This judge is a perfect example of why federal judgeships should not be appointed as political plums. In a word, he is incompetent.
We must guard against disdain for the judicial system. As Madison reminds us, if the Constitution is to endure, it must from age to age retain “th[e] veneration which time bestows.” James Madison, The Federalist No. 49, page 314 (C.Rossiter ed. 1961).
Such disdain is fostered by judges like this one. A legal and/or constitutional scholar he is not. A review of his behavior (or misbehavior) in a single case is illustrative of what the public can expect from this judge in administering (or ignoring) their rights.
Supposedly, a charge of judicial misconduct cannot be based solely upon the way a judge decided a particular case. Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995). There are two problems here.
The first is that a pattern of erratic behavior is quite easily discerned from a judge’s repeated actions (or inactions) in a particular case. The second is easily discerned from an observation by an FBI agent:
Douglas and Olshaker, Journey Into Darkness, page 273 (1997) (comment by John Douglas, the leading expert on criminal personality profiling).
This judge, as overwhelming evidence will show, has violated that oath repeatedly. The fact that he is—or may be—mentally incompetent simply does not excuse his behavior. Violation of that oath is grounds for impeachment.
This judge’s incompetence and fundamental inability can be illustrated with only a few examples. To document his misconduct in this one case would require an encyclopedia.
The indictment in criminal case no. 2: 97-CR-29 contained the following language on page 5:
The basic legal concepts apparently incomprehensible and unfathomable to Judge Story are as follows:
1. “Congress shall make no law . . . abridging the freedom . . . of the press . . .” First Amendment, U.S. Constitution.
This judge has sunk to a level of logic once displayed at a Washingtion hearing by a CIA official who opined, “Remember – the First Admendment is only an amendment.” L. Ellerbee. “And So It Goes” 252 (1986).
2. Whether a book has little or no useful information value is not a determination to be made by a federal prosecutor or grand jury. There is no law that allows an unelected bureaucrat (or even an elected one, for that matter) to censor books.
Of course, considering that this is the same branch of the federal government that took the Bible out of the public schools, one could possibly understand the confusion in the mind of a federal district court judge “new to the bench.”
3. It is ironic that what the books did not describe could not have been described by the government witnesses and the prosecutor who engineered the indictment. None of them had read the books, a fact brought to Judge Story’s attention.
4. Who the “many customers” were who “received nothing at all” were not named in the indictment nor did Judge Story, after numerous motions he denied, ever order the prosecution to name them. I.e., everyone in this case recognized what was going to happen was “trial by ambush,” a tremendous advantage to the prosecutor.
What judge Story allowed to happen in these few pages demonstrates a level of judicial incompetence almost without parallel in the federal courts. By date, page number, and line number (of the page) Judge Story demonstrates an almost total lack of understanding of basic legal concepts. Some of those areas of his ignorance are illustrated, seriatim:
Pages 1-3: Defendant Larry Bolin objected to the introduction of evidence by the prosecution concerning the criminal offense of 42 U.S.C. § 408, using a false social security number, against his co-defendant, Kenneth Pealock. This offense had been charged nowhere in the indictment nor even considered by the grand jury. Mr. Bolin pointed out the illegality of this maneuver, citing Van Liew v. United States, 321 F.2d 674, as a constructive amendment of the indictment. (Page 2, line 4)
Page 4: Judge Story then blew off this “trial by ambush” as “res gestae,” a legal term referring to an exception to the hearsay rule. (Line 8)
Members of the Department of Justice, unlike judge Story, recognize the problems of constructively amending an indictment. “[A] consequence of amending the indictment is that the defendant ‘could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.’” The Department of Justice, Criminal Resource Manual No. 236 (1999) (quoting Russell v. United States, 369 U.S. 749, 769 (1962).
Pages 5-7: In reaction to Mr. Bolin’s accusation that Judge Story aided the prosecution, this judge then goes on for three (3) pages of transcript justifying (or attempting to justify) his unconscionable behavior in the case up until that time.
Page 4: This witness testified that there were thousands of victims who had ordered books. He testified that the victims were defrauded when their names were resold. (Lines 12-13)
This is the same witness who testified to the grand jury that returned the indictment that mail order ads, placed by other people who had no connection to the lead defendant in the case, Kenneth Pealock, were placed by Kenneth Pealock. I.e., he committed perjury in front of the grand jury, in violation of 18 U.S.C. § 1623. Judge Story found nothing wrong with this government agent’s perjury in finding the indictment, though it was brought to his attention numerous times. I.e., Judge Story violated a federal criminal statute himself in this regard, 18 U.S.C. § 3 (accessory after the fact).
Another district court judge and the Department of Justice’s Office of Professional Responsibility view the matter of perjury differently than Judge Story.
43 United States Attorneys’ Bulletin, p. 352.
Judge Story did not made any inquiry. He said perjury was a matter for the jury to decide.
The real object of this case was alluded to by Mr. Robertson (Lines 15-17): five million dollars in book sales. This was not a criminal case, it was a forfeiture case, and Judge Story knew it. How can anyone hope to achieve any financial success when he has to keep one eye on the likes of Judge Story, who allows government bureaucrats to plunder American citizens? Why the government would do so was aptly illustrated in a book about secret deals, political fixes and other misadventures of the U.S. Department of Justice:
Burnham, Above the Law, page 191 (Scribner 1996) (quoting from Executive Office for U.S. Attorneys, Department of Justice, U.S. Attorney’s Bulletin 180, August 15, 1990).
As more and more of the innocent are swept up in today’s criminal “justice” system, the appearance of justice will be exposed as an evil surpassing the Soviet system described in the Gulag Archipelago by Aleksandr Solzhenitsyn:
An acquittal is, in fact, unthinkable from an economic point of view! (page 291)
Don’t fear the law, fear the judge. (page 298)
Pages 6-8: The defendants brought to Judge Story’s attention the fact that the prosecutor, David M. Leta, was witness tampering by sending “hand signals” to his own witness, Ted Robertson.
Pages 3-21: Judge Story held a hearing on the hand signals. Witnesses from the audience testified as to what those signals meant. At the end of the hearing Judge Story said that the jury should make the decision about the hand signals. (Page 21, lines 21-23)
Tampering with a witness is a felony. See 18 U.S.C. § 1512. It is not the duty of the petit jury to report felonies, it is the duty of the judge. See F.R.Cr.P. 6(a), United States v. Christian, 660 F.2d 892, 900 (3rd Cir. 1981).
A judge of the United States cannot escape the duty of examining the facts for himself, if true as alleged they make the trial absolutely void. Moore v. Dempsey, 42 S.Ct. 265, 267 (1923). Only the Supreme Court is supposed to have the prerogative of overruling its own decisions. See Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996).
A defendant in the courtroom of Judge Story finds himself not unlike those brought before the infamous Star Chamber in England before it was abolished in 1641. The most objectionable of the Star Chamber’s practices was its asserted prerogative to disregard the common law rules of criminal procedure when the occasion demanded. See 5 Holdsworth, A History of English Law, 163, 165, 180-197 (2d ed. 1937); Radin, The Right to a Public Trial, 6 Temp. L.Q. 381, 386-388; Washburn, The Court of Star Chamber, 12 Am.L.Rev. 21, 25-31.
This judge, Richard W. Story, is so incompetent and ill trained that he obviously has no conception of what his duty is or he doesn’t care that he disregards it.
Judge Story has no business determining the rights of other American citizens from a position he is obviously determined to abuse. Judge Story’s behavior violates the ABA Model Code of Judicial Conduct, Canons 1A, 2A, 3B(2),(5), and (8). Judge Story brings disgrace upon the American concepts of justice and the rule of law.
ABA Model Code of Judicial Conduct, page 1 (1998 Edition)
Judge Richard W. Story should be impeached, tried, convicted, and removed from office. He holds his office during “good behavior.” See Article III, U.S. Constitution. Judge Story does not seem to be familiar with the concept.