May 18,The Judicial System
Does anybody here know how to spell Ellie Nessler? We were just trying —
Q Oh, I was going to say I thought it was E-L-L-I-E-with an E? N-E-S-S-L-E-R. Well
that's what we had. We were just searching it out because we were trying to get the
date that it occurred. With current events it's so hard to pull those things together.
So we were going through the San Jose Mercury News. So we went through the number
of years, but Nessler was called N-E-S-S-L-E-R. But we haven't tried E-L-L-I-E.
I think that's how you spell it. I-E. Well E-L-L-I-we have a lot there too. we'll
try after we get out of here. Trying to get a date on it. Anybody figure it's got
to be about six years ago, right? She was let out of prison because of breast cancer
last year? Your memory's going too, it's not just me. What was that? Her being let
out of prison. When they let her out of prison. I don't think people cared. I did.
I guess I felt, as I still say-I still feel personally that I'm glad she did it.
It made a point. A heck of a point to make. I don't believe anybody should take
anyone's life. It's just one of those kinds of things, just get to a point of no
return on the way that the judicial system deals with molestation. Everyone's entitled
to a trial and jury. Megan's law. And the civil liberties of the people who have
committed offenses, because people now know, basically, where they live. I don't
think they have any rights when they've acted inhuman, previously, in that kind of
situation. Especially multiple cases. Criminal activities and child molestation and
sex offenders. But that sounds like a conservative. Did I get into the difference
between judicial activists and judicial restraints? That's what I'm introducing today.
Because the judicial system is not really an issue of liberal/conservative. It really
often boils down to judicial activists and judicial restraints. You all know that
I proudly wear the label liberal, even if, at times it seems like a dinosaur in
some parts of this country. However, this discussion on the judicial system makes
me sound like a "ultra conservative." Yet I don't think it's a conservative/liberal
issue. I think it happens to be an issue of justice. That was my point when we tried
to identify that as a liberal. I fear losing democracy and losing freedom and the
people become frustrated and the justice system is not working. They're willing to
give up freedom and that, of course, is the meat of the subject itself. Question
is, how far do you go? Yesterday or Sunday the discussion on the news was called
the uncivil society. They surveyed people and they found that people are so upset
about people lacking civility that 43% are willing to limit free speech to bring
back civility. My son blew up and said, "How can they limit free speech? How
will people take away civil liberties?" Then he looked at me and said, "Maybe
in Louisiana." Two minutes later we hear that Louisiana has passed legislation
that says that all students should learn civility, and the way to start is saying
"Yes, sir" and "no, ma'am" or "Yes, ma'am" and "no,
sir" to their teachers. It is now against the law for a student in Louisiana
not to say "Yes, sir" to their teachers or "Yes, ma'am." I want
you to think about that very seriously. I demand your respect. I want a —
Q Hong Kong is the same way. When we were under the English system you can't say
the name. You must say "sir" or "madam." You always have to be
polite.
A Is that by law?
Q It's required, yes. Yes. Required by law.
A So what's happened to all those Chinese students when they come here and lose all
their politeness? I'm just kidding.
Q It's Hong Kong, not China.
A No, I said — there are some ugly Americans and ugly British students.
Q Don't blame me, okay? No chewing gum in Singapore. Going to start flogging people?
Well, I was introducing reforms. We talked about plea bargaining, the elimination
of it, last time? As far as plea bargaining goes the general opposition of eliminating
it, the argument is that it will crowd the courts, but in my sense the issue of justice
is probably more relevant. But more important in those few tests, as I mentioned,
where plea-bargaining had been eliminated, they found it only clogged the courts
for a short period of time. Because after a few months people began to realize that
they were still getting a better deal by pleading guilty to the actual crime. The
penalties for going before a jury, at least most of them in most cases, are apparently
much more severe than if you plead guilty. For example, and I don't remember the
exact statistics, but I'm pretty close: in California in 1991 if you plead guilty
to rape, the average sentence was between 11 & 15 years. If you went before a
jury it was 25 years, if convicted. That's a big difference actually. Well for many
people, you know, somebody convicted of rape should be hung anyway. It's not an issue
of how many years, but it's still an issue of justice and that's the point I made
in one class, why should somebody get —not even get an assault charge. I think I
talked about the fact that I turned against plea bargaining when the A. got in front
of the TV and talked about the fact that they accepted a plea of assault on this
guy after the guy had been charged with 637 counts of rape and assault. Did I mention
that in class as well? That's not uncommon to have multiple rapes Most rapists, like
the Boston strangler, who killed 11 people or whatever they say, he probably raped
in his life 2000 people. Most rapes are not reported at all because of the problems
that they go through. Women still blame themselves. It's a horrible kind of a crime.
I had an actual situation in class. Time flies, so I don't know how many years ago
it was. This woman in class, who was about 23 at the time — her mother worked here
so I knew her mother very well — as part-time teacher. I knew her and I remembered
when she'd gotten married and I knew the guy. Real good —looking successful businessman
about 26, and he had been picked up on a rape charge. They couldn't believe it. Within
a couple more months he was picked up again and flunked the polygraph and all the
evidence was there. Apparently he had been committing rape since he was 13. Now we're
talking about a guy that was a very successful, very attractive man, no doubt. He
did go to prison but she blamed herself. She felt somehow she should have been able
to handle the situation and make him change. The old story —married a guy to make
him change. Or woman for that matter. So she actually didn't file for divorce for
about a year and a half after he was in prison. Until finally the mother sent her
through therapy and stuff. So it is a horrible situation. In the meantime, this guy
in New York had raped a three-year-old as well as a 67-year-old. Again, rape is not
a sex crime. Rape is a violent crime against women, and most rapists simply hate
women, so it's a crime of violence. That's not to say that there aren't sometimes
"sexual" rapes, but the vast majority of them are not, and especially with
multiple rapes. The district attorney's argument was basically, "Well gee, we
got him in prison for 10 years. At least he's off the streets. If we had charged
the actual rape we don't know if we would have convicted him. I mean a three-year-old
can't testify. How are you going to get a 67-year-old to testify? She might be too
weak and collapse on the stand." Yeah right. Again, the old story and so I can't
deal with this plea bargaining anymore, so that's when I turned against the issue
of it. My attitude is that you have to try to achieve justice. I'd rather lose in
the court trying for justice, so that the actual charge is there on the record. Because
in most cases they don't even have the actual charge on the record if they plea bargain
it down to, you know, an assault or some sort of non-sexual penalty that comes through.
Non-sexual penalty meaning that he doesn't go down as a sex offender. Another reform
that I talk about is the exclusionary rule, and did I deal with the exclusionary
rule? In 1913, I believe it was, the Supreme Court ruled that any evidence gathered
illegally cannot be used in a trial. It needs to be excluded. Makes sense. To protect
our civil liberties from abusive government or police. They have to obey the law
themselves, so if they can get away from using illegally gathered evidence they might.
They may still be doing it. If they try and get away with it. As much as I am convinced
that OJ Simpson is guilty, I am just as convinced that Furman planted the glove in
the backyard of OJ's house. Picked it up and dropped it there. I don't have the slightest
doubt on that one. But that's beside the point. Can I prove it? No. And if I were
on the jury, in the case, I would have voted not guilty. As much as I am absolutely
convinced beyond a reasonable doubt, the state still has to prove it. And that's
where justice comes in, in a sense that we never declare the person innocent. He
was declared not guilty. Not guilty because the state did not prove its case. That
was the problem with the case itself. A lot of people don't understand that in our
system the difference is the guilt and innocence are, I mean, not guilty and innocent
are different. We often say, "Well gee they declared them not guilty."
No. We're simply saying the state didn't prove its case and that's why that often
upsets us. We need to educate people on that. But in any case, the exclusionary rule,
especially since the Miranda decision a few years back in 1966, lawyers have used
to find loopholes like crazy. In the last 6 or 7 years the Supreme court, maybe longer
now, has begun to reduce the exclusionary rule, not get rid of it. You can't get
rid of it if you are going to maintain civil liberties, you have to have it. But
it doesn't mean that the courts should accept some of these, shall I call them stupid
kinds of things that have been done in the past, and the court has turned against
all of their own decisions. For example, many years ago in Chicago a situation occurred
where a search warrant was drawn up for a weapon. Police had an informant. The search
warrant said that the informant informed them that in this two-story house, in the
drawer of the bedroom dresser the weapon could be found. Well they went in with the
warrant, found the weapon and the fingerprints. The weapon was thrown out and so
was finding the fingerprints because the warrant said a two-story house and in reality
it was a one-story house. Now that is an example of loopholes that were constantly
being used or found and courts were buying them. Similar to the argument of the
diminished capacity when Dan White murdered Harvey Milk. The so-called Twinkie defense.
Did I mention that in class at all? In any case, diminished capacity instead of getting
life sentence or executed, he received a 7-year prison term because he couldn't distinguish
between right and wrong. His ability to control himself was limited because he had
been eating Twinkies, was the proof. In any case the Supreme court ruled about 6
years ago that if the search warrant is drawn up invalid, but the police acted in
good faith on that warrant believing it's valid, then the evidence can be used,
and that make sense. Of course it does open the door of perhaps a possibility of
abuse, but less of a point under the kind of checks and balances that we have even
in our legal system. Any confessions gained illegally would usually throw out a case.
Throwing out a case means a retrial. Usually if the district attorney decides he
wants to retry it, they don't have to but usually, it doesn't mean that the person
goes free. It usually means that they will try the case against them without that
particular information, evidence, whatever you want to call it. About 2 or 3 years
ago the Supreme Court came down with a case, it bothered a lot of civil libertarians,
and I'm border line, but it does reduce the exclusionary rule. It does say, well
actually it does and it doesn't. It does say that if a confession was gained illegally
and it was used in the trial and the person is convicted of the crime, if that confession
was gained illegally the confession is thrown out, but the trial does not have to
be. If the judges believe that the same result would have occurred in the outcome
of the trial, the same outcome would have occurred without the confession, the decision
can stand. But then again, in a jury case how do we know necessarily if the confession
really influenced the jurors? Well the judges believe they can judge that, if you
are, procedurally. So that's the kind of things that have been happening to try
and at least prevent lawyers from finding these little kind of loopholes l. That
makes us so upset when we hear that people get off. The third specific reform they
would be able to reduce as much as possible - the discretionary power of judges.
Meaning, they can do pretty much what they want to do in what cases? Well discretionary
powers _ he way they run their courtroom, the way they interpret the law, the way
they determine the sentence. Sentences are often left open for judges to determine.
Judges specifically like the power to make those kinds of determinations. A number
of years back, in 1971, Ronald Reagan was governor and he convinced the legislature
to pass legislation that said use a gun in a crime, be convicted of the crime, you
must serve time in prison, period. A lot of judges were really annoyed about that,
because if they wanted to give people probation, or whatever they felt, they could
not. There was a big movement by judges to overturn the law, however, there was such
an uproar among the people that the law stood. In federal law today we have determined
sentences, the law is spelled out. For example: be picked up on a drug offense, be
convicted of it, you must serve 5 years in prison, period. Again, with so many lawyers,
and certainly judges, don't like the inability to bargain, to compromise, to avoid
"justice" if you will. I was listening to one talk show while I
was working out a couple of years ago, where all these people were on whose spouses
or brothers and sisters were in prison serving mandatory drug charges in federal
prison, five years. Everyone had a different reason. He can't take care of my kids
--we'd have some income. He only did it because he lost his job. Well, you know
he did it because he was on steroids. She did it because she had P.M.S. All of that
kind of stuff which they use in the courts all the time is not relevant when you
have determinant sentences. Civil, the same thing applies and it applies on another
level too and that is the ability to try and figure out which judge should hear the
case. By the way, they can do that within limitations in criminal cases too by delaying
the trial until some other judge is going to be in charge of the criminal cases.
Many years ago I had a non-marriage; did I tell you about that? A non-wife. A non-wedding.
A non mother-in-law. A non father-in-law. A non son-in-law? No? What the hell is
he talking about? Anyone? The marriage was annulled. If a marriage is annulled it's
declared never to have existed. So therefore I had a non-wedding and a non-wife.
Which was true in the sense of non-wife as it goes. How do I get an annulment Why
did I get an annulment? Well, in California as in most states, annulments do exist
in the legal civil system not just in the church system. Generally the — is very
simple, it says fraud. That's the problem. It doesn't spell out what it is. Why did
I get it? Well, basically I didn't consider it a marriage because she left after
two months and ten days. She was probably the smartest of my wives. She got out fast,
but in any case, if I wanted to get the marriage dissolved it would be a 30-day filing,
well it still was actually, and then if it was granted it's a 6-month waiting period
before it's finalized, which meant sort of a paperwork and I just felt that it wasn't
a marriage so it really should be annulled. Because it was only, you know you live
with somebody longer than 2 months sometimes. By the way, there is no time limit
on annulments, you could have been living together for 20 years and you could get
it annulled if it's fraud. I haven't found out if the kids are declared non-kids
or illegitimate, because if the marriage was not legal —right? Are they all now bastards?
What is fraud? Well, in simple terms some of the things that are considered fraud
and annulment cases are really pretty simple. If the person is a bigamist and is
still married to three other women, then you've had fraud knowing that. That's an
obvious case of fraud. But in most cases it wasn't fraud, so I went to my —I mean
you can't term it. It's up to the judge. So I went to my attorney, who's a friend,
and he does what good attorneys do. They search the law books for cases. American
law, most law is based on case law. Since law is not spelled out and words like fraud
are not defined they're left to the discretion of the judges. How do the judges often
decide? They listen to arguments based on what other judges did, if they want to,
and so lawyers go look up other cases. Then they say, "In Wright versus Bingo,
the judge ruled such and such. Or such an outcome occurred." Well, my lawyer
goes and looks up the cases and he comes back and he says, "Allen, most of the
cases in which annulment was granted that I could find for fraud was when one of
the —when both agreed before they got married to have children, but after they got
married one of partners decides that they don't want any kids. That the judges accepted
". And he — so I said but that wasn't the case. Well let's try it anyway. You
see, he's an attorney. But in those days I had ethics. I'm not sure I would today,
but I felt I wanted to go with the truth. I've been teaching at Ohlone too long.
Truth didn't matter. No. So we thought, we brain stormed, and I came up with something
that was true. We agreed if any problems occurred we'd go to counseling. After we
got married she took off, so obviously we didn't go to counseling. That's fraud,
at least in my definition. As any other but who makes the determination if it really
is? The judge. It's the old story. I remember hearing it from the Watergate hearings
Nixon days. He's old —north Carolina senator gave stories urban or something. Guy
goes before the judge, young lawyer goes before the judge, and he's defending his
client and he says to this judge, "Judge, but that's not what the law says."And
the judge looks at him and says, "Son, you will soon learn that the law says
what it says when I say it." And that's the reality of the system. The law says
what the judge says. He says when he says it. But if you spell out the law in such
away that is pretty determinant, it doesn't give the judge a lot of say. He/she will
also have a certain amount of say. So we got to go make the argument to a judge.
We got a court case, a trial date. My attorney knows, he's a young guy at the time,
he's now an old guy who used to play golf with the judges and go to the courts and
go to the parties and go to the same clubs. That's what lawyers do. They have to
know who the judges are because that helps him. My friend told me many years ago
that he had a case in San Rafael. He was outside of his area, which is here in Alameda
county, and therefore he didn't know the judges, so he didn't have a response. In
any case there were a lot of judges. We went down to the courtroom. He went in to
talk to the judge in chambers beforehand. Comes out and says, Allen, the judge doesn't
like our argument. He said he will withdraw if from the docket and has suggested
we find a different judge. He's telling us to judge hunt, to shop around for a different
judge. When he withdraws it from the docket he can have a trial as soon as we can
get another open court. If we were to withdraw it will be 30 days. So 10 days later
we got another date to go down. Just before I'm ready to leave I get a call from
my attorney. He says, Allen, don't come down today because I checked out the judge.
He's a catholic. Catholic judges do not generally issue annulments. So we have to
wait now 30 plus days, they go by. Ready to go down. Get another call. Don't come
down, he says, we got another damn Catholic. Okay. Another 30+ days go by. Get a
call, he says come on down. He said we got a Protestant. So we go down, he speaks
to the judge in chambers, he comes out and he says, Allen, I think we've got it.
Get on the stand. Judge says what did you agree to before you got married? We agreed
to go to counselling. What happens after she took off? We never went to counseling.
She refused. Annulment granted, as simple as that. We went through 4 judges. A little
judge shopping here and there, but we finally got it. Okay?
That is what I mean by the discretionary power of judges and that, to a large extent,
is one of the major problems, think, with the system that we're dealing with. Now
in the particular case of discretionary power of judges there are many attorneys
who have talked against it in books, and even some judges. It's not like plea bargaining
where you don't find arguments by attorneys or judges. Although Mark was just telling
me that there was one former judge who has written a book against plea bargaining,
but that surprised me.
So, there are many other reforms. Especially in the civil system. Closed down some
of these frivolous lawsuits. Actually California had on its ballot twice, propositions
to try and reduce, if not eliminate, frivolous lawsuits, which will require the party
who filed, meaning one that really has no merit, is worthless, stupid, suing the
prison because they served chunky peanut butter instead of smooth peanut butter.
Or suing the school because they won't allow you to kill animals and drink their
blood because you're a devil worshiper. These kind of cases get filed. The lawsuits,
the proposition stated that somebody who lost would have to pay the attorney fees
and the court cost. They were defeated because Americans like to sue. It's a way
of winning the lawsuit. The attorney gets a third of it. But we're also afraid that,
as the attorneys argue, it would reduce the Americans ability, their right to sue,
that only the wealthy could sue. Because if they lost they could afford to pay for
it. Well I'm sorry, only the wealthy can afford anything now anyway. Especially in
our justice system. However, in England frivolous lawsuits, even the non-frivilous,
covers the cost of the pay. Yes it can if you ask for it and the judge grants you
the attorney fees. Seldom though will they charge you for court costs. But they will
charge attorney fees, but the attorney fees they charge you are never anywhere near
the attorney fees that you're paying if you're lucky to get one-third back. It's
like getting paid for jury duty. What $5-6 an hour?
Another thing the English do that I like, if a case is indicted and an indictment
is brought down, it means that there's enough evidence to bring in a trial, the press
is not allowed to cover it. Canada does the same, I think. I've heard that _ So that
it's no longer allowed to be reported in the press.
What happened in one case recently was that the American press covered it from Niagara
Falls. So they kept smuggling the press along the border. I don't think there's any
reason that the press needs to cover, with all the dirty details, the c court case.
That should be left for the jury to decide without worrying about the influence.
Certain TV cameras today are influencing the system in another way. The way they're
doing it now that the juror and others are looking to make stars of themselves. By
looking good. By creating an image. As I indicated, even the lawyers have to dress
well. Marcia Clark in the OJ Simpson case was condemned for her hairstyle and her
clothing. Now was that what the case was supposed to be about? To look good for the
American public on TV?
Obviously we've seen some of those future movies, what was the one that Arnold Schwarzenegger
made, Running Man, a few years ago where everything was done like on a TV game show?
One of the things that I have been wavering back and forth on: I am convinced that
if we could do it in some fashion, reduce the drug crimes in the United States, that
we'd save a lot of money, not just in prison, but in our own insurance. Burglar insurances,
everything else. A lot of the crimes that are being committed today are related
to drugs, from breaking and entering to murder, and of course, are often directed
around drugs, much like the prohibition the 1920s was directed around alcohol. However
would decriminalizing drugs be worth it or must we continue the war on drugs that
doesn't seem to be working dramatically. 19 students were busted yesterday in Tracy
high school. You read about it? Obviously not the only school, but the word had gotten
out so they decided to send in a federal under cover officer, who apparently is a
female. She said in just a few days of being there as a transfer student, in February,
people were offering her drugs. They found this whole ring operating in the school.
They pulled the kids right out of the class. They busted them. I don't know why
they have to do it that way. I never could understand. But I suppose part of it is
putting the fear into other students, that this will stop for at least a little while.
Decriminalization. Exists in areas of the world such as Holland. Free distribution
in England through clinics, but not in American — of methadone and other kinds of
they don't work as well because Americans, unless taken in the clinic, have a tendency
to water it down or powder it down and sell it. They know how to make money out of
it. We're capitalists, not like the English or Dutch, so any time anybody can make
money they're going to figure out a way to do it if they get something free or cheap.
I don't know, I really like to see a real scientific kind of study done in some area
to see what would happen. How far, that's a no no. That's like talking immorality.
A I think it will spread.
Q I don't know if it would or not. That's why I want to see it legally. It doesn't
for many, many years the increase did not increase, but then there has been an increase
in recent years. So it may well be an increase or decrease but we don't know if we
don't study it. When surgeon general Joycelyn Elders made that suggestion she ran
into all kind of trouble. Not just politicians are willing to make because it's like
talking immorality. We're going to accept legalized gambling. Now certain states
like the lottery to raise funds, maybe we could convince people to have decriminalized
drugs in clinics if we used the money for education. Whoa, but if you think that
sounds ugly that's the way the lottery would have sounded 50 years ago to most people.
Using gambling money for education? Or allowing advertising in the schools, on clocks,
in the books, so we can get equipment for the schools. To sell cigarettes or beer
at the colleges. And yet that's the way our economy has gotten because people don't
want to pull it in from their own taxes. So why not convince the people to allow
the government to sell drugs?
It ain't going to happen for awhile. No _ 'm playing games here, obviously, but I
think it's on the same level. Yes I'm opposed to legalized gambling. Sorry. Very
much so. See, all those puritan conservative values that are coming through? At
least state run I'm not opposed to decriminalizing or having gambling, but state
run, state organized makes a difference, like the lottery.
Meanwhile, Joycelyn Elders was finally removed as the surgeon general when she made
the suggestion that while abstinence was one thing, we also need to teach students
how to relieve their tension and sex education teachers should teach students how
to masturbate. The country went wild and Clinton had to fire her. People got this
image that all of a sudden get in front of the class and show them how to masturbate.
Of course there are those now who say they made a mistake. She should have brought
some teachers in the White House and taught Clinton. In any case let's move on
to the justice system.
How the courts are organized. The constitutional structure. I started out a few
minutes back at the beginning of the lecture talking about conservative/liberal values
and judicial restraints, judicial activism. There is very little in the Constitution
on the court system. Article Three covers the judicial system. Basically all it says
is there shall be a Supreme Court, a chief justice, and any other courts that Congress
deems necessary. The system has been left to Congress pretty much. We do have a Supreme
Court; that's required. But it doesn't say how many people. How many justices are
to be on the court, just that there shall be a chief justice. Who is it today?
On your word list. I mentioned it before. William Rehnquist. How many judges on the
Federal Supreme Court? That's something you should know. I'm surprised. Nobody knows?
It's nine. That number has varied over the centuries, but nine has been pretty consistent
with the last 50, 60, 70, 80, years. During FDR's term of office as president, many
of the New Deal speeches of legislation were being denied by the conservative court.
They called it being declared unconstitutional. He was annoyed, so he came up with
what became known as the court packing scheme. He wanted to appoint 2 new judges
making 11 judges. This way he'd have a majority of democrats on the board. Even his
own party balked. They did not want to see the court tradition change and so he
never succeeded in getting an extension in the number of judges. But this whole
bit about declaring laws unconstitutional, that's not in the Constitution. That's
the important element. There's very little there, as I indicated, just Supreme Court
chief justice, and any judges, serve for good behavior, basically life.
Now it doesn't say life because good behavior means you could impeach them. And their
salary cannot be reduced. Why? The same reason they serve for life. So that they
couldn't be effected politically and they can't be blackmailed by fear of losing
their job or getting their salary cut from making a decision, that's in the law rather
than a political decision. Not much else. As I say, it does not say a word about
declaring laws unconstitutional. However, in 1803, that number is on your word list
I'm giving you the answer to it right now. It will be somebody here who is not listening,
will ask me on Thursday, what is 1803? It will be you, yeah. So we'll all laugh
at that person okay? Promise?
In 1803, was the very important historical court decision. The Supreme Court, when
I say court I'm referring to Supreme Court, called Marbury versus Madison. It is
also on your word list. In Marbury versus Madison for the first time the Supreme
Court declared a law unconstitutional creating the precedent of the judicial review.
Judicial review is the concept that the courts can review cases constitutionally.
They can review cases to see if they're constitutional. In other words, the judicial
review is the ability of the courts to rule on the constitutionality of the law.
Most judicial scholars say the -- it's not in the Constitution, was because it's
an accepted principle, that it was done in the colonial charter. It was done in the
courts therefore it was simply something that they didn't need to put in because
it was just accepted.
Madison mentioned it in one of the Federalist Papers and alludes to it. However there
are those that believe that judicial review is unconstitutional and therefore illegal,
but they are few and far between. It's been accepted and the courts began to rule.
Unconstitutionality of law. The real basic difference is how they rule. Most of the
time it's through what we call judicial restraint. Judicial restraint is identified
with conservatives. Judicial activist is liberals, but it doesn't always happen that
way.
Judicial restraint, judges are judges that believe that you should only rule on the
Constitutionality of law if you have a direct violation of the words of the Constitution.
If there is a direct violation of the words of the Constitution, you have a violation
of the Constitution. Or you can check to see if there is a violation of the Constitution.
If there is a direct violation of the words or the intent of the framers, and/or
the intent of the framers. The Supreme Court came down with an interesting decision
yesterday that overturned a California law. The law dealt with welfare recipients.
In California, in 1992, whenever it was passed, legislation that said if somebody
on welfare in another state came to live in California and planned to continue on
welfare, they could only receive, until they became a citizens of California, the
same welfare payments they got in the state they came from. So if they came from
North Carolina where the welfare payments are $180 a month and came to California
where it's $300 a month they could only collect $180 or whatever it is in North Carolina.
The supreme court ruled that that violated the constitutional principle of freedom
of travel. Because it would prevent the freedom of travel. There is nothing in the
Constitution that talks about freedom of travel, right?
So, is that something that is a judicial restraint action? The answer is that would
not be a judicial restraint decision, yet the judges who did it and voted that way
were judicial restraint judges or claimed to be. In reality they were making a judicial
activist decision. What's the difference?
In activist you go to the spirit of the Constitution. And yes, I would say that the
spirit of the Constitution does provide freedom of movement and of travel. That would
certainly be the kind of freedom we would accept as the spirit of the Constitution.
Therefore, that's Judicial activist Ruling on the Constitution based on the accepted
spirit today. Not necessarily, in 1787. For example, the whole issue of Plessy was
not an issue in 1787. Today we are very concerned about our privacy. The courts are
ruling more and more in favor of the issue of privacy even though it is not mentioned
as much in the Constitution. In reality those could be judicial activists statements.
There was one the other day, the privacy organization, that I tend to believe with.
Although it was a conservative group it was supporting something in the courts? Maybe
it will come to me. Perhaps the best example of a conservative who was a judicial
activist was Earl Warren. He was appointed chief justice in the U. S. Supreme Court
in 1954. The major case that he led the court to a 9/0 decision was actually celebrating
its 45th anniversary. That decision was announced yesterday. The case was Brown versus
the Board of Education of Topeka Kansas. What was Brown versus the Board of Education?
It was the one about segregation. Meaning? It overturned the precedent of separate
but equal in schools. Please, just remember that deals with schools. It said, basically
that the separate but equal doctrine could not hold. It had been declared in Plessy
versus Ferguson, the court ruled that even though there might be equal facilities,
segregation created unequal treatment and that a young black girl being prevented
from going into a white school, even though she had an equal black school, would
always have the stigma of psychological instruction from the pressure of knowing
she was being prevented because she was black. The words weren't exactly like that
but that was the basic meaning. Actually for the first time under his leadership
the Supreme Court got involved actively and allowed sociologists to come in and testify
as to what impact segregation had on black children. That's social activism. Between
1954 and through the 1960s, and he left the court in 1968 I think it was, Earl Warren's
name appeared on billboards throughout the south saying impeach Earl Warren. He was
hated by racist segregationists and ultra conservatives because he believed and led
the court into decisions that brought the court into social activity including creating
equality in the schools by ordering bussing. It created demonstrations, riots in
Boston and elsewhere. Any questions on judicial activism or restraint or the word
judicial, review? You understand the term? Okay, so who's going to ask me what that
word means on Thursday? As I said, the court system has been established basically
through legislation.
Judiciary acts.
The states follow a similar court system to the federal system basically and that
is this: that most states and the federal system have a three layered court structure.
A three tiered court structure The main tier of the court structure, the foundation
of the building is the trial court. Trial courts are where trials take place. Which
means you have a judge and a jury. The judge can deny that right, by the way. The
judge can deny your request. Judges usually don't deny it but certainly judges have
denied and insisted on a jury trial, which is interesting. I actually was chosen
to serve on a jury one time and when the defense attorney took a look at us, he then
went to the and asked the judge to dismiss the jury and he asked for a trial by
the judge. He felt we had a real hanging jury there. I think it was very interesting.
So I never got to serve on that jury. What was the case? It was a drunk driving case
and he had dismissed. You have a certain number of peremptory challenges just because
you don't like their looks, you don't have to give cause and he had made all his
challenges and gotten rid of all the people he could, and everybody sitting on that
jury were non drinkers and he just, I guess, said, I don't want these Mormons. I
don't think she's, college professors who don't drink and that's what we had, three
Mormons and two college professors. You know, just generally non drinkers and all
these people. It was funny. I mean, you know, good I think he did have a hanging
jury there. How many of you have ever been called for jury duty?
A Five times.
Q How old are you?
A Well because I keep postponing it. And then they keep sending you, but you have
one. So that just, they're not accepted, to call you except once every two years
and I certainly know you're not 28 unless I really can misjudge you. You've —yeah
they took me too, for June 1st. They got all the students where in Oakland or Hayward?
Oh, Hayward. I got no way. Unless my boss makes up some bull shit, you know. Usually
work lets you go. I was supposed to be, I was on vacation and I wrote that I was
going to be on vacation and they denied me, so I had to call, and you're going to
have to do it. I get called. Yeah Well that's because the people make up excuses,
and so after awhile they begin to question how valid those reasons really are.
Anybody serve on a jury? You did what kind of case?
Um, one was drugs and one was a rape case.
Oh, boy. You had heavies. What about the other jurors? Were they idiots?
Q In the rape trial, yes, they were idiots. Really bad. That's always the fear that
you have. It was a hung jury.
Yeah. I think it's interesting if you have the time. I mean obviously if you're going
to school I wouldn't want you to miss class. I would for teaching once. I think
I mentioned that at the beginning of this year, last September, I was called for
a jury and it was —called 160 of us in the panel, that those that were chosen would
have to serve 4 months and maybe longer. It could have taken a whole semester and
I couldn't justify doing my civic duty for a whole semester and going down to Oakland.
I mean, I have to hassle you people or I couldn't exist. So I didn't use an excuse
I think I told you why I got off, didn't I?
Oh, it was a capital case for mass murder and they filled out a questionnaire and
I honestly said that except in a very few cases I don't believe in capital punishment.
I think that on top of my response to what's my attitude to psychologist when I made
that comment, my attitude. I think that got me off the jury more so than the capital
punishment. Because my comment was something to the effect of, they'll respond based
upon how much they're paid. So, do I believe that? Yeah. Sad to say. In any case,
the trial courts in California are called what? Superior court.
It's called the superior court. That's where the trials take place in California.
States can give different names, most call superior court, but some don't. The trial
court in New York is called the supreme court. That makes no sense to me at all.
We also have had municipal courts but municipal court judges have become Superior
Court judges now.
On the federal level, by the way, let me go back. There are 58 superior courts. One
court for each county, but there are numerous court rooms. Presently in Alameda county
there are 64 judges, meaning 64 court rooms. In one supreme court. I only know that
because I was told that by the judge who has put my name in for the grand jury. There
are 58 counties, therefore 58 superior courts.
Trial courts. Court being not the court rooms but the courts. On the federal level
there were 95 trial courts. I don't know how many court rooms. They're called district
courts. The district court, word on your sheet should be defined something like:
those are the trial courts in the federal system. How do you distinguish between
federal and state, by the way? What is a federal versus a state system or crime?
Federal law meaning law of the United States and then law of the state. So federal
cases deal with federal territory or federal law that covers — states deal with
states. So if I kill you and murder you in this class where am I tried? Where? Yeah,.
Alameda county. It's a state if I shoot you in the post office? Federal. Because
that's federal property.
Q So in the court in Oakland ... is that a federal?
A That's not a federal court. No. The federal court in this area is in San Francisco.
That would cover federal cases, which could be a drug case, it could be federal or
state depending. If they brought it from outside the country we got a federal case.
If we were in their own backyard in Mendocino county it would be a state case. Sometimes
there are jurisdiction disputes on these things because, you know, well —
The second layer is the appeals layer. You can appeal a case to an appeals court.
The appeals court doesn't have to hear it. It is not an automatic appeal. There are
some states that have an automatic, but generally not an automatic appeal. In capital
cases, not murder cases. California has five appeals courts.
Appellate courts.
They hear things on procedure. Generally, it's a three judge panel. Three judges
will ask questions of the attorneys because they have all the transcripts and then
after a few hours they may come down to a decision or wait a few days to discuss
it and come down with a decision later. It has to be at least two out of the three.
To get a decision one way or another. If they turn down the hearing or the appeal,
the lower court's decision holds. If they override the appeal or maintain the situation
you have another appeal to a higher court. But let's go back to the appeals on the
federal level. On the federal level there are 11 appeals courts. They are called
circuit courts of appeal. They also use three judge panels. From the appeals court
you can appeal to the highest court, the Supreme Court. There is a state Supreme
Court and a federal supreme court. There is the possibility of appealing from the
state to the federal Supreme Court if it is a constitutional issue. So there is a
possibility. But once again the supreme courts do not have to hear your appeal. It's
up to them. Of the tens of thousands of appeals filed, the Supreme Court of the United
States traditionally hears a little over 200 during a year. That's a lot of cases
because they not only hearings are short, they hear the appeal and speak to the attorneys
for only one hour. But they will spend days reading and researching and writing
reports and sitting together and arguing over the details of the case. Before they
issue an opinion. Okay? So about 200 cases are actually heard at the appeals court
level, Supreme Court level. There are 9 judges on the federal Supreme Court. The
state of California Supreme Court has 7 judges, and of the 7, one is a chief justice
of the California Supreme Court. Judges on the Supreme Court are called justices.
The federal Supreme Court, when it decides to take a case, will traditionally take
very controversial cases that may need to be decided, like that California welfare
law. They have themselves deciding to take those cases like whether or not people
had the right to tape TV shows once they had VCR. Whether or not you can wiretap
cell phones since they're not on wires. Those are the types of controversy cases
that need to be taken. However, the other kind of case that is often taken is the
controversial decisions where one appeals court, one of the circuit courts let's
say, rules one way and another circuit court rules another way. Because then you've
got this decision holding for that circuit. Let's say California and it's vicinity,
and then one around Chicago and it's vicinity, and they're different —so you're breaking
the law in one place but maybe not in someplace else. So the supreme court has to
hear that case to decide which court made the right decision
An example, in 1980, they passed a law saying men turning 18 had to register for
a draft that didn't exist, but put their name in. At that point there was a big upheaval
among anti-draft people and many young men refused to register. Some went and bragged
about not registering. A conviction occurred in both Los Angeles and Chicago. Appealed.
The appeal to the federal court in Los Angeles overturned the conviction, the appeal.
In Chicago, they upheld the conviction. In Los Angeles, the argument in Los Angeles
and Chicago were the same. Selective prosecution. They argued that they were selected
out and no other people were tried who were not resisting. Others who were resisting
and not registering were not brought to trial. Los Angeles bought it, Chicago did
not. The supreme court followed Chicago when it ruled that it was not selective prosecution
because they had identified to the public that they were breaking the law and therefore,
the federal Marshal's had no choice but to bust them. Okay. We'll review on Thursday.