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Fwd: FW: Peterson v. State of California; MAJOR GRAND JURY ISSUE

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  • Jon Roland
    FYI ... Subject: FW: Peterson v. State of California; MAJOR GRAND JURY ISSUE Date: Thu, 20 May 2010 09:01:00 -0700 From: John Wolfgram
    Message 1 of 1 , May 20, 2010

    -------- Original Message --------
    Subject:FW: Peterson v. State of California; MAJOR GRAND JURY ISSUE
    Date:Thu, 20 May 2010 09:01:00 -0700
    From:John Wolfgram <johnwolfgram@...>

    Gentlemen: On May 17th the Ninth Circuit published its opinion in Peterson v California, a copy of which is attached.  I designed that case five years ago when Peterson came to me right after the preliminary hearing.  We fired the first two attorneys on it and eventually put it with Cyrus Zal who I sometimes work with.  He is the attorney who volunteered to represent me in my amicus brief to We the People v US, three years ago. 

    Peterson was charged with environmental pollution crimes, five felonies and two misdemeanors, out of a preliminary hearing.  We challenged the prelim through the second attorney and when he lost, put it with Cyrus and we took it though the California courts on Habeas Corpus on the theories that I had designed.  All the way up it was denied without even requiring response of AG.  At pretrial hearing Cyrus got the felonies dismissed on lack of evidentiary foundations and tried the misdemeanors, lost, appealed, lost, and we are now doing a 1983 case based on prosecuting the felonies through a prelim that did not supply probable cause.  That is in effect, the practice of D.A.s overcharging to get a plea bargain and that is extortion by the DA, and the phony prelim process is highly conducive to that kind of extortion resulting in plea bargains by innocent people.  (If anyone is interested in how civil extortion applies in Californian to judicial process, see Flatley v Mauro, (July, 2006) 39 Cal. 4th 299) (That rationale can apply to IRS cases, extortion is a state civil tort as well as crime, and included in RICO.)


    Peterson v State is presented as a challenge to the Constitutionality of Prop 115 which restricted preliminary hearing procedures to allow hearsay and prevent using the prelim for discovery which in effect, while allowing counsel at prelim, renders counsel ineffective.  The central ruling of the Ninth Circuit upholds the constitutionally of Prop 115 and its modified preliminary hearing process.  But the real issue is through the back door to restore grand juries in felony cases.  That tack is addressed in the holding of Part IV.

    The back door grand jury issue is that Prop 115 redefines the preliminary hearing process contrary to that authorized by the Supreme Court in Hurtado v California.  In upholding this process the Ninth says hearsay can be admitted before Grand Juries and therefore, it can be used at Prelims, an analogy between grand juries and prelims that does not hold water.  That analogy is the weakness of the Ninth Circuit opinion, because there is no analogy between Grand Juries which is people control of government prosecutions, and prelims which is government control of government prosecutions which is in the important sense, no control at all over government prosecutions; and that allows, even causes DA over charging for the mere sake of intimidating them into plea bargains, often when the evidence is weak and there may be factual innocence. 

     The Sixth Amendment protects the right of cross examination in all criminal prosecutions.  Grand juries are not a part of the criminal prosecution, but the process which determines whether there is to be a criminal prosecution. Consider some the fundamental disanalogies:

    1.  Grand jury proceedings are held in secret.  Are we now going to have secret preliminary hearings?

    2.  While the subject of the grand jury proceeding may be allowed present by special invitation, in fact he is almost never allowed to participate.  Are we now going to exclude the defendant from preliminary hearings or make his presence optional with the DA.

    3. Assistance of Counsel has come to mean ‘effective assistance of counsel’ at all stages of the prosecution. Grand juries do not allow the presence of the subject of the inquiry, let alone his counsel, except on special invitation.  By analogy of Prelims to grand jury proceedings, Counsel could be excluded, and effective assistance of counsel is already impaired by the preliminary hearing process by the Prop.115 mandate that Prelims not be used for discovery.  How can counsel assist clients if they cannot access the real facts upon which the district attorney formed his belief that the accused committed the crimes alleged?

    4.  The Grand Jury has its own investigative powers.  The court does not.  The Court has to depend on what the DA presents.  The grand jury can go beyond, and even obtain its own experts, including attorneys.

    This case becomes even more significant because of the turning point which is still before the Ninth Circuit if we do a motion for rehearing or en banc hearing on that issue because in prop. 115, California disregarded the safeguards that the Supreme Court recognized as due process safeguards to substantive rights in Hurtado.  Thus, the issue that can restore grand juries is not for the Court to overturn its president, but to enforce and reaffirm it, or in affirming it, annul its result of allowing prelim alternatives to grand jury because history has now proved the necessity of federally ensured bill of rights safe guards against state action watering rights down. The issue on that follows logically in Part IV is not just the constitutionality of prop. 115, but it is the restoration of grand jury rights in all States, and raises its significance to not being replaceable by government procedures.   

    That is the issue to go to the Supreme Court; AND that issue will go up there in the light of the two Second Amendment cases.  The 2AM case before Court now also raises an incorporation issue ... incorporation of the bill of rights into the Privileges and immunities clause instead of, or in addition to incorporation into the due process clause.  What is most likely to happen is that the Court will incorporate the Second Amendment into the Due Process Clause leaving the Privileges and Immunities question stand mostly because of Hurtado and the grand jury non incorporation that Hurtado established 130 odd years ago.  Now we come up with the grand jury question which is raised because the states have watered down the preliminary hearing process beyond the due process recognized by the Court, and base our claim on both due process AND privileges and immunities.

    Understand: Sixth Amendment rights are generally recognized as substantive rights.  In Hurtado, while the Court treated them as substantive, it treated their grand jury protection rights as a due process right that can be replaced by any other kind of “due process” protection of them and for that reason did not incorporate the Grand Jury right into the Fourteenth Amendment.  But the distinction, if ever there was one, between a “substantive constitutional right” and a “substantive constitutional due process right” is very blurred, to say the least. (i.e. The right to assistance of counsel is really a procedural right while the right to effective assistance of counsel is the co-ordinate substantive right implied by the process and without which the process would be hollow.)

    The issue this case will present to the court, is whether certain processes expressly named in the Constitution are the “substantive processes due” that cannot be replaced except by amendment, and are thus incorporated into either the Due Process Clause of the 14th  OR are a “Privilege or Immunity” under the 14th  or both.  Almost all rights have been incorporated and it is long overdue for the Court to address full incorporation again.  I understand that is an issue being raised in the second Second Amendment case now before the Court … Is the Second Amendment a Substantive Privilege and Immunity to be incorporated, as well as being protected by the Due Process Clause.  

    My recommendation to Cyrus is to present a motion to rehear the Part IV issue, en banc because it is unlikely  that the Ninth really wants to live with the rather inane comparison of preliminary hearings to grand jury proceedings.   The four disanalogies mentioned above would kind of make them look silly, if you know what I mean.  

    Anyone with ideas on this, especially cases that distinguish the grand jury from preliminary hearings or other government processes along any of the four points above or similarly significant lines, please set it out.  Likewise with suggestions on whether Cyrus should seek rehearing on that issue, or what he should do at this stage, and why … why being the important part. 

    Anyone who knows of other attorneys or constitutional scholars similarly interested in the grand jury issue, send this on and ask them to participate in hashing out the best courses to follow and to supply other substantive information. 


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