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dennis l blewit  January 12, 2015            082313_1855_ITISTIMEFOR1.jpg

Dennis L. Blewitt, J. D.
NOTE. I appologize for the earlier version. I dictate and then revise and proof read. I was experiment with saving the version on the cloud and published instead.

WITH the business model and emphasis on squeezing more cases through the courts without any increase in costs, managers concocted ways to make the court process more efficient. Although most private attorneys believed that justice and efficiency were mutually exclusive, their input was all but ignored. Like bringing a lobster pot to boil while the lobster is alive in it causes the lobster to be unaware that it is be cooked, the changes to the system caused justice to be cooked. This hasn’t been a sudden change, but a gradual erosion.
The first to go was the presumption of innocence. It was inconvenient and inefficient. Most people processed into the system were guilty of something, “so why bother with a trial?” became the rallying point of the police and press. “Everyone knows the person is guilty.” Although prosecutors and defense attorneys had training and power to set policy, judges and prosecutors differed to the police. Communication between various members of the court system declined. Little was shared. The legal world dichotomized. Prosecutors became lifetime career prosecutors. Instead of lawyers, they formed a subculture of law enforcement. Most judges, although required to have 5 years of law practice, came from the Government sector, which was trained more in procedure and results than abstracts like justice and equity. To make courts more efficient, a whole new culture had to be made. The basic premises of common law attacked and abolished. Any corporation can be efficient if the executives and board of directors don’t have to answer to a court. As long as the corporate voters are stockholders, there is little chance of change or rebellion.
Likewise, when the courts abdicated their role as third branch of government and became a method whereby executive decisions could be implemented and enforced, they became relatively efficient. One by one, the impediments to efficiency were abolished in favor of policy which forced accused to plead guilty to something and cases were processed. The job of a judge was to move cases from one side of the desk to the other with the least amount of resistance. Pesky appeals were discouraged with the concept of substantial compliance or “harmless error.” In 2004, the litigation section of the American Bar Association stated the percentage of jury trials went from 11.5% to 01.2% between 1962 and 2002, while the number of criminal cases substantially increased. What happened?
After war was declared on crime by Richard Nixon and John Mitchell, war rhetoric began to become prevalent. Unlike other wars, there was no identifiable enemy. The people in power could define the debate and the enemy. The enemy was the criminal. However, not every criminal, only ones from the lower class. Only ones who white middle-class Americans feared. Only ones that caused harm to them. Bankers and other white-collar criminals got a pass because there was no observable consequence of their crimes. Since most violent crimes are committed in identifiable geographical areas, the enemy was fairly easy to define. The war on crime was the war on the poor, undoing Lyndon Johnson’s war on poverty which was extremely unpopular with conservatives in the U. S. Guns or butter debate ended in favor of guns. In many sectors of the population, the war on drugs was also a war upon the black community.
A new agency was formed to bring about efficiency to the criminal courts. Law Enforcement Assistance Agency started giving massive amounts of money to the police establishment, not to study crime, but to study how to lock up more people and run the 3d branch of government more efficiently. Focus was on drugs and with a stroke of the pen a medical problem became a law enforcement one. To process this new crime, more efficiency was needed.
The sacrifice to efficiency was common law. Crimes were defined by statute by the police establishment instead of by common consensus. When a prosecutor tried to use the common law definition of murder to charge an accused, the Colorado Supreme Court ruled that there was no such thing as common law anymore. Every criminal act was defined in the criminal code or it didn’t exist. The next to go were the pesky rules of evidence which most law students agonized over while in school. These were deemed to be inefficient and obsolete because the rules slowed the process down and was hard for prosecutors to remember. An evidence code was enacted. It was even approved in advance by the U. S. Supreme Court without there being the required “case or controversy” as specified in the Constitution.
Presumption of innocence was attacked to the point of being recognized only in the guilty plea liturgy practiced by the priest judges. The centuries old concept of specific intent was abolished in most cases in favor of general intent, which had applied only to misdemeanors in the past. Constitutional rights were under attack and the people were losing. However, they were told that they were safer. We were stopping criminals before they could get to us, just like we stopped the commies before they got to Golden Gate. Though the world was coming to an end, at least we all would feel safe. The domino theory was brought home and applied to crime.
The coup de gras was a rules change that changed the concept of a criminal trial from being a process where the State has a right to interfere with life, liberty, or property, to one of inquisition. Defendants were ordered to give evidence to prosecutors for their use in prosecuting the accused. The transition to a Roman or Napoleonic legal system was almost complete. After those major changes, the process became relatively easy. Police indoctrinated judges ruled that this was not giving testimony against himself, but an aid in the search for truth. However, the truth wasn’t a common law truth based upon consensus, but a police imposed truth presented by various police lobby and interest groups.
Special classes were made mandatory for lawyers to keep their licenses. Judges had one set of classes, lawyers had a different set. One judge remarked during a hearing that he had attended lecture sessions by the state forensic chemist who wasn’t even a chemist. Because of this, the judge accepted the perjured testimony whom a state audit later revealed was biased, illtrained and viewed her purpose as helping the prosecutors. An audit report stated that she was biased against accused, hated defense attorneys, and bragged to colleagues when she was instrumental in a conviction. In another instance, a judge attended a class where he was told of a “failure to thrive” syndrome and severed parental rights based upon this instead of evidence.
Most private lawyers were unaware of the indoctrination of the Judges because Judges meetings and conferences are closed to the general bar and most practitioners have no idea of what is being taught to judges. The education is not generally about law, but about procedure and administration, which has little to do with justice, but much to do with case processing. Four times, in my experience, I have had cases in which a judge took judicial notice of seminar content that wasn’t based upon sound research or generally accepted fact, but was taught the judge in a special seminar by “experts” who indoctrinated the courts on new thoughts. This is the same process in which Judges in Germany had been taught about the genetic inferiority of certain species or mental illnesses allowing them to be subjected to the “final solution.” Since most people believe first and then see or decide, this preconditioning was important to adding to the sense of futility of having a trial. Recognizing questionable research by prosecutors and judges cuts off rebuttal and is extremely efficient, even if wrong.
For example, a multimillion dollar judgment was entered against the state in the murder prosecution resulting in a wrongful conviction when a detective and investigator were allowed to implicate a defendant because of a “forensic analysis” of some of the accused drawings and unusual behavior. It was voodoo science such as practiced by witch doctors and some prosecutors. However, it is almost impossible to defend against. That is why the innocence projects started. The number of wrongful convictions is staggering. Unfortunately, that only investigates homicide cases. The public, it seems would rather see someone incarcerated than take a chance that their conditioned fears become reality. They feel safe. The prosecutors that framed the suspect in Ft. Collins were rewarded for their conduct by being appointed judges. However, eventually the miscarriage of justice was discovered. The judges resigned and the wrongfully convicted defendant awarded eight million in damages.
As the assembly line got rolling, prosecutors no longer made appointments with defense counsel. Instead, cases were reviewed and ultimatums dictated to accused and their lawyers. Plead guilty to what I think is reasonable, based upon the opinion of the arresting officer, who had nowhere the training of the attorneys. Preliminary hearings, where defendants could get a feel for how a trial would go and make it easier for defense attorneys to explain realities facing clients, were essentially abolished. Now, with one meeting, sort of like a final inspection of a consumer item, the prosecutor’s evaluation, is made known, an offer made and a plea generally agreed upon. Very quick. Very efficient. No debate. This all is done generally in a hallway with lawyers and defendants all waiting to be called. Just to show what prosecutors think or lawyers, they are made to stand in line like anyone else, causing them to either forget about any hourly rate or eating the time, unlike the salaried prosecutors. Instead of acting as an advocate for the client, the lawyer must spend an inordinate amount of time explaining why the system doesn’t work as portrayed on television and that the deck is stacked against the accused. Guilt or innocence doesn’t matter. The only thing that matters is the opinion conveyed by the prosecutor. The prosecutor has all the power and it is almost unbridled.
To make matters worth, instead being an advocate for a defendant, his attorney must explain mandatory minimum sentencing and the concept that he is objectified and symbolic rather than a real person. The client becomes a messenger to the public of the prosecutor’s evaluation of politics and opinion. Thus, a prosecutor argues to a judge or jury to punish, not for the benefit of society or the people whom the prosecutors represent, but to send a message to the public (press) of a prosecutor’s interpretation of a law. The press refers to this process as “plea bargaining” but there is no bargaining. The prosecutor tells the defendant what he wants and the defendant can take it or leave it. The prosecutor is answerable to no one save his or her own sense of morals and fairness. There is absolutely no input by the citizenry in the process like that previously thought the jury serves. The result is a product of politics and of experts, ignorant public be damned. This has been exacerbated with the concept of zero tolerance, which totalitarian type officials espouse to cut off any debate. So, what does an attorney tell a client facing a minimum mandatory sentence? “Plead guilty and get probation or a light sentence or be someone’s sex object for 20 years in prison. Only insane defendants would refuse, and since legal insanity has all but been abolished along with justice, that won’t work either.
Essentially, a third branch of an alleged representative form of government has become a closed system. The feedback loop has all but been abolished. The people are powerless to communicate with their police departments or prosecutors in any meaningful way. Juries often revolt against the iron fist of inflexible prosecutors by not agreeing with them, either by a hung jury or by an acquittal. In years past, prosecutors would take that as a warning from a public representation that his interpretation of policy is wrong or misguided. Now, they go to the press and whine that an accused “escaped justice.” One juror was criminally prosecuted for not voting guilty on a drug case because she didn’t follow the instructions given to convict. The jury is no longer a safety valve. It is the rubber stamp of the police state. It is as though the prosecutors have inherited the medieval concept of divine right of kings. The king can do no wrong, nor can a prosecutor. The real tragedy is that the people administering the system are clueless. They don’t associate with people outside their group, let alone communicate with them. They haven’t a clue that their policies are subject to criticism.
Just like an occasional lemon comes out of the assembly line of the auto manufacturer, a lemon result comes out of the justice assembly line. The tragedy is that these people haven’t a clue that anything is wrong, even if they cared. They are absolute rulers, naked, with subjects too afraid to tell them so, and even if they got a clue, they didn’t have the leadership ability to rectify things. Many of my colleagues believe that the system no longer know the difference between right and wrong. Well, systems aren’t supposed to know anything. It is the people in the system that should be able to differentiate. However, they are too afraid of losing power. Rather than admitting mistake when a citizen is killed or hurt, the administration said, like the war criminals at Nuremberg that the officer was just following procedures (orders) or training. Like the persons delivering human subjects to the ovens, they do as they are trained. And, when an official questions this, he is shunned and accused of not “backing the police.”
It would take an absolute idiot to not see that the killings of citizens in New York by the choke hold was wrong. Yet, when the Mayor of New York didn’t espouse the party line and tell the world that the result was justified, he was ostracized by the New York Police. They turned their backs on the mayor at a public event. The police had a childish work slow-down, like a spoiled brat. It makes me wonder if there is a need for police brain transplants. In turning their backs on him, they displayed the same lack of respect that they complained about.

Dennis L. Blewitt, J. D.

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