May 18,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? 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 those things together. So we were going through the San Jose Mercury News. 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. 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, 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 no 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. Did I get into the difference between judicial activists and judicial restraints? That's what I'm introducing 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 parts of this country. However, this discussion on the judicial system makes me sound like a "ultra conservative." Yet I don't think it's a conservative/liberal issue. I think it happens to be an issue of justice. That was my point when we tried to identify that as a liberal. I fear losing democracy and losing freedom and the people become frustrated and the justice system is not working. 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? Yesterday or Sunday the discussion on the news was called the uncivil society. They surveyed people and they found that people are so upset about people lacking civility that 43% 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?" Then he looked at me and said, "Maybe in Louisiana." Two minutes later we hear that 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 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 to start flogging people? Well, I was introducing reforms. We talked about plea bargaining, the elimination of it, last time? As far as plea bargaining goes the general opposition of eliminating it, 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. 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 plead guilty to rape, the average sentence was between 11 & 15 years. If you went before a jury it was 25 years, if convicted. 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 an issue of justice and that's the point I made in one class, why should somebody get —not even get an assault charge. I think I talked about the fact that I turned against plea bargaining when the 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 11 people or whatever they say, he probably raped in his life 2000 people. Most rapes are not reported at all because of the problems that they go through. Women still 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 it was. 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. I knew her and I remembered when she'd gotten married and I knew the guy. Real good —looking successful businessman about 26, and he had been picked up on a rape charge. They couldn't believe it. Within a couple more months he was picked up again and flunked the polygraph and all the evidence was there. Apparently he had been committing rape since he was 13. Now we're talking about a guy that was a very successful, very attractive man, no doubt. He did go to prison but she blamed herself. She felt somehow she should have been able to handle the situation and make him change. The old story —married a guy to make him change. Or woman for that matter. So she actually didn't file for divorce for about a year and a half after he was in prison. Until finally the mother sent her through therapy and stuff. So it is a horrible situation. In the meantime, this guy 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 rapists simply hate women, so it's a crime of violence. That's not to say that there aren't sometimes "sexual" rapes, but the vast majority of them are not, and especially with multiple rapes. The district attorney's argument was basically, "Well gee, we got him in prison for 10 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. Again, the old story and so I can't deal with this plea bargaining anymore, so that's when I turned against the issue of it. My attitude is that you have to try to achieve justice. I'd rather lose in the court trying for justice, 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 bargain it down to, you know, an assault or some sort of non-sexual penalty that comes through. Non-sexual penalty meaning that he doesn't go down as a sex offender. Another reform that I talk about is the exclusionary rule, and did I deal with the exclusionary rule? 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. They have to obey the law themselves, so if they can get away from using illegally gathered evidence they might. They 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, 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. That was the problem with the case itself. A lot of people don't understand that in our system the difference is the guilt 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 that often upsets us. 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 6 or 7 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 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 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 an example of loopholes 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? In any case, diminished capacity instead of getting life sentence or executed, he received a 7-year prison term because he couldn't distinguish between right and wrong. His ability to control himself was limited because he had been eating Twinkies, was the proof. In any case the Supreme court ruled about 6 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 possibility of abuse, but less of a point 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. 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 them without that particular information, evidence, whatever you want to call it. About 2 or 3 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 is 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 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 l. That makes us so upset when we hear that people get off. The third specific reform they would be able to reduce as much as possible - the discretionary power of judges. Meaning, they can do pretty much what they want to do in what cases? Well discretionary powers _ he way they run 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, 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, because if they wanted to give people probation, or whatever they felt, they could not. There was a big movement by judges to overturn the law, however, there was 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: be picked up on a drug offense, be convicted of it, you must serve 5 years in prison, period. Again, with so many lawyers, and certainly judges, don't like the inability to bargain, to compromise, to avoid "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 were on whose spouses or brothers and sisters were in prison serving mandatory drug charges in federal prison, 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 30-day filing, well it still was actually, and then if it was granted it's a 6-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. Because it was only, you know you live with somebody longer than 2 months sometimes. By the way, there is no time limit on annulments, you could have been living together for 20 years and you could get it annulled if it's fraud. I haven't found out if the kids are declared non-kids or illegitimate, because if the marriage was not legal —right? Are they all now bastards? 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 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 do 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. Then they say, "In Wright versus Bingo, the judge ruled such and such. Or such an outcome occurred." Well, my lawyer goes and looks up the cases and he comes back and he says, "Allen, most of the cases in which annulment was granted that I could find for fraud was when one of the —when both agreed before they got married 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 I felt I wanted to go with the truth. I've been teaching at Ohlone too long. Truth didn't matter. No. So we thought, we brain stormed, and I came up with something that was true. We agreed if any problems 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 the Watergate 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/she will also have a certain amount of say. 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 used to play golf with the judges and go to the courts and go to the parties and 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. 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 response. In any case there were a lot of judges. We went down to the courtroom. He went in to talk to the judge in chambers beforehand. Comes out and says, Allen, the judge doesn't like our argument. He said 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 30 days. So 10 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. So we have to wait now 30 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 30+ days go by. Get a call, he says come on down. He said we got a Protestant. So we 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 agreed 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 4 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, 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 civil system. Closed down some of these frivolous lawsuits. Actually California had on its 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 gets a third of it. But we're also afraid that, as the attorneys argue, it would reduce the Americans ability, their right to sue, that only the wealthy 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 lawsuits, even the non-frivilous, 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 getting paid for jury duty. What $5-6 an hour?
Another thing the English do that I like, if a case is indicted and an indictment is 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 heard that _ So that it's no longer allowed to be reported in the press.
What happened in one case recently was that the American press covered it from Niagara Falls. So 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 c court case. That should be left for the jury to decide without worrying about the influence. 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. As I indicated, even the lawyers have to dress well. Marcia Clark in the OJ Simpson case was condemned for her hairstyle and her clothing. Now was that what the case was supposed 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 Schwarzenegger made, Running Man, a few years ago where everything was done like on a TV game show? One of the things that I have been wavering 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, are often directed around drugs, much like the prohibition the 1920s was directed around alcohol. However would decriminalizing drugs be 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? 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. She said in just a few days of being there as a transfer student, in February, people were offering her drugs. 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 the world such as Holland. Free distribution in England through clinics, but not in 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 powder 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 out a way 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. When surgeon general Joycelyn Elders 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 50 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 the way our economy has gotten because people don't want to pull it in from their own taxes. So why not convince the people to allow the government to sell drugs?
It ain't going to happen for awhile. No _ '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 organized makes a difference, like the lottery.
Meanwhile, Joycelyn Elders was finally removed as the surgeon general when she 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. 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.
How the courts are organized. The constitutional structure. I started out a few minutes back at the beginning of the 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 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?
On your word list. I mentioned it before. William Rehnquist. How many judges on the 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 50, 60, 70, 80, years. 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. He was annoyed, so he came up with what became known as the court packing scheme. He wanted to appoint 2 new judges making 11 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 the 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. The Supreme Court, when I say court I'm referring to Supreme Court, called Marbury versus Madison. It is also on your word list. 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 cases to see if they're constitutional. In other words, the judicial review is the ability of the courts to rule on the constitutionality of the law. 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.
Madison mentioned it in one of the Federalist Papers and alludes to it. 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 began 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 doesn't always 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.
In California, in 1992, whenever it was passed, legislation that said if somebody on welfare in another state came to live in California and planned to 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 only collect $180 or 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 something that is a judicial restraint action? The answer is that would not be a judicial restraint decision, yet the judges who did it and voted that way were judicial restraint judges or claimed to be. In reality they 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. That would certainly be the kind of freedom we would accept as the spirit of the Constitution. Therefore, that's Judicial activist Ruling on the Constitution based on the accepted spirit today. Not necessarily, in 1787. For example, the whole issue of Plessy was not an issue in 1787. Today we are very concerned about our privacy. 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.
There 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. He was appointed chief justice in the U. S. Supreme Court in 1954. The major case that he led the court to a 9/0 decision was actually celebrating its 45th anniversary. That decision was announced yesterday. The case was Brown versus the Board of Education of Topeka Kansas. What was Brown versus the Board 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 sociologists to come in and testify as to what impact segregation had on black children. That's social activism. Between 1954 and through the 1960s, and he left the court 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 segregationists and ultra conservatives because he believed and led the court into decisions 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, 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.
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 insisted on a 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 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 he just, I guess, said, I don't want these Mormons. I don't think she's, college professors who don't drink and that's what we had, three Mormons and 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 —yeah they took me too, for June 1st. They got all the students where in Oakland or Hayward? Oh, Hayward. I got no way. Unless my boss makes up some bull shit, you know. Usually work lets 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 because the people make up excuses, and so after awhile they begin to question how valid those reasons 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. I think it's interesting if you have the time. I mean obviously if you're going to school I wouldn't want you 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 160 of us in the panel, that those that were chosen would have to serve 4 months and maybe longer. It could have taken a whole semester and I couldn't justify 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 exist. 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 a very few cases I don't believe in capital punishment. 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 capital punishment. Because my comment was something to the effect of, they'll respond based upon how much they're paid. So, do I believe that? Yeah. Sad 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 some don't. The trial court in New York is called the supreme court. That makes no sense to me at all. We also have had municipal courts 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. 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 courts. 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.
Q So in the court in Oakland ... is that a federal?
A That's not a federal court. No. The federal court in this area is in San Francisco. 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 Mendocino 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.
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 11 appeals courts. They are called circuit courts of appeal. They also use 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 200 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 200 cases are actually heard at the appeals court level, Supreme Court level. There are 9 judges on the federal Supreme Court. The state of California Supreme Court has 7 judges, and of the 7, 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 very controversial cases that may need to be decided, like that California welfare law. They have themselves deciding to take those cases like whether or not people had the 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 decide which court made the right decision
An example, in 1980, they passed a law saying men turning 18 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.