Dispatches From The Defendant's Side Of The Criminal Law: Some Sanity In A Sea Of Confusion!

Sunday, November 25, 2007

Some Sanity In A Sea Of Confusion!

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. -- Article II, Section 4

REP. DENNIS J. KUCINICH, D-OHIO:

We hold these truths to be self-evident: That all men are created equal; that they are endowed by their creator with certain unalienable rights; that, among these, are life, liberty and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the government; and, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.

These words from the Declaration of Independence are instructive at this moment. Because not only whenever any form of government, but whenever any government official becomes destructive of the founding purposes, that official or those officials must be held accountable. Because I believe the vice president's conduct of office has been destructive to the founding purposes of our nation. Today, I have introduced House Resolution 333, Articles of Impeachment Relating to Vice President Richard B. Cheney. I do so in defense of the rights of the American people to have a government that is honest and peaceful.

It became obvious to me that this vice president, who was a driving force for taking the United States into a war against Iraq under false pretenses, is once again rattling the sabers of war against Iran with the same intent to drive America into another war, again based on false pretenses.

Let me cite from the articles of impeachment that were introduced this afternoon, Article I, that Richard Cheney had purposely manipulated the intelligence process to deceive the citizens and the Congress of the United States by fabricating a threat of Iraqi weapons of mass destruction to justify the use of the United States armed forces against the nation of Iraq in a manner damaging to our national security.

That despite all evidence to the contrary, the vice president actively and systematically sought to deceive the citizens and the Congress of the United States about an alleged threat of Iraqi weapons of mass destruction.

That preceding the March 2003 invasion of Iraq, the vice president was fully informed that no legitimate evidence existed of weapons of mass destruction in Iraq. The vice president pressured the intelligence community to change their findings to enable the deception of the citizens and the Congress of the United States.

That in this the vice president subverted the national security interests of the United States by setting the stage for the loss of more than 3,300 United States service members and the loss of 650,000 Iraqi citizens since the United States invasion; the loss of approximately $500 billion in war costs, which has increased our federal debt; the loss of military readiness within the United States armed services, through an overextension and lack of training and lack of equipment; and the loss of United States credibility in the world affairs and decades of likely blowback created by the invasion of Iraq.

That with respect to Article II, that Richard Cheney manipulated the intelligence process to deceive the citizens and the Congress of the United States about an alleged relationship between Iraq and Al Qaida in order to justify the use of United States armed forces against the nation of Iraq in a manner damaging to our national security.

And that, despite all evidence to the contrary, the vice president actively and systematically sought to deceive the citizens and Congress of the United States about an alleged relationship between Iraq and Al Qaida.

That preceding to the March 2003 invasion of Iraq, the vice president was fully informed that no credible evidence existed of a working relationship between Iraq and Al Qaida, a fact articulated in several official documents.

With respect to Article III, that in his conduct while vice president of the United States, Richard Cheney openly threatened aggression against the Republic of Iran, absent any real threat to the United States, and has done so with the United States's proven capability to carry out such threats, thus undermining the national security interests of the United States.
That despite no evidence that Iran has the intention or the capability of attacking the United States, and despite the turmoil created by the United States's invasion of Iraq, the vice president has openly threatened aggression against Iran.

Furthermore, I point out in the articles that Article VI of the United States Constitution states, and I quote, "This Constitution and the laws of the United States shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land. Any provision of an international treaty ratified by the United States becomes the law of the United States."

The United States is signatory to the U.N. Charter, a treaty among the nations of the world. Article II, Section 4 of the United Nations Charter states, and I quote, "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations."

The articles conclude by pointing out that the vice president's deception upon the citizens and the Congress of the United States that enabled the failed United States invasion of Iraq forcibly altered the rules of diplomacy so that the vice president recent belligerent actions toward Iran are destabilizing and counterproductive to the national security of the United States of America.
These articles of impeachment are not brought forth lightly. I've carefully weighed the options available to members of Congress and found this path the path that is the most important to take.

The justifications used to lead our nation to war have unquestionably been disproved. Brave soldiers and innocent civilians have lost their lives in a war the United States should never have initiated. The weight of the lies used to lead us into war has grown heavier with each death. Now is the time for Congress to examine the actions that led us into this war, just as we must work to bring the troops home. This resolution is a very serious matter, and I will urge the Committee on Judiciary to investigate and carefully consider this resolution.

1 comment:

Anonymous said...: Bob,

Thank you for your attention to these efforts to have an impeachment investigation. I am writing to offer you a link to some comments you may wish to consider, openly discuss on your blog, can keep in the back of your mind as you hear Kucinich's comments on impeachment in the next few days: There are efforts underway to put some teeth behind Kucinich's call on the House to act.

Proclamations Well Known

As we speak, many groups are working to organize support for new proclamations. These are well known. Proclamations can put pressure on the House to act. It was these discussions on proclamations calling for impeachment which led, in part, Kucinich to understand there was popular support for impeachment, and to force the House to vote -- up or down -- whether to put the Constitution before the Vice President.

Similarly, these proclamations can also be rewritten to support Kucinich: There are ways to make the House be challenged: Whether they will or will not continue to follow a leaders who refuses to clear the way for impeachment. Here are some links to help understand what is going on: here and here. The goal of this is not to disparage Pelosi, but to confront the House leadership and create a credible threat: Either make way for the impeachment investigation; or the issue of your speakereship is on the table before the House.

Please Comment On The Effort To Challenge Pelosi To Make Way For An Impeachment Investigation

My reason for writing is to ask that you publicly comment on your blog your words of support; or your comments/concerns about why you believe the Speaker should not be confronted. Whether you agree or disagree with this confrontation is less important than your willingness to continue expressing your views on the Constitution; and in choosing to share your opposition to something you believe is unwise.

Some like Matt have dared to challenge the House; and have openly called for the public to join him. I hope you'll see how easy and simple this challenge can be; but how powerful the voice of one blogger is. Like the Constitution, the idea to start proclamations to challenge the House on impeachment started with one person. I hope you'll realize that your single voice can be that leadership which inspires others to join you and Matt.

It Only Takes One To Lead

Regardless your support/non-support of these efforts, I hope you will use the power of your blog to touch others, raise your comments, and encourage others to take a stand: Should the House be forced to confront the Speaker or not; and what other options should be considered to clear the way for impeachment. That leader could be you, or anyone you dare to share your views with.

Thank you for your blog, your time, and your energy in defending the Constitution. Best wishes to you.; November 25, 2007 at 1:58 PM

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Outline Of A Federal Case

The following is a very broad overview of the stages of a typical federal criminal case.

Defendants are usually brought to federal court in the custody of federal agents. Unless the Grand Jury has already charged the defendant by indictment, the charges against the defendant are set forth in a criminal complaint. The criminal complaint is accompanied by an affidavit that summarizes the evidence against the defendant.

At the defendant's first appearance the defendant will appear before a federal magistrate judge. This magistrate will preside over the first two or three appearances, but the case will ultimately be referred to a federal district court judge.

The prosecutor appearing for the government is called an "Assistant United States Attorney," or "AUSA." There are no District Attorney's or "DAs" in federal court. "

When a defendant first appears before a magistrate, he or she is informed of certain constitutional rights, such as the right to remain silent. The magistrate judge informs the defendant of the charges and the statutory maximum sentence that accompanies each charge. The "statutory maximum" is the most jail time that a defendant can receive -- it is rarely the actual sentence that is given. The magistrate judge then turns to the issue of release, or bail.

If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by the Bail Reform Act (18 USC § 3141 et seq.). There are some types of criminal charges where the government gets an automatic three days to prepare for a bail hearing. These are called presumption cases and include offenses such as drug dealing, child sex and child porn offenses and crimes of violence, like bank robbery. The government may also try to detain by proving that the defendant is a flight risk, or a danger to the community. In those instances the government also gets three days to prepare for the bail hearing. The defense can ask for up to five days to prepare for the bail hearing.

Pretrial Services is a neutral court agency that interviews the defendant, prepares a short life background and criminal history for the court and makes a bail recommendation. The defendant’s attorney should accompany the defendant to the pretrial services interview.

Before the bail hearing, the attorney works with the defendant to identify resources to post for bail. Bail bondsmen are usually not involved in federal court. If the defendant is released at the bail hearing, it is often with conditions. Typical conditions include reporting to Pretrial Services and drug testing. More restrictive conditions can include electronic home monitoring or release to a halfway house facility.

Within 10 days of the initial appearance for in-custody defendants, and within 20 days of initial appearance for out-of-custody defendants, a defendant is entitled to a preliminary hearing or, if indicted, arraignment.

There are always federal grand juries sitting in the Western District of Washington. A defendant will usually be arraigned on an indictment instead of having a preliminary hearing. This is because the government usually elects to indict rather than give the defendant a preliminary hearing and a Grand Jury indictment eliminates the need for a preliminary hearing.

An indictment is a formal charging document that contains the federal charges faced by the defendant. The goverment presents evidence to the grand jury, and if there is sufficient evidence to to establish probable cause, the grand jury returns an indictment, which is also called a true bill. There can be many indictments brought in one case – later indictments are called "superceding indictments."

At arraignment the defendant enters a not guilty plea. The clerk will announce a trial date and a date that pretrial motions must be filed. The defense attorney will also ask for discovery. Once there is an indictment the case gets a new case number. The initials on the end of the number are those of the district judge to whom the case has been assigned.

A district court judge, or "Article III" judge, is appointed by the President, confirmed by the Senate, and serves for life. The district court judge will preside over the rest of the case, for all hearings, the trial, and sentencing.

There are an enormous variety of pretrial motions that can be filed in a criminal case. These can include constitutional challenges, motions for a bill of particulars, motions to strike surplusage, and severance motions. The most typical pretrial motions are suppression motions where the defense moves to suppress evidence, or to prevent the government from using certain evidence at trial. Suppression motions can include suppression of evidence, like a gun or drugs seized in a search, or statements, like a defendant’s confession.

In the vast majority of federal cases, the defendant pleads guilty and does not go to trial. A defendant can plead guilty as charged or or can strike a deal with the prosecutor and enter what is called a plea agreement. Often the defense attorney and government attorney will spend considerable time negotiating the terms of a plea agreement.

In considering whether to accept a plea agreement the defense attorney will discuss with the defendant the benefits of pleading guilty versus the sentencing consequences if the defendant is convicted after trial. The greater the benefit under the plea agreement the more likely the attorney will recommend that the defendant accept the plea agreement. However, the attorney can only give advice; it is the defendant’s decision alone on whether or not to accept a plea offer or to go to trial.

A small proportion of federal cases go to trial. The typical federal trial lasts three days to a week but some trials, usually multiple defendant "white collar" crimes and complex drug conspiracies, can takes several weeks to try.

At trial, the defendant has a right have the case decided by a jury of 12 citizens. The defense can preemptory excuse jurors whom it feels will not be favorable to the defense case and excuse for cause jurors who are biased or indicate that they cannot be fair and impartial.

At trial the defendant has many right including the right to testify – or to not testify, and if he or she does not testify, that cannot be held against the defendant by the jury. The defendant also has the right to "confront" and cross-examine government witnesses and government evidence, and can use the subpoena power of the court to secure evidence or witnesses on his or her behalf for trial. The defendant is not required to prove him or herself innocent; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if all 12 unanimously agree that the government has proved every element of the charge beyond a reasonable doubt can the jury return a verdict convicting the defendant of some or all of the charged crimes.

A defendant can be convicted of an offense by either pleading guilty or by being found guilty after a trial. If a defendant is convicted, sentencing will take place approximately seventy-five days later if the defendant is in custody, or ninety days later if the defendant is out of custody. If out on pretrial release a defendant convicted of a crime will often be remanded into custody after trial.

Probation, like Pretrial Services, are officers of the court and are neutral – they don’t answer to either the defense or the prosecution. Several weeks after the conviction, the defendant will be interviewed by a Probation Officer, with defense counsel present. The Probation Officer will then take information from that interview and along with material provided by the government, and will prepare a draft presentence report (or PSR). The draft presentence report is provided to defense counsel and the government thirty-five days before sentencing. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge.

Fourteen days before sentencing, the final PSR is provided to the judge. This final PSR describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. It also includes a recommended sentence, and lists any unresolved objections. Seven days before sentencing, the parties submit sentencing memoranda to the court, arguing for their proposed sentences. Three days later, the parties may submit replies to the sentencing memos. At the sentencing hearing, the district court judge will resolve any remaining objections to the PSR, make factual findings, and will consider the factors of the key sentencing statute - 18 USC § 3553(a) in deciding upon a sentence.

In addition to a custodial sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate. Before imposing the sentence, the court must permit the defendant to speak (or "allocute.")

After conviction the defendant has 10 days to file a notice of appeal or the right of appeal is lost.

Dispatches From The Defendant's Side Of The Criminal Law

Sunday, November 25, 2007

Some Sanity In A Sea Of Confusion!

1 comment:

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Outline Of A Federal Case

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