urther Darlene Winter CommittmentGuardian Court Corruption
www.sharons-courtrecords.blogspot.com
| Bob Hurt <bob@bobhurt.com>: Nov 18
06:09PM -0500 Chris: 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. <https://supreme.justia.com/cases/federal/us/316/455/case.html> "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 <https://supreme.justia.com/cases/federal/us/316/455/case.html>. at316 U. S. 462 <https://supreme.justia.com/cases/federal/us/316/455/case.html#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 <https://supreme.justia.com/cases/federal/us/372/335/case.html> (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 <https://supreme.justia.com/cases/federal/us/361/234/case.html>(1960)at361 U. S. 246 <https://supreme.justia.com/cases/federal/us/361/234/case.html#246>-247. "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 3/3 <https://supreme.justia.com/cases/federal/us/372/335/case.html#F3/3>] -- 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 <https://supreme.justia.com/cases/federal/us/372/335/case.html> (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 prosecution. 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 ============== http://law.justia.com/constitution/us/amendment-06/06-criminal-proceedings-to-which-the-guarantee-applies.html /*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 <http://supreme.justia.com/cases/federal/us/300/617/case.html>(1937); Schick v. United States,195 U.S. 65 <http://supreme.justia.com/cases/federal/us/195/65/case.html>(1904); Callan v. Wilson,127 U.S. 540 <http://supreme.justia.com/cases/federal/us/127/540/case.html>(1888). ^71 District of Columbia v. Colts,282 U.S. 63 <http://supreme.justia.com/cases/federal/us/282/63/case.html>(1930). ^72 Duncan v. Louisiana,391 U.S. 145 <http://supreme.justia.com/cases/federal/us/391/145/case.html>,159 <http://supreme.justia.com/cases/federal/us/391/145/case.html#159>-62 (1968); Dyke v. Taylor Implement Mfg. Co.,391 U.S. 216 <http://supreme.justia.com/cases/federal/us/391/216/case.html>(1968). ^73 Baldwin v. New York,399 U.S. 66 <http://supreme.justia.com/cases/federal/us/399/66/case.html>,69 <http://supreme.justia.com/cases/federal/us/399/66/case.html#69>(1970). 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 <http://supreme.justia.com/cases/federal/us/384/373/case.html>,384 <http://supreme.justia.com/cases/federal/us/384/373/case.html#384>, 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 <http://supreme.justia.com/cases/federal/us/399/78/case.html>,117 <http://supreme.justia.com/cases/federal/us/399/78/case.html#117>, 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 <http://supreme.justia.com/cases/federal/us/395/147/case.html>(1969). 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 <http://supreme.justia.com/cases/federal/us/489/538/case.html>,542 <http://supreme.justia.com/cases/federal/us/489/538/case.html#542>-44 (1989) . ^74 Lewis v. United States,518 U.S. 322 <http://supreme.justia.com/cases/federal/us/518/322/case.html>(1996). ^75 United States v. Zucker,161 U.S. 475 <http://supreme.justia.com/cases/federal/us/161/475/case.html>,481 <http://supreme.justia.com/cases/federal/us/161/475/case.html#481>(1896). ^76 Id./See also/Oceanic Steam Navigation Co. v. Stranahan,214 U.S. 320 <http://supreme.justia.com/cases/federal/us/214/320/case.html>(1909); Hepner v. United States,213 U.S. 103 <http://supreme.justia.com/cases/federal/us/213/103/case.html>(1909). ^77 Kennedy v. Mendoza-Martinez,372 U.S. 144 <http://supreme.justia.com/cases/federal/us/372/144/case.html>(1963). ^78 McKeiver v. Pennsylvania,403 U.S. 528 <http://supreme.justia.com/cases/federal/us/403/528/case.html>(1971). 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 |
