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| Moderated by: Joe Kelley |
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| Independence preferred | Rate Topic |
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| Posted: Mon Oct 1st, 2018 06:38 pm |
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1st Post |
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Joe Kelley Administrator
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Chapter 1, Mandamus and Prohibition. "The write of mandamus is a high prerogative write, issued in the name of the people, by the Supreme Court, and directed to any person, corporation or inferior jurisdiction, within the state, requiring the doing of some particular thing therein specified, which pertains to the office or duty of such person, corporation or inferior jurisdiction, and which such court has previously determined, or at least supposed, to be consonant to right and justice." https://archive.org/details/cu31924022885580/page/n5 In the name of which people? If it is "prerogative," then it is in the name of the powerful few, not the whole people.
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| Posted: Tue Oct 2nd, 2018 05:01 pm |
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2nd Post |
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Joe Kelley Administrator
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18 U.S. Code § 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." https://www.law.cornell.edu/uscode/text/18/242 "The Supreme Court held that the suppression of favorable evidence violated Brady's rights under the Due Process Clause of the Fourteenth Amendment. 69 66. See Kyles, 514 U.S. at 437-38. 67. See Brady, 373 U.S. at 87 ("The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused."). 68. Id 69. Id. at 86. The Due Process Clause states that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3689&context=flr "While the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system." 87. See Weeks, supra note 78, at 878 ("[T]he prospect of a civil suit under federal law for a Brady violation simply does not exist. We will have to look elsewhere to discover the incentive for prosecutors to comply with their constitutional obligation to disclose exculpatory evidence."). "In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence.88" 88. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 79 n.54 (1995) [hereinafter Green, Enforcement] (stating that "prosecutors have absolute immunity for misconduct related to their prosecutorial function").
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| Posted: Wed Oct 3rd, 2018 06:57 pm |
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3rd Post |
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Joe Kelley Administrator
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While all lawyers are governed by legal and ethical rules, prosecutors are subject to more stringent obligations.3 Unlike the private lawyer or defense attorney whose obligation is to be a zealous advocate on behalf of his client, the prosecutor is entrusted with the duty to "seek justice" in addition to fulfilling her role as an advocate. The prosecutor has this duty to seek justice because she is a representative, not of a single individual, but of the government and society as a whole. As the representative of a sovereign, the prosecutor enjoys powers that other lawyers do not. For example, prosecutors have broad discretion in deciding whom to prosecute and what charges to bring. In addition, prosecutors have the benefit of a police force that investigates their cases and gathers evidence for them.3 This broad access puts defendants at a great disadvantage in preparing their cases. In the adversary system in which the prosecutor operates, the availability of these powers leads to great inequity between the prosecution and the defense in a criminal trial. Prosecutor's Duty to Disclose Exculpatory Evidence Lisa M. Kurcias https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3689&context=flr What is the meaning of the warning by Richard Henry Lee concerning courts that will admit the ficion? Is it not this, whereby the original concept of eqaul protection of the law, or equal footing of people in the eyes of the law, or the blind justice, impartiality, fairness, and individual rights, were taken by an oppressive gang of criminals, lead by a Monarch, claiming hereditary sovereign power to dictate what is or is not law, and then the Revolutionary idea to return back to an equal footing, free people, in liberty, where each individual is as protected by the law as each other, and each individual has equal protection under the law, which is to say that each individual has access to the same law as everyone else. Case in point: "Originally the writ of mandamus was purely a prerogative remedy, and to this day it preserves in England some of its prerogative features. It was called a prerogative writ from the fact that it proceeded from the king himself, in his court of king's bench, superintending the police and preserving the peace of the realm, and it was granted where one was entitled to an office or function, and there was no other remedy. Blackstone terms it a "high prerogative writ, of a most extensively remedial nature," and it is uniformly referred to in the earlier cases as a prerogative remedy, and is spoken of as one of the flowers of the king's bench. In this country, however, a mandamus can not in any strict sense be termed a prerogative writ, and much confusion of ideas has resulted from the efforts of many of the courts to attach prerogative features to the remedy, as used in the United States. This confusion has resulted chiefly from a failure to properly discriminate between the English and American systems. Under the English constitution, the king is the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king's name, and by the court of king's bench only, as having a general supervisory power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice; and although he has long since ceased to sit there in person, yet b a fiction of law he is still so far presumed to be present as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign. And the fact that a mandamus was formerly allowed only in cases affecting the sovereign, or the interests of the public at large, lent additional weight to the prerogative theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently met in the reports, that the writ of mandamus is a prerogative writ, issuing not of strict right, but at the will of the sovereign and as an attribute of sovereignty. "As confined to the English system, and to the jurisdiction of the court of king's bench, these statements may be accepted as correct. But even in that country there seems to be a growing tendency to divest the writ of its prerogative features, and to treat it in the nature of a writ of right. "In the United States, from the nature of our system of government, the writ has necessarily been stripped of its prerogative features. Indeed, it is difficult to perceive how a mandamus can in any sense be deemed a prerogative writ in this country, unless the power of granting it were confined to one particular court in each state, or to a particular federal court, whose general functions should correspond to those of the court of king's bench, and which should represent the sovereignty of the country in the same sense in which it was represented in England by the king's bench. And the better considered doctrine now is, that the writ has, in the United States, lost its prerogative aspect, and that it is to be regarded much in the nature of an ordinary action between parties, and as a writ of right to the extent to which the party aggrieved shows himself entitled to this particular species of relief. In other words, it is regarded as in the nature of an action by the person in whose favor the writ is granted, for the enforcement of a right in cases where the law affords him no other adequate means of redress. And a judgment in a mandamus proceeding, as in case of an ordinary action at law, is subject to review by writ of error or appeal upon like conditions as in other cases. "Under the American system the writ having, as we have thus seen, been stripped of its prerogative features, it has necessarily lost some of the characteristics which formerly distinguished it as an extraordinary writ, and has been assimilated to the nature of an ordinary remedy. It is still, however, regarded as an extraordinary remedy in the sense that it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to the party aggrieved, and where without its aid there would be a failure of justice. In this sense, its character as an extraordinary writ bears a striking resemblance to that of injunction, which is the principal extraordinary remedy of courts of equity, and which is granted only when the usual and accustomed modes of redress are unavailing. And it is to be constantly borne in mind in investigating the law of mandamus as it now prevails both in England and in the United States, that by treating the remedy as an extraordinary one, it is not to be understood that the writ is left to the arbitrary caprice of every court vested with the jurisdiction, or that its use is not governed by rules as fixed and principles as clearly defined as those which regulate any branch of our jurisprudence. On the contrary, it is believed that few branches of the law have been shaped into more symmetrical development, and few legal remedies are administered upon more clearly defined principles, that those which govern the courts in administering relief by the extraordinary aid of mandamus." A treatise on Extraordinary Legal Remedies, embracing Mandamus, Quo Warranto and Prohibition by James L. High. 1896 https://archive.org/details/treatiseonextrao00highuoft
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| Posted: Tue Oct 23rd, 2018 09:45 pm |
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4th Post |
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Joe Kelley Administrator
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The top step is swept (draining the swamp) when the whole country through trial by jury agree that this act is a crime (for example eating babies) and it is against the law and that the whole country can agree on this crime as it is a crime in fact. "The Court has insisted on these minima with an amazing degree of orthodoxy: "Any other conclusion," the Court has warned, "would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts."" http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Ho__Ross.pdf ". Consider the well-known example of qui tam actions, which allow an individual to bring suit in the government’s interest.25 There is little evidence that the founding generation thought qui tam actions raised constitutional doubt, which might suggest that the original conception of Article III did not include a strict standing requirement or limitation on citizen suits.26 The claim that standing is a twentieth-century innovation is broadly consistent with the Framers’ acceptance of qui tam actions, as well as a host of other public actions (e.g., prerogative writs27) recognized by English courts.28 Judicial efforts to reconcile modern Article III limitations with historical practice may therefore prove of limited value. Second, the insulation thesis shows how doctrines may become constitutional in the future, without legislative amendment and popular ratification. Developments internal to the standing doctrine of course already offer proof of the fluidity of the doctrine. Linda R.S. arguably constitutionalized causation and redressability components,29 and, more recently, Lujan arguably moved the bar against generalized grievances from the prudential to constitutional side of the ledger.30 Our evidence adds empirical proof to potential for change. " http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Ho__Ross.pdf qui tam : (kwee tam) n. from Latin for "who as well," a lawsuit brought by a private citizen (popularly called a "whistle blower") against a person or company who is believed to have violated the law in the performance of a contract with the government or in violation of a government regulation, when there is a statute which ... Robert Yates, Brutus I, October 18, 1787: "The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same state; and it extends to all cases in law and equity arising under the constitution. One inferior court must be established, I presume, in each state at least, with the necessary executive officers appendant thereto. It is easy to see, that in the common course of things, these courts will eclipse the dignity, and take away from the respectability, of the state courts. These courts will be, in themselves, totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states." http://teachingamericanhistory.org/files/2018/09/Documents-and-Debates-in-American-History-and-Government-Vol.-1-and-Vol.-2.pdf Page 102
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| Posted: Sat Nov 3rd, 2018 04:03 pm |
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5th Post |
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Joe Kelley Administrator
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For the crime scene chapter: Debates in the Federal Convention of 1787 by James Madison http://teachingamericanhistory.org/convention/debates/0620-2/ and Union States Assembly (a form of common law grand jury) http://unionstatesassembly.info/journals/summaries/A%20Brief%20History%20of%20the%20ONLY%20Lawful%20Government.pdf
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| Posted: Wed Nov 7th, 2018 07:31 pm |
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6th Post |
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Joe Kelley Administrator
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Having to do with trial by the country, where everyone is represented in the power of government to consent to, or not consent to, anything done by the government, anywhere, and anytime, other than trivial bullshit. We the people with (or without) moral conscience, will judge the case based upon the true law power, which is expressed in Mathew 7:12 (the golden rule), and those with moral conscience will sympathize (empathize) with any morally innocent victim, to save them from harm, and those having no moral conscience will fear their individual support to enable a power that may be turned against themselves in similar circumstances as the trial at hand.
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