May eighteen. 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?
A 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 the
those things together. So we were going through the San
Jose Mercury. 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. So 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, you know, 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 know 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.
And in this class did I get into the difference between
judicial activists and judicial restraints? I didn't think
so. So that's what I'm introducing in a sense 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 of our parts of this country.
However, this discussion on the judicial system makes me
sound sometimes like a quote un quote ultra conservative.
And yet I don't think it's a conservative liberal issue. I
think it happens to be an issue of justice and that was my
point when we tried to identify that as a liberal. I fear
losing democracy and losing freedom and the people become
frustrating and they will have the system is not working and
that is to say the justice system 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? Survey on
television two nights ago indicated it was well -- yesterday
or Sunday, the discussion on the news was called the uncivil
society. And they surveyed people and they found that
people are so upset about people lacking civility that 43
percent 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?" And
then he looked at me and said, "Maybe in Louisiana." two
minutes later 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 on 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 no start flogging
people? Well, I was introducing reforms. We talked about
plea bargaining. The elimination of it last time?
Identifying I think that as far as plea bargaining goes the
general opposition of eliminating it is that 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. Because 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 pleaded guilty to
rape the average sentence was between eleven and fifteen
years. If you went before a jury it was 25 years. If
convicted. And 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 in an issue of justice and that's the point I made in
one class specifically why should somebody get -- not even
get an assault charge and I think I talked about the fact
that I turned against plea bargaining when the D.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 eleven
people or whatever they say, he probably raped in his life
two thousand people. Most rapes are not reported at all
because of the problems that go through. Women still, you
know, 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. 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. And I new her and
I remembered when she had gotten married and I knew the guy.
Real good-looking successful businessman about 26 and he had
been picked up on a rape charge. And they couldn't believe
it. Well within a couple more months he was picked up again
and flunked the polygraph and all the evidence was there.
Well apparently he had been committing rape since thirteen.
Now we're talking about a guy, you know, as I say that was a
very successful, very attractive man, no doubt. And he did
go to prison but she blamed herself. She felt you know
somehow she should have been able to handle the situation
and make him change. The old story -- I married a guy to
make him change. Or woman for that matter. And so she
actually didn't file for divorce for about a year and a half
afterwards that he was in prison for hopes until finally
some you know finally the mother sent her through therapy
and stuff. So it is a kind of a horrible situation.
But in the meantime this going 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
simply hate women and so it's a crime of violence. That's
not to say that there aren't sometimes quote un quote sexual
rapes but the vast majority of them are not and especially
with multiple rapists. And the district attorney's argument
was basically well gee we got him in prison for ten 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. Um, again, the old story and so I
just at that point I can't deal with this plea bargaining
anymore so that's when I turned gets against the issue of
it. See, my attitude is that you have to try to a chief
justice I'd rather lose in the court trying for justice to
tell you the truth 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 bar began it down
to, you know, um, is a assault or you know or some sort of
non sexual penalty that comes through. Non sexual penalty
meaning that he doesn't go down as a sex offender or she
usually.
Another reform that I talk about is the exclusionary
rule and did I deal with the exclusionary rule? Did I deal
it at all? 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 that
they have to obey the law themselves so if they can get away
from using illegally gathered evidence they might. It 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
and 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. And that was the problem with the
case itself. A lot of people don't understand that in our
system the difference is the guilty 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 we
often get upset by that and 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 six or seven
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 it is 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
bedroom 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 a loophole 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? I thought I did, yeah. In any case,
diminished capacity instead of getting life sentence or
executed, he received a seven-year prison term because he
couldn't distinguish -- he could distinguish between right
and wrong but his ability to control himself was limited
because he had been eating Twinkies was the proof. In any
case the Supreme court ruled about six 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 possibly of abuse but less of a
point certainly 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. It 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 without that particular
information evidence whatever you want to call it.
About two or three 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 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 is
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,
if you will. That makes us suppose set when we hear that
people get off.
The third specific reform they've would be to reduce as
much as I possible the discretionary power of judges.
Meaning, they can do pretty much what they want to do in
what cases? Well discretionary powers the way they return
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 the 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. They wanted to give with people on probation or
whatever they felt they could not. There was a big movement
by judges to overturn the law, however the 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 we picked up on a drug offense, be convicted of it,
you must serve five years in prison period. Again, with so
many lawyers and certainly judges don't like the inability
to bargain to compromise to avoid quote un quote 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 whose people or
spouses or brothers and sisters were in prison serving
mandatory drug charges in federal 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 thirty day filing, well it still was actually
and then if it was granted it's a six 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. And because it was only you know you live with
somebody longer than two months sometimes. By the way there
is no time limits on annulments you could have been living
together for twenty years and you could get it annulled if
it's fraud. I haven't found out if the kids are declared
non kids or illegitamate because if the marriage was not
legal -- right? Are they all now bastards? Neither do I?
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 obviously 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 did 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. And then they say in
Wright versus Bingo. The judge ruled such and ouch. Or
such an outcome occurred. Well, my lawyers goes and looks
up the cases and he comes back and he says Allen, most of
the case in which annulments was grant that I could find for
fraud was when one of the -- when both agreed before they
got matter 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 you know I felt I wanted to go with the truth. I've
been teaching at Ohlone too long. Truth didn't mattered.
No. So we thought. We brain stormed and I came up with
something that was true. We agreed if any problems would
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 in the Water Gate
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
will also have or she will have a certain amount of say.
Okay? 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, um, you know, used
to play golf with the judges and go to the courts and go to
the parties and have you know 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 because 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 respond.
In any case there were a lot of judges. He goes, we go
down to the courtroom. He goes in to talk to the judge in
chambers beforehand. Comes out and says Allen, the judge
doesn't like our argument. He said however 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 thirty days. So ten 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. All right. So we have to wait now thirty 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 thirty plus days go by. Get a call he says come on
done. He said what happens we got a Protestant. Yep. So
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
agree 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 four 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 I
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,
you know, in the civil system closed down some of these
frivolous lawsuits. Actually California had on it's 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
get a third of it. But we're also afraid that as the
attorney argue it would reduce the Americans ability their
right to sue that only the well this 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
lawsuit even the nonfrivilous 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, you know, getting paid for jury duty.
What five six bucks an hour? Another thing the English do
that I like, if a case is indicted and brought down an
indictments 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 herd that.
So that it's no longer allowed to be reported in the press.
What happen one case recently was at the American press
covered it from Niagra Falls. So that 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 court case that should be left basically for the
jury to decide without worrying about the influence and
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. And as I indicated,
you know, even the lawyers have to dress well. Marcia Clark
in the OJ Simpson case was condemned for her hair style and
her clothing. Now was that what the case was suppose 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 Swartzenager made Running Man a few
years ago where everything was done like on a TV game show.
One of things that I have been waving 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 prostitution are often
directed around drugs much like the prohibition in the 1920s
was directed around alcohol. However, would decriminalizing
drugs is it 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? How many anybody read about it? Yeah. Apparently they
said very directly 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 and she said
in just a few days of being there as a transfer student in
February people were offering her drugs. And 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 world such as
Holland. Free distribution in England through clinics but
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 powered 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 away 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, but yet if when what's
her name surgeon general Elders had 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 fifty 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, you know, the way
our economy has gotten because people don't want to pull it
in from their own taxes. So why not convince they will to
allow the government to sell drugs? It ain't going to
happen for awhile. No, I'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 organize make a different like
the lottery.
Um, meanwhile, Joyce Elders was finally removed as the
surgeon general you may have remembered when she had 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.
Basically. 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
straight. If you will. How the courts are organized. The
constitutional structure. But before -- but I started out a
few minutes back at the beginning of 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 --
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? Anybody? On your word
list. I mentioned it before. William Renquist. How many
judges on the Supreme Court? 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 fifty, sixty,
seventy, 80, years ago like that. 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. And he
was annoyed and so he came up with a what became known as
the court packing scheme. He wanted to appoint two new
judges making eleven 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 a 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 Supreme Court when I say court I'm referring to
Supreme Court called Marbury versus Madison. It is also on
your word list. It was in Marbury versus Madison that the
court declared for the first time judicial review. For the
first time the court declared a law unconstitutional. 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 the
Constitution. I'm sorry, they can review cases to see if
they're constitutionally. In other words, the court's the
judicial review is the ability of the courts to rule on the
constitutionality of the law. It's the ability of the
courts to rule on the Constitutionality of the law that was
judicial review. 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. Um,
Madison mentioned it in one of Federalist Paper and alludes
to it and 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
begun 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 always
doesn't 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.
California 1992, whenever it was passed, legislation that
said if somebody on welfare came to live in California
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
collect around a hundred and 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 therefore something that is a judicial restraint
action? The answer is that would not in a judicial
restraint decision yet the judges who did and voted that way
were judicial restraint judges or claimed to be. In reality
this 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
would certainly be the kind of freedom we would accept as
the spirit of the Constitution. And therefore, that's
Judicial activist. Ruling on the Constitution based on the
accepted spirit today. Not necessarily, in 1797 -- I mean
1787. For example, the whole issue of Pressy was not an
issue in 1787. Today we are very concerned about our
privacy. And 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.
What 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 was he was
appointed chief justice in the U.S. Supreme Court in 1954.
The major case that he led the court to a nine zero decision
was actually celebrating it's 45th anniversary was announced
is that decision yesterday. The case was Brown versus the
Board of Education of Topeka Kansas. What was Brown versus
the Bored 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 sociologist to come in and testify as to what impact
segregation had on black children for getting the equal
facilities. That's social activism. Between 1954 and
through the 1960s and he left the court um, 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
segregationist and ultra conservatives and because he
believed and led the court into decision 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, um, 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 insists on 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 judge 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, you know, he
just I guess said I don't want these Mormons. I don't think
she's, you know, college professors who don't drink and
that's what we had three Mormons and three, you know, 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 -- now yeah they
took me too for June first. They got all the students where
it Oakland or Hayward? Oh, Hayward. I got no way. Unless
my boss makes up some bull shit, you know. Usually work
let's 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 I mean because the people make
up excuses, but, you know, and so after awhile they begin to
question how valid those reason 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. Um, I think it's interesting if you have the
time. I mean obviously if you're going to school I wouldn't
want 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 a hundred and
sixty of us in the panel that those that were chosen would
have to serve four months and maybe longer. It could have
taken a whole semester and I couldn't justify you know 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 resist. 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 very few days I don't believe in capital
punishment and 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
you know, capital punishment because my comment was
something to the effect is, you know, they'll respond based
upon how much they're paid.
So, do I believe that? Yeah. Sadly 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 most
do. The trial court in New York is called the supreme
court. That makes no sense to me at all. We also have had
municipal court 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. So, but
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 court. 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.
So um, what in the court in Oakland is that a federal
that's not a federal court know the federal court in this
area is in San Francisco, but yeah and 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 Medicino 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 eleven appeals courts. They
are called circuit courts of appeal. And they also use
basically 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 two hundred
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 two hundred cases
are actually heard at the appeals court level Supreme Court
level.
There are nine judges on the federal Supreme Court the
state of California Supreme Court has seven judges and of
the seven 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 a very controversial cases that may
need to be decided that like that California welfare law.
They have themselves finding to take those cases like
whether or not people had their 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 dissolve which
court made the right decision.
I got a minute. An example, a few years ago in 1980
many years ago they passed a law saying men turning eighteen
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.