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New Discovery! 2023 Hottest in over 120 Million Years 2024 and beyond in prophecy Questions This Speech Just Broke the Internet Status: Not Logged In; Sign In United States News See other United States News Articles Title: Court Sets Ominous Precedent: Informing Jurors of Their Rights Is Now ILLEGAL Source: From The Trenches URL Source: http://fromthetrenchesworldreport.c ... rors-rights-now-illegal/200165 Published: Jun 2, 2017 Author: Justin Gardner Post Date: 2017-06-03 10:38:54 by Deckard Keywords: None Views: 118982 Comments: 422 Big Rapids, MI — As constitutional rights are steadily eroded in the U.S. through the burgeoning police/surveillance state, one case in Michigan provides an example of just how dire the situation has gotten. Keith Woods, a resident of Mecosta County, was charged and recently convicted for the “crime” of standing on a public sidewalk and handing out fliers about juror rights. Woods was exercising his First Amendment rights and raising awareness about something the courts deliberately fail to tell jurors when beginning a trial – jury nullification, or the right to vote one’s conscience. For this, Woods – a father of eight and former pastor – was charged with jury tampering, after an initial felony charge of obstructing justice was dropped following public outcry. Even with the reduced charge, the case has very troubling implications for free speech rights. The county prosecutor, seemingly furious that a citizen would dare inform the public on jury nullification, said Woods’ pamphlet “is designed to benefit a criminal defendant.” The prosecutor then seemed to contradict himself in a statement, saying, “Once again the pamphlet by itself, fine, people have views on what the law should be, that’s fine. It’s the manner by which this pamphlet was handed out.” Woods, who testified in his own defense, stated under oath that he did not ask anyone walking into the courthouse if they were a juror, remained on the public sidewalk and never blocked any area. He decided to hand out the pamphlets at a Nov. 24, 2015 trial of an Amish man accused of draining a wetland on his property in violation of Dept. of Environment Quality rules. Woods’ pamphlet did not contain anything specific to the case or any Michigan court, according to defense attorney David Kallman. But this innocuous behavior, which should be viewed as a public service, drew the attention of a judge who became “very concerned” when he saw the pamphlets being carried by some of the jury pool. “I THOUGHT THIS WAS GOING TO TRASH MY JURY TRIAL, BASICALLY,” TESTIFIED JUDGE [PETER] JAKLEVIC. “IT JUST DIDN’T SOUND RIGHT.” JACKLEVIC ENDED UP SENDING THAT JURY POOL HOME ON NOV. 24, 2015 WHEN YODER TOOK A PLEA. JAKLEVIC CONTINUED TO TESTIFY THAT HE STEPPED INTO THE HALLWAY WITH MECOSTA COUNTY PROSECUTOR BRIAN THIEDE WHEN DET. ERLANDSON AND A DEPUTY BROUGHT WOOD INTO THE COURTHOUSE THAT DAY. MECOSTA COUNTY DEPUTY JEFF ROBERTS TESTIFIED HE “ASKED WOOD TO COME INSIDE BECAUSE THE JUDGE WANTED TO TALK WITH HIM,” THEN THREATENED TO CALL A CITY COP IF WOOD DID NOT COME INSIDE. WOOD TESTIFIED JUDGE JAKLEVIC NEVER SPOKE TO HIM THAT DAY, OR HIM ANY QUESTIONS, BEFORE ORDERING HIS ARREST. HE TELLS FOX 17 HE HAD CONCERNS HIS CASE WAS TRIED IN MECOSTA COUNTY WHERE ALL OF THIS HAPPENED, INVOLVING SEVERAL COURT OFFICIALS INCLUDING THE JUDGE.” To recap, this judge said “it just didn’t sound right” that people were carrying information pamphlets on their rights as jurors, and he possibly lied on the stand to justify the fact that he had Woods arrested for doing nothing wrong. What’s more, Woods was brought to trial in the same court where all of this transpired and county officials had literally teamed up to violate his rights in the first place. “So our taxpayer dollars are paying their salary, and they were the actors in this case to arrest me, to imprison me, and all that,” said Woods. “I did have a very great concern that they were the ones trying the case, because they work together day in and day out.” Defense attorney Kallman notes that during Woods’ trial, they were prohibited from arguing several points to the jury. “And of course, the First Amendment issues are critical: that we believe our client had the absolute First Amendment right to hand out these brochures right here on this sidewalk,” said Kallman. “That’s part of the problem of where we feel we were handcuffed quite a bit.” When asked how he felt about his First Amendment rights, Woods replied, “Oh, I don’t feel like I have them.” We had briefs about the First Amendment, free speech. It was very clear today, I know the jury doesn’t hear that, but it was very clear that the government did not meet their burden to restrict my free speech on that public sidewalk that day. It was very clear.” Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 7. #2. To: Deckard (#0) (Edited) Deckard, I've just about had it with your "jury nullification" bullshit. You wanna play that game? Fine. Did you know that a jury can also convict a defendant if the jury disagrees with the law? Yes they can. The jury has the final word, one way or the other. Now, how about if you're on trial and I hand out fliers in front of your courtroom informing potential jurors they have the power to convict you even if you didn't violate the letter of the law? You woudn't consider that jury tampering? misterwhite  posted on  2017-06-03   12:57:03 ET  Reply   Untrace   Trace   Private Reply   #5. To: misterwhite (#2) Did you know that a jury can also convict a defendant if the jury disagrees with the law? Yes they can. The jury has the final word, one way or the other. Uhhh... That's not completely true, actually. Judges have the power to vacate jury convictions, but not jury acquittals. Correct me if I'm wrong. Pinguinite  posted on  2017-06-03   14:45:21 ET  Reply   Untrace   Trace   Private Reply   #7. To: Pinguinite, nolu chan, misterwhite (#5) (Edited) Uhhh... That's not completely true, actually. Judges have the power to vacate jury convictions, but not jury acquittals. Correct me if I'm wrong. You're right. I think in at least some states, a judge can set aside a jury's verdict and call a mistrial even after the jury has returned its verdict. I'm pretty certain they can set aside a guilty verdict in some states, not sure if they can set aside an acquittal. Maybe nolu has a link or two on the topic. Tooconservative  posted on  2017-06-03   14:54:07 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 7. #27. To: Tooconservative, Pinguinite, misterwhite (#7) I think in at least some states, a judge can set aside a jury's verdict and call a mistrial even after the jury has returned its verdict. I'm pretty certain they can set aside a guilty verdict in some states, not sure if they can set aside an acquittal. Maybe nolu has a link or two on the topic. The judge can overrule a guilty verdict. He cannot overrule a not guilty verdict after the fact due to jury nullification. As a seperate, and distinct possibility, an acquitted defendant may be retried upon a later finding of a rigged jury. That possibility proceeds in the face of double jeopardy claims on the theory that jeopardy never attached in the trial with the rigged jury. A judge issuing an acquittal notwithstanding the verdict I believe is most commonly issued when the judge decides he erred in sending the case to the jury as there was insufficient evidence presented to justify a finding of guilty. If a juror should be found, during a trial (before a verdict) to be engaging in juror nullification (or intending to do so), said juror may be removed from the jury. Defense counsel may not argue jury nullification. Criminal Procedure, Fifth Edition, West Publishing, Thomson Reuters (2009), by Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Karr [footnotes omitted] [1075] (f) Jury Nullification. The function of the jury is commonly said to be that of ascertain­ing the facts and then applying the law, as stated by the judge, to those facts. Indeed, it is not at all unusual for a jury in a criminal case to be instructed that it has the “duty” to proceed in such a fashion. But it is nonetheless true that, a jury in a criminal case has the power to acquit even when its findings of fact, if literally applied to the law as stated by the judge, would have resulted in a conviction. This is because a jury verdict of not guilty is not subject to reversal or to review in any manner whatsoever. On occasion, juries will acquit defendants who appear sympathetic, who are charged with violating an unpopular law, who the jurors speculate would otherwise be sentenced too severely, or who haven’t been proven guilty under standards for proof the jurors believe are required despite the judge’s instruction otherwise. Some have argued that this practice, usually referred to as jury nullification, is part of the right to jury trial guaranteed by the Sixth Amendment. Arguably the language that the Supreme Court has used to describe that right appears to encompass the nullification process. In Duncan v. Louisiana; holding that right applicable to the states, the Court declared that in the view of the framers “[i]f the defen­dant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Similarly, in emphasizing the need for juries drawn from a cross-section of the community the Court later asserted: “The purpose of a jury is to guard against the exer­cise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the profession­al or perhaps overconditioned or biased re­sponse of a judge." Rather than treating nullification as an af­firmative right of the accused (or the juror), however, most courts treat the jury’s nullifica­tion power as an inevitable by-product of the finality of verdicts of acquittal. As a result, pre-verdict procedures discouraging nullifica­tion abound. Members of the venire who admit that they will not follow the law may be ex­cused for cause, for example. And in United States v. Thomas, the Second Circuit conclud­ed that a juror’s intent to acquit regardless of the evidence constitutes a basis for the juror’s removal during the deliberations, reasoning, “Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court * * * We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” The prevailing view is also that the Consti­tution does not require that a jury be told [1076] specifically that it has the power to disregard the law and acquit. This view is often attrib­uted to Sparf and Hansen v. United States."Two sailors charged with murder asked the judge to instruct the jury on the lesser offense of manslaughter, but the judge refused on the ground that there was no evidence which would support a manslaughter verdict. Rather, he instructed: “In a proper case, a verdict for manslaughter may be rendered, * * * and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the lawr it should receive from the court.” Holding the jury had not been improp­erly instructed, the Supreme Court reasoned that “if a jury may rightfully disregard the direction of the court in matters of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law.” It is fair to say that Sparf did not settle the jury nullification issue, for the Court did not address the specific question whether jurors should be told they can refuse to enforce the law’s harshness when they conclude that jus­tice so requires. But lower courts have rather consistently ruled that no such instruction should be given, that defense counsel may not make a nullification closing argument, and that “the potential for nullification is no basis for admitting otherwise irrelevant evidence.” When jurors have no responsibility for sen­tencing, for example, a court will typically prohibit them from learning of the sentencing consequences of their verdict through evidence or argument. This ensures that their decision to convict or acquit is based entirely on the evidence of guilt or innocence and not upon their punishment preferences for the defen­dant. One leading case on the propriety of limiting the information and argument provided to the jury on its power to disregard the law is Unit­ed States v. Dougherty." There the court con­cluded that the “jury system has worked reasonably well overall” without resort to a nullification instruction, “with the jury acting as a ‘safety valve’ for exceptional cases, out being a wildcat or runaway institutution. This is because, the court explained, the jury “gets its understanding as to the arrangements in the legal system” not only from judge’s instructions but also through “the formal communication from the total culture," and the “totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.” The court expressed fear that a nullification instruction would upset the existing balance and produce more hung juries. Finally, the court in Dougherty declared that such an instruction would deprive the individual juror of an important protection he now enjoys and to which he is entitled: that “when he takes action that he knows is right, but also knows is unpopular either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.” In opposition to the Dougherty position, it has been contended that there is no reason to assume that juries will act in a different and less desirable way if informed about their nullification power, that there are political advantages to be gained by not lying to the jury, and that a nullification instruction would serve to discourage acquittals based on prejudice instead of encouraging them, by setting justice and conscience as the standards for acquittal rather than leaving the jurors to use their own biases as standards. nolu chan  posted on  2017-06-03 23:41:56 ET  Reply   Untrace   Trace   Private Reply   #85. To: Tooconservative, Pinguinite, misterwhite (#7) Of possible interest: This is a very rare case where a defendant was acquitted in criminal case and later reindicted and convicted for the same crime. It was a bench trial wherein the Chicago gangster bribed the Chicago judge. http://law.justia.com/cases/federal/appellate-courts/F3/138/302/473725/ Aleman v Judges of the Circuit Court of Cook County, 138 F3d 302 (7th Cir 1998) Harry Aleman, Petitioner-appellant, v. the Honorable Judges of the Circuit Court of Cook County,criminal Division, Illinois, Honorable Michael P. Toomin,judge Presiding, Honorable Richard Devine, State's Attorneyof Cook County, Illinois, Ernesto Velasco, Executivedirector, Cook County Department of Corrections,respondents-appellees, 138 F.3d 302 (7th Cir. 1998) U.S. Court of Appeals for the Seventh Circuit - 138 F.3d 302 (7th Cir. 1998) Argued Dec. 2, 1997. Decided March 6, 1998 Allan A. Ackerman, Chicago, IL, David I. Bruck (argued), Columbia, SC, for Harry Aleman. Rita M. Novak, Office of the Attorney General, Chicago, IL, James E. Fitzgerald, John Blakey, Cook County State's Attorney, Chicago, IL, Renee G. Goldfarb (argued), Office of the State's Attorney of Cook County, Criminal Appeals Divison, Chicago, IL, for Circuit Court of Cook County, Illinois, Criminal Division, Michael P. Toomin, Judge, and Ernesto Velasco. James E. Fitzgerald, John Blakey, Cook County State's Attorney, Chicago, IL, Renee G. Goldfarb (argued), Office of the State's Attorney of Cook County, Criminal Appeals Division, Chicago, IL, for Richard A. Devine. Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges. FLAUM, Circuit Judge. Harry Aleman successfully bribed a Cook County Circuit Judge to acquit him of a murder charge in a 1977 bench trial. A grand jury returned a second indictment against Aleman on this murder charge in 1993 after evidence of the bribery surfaced. In addition, Aleman was indicted for the first time on a different murder charge. Aleman moved to dismiss both indictments, but the Illinois state courts rejected his arguments. In a lastditch effort to avoid (re)trial, Aleman requested a stay of state court proceedings while a federal district court considered his challenge to the indictments in a petition for a writ of habeas corpus. The case proceeded to trial after the district court denied this petition and motion to stay, and a Cook County jury convicted him of the Logan murder;1 the trial judge thereafter sentenced Aleman to 100-300 years in prison. Aleman appeals the district court's denial of the petition. His conviction will stand, though, because we affirm the district court's denial of Aleman's petition. While walking to work on the morning of September 27, 1972, William Logan was shot and killed by Harry Aleman. Three years later, in October 1975, Aleman also shot and killed Anthony Reitinger, allegedly because Reitinger neglected to pay a "street tax"2 on his bookmaking operation to local organized crime figures. A grand jury indicted Aleman for the Logan murder in December 1976, but he was not charged at this time with the Reitinger murder. After numerous substitutions of counsel and judges, the Logan case proceeded to a bench trial before Cook County Circuit Court Judge Frank Wilson, who acquitted Aleman of the Logan murder in May 1977. Nearly twenty years after the trial, however, two witnesses from the Federal Witness Protection Program were made available to testify that Aleman had murdered both Logan and Reitinger and that he had purchased the Logan acquittal with a $10,000 bribe to Judge Wilson. The first witness, Vincent Rizza, was a former Chicago police officer who ran an illegal bookmaking operation in order to supplement his government salary. Rizza paid a street tax to the local mafia and agreed to report bookmakers who were not making such payments to Aleman; one of the independent bookmakers whom Rizza offered up to Aleman was Anthony Reitinger. This evidence would provide a crucial link between Aleman and Reitinger's unsolved murder. Rizza also supplied corroboration of Aleman's bribe of Judge Wilson in the Logan murder trial. In the early winter of 1977, after Aleman's indictment but before the trial, Aleman told Rizza that the trial was "all taken care of". Aleman said that he requested a bench trial "because the case was all taken care of" and that this way he was not going to jail. Later, when newspaper accounts began to paint a bleak picture of Aleman's chances of gaining an acquittal, he again told Rizza calmly that the case was "taken care of". The second federal government informant was Robert Cooley, a former lawyer steeped in corruption who admitted that he frequently bribed judges, prosecutors, clerks, and sheriffs before entering the Federal Witness Protection Program.3 Cooley was a close friend of Judge Wilson and, at the request of some local organized crime figures, pitched the idea of a "fix" to Wilson. Cooley told Wilson that the case against Aleman was weak, that it could be handled very easily, and that an acquittal would be worth $10,000. Wilson agreed to fix the case if Aleman's counsel, Thomas Maloney, a good friend of Wilson's, would withdraw from the case in order to reduce the appearance of impropriety.4 Cooley thereupon paid Wilson $2,500, and the two men agreed that Wilson would receive the remaining $7,500 after the acquittal. Unbeknownst to Wilson, Cooley had also arranged a $10,000 payment to secure the favorable testimony of an eyewitness to the murder. Cooley then met with Aleman and assured him that an acquittal was guaranteed. The evidence against Aleman, however, was not as flimsy as Cooley had indicated to Judge Wilson. After the second day of trial, Cooley met with Wilson, who was upset at Cooley's misrepresentations and at the prosecutor's allegations that a witness had received $10,000 in exchange for offering false testimony. Amazingly, the issue for Wilson was not whether he would still acquit Aleman, but for how much. Wilson expressed annoyance that a witness was getting the same amount of money as a "full circuit judge"; he said to Cooley that he would "receive all kinds of heat" for the acquittal and requested more bribe money: " [T]hat's all I get is ten thousand dollars? I think I deserve more." Throughout these meetings, the acquittal itself was never in question. Judge Wilson fulfilled his end of the bargain on May 24, 1977, when he acquitted Aleman in a brisk oral ruling and quickly exited the courtroom. Cooley's contacts in organized crime gave him a $3,000 "commission" for his work and an envelope containing $7,500 for Judge Wilson. Cooley and Wilson dined together at a restaurant soon after the trial, and, in the men's room, Cooley slipped Wilson the promised $7,500 envelope. Wilson expressed concern because the press was "all over" him about the seemingly inexplicable acquittal; he complained to Cooley: "That's all I'm going to get? I don't get any more than that?" Wilson then left the restaurant in frustration. In addition to this extraordinary informant testimony, other evidence confirmed the bribery. An F.B.I. agent interviewed Judge Wilson at his retirement home in Arizona in November 1989. The agent informed Wilson that Cooley had become a government informant, that Cooley had secretly taped a recent conversation with Wilson in which the two men discussed the $10,000 Aleman bribe, and that the Government was currently investigating allegations that Wilson accepted a bribe to acquit Aleman. Wilson denied the accusations, but he failed to appear in Chicago for a grand jury subpoena concerning the matter on December 6, 1989. A few months later, Judge Wilson walked into the backyard of his home and shot himself to death. Finally, Monte Katz, a friend of Aleman's in federal prison,5 claimed that Aleman admitted that he murdered William Logan. Katz and Aleman became friends in prison, and, apparently, Aleman often discussed his criminal exploits. Specifically, Aleman told Katz that he "fixed" the Logan trial by paying money to "reach" the judge. Aleman stated that he was not worried about being tried again for the murder because it "was a double jeopardy situation." The Circuit Court noted that the circumstantial evidence of a bribe was also significant. The record revealed "the rather curious spectacle" of Aleman, who originally deemed Judge Wilson to be a prejudiced judge, within the passage of ten weeks, withdrawing his objection and allowing the case to be assigned to Wilson. In addition, Aleman was released from state custody on bond despite facing the state's most serious criminal charge, and the case proceeded to trial in less than five months from the date of his arraignment. The Circuit Court also took pause from the fact that Aleman's attorney, Frank Whalen, set the case for trial within six weeks of filing his appearance and requested no interim continuances to conduct the "adequate preparation one might reasonably anticipate in a case of this magnitude." Based on this body of evidence, in December 1993, the Cook County State's Attorney again charged Aleman for the Logan murder and for the first time charged Aleman with the murder of Reitinger. A grand jury returned indictments on both counts. Aleman claimed to the Circuit Court, as he claims to us on appeal, that the Logan indictment violated the Double Jeopardy Clause and that the prejudicial pre-indictment delay on both charges violated his due process rights. After an evidentiary hearing concerning the alleged bribe, the Circuit Court rejected the double jeopardy argument based on the overwhelming factual evidence that Aleman's first trial was a sham. The Court emphasized its certainty that Aleman had bribed Judge Wilson: Although the court earlier observed that the State's burden was to establish the bribery by a preponderance of the evidence, the court also concurs in the State's appraisal that the evidence presented also meets the standard of proof beyond a reasonable doubt. Were this a prosecution for the substantive offense of bribery, the court would have little difficulty in concluding that the People had presented a credible and coherent case against the defendant. The evidence clearly establishes the tendering of money to a public officer to influence him in the performance of his duties. (Citations omitted). Based on this factual finding, the Circuit Court held that there was no double jeopardy bar to reprosecuting Aleman for the Logan murder because there was never any jeopardy at the first trial. Furthermore, because crucial witnesses were not available at an earlier time, the court denied Aleman's claims of unconstitutional preindictment delay. These rulings were upheld on appeal. See People v. Aleman, 281 Ill.App.3d 991, 217 Ill.Dec. 526, 667 N.E.2d 615 (Ill.App.), review denied, 168 Ill. 2d 600, 219 Ill.Dec. 567, 671 N.E.2d 734 (1996), and cert. denied, --- U.S. ----, 117 S. Ct. 986, 136 L. Ed. 2d 868 (1997). The district court below also rejected these contentions in Aleman's petition for a writ of habeas corpus. United States ex rel. Aleman v. Circuit Court of Cook County, 967 F. Supp. 1022 (N.D. Ill. 1997). Aleman raises three claims on appeal. First, he takes issue with the Circuit Court's factual findings that he bribed Judge Wilson in the Logan trial. Second, he challenges the effect of those factual findings upon his double jeopardy claim. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (holding that the protections of the Double Jeopardy Clause apply to the states). Finally, he urges us to recognize that the pre-indictment delays of twenty-one and eighteen years in the Logan and Reitinger murders, respectively, violated his due process rights. Our collateral review, however, is quite limited. Under 28 U.S.C. § 2254(d) (1), we can only grant Aleman's petition if one of the Circuit Court's legal rulings was either "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Aleman's factual challenge can succeed only if he can show by "clear and convincing evidence" that the Circuit Court's findings are erroneous. See id. § 2254(d) (2). He meets neither of these stringent standards. Aleman's challenge to the Circuit Court's factual findings can be dismissed in short order. He rightly points out that the common law has always presumed the neutrality of judges. See, e.g., 3 W. BLACKSTONE, COMMENTARIES (" [T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea."); see also Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1372-73 (7th Cir. 1994) (applying the common-law presumption), cert. denied, 514 U.S. 1037, 115 S. Ct. 1404, 131 L. Ed. 2d 290 (1995). Aleman seems to think that reciting this principle alone can somehow overcome the great weight of evidence showing that he bribed Judge Wilson. However, we have always recognized that the presumption of a judge's neutrality is a rebuttable one. See Del Vecchio, 31 F.3d at 1373; see also Bracy v. Gramley, --- U.S. ----, ----, 117 S. Ct. 1793, 1799, 138 L. Ed. 2d 97 (1997). As in Bracy, the Circuit Court found that the ordinary presumption had been soundly rebutted in this case. Beyond the presumption argument, Aleman argues that the State's witnesses were unreliable based solely on the length of time between the relevant events and the Circuit Court's evidentiary hearing. He relies on dicta from our decision in Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir. 1996), in which we commented that the petitioner did not show "good cause" for discovery because, in part, there would be a "pall of doubt" over the reliability of any exculpatory witnesses' testimony based on a fourteen-year interval between the events and an evidentiary hearing. Id. The Supreme Court, however, implicitly expressed its disapproval of this statement when overruling the case. See --- U.S. ----, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). Aleman nevertheless tries to spin gold from this frayed strand. He notes that most of the key players in this story are deceased and, of those that are still living, the events occurred so long ago that their testimony is inherently unreliable. Aleman's position on this point is flawed on many levels. First, the Supreme Court disagreed with our view of Bracy's ability to show good cause based on such testimony. Second, dicta from our Bracy opinion would not have established any sort of general rule that testimony concerning events from over fourteen years ago was presumptively unreliable. Such a rule would have called into question the constitutionality of countless statutes of limitations. Third, and most importantly, any alleged presumption of unreliability would have been rebutted in this case by the Circuit Court's evaluation of the testimony. The Court heard the evidence and concluded that it was reliable "beyond a reasonable doubt". Aleman did not attempt to rebut the State's strong evidence with anything but vacuous and inapposite presumptions. This is a far cry from the "clear and convincing evidence" of factual error that we require before invalidating Circuit Court findings of fact. Aleman's legal challenge presents a unique and interesting question, but it ultimately fares no better than his factual one. The Fifth Amendment's Double Jeopardy Clause guarantees that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." Aleman argues that the Double Jeopardy Clause unambiguously bars his reindictment on the Logan murder charge because he faced trial on that murder charge in 1977 and was acquitted by Judge Wilson. In support of his position, he points to a long line of Supreme Court cases reiterating that an acquittal on a charge absolutely bars retrial on that charge. See, e.g., Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829, 54 L. Ed. 2d 717 (1978) ("The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal.... If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair."); Ball v. United States, 163 U.S. 662, 671, 16 S. Ct. 1192, 1195, 41 L. Ed. 300 (1896) ("[I]n this country a verdict of acquittal ... is a bar to a subsequent prosecution for the same offense."). Aleman argues that it is irrelevant how he obtained his acquittal and that there is no room for courts to question those circumstances and lift the double jeopardy bar to reprosecution. See, e.g., Burks v. United States, 437 U.S. 1, 11 n. 6, 98 S. Ct. 2141, 2147 n. 6, 57 L. Ed. 2d 1 (1978) ("[W]here the Double Jeopardy Clause is applicable, its sweep is absolute. There are no 'equities' to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination."); Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629 (1962) (stating that an acquittal triggers the protections of the Double Jeopardy Clause even if "the acquittal was based upon an egregiously erroneous foundation"). Aleman contends that the Circuit Court's decision is contrary to, or an unreasonable application, of this body of the Supreme Court's interpretations of federal law. The legal conclusion urged by Aleman might not be an unreasonable application of Supreme Court precedent,6 but the highly deferential standard of collateral review leads us to hold that the contrary interpretation--the one adopted by the Illinois courts in this case--is also not unreasonable. The Illinois courts viewed the authority cited by Aleman as begging the question; the Double Jeopardy Clause may well be absolute when it applies, see Burks, 437 U.S. at 11 n. 6, 98 S. Ct. at 2147 n. 6, but determining if it applies is the real issue in this case. Similarly, the State argues that the protections of the Double Jeopardy Clause only extend to a defendant who was once before in jeopardy of conviction on a particular criminal charge; the State contends that, by bribing Judge Wilson, Aleman created a situation in which he was never in jeopardy at his first trial. The first trial, therefore, was a sham and the acquittal there rendered has no effect for double jeopardy purposes. Under this theory, the State was free to re-indict him because he has never been in jeopardy of conviction on the Logan murder charge. The Circuit Court concluded that Aleman's first trial was a nullity because he was never truly at risk of conviction. The Supreme Court has emphasized that " [j]eopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution." Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 1353-54, 51 L. Ed. 2d 642 (1977) ("The protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy.") (emphasis added); Serfass v. United States, 420 U.S. 377, 391-92, 95 S. Ct. 1055, 1064-65, 43 L. Ed. 2d 265 (1975) ("Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.... In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction."); Price v. Georgia, 398 U.S. 323, 331, 90 S. Ct. 1757, 1762, 26 L. Ed. 2d 300 (1970) ("The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict."). Indeed, the Court has stated that preventing the hazards associated with risking conviction is the raison d'etre of the Double Jeopardy Clause: The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223-24, 2 L. Ed. 2d 199 (1957). Aleman had to endure none of these risks because he "fixed" his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell Vincent Rizza before the trial that jail was "not an option". Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort "traditionally associated" with an impartial criminal justice system.7 See Breed, 421 U.S. at 528, 95 S. Ct. at 1785. It seems only appropriate that a defendant should not be allowed to escape punishment for murder because he bribed the judge. To allow Aleman to profit from his bribery and escape all punishment for the Logan murder would be a perversion of justice, as well as establish an unseemly and dangerous incentive for criminal defendants. The Illinois courts' holdings, therefore, were not contrary to, or unreasonable applications of, federal law as interpreted by the Supreme Court. For these reasons, we affirm the district court's rejection of the double jeopardy claims contained in Aleman's petition. [snip] nolu chan  posted on  2017-06-05 02:58:45 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 7. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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