Wednesday, November 19, 2014


urther Darlene Winter CommittmentGuardian  Court Corruption

Bob Hurt <>: Nov 18 06:09PM -0500


The quotes below, "powers other than those derived from the
constitution" should only mean powers exercised within the
administrative functions of government. I believe these powers can have
ONLY the purpose of telling who what where when why and how to do their
jobs, and NOT telling the public what they may or may not do.

It should go without our saying, but we keep having to say it, that a
government regulation or employee designed to interfere with the
behaviors of the public other than telling people to stand in line and
wait their turn for government attention is not merely an administrative
function, but rather a regulatory function that must come only from the
legislature, and then must respect the limits of constitutional authority.

This makes it impossible, by definition, for such trivial crimes as
traffic, drug, and other infractions to fall within the purview and
authority of administrative agencies. If it has no constitutional
authority, a government function cannot lawfully interfere with the
public's rights.

The issue of the right to assistance of counsel proves the merit of the
right to trial by jury in EVERY issue that could result in loss of life,
liberty, or property, however small. In many states, like Florida, one
can have a jury for trying the facts in a traffic infraction.


"Asserted denial [of due process] is to be tested by an appraisal of the
totality of facts in a given case. That which may, in one setting,
constitute a denial of fundamental fairness, shocking to the universal
sense of justice, may, in other circumstances, and in the light of other
considerations, fall short of such denial." */Betts v. Brady,/*316 U. S.
455 <>.
at316 U. S. 462

"Treating due process as "a concept less rigid and more fluid than those
envisaged in other specific and particular provisions of the Bill of
Rights," the Court held that refusal to appoint counsel under the
particular facts and circumstances in the/Betts/case was not so
"offensive to the common and fundamental ideas of fairness" as to amount
to a denial of due process. Since the facts and circumstances of the two
cases are so nearly indistinguishable, we think the/Betts v.
Brady/holding, if left standing, would require us to reject Gideon's
claim that the Constitution guarantees him the assistance of counsel.
Upon full reconsideration, we conclude that/Betts v. Brady/should be
overruled." */Gideon v. Wainwrigh/t*, 372 U.S. 335
<> (1963)

"Obviously Fourteenth Amendment cases dealing with state action have no
application here, but if they did, we believe that to deprive civilian
dependents of the safeguards of a jury trial here . . . would be as
invalid under those cases as it would be in cases of a capital
nature."/*Kinsella v. United States ex rel. Singleton*,/361 U. S. 234
U. S. 246

"I must conclude here, as in/Kinsella, supra,/that the Constitution
makes no distinction between capital and noncapital cases. The
Fourteenth Amendment requires due process of law for the deprival of
"liberty," just as for deprival of "life," and there cannot
constitutionally be a difference in the quality of the process based
merely upon a supposed difference in the sanction involved. How can the
Fourteenth Amendment tolerate a procedure which it condemns in capital
cases on the ground that deprival of liberty may be less onerous than
deprival of life -- a value judgment not universally accepted [Footnote
<>] --
or that only the latter deprival is irrevocable? I can find no
acceptable rationalization for such a result, and I therefore concur in
the judgment of the Court."
*/Gideon v. Wainwrigh/t*, 372 U.S. 335
<> (1963)
at 372 U. S. 349

____ COMMENT --------

The Supreme Court has shown an important principle by overruling prior
limits on right to counsel in criminal prosecutions (or civil where
property is at risk). Just as "NO" means no when a prospective rape
victim utters it, "RIGHT" means right when the constitutions utter it.
ALL prosecutions put the defendant's life, liberty, and property at
serious risk. Judges bear irresistible prejudice against defendants,
and should never have the duty to assemble facts for a defendant. Only
competent counsel can do that. Likewise, no judge should have the duty
of trying the facts unless the defendant trusts the judge to do it.

I have made the point that the above principle regarding assistance of
counsel applies to the federal right to trial by jury in ALL instances
of prospective deprivation of life liberty and property, particularly,
with respect to imprisonment for contempt of court. Only a jury should
decide such issues. And I include property in that application because
one's liberty becomes slavery when the liberty become captured in the
labor necessary to pay a fine or the expense of defending against

A jury should get involved in ALL issues of contests between members of
government and members of non-government, or members of government
involving actions in individual capacity. Government has too much power
in contrast to the individual to allow it to wield that power solely and
in the absence of a properly constituted jury of peers.

Yes, my opinion differs with that of the court. For that reason, I
believe the citizenry should hammer the US Congress to clarify, and the
courts to honor, the right to counsel and jury trial, both at government
expense, for all prosecutions, administrative or judicial, that
constitute a risk loss to the defendant of life, liberty, and property.

============== Further Reference ==============

/*Criminal Proceedings to Which the Guarantee [trial by jury]
Applies*/.— Although the Sixth Amendment provision does not
differentiate among types of criminal proceedings in which the right to
a jury trial is or is not present, the Court has always excluded petty
offenses from the guarantee in federal courts, defining the line between
petty and serious offenses either by the maximum punishment available^70
or by the nature of the offense.^71 This line has been adhered to in the
application of the Sixth Amendment to the States^72 and the Court has
now held "that no offense can be deemed 'petty' for purposes of the
right to trial by jury where imprisonment for more than six months is
authorized."^73 A defendant who is prosecuted in a single proceeding for
multiple petty offenses, however, does not have a constitutional right
to a jury trial, even if the aggregate of sentences authorized for the
offense exceeds six months.^74

The Court has also made some changes in the meaning attached to the term
"criminal proceeding." Previously, it had been applied only to
situations in which a person has been accused of an offense by
information or presentment.^75 Thus, a civil action to collect statutory
penalties and punitive damages, because not technically criminal, has
been held to implicate no right to jury trial.^76 But more recently the
Court has held denationalization to be punishment which Congress may not
impose without adhering to the guarantees of the Fifth and Sixth
Amendments,^77 and the same type of analysis could be used with regard
to other sanctions. There is, however, no constitutional right to a jury
trial in juvenile proceedings, at least in state systems and probably in
the federal system as well.^78

^70 District of Columbia v. Clawans,300 U.S. 617
Schick v. United States,195 U.S. 65
Callan v. Wilson,127 U.S. 540

^71 District of Columbia v. Colts,282 U.S. 63

^72 Duncan v. Louisiana,391 U.S. 145
(1968); Dyke v. Taylor Implement Mfg. Co.,391 U.S. 216

^73 Baldwin v. New York,399 U.S. 66
Justices Black and Douglas would have required a jury trial in all
criminal proceedings in which the sanction imposed bears the indicia of
criminal punishment. Id. at 74 (concurring); Cheff v. Schnackenberg,384
U.S. 373
<>, 386
(1966) (dissenting). Chief Justice Burger and Justices Harlan and
Stewart objected to setting this limitation at six months for the
States, preferring to give them greater leeway./Baldwin/, 399 U.S. at
76; Williams v. Florida,399 U.S. 78
<>, 143
(1970) (dissenting). No jury trial was required when the trial judge
suspended sentence and placed defendant on probation for three years.
Frank v. United States,395 U.S. 147
There is a presumption that offenses carrying a maximum imprisonment of
six months or less are "petty," although it is possible that such an
offense could be pushed into the "serious" category if the legislature
tacks on onerous penalties not involving incarceration. No jury trial is
required, however, when the maximum sentence is six months in jail, a
fine not to exceed $1,000, a 90-day driver's license suspension, and
attendance at an alcohol abuse education course. Blanton v. City of
North Las Vegas,489 U.S. 538
(1989) .

^74 Lewis v. United States,518 U.S. 322

^75 United States v. Zucker,161 U.S. 475

^76 Id./See also/Oceanic Steam Navigation Co. v. Stranahan,214 U.S. 320
Hepner v. United States,213 U.S. 103

^77 Kennedy v. Mendoza-Martinez,372 U.S. 144

^78 McKeiver v. Pennsylvania,403 U.S. 528

In a long line of cases, the Court had held that no constitutional right
to jury trial existed in trials of criminal contempt.^79 But in/Bloom v.
Illinois/,^80 the Court announced that "[o]ur deliberations have
convinced us . . . that serious contempts are so nearly like other
serious crimes that they are subject to the jury trial provisions of the
Constitution . . . and that the traditional rule is constitutionally
infirm insofar as it permits other than petty contempts to be tried
without honoring a demand for a jury trial."The Court has consistently
held, however, that a jury is not required for purposes of determining
whether a defendant is insane or mentally retarded and consequently not
eligible for the death penalty.^3

Within the context of a criminal trial, what factual issues are
submitted to the jury has traditionally been determined by whether the
fact to be established is an element of a crime or instead is a
sentencing factor.^4 Under this approach, the right to a jury extends to
the finding of all facts establishing the elements of a crime, but
sentencing factors may be evaluated by a judge.^5 Evaluating the issue
primarily under the Fourteenth Amendment’s Due Process Clause, the Court
initially deferred to Congress and the states on this issue, allowing
them broad leeway in determining which facts are elements of a crime and
which are sentencing factors.^6

Breaking with this tradition, however, the Court in/Apprendi v. New
Jersey/held that a sentencing factor cannot be used to increase the
maximum penalty imposed for the underlying crime.^7 “The relevant
inquiry is one not of form, but of effect.”^8 Apprendi had been
convicted of a crime punishable by imprisonment for no more than ten
years, but had been sentenced to^12 years based on a judge's findings,
by a preponderance of the evidence, that enhancement grounds existed
under the state’s hate crimes law. “[A]ny fact that increases the
penalty for a crime beyond the prescribed statutory maximum,” the Court
concluded, “must be submitted to a jury, and proved beyond a reasonable
doubt.”^9 The one exception the/Apprendi/Court recognized was for
sentencing enhancements based on recidivism.^10

/Apprendi/’s importance soon became evident as the Court applied its
reasoning in other situations. In/Ring v. Arizona/,^11 the Court,
overruling precedent,^12 applied/Apprendi/to invalidate an Arizona law
that authorized imposition of the death penalty only if the judge made a
factual determination as to the existence of any of several aggravating
factors. Although Arizona required that the judge's findings as to
aggravating factors be made beyond a reasonable doubt, and not merely by
a preponderance of the evidence, the Court ruled that those findings
must be made by a jury.^13

In/Blakely v. Washington/,^14 the Court sent shock waves through the
federal as well as state sentencing systems when it applied/Apprendi/to
invalidate a sentence imposed under Washington State’s sentencing
statute. Blakely, who pled guilty to an offense for which the “standard
range” under the state’s sentencing law was 49 to 53 months, was
sentenced to 90 months based on the judge’s determination — not derived
from facts admitted in the guilty plea — that the offense had been
committed with “deliberate cruelty,” a basis for an “upward departure”
under the statute. The 90-month sentence was thus within a statutory
maximum, but the Court made “clear . . . that the ‘statutory maximum’
for/Apprendi/purposes is the maximum sentence a judge may impose/solely
on the basis of the facts reflected in the jury verdict or admitted by
the defendant/. In other words, the relevant ‘statutory maximum’ is not
the maximum sentence a judge may impose after finding additional facts,
but the maximum he may impose without any additional findings.”^15

Then, in/United States v. Booker/,^16 the Court held that the same
principles limit sentences that courts may impose under the federal
Sentencing Guidelines. As the Court restated the principle in/Booker/,
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts