Monthly Archives: February 2008

Judges, Antitrust, and the Licensing of Lawyers

Imagine what your choices in shopping, or watching TV, or taking vacations, would be if one of your neighbors whom you hardly know could decide who gets to go shopping, who gets to watch TV, and who gets to take a vacation, and when. You wouldn’t feel very free, would you? Especially if that neighbor could order you to jail if you disobeyed his choice. Imagine further that you were dependent on that neighbor who makes decision for your ability to do any of these things, ever at all. It may be that you CAN’T even imagine a world such as I’m describing, because it is so completely antithetical to your relatively autonomous lifestyle now. You get to choose what you do on a day-to-day basis, and you think of that as your right. Well, the government actually regulates us, a lot, and gives certain corporations a lot of power over us, in fact, but the truth is we still have a lot of choices to make. But not so for the lawyers who litigate in court.

It is a fact not readily apparent to laymen or even to private litigants, but lawyers are controlled by the judges who make decisions in court. Part of being a “good” lawyer is to know or make reasonably competent predictions about what judges will do in certain circumstances. That is how a “good” lawyer can help his clients. It is a very limited and restrictive world. And it is a conflict of interest because lawyers are ABSOLUTELY DEPENDENT on the judges who decide their cases. Although, typically, in State Court at least, the admission of lawyers to the bar is not directly dependent upon the decisions of active judges, the admission process is governed by each State’s Supreme Court which designates a “Committee of Bar Examiners” or an “Admissions Committee” which is totally dependent on and controlled by the judiciary. This creates a conflict of interest of vast proportions.

Judges, ideally at least, but also as defined by law, are supposed to be “impartial and detached” third-parties who make decisions in cases in which they have no direct interest or personal stake of any kind. And it is true that MOST judges do maintain enough integrity to avoid cases where they are actually related to the parties in some direct way (that is, they don’t preside over cases involving their relatives, closest friends, corporations in which they are shareholders—although that’s more difficult to perceive sometimes and may be abused much more than is commonly realized), but judges do NOT avoid conflicts of interest when it comes to their relationship with lawyers.

This automaton-like control is most readily apparent in the realm of criminal law, where judges see the same team of criminal lawyers in case after case in a fairly repetitive and formalized fashion. Criminal lawyers are thus the most limited and probably least creative of lawyers precisely because they know exactly how certain judges will react in certain cases and situations, and the criminal process in the United States at least has become mechanical and like an “assembly line” in a factory: a factory of prisoners, most sentenced to very long terms (especially in Federal Court, but increasingly also in State Court). Arrest or prosecution for anything, in the United States, almost automatically equals conviction by guilty plea or at best a very brief and summary trial in which the judge tells the lawyers what to do, tells the jury what to do, and in effect, determines the outcome of the case without much leeway. In the both the State and Federal systems, the coercive plea-bargain system and almost automatic sentencing leads to long prison terms which the judges are happy to impose and the attorneys acquiesce in advising their clients to accept.

The loser here, aside from any and each of the individual defendants, is the concept of “substantial” due process, fair play, and “justice.” So there in the selection of outcomes, the menu is limited, competition is almost non-existent and meaningless, and the lawyers are there to implement the policies which the judges approve.

But what if lawyers did not owe their ability to practice law to judges directly? What if the licensing of attorneys were controlled, say, by the Executive Branch (like the licensing of motor-vehicle operators, perhaps?)? Or what if there were no such thing as a license to discuss and interpret the law, and appear before the Courts—a position which Montana Senator Jerry O’Neil has championed his entire life, and for which Nancy Jo Grant is fighting in Florida, albeit less explicitly and directly?

The First Amendment to the United States Constitution, if you think about it appears to describe the practice of law in all aspects except those directly related to religion: covering the rights to speak, assemble, and petition the government for redress of grievances. A monopoly on the exercise of First Amendment Rights is antithetical to the First Amendment’s guarantee of these freedoms, and yet such a monopoly would appear to be imposed by the “integrated bar” theory of judicial appointment and regulation of lawyers. So judges decide who gets to exercise “full” First Amendment rights, and this means, in essence, that NOBODY gets to exercise “full” First Amendment Rights. This is an intolerable situation.

Going to Florida on Monday to Support Nancy Jo Grant

I’ve only been “out” for a day over two weeks, a fortnight, “una quincena” in Spanish, but I need to go visit Nancy Grant in Sarasota and Arcadia Florida.  Nancy Jo Grant is the second of my great allies and supporters while I was in jail (and before and I would sincerely hope and expect, for life).  Frankly, I’m going to be “backup” for Nancy on Tuesday because she’s engaging in civil disobedience even weightier and more daring than my own.  You see, Nancy Grant contends that her conviction for maintaining a Christ-like Prison ministry in Florida is illegal, void for lack of jurisdiction as well as multiple constitutional violations, and I happen to agree.   http://www.nancygrant.info/  The problem is that Nancy was sentenced to an outrageous 15 years probation and a $33,000 fine which DeSoto County apparently needed to cover a county budgetary shortfall.  Nancy’s conviction is even a more outrageously “criminal” violation of her rights than my arrest in Los Angeles for contempt of court for failure to appear in a closed civil case.  But Nancy is going to be accused of violation of her probation, and willful disregard of a court order.  I happen to agree with Nancy that the judgment entered against her was entered in the absolute, complete, and total absence of jurisdiction, so that all the State Court judges who proceed against her are personally liable to Nancy for her actual damages.  But it will be a tough fight.  Nancy has been there for me during my ordeal and so I plan on being there to stand beside her in case the State decides to make her an even bigger hero than she already is.  Nancy’s best chance is that if DeSoto County tries to arrest her, her case and illegal conviction will receive even more publicity than it already has, Nancy will become more famous.  In the words of Obi-Wan Kenobi, “strike me down and I will become more powerful than you could ever imagine.” I’m not at all sure that applies to me but I am very sure it applies to Nancy Jo Grant.  As Jerry O’Neil and I have discussed, Nancy’s great strength is her purity of purpose, her lack of guile or “sophistication” in the sense of a cynical appraisal of social and political strategy.  Nancy is just a true missionary, has just “gone out into the world and preached” to the prisoners of Florida, sending a message of hope, in this world as well as in the next, and the State of Florida, especially Nancy’s native DeSoto County, cannot tolerate this threat to their illegitimate authority.  I would ask that everyone pray for Nancy—to give her strength to withstand whatever the State of Florida wants to throw at her.  I frankly doubt that the State will dare try to enforce its illegal judgment of conviction against her, but her defiance is so open and direct, that the State will have no choice but to admit its error, and in particular the constitutional violations committed by the DeSoto County Judges, if the State backs down.  “These are the times that try men’s souls.”  And Nancy Grant has been subjecting herself (and the State of Florida) to the truest modern “trial by ordeal” for many years.  The outcome of this battle is going to be one of the most significant events in the early constitutional history of the 21st century.

54 Days in Planet Prison

54 Days in Prison Planet (December 9, 2007-February 2, 2008)            

Since December 9, 2007, I have seen the inside of seven prisons (from the privileged position of an illegal arrestee, not even falsely charged with any genuine crime nor genuinely charged with any fake crime, who knew his time was finite, no matter how long it seemed).  For the benefit of any who might doubt where we’re headed in this Country, I just want to share what I have learned: (1) we are no longer free in this Country; (2) the Federal Prisons are the template for a future well-ordered society based on Maoist Chinese principles upgraded to technological perfection; (3) the State and Private Prisons are the product of an earlier, technologically imperfected version or cruder adaptation of Mao’s cultural revolution; (4) there are few if any genuine “criminals” in prison (at least not in the Federal system)—in my 54 days behind bars, during which I met or had conversational contact probably with over 500 fellow-inmates, I met at most one or two people of whom I was even mildly apprehensive, never mind afraid—and I met no genuine criminals, no threats to society, no “bad guys” at all, and (5) the values that are taught in prison are entirely communistic “All Good Flows from the State to the People at the State’s sole, arbitrary and capricious whim” and “Private Property and Private Identity are Forbidden, now and forever.”        

       Los Angeles Metropolitan Detention Center (“LAMDC”) was my first and most “pleasant” stop in this journey, and this was good because I was held there for 31 days, December 9, 2007-January 10, 2008, my longest stay anywhere.   The reason for the long delay was simple: the U.S. Marshals and the Judicial Prison and Alien Transportation Services (“JPATS”) were taking their holiday vacation, and prisoner transfers were not part of the Christmas or New Year’s schedule.  That prisoners don’t matter is the first lesson you learn in prison.  Prisoners are the justification for the existence of prisons, and prisons are big business, but beyond that, prisoners are merely an unpleasant detail in the life of prison officials, who exist merely to collect their salaries on very cushy government jobs which require very little work—if any.   The corollary to this first lesson is that “Prisoners’ rights” don’t really exist—they are a myth.  There is no presumption of innocence.  This was best illustrated at the two private prisons where I was housed (Geo Correctional Services Karnes County in Karnes City, Texas, and Louisiana Correctional Services’ Brooks County Detention Center in Falfurrias, Texas, inmates are referred to as “offenders” in all the prison-life and instructional handbooks).   A couple of old U.S. Supreme Court cases used to say that a prisoner “does not check his rights at the jail-house door,” but that was in the 1960s or ‘70s and this is now.   

Prisoners who have been in a long time are brainwashed into believing that the system is good for them.  That was perhaps the saddest lesson, and one of the aspects of the experience which convinced me of the “real educational” purpose of incarceration.  Prisoners come to believe that they were a threat to themselves and society (no matter how “innocent” the facts are in their cases) and that there is no such thing as “real” innocence in any event—they are all guilty of something, so they might as well be convicted and sentenced for things that they did as well as things that they didn’t, and they have all benefited from the prison experience.  For my part, I reviewed over a hundred cases and found none that contained evidence of crimes that were anywhere as appalling as the conditions in jail. 

At the “LAMDC”, I was very fortunate to be housed in Unit 7N, which was presided over by one long-term prisoner named Moshe (from Israel), who was the closest thing to a “Jewish Godfather” that anyone could imagine.  This kind, wonderful fellow worked as a jail “orderly” (what’s called a “Trustee” in the Texas State System).  He took a personal interest in every inmate in Unit 7N, and did everything he could to make everyone feel “at home”—since after a couple of years, prison IS home to many people, and most of the inmates in 7N, although housed in this “temporary holding” facility, had in fact been locked up for years—awaiting trial or appeal or to serve as witnesses for others.   Moshe (whose case was already on the last stages of post-appeal collateral attack) and his closest friend and associate Clarence (a black fellow from Belize, who was locked up waiting, waiting, waiting for trial) were together the most “senior” inmates and all I can say is that I would have been honored to have made their acquaintance anywhere in the world, outside jail, but I felt especially honored and privileged to make their acquaintance “inside.” 

Moshe’s case, in particular, I studied with relish, because it concerned the field of securities fraud, in which I have quite a bit of background since law school, and I came to the conclusion that he was absolutely, positively innocent of any of the crimes charged, which was very sad because his 20 year sentence had been upheld and his initial collateral attack been denied by the judge who sentenced him, despite ample grounds for reversal.  I have promised Moshe I will do everything in my power to procure his exoneration and release, no matter how long it takes. From Los Angeles Metropolitan Detention Center, I was transferred by “Con Air” in chains to the Oklahoma City Transfer Center, where I spent a week.  That was the coldest, most plainly Maoist, and therefore most frightening place of all. Prisoners were “chained in” and “chained out” and so there was not even the possibility of a fragile community which existed at LAMDC.  Los Angeles and Oklahoma City were not just architecturally cold and sterile, they were physically cold.  I complained bitterly but it was explained to me several times (with a completely straight face) that it was necessary to make the jails extra cold to calm the hot blood and tempers of the inhabitants, and to make sure that they stayed under cover and slept especially at night and during the repetitive lockdowns and count, which in all Federal Detention Centers apparently happens 3-4 times daily. The OKC Transfer Center was much harsher than the LAMDC, but it was also more crowded, and so after a couple of “Con Air” jets were grounded due to lack of maintenance (which delayed my departure back to Texas), I was transferred to a Federally Rented State Facility Called “Grady County Jail” in Oklahoma, which was like a bad movie in many ways: the prisoners all dressed in black and white zebra stripes, the guards illiterate, unable to count and constantly confused, and no one caring a hoot about anyone. 

It was in Grady that I met one of the saddest cases—a Purple Heart Decorated Veteran of the Iraqi war who was arrested for owning a private firearm.  He was a bona fide war hero (whatever you think of the war in Iraq, he was a man of obvious incredible bravery, perseverance, and fortitude, having been severely injured but continued in the line of duty….until his arrest).  He was the fourth generation in his family in the U.S. armed forces, jailed because he kept his father’s and grandfather’s guns and hadn’t “registered” them properly—I wish I knew more “criminals” like him, we all do.   

Another inmate whom I will never forget, and whose friendship I hope to maintain throughout my life, was named Vance and he was not only not a criminal, he was a crime-fighter, who was involved in the solution of several murders in Los Angeles.  He and I were arrested on the same day and brought before the same Magistrate Judge on December 10.  Like Moshe, he was a kind and generous person who did everything he could to make life in prison bearable for those less fortunate than him.  He also had an incredible personality and sense of humor—and I think only the truly strongest of individuals can maintain a sense of humor in jail.  I got to know Vance best in the Grady County Jail and our subsequent trip to Texas—but Vance was most notable to others by buying huge amounts of “commissary”—the overpriced luxuries which can be bought (although they must be rapidly consumed or they will be thrown away) to alleviate the evil dullness of incarcerated life. Grady County Jail was a comedy—if it weren’t so awful.  There 24 men with a single toilet and shower between them at one point, but it never went lower than 16. 

From Grady County we were “chained” by bus to Texas—first to a hell-hole called Montgomery County where I witnessed the first physical abuse by guards of inmates I had seen (it is apparently VERY common in Texas, although it was rumored in Grady County, Oklahoma).  From Montgomery County we went to the Houston Detention Center and then to Karnes County and then finally to the Brooks County Detention Center, where I spent my last week before the 30 minute hearing which led to my release without fine or probation.  Brooks County was an alien detention facility filled with the nicest, sweetest, gentlest people I met in my experience.  They were all or almost all illegal aliens or “coyotes”. 

I speak Spanish so I could get to know them, and I did, although there were 48 of us together in that room (6 toilets, all in full view of all 48 inmates or “offenders”).  This was the final stop on my journey through “the Twilight Zone.”  The Dementors are not merely the guards of Azkaban—they are the guards of every prison in the United States. I have spent the past 12 years, more-or-less continuously, fighting for civil rights in the United States. 

I have established a Trust, Tierra Limpia, to sponsor the war against oppression in my homeland, which needs neither protection nor security from any threat except that posed by its own government.  Those of us who thought, in the early 1970s, that contact with Communist China was more likely to infect our system than to correct the lifestyle of the imprisoned world were correct.  Everything in prison is made in China, including the style and manner of oppression and “re-education.”  Tierra Limpia foundation stands against all of that. Contributions to Tierra Limpia would be very much appreciated, especially since the operations were suspended during my incarceration. 

Such contributions are not tax-deductible because we have neither sought the protection nor offered ourselves in servitude to the IRS by declaring or applying for tax-exempt status, but we ask for your assistance in fighting the system, and can be sent to: CHARLES LINCOLN TRUST FOR TIERRA LIMPIA at 1250 South Pinellas Avenue, #206, Tarpon Springs, Florida 34689; charles.e.lincoln@att.net.  You can also call or fax CEL III directly at Telephone 727-234-1112 or Facsimile: 727-940-4473.