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No Justice From The Judge

By B. Moore, Prisoner of the Drug War

Ernie asked me what to do with this order he just received from the Court of Appeals. It was file-marked December 24, 1997. Surely it was a Christmas Eve reprieve. Ernie had filed his post-conviction motion to vacate the drug conviction in 1992 based on the proof of perjury of the police witness. The district judge sat on it for five years and only denied it after Ernie filed a mandamus. Naturally, a timely appeal was made and filed in 1997. After all, the new restrictions on federal habeas corpus and motions to vacate convictions in the 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) could not possibly apply to Ernie's 1992 motion under 28 U.S.C. § 2255.

You may have guessed it. The Christmas Eve order from the Ninth Circuit to Ernie said this:

"The request for a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2). No motions for reconsideration, modification, or clarification of this order shall be filed or entertained."

Merry Christmas Ernie; this is justice from the courts. It does not matter that you were denied a fair trial and false evidence was used to convict you. Few judges ever grant a defense motion, so a conviction upon false testimony is not "extraordinary circumstances" sufficient for a new trial or to vacate the conviction. Sorry Ernie, but there is a drug war going on and the public must be deceived to support it.

Actually, I see dozens of unpublished court orders like Ernie's. Good issues of outrageous constitutional errors, violations and misconduct are now routinely denied as "harmless error." You remember what that is. "Harmless constitutional error" means that you were denied your constitutional rights at trial or plea, but so what? The public would lose confidence in the justice system and drug war hoax if reversals were granted very often. It is the "appearance of justice" and not actual justice that is the main issue. So, if the prosecutor's brief lies, and the judge rules against you, there is an "appearance of justice" and the system works.

Maybe all the denials of appeals and § 2255 motions just happen here. All I see is lifers and guys with high-double digit numbers for sentences for alleged drug conspiracies based solely on testimony of a rewarded addict-informant who said just the right buzz-words to hang another. Perhaps drug war prisoners are winning appeals and § 2255 motions everywhere else but here, but I don't think so.

Defendants on appeal and post-conviction motions are always optimistic that the judge will see the correctness of their issues and do what the law requires. They do. They deny relief, or grant relief that is not really relief. There are, by my count, about twenty judges in the United States federal court that obey their oath of office to uphold the Constitution, even for defendants. The other 800 have a policy agenda from their benefactor. The policy is not to grant defense motions, unless an expensive and well-connected lawyer is on the case. Defendants are generally just a "work product" in the drug war. Chief Justice Rehnquist said so in his recent annual year-end report to the President.

The chief had a few main points to make. First, the Senate needs to get busy and fill the 82 judicial vacancies. Second, the Congress should be praised for approving a cost-of living raise for federal judges, and for enacting two pieces of "reform legislation: the 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) and the 1996 Prison Litigation Reform Act (PLRA). The Chief proudly stated that both the AEDPA and PLRA have and will have a "positive effect" in reducing the federal courts' workload. Workload is us, the drug war defendants and prisoners.

"As of June 1997, the number of habeas corpus applications has fallen well below the average number of monthly filings during the 15 months prior to the law's enactment in April 1996," Rehnquist said. "PLRA achieved a similar result. Monthly civil rights filings by prisoners decreased 46 percent from April 1996 to February 1997."

There was no mention about protection or even concern for the constitutional rights of defendants that have been suspended by the AEDPA or PLRA. However, the judges' 2.3 percent pay raise went into effect on January 1, even though "it does not redress previous loss, or the disparity I noted last year between federal judicial salaries and the salaries or the profession from which federal judges are recruited," the Chief lamented.

But you drug war prisoners and families of POWs should not worry, because Chief Justice Rehnquist vowed to return to congress in 1998 to seek repeal of the law that prevents salary increases for judges without express legislative approval. After all, the disparity in judge's salaries is a terrible injustice since their starting pay is more than $120,000 a year and continues up to $147,000. That's just awful. I shouldn't complaint about $5.50 a month in prison wages and unconstitutional conviction as a nonviolent drug war prisoner serving life for an unconstitutional conviction based on false hearsay, perjury, and without a verdict on offense elements.

I can safely predict that maybe one defendant in a hundred will get any relief on appeal or a §2255 motion. However, most prisoners neglect the most effective tool for release - the strong voice of public demand to end the drug war and bring home the POWs.

Remember, that's how we stopped the Vietnam war and the waste of lives in the 1970's. Public demand changed the segregation laws and policies in the South during the 1960s.

Public demand to have the government stop incarcerating citizens for drugs, and to release the POWs is a force that could bring us home by 1999. Anyone interested? Then start writing letters and get your family and friends to use their voice to demand that legislators end the drug war and release the prisoners of this war­­now!

Otherwise, you will do all your time waiting for the courts to deny you, or waiting for the "crack law disparity" relief that never comes, sentencing law changes that allude our illustrious legislators, retroactivity of the "safety valve" that will only apply to informants.

Notice that harsher, not lighter, rules and laws are being passed by Congress each year while Drug War POWs and their families lives are being ruined. We cannot get justice from the judge.

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