this appeared an efficient allocation of resources even though it violated a basic principal of law.
Texas Disciplinary Rules of Professional Conduct
I CLIENT-LAWYER RELATIONSHIP
2. A fundamental principle recognized by paragraph (a) is that a lawyer may not represent opposing parties in litigation. The term opposing parties as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless that clients fully informed consent is obtained and unless the lawyer reasonably believes that the lawyers representation will be reasonably protective of that clients interests. Paragraphs (b) and (c) express that general concept.
In the real world, the prosecutor is necessarily compromise when advising the police and lower courts on matters before which s/he will represent the State. One would expect a harried and overworked prosecutor to render advice that would tend to serve the professional agenda and prosecutorial purpose and that is exactly what has happened.
13 Am Jru Proof of Facts 3d, 21
"Without having been directly authorized, tacitly encouraged, or even inadequately trained, police officers, like other public employees, may fall into patterns of unconstitutional conduct. This can result from a variety of factors not sufficiently traceable in origin to any fault of "municipal policy" in the Monell sense (Monell v Dept. of Social Services (1978) 436 US 658, and Soell v McDaniel (1987 CA4 NC) 824 F2d 1380). If these unconstitutional practices become sufficiently widespread, however, they may assume the quality of "custom or usage" which has the force of lawÖ"
Each impropriety I will indicate, when given cursory consideration in isolation, appear only minor adjustments toward administrative convenience and adjudicative expediency. If that were all it were this would be much more simple.
Unfortunately, when considered in concert, they point to something much more insidious, something downright seditious. It points to a set of practices and procedures designed and intended to put a person accused of crime in a position such that s/he has no viable alternative to taking a perfectly reasonable sounding deal. Guilt or innocence is simply not a relevant issue in the current system.
In spite of the rightous rhetoric and clear directive to prosecutors contained in Article 2.01 Code of Criminal Procedure which states:
Art. 2.01. Duties of district attorneys.
Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
prosecutors routinely ignore the specific mandate of law and deny citizens in their rights as a matter of course. They also direct the police and lower courts toward complicit cooperation in the subversion of well-established principals of the due course of the laws.
When questioned, most will readily admit things appear different than the written statutory mandates but they assure me this is the way things are done and have been done. When I cite specific statute, they start talking about "legal fiction," with the implicit presumption what it says is not really what it means. Besides, this is how they have been doing it; how they have been trained and directed to do it; and how they are going to continue to do it.
About this time their eyes start darting from side to side as if looking for a rational way out. High School all over again; the book says one thing while reality demonstrates another. When you see this same discomfort over and over it becomes clear, we are putting otherwise well-intended officials in a position to where they have to defend a system they know is unjust. We thereby, deprive them of their dignity, their honor, and their will to do the right thing and this is unacceptable.
On the other hand, while we put our public officials in a rather untenable position, at the end of the day, the individual must make a decision. They can either do what they know is right and the law commands risking retribution from their superiors, or go along to get along and in the process, become criminals themselves in the worst kind of betrayal of personal and public trust.
We cannot assume any of the officials I will indicate to be ignorant of the laws controlling their official duties.
Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship. Or a local official continues to select juries in a manner which flies in the teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute? He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law. He who defies a [*105] decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. Of course, willful conduct cannot make definite that which is undefined. But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment. When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. When they are convicted for so acting, they are not punished for violating an unknowable something. Screws v US 325 U.S. 91 1945
So, when I demonstrate how prosecutors, police, and court officials are acting in particular violation of specific law, it must be assumed they act with culpable intent and full knowledge of the nature of their behavior.
In all of this, everything revolves around the prosecutor. Law students pass the bar into a professional field ready to change the world, only to be faced with the reality of life before the bar. In the real world, just adjudication is not the standard by which success is measured; winning cases is.
While prosecutors may intently care about justice, they are faced with cases they have to win. From a professional perspective, while guilt or innocence may be a consideration, it not a criteria. Article 2.01 Texas Code of Criminal Procedure not withstanding, prosecutors donít get re-elected by seeking justice; they get re-elected by getting convictions and collecting money for the State.
Please forgive the length of this introduction, but the problem is complex, made more so because of an apparent lack of malicious intent. The lengthy introduction was necessary to put in perspective the horrendous wrongs and dastardly deeds demonstrated below perpetrated by otherwise well-meaning public officials.
It is my intent to indict the system, not personalities. Unfortunately the only path to the problem is though the people who populate and perpetrate it. That they have been put in a difficult position is certainly a concern, but cannot become a criteria. Failure to act from concern for personalities only serves to perpetuate the problem. Instead of taking our public officials to legal task at the first infraction, we were compassionate and understanding, winking at first one incursion onto hallowed constitutional grounds then another until the system became so distorted, it would no longer be recognizable to our founders. They would roll over in their graves.
THE FROG FARM CONSPIRACY
I call what follows The Frog Farm Conspiracy in consideration of Samuel Clemens who once said:
"You can throw a frog in a pot of hot water and it will jump out. But if you put that same frog in a pot of cold water and gradually raise the heat, it will sit there until it scalds to death."
Texas is a frog farm and we are all the beneficiaries. Over a period of years, prosecutors, advising the police and lower courts have directed them in practices and procedures, one adding to the other in a slow progression of transgression until the system no longer resembles anything originally envisioned.
Defense counsel knows full well things are not according to Vernon's, but what are they to do. As it is, if an attorney appointed to represent an indigent client puts on a vigorous defense, s/he will be paid about $350(varies by jurisdiction). If s/he gets the client to take a deal s/he gets paid, you guessed it, about $350. That is how it works in the real world they practice in. How could you expect any attorney in his/her right professional mind to take money out of his/her pocket and in the process incur the wrath of judges and prosecutors?
When a person is accused of crime, the charging officer will either write out a ticket or swear out a complaint along with a statement of probable cause. For the purpose of this discussion, I will deal with those times when a person is arrested, as it covers elements not covered when a complaint is simply presented by an officer.
When an officer arrests a person, Article 14.06 Code of Criminal Procedure directs the officer to take the person arrested directly to the nearest magistrate:
Art. 14.06. Must take offender before magistrate.
The Supreme Court has held a police officer has the authority and duty to arrest a person when that person commits a crime in the officerís sight or hearing, or if the officer has knowledge of a warrant for the personís arrest. They have further held that while the officer has the authority to arrest, s/he has no authority to imprison.
Harris v Steele, 64 NE 875,
But the power of detaining the person so arrested, or restraining him of his liberty, in such a case is not a matter within the discretion of the officer making the arrest. He cannot legally hold the person arrested in custody for a longer period of time than is reasonably necessary under all of the circumstances of the case, to obtain a proper warrant or order for his further detention from some tribunal or officer authorized under the law to issue such a warrant or order. If the person arrested is detained or held by the officer for a longer period of time than is required, under the circumstances without such warrant authority, he will have a cause of action for false imprisonment against the officer and all others by whom he has been unlawfully detained or held."
The police and prosecutors are quick to point out, the Courts have ruled a 24 or even 48 hour delay in bringing before a magistrate is not necessarily an unreasonable delay. What they ignore is the Ďnecessarilyí part. The courts made it clear there shall be no set time limit and any delay must be justified by a showing of due diligence in an effort to locate a magistrate.
As a case illustration, consider Hall v State, 52 NE2d 370:
At the time of plaintiffís arrest, there was a duly qualified and acting justice of the peace in the town where she was arrested. The town marshall nonetheless transported the plaintiff 25 miles to the county seat, where she was imprisoned in the county jail for 30 minutes before release. In affirming a jury verdict for the plaintiff in her action for assault and battery, and false imprisonment, the court held that, in light of the presence of a justice of the peace in the town where she was arrested, her transportation and incarceration in jail in another town were not necessary.
An officer's only defense against an allegation of false imprisonment is a showing of due diligence in an effort to locate a magistrate.
"Although the failure to take the plaintiff before a magistrate would have been excused if good grounds had existed for the belief that a magistrate was not available, such was not the case since the defendant officers made no attempt to determine whether the magistrate was or would make himself available."
Prosecutors routinely advise police to arrest and imprison without concern for a magistrate. They make the argument that a magistrate has scheduled times when s/he does examinations, but while that is true, it does not square with the clear interpretation of the Constitutional considerations involved and our public officials are bound by Screws v State, 325 U.S. 91 to know that.
But the general rule was stated in Ellis v. United States, 206 U.S. 246, 257, as follows: "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent." And see Horning v. District of Columbia, 254 U.S. 135, 137; Nash v. United States, 229 U.S. 373, 377.
If you talk to the police or prosecutor about this process, you will hear the term, "magistration." My spell checker just put a red line under that one. For some reason it doesnít recognize the spelling; well join the club. My spell checker doesnít recognize it as prosecutors made it up. What they do at the morning magistration is a corrupted combination of acts cloaked in the color of law but are in fact, a carefully crafted conspiratorial concoction intended to serve the prosecutorial purpose. It denies due process to the accused and reduces the magistrate from the position of honor as a neutral judge of the sufficiency of facts and protector of the citizenís rights to nothing more than a rubberstamp member of the prosecutorial team helping the prosecutor perfect his/her case and "the deal."
It is pretty sharp, but sharp practice, no matter how carefully couched in fluff and bluster is still criminal when it wreaks havoc on the due course of the laws at the expense of the police, the magistrates, and the public.
I canít overemphasize how important a proper examination hearing is. Our founders did not want the public to fear police. They envisioned a trust and cooperation between the police and the public who empower and employ them. To ensure this, they put magistrates, elected from the local community, in place to stand squarely between the police officer and the jailhouse door. It was the neutral magistrate who was to decide if a person arrested was to answer for crime or be set to his liberty, not the arresting officer and certainly not a prosecuting attorney.
This was not because our founders didnít trust our police. It was about posture. If the public have the perception a police officer can arrest at his whim and toss anyone in jail, they become a threat. You will feel subject to the individual personal passions of the officer, consequently responding to police with hostility and distrust, and that was never intended. It was intended, if an officer arrest you for any reason, with our without a warrant, s/he was to take you directly to the nearest magistrate and explain him/herself.
Prosecutors found this administratively inconvenient, as will become clear shortly, and advised the police to ignore 14.06 Code of Criminal Procedure as well as the Supreme Court and toss the arrested person in jail, usually overnight. It would appear this was for the administrative convenience of the magistrate, but such is not the case. Magistrates I have talked to assured me, they have no problem doing their jobs. They complain that police simply do not bring persons arrested to them. They fail to do this as a matter of policy on advice of prosecutors.
The police, for their part, have no problem with taking people they arrest directly to the nearest magistrate. Most recognize the demoralizing effect current practice has on the public and how it undermines trust. But, the State has trained and directed them otherwise.
So, why would a proper examination hearing be a problem for a prosecutor?
There are two problems: first: the magistrate may actually determine there is not sufficient evidence to bind the individual over for trial and set the accused at their liberty, in which case the prosecutor will have no opportunity to work "the deal." At the end of the day, the prosecutor is not so interested in guilt or innocence as convictions culminating in dollar flow for the state.
Second: if the magistrate holds a proper examination hearing, s/he will have to send a copy of the complaint to the court of jurisdiction, and that would never do it would start the speedy trial clock.
Art. 32.01.    Defendant in Custody and No Indictment Presented
When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.
When a magistrate issues authority to bind a person over for trial, the citizen is restricted at their liberty, and therefore, a prosecution commences at that point in time starting the speedy trial clock and the prosecutor does not want this to happen.
If the compliant were sent to the protection of the clerk of the court of jurisdiction and the speedy trial therefore started, the prosecutor would not have sufficient time to work "the deal." So, rather cognizant of that purpose or just from the constant pressure of time, and ill-considered reliance on past practice, prosecutors have advised the magistrates to take some extraordinarily improper steps.
What justice and law requires is not difficult to understand. The courts directed the arresting officer to take the person arrested before the nearest magistrate so the judge could hold an examination into the sufficiency of the claim against the accused. Often, in the heat of a moment, just and honest professional police officers can miss details or even miss-interpret what they see or hear.
The liberty of a free citizen was taken very serious by our founders and did not intend it to be breached lightly, so they put a magistrate in place to measure all the evidence and weigh with an equal hand, both sides.
By directing officers to ignore the necessity of an immediate examination, prosecutors put police at jepordy of civil and even criminal prosecution.
Leger v Warren 57 NE 506 states:
"To afford protection to the officer or person making the arrest, the authority must be strictly pursued; and no unreasonable delay in procuring a proper warrant for the prisonerís detention can be excused or tolerated. Any other rule would leave the power open to great abuse and oppression."
That the arrest having been made without a warrant, it was necessary that the proper steps should be taken to prevent the further detention of the prisoner from becoming unlawful, for unless those steps were taken, all legal protection for such arrest ceased, and the arresting officers became wrongdoers from the beginning, liable, as such, equally with those by whom the unlawful imprisonment was continued; that if the arresting officers chose to relay on some other person to perform that required duty, they took upon themselves the risk of it being performed, and unless it was done in a proper time, their liability to the person imprisoned was not lessened or affected;Ö
It cannot be presumed police are ignorant and fail to recognize the injustice they are directed to perform. How could you expect an officer to act with honor and dignity when it is stripped by others to serve a separate agenda.
If that were all there were it would be bas enough, but these practices subject the officer to potential allegations of false imprisonment, which is a crime in the State of Texas. Granted, the officer can be prosecuted subject to another conspiracy by prosecutors I will demonstrate, however, it is still a crime and police canít help but know and be dishonored by it.
Not only do police become criminals, they also become subject to civil litigation. Most officers think they have immunity, but consequent to an improper act by the magistrate in concert and collusion with the jailer and prosecutor, all are stripped of any immunity they may have had, leaving the officer on the street subject to civil litigation for every arrest s/he makes or has made.
As is practiced, the magistrate accepts evidence against a citizen from, the arresting officer. The rules of evidence apply to examination hearings and when the magistrate takes evidence all sorts of rights and rules apply. Well, in theory anyway.
As the citizen must, by Constitution, be presumed to innocent and an arrest without a warrant to be improper, the burden is on the arresting officer to present sufficient unimpeachable evidence to overcome that presumption before a person can be further restricted in their liberty. This raises a problem for prosecutors working "the deal." When evidence is presented in court against a citizen it triggers certain rights by Constitution which include:
In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (Amended Nov. 5, 1918.)
as, before the magistrate can make a determination of probable cause, there must be an examination into the sufficiency of the allegation.
Art. 2.11.    Examining court
When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court.
An examination hearing is governed by Chapter 16 Code of Criminal Procedure.
That is what the law and courts have said, but in the real world, the magistrate has been trained to completely ignore all that stuff you read about in the Constitution and law of Texas and accept whatever a police officer alleges without question. If all that were to happen, the prosecutor, or an assistant would have to be present at the hearing and that would be so inconvenient.
The first specious argument that comes to mind is: prosecutors are busy and simply donít have time to be at every examination hearing. The problem is, the Constitution and laws demand it and if prosecutors and magistrates deny it, they run foul of the laws they are sworn and bound to.
Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, 245 U.S. 60 (1917); Cooper v. Aaron, 358 U.S. 1 (1958); Watson v. City of Memphis, 373 U.S. 526 (1963). As quoted from PALMER ET AL. v. THOMPSON, MAYOR OF THE CITY OF JACKSON ET AL. 403 U.S. 217, 91 S. Ct. 1940, 29 L. Ed. 2d 438
We could argue that other States provide just such representation, but convenience is not the motivation here.
An examination can be held with only the magistrate, the arresting officer and the accused if the accused trusts the magistrate and waives the right to have counsel present. In this system that doesnít happen as Judges canít be trusted or rather they can be trusted to act in accordance with their training and deny you in all your rights, so no person in his right legal mind would waive anything to these courts.
Other States have special assistant prosecutors appointed for the purpose of the examination hearing to assure all due process rights are observed. They also have counsel appointed for the specific purpose of representing the accused for the examination hearing. Remember the comedy show Night Court? While a comedy, it was dead on the Constitution.
It is not that prosecutors donít want to be at the hearing, it is about "the deal." Prosecutors donít care if you are guilty or innocent. Yes, I have read all the high minded rhetoric, but in the real world, prosecutors care about conviction rate; they care about negotiating a deal in lieu of a lengthy court case. They, therefore, direct police to put a person arrested in jail in order to soften them up. They direct magistrates to forgo their duty in order to demonstrate the power of the prosecutor and the helplessness of the citizen before the system so they will be inclined to take "the deal," when offered.
There are those who are habitual criminals and know the ropes. They know they can work the system and get a good deal. But, for the most of us, we never have any experience with the law except in minor matters, mostly traffic. If one of us gets arrested, we expect to be treated as if we are innocent until the courts have determined otherwise. With this expectation, we are quick to assert our rights and expect them to be honored. The first thing the prosecutor wants to do is quash that notion. They want our dignity taken away; they want us in that orange jail uniform after spending a night on the drunk-tank floor having been treated like all the other rabble before we are marched in undignified fashion before the magistrate, deep inside the jail.
You see, the prosecutor knows what we are thinking,
"When the Judge hears my side, s/he will let me go and rebuke that no good arresting officer."
The Judge will do part of an examination hearing. S/he will take a written statement from the arresting officer into evidence. The problem is, the magistrate will do this ex parte, outside a proper hearing where the accused has no opportunity to object or challenge the evidence presented against him/her.
The evidence presented is usually always in written form as the officer, if present, is not brought before the court in this process. If the paperwork presented to the Judge is incomplete or insufficient in some way, the magistrate will return it to the jailer so that it can be fixed before the magistrate continues. (If you were a law student you would be screaming foul about now, but it gets much worse.)
After magistrate accepts and reads the evidence against all the accused, s/he will start the hearing. The Judge will read the accused their rights, advise them they have the right to counsel (which under law they should have at this hearing), tell them they have a right to an examination hearing (which by law this should be), then the Judge will rule the evidence sufficient to bind the individual over for trial as a matter of course, set bail, give the records to the jailer and leave.
There are a few telling things the Judge will not do. The Judge will refuse the accused counsel at this hearing, deny the accused the right to confront the witness against him/her or to refute the evidence against him/her, deny the accused the right to enter evidence in his/her behalf, and will not make an order binding the accused to the authority of the court (sometimes referred to as a warrant).
Article 16.17 Decision of the Judge
After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.
This is not just wrong, it is horribly wrong and it gets worse. These hearings are usually held deep in the jail, or the accused is publicly marched before the court in their jail uniforms, often shackled. This is to let the accused know s/he is at the mercy of the system and can forget his/her rights. Whatever their previous expectations concerning justice and due course, they now know they are at the mercy and whim of the system. Thus, when the prosecutor finally comes along, s/he is the epitome of professionalism and when s/he makes this most reasonable offer, what is the accused to do but take "the deal?" Besides, the accused will have been warned, take it or spend up to a year in jail waiting for trial.
The higher the expectation of justice when the person goes up before the magistrate, the greater the devastation of the realization it was all smoke in and mirrors. It will take the wind out of your ideals in a hurry. You will feel devastated and betrayed and want little more than a way out.
The deal works. I went through the court records. Almost 99% of all people accused of crime take the deal. It is well established that about 4% of the people do some 90% of the crime. Those who stay in the system know the system. They know if the prosecutor doesnít have a really great case s/he will not want it to go to trial, so they hold out and when the prosecutor canít make a deal, s/he will almost always drop the case.
If you think this doesn't drive the police up the wall, just ask them.
The ones who really suffer by this are the falsely accused, law-abiding citizens who cherish the unrealistic notion that we live in a land of law. They discover how guilt or innocence is simply not a consideration. Those people they thought were out there protecting them become the enemy. They find all the writing and righteous rhetoric we were exposed to in school was a bunch of crap.
A consideration the prosecutor sometimes has is, often the innocent, at first, react indignantly, become angry, and resistant. In order for the deal to work, s/he needs time for the anger through fear and anticipation to transform into dread. Well, it takes time and time doesnít jibe well with the notion of speedy trial, so the prosecutor needs a way around and have it all worked out.
The Magistrate, after holding the "magistration" will give the file to the Jailer who will forward a copy to the prosecuting attorney. The problem with this is 17.30 Code of Criminal Procedure is very clear:
Art. 17.30.    Shall certify proceedings
The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
This preserves all the evidence the Magistrate used in order to make the determination to bind the individual over for trial. This also gets a cause number set so the accused can file motions and other papers in his/her defense. The problem this causes for the prosecutor is, a prosecution begins when a magistrate is presented with a complain and that starts speedy trial clock.
In fact, it has been held, long ago and recently, that the filing of a complaint accusing one of a felony offense with a justice of the peace is the initial step in the commencement of a prosecution under Texas law. Baskins v. State, 75 Tex. Crim. 537, 171 S.W. 723, 725 (1914); Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Cr.App. 1978). The above cited by the court in Rios v State 688 S.W.2d 642
To create time, prosecutors bury those records in the jail. The complaint and statement of probable cause used by the magistrate to provide jurisdiction will never reach the court record.
Magistrates are being trained and directed to ignore Article 17.30 and leave the file with the jailer who may or may not keep copies, but apparently sends a copy to the prosecuting attorney. This way there is no pesky complaint in the court record and the prosecutor has all the time s/he wants to work "the deal."
Our law consists of numerous interlacing checks and balances which must always be maintained in order to preserve our constitutional form of government.
It is apparent that our procedure, which authorizes prosecutions by information presented by the prosecuting attorney, is bottomed upon the proposition that there must be a supporting affidavit, without which an information cannot be lawfully presented. WILMA HAZEL KENNEDY v. STATE (02/09/55) 276 S.W.2d 291, 161 Tex. Crim. 303
The Court went on to say:
The rule was so well established by the former court of appeals that opinions after 1891 routinely followed it without further explication. But there are strong public policy considerations dictating the rule.
An information is a "primary pleading in a criminal action on the part of the State," Article 27.01, V.A.C.C.P., a written pleading in behalf of the State drawn, filed and presented by a prosecuting attorney charging an accused with an offense that may be prosecuted under the law. Article 21.20, V.A.C.C.P. in order to "protect its citizens from the inherent dangers arising from the concentration of power in any one individual," Kennedy v. State, 161 Tex. Crim. 303, 276 S.W.2d 291 (1955) (Opinion on Motion for Rehearing, at 664), the Legislature precluded a prosecutor from presenting an information "until affidavit has been made by some credible person charging the defendant with an offense," and also mandated, "The affidavit shall be filed with the information." Article 21.22, supra. Such an affidavit is, of course, a complaint within the meaning of Article 15.04, V.A.C.C.P. "In other words, a prosecuting attorney is not authorized to institute prosecutions in the county court upon his independent act or of his own volition." Kennedy v. State, supra, at 294. One may not be "both the accuser and the prosecutor is misdemeanor cases." Wells v. State, 516 S.W.2d 663, at 664 (Tex.Cr.App. 1974). Compare Glass v. State, 162 Tex. Crim. 598, 288 S.W.2d 522 (1956); Catchings v. State, 162 Tex. Crim. 342, 285 S.W.2d 233, at 234 (1955).
Jailers will argue they must have the complaint in their records as required by the jail standards commission. It seems, the state ordered jailers to act in collusion with the magistrate to act in clear and direct violation of the specific mandate of particular law.
Nonsense, the complaint must be in the court record to give the court jurisdiction. If the complaint is not sealed up and forwarded to the clerk of the court and kept in the clerk's protection, the affidavit becomes compromise and fatally defective.
Though a slick and sharp maneuver, nothing is perfect, and neither is this. There are those necessary documents that sometimes are needed by others. Records of bonds and court appointed counsel sometimes show up in the files. Bondsmen and attorneys often need them, so the prosecutor canít always hide them. Also, the information must reflect the date of offense and this gives the whole game away.
So, if you look in the criminal records of most any District Court, you will find an indictment and the deal, sometimes a bond form or a request for court appointed counsel, but no original complaint or statement of probable cause. There must be an affidavit by a credible person alleging the commission of a crime to give the court jurisdiction.
The presence of a bond or request for court appointed counsel begs the question:
"How did the magistrate make a determination of probable cause against a person who had been arrested when no complaint has been filed against the individual? How can a person be bound to the court and restricted at their liberty, either in jail or out on bond with restricted options, without someone accusing the person of a crime? And, how can the magistrate defend against a claim of false imprisonment when the evidence in the court record is essentially dead-bang?"
The law is simple and straightforward, no complaint, no jurisdiction.
Itís a slippery slope on the way to the Frog Farm.
The magistrate, by failing to abide by Article 17.30 has violated a law relating to his/her office,
thereby, entering into a criminal conspiracy with the jailer and prosecuting attorney to deny the citizen in the due course of the laws. Normally you canít sue a judge. As indicated earlier, judges have granted themselves immunity from civil litigation. They left only one door open to civil remedy against a judge. The only time you can sue a judge is when the judge is without any jurisdiction.
At this point, the arresting officer has committed false imprisonment by failing to make a due diligent effort to locate a magistrate before tossing the accused in jail:
ß 20.02. Unlawful Restraint
(a) A person commits an offense if he intentionally or knowingly restrains another person.
(b) It is an affirmative defense to prosecution under this section that:
(1) the person restrained was a child younger than 14 years of age;
(2) the actor was a relative of the child; and
(3) the actor's sole intent was to assume lawful control of the child.
(c) An offense under this section is a Class A misdemeanor, except that the offense is:
It cannot be construed the arresting officer is ignorant as to the effect of the arrest s/he makes (see Screws v State above), and is therefore, criminally culpable and civilly liable for the consequences.
By arresting and imprisoning a person in order to facilitate the actions of the magistrate, the officer becomes culpable in the felony act the magistrate commits.
ß 20.04. Aggravated Kidnapping
(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.
(b) A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
As the magistrate was directed to seal everything in an envelope and forward it to the Clerk of the Court but did not, the jurisdiction of the court never existed. Without the original complaint giving jurisdiction from the time of arrest, in the protection of the Clerk of the Court, there is no jurisdiction and all who participate are potentially subject to civil litigation as well as criminal prosecution. (see In Re Saywer above)
This practice is directed and condoned by prosecutors who profit by circumventing the speedy trial clock.
". . . if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted."
By the above practices, the stage is set for "the deal."
The prosecutor, when s/he gets the file from the jailer, will start working on the accused. S/he will first force the accused to an arraignment hearing for the alleged purpose of taking the plea the magistrate at your "magistration" refused to take.
Magistrates have been directed by prosecutors not to take pleas or hear any testimony from the accused that might refute or mitigate the claims of the arresting officer, not because they donít have jurisdiction and authority, as clearly they do:
Article 15.03, V.A.C.C.P., authorizes a magistrate to receive a complaint and issue a warrant of arrest, and Article 2.09, V.A.C.C.P., provides that the justices of the peace are magistrates within the meaning of the statute. Thus, it is beyond dispute that the justice court in the present case had the power and authority to act on the matter before it the complaint charging appellant with rape although it had no power to determine the issues of law and fact in the case or to render a judgment based upon such a determination. EX PARTE SCOTTIE GENE WARD (01/18/78) 560 S.W.2d 660
By directing magistrates to refuse to hear any rebuttal of evidence from the accused and, most especially a plea, the prosecutor gets the court to compel the individual back to court for a pre-trial hearing.
Art. 28.01.    Pre-trial
Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State's attorney, to appear before the court at the time and place stated in the court's order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding. The pre-trial hearing shall be to determine any of the following matters:
(1) Arraignment of the defendant, if such be necessary; and appointment of counsel to represent the defendant, if such be necessary;
(2) Pleadings of the defendant;
(3) Special pleas, if any;
(4) Exceptions to the form or substance of the indictment or information;
(5) Motions for continuance either by the State or defendant; provided that grounds for continuance not existing or not known at the time may be presented and considered at any time before the defendant announces ready for trial;
(6) Motions to suppress evidenceóWhen a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court;
(7) Motions for change of venue by the State or the defendant; provided, however, that such motions for change of venue, if overruled at the pre-trial hearing, may be renewed by the State or the defendant during the voir dire examination of the jury;
(9) Entrapment; and
(10) Motion for appointment of interpreter.
Sec. 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits.
Sec. 3. The notice mentioned in Section 2 above shall be sufficient if given in any one of the following ways:
(1) By announcement made by the court in open court in the presence of the defendant or his attorney of record;
(2) By personal service upon the defendant or his attorney of record;
(3) By mail to either the defendant or his attorney of record deposited by the clerk in the mail at least six days prior to the date set for hearing. If the defendant has no attorney of record such notice shall be addressed to defendant at the address shown on his bond, if the bond shows such an address, and if not, it may be addressed to one of the sureties on his bond. If the envelope containing the notice is properly addressed, stamped and mailed, the state will not be required to show that it was received.
This is the standard excuse, but I assure you, most Judges simply compel everyone accused of a crime to one of these hearings rather there is any cause for it or not. Often, especially in misdemeanor cases, the Judge doesnít even bother to show up, as these hearings are usually not actually hearings in the legal sense. Usually there is no judge present, just the prosecutor, bailiff, and a court clerk to lend authority on the one hand and the appearance of judicial credence on the other. The bailiff will escort you up to the clerk who will direct you to the waiting prosecutor who will offer you this great deal then threaten you with all the stuff he will do if you donít take it.
Now, if you are poor or indigent and have been accused of something more serious than a class C Misdemeanor, and arrested, you will be told that you have a right to an attorney and one will be appointed for you if you canít afford one. You will be told you have a right to bail, but if you exercise your right to bail, the court will not appoint you an attorney. The Judge will tell you that since you could afford bail, they will not appoint you counsel.
(l) Procedures adopted under Subsection (a) must include procedures and financial standards for determining whether a defendant is indigent. The procedures and standards shall apply to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail.
(m) In determining whether a defendant is indigent, the court or the courts' designee may consider the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. The court or the courts' designee may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant's financial circumstances as measured by the considerations listed in this subsection.
Prior to the last change Article 26.04 specifically forbad a judge from refusing to appoint counsel solely because the defendant "has or may secure bail."
This puts the poor or indigent in a position of either getting out on bail and facing the court without counsel, or sitting in jail until time of trial, which they are told could take up to a year. With our without counsel, in the end, it makes little difference; they will take the deal.
The uninitiated guilty usually readily take the deal as the first thing they get is out of jail and a deferred adjudication (it doesnít go on their record). The catch is, they get to pay the courts a substantial portion of their salary for a very long time. Considering the alternative, what else could a reasonable person of ordinary prudence be expected to do? The chronic offender however recognizes this as a bargaining session and depending on how solid the case, knows s/he can deal a bit. The innocent law abiding citizen falsely accused doesnít have a clue or a chance.
Sometimes, the truly innocent, at this first hearing, become enraged and indignant and send the prosecutor packing, but that is no problem. S/he knows this anger response by the innocent will, given time, melt into fear and desperation and, since there is no pesky complaint hanging around, the prosecutor has plenty of time.
We like to think we are protected by our defense counsel, not in this life. Eventually, an attorney will show up at the jail. Now the accused knows the wheels of justice are finally turning in their favor; wrong. Your attorney will take you into a room and tell you, "Here is the deal, take it or spend up to a year in jail waiting for trial."
I know, most people expect their attorney to be like Perry Mason and want to ferret out every detail then put on a vigorous and righteous defense. Not in this life s/he wonít. In this life defense counsel doesnít profit by putting on a vigorous defense for a poor client. In this life, if s/he puts on a vigorous defense, the courts will pay about $350.00. If the client takes a deal, you guessed it; the courts will pay about $350.00.
All this current hub-bub about paying court appointed attorneys more to defend indigent clients will do nothing to improve defense. It will only increase the amount the attorney can get for getting you to take a deal.
If you are truly innocent and incredibly stubborn or courageous and refuse the deal again, the prosecutor will look at your case and exercise Ďprosecutorial discretion.í The prosecutor is not interested in rather or not you are innocent but in rather or not he has enough leverage to turn up the screws. If not, the case will be dropped because it will cost too much to fight it, unless it is a high profile case.
In the professional practice of prosecution, there is much more the prosecutor will do to coerce a deal from the accused. There is no need to belabor this point further other than to say that it doesnít get better. However, after doing the math, if the dollars don't add up to good sense, the prosecutor will simply refuse to prosecute and the case will just go into limbo only to be dropped when the accused or their bondsman screams to high heaven.
The problem with this is, the prosecutor is forbidden to drop a case in Texas.
Art. 32.02.  [37,643] [37,630] Dismissal by state's attorney
The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.
This is not hard to understand. Prosecutorial Discretion in Texas is specifically forbidden. This is one reason the prosecutor makes the original complaint disappear. If he canít get a deal and the case is not politically expedient for the prosecutor, s/he will want to just drop it, but with a complaint at the Clerk of the Court, s/he canít just do that.
If the prosecutor gets a deal or decides to pursue prosecution, s/he has the original affiant come in and sign a new complaint, dated the date it is signed. This way the complaint if requested will reflect a current date, not the date of the original and this starts the speedy trial clock at a much later date. The problem with this is, it is a fraud on the court.
You have to give them credit, this is smooth. Even defense counsel show up to represent their clients and follow this ritual without question or objection. They know full well it is improper, but since they get to shake out their deals, collect their fees and go home, no problem.
Well, one problem, that pesky complaint the magistrate had to look at in order to bind the person arrested over for trial, it keeps leaving all these telltale clues. Like the indictment, it must show the date of the offense or it is fatally defective, so the date of offense will be much different than the date of the indictment. That will reflect the date of arrest, but nothing else in the criminal file will, except maybe a bond form or request for court appointed counsel. I am sure the prosecutor would like these to disappear, but bondsmen and court appointed counsel would notice they are missing as they often need them.
The irony of all this would be funny if not so serious.
That is how it works on the Frog Farm. I know what you are thinking.
"If things are so bad, why hasnít someone done something about it?"
Now we get to the really good part. In the above I demonstrated an ongoing criminal conspiracy perpetrated by the State of Texas against its own citizens for the purpose of converting the Criminal System into an unauthorized taxing authority in the truest sense of RICO. (That is the federal organized crime bill and yes, states have been prosecuted under it.)
Now I will demonstrate a second conspiracy intended to protect the first.
When you think it got bad, it gets worse.
SEE NO EVIL
Prosecutors have one minor problem with the above; it is illegal. Everything is illegal. So what happens if someone starts filing criminal complaints to correct it? In a word, "nothing."
A private citizen cannot file a criminal complaint against a public official in Texas. Well, that isnít exactly true. A citizen can file the complaint, but it is futile effort as the prosecutor will trash it.
Police officers are routinely directed to present complaints to prosecutors. If they receive a complaint against someone that they did not see or hear committing a crime, they are directed to present the complaint to the prosecutor for legal advice. This is the standard procedure when the officer believes he has evidence of a criminal act for which the individual has not been arrested. It is not legal, but is standard procedure.
Art. 2.13.    Duties and powers
(a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means.
(b) The officer shall:
(1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any magistrate or court;
(3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.
(c) It is the duty of every officer to take possession of a child under Article 62.009(g).
This is not hard to understand. Nowhere in law is a complaint directed to a prosecuting attorney. The only excuse for such an action is to seek legal advice from the prosecutor. The problem is, the prosecutor does not give legal advice.
Prosecutors have criminal complaints directed to them not so they can render legal advise to the police, but so they can exercise judicial discretion. They donít want magistrates ruling on the sufficiency of complaints as, after all, they are learned counsel and it is they who will have to ultimately prosecute the cause, so it is logical to have them make the determination.
While that may be logical, it is certainly not legal. Our Constitutional Framers and subsequent Legislators knew well the great potential for abuse when power is concentrated in a single individual so they forbad prosecutors from making those determinations and put neutral magistrates in place to do just that. But prosecutors found neutral intervention inconvenient and potentially disastrous to "the deal," so when they receive complaints against public officials they simply refuse to prosecute, no matter how valid the complaint.
Art. 2.03.    Neglect of duty
(a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.
(b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.
Under the Screws v State doctrine, it cannot be construed prosecutors are somehow unaware of the impropriety of this practice. If they are sane, they must know exactly the legal ramifications of their actions. I assure you, they know. They know because I have told them. I have crammed it down their throats with multiple and continuous complaints against them for just these behaviors, but they are not impressed.
The more I file the more they trash. I file on the trashers for trashing and the complaints go to the very individuals I allege against and they trash them all with absolute impunity.
We like to think the law matters. We need to believe there is some teeth in the authority of the individual to express and exert his/her individual rigths. Unfortunately, at least in Texas, it is not so.
I have filed a great number of complaints against public officials, mostly felony complaints and all dead-bang. They are dead-bang because I set them up with opportunity and they have never failed to be most accommodating, all the way up to the Attorney General. I have filed on them all and all have trashed my complaints.
When I file a criminal complaint it is complete in accordance with Article 15.05 CCP, affirmed and verified along with an affirmed and verified statement of probable cause. When I give them to police officers, they follow policy and give them to the prosecuting attorney instead of following law which directs them to Ďsome magistrate.í Prosecutors then simply trash them, exercising Ďprosecutorial discretion,í even though it is expressly forbidden in Texas.
Art. 32.02.  [37,643] [37,630] Dismissal by state's attorney
The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.
By failing to present the complaint to the Grand Jury along with an information, the prosecutor violates 37.10 Texas Penal Code:
ß 37.10. Tampering With Governmental Record
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its falsity; or
(6) possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
(b) It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code.
(c)(1) Except as provided by Subdivision (2) and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony.
(2) An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor's intent is to defraud or harm another, in which event the offense is a felony of the second degree.
(d) An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is:
(1) a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the defendant is convicted of presenting or using the record;
(2) a felony of the third degree if the offense is committed under:
(A) Subsection (a)(1), (3), (4), or (6); or
(B) Subsection (a)(2) or (5) and the defendant is convicted of making the record; and
(3) a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor's intent in committing the offense was to defraud or harm another.
(e) It is an affirmative defense to prosecution for possession under Subsection (a)(6) that the possession occurred in the actual discharge of official duties as a public servant.
(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government's purpose for requiring the governmental record.
(g) A person is presumed to intend to defraud or harm another if the person acts with respect to two or more of the same type of governmental records or blank governmental record forms and if each governmental record or blank governmental record form is a license, certificate, permit, seal, title, or similar document issued by government.
(h) If conduct that constitutes an offense under this section also constitutes an offense under Section 32.48 or 37.13, the actor may be prosecuted under any of those sections.
and it has the effect of dismissing a prosecution as the prosecutor is also commanded as follows:
Art. 2.04.    Shall draw complaints
Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 2.05.    When complaint is made
If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county.
It doesnít take a legal genius to figure this out. The Prosecutor has a clearly defined duty, by failing this duty, the prosecutor has the effect of dismissing a prosecution in impersonation of a judicial officer in violation of 37.11 Texas Penal Code:
ß 37.11. Impersonating Public Servant
(a) A person commits an offense if he:
(1) impersonates a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts; or
(2) knowingly purports to exercise any function of a public servant or of a public office, including that of a judge and court, and the position or office through which he purports to exercise a function of a public servant or public office has no lawful existence under the constitution or laws of this state or of the United States.
(b) An offense under this section is a felony of the third degree.
I have filed a number of these complaints in a number of counties and they trash them. When I file criminal complaints charging prosecutors with felonies for failing to present criminal complaints against public officials to the Grand Jury, the complaints are forwarded to the accused prosecutors who simply trash them. When I bushwhack a judge and drop the complaints on him/her and they are sent to the Grand Jury, the prosecutor intercedes and there is never a hearing. I even had a prosecutor in Tarrant County (I contend) forge a letter of dismissal of 30 felony complaints against Tarrant County Prosecutors, including some against himself.
You might call it a Catch 22, but I call it a deliberate and ongoing criminal conspiracy perpetrated for the specific purpose of shielding criminal wrong-doers from prosecution in violation of 38.05 Texas Penal Code:
38.05. Hindering Apprehension or Prosecution
(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the grade of felony, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension.
(b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
(c) An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.
I further contend, this conspiracy on the part of prosecutors is perpetrated in order to facilitate the commission of other crimes, those demonstrated above and below.
In the current condition, the legal system in Texas is out of control. You canít sue the judges and you certainly canít get one prosecuted. You can't get a fair trial and you certainly can't expect exert your rights as a sovereign citizen.
It is a conspiracy I tell you, a low down dirty rotten sneaking conniving conspiracy. I am mad as hell and am not going to take it any more.
POSTURE AND POSITION
That is a pretty depressing story. What is a law abiding citizen to do in the face of such overwhelming corruption, dishonor, and disregard? How is a simple lowly individual supposed to buck such an overwhelming system?
Actually, it is simple, not easy maybe, but simple. First, we must remember this is a republic, not a democracy. It is a democratic republic, but a republic first. In a republic the individual is sovereign, when we forget that we abdicate our authority and responsibility. When we take it to heart, the answer is obvious.
I may appear an outrageous radical and many would like to paint me as such, but I am not. I am a father of two well grown children, a fat papa to three well spoiled grandsons, a husband these last 31 years and business owner for almost that long, a voter, and a combat veteran. I stand squarely on the backbone of this proud nation, bound under my oath to protect this country from all enemies, foreign and domestic.
The oath I swore a long time ago, in what now seems another life, still binds me as it is a lifetime oath. Consequent to that oath I went half way around the world and in a stinking stifling jungle I paid heavy for my rights and freedoms. In the petulance of my youth, toward false motives and misdirected patriotism, these hands accrued wrongful blood on them, but no more. More tragically, others paid a far greater price than I for the rights and freedoms I now see trampled for convenience and expedience.
These rights and freedoms I tout are mine. As a sovereign citizen I claim them as my personal property. And, as a sovereign citizen it is my responsibility to ensure the rights in my stewardship are passed to my children intact and unfettered. To that end, I pursue the following.
THE FIX IS IN
The solution is simple if seemingly daunting. When public officials violate laws they are as culpable as any criminal. While judges and prosecutors have carved out a nice little set of immunities for themselves from civil litigation, there is no immunity from criminal behavior. At least, there is no legal immunity from criminal behavior.
Therefore, the solution follows from the problem. If you have it made known to you that a person (public official or otherwise) has violated a law, you have a civil duty to report the crime and the duty of officials receiving notice is clear. If you report a crime and make no untrue statement and anyone takes any threatening posture toward you, you should consider it an act of felony retaliation.
Taking my own advise, I have had it made known to me that police officers, in Texas, have been arresting citizens and taking them directly to jail, making no effort to ascertain the availability of a magistrate for the purpose of securing authority to continue to hold the individual. The Supreme Court has said, in such a case the arrested individual has a cause of action for unlawful detention, which is a crime in Texas.
Further, the officer leaves the arrested person in the custody of jailer trusting the jailer to perform the duties required by law to insure proper authority to hold and protect all the arresteeís constitutional rights. The problem the officer has is s/he is responsible for the actions of the jailer if the proper authority is not promptly procured. If the jailer fails in that duty, all are culpable.
Well, sure enough, the jailer routinely fails miserably in that duty. The jailer will eventually bring the arrestee before a magistrate who will have already helped the jailer perfect the allegations against the accused in ex parte fashion, then the magistrate will refuse to perform a proper hearing, deny the accused in the presumption of innocence, take evidence from the accuser while denying the accused in his/her right to rebut or enter exculpatory evidence, bind him/her over for trial and set bail as a matter of policy and practice. The magistrate will then give the file back to the jailer who will secret it from the Clerk of the Court of jurisdiction, thereby denying the accused the right to access to the courts and contaminating the evidence used at the hearing.
Secreting a government document from the person or agency it is directed to by law is a felony in Texas.
The arresting officer, by committing the act of improper detention of the citizen for the purpose of the facilitation of a felony becomes guilty of Aggravated Kidnapping as are all who participate in the crime.
The potential ramifications of this criminal behavior is enormous. As, if there is no complaint in the court record, or the complaint is fatally defective, which it must be if not sealed and put in the protection of the Clerk of the Court, the trial judge has no jurisdiction. With no jurisdiction there is no authority to act and any act committed is treason to the Constitution, and it gets worse.
Judges have absolute immunity from civil litigation for their acts committed on the bench, except in one circumstance. You guessed it, when they have no jurisdiction.
So, by conspiring to deny the arrestee in his/her rights, the magistrate along with the arresting officer and jailer set up the judge having jurisdiction in the cause to be sued personally as, no jurisdiction, no immunity, and to be prosecuted criminally.
Rather they realize it or not, they set up themselves as well as all who participate in the above are trespassers from the beginning.
I have looked in the court records of several counties and you probably won't believe this, but there is something glaring by its absence. In the records, there is no complaint or if one exists, it is not the one the magistrate was directed to forward to the clerk of the court. The ones which occasionally show up in the court records are frauds on the court. They have been made up long after the person has been bound to the authority of the court and set to bail. They have been drawn up by the prosecutor and signed by the original complainant and dated at a date much later than the original in order to hide the fact that the arrestee has been illegally bound to the court. This is done in order to bypass the Constitutional right to a speedy trial.
It is a slippery slope on the way to the Frog Farm.
On point of fact, criminal prosecutions in Texas are indeed criminal. They are nothing less than acts in furtherance of an ongoing criminal enterprise perpetrated and perpetuated by they State itself through training and enforcement of public policies and practices in incredible violation of most every Constitutional right a citizen has. All this is being done in order to extort an unauthorized tax from the public in the form of fines and fees collected in violation of the due course of the laws of the State.
Under Texas law, a street gang is a group of people acting in concert and collusion toward on ongoing criminal enterprise with a recognizable hiarchy. Texas Criminal Justice is, by definition, a street gang.
Rulings by judges without jurisdiction are not voidable, they are void. Under law it is as if they never happened, so what happens to all those people now in jail consequent to the current practice?
No jurisdiction means no immunity from personal civil suit by all who participated in the prosecution and more. If a governmental agency collects a fine or fee in violation of the due course of the laws, that fine must be paid back, in triplicate.
Itís a fine mess we have gotten ourselves into here on the Frog Farm, a fine mess indeed.
DUE NOTICE AS FAIR WARNING
Please don't misinterpret this as a call for aid and assistance. In point of fact, I don't need the succor and support of the masses. It is the point of this republican form of government that, as a sovereign citizen, I have all the authority I need to get this fixed. It is the point of being an American that we are individual free men and women with the power to take our government to task and I intend to do just that.
This is fair warning. When the sky falls in on Texas as a result of these improper practices, none may say they did not know as, to quote Fox Mulder, "The truth is out there."
When I ask for the arrest of all those involved in these dastardly deeds and horrendous wrongs, none my be seen to cry foul. The Supreme Court has held, "If a public official violates a ruling of this court and he is sane, he may not say he knows not what he does."
I have been chasing this donkey for fifteen years and now I have it by the tail and do not intend to let go.
It is a common practice for governmental officials, when taken to task, to use their authority as a weapon against the challenger. I have certainly seen that first hand. I have been banged up, beat up, pushed around, threatened, jailed and in all discounted and disrespected. But they have only broken a couple of bones and dislocated a couple of others. I have only spent a few nights in jail and as to all the threats, they are mostly fluff and bluster.
I have been considered crazy and a crackpot, a lunatic and pariah, but I am none of those. Richard Roper, head U S Attorney in Fort Worth called me a man on a mission. Well, I suppose I am.
I am also a father of two well grown children, a fatpapa to three well spoiled grandsons, a husband of these last 31 years and business owner almost that long. I am a citizen, a voter, a tax payer, and a veteran.
Long ago, in what now seems another life, I swore on my oath I would protect this country from all enemies, foreign and domestic. At the time it was made clear it was a lifetime oath and I took it to heart. Consequent to the petulance of my youth I went half way around the world and paid heavy for the rights and freedoms I now claim.
Because I listened without critique, accepted without challenge, and acted without cause these hand have wrongful blood on them, but no more. I paid for my impetuous heavy, but in deference to those who paid much more, I now stand on my duty. I am repeatedly warned by concerned friends, including and mostly police officers, of what could happen to me, but what threat can my own government pose that does not pale into insignificance before the price I watched others pay for the rights I now enjoy?
We recently watched our sons and daughters topple a sovereign nation, loosing many and killing more. Who could stand by and fade from duty for petty and unfounded fear in the face of our children's demonstrated courage?
Benjamin Desraile once said:
"Nothing can resist the human will that will stake its very existence on the extent of its purpose."
I am throwing down the gauntlet. Let any who will take it up with me do so with honor and dignity. For those who would deny my fellow Americans in their rights and freedoms take care as, to quote one of our Iraq liberators, "I am no kidding coming." I am coming in the form of candidate for Wise County Sheriff.
As Sheriff I will begin to implement changes that will put an end to the problems I present. The problems with the criminal justice system are complex and convoluted. It has taken 56 pages to get here, but the solution is as simple as the problem is complex.
The crux of our problem is a lack of leadership.
WE NEED LEADERSHIP
The Sheriff's we have been electing have been well indoctrinated in the status quo. After years operating under a system they have to know does not follow law, they just don't have it in them to change it.
The practices I have been trying to change these last 15 years have set the police at odds with the public. They have undermined the public trust and denied police the honor and dignity they deserve. I see police becoming more and more isolated and antagonistic and that has to stop.
We have been waiting for our police, or defense attorneys or someone to make sure our rights are protected. Well, that isn't going to happen. The root of the problem lies at the feet or our judges and prosecutors and they are not about to change anything. The practices and procedures causing the police and public so much grief server the professional interest of the courts and they are not about to change. They donít have to change as long as they have the Sheriff subdued.
When the Sheriff refuses to enforce law relating to judges and prosecutors, they become totally immune from all law as you cannot sue a judge or prosecutor. With no check to the balance of official abuse, they donít have to follow law; they can do what is convenient for them with impunity.
The police are as terrified of prosecutors and judges as everyone else. And defense counsel can be put out of business by judges who can rule against a client on a whim or to get back at an attorney for any slight. So, do you really expect your attorney to risk his career to protect your rights? Not in this life; not in Texas.
This fear officials have in the in absolute power of the judge to do as he pleases I assert this is a false fear as judges are, for the most part, just and reasonable people. They tend to be the best of the best, but fear seldom knows logic, and the imagined threat seems always more tangible than the reality.
The solution to this problem is simple. If the Sheriff simply enforces the law equally toward all, even judges and prosecutors, the problem will go away. When the public can be assured, if any public official denies a citizen in the full and free access to or enjoyment of any right, that is a crime in the State of Texas, even if a judge does it, and the Sheriff will arrest the offender. As Sheriff, I will make it clear I will hold all officials to the same rule of law as citizens.
This is not about arresting judges as that will not be necessary. The problem has never been with the judges; it has been with the irrational fear of judges. Most people in law enforcement know the law as laid down by our Constitutional Framers is not being followed and we are all paying the price for it. On the one hand, remove our fear of judges refusing to follow law, and on the other give them confidence that the judges will enforce the laws as written, and most of the problems we are having with law enforcement will simply go away.
The permutations of the problem are far to complex to properly explain in this short statement. However, the solution is as simple as the problem is complex; just follow law. Do as our Constitutional Framers and subsequent Legislators commanded and intended.
Police can talk about fighting crime all they want, but if they continue alienating their most potent weapon, a trusting and cooperative public, they will do no better than they have. When the people no longer have need to fear their public officials, when they can with confidence cooperate and participate, the effectiveness of our law enforcement efforts will increase dramatically.
There are a number of steps I intend to institute, but they take too much explaining to include here. On my website, SherifWise.com you will find detailed information. There is a document I call The Frog Farm Conspiracy in which I demonstrate with what attorneys call "specificity and particularity" what is being done wrong. In the part titled "The Fix," I detail what I intend to do to fix it.
Don't be surprised if the solution sounds too simple and straightforward. In fact it is simple and straightforward and taken directly from law.
BAILIFFS AS PEACE OFFICERS
Few people who have stood before a judge in this country will tell you they trust the judge. We are all only too well aware that the judge can pretty well do as he pleases, with little or no regard to law. We know full well we are subject to the whim and caprice of he judge so we had better watch our step. We simply donít trust someone who can act with impunity. We trust rule of law and forbade royalty in this country, then came judicial immunity.
In order to insure the integrity and sanctity of the courts, as Sheriff I will call in all the bailiffs in the county and remind them they are certified police officers and as such have a duty to keep the peace and enforce law. If, in the course of the performance of their duties, they have it made known to them that a law has been broken, they have a duty to act in accordance with their sworn oath and the laws of the State of Texas.
If they observer a public official, acting under the color (pretence) of any authority, denying a citizen in the full and free access to or enjoyment of any right, they have a duty to arrest the offender as such is a violation of Section 39.03 Penal Code. It is an act of Official Oppression and is a class A misdemeanor in Texas.
If I am made known that such a thing has happened in the presence of a bailiff and the bailiff failed to perform his duty, I will arrest that bailiff myself for violating Section 38.05 Penal Code, Shielding from Prosecution.
This is not a difficult concept. Judges made themselves immune from civil suit, but even judges didnít trust judges enough to give them complete immunity. The Supreme Court, though willing to protect their personal assets from civil litigation, didn't trust their fellow judges enough to give them complete immunity criminal prosecution as well. That came later. It came because judges had the power to assert it rather than declare it.
What public official would dare risk angering other judges by lodging allegations against one of their cronies? In fact, that fear is most likely unfounded as judges are people like everyone else and more likely to be of the highest moral standards. But, like a tame tiger, they must be treated with ever diligent care and suspicion.
When the public can be assured their judges will be held to the same rule of law as everyone else, there will be no more reason to fear and distrust them. If you know they must act in accordance with their oath and honor, you will be in a position to begin to trust and respect that honor.
TAKE BEFORE MAGISTRATE
My children fear my police. The public, for the most part fear and distrust the police and it is the fault of niether. People in positions of power and public trust have directed and advised the police and lower courts in practices and procedures which act in clear and direct violation of law while serving the personal and professional agenda of those officials and it must stop.
It is my contention and will be my position, no police officer has the power to arrest and imprison, such was never intended by our Founders. When I am Sheriff, no person arrested in this county will be taken to jail. When an arrest is made, the officer will act in accordance with Article 14.06 Code of Criminal Procedure and take the person arrested directly to the nearest magistrate and explain himself.
This is from no lack in trust our peace officers. It is a very specific statutory requirement put in place by our Founders to insure trust and cooperation between the pubic and the police. When a policing agent is granted the power to arrest and imprison on their individual authority, the officer becomes a threat and people rightfully come to fear the potential personal passion of the officer. Even when the officer acts in the best of faith in strict accordance with law and justice, people tend to interpret their actions trough the filter of their personal fears.
Our Founders understood the nature of the human animal and in order to insure the public trust, created the position of Magistrate. They deliberately made it a position, not an office. Magistrates are not judges, though judges can act as magistrates along with mayors and reporters (don't ask what reporters are; it is in the law, but no one seems to know exactly who they are). The position of Magistrate was created to act as a go-between, to stand squarely between the peace officer and the jailhouse door.
When any citizen is arrested for any reason, s/he is to be taken directly to the nearest magistrate by the most direct route. The Magistrate must then examine into the sufficiency of the allegation and decide rather to bind the citizen to the authority of the court or release that person at his/her liberty.
There is a whole chapter devoted to the examination the magistrate must perform which serves to protect the rights of the citizen. This is not a difficult concept, so why is it not being done?
Well, the Legislature, in its wisdom, decided, since we already have learned counsel in government employ in the form of prosecuting attorneys, we may as well take advantage of their knowledge toward advising the police and lower courts. That may have seemed like a good idea at the time, but prosecutors are necessarily compromise and nationally accepted bar standards would normally forbid such a thing.
You would expect prosecutors to be influenced by the pressures of their conflicting position and that is exactly what has happened. Prosecutors have advised the police and lower courts toward practices and polices which serve the prosecutorial purpose at the expense of law and the right of things.
It is all about the deal. Prosecutors have neither time or resources to vigorously prosecute every case that comes before them. They had to do something, so they came up with "the deal." The difficulty with the deal is it takes time. Sometimes you have people who have the guall to consider themselves innocent. For prosecutors this is a time consuming problem, but they got that fixed.
"The Deal" has become so effective that the statistical conviction rate in Texas, according to the Criminal Justice Oversight Counsel is virtually 100%. Everybody takes the deal. Why would everyone take the deal? They take he deal because the system has been set us so that no rational person can have a reasonable alternative and it starts with the magistrate.
Prosecutors can't effectively work the deal if Magistrates start protecting all the rights of the accused. If the accused feels empowered before the law, if they have faith in the system, they will fight for their rights, forcing the prosecutor to either petition the court to dismiss or put on a vigorous prosecution.
To avoid this and facilitate "the deal," prosecutors advised police they could wait 24 hours before seeking a magistrate. This is simply not true. Well, I suppose it is when public officials can do as they please, but in a land of law, this is against it.
The prosecutor wants you to go through the humiliation of the booking procedure, the fingerprints, the mug shots, and then a night on the drunk tank floor. He then wants you be brought before a magistrate in your orange jail uniform to have the magistrate remand you to the authority of the court without regard to the sufficiency of the allegations against you.
This is a humiliating and debilitating experience. I once spent the night in the Wise County Jail for driving with a headlight out. I did and it was an eye opening experience. By the next morning my ideals weren't as important as getting out of there, especially when the Magistrate made it clear she was not interested in anything I might have to say and all those rights I though were protecting me were just so much high minded rhetoric.
We spend our lives living in arrogant assurance of the surety of our rights. It only takes a minor bout with the criminal justice system to knock that naïve notion out of a person. Once you realize you are naked before the law and all this righteous rhetoric was only that, rhetoric, you are ready for most any deal the prosecutor throws at you.
The Supreme Court held a 24 hour delay is not necessarily unreasonable considering all the circumstances; however, there shall be no set time limit. An officer's only defense against an allegation of false imprisonment for failure to timely take before a magistrate is a showing of due diligence in trying to locate a magistrate.
Prosecutors lied to the police. But the police need have no fear of violating law. The prosecutor will insure they are not taken to account for following their improper instructions as it serves the prosecutorial purpose and any complaint made will promptly be trashed by prosecutors.
As Sheriff, I will hold all police in the county to law. If any police officer, local, county, state, or federal brings someone they have arrested to the county jail without first securing an order from some magistrate and cannot show a due diligent effort to locate a magistrate, I will arrest that officer myself.
Mark Autry, Justice of Peace for Precinct 4 told me, if an officer brings someone to him at 2:00 in the morning for a hearing, there is nothing that tells him he has hear the complaint. I agreed but assured him, if the magistrates don't make some arrangements so that they have a magistrate available anytime one a peace officer is authorized to restrict an citizen at his/her liberty, then he will have to tell the deputies that as they would be waking him up. And, if the judge does or says anything that would tend to chill the officers access to them, I will arrest the judge myself.
I only mention Judge Autry as he is not only a personal friend of mine, but a man I consider to be the most honest and forthright judge in the county.
In all fairness, after talking to several magistrates, none of then had a problem with handling this situation. The main complaint I heard was that the police simply do not bring people to them. And the police, they indicated they have no problem with this either, they are just following policy.
As much as I rag on the prosecutors, they really didnít. This is something that evolved over time and the current administration inherited what others were doing. In fact, I have talked the present prosecutors and I doubt either will have any problem with things being done according to law.
When in the military, I was trained to work with nucular weapons. With something so potentially lethal, there can simply be no mistakes. We were continually being warned about the details. The real danger always lurked in the details. Familiarity breeds contempt was drummed into us constantly.
Our police and courts deal with the same issues over and over and it can get old after a while. They hear, "I'm innocent; I didn't do it; its not how it looks," until they have it coming out their ears and become somewhat insensitive. Liberty, from their perspective looses its luster.
Liberty, we fought a revolution for it, established a nation dedicated to it, and often take it so for granted we forget to protect it at every turn. When challenged by law enforcement, we often waive our right to it form fear or convenience. When we hold our liberty in such low regard we refuse to fight for it, what can we expect but that our public officials would loose respect for it.
This is not what our Founders intended. They intended out liberty be taken very serious. It was there intent that the liberty of a free citizen be held sacred and restricted only as a last and extreme resort. It was intended, before a person could be restricted at their liberty, certain and very definit steps be taken to insure their rights were scrupulously protected. They went so far as to dedicate an entire chapter in the Code of Criminal Procedure to this end.
As it stands, chapter 16 of the Code of Criminal Procedure may as well not be there as it is totally ignored by magistrates per instructions from prosecutors. When a person is arrested, they are commanded to be brought before a magistrate for an examination hearing, but that doesnít happen. Instead of an examination, magistrates have been directed to perform a magistration.
Don't bother to look for that in law; you won't find it. It is something prosecutors made up to describe an abomiination they concocted in order to get around all those pesky rights defined in Chapter 16.
What happens is an act of distortion for the purpose of extortion. Prosecutors, regardless of their duty to seek justice, are more interested in getting guilty pleas and go to great lengths toward that end, even to points well beyond those allowed by law and this is one of them.
Prosecutors have advised magistrates to make no inquiry into the sufficiency of an allegation made by an arresting officer. I am sure we have all heard the phrase, "presumption of innocence." Well, not in Texas. In Texas, a police officer can arrest you for any reason, with or without cause, throw you in jail and have you hauled in front of a magistrate the next morning who will bind you over for trial as a matter of course.
That may not be right, but it is how things work in Texas.
Donít blame the magistrates. They are, for the most part, not attorneys, but ordinary citizens just like you and I. They are elected from the public and act in accordance with their training and the advise prosecutors give them.
The position of magistrate was created to act as a neutral check to the balance of the policing powers. They were intended to decide if there was sufficient reason to bind a free citizen over for trial. The problem prosecutors have with this is it interferes with the deal. If the magistrate does a proper examination into the sufficiency of the allegations, those without merit will be dismissed and the prosecutor will loose the opportunity to work "the deal." A proper hearing also tends to bolster the citizen's confidence in a just adjudication of their cause, making it much more difficult for the prosecutor to finagle a deal.
There is another problem. If the magistrate does a proper hearing in accordance with law, he will seal all instruments had in the hearing, cause his name to be written across the seal, and forward it to the court of jurisdiction and prosecutors can't have that. If that happens, the speedy trial clock will start when the prosecution starts and that won't leave enough time to work on the deal.
Prosecutors pretty well know most people arrested feel they are innocent and will react indignately if approached too soon with the deal. They need a little softening up first. A night on the drunk tank floor is a good start. Next, a hearing where the judge finds against them as a matter of course. Most people who have never experienced the system expect hearings to be fair. They are sure, when the judge hears their side, they will be set free.
When the judge makes it clear, he doesn't care what the accused may have to say, he is going do what he is going to do that is all there is to that, any expectations of justice go right out the window. This is a crushing and demoralizing experience. After that, the deal gets a lot more appealing, but prosecutors aren't ready yet.
What prosecutors do has evolved over a long time and is as sophisticated as it is illegal, but it couldn't happen if magistrates did their jobs.
All this begs the question, "How could prosecutors get magistrates to act in such horrendous violation of clear law.
It's called sharp practice when attorneys focus on one aspect of law out of the context the rest of law. By doing that they can make anything they want appear correct and legal.
They interpreted an inclusive statute as if it were an exclusie. They interpreted Article 15.17 to exclude all requirements not specifically mentioned in the article. Article 15.17 came into being in order to include in the examination the warnings required by the Miranda decision. It requires the magistrates to issue the Miranda warnings. Prior to this statute, they only did an examination hearing.
Instead of including Miranda warnings in the examination process, prosecutors directed magistrates to replace the examination with the warnings. They told magistrates they no longer had to protect all the citizen's rights; all they had to do is advise them they had the rights while systematically denying the citizen in most every one of them.
The Catch 22 here would almost be funny if not so horrendous.
The result is, there is not longer any presumption of innocence in Texas. If you are accused of crime, you will be forced to stand and answer without regard to the sufficiency of the allegations, and more. The magistrate, by the current practice, has become a member of the prosecutorial team. Instead of acting as a neutral go-between, the magistrate perfects the case for the prosecutor.
Magistrates have been instructed that their duty to examine only referred to the completeness of the complaint as made by the officer. You have to admit, this is a slick manuver. The prosecutor no longer has to insure the charge is properly made before presenting it to the judge; he gets the judge to do that for him. The magistrate will insure all the paperwork is in order when presented, if not it will be returned to the officer so it can be corrected.
The magistrate, by this, forgoes any neutrality by helping the prosecutor prepare his case. By taking advantage of the fact that most magistrates are not attorneys, but lay judges, prosecutors have twisted their advise so as to enlist the magistrates to do their job for them and deny citizens in most every protection the Constitution and laws were intended to insure.
I have talked to a number of magistrates and none have a problem with doing a proper examination. Their only concern is that they have been instructed to do otherwise. In fact, they have acted in good faith accordance with advise from respected authority. That the advise was horribly illegal is a condemnation of learned counsel who, even if they inherited the practices, had a responsibility to know it was improper.