“THIS IS MR. PRETRIAL DETENTION”
As I entered the Bundy ranch house, Angie Bundy, wife of Ryan Bundy greeted me and introduced me to the rest of the family as “Mr. Pretrial Detention”. “Yes”, I said, “I have a one track mind and constantly beat the drum that pretrial detention is not getting the attention it deserves.”
I have long held that the pretrial imprisonment of the political prisoners is the elephant in the room. It seems to me that defense attorneys and prisoner supporters are ignoring the elephant in the room which is that we cannot proceed to trial until the issue of pretrial imprisonment is dealt with.
You see, the very act of throwing an innocent person into prison, prior to their chance to a trial before a jury of peers, is so egregiously unjust, so opposite of everything that the American justice system is supposed to safeguard, that the unfair trial began over 18 months ago, and that the root cause of the injustices in Navarro’s court today are made possible by the pretrial imprisonment.
Once in prison, a defendant cannot get a fair trial because they are severely hampered in their ability to prepare their defense. Prisons are, by design, places that restrict freedom, places that make life difficult for you, places of punishment, places that marginalize and demean you. In such an environment, a defendant is at a huge disadvantage trying to prepare a defense against an all powerful government with unlimited budget and resources at their disposal, and unhampered and unrestricted by prison life.
In a recent interview, at the 30:00 minute mark, Ammon Bundy claims that he has not seen his attorney for almost a year. Because of the strip searches and other inconveniences, the ease of meeting with your attorney is totally different than what it is on the outside. Visiting a client in prison is difficult and serves as a inhibitor for frequent visits from the attorney.
It has also been reported by Ryan Bundy and other prisoners that digital thumb drives, hard copy documents, and the opportunity to go to the Clerk of the Court for filings, are hampered and restricted by prison rules and prison procedures.
Prisoners have reported that their legal notes and materials are tampered with by prison staff and that as they are moved around from different cells or different prisons, legal material is often lost.
Furthermore, a basic right is for defendants to meet with witnesses and to discuss testimony and evidence prior to trial. Something out of their reach while in prison.
Of the many fundamental, God given, inalienable and unalienable, natural rights is the right to a presumption of innocence until proven guilty before a jury of peers. This right is so primordial (intuitive, inherent) that it prompted William Blackstone to say, “Better that 10 guilty men go free, than that one innocent man suffer.” Franklin took it further and said that, “Better that 100 guilty men go free than one innocent man suffer.”
Today, we are witnessing the stunning behavior of the prosecution in alliance with Navarro wherein they deny Eric Parker to testify in his own defense and strike his testimony from the record. As they push the defendants into a corner with Bill of Rights destroying orders prohibiting their right to rebut and counter the claims made by the prosecution, we tend to think that the denial of a fair trial started when the new round of trials began following the mistrial.
In reality, the denial of a fair trial began the second that Navarro ruled that the prisoners were denied a right to pretrial freedom, to prepare their defense in an environment free from the harsh restrictions and atrocities of prison walls and razor wire.
But what can be done about it? Navarro has all the power to do what she wants, backed by Marshals and by Attorney General Sessions. The pretrial detention is a done deal, nothing can be done about it, so let’s move on, it is water under the bridge, better to focus on the federal team’s actions now.
But the elephant begs to differ, There are many things that can be done about the unfairness and injustice of the pretrial, pre-conviction imprisonment:
- Challenge the constitutionality of the Bail Reform Act. There is evidence that it was never properly enacted as law. Rather, it was enacted as a resolution and therefore, does not have the force of law.
- Even if properly enacted as law, it is still unconstitutional. The power of the judge to deny bail is a new power that was never granted by the Magna Carta nor the original Judicial Act of 1789 and as enacted in many state constitutions. Judges never had the discretion to deny bail. The only discretion judges had, prior to the Bail Reform Act, was to set the amount of bail and that was restricted by the 8th amendment dealing with excessive bail.
- Defense attorneys should open every session of trial going on record that their clients are prejudiced by being imprisoned prior to a finding of guilt.
- Defense attorneys can file interlocutory appeals, appeals during the course of a trial, asking the higher court to review the constitutionality of the pretrial detention of the prisoners.
- Habeas corpus pleadings have not been fully exhausted.
- Constant submittal of press releases to mainstream media addressing how fundamentally wrong pretrial detention is.
- Constant reminders to elected officials of how unjust and how deviant pretrial imprisonment is.
There is probably more that could be legally done by defense attorneys in opposition to pre-conviction imprisonment. Suffice it to say, the elephant in the room will not go away and as long as the elephant is there, the prisoners will not have a fair trial, regardless of anything else the federal team (prosecution, judge and marshals) do in relation to heaping injustice on top of injustice.
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