A gruesome new form of injustice is all the rage among legislators and judges.

View of justice as a game sweeps officialdom.


Should a person accused of a crime have a reasonable chance to prove his or her innocence? In other words, should a person accused of a crime have a fair trial? Most people would believe they should. After all, witnesses can be mistaken, or be tricked, or be deliberately lying. Police and jurors can draw the wrong conclusion from a set of circumstances that look bad. A fair trial can make a big difference to justice.

Sir Walter Raleigh is famous for spreading his cloak before Queen Elizabeth I, so she would not muddy her feet in the wet streets of London. What is not so well known was that Raleigh ended up being executed for treason. At his trial, a man testified that while traveling in Spain, a monk told him that Raleigh was plotting against England. A judge beholden to the crown made sure he was convicted.

A century later, in colonial America, John Peter Zenger was tried by the British for libel. He wrote an article criticizing the appointed Governor of New York, William S. Cosby. The judge instructed the jury that their only job was to determine if Zenger wrote the critical article. They were not to judge the truth of what Zenger wrote. The jury disregarded the judge and found Zenger not guilty. Zenger's case was a main reason for our nation's adoption of the First Amendment freedoms of speech and the press.

Two centuries later, in modern America, judges have the authority to prevent you from calling witnesses on your behalf on the ground that your theory that someone else committed the crime is "speculative" and will "confuse" the jury. Judges have the authority to "limit" your cross-examination of prosecution witnesses, preventing you from getting at the truth that way. With everything the prosecutor presents being deemed relevant, and with everything you present being deemed irrelevant, the jury hears only one side of the story. Many, many injustices are committed in this way. Normally, the jury has no idea how it is being used to give unfair proceedings the appearance of fairness.

Most people would assume that if a person has been convicted, he is actually guilty, and had a fair trial. After all, judges would not allow injustices to go uncorrected, would they?

Power corrupts

In many states we have term limits for politicians to reduce the level of arrogance and corruption among public officials. These laws almost never apply to judges.

Upon becoming a judge, a new judge discovers that his word is law. People bow and scrape to him. They treat him with respect and fear. They beg for mercy from him. Armed police officers stand by to enforce his every whim and order. Once you have reached this exalted stage, you get comfortable with it. As time goes by, it seems more and more right and just that you should give the orders, and others should obey them. Even though higher courts can overturn your decisions, most people don't have the time, energy, money or knowledge to file an appeal. If they do file an appeal, the higher courts almost never reverse, and when they do, it takes years.

Even if the judge happens to be stupid, or racist, or lazy, or insufferably rude, or mentally ill, almost nobody can dare to stand up to him. His power is too great.

As a group, judges naturally care quite a bit about convenience to the judges. Who doesn't care about their own convenience? The difference with judges is, when judges have a whim or a wish, the judges can transform it into reality, using the entire power of Government that is placed at their disposal. When you have a whim or a wish, you cannot.

A minor form of this problem is that judges control their own work hours. Many of them start late, and leave early. People arrive at court at 8:30 a.m. like they were told, and the judge gets there by 10. A hearing can be in progress, and the judge can adjourn it because he has a luncheon appointment or she wants to get her hair done. People can be forced to come back again and again, for no good reason.

Shut Up And Go Away

A major form of the problem is that judges can throw cases out of court, singly or by category, and thereby reduce their workload.

The principle of finality is tailor-made for those who care more about personal convenience than justice. The rule is simple. If you are convicted of a crime and your lawyer files an appeal, you can never again raise any complaint about your case that the lawyer overlooked. No matter how innocent you are, no matter how unfair the trial was, you get only one try. Period.

Appellate court judges get to close off the courts to people, based on the "principle" of finality. When the courts are closed, the judges get to do less work, and get to the golf course early. Instead of having a judge carefully consider the law, the justice, or the fairness of a case, the judge can have a clerk inflexibly apply a rule that kicks everyone out of court regardless of the facts of the case.

As principles go, the principle of "shut up and go away" is unworthy of the great ideals of our society. If I were a judge, I would want to be known for my fairness, not for my ability to prevent pleas for justice from even being considered.

In the case of Michigan, it was not legislators who enacted a law barring people from the courts. Rather, it was the Michigan Supreme Court. The state constitution provides that the state Supreme Court can make rules for the courts. The courts have taken that as an opportunity to make rules to bar people from courts altogether.

Suppose you are a cook in a restaurant. You get paid a salary. Suppose you get the same pay no matter how many meals you are called upon to prepare. How many meals would you like to prepare on your shift, 30 meals, or 60?

Of course, you cannot decide how many meals you are going to prepare. You are not the boss. You do not control the heavy snowstorm that keeps people away from the restaurant, nor do you control the schedules of the sports teams that may bring people into the restaurant. You cannot create a rule that if the customer already ate today he can't get a meal now. If you stood at the door of the restaurant to chase customers away, you would be fired.

Judges have no such restraints. To consider the pleas of prisoners for justice would only take up valuable minutes of a judge's busy day. So, the desire of judges to do less work is redefined as a "principle." So, judges are not being lazy or unfair, they are just being "principled."

What courts used to do

The US Supreme Court used to think that violation of constitutional rights in a criminal prosecution deserves a remedy, no matter how much time has gone by. In Pennsylvania ex. rel. Herman v. Claudy, 350 U.S. 116 (1956), the Supreme Court unanimously held:

Nor was petitioner barred from presenting his challenge to the conviction because 8 years had passed before this action was commenced. Uveges did not challenge his conviction for 7 years. 335 U.S. 437, 438-439. And in a later case we held that a prisoner could challenge the validity of his conviction 18 years after he had been convicted. Palmer v. Ashe, 342 U.S. 134. The sound premise upon which these holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy.

This "sound premise" that the Supreme Court recognized unanimously in 1956 has now been completely rejected. Flagrant violation of constitutional rights is no longer considered to be so important. Under today's regime, much more important than correction of injustice is administrative convenience, the so-called "need" to employ legal technicalities to keep people from presenting claims of injustice to a court. The injustice to Stephen Herman, which the Supreme Court unanimously corrected in 1956, today could not even get in the front door of any federal court.

The gamesmanship theory of justice

Suppose you were accused of a crime and locked in jail. The lawyer does not try to find your witnesses until the night before the trial. He is unable to find them. Your lawyer tries to ask a prosecution witness important questions about the case. The judge will not let him. The prosecutor blatantly lies about important facts. Your lawyer fails to object. You want to testify. The case is over before you have a chance. You feel you have a defense. The judge instructs the jury not to consider it. You are convicted, and the judge gives you a sentence higher than the law allows. Your lawyer fails to object.

The theory is that you have the right to an appeal to correct these problems. But suppose you are appointed the same lawyer for the appeal as you get for the trial? Is he likely to criticize himself?

Suppose your appeal lawyer is not very good. Suppose your lawyer is lazy. Suppose your lawyer never fully reads the court records. Suppose your lawyer never even gets the court records. Suppose your lawyer never reads the latest legal cases. Suppose you tried to fire your lawyer and the court won't let you. Suppose your lawyer pays a college student to write your appeal, and the lawyer only signs it. Suppose your lawyer actually argues against you, by declaring to the court that you are guilty or that your trial was fair.

Under the principle of finality, none of that matters. If you had one appeal, that is it.

This type of rule treats justice as a game. If you are playing baseball and you get an out, you are not entitled to try it over. If you are playing chess and you move your piece, you are not entitled to take back the move. Now, the same rules apply to law. What is important is not whether justice is done, or whether you were treated fairly. What is important under these rules is that whatever move your lawyer makes or fails to make, you are stuck with the consequences forever.

The case of Mr. H is instructive. Mr. H was convicted of a crime carrying a 2 year penalty. The judge sentenced him to 5 years. Nobody spotted the mistake. The appeal lawyer filed an appeal, but obviously did not know about the 2 year limitation. Eventually, the girlfriend of Mr. H hired a lawyer. A motion was filed in court to reduce the sentence. Based on the principle of finality, the motion was denied. Mr. H serves 3 years longer than he should.

Consider also the case of Mr. M. Mr. M only was sentenced to 2 years, where he should have been sentenced to 5 years. This was discovered after the prosecutor's time to file an appeal had expired. The court ruled it was proper and necessary to raise his sentence after it was imposed, and there was no need to give notice and a hearing to the prisoner. The effective result: the prosecutor can complain that a sentence is too low, but a defendant cannot complain that a sentence is too high.

The need to close off the courts to litigants applies only to defendants, not to prosecutors.

Consider also the case of Mr. S. His new lawyer presented a motion that so convincingly explained the injustices in his trial that the trial judge granted him a new trial. The Court of Appeals overturned that ruling, and no new trial was held. The Court of Appeals did not rule that the trial was fair, or that the judge's analysis granting a new trial was wrong. They ruled that the judge erred by considering the motion in the first place, because the issue had not been raised in Mr. S's original appeal.

In some states that follow a rule of finality, there is an exception for newly discovered evidence that tends to prove innocence (as opposed to newly discovered evidence that proves an unfair trial). In those states, you can file a delayed motion on that ground, but no other. In some states like Virginia or Texas, if you do not find out about the evidence within a very short time (21 days in Virginia) you can never raise it, ever. If the police or the prosecutor or a private citizen manages to hide evidence for 22 days, or if your lawyer gets sick or goes on vacation for 22 days, you bear the loss, not them. This is the ultimate in gamemanship.

Habeas Corpus

The US Constitution provides for habeas corpus, where a prisoner can get the federal courts to act on his behalf even when the state courts refuse. Over the years since 1976, under the leadership of the activist Justice William Rehnquist, the US Supreme Court has severely restricted habeas corpus. Based on these judicially created rules, in most cases, a Petition for Habeas Corpus is like a game. The cases are decided on the basis of procedural technicalities invented by judges, and the actual merits of the cases rarely get decided.

Among the rules created by federal judges for throwing cases out of court are "cause and prejudice", "abuse of the writ", "state court ruling of procedural default", "exhaustion", "deference to state court findings of fact" and "abstention doctrine." "Abuse of the writ" is instructive. The Constitution does not say that filing a second Habeas Corpus petition raising different issues than the first is an abuse of the writ of habeas corpus, nor does it say that the penalty for such "abuse" is your case gets thrown out of court. It does say that the right of Habeas Corpus shall not be suspended.

Judges hijacked the word "abuse." Instead of applying it to injustices, they apply it to COMPLAINING about an injustice. And the penalty is death: death to your hopes of fairness, death to your hopes that someone will at least listen to your complaints, death to your hopes of filing a Petition for Habeas Corpus. So, judges do not "suspend" the writ of Habeas Corpus, they simply don't allow you to use it.

Needless to say, under today's regime the "sound premise" of Pennsylvania ex. rel. Herman v. Claudy (1956), that "men incarcerated in flagrant violation of their constitutional rights have a remedy" no matter how many years have passed, plays no role whatever in the court's deliberations.

The Anti-Terrorism Act

The US Congress has gotten into the act with the Anti-Terrorism Act (effective April 24, 1996), most of whose provisions have nothing to do with terrorism. You cannot file a second petition for habeas corpus unless evidence has been withheld from you, AND not one reasonable juror would have voted to convict you if they had known of the evidence.

Suppose, for example, that your lawyer was bribed by your enemy to lose your case. You did not find out until years later, after your first appeal and habeas corpus have lost. The state courts, using the principle of "finality," refuse to let you raise the issue. You come to federal court. Because there was "some" evidence against you, it is not clear that every single juror would have voted not guilty if they knew about your lawyer being bribed. You therefore do not have the right even to bring the issue to court. Therefore, you lose.

Another horrendous provision of the "Anti-Terrorism Act" limits the right to file a Petition for Habeas Corpus to one year after the conviction becomes final by the appeal being rejected by the highest court of the state. Why is that unjust?

The prisoner might never have heard of Habeas Corpus until the year is over.
The prisoner might not know how to file a Petition for Habeas Corpus.
There is no right to an appointed lawyer for Habeas Corpus even if you are poor. It may be years before you find someone willing to help pay for a lawyer.
The lawyer in state court may have failed to raise the appropriate issues, leaving no good issues to raise within the one year period. Genuine unfairness cannot be repaired.
The prisoner may have been tricked by another convict into paying the convict some small sum to have the convict write a Petition for Habeas Corpus for him. The convict may do a terrible job.
New information may arise that does not prove you are innocent, but does prove your trial was unfair. For example, your judge or lawyer being bribed to work against you. If you learn about this 1 year and 1 day after your conviction is final, it can never be raised.
Many people have been freed years after the conviction upon a finding that they were innocent, or wrongly convicted. Such actions will now be a thing of the past.

Bizarrely, this law was sold to the American public under the guise of fighting terrorism. Picture this. Two terrorists are discussing the placing of a bomb. A third terrorist runs into the room with a newspaper announcing the passage of the Anti-Terrorism Act. The terrorists say: "Boy, we better not plant that bomb. After all, if we plant it and are convicted, we will have only one year in which to file a Petition for Habeas Corpus."

Terrorists are people committed to a cause. If a life sentence or a death sentence is not enough to deter them, how is a filing deadline going to stop them? The whole concept is absurd.

What is taking up so much of the judges' time?

What is taking up so much of the judges' time? One factor has to be the War on Drugs. The court dockets are so clogged with drug cases (over 40% of all federal court time is spent on drug cases) that the courts have little time left to deal with genuine legal disputes. Your civil case may not be tried for years, because of the drug cases.

Another factor, discussed above, is the right of a judge to set his or her hours. If the judge wants to start late or leave early, there is not much that anyone else can do about it. The only people who could stop it are judges of the higher courts. They would much rather preserve the tradition of the golf afternoon than force these highly paid fellow members of the club to spend time doing their jobs.

Constitutional principles

The authors of the US Constitution's Bill of Rights thought a fair trial was important. That is why, in the Fifth Amendment, they provided that a person shall not be deprived of life, liberty or property without due process of law. The courts ruled that applies only to the federal government, not to the states. That problem was corrected with the Fourteenth Amendment, which provides that a state shall not deprive a person of life, liberty or property without due process of law.

You would think that this provision would allow you to complain about being deprived of liberty without due process of law. The "one complaint" rule means that many injustices will remain uncorrected. In the old days, many injustices remained uncorrected, but at least the judge had to read your complaint. Now, the judge does not even have to read it.

The US Constitution says that the right to Habeas Corpus shall not be suspended. Yet, court case after court case, and statute after statute, is devoted entirely to suspending that which is not to be suspended.

Finality. Is it coming to your state? If so, don't bother begging for justice. The people who rule you have just ruled justice to be illegal.

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