by Mary W Maxwell, PhD, LLB
The Tsarnaev trial is right up there with the most famous examples of injustice in America. The behavior of the US Attorneys, in their prosecution of Jahar Tsarnaev, has been outrageous.
In whose employ are these folks from the Department of Justice? I thought they were in the employ of the nation, the citizenry. I thought there were rules of honesty as to their dealings in court.
Yes, I realize the US has an adversarial system and it was the defense team’s job to counter that prosecutorial thrust. Unfortunately, Judy Clarke’s team in Boston was “all quiet on the Western front.” But even if, for some reason, a defense attorney shirks her duty, there is no reason for US Attorneys to promulgate lies about the accused.
My question is: who will stop this? Where can a citizen turn to find some propriety in the judicial system and/or the law enforcement system? And I will ask Where is the line between those two systems?
The Newly Unsealed Documents
Judge George A O’Toole, Jr was the presiding judge at the jury trial of Dzhokhar (“Jahar”) Tsarnaev. Jahar was convicted and is on Death Row, but last week filed an appeal.
I do not know the rules by which a US judge is allowed to seal any of the papers of the court during the trial. Here in Australia I do know of some quite specific rules of secrecy, for example, to protect the privacy of someone who is the victim of a sexual assault.
And, in any country, it may be the duty of a judge to keep secret any item whose exposure could endanger “national security.” My worry is that a judge has a general discretionary power to put things under seal “as he sees fit.”
Last week, 600 of the more than a thousand sealed documents on the Tsarnaev trial were unsealed. We can’t count on the mainstream media to reveal these to us, but anyone can purchase copies through PACER.gov at 10 cents a page.
Luckily for us, a Canadian woman, Josée Lépine, has been buying and publicizing both the ordinary transcripts of witness testimony and the motions filed by either side. Now she has told us of one specific unsealed document. I will use it as my launching pad for a general inquiry into the powers of a judge.
The Day Judge O’Toole Crossed the Line
I have to say I feel very relieved that we have caught this judge red-handed committing a felony. The unsealed document reveals that Judge George A O’Toole, Jr tried to influence the jurors to find for the prosecution. Please read the federal law criminalizing this, at 18 USC 1503:
(a) Whoever corruptly, …endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, … shall be punished as provided in subsection (b)…..
(b) The punishment for an offense under this section is… (3) … imprisonment for not more than 10 years, a fine under this title, or both.
Judges do not meet with jurors – everybody knows that. Even to greet a juror outside the courtroom may have the effect of making the juror feel some “connection” with the judge. But what we have here is much more specific. Judge O’Toole met with all the jurors together and gave them a pep talk.
It was couched as a sort of welcome and appreciation and encouragement. But it is so clearly NOT allowed, one must wonder if O’Toole had taken leave of his senses. (Frankly I think he did it under instructions from our enemy but that is getting ahead of the story….)
Per the unsealed document, there was a “colloquy” of judge and jurors at which neither side’s counsel was present! I will print it in Part 2 of this article. For the moment, please take as a working hypothesis that this judge committed a felony, and let’s get on with the matter of what to do about it.
Who Can Hold a Judge Accountable?
One of my mentors (whom I never met) is the late Sherman Skolnick, the founder of the Citizens’ Committee to Clean Up the Courts. He managed to get many Illinois judges put behind bars. The thing about Skolnick that seems to distinguish him from most other people is that he didn’t think a judge was above the law!
Consider, please, that most of us unconsciously think of a judge as being not subjected to law. We feel that way also about a king or a bishop. It’s natural to assume that the occupants of semi-sacred roles should not be treated like the rest of us.
Let’s look at the US Constitution. The Framers of this design for the new United States, in 1787, were extremely careful about making government accountable. They accomplished this primarily, I believe, through establishing checks and balances.
The Framers’ goal was to prevent any authority from moving in the direction of absolute power. This was an idea they got from Montesquieu’s Spirit of the Laws (1748).
The first three articles of the Constitution lay out the exact prerogatives of the three branches: legislative, executive, and judicial. These pitted “interest against interest.” Yipee!
In Article I, it can easily be seen that the legislature has the greatest power – as it can throw out any member of the other two branches by way of impeachment. (And those two branches have no similar power over the legislature.)
To Impeach a Judge
Specifically, the Constitution gives the House of Representatives the sole right of impeachment. To impeach is only to accuse (from Latin impedicare, to catch). If the House votes Yes to impeach, by simple majority, the case then goes to the Senate for “conviction.”
Note: President Clinton was impeached, but the Senate did not convict him, so he remained in office.
If convicted – and this is not a judicial thing with any due process protections for the accused – the person loses his job.
That’s all. He may or may not be subsequently charged with a crime. Think of it this way: Congress confirmed the appointment of that bastard in the first place, so let Congress undo the damage.
Note: the mere threat of impeachment may suffice. President Nixon was threatened with House impeachment and resigned.
Most Americans think impeachment is only for presidents. No. It is for any officers appointed by the United States, including military officers and US attorneys. It is also for judges. Eight federal judges have been impeached so far. (Of course if it’s a state judge Congress has no involvement.)
I should point out that the task of impeachment is a political one. Sure, they may have a table in the Senate room to display evidence during the ‘conviction’ phase, as if it was judicial, but it is not judicial. There is no right of appeal and no need for the ‘judges’ – the senators – to record their reasoning.
Generally speaking, an appointed judge (as opposed to an elected judge – some states have elections of judges) must be allowed freedom of decision-making in all court cases. Naturally we want him or her to think the case through, and not be watching his or her own back. This is why judges are given tenure for life.
Still, they have that tenure only “on good behavior.” As stated in Article III of the Constitution, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
Judges Are Now Acting Political Anyway
There is a separate issue here. It is not the same as the idea of “good behavior.” It is a matter of American culture having deviated — largely as prompted by the media — away from the Madisonian values of the separation of powers.
One such deviation has to do with American willingness to see presidents expand their powers beyond that allowed in the Constitution. (See Professor Lou Fisher’s railing against this, especially in his book “The Constitution and 9-11.”)
Another terrible thing is that Americans are forgetting the sacred role of judges as impartial, non-ideological, reasoning human beings. It has become customary for the media to predict the outcome of Supreme Court cases by saying whether the conservative or the liberal judges will win. Hello? What? This is ridiculous.
Each case before a judge needs to be handled on its merits. It would be wrong for a judge to use his or her decision-making in the case to achieve any greater purpose. He or she can’t use it as a plaything to advance a cause, no matter how highly he or she values that cause.
“Come on, Mary, you are being naive. Grow up. Don’t you see: judges are political. They were appointed on that basis.” NO WAY, JOSE. I will never accept that. We are dead ducks if we accept that.
The Boston Case
When I try to talk about how Judge O’Toole has acted in the Tsarnaev trial, I feel overwhelmed by the knowledge that this whole case, the Marathon bombing, is a false flag. Nothing about it smacks of a genuine criminal case against the then 19-year-old Jahar. (He was born in July, 1993.)
The “evidence” presented by the FBI was, how can I say, standard FBI chicanery. The statements by the Prosecution were outrageous and the non-statements by the “Defense” were fantastic. Moreover, as Cheryl Dean has clearly shown, the obedience of the jurors to the prosecution was amazing.
How could the jurors not have noticed that the prosecution said “We will show you Jahar dropping his backpack” and then did not show anything remotely like that? How could they vote to convict, on the ‘evidence’ when the evidence was so thin? And then proceed to give the maximum penalty the death sentence?
I do not know. It is my guess that all of them: FBI, Prosecution, Defense, and maybe jurors, are “on the payroll.” This would be typical in cases where the government (probably a higher-than-US government, probably World Government) requires a court to produce its desired outcome. I have seen it often and recorded it in my book “Fraud Upon the Court.”
The Boston Judge
But no matter that. We can’t seek to punish the aforementioned bad court members on the mere statement by someone, such as myself, who claims it is all a farce. We have to deal according to law. So let’s ask What was the proper role for Judge O’Toole to play in the Tsarnaev case? I will pretend that I have no special view of it being a false-flag case.
There’s a big difference between a judge’s role in a jury case and a judge’s role when it is a judge-only case. When it is a jury case, the judge does not have to answer the question “Is the accused guilty?” He or she is like a referee, letting the two adversarial teams, prosecution and defense, run the case.
Decisions about guilt, about quality of evidence, about credibility of witnesses – these matters are not in his/her hands. The jury is the sole trier of fact. The twelve members toddle off to the jury room and deliberate for as long as is need to come to a unanimous vote — or to declare that they cannot come to a unanimous vote — in regard to each of the charges.
So should Judge O’Toole, have kicked up a fuss when he noticed the lack of the promised video of Jahar dropping his backpack on the sidewalk? As far as I am aware, it was not Judge O’Toole’s job to kick up a fuss, and he should not have done so. (And don’t worry, he didn’t.)
He did have some jobs to perform in responding to the many motions that were submitted by counsel on either side. With one exception (to be discussed in Part 2), I am unfamiliar with the particulars of these motions.
Cheryl Dean and Josée Lépine have read them and Dean has claimed that the judge awarded the prosecution’s requests about 95% of the time. She thinks he did not act impartially. I suppose that could make for a bad-behavior case against him (possibly even a criminal obstruction-of-justice case) but it’s not the issue that I am going to take up.
I see Judge O’Toole as failing to be on good behavior in regard to his illegal pep talk to the jurors. I will discuss this in Part 2.
I also have plenty to say about Aunt Maret’s affidavit, and the judge’s silence on that most incredible affair.
— Mary W Maxwell lives in Adelaide. She can be reached at her website: ProsecutionForTreason.com