LEGAL REALITY CHECK – A Case in Point Regarding Judicial Transparency (among other things)

This is a follow-up to my previous BFP piece about the lack of transparency in the so-called justice system.

OPB recently broke a story about unique developments in the Bundy/Malheur Refuge case that provide several perfect examples of the kind of lack of transparency that I’ve been talking about, not to mention common distortions by the mainstream media.

I’ll start out by discussing the media distortion issue first.   In the article, the OPB headline asserted that the Bundy defendants had received “special privileges” to have unmonitored meetings with their attorneys to help prepare for their upcoming trial.  From my perspective, this characterization is a total distortion of what is really going on.

The reality is, Judge Jones was making reasonable accommodations to help ensure compliance with constitutional requirements.  A more appropriate description would have been “Judge grants special accommodations under circumstances to ensure constitutional right to legal counsel.”  Another way to phrase it might have been: “Court takes action to help ensure that, under the unique circumstances of the case, Defendants’ civil rights are not violated,” (and hopefully avoid appealable errors).  Or, here’s yet another possibility:  “Based on Multnomah County Jail’s questionable attorney/client communications practices, judge takes action to help ensure effective right to legal counsel.”

One of the biggest challenges is with the characterization “privileges.”  The distorted notion that these defendants received some special privilege in this regard doesn’t hold water.  And it is not consistent with what Judge Jones said.  He said they received “special accommodations.”  To characterize what happened as special privileges is the functional equivalent of making special accommodations, under applicable circumstances, for someone with a hearing impairment or other physical handicap, etc., and call such accommodations “special privileges.”  As in this case, such a description is a distorted and misguided characterization.

Granted, the Bundy/Malheur case is unique.  It involves multiple defendants, and multiple attorneys.  It will require special accommodations to ensure compliance with constitutional requirements.  Special accommodations are not the same as special privileges. This isn’t doesn’t even involve “privileges.”  It involves fundamental constitutional rights. Everyone is entitled to such accommodations as are reasonably necessary to ensure constitutional compliance and protection of these rights.  Moreover, because it appears that these particular defendants are being treated essentially as political prisoners and enemies of the state, they are apparently  concerned about obvious government eavesdropping (which everyone knows is already happening at level, let alone a high-interest situation like this one), and their ability to have unmonitored, confidential communications with their attorneys.

And just to explore this issue a little deeper, it is my understanding that any and all attorneys or other parties (including me) who have had anything to do with this particular case (the Bundy/Malheur case) or related parties are subject to very invasive electronic surveillance.  Speaking of transparency, because of this unprecedented level of electronic spying – even on attorneys’ communications with their clients – from what I understand, the government has purportedly undertaken the unusual step of implementing what is referred to as a “taint team” that is supposed to be scrubbing all information made available to the prosecutors to supposedly prevent the disclosure of confidential communications between the defendants and their attorneys.  So in short, one team of federal domestic spies are monitoring all the parties’ communications, including the communications of court-appointed attorneys, while another team of federal good Samaritans are trying to make sure the information the other team has access to isn’t being misused for criminal prosecution purposes.  Doesn’t that make you feel better?

I’ll have to confess that the thought that regardless of what I might want to think, I have zero privacy, and it’s not just God watching my every move gives me a lot to think about.  But I try to take comfort in the fact that to the extent any of my communications with any of the subject parties or their attorneys are covered by attorney/client privilege, there is someone out there who will dependably and good-naturedly ensure that those communications won’t be shared with the prosecutors.  It gives me warm and fuzzies just thinking about it.

Despite all the legitimate justifications for the communications arrangements, in attempting to finally disclose and explain the special attorney/client communication arrangements made available to the Bundy defendants, Judge Jones has now said some things that ought to be a concern for a number of reasons, and in this part of his explanation he does use the words “privileges,” and “special treatment,” which I find to be both troublesome and problematic. He said:

“Initially, I chose to keep these special accommodations off the record to avoid publicity based on advice from the Multnomah County Sheriffs office and the USMS suggesting that the special treatment might pose a danger to these defendants and influence other inmates at the jail to request similar privileges.

So, in a nutshell, what we have here is a federal judge making off-the-record legal decisions, based on secret meetings, and ex parte advice from a county sheriff’s office, and the US Marshall Service, and keeping the whole thing under wraps “for weeks.”   It looks more like months actually.  And a big question revolves around why on August 4th, over two months later, Judge Jones would finally provide a carefully worded “declaration” disclosing the whole thing.  There is no question that how he has handled the whole situation has a tendency to raise suspicion, prompt speculation, and make the whole situation appear to be much more “special” than it actually is, and raises all kinds of questions.  It is genuinely unclear why he didn’t just take an open, transparent, straight-forward approach.  But of course that would have deprived quite a few people of something “special” to fuss about.

Regardless of all those issues, this is a perfect example of lack of transparency in the judicial system, and why it is so problematic.  In my view, the explanation Judge Jones provided raises more questions than answers, and the approach he chose to take has caused more problems and issues than he was purportedly seeking to avoid.  While we’re talking about Judge Jones, however, I also want to say something about one of his other rulings.

During a recent hearing addressing pre-trial detention, Ammon Bundy’s attorney, Marcus Mumford, outlined some of the defenses and legal theories he intended to assert, including adverse possession.  He said that the Malheur occupiers, including Bundys, were seeking to stake an adverse possession claim at the refuge.  My understanding of the argument was that he was seeking to assert the fundamental principles involved in an adverse possession claim, and then seeking to attempt to apply those principles and concepts to the situation at the refuge, in the form of a defense explaining why Bundys were doing what they were doing at the refuge.  Judge Jones quickly, and seemingly off-the-cuff, rejected the argument, however, and ruled that it is not possible to make an adverse possession/use claim against the government.

The point I want to make in that regard is that Judge Jones’ blanket observation is not entirely true, and he seemed to be very hasty in rejecting the conceptual principles.  It is worth noting that these principles were not being asserted affirmatively, seeking to have the court issue a ruling that the occupiers were legally entitled to some sort of decree of adverse possession.  Instead, the principles were being asserted as a defense, to help explain their motives and what they were thinking – which seems to be relevant, especially in light of latent assertions that they were not only seeking to impede federal officers, but that they were also conspiring to overthrow the federal government.   If, however, they can show that what they were really trying to do was assert an adverse possession claim -- even if they were wrong in their reasoning -- it could change the equation, particularly with respect to intent.

In terms of exploring and applying the principles involved in an adverse possession claim, it is useful to note that the whole concept of RS 2477 rights-of-way across federal land is based on grandfathered adverse use and prescriptive rights principles. So there is some precedent for application of the principles.

But if all this leaves you scratching your head, you’re not the only one.

# # # # #

Todd Macfarlane, Newsbud- BFP Legal Analyst & Commentator, is an attorney, rancher, writer, political activist, conservationist and commentator.  Although he is comfortable wearing several different hats, beyond faith, family and grass-fed livestock ranching, his primary interests include natural law, property rights, western land-use, political policy, and what he often refers to as the “so-called justice system.”  

LEGAL REALITY CHECK – It’s High Time the Court System Takes a Serious Look at Transparency — by Todd Macfarlane

This is one of those issues that should quickly become self-evident.

Our legal system goes by a number of different names.  Some call it the “Justice System.”  Others call it the “Court System” or the “Judicial System.”  Still others refer to it as the “Legal System.” Based on my experience and observations, I often refer to it as the “so-called justice system,” for a variety of reasons.  But whatever label is used, there is no question, to the casual, outside observer, our legal system is completely shrouded in secrecy and mystery.  It is the functional equivalent of the Holy Bible, printed in Greek and Latin, prior to William Tindale’s English translation, so that normal people could read and understand it.

For some time I have been talking about another piece I’m working on about how the federal court system is the epitome of the fox guarding the hen house – especially when it comes to handling cases involving the federal government.  One of the basic tenets of natural law is that a party cannot be an impartial arbiter of a dispute in which that party (in this case the federal government) is involved.

While this piece addresses broader issues of judicial transparency beyond the federal court system, it seems to coincide with a lot of other information recently reported, including articles about the Nevada Federal Court’s protective order preventing disclosure of almost all information in the “Bundy Standoff” case, and Katie Aguilera’s recent piece about the complete lack of transparency in federal plea bargaining (http://www.boilingfrogspost.com/2016/07/14/how-sentence-enhancements-increase-plea-deals-reduce-transparency-in-the-u-s-justice-system/).

Wouldn’t the public be interested to know that in many federal plea bargain arrangements, including virtually all the Oregon Stand-off Plea Deals, there is almost no negotiation.  The defendants have virtually no say in the “take–it-or-leave-it” terms that are offered.  The playing field is anything but level.  The carrot they are offered is little or no incarceration, if they will expressly admit that they participated in a conspiracy to impede federal officers. If there was some sort of conspiratorial agreement – whatever that means – between some of the parties, I seriously doubt many of these defendants had given the possibility of impeding federal employees a second thought,  let alone were aware of the purported terms of any such purported conspiratorial pacts  I have had an opportunity to observe this process up-close and personal and I don’t see how the defendants could not have felt coerced to accept and admit to language and terms that they would have never even considered, let alone agreed to, on a level playing field – all in the name of creating leverage for the government’s case.

And the same thing often applies to the flood of “friendly” federal sue-and-settle lawsuits pursued by environmental special interest groups under the Equal Access to Justice Act.  They have learned that this process often allows them to profit financially while essentially dictating federal land-use policy, in a process that is typically applies public tax dollars to advance private agendas – with a woeful lack of transparency in the negotiation and deal-making process.

Other prime examples include both secret FISA Courts, and the entire grand jury process by which indictments are obtained.  There is zero transparency.  No wonder, as an old saying goes, even ham sandwiches are so susceptible to indictment.  But in reality, the secrecy and lack of transparency goes much deeper and is a big part of the entire system.  In the federal court system protective orders limiting access to information are common place.  And in the vast majority of cases, it is the other branches of government which are seeking to keep as much as possible under wraps. This approach should leave any thinking person seriously scratching their head, and asking questions.

While there have arguably been vast improvements in overall governmental transparency over the last few years, for the most part this does not apply to the court system.  The court system is still very antiquated and mysterious – especially when it comes to transparency.   Just as an example, many courts will not even allow pictures to be taken in the courtroom, let alone audio or video recording. And they often apply double standards to these restrictions and limitations.

Consequently, most people’s perception of what happens in the court system comes from movies and television.  Movies like My Cousin Vinnie, LA Law and Drop Dead Diva inform their understanding (and have actually also been cited and referred to by supreme court justices).  Even most attorneys think the best lawyer they know is Gregory Peck, playing Atticus Finch in To Kill a Mockingbird.

In the day and age in which we now live, one of the biggest things that has allowed people who are really interested in such things to become better informed about governmental processes is live-streaming of other governmental functions, including legislative sessions and committee meetings, whether it be Congress, state legislatures, or local municipal and county governments.  This contributes substantially to transparency in government, and allows average, “normal” people better opportunities to see and better understand what is going on.

Why shouldn’t the same concepts apply to the judicial branch?  Given the fact that many courts don’t even allow the taking of pictures in the court room – no actual images of anything – while other courts do, what is the policy justification for such rules?  Back in the day, frontier court trials were major public events.  Everyone wanted to see for themselves what was happening.   For the most part today court sessions are still considered “public” and are fully accessible to the public, but how many members of the public are in a position to participate in person?

Transparency benefits everyone.  The same principles that apply to law enforcement dash-cams and body cams also apply in the courtroom – transparency enhances understanding and accountability.  What can possibly be the reason why the Judicial branch should not be subject to the same concepts and requirements of transparency and accountability?

Most court proceedings are already recorded several different ways.  One of the recordings is for security purposes.  Another entirely different set of recordings is used to help preserve the “record” of the proceeding for possible appeal.  When I was recently in a state courtroom observing a jury trial, I counted at least seven cameras – seven.  What would be wrong with having one more camera, with a live stream that would allow the public to follow the proceedings, remotely, just like they do with so many other government functions?

This sort of discussion and suggestion will almost undoubtedly be viewed as unwelcome boat rocking of the status quo.  Something that some may find interesting to know is that the very stiff, stodgy and tradition-bound legal system does not look kindly on boat rocking.  Bar associations and their rules discourage attorneys from criticizing the system and applicable status quo.

Obviously, there would be some cost associated with implementing such transparency.  And undoubtedly there will be those who say that the cost of transparency is just too high. But what I’m thinking is that if more people had an opportunity to watch and observe the system in action, they could and would suggest a myriad of ways to help stream-line and make the system more efficient and effective.

Seriously, wouldn’t more transparency be in everyone’s (except perhaps the lawyers’ and judges’) best interests?

# # # #

Todd Macfarlane, Newsbud- BFP Legal Analyst & Commentator is an attorney, farmer/rancher, writer, political activist and commentator.  Although he is comfortable wearing several different hats, beyond grass farming, his primary interests include natural law, property rights, western land-use, policy, and what he often refers to as the “so-called justice system.”  He also has a keen interest in waves – making a few, riding some, and being content to simply watch and admire others.  For Newsbud-BFP, he alternates between several columns, including Legal Reality Check, and The Tug-o-War (over public lands and resources in the West). In this particular column, he's wearing his cowboy hat (or lawyer suit)