Wielding the Velvet Blackjack
Complaint to the U.S. Department of
Justice Regarding the Patterns and
Practices of Colorado’s 8th
District
Court, Colorado Supreme Court,
And the United States District Court
For the District of Colorado.
Mary-Ellen Pecci (c)
I will form this complaint using seven points presented in “The
Complicity of Judges in the
Generation of Wrongful Convictions,” by Hans
Sherrer, [30 N. KY L. Rev. 539 (2003)]:
Ø 1. “Judges are political creatures”
Ø 2. “The violence of judges”
Ø 3. “The judicial irrelevance of innocence”
Ø 4. “The control of defense lawyers by judges”
Ø 5. “Appellate courts cover up the errors of
trial judges”
Ø 6. “Why the judiciary is dangerous for innocent
people”
Ø 7. “The unaccountability of judges”
Judges need to be held accountable to the legal pedestal, we the idealistic people have perched
them on. Wrongful convictions and
over-sentencing is a “deliberative process,” and judges are the primary actors
in this process. The
people hold a dim view of politicians and lawyers of which a judge is both, yet
we the people mentally ensconce the
judge on a pedestal. Cloaking in the
black robe causes an unrealistic elevation; in this case cloaking is disguising
a person whose judicial value is a result of “political considerations and an undercurrent of backroom
wheeling and dealing by power brokers.” (Sherrer)
1.
Judges, from the
local district to the Supreme Court, do not serve the people. They serve whoever put them in power or
whatever entity has the strongest influence over them and their personal
ideology is strongly influenced by their previous political play groups. If those play groups have functioned in a
shoddy manner over a long period of time the entire group falls into
functioning under a pattern of lapses that are irretrievably harmful to the
legally disadvantaged. It is very sad to
say this is status quo for most courts. It
is necessary for judges that are bad actors to be deprogrammed or dethroned.
This
indeed did happen to Colorado 8th District Court Judges Terrance Gilmore and
Jolene Blair. They were dethroned by a
60% vote of the people in the November, 2010 election. They thought they were protected by cronyism. The slap on the hand by a regulatory agency
that functions under the Colorado Courts instead of an objective, unaligned committee,
certainly was not going to deliver more.
The people, in the form of a citizen activist group called Judicial
Justice, stepped up to the plate and ‘fixed’ Judges Blair and Gilmore for bad
behavior performed while they were both prosecutors. They had failed to present mitigating
evidence in a case which sent Tim Master’s, an innocent man, away for
life. This ‘fixing’ happened - not soon
enough - for my son Jason Pecci (copy of his present appeal to the U.S. 10th
Circuit enclosed). The cronyism has proceeded to follow Jason’s case through
the entire appeals process, up to this day.
The question now is; will the 10th Circuit Court of Appeals
continue in this vein?
2.
Sherrer shares with
us in this section. “The violence of
judges begins with the District Court and progresses through the appeals
process. The judicial world has no
concern for the “politically impotent.” Such behavior is aptly described by
Yale Law professor Paul Rice, who submits to the adage, "We don't like
burning brothers in the bond, because you don't know whose ox is going to be
gored in the future."
Anne Strick, Injustice
for All “the federal judiciary is overloaded with; bias, intolerance,
cowardice, impatience, and sometimes graft . . . that some judges are arbitrary
and even sadistic . . . is notoriously a matter of record.”
Regarding State
Judges, Injustice for All author Anne Strick, says “Most judges . . . are
ex-prosecutors, ex-cops, ex-officials who worked on the hard side of
government, or ex-party workers. Most of them were hacks -- small-time lawyers
with big-time friends -- and some were crooks the week before they went on the
bench . . . Most of those men have no respect for the individual and no
interest in his character or his future. And many of them are outright bigots,
too.”
Sherrer refers to the
essay, Violence and the Word, 95 YALE L. J. 1601, 1607 (1986), by Yale
Law Professor Robert Cover explaining “that every word a judge utters takes
place on a field of pain, violence, and even death. Judges
are, in fact, among the most violent of all federal and state government
employees. The violence judges routinely engage in makes the carnage of serial
killers seem insignificant in comparison.”
Publically this
appears innocuous but in truth it hides deceptive politics and “conceals the
violent dirty work they are intimately involved in.” (Bugliosi)
“A courtroom is a
deadly place. People die in courtrooms, killed by words." Gerry Spence,
O.J. The Last Word.
The
resulting violence to the defendant wrongfully convicted or seriously overcharged
results in death. The resulting violence also effects family and friends. Brain function is limited by this abuse. Living in constant fear as each level of appeal
is denied is abuse. This abuse prevents
the positive areas of the brain to function normally. Joy and intimacy are non-existent and other
emotional responses are muted.
Judicial
cronyism is killing defendants and families all over the country.
3.
The
Judicial Irrelevance of Innocence is explained by this “Catch 22” scenario. Even
though over 1.3 million men and women under the auspices of any department of
corrections are innocent of charges those facts are meaningless. "Habeas
corpus is not a means of curing factually erroneous convictions." Yet, a
habeas corpus petition is the only way a state prisoner can challenge his/her
conviction in federal court and it is one of only two ways a federal prisoner
can challenge his/her conviction.”
The
check and balance system that is supposed to prevent this violence is totally
useless. This is not
unknown to authorities and is directly related to judicial practice. “In Dead Wrong, lawyer and law professor
Michael Mello pointed out to lay readers what is well known in legal circles:
"In federal court, innocence is irrelevant. The Supreme Court says so, and
the lower [courts] listen -- as they're required to do." Innocence or guilt
is not a Constitutional issue; fairness has nothing to do with the
process. The Constitution does not
guarantee fairness. It is only looking
for proper procedure. Innocence of the
charge is irrelevant.”” (Sherrer quoting Mello)
It
is absolutely imperative the Judge at the District Court level hear all of the
mitigating evidence and perform fairly.
In
Jason’s case this did not happen. He was ‘killed’ by Judge Terrance Gilmore and
his compatriot from play group (The Stu VanMeveren DA’s regime) Jolene Blair,
the prosecutor on Jason’s case.
They
‘killed’ me also.
This
faulty system has created people like Jason and me all over the United
States. We live as a pool of driving
inner rage alternating with extreme feelings of hopelessness, to people who
have rendered themselves numb. I speak for
tens of millions of people; families devastated in every way by careless
victimization of loved ones. The death
of our souls is a result of violent judicial performance, hidden behind political
“pomp and circumstance.”
4.
Judges control
defense lawyers. They can and do mentally manipulate juries by rebuking and/or
reprimanding a defense lawyers. In turn
the jury assumes the defense lawyer is in the wrong and this has an adverse effect
on the defendant’s case. Many judges are
biased, either against the lawyer for the defense or the defendant and
ultimately the defense lawyer’s hands are tied.
If the defense lawyer chooses to stand ground the result is usually not
good for the defendant.
This, according to
John P. MacKenzie, The Appearance of Justice, is called “wielding the velvet
blackjack,” a type of confidence game where “the perpetrator engages his victim
in a joint venture that requires the brief loan of the victim's treasure; the
critical point in the transaction is when the intended victim has to decide --
usually quickly, in a fluid situation -- whether to surrender his valuables
ever so briefly in the interest of acquiring something more valuable. The
victim must decide not only whether to repose his trust in the individual, but
more humanly wrenching, he must weigh the consequences of betraying apparent
distrust and the risks of offending the other party.”
This
is the tactic Judge Gilmore used on Jason’s public defender, Kathryn Hay during
the preliminary hearing. He allowed Blair to establish evidence and then
disallowed Hay to establish credibility of a witness.
Kathryn Hay knew she could not play
hard ball with this symbiotic team who trained well together in play
group. She made her choice not to do so.
When I first met Kathryn Hay and her
investigator Roy Bath it was after the preliminary hearing. I was peered at
from behind the desk as if I were a specimen under glass. They each had their microscopes out. They said very little, they mostly
stared. The decision had already been
made to plea Jason out, so they were just affording a courtesy to a mother
whose son they were going to allow to be devoured by Gilmore and Blair in the
game of Velvet Blackjack. This
undoubtedly is also why Hay ignored my written pleas that a forensic
psychologist see Jason and form a written opinion for the Court. Jason was sentenced without evaluation.
Under
statute this is required when a motion for reconsideration is filed after
sentencing. His sentence is therefore
illegal as a result of the higher courts failure to follow the mandate. The statute says the CDOC “shall” send to the
sentencing court a copy of the Diagnostic Narrative Summary to afford the court
a more realistic perception of the client…
It wasn’t until four years after the
tragic event, when I was financially able to hire an appeals lawyer that Jason
was evaluated. This was not appropriate
timing for evaluation, as well as; the entrenched cronyism was a deliberate and
dangerous road block to any semblance of review.
5.
Appellate courts cover up the errors of trial judges.
Initial guarantees of protections originally written into
the constitution have been removed by “the harmless error rule,” which went
into effect in 1919. “…nine decades later … only a hollow
pretense of judicial concern for determining the soundness of any conviction
remains.” (Sherrer)
Sherrer aptly
comments regarding written opinions. In
1950 all federal appeals had written opinions; today 85% are unpublished. This parallels the growth of our prison
population. This process directly targets
the powerless poor. Issuing an
unpublished opinion is “the kiss of death” to a defendant as it implies to
future courts that the case is not worth bothering with. Since no precedent is
followed from other court opinions it allows judicial lawlessness. The judge can insert personal opinion and
will be unaccountable to established precedent.
Biases, bigotry and lack of socioeconomic concern can destroy many a
defendant.
“That underscores the
all too likely possibility that a person whose case is resolved by an
unpublished opinion did not have it determined according to established
precedents, but by the personal preferences of the judges involved.” (Sherrer)
This goes hand in hand with “harmless error” which
is word service of the lazy. It is just
too simple for a judge’s clerk to say, “the case would fare no different if it went
before a jury,” and without an established precedential opinion to follow the
defendant is dead in the water.
Judge Gilmore negated the value of
Jason’s preliminary hearing, yet later he declared the preliminary hearing as
factual basis for sentencing. This was
gross neglect of a fair appraisal. A preliminary hearing is the first hearing
within days after an arrest and establishes “suspicion” not fact and has an
extremely low threshold of evidence.
The evidence presented at the
preliminary hearing was incomplete.
Issues left unaddressed by higher
courts are swept under the rug under the guise of harmless error. This is insulting and abusive.
Compilation of ignored ‘harmless
error,” victimized the defendant and those who love him.
6.
Sherrer states why the
judiciary is dangerous for innocent people quite succinctly.
“…
the great danger posed to defendants is by how amazingly easy it is for a judge
to fix the outcome of a trial. Judges do this by such methods as: manipulating
the jury selection process; deciding
which witnesses can testify and what testimony they are allowed to give;
determining the physical and documentary items that can be introduced as
evidence; deciding which objections are sustained or overruled; conveying to the jurors how the judge
perceives the defendant by the tone and inflections in his voice and his body
language toward the defendant and his or her lawyer(s); and by the instructions that are given to the
jury as to the law and how it should be applied to the facts the judge
permitted the jurors to see and hear.” “…proceedings have the superficial
appearance of being fair towards the defendant being judicially sandbagged.”
“Playing
an important role in a judge's subtle manipulation of the proceedings in
his/her courtroom is the judge's use of mind control techniques…” “The use of these insidious techniques is a
virtually unexplored aspect of how judges operate in courtrooms today, and it
is a significant contributor to wrongful convictions. That is to be expected
given the known role of those techniques in generating false confessions. Needless to say, this power is often used to
the detriment of innocent men and women, because “…a judge can use all the
methods and nuances of his craft to steer a trial…as
he or she has pre-determined it should end.”
Sherrer
states “Judges are literally able to do this with near
impunity…” as a result of, “… appellate courts reluctance to reverse lower
court rulings.”
Ninety
percent of cases don’t go to a jury.
They are settled with the farce called “plea bargaining,” where the court is the
auctioneer for the buyer and seller and the defendant is the item being sold. This
is what happened to Jason. It is morally
repugnant.
I sat in the court room at Jason’s
sentencing, watching it go down. It was stunningly, sickeningly, obscene and
incredibly mundane at the same time. I
expected more but didn’t expect more.
7.
Judges
are not held personally accountable for “egregious harm they inflict.” With no personal accountability there is no
fear of repercussion for bad behavior.
Imagine what our country would be like if we raised our children with no
repercussion for bad behavior.
With
Judges Gilmore and Blair; they were flicked from their pedestals and the cost
was $10,000,000 with the tab picked up by the city and county insurance pool
(the people). They have already moved on
with their pensions intact, with no thought, I’m sure, to the lives they have
destroyed.
Sherrer
poignantly finalizes:
“The
huge numbers of innocent men and women who are thrown on the conveyor belt and
crushed as the gears grind away are treated as if they are unknown, faceless,
and their sole value as a human being is being used as fuel to keep the
"law enforcement" machine running.”
“In
his last Supreme Court dissent, Justice Thurgood Marshall recognized that
"Power, not reason, is the new currency of this Court's decision making."
That condition can have particularly far reaching consequences for the
politically powerless, one of which is the de facto third-world treatment of
those people by state and federal judges.”
“…until state and federal judgeships are
depoliticized and judges are held personally, directly and openly accountable
for the violence they initiate with the words they speak and write, they will
continue to inflict egregious harm on multitudes of innocent people with scant
regard for the human consequences of their actions.”
What I would like to
see as a result of this complaint is an investigation into patterns and
practices of the 8th Judicial District Court of Colorado with a
follow up on cases handled by Judges that were originally part of District
Attorney Stu VanMeverens team of prosecutors.
Also the follow up should go all the way up through the 10th
U.S. Circuit Court of Appeals to counteract cronyism. The practice and procedure in my son Jason’s case
is most pressing before it is decided by the 10th District Court of
Appeals. Other cases where sentences of
over five years have been applied should also be reviewed.
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