4 September 1998: Add anonymous message

3 September 1998

    Date: Thu, 3 Sep 1998 17:44:23 -0700 (PDT)
    From: Greg Broiles <gbroiles@netbox.com>
    To: cypherpunks@cyberpass.net
    Subject: Jim Bell update

    I looked at John Young's page re Jim Bell <http://jya.com/jdbfiles.htm>
    and was surprised to see on the docket entry that his appeal has been
    heard, and his sentence (including onerous terms of probation) has been
    affirmed.

    Oral argument was held August 5 in Seattle, before Judges Dorothy Nelson
    (the mother of the Judge Nelson who heard the Bernstein appeal), Alex
    Kozinski (who corresponded with some cpunks in mid-1996, if I remember
    correctly, re a right to anonymity), and William Schwarzer, a Senior US
    District Judge from the Northern District of CA sitting by designation.

    On August 21, an unsigned (written by Kozinski or his clerks) memorandum
    opinion/order affirming the trial court was entered. A printed copy of an
    e-mail was stapled to the order in the court's file; it reads:

    --
    Author:		Judge Kozinski at ~9CA-PASADENA
    Date:		8/19/98	5:51 PM
    Priority:	Normal
    TO:		Clerk Memoranda at ~9CA-CLERK, Dorothy Nelson
    Subject:	United States v. Bell, 97-30384

    	I certify that all judges concerned concur in the attached 2-page
    memorandum.  Please file it.  Thank you.

    cc:	Judge Schwarzer (by fax)
    --

    The opinion itself (designated "Not for Publication", which means it's not
    of precedential value and should not be cited as a Ninth Circuit opinion
    except in Jim's case) reads:

      "	The conditions of Bell's supervised release do not constitute an abuse
      of discretion. Individually and as a whole, they are reasonably related to
      the circumstances of his offense and his characteristics, have deterrent
      value and protect the public. See 18 U.S.C. s. 3583(d)(1)(1994); id;
      § 3553(a). Further, they involve "no greater deprivation of liberty than
      is reasonably necessary." Id. § 3583(d)(2). Bell may engage in several
      otherwise prohibited activities as long as he receives permission. He also
      retains the right to challenge any attempt to revoke his supervised
      release that is based on an unreasonable interpretation of any condition.
      See United States v. Romero, 676 F.2d 406, 407 (9th Cir. 1982).

           The district judge determined that the probation office needed
      Bell's mental health report to structure his release program. While both
      parties object to this, the district judge could reasonably conclude that
      the probation officer -- who would be supervising Bell's release -- needed
      to be aware of his mental condition.

           AFFIRMED."

    There has also been some confusion/uncertainty about Jim's current status
    and location, which I'd hoped to resolve by looking at the district
    court's file which has apparently been forwarded to the appellate court
    for its review. Unfortunately, the file was not in the clerk's office (and
    I suspect it was not in the building at all); the records department told
    me that it was in one of the judges' chambers (didn't say which judge),
    that they had no idea when it'd be returned to them, if it'd be returned
    to them, or if the judge would forward it directly back to the trial
    court.

    It's shameful that the defense in U.S. v. Bell didn't get the solicitous
    treatment and careful analysis from the courts that the defense
    has received in Bernstein v. Dept of State.

    --
    Greg Broiles
    gbroiles@netbox.com

    Date: Fri, 4 Sep 1998 11:48:45 +0200
    From: Anonymous <nobody@replay.com>
    Subject: Re: Jim Bell update
    To: cypherpunks@cyberpass.net

    On Thu, 3 Sep 1998 17:44:23 -0700 (PDT), Greg Broiles
    wrote:

    > I looked at John Young's page re Jim Bell
    > <http://jya.com/jdbfiles.htm> and was surprised to
    > see on the docket entry that his appeal has been
    > heard, and his sentence (including onerous terms of
    > probation) has been affirmed.
    > ...

    > The opinion itself (designated "Not for Publication",
    > which means it's not of precedential value and should
    > not be cited as a Ninth Circuit opinion except in
    > Jim's case)...

    That's just the _official_ reason for unpublished
    decisions. There is another, sinister, and relatively
    unknown reason: to sweep under the rug and keep out
    of sight a decision tailored to a political defendent
    that would wreak havoc with the legal system if
    relied on by anyone else.

    Typically in this usage, a defendant might raise
    several issues on appeal, one or more of them
    substantive, only to have them all ignored except
    a minor one or two used as examples of why the
    appeal had no substance. If published, other
    attorneys in other cases (either defense or
    government, depending on which side the implications
    of the decision would favor) would seize on the
    decision and all hell would break loose.

    When used thusly, unpublished decisions are one of
    the grossest abuses perpetrated by the judicial system.
    The judges reassure themselves that there is no other
    way -- that some things are just messy, that there is
    no perfect way to handle them in the humanly flawed
    legal system. That is utter elitist bullshit. Such
    decisions are private justice for political prisoners,
    and the fact that they have to be hidden from view,
    prevented from appearing in the law books, has nothing
    to do with their having no precedential value, but
    precisely because they set precedent that the
    judiciary dare not let loose in the legal system.

    This one of the dirty little secrets of the judiciary.

    Of course, there also are many completely unnoteworthy
    decisions. The declaration that a decision is not to
    be published or otherwise relied on in any other case
    is a practical way to keep the law books, already
    vast in scope, from becoming enormously cluttered with
    the large number of decisions that say nothing new.

    It is possible that the decision on Jim's appeal says
    nothing new, but reading the decision won't reveal
    that. The decision would omit mention of any substantive
    issues by design. The only way to know is to get the
    appeal as filed into the hands of a qualified
    appeals attorney who isn't system-brainwashed. It
    would be even better to also have had someone attend
    the oral arguments, if indeed any were heard.

    One of the most sadly amusing things one can see in
    this life is the dawning realization hitting an
    experienced, brainwashed, but otherwise honest
    attorney when he comes face to face with the truth
    of something like the unpublished decision. It
    shakes everything he thought he knew, to the very
    core. Some can face it, and are changed forever.
    Most cannot, and rationalize it until it is locked
    away in a dusty corner of their memory, an ugly
    thing not to be taken out and looked at because of
    the risk to his sanity. It's very much like one
    imagines it might be to see someone discovering
    that space aliens are, indeed here, and are
    entwined in all aspects of our life and culture.
    Deep, serious shock.

    Example of how unpublished decisions are used in
    political cases:

    A really troublesome irritant of a defendant comes
    to trial. The judge allows a conviction secured
    without the presention of any evidence that the
    accused committed the crime. He denies the standard
    defense motion for such cases.

    The prosecution didn't make a case, but the
    defendant is too hot a potato to let go, since
    he will promptly appear on nationwide television
    and thumb his nose at the government. Again. So he
    is railroaded, but he and his clueless attorney
    are quite confident of winning the appeal. After
    all, no meaningful evidence was presented against
    him, and the trial judge clearly erred.

    On appeal, if there are oral arguments, the panel
    wastes the victim's attorney's precious minutes
    with trivia to prevent onlookers awaiting their
    turn at the bar comprehending the scam being
    perpetrated. Some time later the lower court
    decision is affirmed, to the shocked disbelief of
    the appelant and his attorney. When the written
    decision is issued, often oddly delayed, lost, or
    otherwise bureaucratically obscured, it mentions
    none of the issues or only one of the weak arguments
    made by the appellant, summarily affirms the lower
    court decision and gets stamped "UNPUBLISHED."

    All the people who come in contact with it or hear
    of it automatically dismiss it as being of no
    consequence, and it never appears in the law books.
    As a result, other prosecutors do not apply the
    precedent and do not (in this example) go on a
    feeding frenzy prosecuting other people without
    benefit of evidence. The problem case is handled to
    the government's benefit and no other harm is done
    to the body of precedent.

    Very neat. Also very pregnant with opportunities
    for grave abuse, abuse I have seen take place just
    as I have described here.

    Toto