Burns Chronicles No 21
The Public’s Right to Know
Outpost of Freedom
May 16, 2016
We all know that when there is an alleged violation of one’s rights, the freedom of the accused, while somewhat curtailed, is usually respected, and this is known as part of due process. Absent due process, judicial behavior often falls into arbitrary decision-making, biased juries, and the rail-roading of political undesirables, straight into prison. Lack of judicial transparency is usually a clear sign that whatever vestiges of a republican form of government may still be there is waning, and quickly; should the public’s right to know not be reinvigorated, then posterity will likely never know true freedom.
A Person accused of a crime, according to the Sixth Amendment, has a right “to be informed of the nature and cause of the accusation” against him, “to be confronted with the witnesses against him“, and, “to have compulsory process for obtaining Witnesses in his favor“.
The government, of course, has the right to search with a warrant, and the subpoena power to compel witnesses. Clearly, they have a right to know.
The accused has the power of the subpoena, to compel witnesses on his behalf. He also has a right to discovery, to see what the plaintiff has, in the form of proof, and to introduce evidence on his behalf.
Historically, trials were public. Often crime scenes were photographed by news reporters/cameramen, often with victims still in place. Reporters were given all but the most critical investigative results, and all of this was to assure the public that there really was a crime in their community. Witnesses told what they saw, to investigators (public and private), other people, and the press. Those charged and arrested were able to talk to anybody and often did press interviews from jail. If they were released from custody, they could speak as freely as any other person. Thus, the public was always aware of the accused’s explanation of events.
When the matter went to trial the courtroom was open, so long as the observers behaved, and the press had every opportunity to report on all aspects of the case, including evidence and testimony. For the most part, all of the facts were laid out to the public, by one means or another, even before the trial began.
When the trial was over, regardless of the outcome, the community was fully aware of what had occurred, what the government did to bring justice, and whether the person that had been accused was vindicated of the charges, or convicted.
So, let’s look at what a trial really is. The first element is comprised of the facts of the matter. This includes evidence, recordings, writings, photographs, and the testimony of witnesses. However, that is just the beginning.
Years ago, going through some old law books, I ran across a rather interesting passage in an enactment from Utah. It struck me that it was closer to innocent until proven guilty than our current judicial process. In speaking of the trial, it said that the Indictment was on trial, not the accused (notice the difference between the usage of “accused” verses “defendant”. The accused is one who has had the finger of criminal activity pointed at him. The defendant, however, is, by implication, presumed guilty and has to prove his innocence. In the former (accused), the Indictment is on trial. The Indictment is sort of a story of a crime, and the story has to be proven to find guilt. If the story is not true (proven), then the accused is not guilty. However, in the latter, the defendant is on trial and has to prove that he is innocent. If he can’t prove his innocence, then he is guilty.
Now, back to the trial and its second element. We are not talking procedure, such as opening statements, the testimony and submission of evidence, and then the closing statement. Instead, we need to look at what is done with the facts of the case. For the most part, the facts are not arguable, themselves, though there may be some facts that seem to contradict others. However, what is occurring in those three mentioned stages of the trial (opening, trial, closing), we have nothing more than each side doing his best to present those facts, arguing as to just what they seem to prove. Their objective is to convince the jury, and the public, that those facts prove the case of their respective side of the trial.
This allowed the community to evaluate all aspects from the crime, through the administration of justice. With that in mind, the public would also know whether the government was serving the people, or had become an administrative functionary of the government, itself, endeavoring, if possible, to assure the government’s desired outcome, rather than justice. They were, though without legal authority, the final decisions as to whether justice was served, or not. As with the OJ Simpson trial, though the majority of the public disagreed with the verdict, they still accepted the outcome.
It is in those instances where the court pursues the end desired by the government, rather than the end of true justice for the community, that must be of concern to all of us.
Why it should be of concern is that we are the source of authority (We the People) of the government. It is We that are to be served by government rather than us serving the government. Should we venture too far away from that concept, we will find that the government’s control over our daily lives will always be subject to the government’s approval.
Just a few decades ago, with the exception of occasional photographs depicting elements of a crime, or an occasional audio recording, evidence in the trial was very limited.
More recently, however, we find that the government has spent hundreds, if not thousands, of man-hours, in building a monumental case. The evidence is often beyond the comprehension of most to understand its magnitude. However, the government is constantly evaluating what they have gathered, and by the time arrests might be made, they have been able to process 95%+ of the evidence.
Then comes discovery, the right retained by the accused to have access to what the government is using to prosecute them. It is often well after the arrest, based upon the one-sided evaluation of the evidence, that the accused finally gets to begin to review the mountain of data, though it often comes piecemeal, and though the government had months in advance to prepare their case, the defendant must begin a process that, also, could take months to process. Of course, before he can fully understand what the government has to support their accusations against him, the right to a speedy trial (70 days) is long-gone before he has been able to digest just what that mountain contains.
Two recent examples of the magnitude of the evidence acquired by the government might be noteworthy.
In the case of William Wolf, we find that the government, from an article about the discovery, had acquired 524 pages of written discovery and 17 DVD’s. The lowest capacity of a standard DVD is 4.7 gigabytes. It is safe to calculate that each DVD could hold 6 hours of video or 72 hours of audio, or all 17 DVDs could hold 102 hours of video (2 1/2 work weeks), 1224 hours of audio (over 30 work weeks), or a combination thereof.
A much more recent example is the case out of Burns, Oregon, United States of America v. Ammon Bundy, et al. As of April 20, 2016, in a “JOINT STATUS REPORT REGARDING DISCOVERY“, the government gives us a then current indication of the magnitude of evidence:
To date, the government has produced eleven volumes of discovery that comprise approximately 25,000 Bates [numbered] pages, 58,570 files, and over 360 gigabytes of data [over 76 DVDs]. The government continues to produce discovery in multiple formats including .pdf, text files, tiffs, load files, and natives.
Of course, there are 26 defendants in this case, but each of their respective attorneys need to go through the entire mountain, or arrange to have it commercially indexed to see which pieces affect their client.
Now, in both instances, the question arises as to whether there is any exculpatory evidence. Exculpatory evidence is evidence that might prove the innocence of the accused. The government is reluctant to turn over anything that might weaken their case. After all, their purpose is to win, regardless of innocence or guilt. And, since there is no requirement that the government must turn over everything, unless the accused has reason to believe that there is something in evidence that he hasn’t been provided, he cannot generalize and ask for all that was not voluntarily given.
Surely, we have all hear of the KGB (the Russian Committee for State Security), and the Stasi (East German Ministry for State Security). They were secretive law enforcement organizations that made sure that the will of the leaders was properly applied. Their means included secret agents, informants, false accusations (perjury), and, most significantly, denying the public from knowing anything they chose not to admit to. This left the public to always believe that the government was doing a fine job, except those few dissidents who would soon find themselves on trial, perhaps for the rest of their lives.
However, the American right to a speedy and public trial precludes such practices — or does it? Newspapers and other news sources are controlled, and can only publish that which is approved by the government. This creates what is commonly referred to as a “police state”.
It is the opposite of what the Framers gave us, and we have shed blood for, to retain that form of government. Our Liberty is a consequence of those efforts, far more than any other objects, except life and property. All are to be protected by the government that was created by the Constitution, and is therefore bound to that Founding Document that provides for an open and honest government.
As we advance in technology, such as the ease of recording audio, video, or both; the Internet, where everything you have said, under any circumstances; and the proliferation of informants and undercover agents (See Vortex – The threat that keeps us apart), we enter a realm whereby those standards of justice from the past can either be adhered to, or ignored, by those whose purpose is to administer justice on our behalf. However, if our judicial system abrogates that responsibility, choosing instead to assure that the government will almost always prevail against us, then we are nothing less than in a police state mentality that supported the KGB and the Stasi, except in name only.
As explained above, the intent of the Framers, has demonstrated by our judicial heritage back through centuries in England, is to allow the public to judge the process, for the sake of both their community and justice, then it would make sense that ALL information obtained by the prosecution be made publically available, without redaction. This would aid both the accuser and the accused, as anybody in the public realm who might have knowledge of something germane to the case, could come forward and offer what evidence they might have that would be beneficial to the ends of justice.
This would be particularly true with regard to the incidents in both Oregon earlier this year, and Nevada back in 2014, where hundreds, if not thousands, of pictures have been taken and where recorded conversations, or other testimony might shed light on the truth.
The government, however, chooses to hide behind a wall of secrecy. For instance, the Las Vegas Review Journal (LVRJ) has filed a Motion to Intervene with the Nevada Court to have the Discovery available to the public, via news media.
However, what is addressed in the LVRJ Motion doesn’t touch on the real problem.
If the government is able to suppress the information that they will use to try to convict the defendants in both Oregon and Washington, then they are approaching those tactics necessary for the KGB and Stasi to achieve their ends.
The government doesn’t want anybody but the defendants to see how the evidence was gathered. They argue that it is for the safety of the witnesses, though in both states, only the government has demonstrated a propensity for violence (See Burns Chronicles No 2 – Ambush and The Bundy Affair – #11 – “Violence Begets Non-Violence”). Perhaps it is their tactics, maybe well beyond what most Americans might deem to be acceptable. Perhaps it is the number of informants and agents that they injected into the events. But, if the government has their way, we will never know. And they will have achieved a major gain in moving into a complete police state, which is supposed to be guarded against by the foresight of the Framers when they wrote the Constitution and the Bill of Rights.
So, it is not just the defendants that are, so far, denied information critical for them to evaluate the charges against them, It is also a denial of the right of the people to know just how the government operates and whether it is seeking justice or persecution.