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


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


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


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.


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


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


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


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.