[On August 17, Georgia Congressman Bob Barr filed an Amicus Brief
with the Georgia Court of Appeals on behalf of the Life Quest
Foundation, discussing the cruel and unusual punishment which has
befallen Ed Kramer, incarcerated seven-years-to-date without the
benefit of trial. The text below summarizes Congressman Barr's
entry to the Court. A PDF of the complete Brief, with all legal
citations included, will be in the Files Section in the next few
days. Congressman Barr discussed Ed's case the previous week in Los
Angeles: http://www.youtube.com/watch?v=Mi2tVkQra68]


EDWARD KRAMER,

Appellant,

V.

THE STATE OF GEORGIA,

Appellee.


AMICUS BRIEF


There is an overwhelming sense of injustice that pervades all of
what has happened to Petitioner Appellant Edward Kramer. The Georgia
and United States Constitution Amendments that have been violated
are, at minimum, The First, Fifth, Sixth, and Eighth as implicated
through the auspices of the Fourteenth Amendment. This Court has also
previously found that officers of Gwinnett violated the Fourth
Amendment (See, State v. Kramer, AO2A1846, March 26, 2003).

The fulcrum issue, as seen by the Petitioner and his Counsel, is
the question of denial of Speedy Trial in violation of his rights
under both the Georgia and the United States Constitutions. We, of
course, concur that this right is of monumental importance, but
believe that the Court should look first to what appears to have
occurred, and appears to be uncontroverted. That is the hows and whys
of a substantial portion of the seven-year lapse between charge and
the writing of this Amicus, without a trial.

That pervasive, prejudicial delay continues to run. It denies
Due Process, violates Speedy Trial, and constitutes what is in effect
Cruel and Unusual punishment. The facts speak volumes:

• Petitioner Appellant was arrested on August 25, 2000. William
Jefferson Clinton was still President; the disputed 2000 election had
yet to be held. The charges have never left him since that date.

• Petitioner Appellant was incarcerated at the Gwinnett County
jail where he was willfully assaulted and battered. He has remained
incarcerated both objectively and subjectively (at this writing)
twelve days shy of seven years unless subtraction is made for
the "Aliyah" frolic and detour concocted by the state and counsel
without Petitioner Appellant's "on the record" agreement and
understanding.

• He has been made to pay for his own incarceration and he is
observed continuously by a state-required video system which
completely destroys his fundamental "privacy" rights.

• Petitioner Appellant must seek permission for necessary
medical treatment; permission that has been obdurately delayed by the
state on at least one occasion.

• An illegal determination has been made concerning Petitioner
Appellant's competence to stand trial and assist in his own defense.

• He has suffered a deterioration of both physical and mental
health (not to the point of incompetence as the illegal agreement,
infra. would assert, but significantly) as a result of inadequate
medical treatment while incarcerated (as compounded by the battering
by jail personnel, and as set forth more fully in Affidavits of David
Foster and Rev. Thomas Coley, attached hereto as Exhibits A
[http://groups.yahoo.com/group/DefenseFund/files/Affidavits/Affidavit_
David_Foster.pdf] and B
[http://groups.yahoo.com/group/DefenseFund/files/Affidavits/Affidavit_
Thomas_Coley.pdf]). The mental strain of a totally interrupted life
is, in and of itself, tantamount to "cruel and unusual."

• He is a functional pauper as having been prohibited from
working and having been required to pay for his sentence without
conviction but with, by the way, a non-determinant length of time to
be served.

Three lawyers entered into a tacit agreement (conspiracy?) to
continue this case ad infinitum with no regard for the consequences
to Edward Kramer or, indeed, either the state or federal
Constitutions in question. They were uniquely unqualified to do so,
but they wantonly moved forward as if ordained by some higher power
or, at the very least, medical training that would qualify each and
the three of them to be admitted to the AMA, and perhaps also the
American Psychiatric Association.

The lawyers were the Judge (Debra Turner), the Prosecutor (Danny
Porter, and an ADA or two) and the Defense Counsel (Walter Britt).
While the agreement was in place (in fact it remains in place as
these words are being written), Edward Kramer persisted in seeking a
trial to prove his innocence. The "conspirators" decided that Mr.
Kramer was either physically or mentally unable to stand trial,
without considering the necessity of medical evidence or obtaining
such evidence. They simply ignored the effect on the Petitioner and
the proper method of going about such decisions.

The State of Georgia maintains a procedure to determine whether
a Defendant is able to be brought to trial, and a constitutional
standard that clearly delineates what the minimum threshold is to
meet that standard. Instead, in this case, the "conspirators" acted
without benefit of professional expertise, ignored the proper method
of determining medical or mental competence, and even perpetuated
the "conspiracy" in "off the record" meetings and telephone
conferences. The motives of each of the "conspirators," as mentioned
above, may have not been maliciously intended to do harm, but the
effects on Appellant have been severe and debilitating, if not life-
threatening.

As it relates to the District Attorney's Office, that premise
(of benevolent malfeasance) is difficult to believe. Nor can it be
reasonably argued by any of the tri-partite members of
the "conspiracy" that somehow the aggregate of abuse is in any way
justified. The harm to Edward Kramer has been extreme, egregious, and
should not be countenanced by this Court. When, if ever, has the
Georgia Court of Appeals, considered a record as old, incomplete, and
replete with constitutional question marks as this one?

In the extreme passage of time, none of the three saw fit to act
in a manner as defined by Georgia law, its procedures, its
Constitution, or indeed the Constitution of the United States. They
blithely substituted their non-medical opinions, ignored the rules
that are in place to make such determinations, and allowed Edward
Kramer and both constitutions to "twist slowly in the breeze." During
this period of constitutional duress, Appellant Kramer's medical
condition deteriorated greatly; he became destitute; he remains a
functional inmate; witnesses have been lost; memories surely have
faded; and there appears to be no compunction by any of them to do
even minimal justice.

The role of the Trial Court is to protect and preserve the
people or entities brought before it for their "day in Court." In
this, by her participation in the procedurally and substantively
defective delay, the trial judge has failed. In so doing the Trial
Court denied Petitioner Kramer "Due Process." The role of every
prosecutor in Georgia is to do "justice." Gwinnett County's District
Attorney has failed significantly in this responsibility. In so doing
he has participated in the denial of "Due Process"; has denied
Petitioner his right to a "Speedy Trial"; has engaged in de facto
cumulative "Cruel and Unusual" punishment; has so crippled Petitioner
Kramer's ability to defend himself that no fair trial will ever be
possible; and has done so with a callous disregard for even the most
minimal of human decency.

Although the record is incomplete, along the way, the three
controlling parties appear to have been on a similar page, one the
Petitioner Appellant did not share. He wanted a trial. He told his
counsel repeatedly he wanted a trial. He had an operation or two,
but the Clerk's record clearly reflects that an operation never
delayed his trial. The outrageous delay was all about the Court, The
District Attorney, and defense counsel (with whom the Petitioner
Appellant was increasingly at odds). What is most compelling about
the delay, and its reasons, is that it was easily dissolvable and
provided for under a number of provisions of both Georgia and
Constitutional Law.

This delay is unconscionable, is not principally attributable to
Petitioner Appellant (actually, almost none of it is attributable to
him), but rather is the result of a wrongful symbiosis between the
Court, the District Attorney, and the disregard by counsel, the state
and the Court of both Mr. Kramer's wishes and his constitutional
rights. It is a mandate for dismissal with prejudice.

Lawyers need not always heed their client's wishes. Lawyers need
not abandon their professional judgment. As a matter of fact and law,
there are a multitude of circumstances when a dutiful lawyer,
exercising sound professional reasoning, might take issue with his
own client. There are, however, limits on that expression of
independent decision-making. One principle confining element of the
lawyer's will happens to be the law and the respective Constitutions
of both the United States and Georgia. Both these documents contain a
right to counsel provision. That right is neither hollow nor
meaningless. It requires that counsel be mindful of certain
fundamentals. Those fundamentals are included within the law and the
Constitutions, and there is an implicit requirement that there be no
frolic and detour.

The standard is whether the performance is deficient and is
there prejudice to the defense? Here, both are manifestly evident.
There has been no trial here so we must confine ourselves to pre-
trial matters. To examine: it has now been seven years from arrest.
Has no one stopped to question what is happening to Petitioner
Appellant Kramer in all this time? In what has happened, has no party
considered the impact to his defense? A potpourri for this Court to
consider begins with real incarceration at the Gwinnett County jail,
and lengthy de facto incarceration in his home for which he is
required to pay an amount between $270 and $400 per month (amounting
to some $30,000 over the elapsed time). He can go nowhere without
permission. In that seven year period, what witnesses has counsel
interviewed? In that seven-year period, what motions has counsel
filed? In that seven-year period what actual Speedy Trial demand has
counsel made which comports with Georgia law?

The answer is what this record reflects; a paucity of activity.
No true stand has ever been taken. There should be due notice given
of the one seeming attempt to have this matter disposed of. That
attempt was the "Aliyah activity" which seems to have consumed the
bulk of 2006. But, at no time, does anyone seriously allege (until
the Appellee's Brief) that this is a result sought by the Petitioner
Appellant. The point to be elicited here is that there was so little
performance that its absence is tantamount to an abject deficiency of
performance. After an initial flurry of activity, which included a
bond hearing, a re-instatement of bond hearing and some pre-trial
motions, little more occurred.

Once counsel had signed on to the illicit and unconstitutional
tactic "tacit incompetence" delay, his effort level reached the
miniscule on a rational viewing of this record. He acknowledges the
Petitioner Appellant's desire to have his trial day in court, but did
nothing that the law allows to accomplish the end sought by
Petitioner Appellant. When he did act, it was contra to the
Petitioner Appellant's position. The question then becomes: can
counsel, in perpetuity, substitute his thought process for that of
his client?

This Court might notice that here the words chosen were "thought
process" as opposed to professional judgment. That was intentional.
For it is clear on this record, as embellished by time's passage,
that counsel never intended to do anything but what is evident here –
delay and not confront the issues head on. The client (who by the way
has deteriorating health at least partially precipitated by
maltreatment in the Gwinnett County jail) wishes to establish his
innocence; but he is, at first, benignly ignored, and later,
malignantly ignored. It is clear that whatever Petitioner Appellant
wanted to say was of no moment to any of the active players in this
mess.

However, on the issue of prejudice, we needn't stop there. There
is a subtlety: the Petitioner Appellant Kramer was apparently a
highly productive human being at the time of his arrest, but now the
players in his mistreatment – the judge, the prosecutor, and counsel -
- apparently see him as deteriorated to incompetence. Although that
judgment is medically incorrect, there is some damage and some memory
deterioration. That is real prejudice to the nuances of his defense.
Add to the nuances, the normal memory loss over such a substantial
period of time and the prejudice, and clear, irreparable prejudice
has taken place. The performance discussed here is at the lowest ebb
of any spectrum of conduct of counsel.

Petitioner Appellant Kramer has been denied the most basic of
rights, both Procedural and Substantive Due Process of law. Where has
there been an adherence in this case to even the most basic of
rules? May we begin with a premise so basic as access to a trier of
fact or law to provide a hearing as to those issues important to any
relevant determination. For example, the Supreme Court of this
country, more than 20 years ago, decided that when a Defendant's
mental competency is in issue, he or she will be given access to a
competent psychiatrist. Though, as alleged in the second section,
that is exactly what happened here (his mental competency became an
issue), at no time has the Petitioner Appellant been provided that
access by this system; indeed it appears such a suggestion was never
even considered. The determination of his mental condition was made
without so much as a hint of the possibility of an evaluation or a
hearing.

"The fundamental idea of due process is notice and to be heard.
Due process (does not guarantee) a particular form or method of state
procedure." It does, however, require some element of form or
substance, provided there is reasonable notice. That, of course, did
not occur here. Frankly, it appears not to have crossed the minds of
the people involved in this Gwinnett County debacle.

In the instant seven years, giving every credence to the
Gwinnett County processes, there appear to be a totality of four
hearings: a bond hearing, a reinstatement of bond hearing, a Motion
to Suppress, and the 20-month delayed Motion to Dismiss (the subject
of this appeal). If there is also given every credibility to the
trial judge, it appears there have been chance meetings and scheduled
off-the-record meetings between the lawyers and the judge. Of course
these chance meetings also appear to be for the sole and exclusive
purpose of perpetuating the Agreement here complained of by
Petitioner Appellant. In all these particulars every procedure was
ignored and treated as unimportant.

In regard to the "Aliyah activities," he was also available to
be advised as to what was being discussed by the lawyers – i.e., was
he in agreement with these discussions, and did he thereby give his
consent to these discussions? The astounding element of all this
activity and non-activity is that the Petitioner Appellant appears to
be the only "forgotten person" concerning his life and future. In
their paternalistic zeal, the judge, prosecutor, and defense counsel
decided what was best for Mr. Kramer; implemented their version of
what was best, with nary a word from him, and, more importantly,
without any real opportunity for him to be heard.

This is true, even to the point of his lawyer chastising him for
returning from Israel (which by the way was his lawful obligation)
because the Petitioner Appellant (a layman as to the Constitution and
the laws) was apparently anxious. In order to quell that
understandable anxiety, counsel chastises Petitioner Appellant and
scolds him like one might scold a petulant child. The petulance, if
any, was about a ruined reputation, a ruined life, ruined health,
incarceration without conviction, being told in essence to jump bail
(thereby becoming a fugitive for life), and all of these consequences
having been visited upon Petitioner Appellant without even an
arguable scintilla of Due Process mandated by the Constitutions of
Georgia and our nation.

As mentioned earlier in this Amicus Brief, all of these issues
are intertwined so intimately as to create an illegal "rope" of
immense strength; one that, we believe, cannot be ignored by this
Court. There should have been a trial long before now. The "tacit
conspiracy" should have been dissolved long before now by a properly
implemented procedure to actually find out (from medical experts)
whether indeed Petitioner Appellant was or was not able to stand
trial and assist his counsel. These things should have been
determined after hearings that were grounded soundly in both
procedure and substance. The lawyer for Petitioner Appellant should
have taken the lead to fulfill his duties within the framework of
both the Georgia and United States Constitutions.

The Court had duties within all of these matters to determine --
not to assume --the facts, and to protect the law. The Prosecutor, as
keeper of the Calendar, had a duty to actually set this case down for
trial and call it to be heard. None of the foregoing occurred during
the completely unjustifiable delay. There can be no remedy, on these
facts, and within the law, except dismissal with prejudice.

The Americans with Disabilities Act contemplates that the
Gwinnett County Superior Court is a facility bound by Title II of the
Act, specifically II-1.2000 (1) and (2). In other words, assuming
that Petitioner Appellant's physical condition is such that it
qualifies as a disability under the Act, then the Court must
accommodate in its ordinary and necessary day-to-day functioning
(including, obviously, a trial). Had a concerned and attentive trial
court deemed it necessary to have a trial to adjudicate guilt or
innocence, even in the face of the physical maladies, Gwinnett County
is clearly equipped to accommodate such, as required by the Act.
Moreover, on these facts, there was in place no impediment to
proceeding.

The ADA (and the Uniform Rules of the Superior Courts of
Georgia) anticipated just such a circumstance as this. Each set of
these rules considered a day would come when a disabled citizen would
be charged with a crime or crimes. That citizen might well be
innocent and might also desire to stand up (in this case, perhaps
figuratively) and say "I am not guilty!" Our system however makes
certain core assumptions in order that this constitutionally
protected opportunity might occur. Those assumptions include a pro-
active advocate for the citizen; a careful and mindful judge serving
as a guardian of both the citizen and the system; and honor on the
part of the prosecution. In all of the earlier positions of this
Amicus all three entities failed. In the matter of not exploring a
lawful accommodation to these rules (and laws) they failed, yet
again. Ed Kramer has been ready, willing, and "able" to be tried for
lo these many years.

We propose for this Court's consideration a final thought or two
in reference to the State's paltry attempt to justify its position in
this brutal denigration of all that this nation's criminal justice
system is intended to be. The ABA has a set of advisory guidelines
for Speedy Trial and Timely Resolution of Criminal Cases. The core
essence of them is three fold: Set standards and goals; set time
limits; set different time limit treatments for those on bond and
those who are incarcerated. Gwinnett County, in this matter, fails
miserably on each of these. There are no goals; there are no time
limits; and there is no differentiation that any reasonable person
might recognize that is applicable to the incarcerated, such as Ed
Kramer. The system there merely paints with the broadest of brushes
and states: this is the way we do it here. There comes a time, we
believe, when the "thing speaks for itself" and can never be
justified.

There is only one viable remedy; that remedy is dismissal with
prejudice. We ask this Court to remove his shackles, to allow him to
try to have a modicum of a life, and to rebuke the entities
responsible in the strongest language available to this Court. We ask
that this kind of illicit, illegal confluence of dilatory, patently
constitutionally infirm behavior be ended and effectively condemned.

The balance is so profoundly in favor of Ed Kramer; the conduct
of Gwinnett County so egregious; and the Constitutions so abused that
this Court has a wonderful opportunity to take a stand on behalf of
right and to rectify these wrongs forcefully so that no subdivision
of this State is ever again tempted to treat one of its citizens so
badly.

Respectfully Submitted,

Bob Barr, Esq.