Kort Explores conundrums of the human condition

From/with information provided by
The Fully Informed Jury Association

The federal government has finally allowed a grudging token of justice in a case that has been dragging on since 1990. The Ninth Circuit Court of Appeals has overturned the convictions of Darlene and Jerry Span on federal charges of "assaulting" federal officers.

The nightmare began when 2 unidentified men approached Darlene and Jerry Span at their place of business in Phoenix, Arizona. The men had a wanted poster of a 63 year old man and asked if he was the Spans' brother. Their brother was at the time only 39 and the Spans obligingly told the men "No, that's not our brother." When the Spans turned back to help their customers, they found themselves slammed down on the hood of a car without warning in an unprovoked assault by the 2 burly men.

Darlene tried to defend herself as she was grabbed by the hair and thrown up against a fence. The brazen unprovoked assault was observed by eyewitnesses and even photographed by the Spans' mother. Only after the assault did the men identify themselves as federal marshals seeking the fugitive in the photograph. As events would prove, the marshals quite rightly had no expectation of being held accountable for beating up innocent citizens solely for failing to display proper obsequiousness in the presence of imperial federal agents.

The Spans were arrested on charges of assaulting the marshals because they dared to struggle against unreasonable and excessive force. In the trial, the judge told the jury that the law required that the Spans lie there and take the beating. The jury believed that the judge had given them no choice but to convict, even though they thought the law was wrong and the system had abused the Spans. They wrote letters and talked to the press. The Fully Informed Jury Association highlighted the case as illustrative of what happens when jurors are not told the truth about their powers as jurors.

Two prominent attorneys handled the Span's case, one for the trial (Oscar Goodman of Las Vegas) and one for the appeal (Alan Dershowitz). On appeal, Dershowitz argued that the judge had not given the right instruction to the jury. The proper instruction would have pointed out that citizens under U.S. law have the right to resist the excessive use of force by law enforcement officers. Excessive use of force by officers is not considered to be a good faith performance of duty. The Ninth Circuit Court of Appeals agreed, but said that since the defense council had not formally asked the judge for the correct instruction, they let the conviction stand.

So, Darlene Span filed again, pro-se this time - after consulting with paralegals, retired lawyers and an attorney just out of law school - to reverse the conviction. She argued that Goodman was incompetent and her 6th Amendment right to effective assistance of counsel was thereby denied. (Attorney Dershowitz had not raised the issue of incompetence of counsel.) This time, the court agreed.

The court said: "While we recognize that not every instance of counsel's ineffective handling of the jury instructions requires vacation of the underlying conviction, the egregiousness of the facts and the magnitude of trial counsel's incompetence in this case require that we do so. REVERSED."

Even after overcoming the attempts of their own government to levy criminal sanctions on them for being the wholly innocent victims of rogue agents, the Spans continue as the target of malicious actions by the same marshals who wrongfully attacked them. To compound the obscenity of this seemingly endless chain of government abuses, the marshals have filed a civil suit seeking to personally enrich themselves for having wrongfully charged the Spans with assaulting federal officers. The Spans must now spend more of their own resources and time to yet again defend their proven innocence against malevolent government agents.

The potential significance of this case goes far beyond the harassment of a couple innocent citizens by rogue agents. In defending the outrageous conduct of the marshals, the trial judge tried to wrongfully manipulate the jury in order to create the precedent that citizens have no right to resist even extreme and willful abuse of power by agents of the government. This abomination was then upheld on a specious technicality by the higher court.

Perhaps even worse, the first appeal ruling implies that a citizen's rights only exist if the citizen or his attorney specifically petitions the court to have those rights respected. By allowing the convictions to stand in spite of overwhelming evidence that they were solely the result of documented judicial misconduct, the first appeals judge attempted to create the precedent that a citizen has no rights if a judge chooses to void them by capricious, incompetent or malicious misconduct. What good is a judge if he's not bound to discharge his duties in a lawful manner? The judges in the Third Reich didn't consider themselves bound by law either, nor did they bother to respect the rights of their victims.

Even when the appeals court was unable to sustain the government's case, it only reversed the wrongful convictions on the grounds that the defendants' attorney was at fault in failing to insist that the judge properly discharge his sworn duties. It's outrageous that the defense attorney is now held accountable for the misconduct of the judge. The appeals court refused to admit any wrongdoing by the marshals or the previous judges - all of which willfully violated the rights of the wholly innocent Spans.

Could there be a more direct judicial assault on our legal rights as citizens? Could any of these judges have actually read with comprehension the Constitution and the Bill of Rights, and still handed down these rulings? Sound like totalitarianism yet?

The marshals who attacked the innocent Spans are members of the same gang of officially sanctioned killers who at Ruby Ridge callously gunned down a beloved family pet in front of the boy who loved it. As the terrified boy ran for the loving protection of his parents, the heavily armed government agents opened up with their assault rifles.

Garbed in black and concealing their identities as is the tradition of assassins down through the ages, the killers quickly snuffed out the innocent child's tender young life with a well aimed bullet in his back. Their blood lust unsatisfied, they then proceeded to murder the child's innocent mother. (Technically, while marshals gunned down the boy and his dog, it was an FBI sniper who carefully murdered the mother from a safe distance while she cradled her baby in her arms.)

None of the government agents who perpetrated the above crimes against innocent citizens have been prosecuted for their actions. "Our" government continues to protect and approve of these individuals and the policies under which these abuses occurred. Are these the defenders of truth, justice, and the American way? I think not.

We must stand for the rights of all, or one by one our names will be added to the list. United we are the nation, divided we're just its victims.

For more information about the Fully Informed Jury Association, write to:

FIJA
PO Box 59
Helmville, MT 59843