O.J. SIMPSON: DIVERSION FROM WACO/SUMMER OF 1993

O.J. Simpson was never indicted!! 

If this case is evidence of something significant, it's evidence of the significant level to which "civics" education in America has sunk. And, there may be some ABA-approved law schools in that same sink hole. Just how many lawyers (and law school professors) did the major TV networks, radio stations, newspapers and news magazines interview, month in and month out? At least as interesting is the fact that the anchor for CNN for the Simpson case is a good journalist who is also a law school grad. And how many books were written about this case? With all this "brain power" and attention brought to bear on this matter, isn't it just amazing that NONE of them ever mentioned the one and only fact in the case that ever mattered?! (This is just to say that if you missed it, too, you're in wonderful company, but let's learn the lesson, so as to have no (more) repeat performances.)

To recognize the ramifications from what happened (and didn't happen) in the Simpson case, it helps to understand what happens when the Fifth Amendment language is applied to the facts in that case. To apply that language, it helps to know what the language says, and why it's there. Understanding why it's there comes from a history lesson, in the area of limiting governmental power. And, to get an understanding of what it is that's being limited, and how our "Bill of Rights" has improved upon the historic "Bill of Rights," it helps to have an idea about what the label placed on the government is telling us. Therefore, the following outline tracks through the following steps:

  1. The labels of government, and what they tell us.
  2. The label of the United States Government, and what that confirms to us.
  3. The historic label, "Bill of Rights," tells us specific information.
  4. The current label, "Bill of Rights," as regards the Amendments, tells us the very same kind of information as the historic label "Bill of Rights" told us.
  5. There is competition in the area of governmental models. To know your competition is to recognize your competition.
  6. The Fifth Amendment applies in the Simpson case. In short, it was legally impossible to get a conviction against him, as this case was handled.
  7. Not only is there a major overreaching in the exercise of judicial authority in this case, but also there are additional areas of concern. 


Outline.

  • [Labels, generally] Governments are properly labeled according to the exercise of one particular power. What is that power?
  • [Label, US] What is the proper label of the United States Government? Why?
  • [Limits, History] Given that, at the time of Magna Carta, the British government was properly labeled a monarchy, what do we learn from the labeling of the "Bill of Rights," as that language relates to Magna Carta?
  • [Limits, US] Given that our Founding Fathers adopted that labeling, "Bill of Rights," what were they trying to communicate to us, their Posterity?
  • [City-State] What is the city-state model of government?
  • [The Fifth] Given that the "Bill of Rights" is perhaps best labeled as "The First Ten Additional Prohibitions," what does the Fifth Amendment do?
  • [New Perspective] What consequence(s) when all this is applied to the OJ Simpson case?

The Legislative Power.     [Outline]

Learning which characteristic of government is labeled, and then what those labels describe, is straight forward. The legislative Power, also known as the "Supreme" power, is the one by which all governments are labeled. Many believe that the United States Government, and each of the various State Governments, is a "democracy," despite the self-labeling provided in Article IV, 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government[.]") One of the most clear and succinct discussions of how governments are labeled is in John Locke's Of Civil-Government, Book II, Chapter X, Of the Forms of a Commonwealth. Here's how Locke described it:

132. The Majority having, as has been shew'd, upon Mens['] first uniting into Society, the whole Power of the Community [see Posse comitatus, the power or force of the county, Black's Law Dictionary 1046 (5th ed. 1979), another term popularly misunderstood], naturally in them, may [e]mploy all that Power in making Laws for the Community from time to time, and executing those laws by Officers of their own appointing; and then the Form of the Government is a perfect Democracy: Or else may put the Power of making Laws into the hands of a few select Men, and their Heirs or Successors; and then it is an Oligarchy: Or else into the hands of one Man, and then it is a Monarchy: If to him and his Heirs, it is an Hereditary Monarchy: If to him only for Life, but upon his Death the Power only of nominating a Successor to return to them; an Elective Monarchy. And so accordingly of these the Community may make compounded and mixed Forms of Government, as they think good. And if the Legislative Power be at first given by the Majority to one or more Persons only for their Lives, or any limited time, and then the supre[me] Power to revert to them again; when it is so reverted, the Community may dispose of it again anew into what hands they please, and so constitute a new Form of Government. For the Form of Government depending upon the placing the supre[me] Power, which is the Legislative, it being impossible to conceive that an inferior Power should prescribe to a superior, or any but the supre[me] make Laws, according as the Power of making Laws is placed, such is the Form of the Common-wealth.

133. By Commonwealth, I must be understood all along to mean, not a Democracy, or any Form of Government, but any Independent Community which the Latines signified by the word Civitas, to which the word which best answers in our Language, is Commonwealth, and most properly expresses such a Society of Men, which Community or City in English does not, for there may be subordinate Communities in a Government, and City amongst us has a quite different Notion from Commonwealth: And therefore to avoid Ambiguity, I crave leave to use the word Commonwealth in that Sense, in which I find it used by King James the first, and I take it to be its genuine signification; which if any Body dislike, I consent with him to change it for a better.

Locke, Of Civil-Government (Book II, chap. X 132-33) (1714) (emphasis in the original).

In sum, to label a form of government is to identify how the Supreme Power, namely the Legislative Power, is exercised. 

[Outline]

Our Constitutional Republic.     [Outline]

Further, given that all governments are labeled according to how the Legislative Power is exercised, the definition of a "democracy" is that form of government where the Legislative Power is exercised directly by all citizens of that Commonwealth. It is not accidental that the Constitution labels itself, and that the self-labeling is not that of "democracy."

      "The United States shall guarantee to every State in this Union a Republican Form of Government[.]" U.S. Const. art IV, 4.

The Legislative Power, for the United States Government, and for all State Governments, is exercised by representatives, and not directly by the citizens. Many use the term "democracy" to mean and refer to a generic decision-making process. A better term for that is "majority rule," which is a good organizational decision-making rule. But "democracy" is not a description of a (mere) decision-making process. It describes a "form of government." Thus, better than saying, "We want to make the world safe for democracy," which, with all due respect, is the last thing we want to do, is to say something along the lines of, "We support constitutional Republics, where the self-governed people can set up governments that respect individual rights, and that utilize majority rule in their decision-making practices." In other words, we support limited government, the world over.

The legislative Power granted by the People to the United States Government is exercised by representatives, hence the proper self-labeling found in the Constitution. IF we only had one individual exercising the Supreme Power, then we'd have a monarchy. IF we only had a small group of people making our laws, then we'd have an oligarchy. IF we participated directly in the process by which law is made, then we'd have a "democracy." HOWEVER, because none of those exercises of the Supreme Power, i.e., of the legislative Power, exist in the United States Government (or in any State Government), none of those labels apply. The one label that does apply is "constitutional Republic." The Supreme Power is exercised, everywhere in America, and in particular in the United States Government, by our representatives. 

The whole point in understanding the labeling, "constitutional Republic," is to understand that this governmental structure is limited, from the word "go." The only authority that the United States Government can exercise is that which the People granted to it. The common use of the term "democracy," however well-meaning, strays from this line of thought.

[Outline]

The Historical "Limits on the King."     [Outline]

It used to be that the Kings made the laws. Prior to Magna Carta (15 June 1215), the King was essentially unrestrained in the exercise of the Supreme Power. Where the government is a monarchy, it's the monarch's job to make the laws, and for a group to put limits on the exercise of the Supreme Power is for that group to "limit the King."

Thus, what that language labeled as the "Bill of Rights" did was add, operationally and legally, limits on the exercise of governmental power. Thus, Magna Carta documents historic limitations on the Power held and exercised by the King. At the time, the concept of "limiting the King" was rather extraordinary.

[Outline]

The First Ten "Additional Prohibitions."     [Outline]

What's extraordinary these days is the wide-spread perspective that government isn't really limited, and, more to the point here, that the language of the Constitution is the source of individual rights. "I have constitutional  rights," is a common statement these days, and in history. So is, "I assert my Fifth Amendment 'right' against self incrimination." TV show characters use that phrasing all the time. It will be interesting to see how many issues resolve themselves when a more self-descriptive labeling accompanies the text of the first ten Amendments to the Constitution. Largely attributed to popular marketing, which focuses disproportionately on the labeling, almost to the exclusion of the language itself, there's a pervasive misunderstanding about the relationship between the individual and the Government. The "popular" understanding has it just backwards.

Individual rights existed many generations before our Founding Fathers were even born. In other words, our individual rights exist at common law, and they predate the Constitution by a good long while. So, why did they call those Amendments the "Bill of Rights?" The answer is that the concept of limiting governmental power was expressed admirably under the label "Bill of Rights" as that term or phrase was associated with Magna Carta. Out of respect for, and understanding of, the historic labeling of the act of limiting government, that same labeling was adopted. The point was to communicate clearly, to all in the world who would study the Constitution, that this language imposed additional prohibitions on the exercise of governmental authority. Thus, all who understood that the "Bill of Rights" regarding Magna Carta "limited" the government would also have an instant understanding that our "Bill of Rights," the first ten "Additional Prohibitions," existed for the exact same purpose, namely to limit government. And, as one reads, even casually, through those Amendments, one reads time and time again that the language "grants" nothing, to anyone, but instead presupposes the existence of the "rights," and rather directly and specifically prohibits the exercise of authority to limit them, specifically for certain topics (one through eight), and generally for others (nine and ten).

As we read back through history and see how the British invaded, and how we defended against that attack, we learn that the problems arose as a direct result of the King's failure to recognize and respect "individual rights," which are the very same ones we have today. These rights well preceded the existence of the United States Government. They preceded the formation of the Confederation, via the Articles of Confederation. They even preceded the travels by the Pilgrims, and the formation of those first two colonies, James Town and Plymouth. Now, since We the People, had these rights to begin with, just exactly how much sense does it make to say that the People turned right around limited themselves, instead of staying on track by limiting the government, through the provisions labeled the "Bill of Rights?" To know the history is to understand the language and the thoughts communicated by the labeling.

[Outline]

The City-State Model of Government.     [Outline]

Those who come from the perspective that the "Bill of Rights" is an enumeration of "rights" granted by the (all-powerful, supreme) government to the (subservient, dependent, limited) people, have been talked out of appreciating the constitutional Republic form of government and talked into preferring the city-state model of government.

Those familiar with Machiavelli, and the Medici, are likely familiar with the city-state model of government. In that form of government, the people exist at the behest of the State. Also, the officials in the State are worshipped as gods, and the people do nothing they aren't given instructions, or permission, to do. If that sounds like slavery to you, there's a good reason for that. Do you have your papers? Do you have the proper license? If not, you might go to jail, or get fined, because the almighty government hasn't allowed you to do that.

As western civilization developed, perspectives about the relationship between the individual and the government changed. As the focus shifted from the group as the primary focus, to the individual as the primary focus (in civilized society, the group was no longer essential for survival), perspectives about government changed, as well. And, one result of those changes in perspective is that governmental authority flows not from God to the King (one may have heard the phrase "divine right of Kings") to the individual, but rather from God to the individual to the government. The former is the basis of the city-state model of government, and the latter is the basis for the United States Government. In other words, the basis of the city-state model is the exact opposite of the basis of the United States Government. Thus, those who teach that the Constitution "grants" individual rights teach the mentality essential for a city-state form of government. And, those who teach that the "Additional Prohibitions" exist for the purpose of identifying, clearly and specifically, certain additional limitations on the exercise of governmental authority, teach the perspective on which the continuity of our constitutional Republic is guaranteed.

[Outline]

The Fifth Amendment, in its proper context.     [Outline]

Here's why the discussions above matter for Fifth Amendment cases. One's understanding of the language of the Fifth Amendment depends greatly on one's understanding of the form of government that exists in the United States. Those who understand that government is limited (and it is, which discussion will be several weeks down the road), can thank their teachers and family and friends and community leaders who have taught them. To know that government is limited is to see that the Fifth Amendment prohibits the exercise of any judicial Power in any capital or otherwise infamous crime case, until the Grand Jury has acted. On the other hand, those who see that "indictment" is an "individual right," to be acted upon or not, on a case by case basis, have bought into the city-state model, which model is enjoyed best by those who seek to be the modern day Medici.

[top]Here's the pertinent language. It's the first clause of the Fifth Amendment.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger[.]" U.S. Const., amend. 5.

        The Rule. No person shall be held to answer for a capital, or otherwise infamous crime.

        Exception 1. Except in cases arising in the land or naval forces, or

        Exception 2. [Except in cases arising] in the Militia, when in actual service in time of War or public danger.

For those who teach the city-state model and mentality, the perspective is that the language of the Fifth Amendment grants a "license" to an "individual right," which "right" is that of Grand Jury indictment, which "individual right" can be "waived" by the individual. Regardless of how that thought is expressed, anyone who states the OJ Simpson didn't have to be indicted teaches the city-state model and mentality, which perspective directly and specifically opposes the Constitution. That an indictment is taught to be a "right" subject to "waiver" is so repugnant to the letter and purpose of the Amendment language as to be shocking to the conscience, just to hear it expressed. However, even more shocking is that this city-state model and mentality lesson was taught in the Simpson case, by being broadcast over international TV, among other modes of communication, and it was met with the deafening silence of acceptance, in particular in the legal community.

The perspective that stems from the understanding that the People set up a limited Government, and that, in the tradition of Magna Carta, added still further limitations, via the internationally recognized label of "Bill of Rights," is that this language in the Fifth Amendment is a clear, specific and complete prohibition on the exercise of judicial power by any judge in this country (when that Case comes within the terms of the Fifth Amendment), unless and until the Grand Jury has handed down an indictment.

The following may be a concept better appreciated by those who have studied law or have "hung out" in a law office or law library for a while, but it is a necessary point to cover. It's impossible to "waive" a court's lack of subject matter jurisdiction. A court must have three things in order to have authority to enter valid Orders: (1) subject matter jurisdiction; (2) personal jurisdiction; and (3) proper venue. Now, a party can waive personal jurisdiction. And a party can waive venue. But no party can ever "waive" a court's lack of subject matter jurisdiction. The reason is that a court's subject matter jurisdiction comes from the associated Constitution (U.S. or State), or from the relevant legislative acts regarding that court system and judicial Power. So, to say, in general, that one can "waive" subject matter jurisdiction is to say that the individual can amend the Constitution, thus granting judicial authority where there is none, or that the individual can pass legislation, thus granting judicial authority where there is none, on a case by case basis. Both of these propositions are ludicrous on their face. Thus, a court that lacks subject matter jurisdiction lacks authority to enter any valid Order (except the one that notes the court's lack of subject matter jurisdiction), and there's nothing any party to the litigation can do to affect that, one way or the other.

To illustrate the point, it's the general rule that objections argued on appeal must first be raised at trial. In other words, objections not raised are waived. However, subject matter jurisdiction is so foundational to a court's authority that raising it for the first time on appeal is perfectly acceptable. In other words, should the objection to subject matter jurisdiction be missed at trial, it's not waived, but rather is fully preserved. Thus, we see that one cannot waive subject matter jurisdiction.

Thought of in one way, the indictment is to the capital or otherwise infamous crime case what the Original Petition is to a civil case: without it, there is no case; without it, no judicial authority arises to adjudicate anything between those parties. Without an indictment, no authority in the court exists even to select a jury, much less to conduct a trial. Key here is the term "held." No person shall be held [ordered by a court] to answer for [to respond to, to defend against, the charge of] a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

What we end up with is the legal reality that it's impossible to "waive" Grand Jury (presentment or) indictment. When the case comes within the terms of the Fifth Amendment, it's the exercise of judicial authority in its entirety that is prohibited, unless and until a Grand Jury has acted (by returning a True Bill charging that individual). No court has authority to proceed with anything regarding the case, unless and until there's a True Bill by the Grand Jury. For a court to have authority, in a capital case, without an indictment (and not involving the land or naval forces, or the Militia, when in actual service) would mean the need to amend the Constitution. Nothing in the article that discusses amendment includes any indivudal decision, or any decision on a case by case basis. See U.S. Const art. V.

Once we see the context, namely that the "Bill of Rights" language imposes limitations on government, rather than grants individual rights, the rest of the picture falls right into place. From there, one sees how preposterous it is even to suggest  that one can "waive" Grand Jury indictment in a capital case. To "waive" Grand Jury indictment is to waive subject matter jurisdiction, and there just simply is no such thing as waiver of subject matter jurisdiction. In (non-military) capital cases, if there's no indictment, there's no judicial authority. Period.

To apply the Fifth Amendment to the facts in the OJ Simpson case, we have this. Exception 2 doesn't apply, because there was nothing about the Militia that relates to this case. (Remember Paul Revere and the Minutemen, who existed before the United States Government existed, which Government has to exist before there can be any U.S. Army or Navy? Good, because that's the Militia, and the concept of Militia, that the Constitution refers to. The image portrayed by the popular media is considerably different these days. One of the earliest recorded Militia activities is found in Genesis 14:14, where Abram "mustered the trained youths of this own family," about 388 in number, to rescue Lot, after Lot had been kidnapped.)  There was no call up of any Militia by the Governor of California, or by the President, and there was no emergency that would by its mere existence activate the Militia for any reason at and around the time of that brutal double homicide.

Exception 1 doesn't apply, because Simpson wasn't in the land or naval forces at the time of that double homicide.

And, since neither of the Exceptions apply, that leaves the Rule. Does the Rule apply? Let's go through it and find out. Do we have a person? Yes, OJ Simpson qualifies as a person. Do we have a capital (or otherwise infamous) crime? Yes. The term "capital" means punishable by death, and in the eyes of the Constitution, murder is punishable by death. Thus, murder is a "capital crime," in the eyes of the Fifth Amendment. In sum, the Rule applies in this case.

Thus, to rephrase the Rule specifically for this case, no person, not even OJ Simpson, shall be held to answer for [shall be ordered by a court, any court, even to respond to, much less defend against] a charge of murder, unless on a presentment or indictment of a Grand Jury.

To satisfy yourself that neither the "Information" nor the Felony Complaint used in Simpson's case is an indictment, note three rather simple facts. (1) A Grand Jury and a judicial officer are two different decision-making authorities. (2) In Simpson's case, the judge, and only the judge, held him to answer for those two counts of murder (note the language "me" and "I" in the Order, Felony Complaint, p. 4). And (3) in the Smith case, Susan Smith received two indictments, one for each of her sons' deaths, which documents are clearly signed by the Grand Jury foreman, not a judicial officer.
[go to that Order]  [go to the Susan Smith Indictments]

By contrasting Simpson's "information" and Felony Complaint with the indictments from the Susan Smith case, we can illustrate, geographically, just how far off base the process followed in the OJ Simpson case is, as well as which political direction that practice takes us, as a country. Also, it may provide some peace of mind to recognize, from the indictments in the Susan Smith case, that the process found in the Fifth Amendment is followed all over the country, consistently, correctly and competently, when we're forced to deal with murder cases. As one reflects, one will remember that this very same process was followed even in the Simpson case, up to a point, before some very unusual events took place.

Some will argue that the process followed in the Simpson case was OK, because the "information" process is "constitutional." The perspective misses the mark in two ways. First, we're not talking about a mere procedural issue, but rather subject matter jurisdiction. And secondly, the fact that something is "constitutional" neither means that it is "admissible evidence of Law," nor that even if it is "admissible evidence of Law," that it's relevant in this case. Why not just file an original petition in a civil court? Isn't that process "constitutional," as well? Of course the process for initiating a civil lawsuit is "constitutional." And, that process is just as relevant to a capital crime case as the "information" process applied in the Simpson case.

Of course the "information" process is "constitutional." Every State in the Union has a perfectly "constitutional" misdemeanor-case charging process. (It's a bit of an oversimplification to make a wholesale distinction between felonies and misdemeanors in this context, but it serves to illustrate the point at issue.) When a misdemeanor is involved (unless it's an infamous crime), the "information" procedure is widely used and accepted. Of course the California misdemeanor ("information") process is "constitutional." Of course it is. So is service of process of an original petition. But so what? We're talking murder, here, i.e., a capital or otherwise infamous crime, for which alleged crimes the charging process requires action by the Grand Jury, the absence of which Grand Jury action means that the trial court completely lacks subject matter jurisdiction.

For someone to communicate that the misdemeanor process is OK for any capital or otherwise infamous crime case, is to communicate the view that the Grand Jury indictment process is merely an "individual right" that can be "waived." In other words, that speaker buys into the city-state mentality (where the people are limited and the government is supreme), rather than the Magna Carta legal reality, improved upon in the Constitution (where the government is limited and the people are supreme). For example, when one of the best radio talk-show hosts in the country, on one of our country's best talk-show radio stations, says, "He [OJ Simpson] doesn't have to be indicted," what that talk show host is saying, and he's but one across our country who teach the very same line of thought, is that he buys into the city-state mentality, at least on this point. And by his example, and he's teaching that we should buy in, also. This host, as one of several talk-show hosts at this station, are the "good guys," generally, but look hard at the substance of this lesson. On the one hand, he regularly states openly and directly his support for the United States Constitution, but, on the other hand, what he's teaching, what he's actually communicating, subtly, on this point, is direct and open opposition to the very essence of, to the entire point of, the first ten Amendments. Those Amendment provisions grant nothing to us as individuals, but rather add critical prohibitions on the use of governmental powers. As others prove how wide-spread the city-state mentality has progressed in our country, this article may be supplemented with those examples.

[Outline]

What else is now possible to see, recognizing that the court never had authority to seat a jury , much less try the case, because there was no Grand Jury indictment?     [Outline]

  • There's only two ways a murder case goes to trial (or is even scheduled for jury selection) in any State (county) court in the country without an indictment in the trial record: prosecutorial incompetence, and "the other reason."
    • Prosecutorial Incompetence. You can satisfy yourself in two ways that this one doesn't apply. (1) This case was referred to a Grand Jury, as (2)  all murder cases in that county are.
       
      • This murder case. Recall that the very first thing that happened was that the matter was referred the Los Angeles County Grand Jury. It's unprecedented for a Grand Jury, whose job it is to learn absolutely, positively everything from every possible source that can be found, to be recused from the case based on "pretrial publicity." [go to that Order] And here's the "message" of the recusal order: We can seat an unbiased, unaffected trial jury, who are to make their decision based solely on the evidence presented during trial, but we can't seat an unbiased, unaffected Grand Jury, whose job it is to take everything possible to learn into account in the decision to True Bill or No Bill. This perspective is exactly backwards.
         
      • Murder cases, generally. Satisfy yourself that the "standard operating procedure" for murder cases in Los Angeles County is referral of the case to the Grand Jury for indictment. Those civil servants know exactly what to do for murder cases, and even in this very case, they just went on habit when they started down that road. But, then, something happened, and the Grand Jury was recused from this case (incredible!), not all murder cases, just this murder case, and the Perry Mason show took over.
         

      In short, it's difficult to conclude that the prosecutors just didn't know any better. (But, perhaps even more importantly, do we? Next time you watch Perry Mason, just watch for the process applied by which Mason's client is held to answer for a capital or otherwise infamous crime, which crime is always a murder. Just see what we've been "taught" for going on two generations now by that particular source of "legal" information.) 
       

    • "The Other Reason." Reflect on this. Where was the defense Motion to Dismiss for lack of indictment (or a Writ of Habeas Corpus)? The defense team had international "advertisements" (live court coverage) for how long? regarding a case that was impossible to lose (because, without an indictment in the trial record, the trial court lacked subject matter jurisdiction, meaning that if he were convicted at trial, the conviction would be thrown out on appeal). The prosecution had an "n-word" talking detective they could "sacrifice." The prosecutors wrote books and made the interview circuit. And, sometime after the trial jury rendered its opinion, there was one, but only one, (TV?) news report about something about money going around the DA's office, but that was a report local to Los Angeles. It never went national, and it was only reported the one time. Now, either that report was irresponsible and ill-based, should never have been started and was properly pulled, or else it was blacked out. Wouldn't you like to know what happened to that story, and why?
       
  • Let's also look at this from a few additional angles.
    • From the defense side, there's this. Where's the NAACP, while a black man sits in jail, held to answer for a capital or otherwise infamous crime case, without benefit of indictment? Really, would Martin Luther King have tolerated that for an instant? Where's the ACLU, while an American citizen sits in jail, held to answer for a capital or otherwise infamous crime case, without benefit of indictment? Where's OJ's suit for flagrant, blatant "civil rights" violations?
       
    • From the prosecution side, there's this. Where's the N.O.W., while a known wife beater is currently sitting in jail, now accused of her murder, and is about to "walk," because there is no indictment? Didn't they want to encourage the D.A. to remain within the confines of the Constitution (no statute of limitations on murder, you know), in order to stand at least a chance of obtaining a conviction that would not instantly get booted out on appeal? And, where are some of these victims' rights groups, while someone charged with a capital crime is about to have a jury selected (once the jury is seated, jeopardy "attaches," and no retrial can take place once acquitted, or just simply dismissed) and go to trial, without indictment?
       
    • From the community side, there's this: Are we so distracted with national health care reform, national ID cards and world economic summits, that we can't see that the Fifth Amendment is being shipped out the back door, on (inter)national TV? Do we really not see that a trial judge and a Grand Jury are two completely different decision making authorities, and that no judge in the country has the authority to decide whether to hold anyone to answer for a capital or otherwise infamous crime? Do we really not see that there exists no judicial authority to adjudicate a capital crime until the Grand Jury has True Billed the defendant? Where were the protests over this case, in which  an American citizen sat under court orders, not indictment, to answer for a capital crime?
       
    • From the journalism side, there's this: Since we have the First Amendment, we know, for all times, that the government, at all levels, cannot abridge the right of free speech or of free press. These two individual rights exist at common law, and there exists no governmental authority in the United States to abridge those rights. And, why, exactly, does that prohibition on governmental power exist? Because government can hide its shenanigans when it controls the presses. Since no governmental authority can control the presses, only two reasons remain as to why journalists nationwide haven't jumped all over the only fact in this case that mattered. Either they just don't understand it, yet, or they approve of and want the city-state mentality (the society where government is supreme and the people are limited). It is just fascinating that in this entire horror story, not even the "conservative" journalists, those journalists who regularly profess support of the Constitution, have pointed out this outrage committed against the People in this country. Legal Reality does know of one journalist who made a report, and it was an excellent report, about the absence of indictment in a case in Connecticut, of a man charged with attempted kidnapping. Thus, this has occurred not only in LA, but also in the Constitution State! The point is this: make no mistake--the trend will continue for so long as this problem remains inadequately and incorrectly identified. And, now that it is correctly identified, solutions are easy to see.
       

      Notice the word is "person," not just citizens. All People in the United States, legally here and illegally here, citizens and non-citizens, are protected from governmental power, at all levels, that would seek to charge them with a capital or otherwise infamous crime. But, the journalists remain silent. With one known exception, which is greatly to be recognized, they leave undone the first and foremost part of their job. 
       

    • And, from the jurors' side, there's this. Who else is responsible for this travesty? Since the final say is with the jury, where in the world were the jurors? Why were the jurors not telling this trial court to go straight to ____, that they had zero intention of even beginning to sit in judgment of a capital crime case when the accused hasn't even been indicted?! Where in the world were the jurors?! Folks, if we can't do any better than this, maybe we don't deserve the governmental structure made available to us. This trial jury told us that in their opinion, it's perfectly OK that the accused wasn't indicted. They went along with it. They sat in judgment in a capital crime case, and found no problem whatsoever with the fact Simpson had never been indicted. They, the jury, are fully operating under the city-state mentality, and folks, that's scary! And, then it happened in Connecticut (the "Constitution State?"), as well.

[Outline]

Conclusion.

The Fifth Amendment is very easy to understand. There are certain things that government is prohibited from doing. As regards the exercise of the judicial Power, there is no judicial Power to exercise, when we're talking about a "capital or otherwise infamous crime" case, unless and until the Grand Jury acts, whether by a presentment (they saw it themselves) or by an indictment (someone else has provided the facts). As seen here, OJ Simpson was never indicted. Therefore, there was never any judicial Power to exercise in this case. As a result, he "walked" the instant the jury was selected, which is when jeopardy "attached," because there was no indictment.

To prevent recurrence, we need to see the problem correctly, for what it is, and we need to learn why this language exists. Let's remind ourselves, on a periodic basis, say, on 24 June of every year, what it says, and what it means.

[Outline]

[See also  Blackstone's Commentary      Story's Commentary      Fifth Amendment materials ]

Action Items.     [top]

        Toward that end, of reminding ourselves what the Grand Jury is all about, we have several things we can do as motivated by what's here to learn from the OJ Simpson case.

  1. Lets us first identify correctly the problem. To do that, let us first satisfy ourselves that the "Additional Prohibitions" exist to add additional limitations on the exercise of governmental powers. The "Additional Prohibitions" emphasize and specify clearly just how much more the government is to be limited. This language does not exist so as to grant a "license," from a supreme government to a limited people, for the limited people to avail themselves of at their discretion on a case by case basis. The language exists to document clearly that the government is limited. Let us satisfy ourselves that the language found in the first clause of the Fifth Amendment is a rule with two exceptions. Let us satisfy ourselves that, in OJ Simpson's case, neither exception applies, that the rule does apply, and that the rule means exactly what it says: there exists a complete prohibition on the exercise of judicial power in all cases involving capital or otherwise infamous crimes, unless and until the Grand Jury indicts the defendant. Thus, the problem: A person was held to answer for (and was subjected to trial for) a capital crime without ever having been indicted by the Grand Jury.
     
  2. What do we do about it? One task, for certain, is to learn the rule, along with the reason for the rule, so that it doesn't happen again. Along with learning the rule is teaching the rule and the reason for the rule, so that it doesn't happen again. No matter what the "excuse" or "reason" given, by any official, for proceeding in a capital or otherwise infamous crime case without a Grand Jury indictment, that reason is insufficient. There is no reason that exists that justifies that course of action.
     
  3. Another item to consider here is this. Inquire from your own county (sometimes referred to as district) attorney's office just exactly how many murder cases they try, when the accused hasn't been indicted. What kind of capital or otherwise infamous crime case would they consider taking to trial when the accused hasn't been indicted?
     
  4. Another task is to investigate the matter and find out how in the world this could have happened this time. What we did know is what has been broadcast on the TV (and talked about on the radio, and read about in the newspapers and news magazines). What we now know is that there's more to this story.
     
  5. We can inform the survivors of that crime that we really do care about their tragic loss, by showing them that we really do care about how our system of justice operates. In this particular case, local efforts will likely be the best. We, who do not live there, can support our own suggestions as to workable solutions, because it does affect all of us, but we have to remember that this is really a problem for those living in Los Angeles County, and that they are the ones who need to address this. For example, should the prosecution officeholders responsible for this particular outrage against We the People be any longer tolerated in those offices? Should the authors of books, and guests of talk shows, who have benefited financially from this blatant and grievous error in their job, as county employees, be allowed to maintain those ill-gotten gains? Should they keep their jobs as prosecutors, either? And, since it's difficult to accept that these officeholders and employees just didn't know any better, what else can we learn about why this particular course of action was pursued in this case? Why was not another Grand Jury summoned to study this case? What was the hurry?
     
  6. Here we have a most difficult area into which to venture, but venture into it we must: what do we do about the judges? It's difficult because the matter isn't quite as easy to identify correctly. What we do know is that we have one judge who presided over the process whereby the authority of the Grand Jury was completely and utterly usurped, despised and denigrated. That entire fiasco was broadcast coast-to-coast and around the world. If we aren't the laughing stock of the civilized world over that one, we've missed a grand opportunity. We also know that we have another judge who presided over the trial of that capital crime case when the accused was never indicted. Is this a matter of legal education? Do we have presiding magistrates who just really don't get it (who would be in wonderful company if this is the case)? Is it a matter of restriction on the office? Some courts have sua sponte (of their own motion) authority to enter orders. Without that, the judge is fairly well at the mercy of the lawyers to file motions on which the judge is asked to enter a ruling. No motion, no ruling. In that circumstance, the problem resides not with any judge. Is it part of the structure in that county that a judge can't just say no, even when they are not asked by way of motion, to enter such a ruling, upon recognizing such blatant problems as flagrant violation of their office, such as being asked to exercise authority the United States Constitution specifically prohibits (to which standards they are, no doubt, sworn)? Where is the responsibility here? Is it a reasonable expectation on the part of the community who puts those judicial officers into their positions to have the judge shut that down, rather than pretend to exercise authority that doesn't exist? Is this something that falls at the feet of the prosecutors, instead? And, the people who can answer these questions are the voters in Los Angeles County. Until these matters are addressed, let this article serve as a "travel advisory."
     
  7. Are things like this going on where you live? What process exists in your community where this sort of issue is discussed every once in a while, to keep people up to speed, reminded, on why it matters? Can you get 24 June recognized as Grand Jury Day in your community?

by Harmon L. Taylor

http://web.archive.org/web/20010803123622/http://www.legalreality.com/action/ojsimpson/ojsimpson.html#labelsgen


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