This isn't the first example of the discretionary use by Texas officials of public 'valuables.' Earlier this month, Gary Tuchman found another abuse of forfeiture laws in this town of Tenaha.
Big salary bonuses are not only for Wall Street bankers. You too can get a big bonus if you work for your government! Well, put it this way, we now know there is precedent for it. A former District Attorney in Texas has acknowledged to us that he paid hundreds of thousands of dollars over a period of eight years to three of his secretaries. He calls it a “stipend,” but for secretaries who made between $40,000 – $50,000 in base salary each year, the former DA acknowledges it might have amounted to a doubling or even more of their salaries. Joe Frank Garza told me they deserved the money because “they were loyal…my eyes and ears in the community..(and they) watched my back.” And he is very comfortable with what he did. But lots of other people, including the District Attorney who beat Garza in his re-election battle, are stunned by the admission. You see, the money comes from criminals and accused criminals. Texas, like many other states, has forfeiture laws. Police are allowed to seize certain valuables, like money and drugs, from people who are suspected of serious crimes. The idea is not to let criminals profit from their crimes. Ultimately, police can use money for “law enforcement purposes. The district attorney’s office also gets a cut; and can use the money for “official purposes.”But what the heck are official purposes?
The former DA tells me it’s very ambiguous; so he felt free to make those determinations. What particularly bothers his critics is that the hundreds of thousands paid in “stipends” could have been spent on things like more police cars, bulletproof vests, and computers. But Garza tells us he spent the money on those things too. He says he had plenty to spend. Which raises this question: does it all increase temptation to seize valuables from citizens who are not suspected of serious crimes? Garza says absolutely not; and so does the longtime sheriff in the county. But Texas’ confusing forfeiture laws have led to many police seizures that are controversial and have resulted in lawsuits. So what’s the solution? Perhaps clearer and more stringent forfeiture laws. The Texas legislature is considering such a bill right now. The Senate has passed it; the House is considering it. But Wednesday of this week is the last day for legislators to consider bills for this year’s session. So unless it’s taken up very quickly, change may still be at least a year away.
Tuesday, May 26, 2009
Jail For Criticizing Federal Prosecutors
A federal judge has sent a Kansas man to prison for criticizing federal prosecutors, claiming that the man posed a threat of “continued criminal defamation of government counsel and witnesses.” The man (Guy Neighbors) in the northwest Kansas college town of Lawrence has been accused of selling stolen goods in the popular secondhand store he has owned for two decades and has been free on bond pending trial in October. For more than four years federal prosecutors and local police have tried shutting down Neighbors’ store (the Yellow House) but the charges have been dropped once by a federal judge and the trial date has been moved more than a dozen times. This week U.S. Magistrate Judge James O’Hara revoked the man’s bond (effectively sending him to prison) because federal prosecutors pointed out that in late April he made statements in electronic mails that accused them and police of corruption in the stolen-goods case against him. The email that landed Neighbors in jail said prosecutors and police officers have acted “in a pattern of conspiracy and cover-up.” Neighbors had previously posted blogs that were similarly critical of authorities, including officers at two local police departments and the federal prosecutor handling his case. A web site dedicated to following the case posts all the federal documents, including the judge’s order to revoke bail and official transcripts of lengthy court hearings almost entirely devoted to Neighbors’ internet blogging on the matter. It also includes Neighbors’ request for a change of venue alleging he can’t get a fair trial in Kansas.
Friday, May 15, 2009
Wichita court records altered
Three indicted for alleged scheme to alter Wichita Municipal Court bond documents.
By The Capital-Journal
Created May 15, 2009 at 11:13am
Updated May 15, 2009 at 11:29am
WICHITA— Three Wichita women have been indicted in connection with an alleged scheme to alter Wichita Municipal Court bond records used to defraud bonding companies. The eight-count indictment unsealed Friday alleges court employee Kaylene Pottorff took bribes to change city court records for bondsman agents Alicia Bell, 35, and Jessie Garland, 41. Pottorff, 53, worked as a collections officer in the court from March 2004 to April 2008. She is charged with two counts each of conspiracy, impairing computer data and bribery. Bell and Garland each face a single counts of conspiracy impairing computer data and bribery. All three women have been arrested.
It was not immediately clear if Pottorff and Garland had attorneys. Attorney Mike Hepperly, who is representing Bell, did not immediately return a call for comment. The indictment alleges Pottorff altered the court's computerized records systems on multiple occasions between March 2004 and April 2008. Bell and Garland then allegedly used the altered lists of active bonds to create false jail booking forms that corresponded with names of bonded defendants. The indictment charges Bell defrauded her biological mother, Pearl Neal, AAA Bonding Co., and others. It charges Garland defrauded Larry Hiebert and B&J Enterprises, which were the bondsman and surety on Garland's bonds. If convicted, the women face up to five years in prison and a fine of up to $250,000 on the conspiracy charge. The computer fraud and bribery counts carry penalties of up to 10 years in prison and a fine of $250,000, according to the U.S. attorney's office. Pottorff and Bell have an initial court appearance Friday in U.S. District Court in Wichita. Garland is in custody in Arkansas, and her court date has not yet been set.
By The Capital-Journal
Created May 15, 2009 at 11:13am
Updated May 15, 2009 at 11:29am
WICHITA— Three Wichita women have been indicted in connection with an alleged scheme to alter Wichita Municipal Court bond records used to defraud bonding companies. The eight-count indictment unsealed Friday alleges court employee Kaylene Pottorff took bribes to change city court records for bondsman agents Alicia Bell, 35, and Jessie Garland, 41. Pottorff, 53, worked as a collections officer in the court from March 2004 to April 2008. She is charged with two counts each of conspiracy, impairing computer data and bribery. Bell and Garland each face a single counts of conspiracy impairing computer data and bribery. All three women have been arrested.
It was not immediately clear if Pottorff and Garland had attorneys. Attorney Mike Hepperly, who is representing Bell, did not immediately return a call for comment. The indictment alleges Pottorff altered the court's computerized records systems on multiple occasions between March 2004 and April 2008. Bell and Garland then allegedly used the altered lists of active bonds to create false jail booking forms that corresponded with names of bonded defendants. The indictment charges Bell defrauded her biological mother, Pearl Neal, AAA Bonding Co., and others. It charges Garland defrauded Larry Hiebert and B&J Enterprises, which were the bondsman and surety on Garland's bonds. If convicted, the women face up to five years in prison and a fine of up to $250,000 on the conspiracy charge. The computer fraud and bribery counts carry penalties of up to 10 years in prison and a fine of $250,000, according to the U.S. attorney's office. Pottorff and Bell have an initial court appearance Friday in U.S. District Court in Wichita. Garland is in custody in Arkansas, and her court date has not yet been set.
Thursday, April 30, 2009
Military Justice
Embroiled in a hotly-contested divorce Marine Corps Sgt. Brian Foster was awarded custody of their children in California. Then his wife, Heather, fled to Colorado with the boys and sought the help of a feminist attorney specializing in women's rights. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled her husband's abuse.
Colorado, being a ³safe haven² state, Heather was neither arrested nor charged.
Marine Sgt. Foster was then forced to negotiate once again for custody of his children. When those negotiations broke down Sgt. Foster found himself charged by his wife¹s attorney with assaulting, raping and threatening his wife. As a result of false allegations of marital rape and domestic violence, Sgt. Foster was convicted by a general court martial in December 1999 of all charges and sentenced to 17 years confinement, stripped of his rank, all pay and allowances, and given a dishonorable discharge. He served nine years, two months and 17 days of that sentence, most of it at the maximum security United States Disciplinary Barracks at Fort Leavenworth, Kansas, before being released and his rank restored on March 14, 2009, after a court of appeals vacated all findings of the trial court.
Prosecuting marital rape ‹ radical feminist rules
Sgt. Foster¹s prison ordeal began when a military jury at Camp Pendleton, California, convicted him of spousal rape and related charges on December 3, 1999. A general court-martial composed of officer members convicted Sgt. Foster, contrary to his pleas, of rape, two specifications of aggravated assault, and wrongfully communicating a threat in violation of Articles 120, 128 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934. He was then sentenced to confinement for seventeen years, forfeiture of all pay and allowances, reduction in rank to private (pay grade E-1), and a dishonorable discharge. The convening authority (CA), Commanding General, 1st Force Service Support Group, Marine Forces Pacific, Camp Pendleton, California, approved the sentence as adjudged. And there it lay for over nine years.
What was the evidence for such a draconian sentence?
The following observations are based on the findings of the court of appeals.
Heather and Brian Foster were married in 1993. In 1998 Sgt. Foster hired an attorney and filed for divorce in California and was given custody of their children. Heather then kidnapped the children and fled to Colorado. Following completion of requisite residency requirements she then filed for divorce against Brian in Colorado despite the pendency of the divorce case in California. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled to Colorado to escape her husband's abuse. Because of her unproven and unsubstantiated claim of domestic violence the warrant was never enforced. Over the course of several months the estranged couple engaged in civil discovery and custody-related settlement discussions in California and Colorado. The primary issues pending in both jurisdictions related to the conditions by which Brian and Heather would share legal and physical custody of their two minor children. The civil litigation between the parties was ultimately consolidated under the Uniform Child Custody Jurisdiction Act with a judge from each state joining in pretrial settlement efforts. Indeed, following mediation of the matter, the parties agreed to a provisional agreement on custody in which Heather consented to Brian¹s joint legal and partial physical custody of their two children. The record is opaque as to the reasons for the collapse of this agreement, aside from references to lapses of communication between the two civil attorneys. Almost certainly this breakdown was a deliberate manipulation of the situation by Heather¹s radical feminist (redfem) attorney. It is no surprise then that Heather's attorney in Colorado reported the alleged misconduct to prosecutorial officials at Camp Pendleton, which led to the charges against him.
Inventing a spousal rape charge
Rape charge based primarily on redfem attorney¹s report
The key witness against Sgt. Foster was his spouse and alleged ³victim,² Heather Foster. Based largely on the report of Heather¹s Colorado attorney, prosecutors alleged myriad instances of spousal abuse and one incident of rape over the course of the marriage. The record shows that Sgt. Foster was convicted of rape solely upon the testimony of his estranged wife, nearly five years after the alleged incident occurred, and corroborated only by the victim's own statements to her friend nearly two years after the alleged incident. In the time between the alleged act and her sworn testimony, Heather Foster, by her own admission, had voluntarily participated in several instances of intimate sexual contact with Brian, including the willing production of a sexually-explicit video.
Further, no forensically related evidence was introduced at trial and no official report to any authority was made after the alleged rape took place. Indeed, the alleged rape was only ³reported² to Marine Corps authorities by the alleged victim's divorce attorney in the midst of a complicated and contentious custody battle with Sgt. Foster when the couple¹s settlement agreement broke down. Without any official report or forensic evidence of the alleged rape the prosecution called on two of Heather Foster¹s drinking buddies for supporting testimony.
Drinking buddy one Mrs. Kolstee testified that she was one of the Fosters' neighbors during the period when they lived in Hawaii and that she and Heather shared baby sitting duty for each other, shopped, and otherwise socialized together. Mrs. Kolstee testified that they became ³very² close during their time in Hawaii. Despite their close proximity and regular contact Mrs. Kolstee testified that Heather never told her about any instances of abuse at the hands of her husband while they were stationed in Hawaii. Mrs. Kolstee did offer some corroboration as to the charge of aggravated assault with a rifle, asserting that she saw what she believed was the end of a rifle barrel through the slot in the door at the Foster residence. Unfortunately, Mrs. Kolstee identified the ³weapon² as a pistol in her statement to the Naval Criminal Investigative Service before the trial. Her credibility was also hindered by her discussion of the case with the alleged ³victim² the evening before testifying at the UCMJ Article 32 Investigation. As a result the appeals court found that this witness' testimony was extremely general, at times confusing, and contained factually unsupported opinion. More importantly, throughout her testimony no reference was made to any knowledge of the alleged rape. Obviously Sgt. Foster¹s defense attorneys were incompetent, which is confirmed in the following episodes.
Drinking buddy two
Ms. Kossen on the other hand, testified that Heather Foster had reported the alleged ³rape² to her approximately two years after it supposedly occurred. This rather significant delay seriously undermined the materiality, if not the credibility, of the victim's statement to her friend and that friend's testimony. Moreover, the testimony was admitted at trial as a prior consistent statement per Military Rule of Evidence 801, Manual for Courts-Martial, United States (1998 ed.), not as an excited utterance, or other statement contemporaneous with the alleged rape. Additionally, Ms. Kossen offered testimony regarding her frequenting night clubs and drinking with Heather, and testimony pertaining to yet another allegation of aggravated assault with a weapon in California. However, she told investigators this was an incident that took place in Hawaii. In summary, the evidence as to his culpability for rape was anemic at best.
What the Navy-Marine Corps Court of Criminal Appeals found
The court of appeals found that within the four corners of this case:
Heather Foster made no report to medical or law enforcement authorities of the rape,
She engaged in long-standing intimate contact with her ³rapist² for years following the incident, including a home video in which she plays a starring role. Prosecutors presented no forensic or contemporaneous testimonial evidence that corroborated Heather¹s rape allegations. As a result the appeals court concluded that the prosecution attempted to bootstrap a rape conviction atop several instances of alleged assault conduct for which there was also little substantiation. In short, the Government's evidence of rape in this case, aside from Heather's testimony, consisted of statements by her to her friends and her mother. None of these statements were made proximal to the alleged rape.
The appeals court was also significantly disturbed by the fact that the allegations of rape were made in the midst of a hotly-contested divorce and custody battle, after failed attempts at settlement, under the terms of which the ³victim² was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist
Considered in the light most favorable to the Government, a reasonable member of the trial court could choose to believe the ³victim,² and to disbelieve evidence inconsistent with guilt. However, under the facts presented, the appeals court was unable to conclude that Sgt. Foster is guilty of rape beyond a reasonable doubt. To the contrary, the court found that his conviction for rape was factually insufficient, and was obtained as the result of other errors, discussed below. Therefore, the rape conviction was not allowed to stand.
Admission of improper expert testimony ‹ otherwise known as redfem ideology and dogma
The appeals court began by reviewing the manner in which expert testimony was admitted during this litigation with the proposition that ³the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.²They also considered the plenary understanding in military law that expert testimony is not permitted to replace the decision-making process of the fact finder or, more specifically, to advance the expert witness' opinion as to the ³believability or credibility of victims or other witnesses² in a case dealing with sexual assault The appeals court restated that ³expert testimony is admissible if it is relevant..., if its probative value outweighs its prejudicial value..., and if the testimony will assist the trier of fact...² In determining if a military judge has properly admitted expert testimony, they then tested his decision for an abuse of discretion.
Testimony of pediatrician Dr. Mary Dully
The trial judge permitted the prosecution to call Dr. Mary Dully, a pediatrician, who testified as to the general subject area of domestic violence as dictated by her ideology. One might reasonably ask how the hell a pediatrician is qualified as an expert witness on adult rape? It should be noted that the universe of Dr. Mary Dully's experience is defined by her work in the Camp Pendleton emergency room and her service with the San Diego Police Academy's Primary Aggressor Course, where she taught officers how to identify the person who ³may have exerted power and control and been the winner in a physical altercation and helping officers on scene who is likingly [sic] the primary aggressor and who is actually the looser [sic] in the physical altercation.² So the bias and dogma of her training and background are obvious from the outset. After reciting her professional qualifications, Dr. Dully went on to outline her vision of what domestic violence was based upon her ³training and experience.² What followed was an extensive colloquy with trial counsel that involved this pediatrician's personal view of how domestic violence presents itself, and how both the aggressor and victim are likely to act according to the DV industry playbook. This discussion included offering the members of the trial court an ideological basis for why a victim might take certain action, such as remaining with her abuser over a long period of time, all in line with redfem DV dogma. Notably, defense counsel did not voir dire the witness at trial. Further, a review of the record reveals that the trial counsel's questions and Dr. Dully's responses substantially mirrored the factual theory of the case presented by the Government. Yet the record is clear that the Dr. Dully reviewed no materials specific to this case and certainly did not conduct an examination of either Sgt. Foster or his estranged wife, Heather, in preparation for trial. In short, dogma and ideology were introduced unchallenged as evidence in this criminal case.This outline of what constitutes abuse by this expert witness, and the close factual nexus between the call of those questions and the Government's position at trial, brings Dr. Dully¹s testimony very close to the nature of profile evidence of an offender, which is forbidden under military law. While the appeals court did not hold that Dr. Dully¹s ³evidence² strayed over the permissible line, having drawn so very close to it, the Government's admission of Dr. Rusher's testimony immediately thereafter, exacerbates the dangerous nature of Dr. Mary Dully's unrestricted testimony.
Testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy
Regarding the testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy, the court of appeals held that the military judge abdicated his role as impartial gatekeeper, and erroneously admitted testimony which compromised the credibility of this trial in its entirety. [emphasis added] While the record indicates that Dr. Rusher was a physician, board certified in neurology and psychology, her testimony was that she was, in fact, a psychiatrist, who conducted a single interview with the alleged victim in this matter. Therefore, the military judge erred in permitting the members to consider Dr. Rusher's testimony. In preparing their case for litigation, the prosecution arranged for Heather Foster to meet once with Dr. Rusher for an evaluation on November 10, 1999. The examination took two hours. Dr. Rusher testified that she took a history from Mrs. Foster, including a review of past substance abuse, history of abuse, social history, medical history, conducted a mental status evaluation, and developed an assessment. Importantly, Dr. Rusher does not simply explain to the members of the court what Mrs. Foster claims. In sharp contrast to the fundamentals of admissible expert testimony, Dr. Rusher delivered the factual assertions of the victim as a medical diagnosis.
The pertinent exchange with trial counsel follows:
Q: What did you observe during the interview?
A: I observed that Mrs. Foster did indeed have the symptoms of post traumatic stress disorder.
Q: And what are those symptoms that you observed?
A: The symptoms that I observed in her was [sic] that she did experience a traumatic - actually, multiple traumatic incidents where her life was threatened and the life [sic] of her children were threatened; and she re-experienced this trauma through nightmares.
She would have nightmares of her husband placing a gun to her head for several hours. She had intrusive memories of the abuse where her life was threatened and the lives of her children were threatened. She had graphic memories where she was told she would be chopped up, and her children would be chopped up in small little pieces; and they would have a slow painful death...She also had avoidance symptoms where she had difficulty going places that reminded her of the abuse. For example, it was very difficult for her to come to California, because in California was one of the places where the abuse occurred. She had a numbing of responsiveness where her effect at times or her expression were somewhat flat and emotionless, which again is more -- one of the very common symptoms of post traumatic stress disorder order [sic]. As set forth above, Dr. Rusher went well-beyond a medical analysis of the facts before her. In short, she adopted the facts as advanced by the alleged ³victim² and cloaked them in a physician's white coat, presenting them as scientific findings to the members of the trial court. It is well established that ³...to put Œan impressively qualified expert's stamp of truthfulness on a witness' story goes too far.' An expert should not be allowed to Œgo so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.'² However, this is a standard tactic of ³expert² witnesses introduced by radical feminists in domestic violence trials for the reason, as here, that it frequently works to condemn a male defendant. In reviewing Sgt. Foster¹s case, the court noted that the military judge took no action to correct the tone and content of Dr. Rusher¹s testimony during the tenure of her recitation to the court martial officers. The Court of Appeals for the Armed Forces (C.A.A.F.) has stated that: ³...it is [dangerous] for judges to receive uncritically just anything an expert wants to say. The evaluation of expert testimony does not end with a recitation of academic degrees. Everything the expert says has to be relevant, reliable, and helpful to the fact finder. A rational and demonstrable basis is the sine qua non of expert opinion.² United States v. King, 35 M.J. 337, 342 (C.M.A. 1992). As a result to appeals court concluded the testimony of Dr. Rusher was plain and obvious error. Though the military judge failed to recognize this and take action to prevent the improper testimony, he ultimately recognized the threat it posed to the neutrality of his members, albeit not until the expert witness had concluded her testimony. At the close of her testimony, the military judge, without defense prompting, provided the members a curative instruction. The law is clear that such a curative instruction is the ³preferred² remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused. Generally courts assume that members are able to comport themselves with a curative instruction in the absence of evidence suggesting otherwise and apparently in Sgt. Foster¹s case the members made an honest effort to comport themselves with the trial judge's instruction. However, the appeals court decided that in view of the testimony in conjunction with the entire trial, they were left convinced that the military judge was unable to ³unring the bell.² They further concluded that the error did ³substantially sway² the members in their decision to convict Sgt. Foster, and to impose a punitive discharge and substantial confinement in his case. Thus, this error materially prejudiced Sgt. Foster¹s substantial rights.
Now allow an incompetent witness who wasn¹t even born when the ³rape² occurred
Adding injury to insult the trial judge permitted the members to hear the testimony of an incompetent witness in the form of Jacob Foster, the six-year-old son of the ³victim.² The child¹s testimony was permitted without the military judge conducting an Article 39(a), UCMJ, session so as to make an assessment of the child's competence and probity. After the child, who was coached and alienated from Sgt. Foster by his mother, began testifying the trial court found that the boy had not been born at the time of one of the charges about which he was testifying. Further, he was approximately two years old at the time of the most recent alleged act. When that was discovered the military judge excused the members of the trial court. After consultation with counsel, the judge ordered the testimony to be stricken and instructed the members to disregard it. One can only wonder why defense counsel didn¹t demand a mistrial at this point? But when it is noted that the Judge Advocate General (JAG) defense attorney for Sgt. Foster was Lt. Kathleen Kadlec, USN, the picture of the ³incompetent defense² becomes a bit clearer. Were this the only error, the appeal judges felt they could rely on the members of the trial court to assiduously abide by their instructions to mitigate the error. But this testimony amounted to at least the third retelling of the victim's story, including one retelling by a physician as a matter of medical fact, and another who recited dogma as proven in every case of abuse.
Cumulative error
In view of all these errors the appeals court found that the accumulation of errors described above required them to evaluate the fairness of the appellant's trial using the cumulative error doctrine. The scope of their evaluation of the errors in the case was made: ³,,,against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the [trial] court dealt with the errors as they arose (including the efficacy ‹ or lack of efficacy ‹ of any remedial efforts); and the strength of the government's case.² Considering the improper testimony of Dr. Rusher, combined with the dogma of Dr. Dully, and the stricken testimony of the boy, the appeals court concluded that these errors called into question the basic fairness of Sgt. Foster¹s trial. They also questioned the efficacy of the trial courts curative instructions in that the military judge acted late with regard to both Dr. Rusher's improper testimony and the child's coached recitation. The appeals court also noted that the Government¹s case was not strong, being based almost entirely on the statements of the ³victim² and some testimony that Sgt. Foster was an abusive husband. They stated that but for the cloaking of the victim's statements in the physician's lab coat of Dr. Rusher they were unable to discern whether the members of the trial court would have convicted Sgt. Foster on any charge. They characterized the entire case as muddled and hearsay based. As a result they vacated all the findings of the trial court.
Unreasonable delay for review The tremendous time lapse in having Sgt. Foster¹s conviction reviewed ‹ about nine years ‹ caught the attention of the appellate court and outside experts in military law. ³I¹ve never bumped into something like this in 30 years of practicing law,² said attorney Kevin Barry McDermott, who represented Foster for eight months between late 2000 and early 2001. ³From all the feedback I¹ve gotten, no one can remember a case that took this long to get to a preliminary review.² Sgt. Foster¹s case came at a bad time, said Michelle Lindo McCluer, executive director of the National Institute of Military Justice in Washington, D.C. The Navy and Marine Corps¹ appeals system faced such a backlog of cases, she said, that the U.S. Court of Appeals for the Armed Forces eventually told those services to add staffing. ³It is a black eye for the military justice system,² said Tom Umberg, an Army Reserve colonel called to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba. ³This injustice should have been resolved in 18 months,² Umberg said. ³This was not the world¹s most complicated case.²
Regarding prejudice the appeal judges found that this case is one in which the post-trial delay is so extreme as to ³...give rise to a strong presumption of evidentiary prejudice.² They then concluded that Sgt. Foster was clearly prejudiced by the post-trial delay after his general court-martial, and considered that as weighing heavily in his favor. The primary factor in their evaluation was the determination that the Government failed to prove Sgt. Foster guilty of rape by legal and competent evidence beyond a reasonable doubt. The appeals court also concluded that had just one of the seven previous lead judges in this matter conducted a thorough assessment of the record of trial in a timely fashion the extensive errors embracing this case would have been discovered and Sgt. Foster would have faced, at worst, the prospect of a new trial on all but the rape charge. In short, nearly ten years of delay makes a difference in a case where the alleged instances of misconduct took place years before the actual trial. As a result of all the factors cited they determined that Sergeant Foster's conviction for rape was improper as the Government did not and could not establish his guilt. Therefore, he served nearly ten years of confinement in large measure for an alleged offense of which he should not have been convicted and that likely never happened.The appeals court then considered the egregious delay in the reviews of Sgt. Foster¹s case and concluded that there was a due process violation resulting from the post-trial delay in processing this case. They found the delay ³...is so egregious that tolerating it would adversely effect the public's perception of the fairness and integrity of the military justice system.² Further, they concluded that the error created by the unreasonable delay is not harmless beyond a reasonable doubt. Even if it was harmless, the court was also aware of their authority to grant relief under Article 66, UCMJ, and stated that in this case, irrespective of the due process violation, they would have chosen to exercise that authority because of the unique circumstances. As to an appropriate remedy the judges considered dismissing all charges and specifications with prejudice. However, they found that Sgt. Foster would be able to defend himself against any remaining charges. So as to compensate Sgt. Foster for the actual prejudice discerned from ten years of confinement served in large measure for an offense which they dismissed, they limited Sgt. Foster¹s further exposure to any adjudged sentence to nothing more than a punitive discharge. Should the rehearing result in conviction, court of appeals believed that limiting Sgt. Foster¹s possible sentence will serve as adequate relief for the deprivation of his right to speedy post-trial review. The Equal Justice Foundation most emphatically disagrees. The injustice of nearly ten years confinement at Fort Leavenworth on trumped up, vindictive, self-serving false allegations should free this Marine without question or reservation.
Findings
The charge of rape was dismissed with prejudice and cannot be retried. The remaining findings and the sentence were set aside. The record was returned to the Judge Advocate General for remand to an appropriate Convening Authority with a rehearing authorized. Sgt. Foster was ordered to be released from confinement forthwith and that was done on March 14, 2009. He is now back in the Marine Corps with his rank restored. He is still trying to collect back pay for nearly 10 years of confinement. This is by no means the only case the Equal Justice Foundation has seen where members of America's Armed Forces have been falsely convicted based on perjury, false allegations, radical feminist (redfem) dogma and ideology, incompetent defense counsel, and biased and dysfunctional courts. But Sgt. Brian Foster's case well illustrates the need for the Foundation and why your support is needed.
Charles E. Corry, Ph.D., F.G.S.A.
Former Marine and Father
of a disabled Marine veteran
Colorado, being a ³safe haven² state, Heather was neither arrested nor charged.
Marine Sgt. Foster was then forced to negotiate once again for custody of his children. When those negotiations broke down Sgt. Foster found himself charged by his wife¹s attorney with assaulting, raping and threatening his wife. As a result of false allegations of marital rape and domestic violence, Sgt. Foster was convicted by a general court martial in December 1999 of all charges and sentenced to 17 years confinement, stripped of his rank, all pay and allowances, and given a dishonorable discharge. He served nine years, two months and 17 days of that sentence, most of it at the maximum security United States Disciplinary Barracks at Fort Leavenworth, Kansas, before being released and his rank restored on March 14, 2009, after a court of appeals vacated all findings of the trial court.
Prosecuting marital rape ‹ radical feminist rules
Sgt. Foster¹s prison ordeal began when a military jury at Camp Pendleton, California, convicted him of spousal rape and related charges on December 3, 1999. A general court-martial composed of officer members convicted Sgt. Foster, contrary to his pleas, of rape, two specifications of aggravated assault, and wrongfully communicating a threat in violation of Articles 120, 128 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928, and 934. He was then sentenced to confinement for seventeen years, forfeiture of all pay and allowances, reduction in rank to private (pay grade E-1), and a dishonorable discharge. The convening authority (CA), Commanding General, 1st Force Service Support Group, Marine Forces Pacific, Camp Pendleton, California, approved the sentence as adjudged. And there it lay for over nine years.
What was the evidence for such a draconian sentence?
The following observations are based on the findings of the court of appeals.
Heather and Brian Foster were married in 1993. In 1998 Sgt. Foster hired an attorney and filed for divorce in California and was given custody of their children. Heather then kidnapped the children and fled to Colorado. Following completion of requisite residency requirements she then filed for divorce against Brian in Colorado despite the pendency of the divorce case in California. The California judge issued a kidnapping warrant for Heather Foster. She then claimed she fled to Colorado to escape her husband's abuse. Because of her unproven and unsubstantiated claim of domestic violence the warrant was never enforced. Over the course of several months the estranged couple engaged in civil discovery and custody-related settlement discussions in California and Colorado. The primary issues pending in both jurisdictions related to the conditions by which Brian and Heather would share legal and physical custody of their two minor children. The civil litigation between the parties was ultimately consolidated under the Uniform Child Custody Jurisdiction Act with a judge from each state joining in pretrial settlement efforts. Indeed, following mediation of the matter, the parties agreed to a provisional agreement on custody in which Heather consented to Brian¹s joint legal and partial physical custody of their two children. The record is opaque as to the reasons for the collapse of this agreement, aside from references to lapses of communication between the two civil attorneys. Almost certainly this breakdown was a deliberate manipulation of the situation by Heather¹s radical feminist (redfem) attorney. It is no surprise then that Heather's attorney in Colorado reported the alleged misconduct to prosecutorial officials at Camp Pendleton, which led to the charges against him.
Inventing a spousal rape charge
Rape charge based primarily on redfem attorney¹s report
The key witness against Sgt. Foster was his spouse and alleged ³victim,² Heather Foster. Based largely on the report of Heather¹s Colorado attorney, prosecutors alleged myriad instances of spousal abuse and one incident of rape over the course of the marriage. The record shows that Sgt. Foster was convicted of rape solely upon the testimony of his estranged wife, nearly five years after the alleged incident occurred, and corroborated only by the victim's own statements to her friend nearly two years after the alleged incident. In the time between the alleged act and her sworn testimony, Heather Foster, by her own admission, had voluntarily participated in several instances of intimate sexual contact with Brian, including the willing production of a sexually-explicit video.
Further, no forensically related evidence was introduced at trial and no official report to any authority was made after the alleged rape took place. Indeed, the alleged rape was only ³reported² to Marine Corps authorities by the alleged victim's divorce attorney in the midst of a complicated and contentious custody battle with Sgt. Foster when the couple¹s settlement agreement broke down. Without any official report or forensic evidence of the alleged rape the prosecution called on two of Heather Foster¹s drinking buddies for supporting testimony.
Drinking buddy one Mrs. Kolstee testified that she was one of the Fosters' neighbors during the period when they lived in Hawaii and that she and Heather shared baby sitting duty for each other, shopped, and otherwise socialized together. Mrs. Kolstee testified that they became ³very² close during their time in Hawaii. Despite their close proximity and regular contact Mrs. Kolstee testified that Heather never told her about any instances of abuse at the hands of her husband while they were stationed in Hawaii. Mrs. Kolstee did offer some corroboration as to the charge of aggravated assault with a rifle, asserting that she saw what she believed was the end of a rifle barrel through the slot in the door at the Foster residence. Unfortunately, Mrs. Kolstee identified the ³weapon² as a pistol in her statement to the Naval Criminal Investigative Service before the trial. Her credibility was also hindered by her discussion of the case with the alleged ³victim² the evening before testifying at the UCMJ Article 32 Investigation. As a result the appeals court found that this witness' testimony was extremely general, at times confusing, and contained factually unsupported opinion. More importantly, throughout her testimony no reference was made to any knowledge of the alleged rape. Obviously Sgt. Foster¹s defense attorneys were incompetent, which is confirmed in the following episodes.
Drinking buddy two
Ms. Kossen on the other hand, testified that Heather Foster had reported the alleged ³rape² to her approximately two years after it supposedly occurred. This rather significant delay seriously undermined the materiality, if not the credibility, of the victim's statement to her friend and that friend's testimony. Moreover, the testimony was admitted at trial as a prior consistent statement per Military Rule of Evidence 801, Manual for Courts-Martial, United States (1998 ed.), not as an excited utterance, or other statement contemporaneous with the alleged rape. Additionally, Ms. Kossen offered testimony regarding her frequenting night clubs and drinking with Heather, and testimony pertaining to yet another allegation of aggravated assault with a weapon in California. However, she told investigators this was an incident that took place in Hawaii. In summary, the evidence as to his culpability for rape was anemic at best.
What the Navy-Marine Corps Court of Criminal Appeals found
The court of appeals found that within the four corners of this case:
Heather Foster made no report to medical or law enforcement authorities of the rape,
She engaged in long-standing intimate contact with her ³rapist² for years following the incident, including a home video in which she plays a starring role. Prosecutors presented no forensic or contemporaneous testimonial evidence that corroborated Heather¹s rape allegations. As a result the appeals court concluded that the prosecution attempted to bootstrap a rape conviction atop several instances of alleged assault conduct for which there was also little substantiation. In short, the Government's evidence of rape in this case, aside from Heather's testimony, consisted of statements by her to her friends and her mother. None of these statements were made proximal to the alleged rape.
The appeals court was also significantly disturbed by the fact that the allegations of rape were made in the midst of a hotly-contested divorce and custody battle, after failed attempts at settlement, under the terms of which the ³victim² was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist
Considered in the light most favorable to the Government, a reasonable member of the trial court could choose to believe the ³victim,² and to disbelieve evidence inconsistent with guilt. However, under the facts presented, the appeals court was unable to conclude that Sgt. Foster is guilty of rape beyond a reasonable doubt. To the contrary, the court found that his conviction for rape was factually insufficient, and was obtained as the result of other errors, discussed below. Therefore, the rape conviction was not allowed to stand.
Admission of improper expert testimony ‹ otherwise known as redfem ideology and dogma
The appeals court began by reviewing the manner in which expert testimony was admitted during this litigation with the proposition that ³the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.²They also considered the plenary understanding in military law that expert testimony is not permitted to replace the decision-making process of the fact finder or, more specifically, to advance the expert witness' opinion as to the ³believability or credibility of victims or other witnesses² in a case dealing with sexual assault The appeals court restated that ³expert testimony is admissible if it is relevant..., if its probative value outweighs its prejudicial value..., and if the testimony will assist the trier of fact...² In determining if a military judge has properly admitted expert testimony, they then tested his decision for an abuse of discretion.
Testimony of pediatrician Dr. Mary Dully
The trial judge permitted the prosecution to call Dr. Mary Dully, a pediatrician, who testified as to the general subject area of domestic violence as dictated by her ideology. One might reasonably ask how the hell a pediatrician is qualified as an expert witness on adult rape? It should be noted that the universe of Dr. Mary Dully's experience is defined by her work in the Camp Pendleton emergency room and her service with the San Diego Police Academy's Primary Aggressor Course, where she taught officers how to identify the person who ³may have exerted power and control and been the winner in a physical altercation and helping officers on scene who is likingly [sic] the primary aggressor and who is actually the looser [sic] in the physical altercation.² So the bias and dogma of her training and background are obvious from the outset. After reciting her professional qualifications, Dr. Dully went on to outline her vision of what domestic violence was based upon her ³training and experience.² What followed was an extensive colloquy with trial counsel that involved this pediatrician's personal view of how domestic violence presents itself, and how both the aggressor and victim are likely to act according to the DV industry playbook. This discussion included offering the members of the trial court an ideological basis for why a victim might take certain action, such as remaining with her abuser over a long period of time, all in line with redfem DV dogma. Notably, defense counsel did not voir dire the witness at trial. Further, a review of the record reveals that the trial counsel's questions and Dr. Dully's responses substantially mirrored the factual theory of the case presented by the Government. Yet the record is clear that the Dr. Dully reviewed no materials specific to this case and certainly did not conduct an examination of either Sgt. Foster or his estranged wife, Heather, in preparation for trial. In short, dogma and ideology were introduced unchallenged as evidence in this criminal case.This outline of what constitutes abuse by this expert witness, and the close factual nexus between the call of those questions and the Government's position at trial, brings Dr. Dully¹s testimony very close to the nature of profile evidence of an offender, which is forbidden under military law. While the appeals court did not hold that Dr. Dully¹s ³evidence² strayed over the permissible line, having drawn so very close to it, the Government's admission of Dr. Rusher's testimony immediately thereafter, exacerbates the dangerous nature of Dr. Mary Dully's unrestricted testimony.
Testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy
Regarding the testimony of Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy, the court of appeals held that the military judge abdicated his role as impartial gatekeeper, and erroneously admitted testimony which compromised the credibility of this trial in its entirety. [emphasis added] While the record indicates that Dr. Rusher was a physician, board certified in neurology and psychology, her testimony was that she was, in fact, a psychiatrist, who conducted a single interview with the alleged victim in this matter. Therefore, the military judge erred in permitting the members to consider Dr. Rusher's testimony. In preparing their case for litigation, the prosecution arranged for Heather Foster to meet once with Dr. Rusher for an evaluation on November 10, 1999. The examination took two hours. Dr. Rusher testified that she took a history from Mrs. Foster, including a review of past substance abuse, history of abuse, social history, medical history, conducted a mental status evaluation, and developed an assessment. Importantly, Dr. Rusher does not simply explain to the members of the court what Mrs. Foster claims. In sharp contrast to the fundamentals of admissible expert testimony, Dr. Rusher delivered the factual assertions of the victim as a medical diagnosis.
The pertinent exchange with trial counsel follows:
Q: What did you observe during the interview?
A: I observed that Mrs. Foster did indeed have the symptoms of post traumatic stress disorder.
Q: And what are those symptoms that you observed?
A: The symptoms that I observed in her was [sic] that she did experience a traumatic - actually, multiple traumatic incidents where her life was threatened and the life [sic] of her children were threatened; and she re-experienced this trauma through nightmares.
She would have nightmares of her husband placing a gun to her head for several hours. She had intrusive memories of the abuse where her life was threatened and the lives of her children were threatened. She had graphic memories where she was told she would be chopped up, and her children would be chopped up in small little pieces; and they would have a slow painful death...She also had avoidance symptoms where she had difficulty going places that reminded her of the abuse. For example, it was very difficult for her to come to California, because in California was one of the places where the abuse occurred. She had a numbing of responsiveness where her effect at times or her expression were somewhat flat and emotionless, which again is more -- one of the very common symptoms of post traumatic stress disorder order [sic]. As set forth above, Dr. Rusher went well-beyond a medical analysis of the facts before her. In short, she adopted the facts as advanced by the alleged ³victim² and cloaked them in a physician's white coat, presenting them as scientific findings to the members of the trial court. It is well established that ³...to put Œan impressively qualified expert's stamp of truthfulness on a witness' story goes too far.' An expert should not be allowed to Œgo so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.'² However, this is a standard tactic of ³expert² witnesses introduced by radical feminists in domestic violence trials for the reason, as here, that it frequently works to condemn a male defendant. In reviewing Sgt. Foster¹s case, the court noted that the military judge took no action to correct the tone and content of Dr. Rusher¹s testimony during the tenure of her recitation to the court martial officers. The Court of Appeals for the Armed Forces (C.A.A.F.) has stated that: ³...it is [dangerous] for judges to receive uncritically just anything an expert wants to say. The evaluation of expert testimony does not end with a recitation of academic degrees. Everything the expert says has to be relevant, reliable, and helpful to the fact finder. A rational and demonstrable basis is the sine qua non of expert opinion.² United States v. King, 35 M.J. 337, 342 (C.M.A. 1992). As a result to appeals court concluded the testimony of Dr. Rusher was plain and obvious error. Though the military judge failed to recognize this and take action to prevent the improper testimony, he ultimately recognized the threat it posed to the neutrality of his members, albeit not until the expert witness had concluded her testimony. At the close of her testimony, the military judge, without defense prompting, provided the members a curative instruction. The law is clear that such a curative instruction is the ³preferred² remedy for correcting error when the court members have heard inadmissible evidence, as long as the instruction is adequate to avoid prejudice to the accused. Generally courts assume that members are able to comport themselves with a curative instruction in the absence of evidence suggesting otherwise and apparently in Sgt. Foster¹s case the members made an honest effort to comport themselves with the trial judge's instruction. However, the appeals court decided that in view of the testimony in conjunction with the entire trial, they were left convinced that the military judge was unable to ³unring the bell.² They further concluded that the error did ³substantially sway² the members in their decision to convict Sgt. Foster, and to impose a punitive discharge and substantial confinement in his case. Thus, this error materially prejudiced Sgt. Foster¹s substantial rights.
Now allow an incompetent witness who wasn¹t even born when the ³rape² occurred
Adding injury to insult the trial judge permitted the members to hear the testimony of an incompetent witness in the form of Jacob Foster, the six-year-old son of the ³victim.² The child¹s testimony was permitted without the military judge conducting an Article 39(a), UCMJ, session so as to make an assessment of the child's competence and probity. After the child, who was coached and alienated from Sgt. Foster by his mother, began testifying the trial court found that the boy had not been born at the time of one of the charges about which he was testifying. Further, he was approximately two years old at the time of the most recent alleged act. When that was discovered the military judge excused the members of the trial court. After consultation with counsel, the judge ordered the testimony to be stricken and instructed the members to disregard it. One can only wonder why defense counsel didn¹t demand a mistrial at this point? But when it is noted that the Judge Advocate General (JAG) defense attorney for Sgt. Foster was Lt. Kathleen Kadlec, USN, the picture of the ³incompetent defense² becomes a bit clearer. Were this the only error, the appeal judges felt they could rely on the members of the trial court to assiduously abide by their instructions to mitigate the error. But this testimony amounted to at least the third retelling of the victim's story, including one retelling by a physician as a matter of medical fact, and another who recited dogma as proven in every case of abuse.
Cumulative error
In view of all these errors the appeals court found that the accumulation of errors described above required them to evaluate the fairness of the appellant's trial using the cumulative error doctrine. The scope of their evaluation of the errors in the case was made: ³,,,against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the [trial] court dealt with the errors as they arose (including the efficacy ‹ or lack of efficacy ‹ of any remedial efforts); and the strength of the government's case.² Considering the improper testimony of Dr. Rusher, combined with the dogma of Dr. Dully, and the stricken testimony of the boy, the appeals court concluded that these errors called into question the basic fairness of Sgt. Foster¹s trial. They also questioned the efficacy of the trial courts curative instructions in that the military judge acted late with regard to both Dr. Rusher's improper testimony and the child's coached recitation. The appeals court also noted that the Government¹s case was not strong, being based almost entirely on the statements of the ³victim² and some testimony that Sgt. Foster was an abusive husband. They stated that but for the cloaking of the victim's statements in the physician's lab coat of Dr. Rusher they were unable to discern whether the members of the trial court would have convicted Sgt. Foster on any charge. They characterized the entire case as muddled and hearsay based. As a result they vacated all the findings of the trial court.
Unreasonable delay for review The tremendous time lapse in having Sgt. Foster¹s conviction reviewed ‹ about nine years ‹ caught the attention of the appellate court and outside experts in military law. ³I¹ve never bumped into something like this in 30 years of practicing law,² said attorney Kevin Barry McDermott, who represented Foster for eight months between late 2000 and early 2001. ³From all the feedback I¹ve gotten, no one can remember a case that took this long to get to a preliminary review.² Sgt. Foster¹s case came at a bad time, said Michelle Lindo McCluer, executive director of the National Institute of Military Justice in Washington, D.C. The Navy and Marine Corps¹ appeals system faced such a backlog of cases, she said, that the U.S. Court of Appeals for the Armed Forces eventually told those services to add staffing. ³It is a black eye for the military justice system,² said Tom Umberg, an Army Reserve colonel called to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba. ³This injustice should have been resolved in 18 months,² Umberg said. ³This was not the world¹s most complicated case.²
Regarding prejudice the appeal judges found that this case is one in which the post-trial delay is so extreme as to ³...give rise to a strong presumption of evidentiary prejudice.² They then concluded that Sgt. Foster was clearly prejudiced by the post-trial delay after his general court-martial, and considered that as weighing heavily in his favor. The primary factor in their evaluation was the determination that the Government failed to prove Sgt. Foster guilty of rape by legal and competent evidence beyond a reasonable doubt. The appeals court also concluded that had just one of the seven previous lead judges in this matter conducted a thorough assessment of the record of trial in a timely fashion the extensive errors embracing this case would have been discovered and Sgt. Foster would have faced, at worst, the prospect of a new trial on all but the rape charge. In short, nearly ten years of delay makes a difference in a case where the alleged instances of misconduct took place years before the actual trial. As a result of all the factors cited they determined that Sergeant Foster's conviction for rape was improper as the Government did not and could not establish his guilt. Therefore, he served nearly ten years of confinement in large measure for an alleged offense of which he should not have been convicted and that likely never happened.The appeals court then considered the egregious delay in the reviews of Sgt. Foster¹s case and concluded that there was a due process violation resulting from the post-trial delay in processing this case. They found the delay ³...is so egregious that tolerating it would adversely effect the public's perception of the fairness and integrity of the military justice system.² Further, they concluded that the error created by the unreasonable delay is not harmless beyond a reasonable doubt. Even if it was harmless, the court was also aware of their authority to grant relief under Article 66, UCMJ, and stated that in this case, irrespective of the due process violation, they would have chosen to exercise that authority because of the unique circumstances. As to an appropriate remedy the judges considered dismissing all charges and specifications with prejudice. However, they found that Sgt. Foster would be able to defend himself against any remaining charges. So as to compensate Sgt. Foster for the actual prejudice discerned from ten years of confinement served in large measure for an offense which they dismissed, they limited Sgt. Foster¹s further exposure to any adjudged sentence to nothing more than a punitive discharge. Should the rehearing result in conviction, court of appeals believed that limiting Sgt. Foster¹s possible sentence will serve as adequate relief for the deprivation of his right to speedy post-trial review. The Equal Justice Foundation most emphatically disagrees. The injustice of nearly ten years confinement at Fort Leavenworth on trumped up, vindictive, self-serving false allegations should free this Marine without question or reservation.
Findings
The charge of rape was dismissed with prejudice and cannot be retried. The remaining findings and the sentence were set aside. The record was returned to the Judge Advocate General for remand to an appropriate Convening Authority with a rehearing authorized. Sgt. Foster was ordered to be released from confinement forthwith and that was done on March 14, 2009. He is now back in the Marine Corps with his rank restored. He is still trying to collect back pay for nearly 10 years of confinement. This is by no means the only case the Equal Justice Foundation has seen where members of America's Armed Forces have been falsely convicted based on perjury, false allegations, radical feminist (redfem) dogma and ideology, incompetent defense counsel, and biased and dysfunctional courts. But Sgt. Brian Foster's case well illustrates the need for the Foundation and why your support is needed.
Charles E. Corry, Ph.D., F.G.S.A.
Former Marine and Father
of a disabled Marine veteran
Friday, April 10, 2009
K.C.E.A.J.'s Policy
K.C.E.A.J.’s policy is to investigate issues and educate the public on the truth. Our investigation have led us on many legal issues dealing with the courts, the cases, or the issues we are investigating. Our personal opinions may or may not upset you, but we attempt to educate the public on the real issues, which are usually hidden behind the truth. We hope you get more involved in your community and our legal system to understand why this is occurring in our halls of justice. If these stories shock you, maybe you can check this out yourself in your own courtrooms, and let us know what you have discovered, so we can educate the rest of the public who may be unaware of what is currently transpiring within your courthouse. Our goal is to inspire you.
K.C.E.A.J. does not solicit any funds from any special interest groups or political interest groups, but if you would like to donate contributions to assist us in our goal to assist educating the public for our publications please donate to David Martin Price, President of I.F.F.O.C., at the referenced address. K.C.E.A.J. 's blog is not for a response or any other point of view. it is only for educational purposes only.
Respectfully submitted,
Mr. David Martin Price
President of K.C.E.A.J. Blog
3121 SE Fremont St.
Topeka, Kansas 66605
(785) 267-5132
E-mail: iffocpresident@cox.net
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K.C.E.A.J. does not solicit any funds from any special interest groups or political interest groups, but if you would like to donate contributions to assist us in our goal to assist educating the public for our publications please donate to David Martin Price, President of I.F.F.O.C., at the referenced address. K.C.E.A.J. 's blog is not for a response or any other point of view. it is only for educational purposes only.
Respectfully submitted,
Mr. David Martin Price
President of K.C.E.A.J. Blog
3121 SE Fremont St.
Topeka, Kansas 66605
(785) 267-5132
E-mail: iffocpresident@cox.net
Blog: http://ithappenedinkansas-davidmartinprice.blogspot.com
Thursday, April 9, 2009
COMMON LAW 1
New information about the US Constitution has come to light since this paper was written. That information may effect the value of some of the following information. The Constitution was never properly ratified; and, is , therefore, not a proper Common Law constitution. It appears that it is being used as a Roman Law 'operating orders' or 'ship's orders'; as, all bodies politic and corporate are make-believe ships in the Roman system.
The UNITED STATES is a corporation, and Congress is a 'body politic' - both being Roman style incorporations (make-believe ships) under the original creation/ownership of the Pontifex Maximus (Pope) of the (still existent) Holy Roman Empire. All Roman Law documents (so-called constitutions; but, in fact, are 'ship's orders' of make-believe ships), when used as the guide to operate a country under Roman Law, always contain a "notwithstanding" clause (In the US Constitution, it is the 'general welfare' clause). This allows the "captain of the ship", the President, or a designated officer (judge or Cabinet member) leave to disregard any provision of such a constitution at his discretion. 'The CAPTAIN may deviate from ANY 'rules or regulations' when he DEEMS it necessary for the GOOD of the ship.' That is a basic maxim of the Law of the Sea, and totally within the 'common sense' realm of operating a ship relative to safety and profitability; however, it is devastating to the unalienable rights of an individual free will man or woman living upon the land.
Also, it has recently come to light that the court systems operate their admiralty type law within the confines of a 'contract' in all of the British, and former British Empire. The clerk of the court, the prosecuting attorneys, and the judges proffer the contract, and the defendant blindly and ignorantly accepts the offered contract by acquiescence and obedience to court orders and sentences. A defendant convicted and sentenced, even by a jury (in an admiralty/equity court) only need to inform the judge that he/she refuses the offered contract and/or sentence of the judge. As a contracting party, the defendant does not have to accept a contract by imposition against his/her free will. As has happened, when such a refusal of the contract is made, the judge will use legal trickery and bluster to attempt to get the defendant to accept another contract. The defendant need only to continue with: "I do not accept your sentence." Or, where applicable: "I do not accept your offer of contract." The latter statement may be placed upon served court documents and returned (signed and dated) to the clerk of the court.
INTRODUCTION
We have a problem and we are here to analyze that problem. Why do the courts refuse to admit certain arguments and cites of the United States Constitution? And further, find some in contempt of court if they persist in doing so? Why is there so little justice in our courts today? Our problem is, we have been fighting the wrong thing--playing the wrong ball game.
We have found that we are not in Common Law under the Constitution -- in fact, we're not in Equity under the Constitution -- we are in Maritime Law (the Law of International Commerce - Law Merchant, Admiralty Law, Military Law, and Prison or Warden Law).
Just what is this Law of Admiralty? Admiralty Law encompasses all controversies arising out of acts done upon or relating to the sea, and questions of prize. Prize is that law dealing with war, and the spoils of war -- such as capture of ships, goods, materials, property -- both real and personal, etc.
Another way to understand admiralty law - it is the command enforcement necessary to maintain the good order and discipline on a ship, especially as a ship was operated in the mid-1700's. As the availability of crewmembers was a finite problem in the middle of the ocean, the enforcement of ship law had more to do with getting wayward crewmembers back into a state of obedience and usefulness, rather than as the imposition of lawful punishments - the latter being the purpose of law enforcement on the land.
Maritime Law is that system of law that particularly relates to commerce and navigation. Because of this fact, as you will see, you don't have to be on a ship in the middle of the sea to be under Admiralty Jurisdiction. This jurisdiction can attach merely because the subject matter falls within the scope of Maritime Law -- and, bills, notes, cheques and credits are within the scope of Maritime Law.
Admiralty Law grew and developed from the harsh realities and expedient measures required to survive at sea. It has very extensive jurisdiction of maritime cases, both civil and criminal. Because of its genesis, it contains a harsh set of rules and procedures where there is no right to trial by jury, no right to privacy, etc. In other words, there are no rights under this jurisdiction -- only privileges granted by the Captain of the maritime voyage.
For instance: in this jurisdiction there is no such thing as a right not to be compelled to testify against oneself in a criminal case -- the Captain can; however, if he wishes, grant you the privilege against self-incrimination. There's no such thing as a right to use your property on the public highways -- but the Captain may grant you the privilege to do so, if he so chooses. There is no such thing as a right to operate your own business -- only a privilege allowed as long as you perform according to the captain's regulations.
Having identified the symptoms of the problem, we must diagnose the cause to find a solution. We have been fighting the effects too long while the disease rages unabated. Since we have identified the cause, and understand its nature and characteristics, we [hopefully] can build a winning case.
In marshaling our information and facts it is necessary to go back in time. Let us examine the evidence and facts: Back at the time, just before the revolution -- when our Colonies were festering and threatening revolt from the King -- when we had the Common Law of the Colonies. The King's men came over to collect their taxes. They didn't use the Common Law on us, they applied Admiralty Law on us -- arrested people, held Star Chamber proceedings and denied us our common rights as Englishmen.
This, more than any one thing, (sure, taxation without representation was part of it) -- but it was denial of our Common Law rights by putting us under Admiralty Law wherein the King was the Chancellor. His agents deprived us of jury trials, put us on ships, sent us down to ports in the British West Indies -- where many died of fever in the holds of ships -- and very few returned. This was one of the main reasons for the revolution in 1776.
What is the Common Law? Historically, the Common Law came from the Anglo-Saxon Common Law in England. It existed, and controlled and ruled the land of England previous to the reign of William the Conqueror [1066], when the Normans conquered Anglo-Saxon England. It is/was the Golden Rule (Rule of Common Justice) that in the negative form reads: "Do not unto others as you would not have others do unto you." The positive Golden Rule deals with Social Justice.
Where did this law come from -- this Anglo-Saxon Common Law? Did it come from Christianity's introduction to England? Apparently not.. It is on record in the Vatican --- The early Christian missionaries reported that the people of Northern Germany "already have the law". It is suspect that early Hebrew tin traders taught these people the law many years before Christ. The Law or Hebrew word for Law, the TORH (pronounced Tor-ah) was the basis of Hebrew religion and society.
So what has happened? The English people had this simple and pure Common Law of rights and property rights. But there also existed along side of it, even in those days, the law of commerce, which is the Maritime Law. The earliest recorded knowledge we have of Maritime Law is in the Isle of Rhodes, 900 B. C. -- then there's the Laws of Oleron, Laws of the Hanseatic League, Maritime Law, which was part and parcel of their civil law. This is the law of commerce, whereas the Common Law was the law that had to do with the land, and with the people of the land.
William the Conqueror subjugated all the Saxons to his rule except London Town. The merchants controlled the city and their walls held off the invaders. The merchants were able to provision the city by ships and William's soldiers were not able to prevail. Finally, acknowledging that he could not take the City by force, he resorted to compromise. The merchants demanded "the "Lex Mercantoria" [the Maritime Law]. This was granted and remains to this day. The inner city of London has its special law where the Merchant's Law is the law of the City of London.
Protection of their shipping industry was one of the primary reasons for the resistance by the merchants of London. The Saxon Common Law had no provision for fictitious entities called "persons" - men under contract to be limited liability (natural persons), as military personnel; and artificial persons (companies). The elite desired to maintain absolute control and subjugation of the People within London. The Anglo-Saxon Common Law recognized only full liability men with volitional and moral minds. Common Law deals with the "mind" of man. Roman Law is based upon good order and discipline on a ship. The Roman Civil Law was a derivative of the Maritime Law and is the basis of Civil Law in most European countries. Identifying features of Roman Common Law are the usage of precedent and judgement by magistrate(s) in courts of Summary jurisdiction.
At Runnymede, in 1215, the Barons of England forced King John to sign the Magna Carta, one of three primary documents establishing the fundamental rights of the English people to this day. However, the 1215 Magna Carta was promptly voided by the Pope of Rome. The Magna Carta was instituted voluntarily by King Henry III in 1225, making it the lawful Magna Carta of England. The other documents are the Petition of Rights[1628] and the Bill of Rights[1689]}.
The primary objective and content of the Magna Carta was the prohibition of the use of Summary jurisdiction [the Roman or Admiralty Law] as a means of unauthorized taxation and seizure of property without due process of Law or just compensation. The colonists were, on the whole, very well schooled in the Common Law and were quite aware of the wrongs that King and Parliament were committing against them. This eventually forced them to rebel.
The Common Law that we had in our land is parallel to another ancient law. You will find that when our Founding Fathers set up the declaratory trust, known to us as the Declaration of "Independence", Jefferson listed 18 grievances and in each one of these grievances he showed how we were being denied our rights as free-born Englishmen. So, he made an appeal to the nations of the world that the acts being committed against the colonists were acts committed against the Laws of Nations, and it (the Declaration of Independence) became an ordinance, a public trust, within the Law of Nations -- and those Founding Fathers knew that they would have to fight to win the independence that they had so declared.
Editors note: It now appears that Jefferson used George Mason's 'Virginia Declaration of Rights' (June 12, 1776) as the basis for his Declaration of Independence (July 4, 1776); but Jefferson deleted the very specific 'property rights' included by George Mason. Read here.
After the English surrendered at Yorktown, the Articles of Confederation period followed. Then our Founding Fathers implemented the Constitution into this Public Trust, which was the mechanism to provide for us our hopes and aspirations. In the Constitution you will find principles; but, not necessarily those found in the Declaration of Independence.
Editor's note: To learn the reality of the grand deception by the Founding Fathers, read here.
Some of the writers of the Constitution thought it was a little too restrictive. It was generally conceded, for instance, that the people had the right to bear arms, but they also knew that if we ever were placed or allowed ourselves to be brought under Maritime Admiralty Law concerning our persons and property, we would have dire need of a guarantee for our rights -- thus, the ten amendments were added to the Constitution, and that became the substantive part of the Constitution. Article III, Section 2, of the Constitution defines the Maritime Admiralty jurisdiction.
How have we been tricked out of our Common Law rights; and, into the Admiralty courts? How has equity as well as Admiralty been corrupted? How has the Federal Government made it almost impossible for us to receive our constitutional rights -- our substantive rights in the Constitution?
Now, to understand the Constitution -- we must examine the Declaration of Independence and those 56 men who signed it, and pledged their lives, liberty, family, property, and their honor to this sacred trust. All of these men were very knowledgeable and learned in the Common Law -- they knew the law because they studied the law, they may not have had a high school education (many of them). But they could read, and they read and studied law. They were men of the age or reason and they knew and they understood. They knew exactly what the king was doing. They knew the law.
Knowledge is a very important thing. And, as James Madison wrote years ago: "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives." Education should never be terminal! The First Amendment to the U S Constitution cites "Freedom of Religion" that in actual fact is "Freedom of Education" since the church controlled education, at the time of its writing.
Now, there is a chronological sequence of events that placed us where we are today. We can almost assure you that you will reject, or want to reject, parts of what you are about to see and hear. There is a theory known as the Theory of Cognitive Dissonance (TCD) that holds that the mind involuntarily rejects information not in line with previous thoughts and/or actions. Brace yourself, the following message may be entirely different from anything you heretofore believed to be true. If you are unaware, you are unaware of being unaware!
END PART ONE
Proceed To PART TWO THREE FOUR FIVE SIX SEVEN EIGHT NINE TEN ELEVEN TWELVE THIRTEEN
GoTo: MY OTHER SITE ABOUT DETAX CANADA (Home Page)
GoTo: REPUBLIC vs. DEMOCRACY
BY: ELDON WARMAN
Calgary, Alberta, Canada
The UNITED STATES is a corporation, and Congress is a 'body politic' - both being Roman style incorporations (make-believe ships) under the original creation/ownership of the Pontifex Maximus (Pope) of the (still existent) Holy Roman Empire. All Roman Law documents (so-called constitutions; but, in fact, are 'ship's orders' of make-believe ships), when used as the guide to operate a country under Roman Law, always contain a "notwithstanding" clause (In the US Constitution, it is the 'general welfare' clause). This allows the "captain of the ship", the President, or a designated officer (judge or Cabinet member) leave to disregard any provision of such a constitution at his discretion. 'The CAPTAIN may deviate from ANY 'rules or regulations' when he DEEMS it necessary for the GOOD of the ship.' That is a basic maxim of the Law of the Sea, and totally within the 'common sense' realm of operating a ship relative to safety and profitability; however, it is devastating to the unalienable rights of an individual free will man or woman living upon the land.
Also, it has recently come to light that the court systems operate their admiralty type law within the confines of a 'contract' in all of the British, and former British Empire. The clerk of the court, the prosecuting attorneys, and the judges proffer the contract, and the defendant blindly and ignorantly accepts the offered contract by acquiescence and obedience to court orders and sentences. A defendant convicted and sentenced, even by a jury (in an admiralty/equity court) only need to inform the judge that he/she refuses the offered contract and/or sentence of the judge. As a contracting party, the defendant does not have to accept a contract by imposition against his/her free will. As has happened, when such a refusal of the contract is made, the judge will use legal trickery and bluster to attempt to get the defendant to accept another contract. The defendant need only to continue with: "I do not accept your sentence." Or, where applicable: "I do not accept your offer of contract." The latter statement may be placed upon served court documents and returned (signed and dated) to the clerk of the court.
INTRODUCTION
We have a problem and we are here to analyze that problem. Why do the courts refuse to admit certain arguments and cites of the United States Constitution? And further, find some in contempt of court if they persist in doing so? Why is there so little justice in our courts today? Our problem is, we have been fighting the wrong thing--playing the wrong ball game.
We have found that we are not in Common Law under the Constitution -- in fact, we're not in Equity under the Constitution -- we are in Maritime Law (the Law of International Commerce - Law Merchant, Admiralty Law, Military Law, and Prison or Warden Law).
Just what is this Law of Admiralty? Admiralty Law encompasses all controversies arising out of acts done upon or relating to the sea, and questions of prize. Prize is that law dealing with war, and the spoils of war -- such as capture of ships, goods, materials, property -- both real and personal, etc.
Another way to understand admiralty law - it is the command enforcement necessary to maintain the good order and discipline on a ship, especially as a ship was operated in the mid-1700's. As the availability of crewmembers was a finite problem in the middle of the ocean, the enforcement of ship law had more to do with getting wayward crewmembers back into a state of obedience and usefulness, rather than as the imposition of lawful punishments - the latter being the purpose of law enforcement on the land.
Maritime Law is that system of law that particularly relates to commerce and navigation. Because of this fact, as you will see, you don't have to be on a ship in the middle of the sea to be under Admiralty Jurisdiction. This jurisdiction can attach merely because the subject matter falls within the scope of Maritime Law -- and, bills, notes, cheques and credits are within the scope of Maritime Law.
Admiralty Law grew and developed from the harsh realities and expedient measures required to survive at sea. It has very extensive jurisdiction of maritime cases, both civil and criminal. Because of its genesis, it contains a harsh set of rules and procedures where there is no right to trial by jury, no right to privacy, etc. In other words, there are no rights under this jurisdiction -- only privileges granted by the Captain of the maritime voyage.
For instance: in this jurisdiction there is no such thing as a right not to be compelled to testify against oneself in a criminal case -- the Captain can; however, if he wishes, grant you the privilege against self-incrimination. There's no such thing as a right to use your property on the public highways -- but the Captain may grant you the privilege to do so, if he so chooses. There is no such thing as a right to operate your own business -- only a privilege allowed as long as you perform according to the captain's regulations.
Having identified the symptoms of the problem, we must diagnose the cause to find a solution. We have been fighting the effects too long while the disease rages unabated. Since we have identified the cause, and understand its nature and characteristics, we [hopefully] can build a winning case.
In marshaling our information and facts it is necessary to go back in time. Let us examine the evidence and facts: Back at the time, just before the revolution -- when our Colonies were festering and threatening revolt from the King -- when we had the Common Law of the Colonies. The King's men came over to collect their taxes. They didn't use the Common Law on us, they applied Admiralty Law on us -- arrested people, held Star Chamber proceedings and denied us our common rights as Englishmen.
This, more than any one thing, (sure, taxation without representation was part of it) -- but it was denial of our Common Law rights by putting us under Admiralty Law wherein the King was the Chancellor. His agents deprived us of jury trials, put us on ships, sent us down to ports in the British West Indies -- where many died of fever in the holds of ships -- and very few returned. This was one of the main reasons for the revolution in 1776.
What is the Common Law? Historically, the Common Law came from the Anglo-Saxon Common Law in England. It existed, and controlled and ruled the land of England previous to the reign of William the Conqueror [1066], when the Normans conquered Anglo-Saxon England. It is/was the Golden Rule (Rule of Common Justice) that in the negative form reads: "Do not unto others as you would not have others do unto you." The positive Golden Rule deals with Social Justice.
Where did this law come from -- this Anglo-Saxon Common Law? Did it come from Christianity's introduction to England? Apparently not.. It is on record in the Vatican --- The early Christian missionaries reported that the people of Northern Germany "already have the law". It is suspect that early Hebrew tin traders taught these people the law many years before Christ. The Law or Hebrew word for Law, the TORH (pronounced Tor-ah) was the basis of Hebrew religion and society.
So what has happened? The English people had this simple and pure Common Law of rights and property rights. But there also existed along side of it, even in those days, the law of commerce, which is the Maritime Law. The earliest recorded knowledge we have of Maritime Law is in the Isle of Rhodes, 900 B. C. -- then there's the Laws of Oleron, Laws of the Hanseatic League, Maritime Law, which was part and parcel of their civil law. This is the law of commerce, whereas the Common Law was the law that had to do with the land, and with the people of the land.
William the Conqueror subjugated all the Saxons to his rule except London Town. The merchants controlled the city and their walls held off the invaders. The merchants were able to provision the city by ships and William's soldiers were not able to prevail. Finally, acknowledging that he could not take the City by force, he resorted to compromise. The merchants demanded "the "Lex Mercantoria" [the Maritime Law]. This was granted and remains to this day. The inner city of London has its special law where the Merchant's Law is the law of the City of London.
Protection of their shipping industry was one of the primary reasons for the resistance by the merchants of London. The Saxon Common Law had no provision for fictitious entities called "persons" - men under contract to be limited liability (natural persons), as military personnel; and artificial persons (companies). The elite desired to maintain absolute control and subjugation of the People within London. The Anglo-Saxon Common Law recognized only full liability men with volitional and moral minds. Common Law deals with the "mind" of man. Roman Law is based upon good order and discipline on a ship. The Roman Civil Law was a derivative of the Maritime Law and is the basis of Civil Law in most European countries. Identifying features of Roman Common Law are the usage of precedent and judgement by magistrate(s) in courts of Summary jurisdiction.
At Runnymede, in 1215, the Barons of England forced King John to sign the Magna Carta, one of three primary documents establishing the fundamental rights of the English people to this day. However, the 1215 Magna Carta was promptly voided by the Pope of Rome. The Magna Carta was instituted voluntarily by King Henry III in 1225, making it the lawful Magna Carta of England. The other documents are the Petition of Rights[1628] and the Bill of Rights[1689]}.
The primary objective and content of the Magna Carta was the prohibition of the use of Summary jurisdiction [the Roman or Admiralty Law] as a means of unauthorized taxation and seizure of property without due process of Law or just compensation. The colonists were, on the whole, very well schooled in the Common Law and were quite aware of the wrongs that King and Parliament were committing against them. This eventually forced them to rebel.
The Common Law that we had in our land is parallel to another ancient law. You will find that when our Founding Fathers set up the declaratory trust, known to us as the Declaration of "Independence", Jefferson listed 18 grievances and in each one of these grievances he showed how we were being denied our rights as free-born Englishmen. So, he made an appeal to the nations of the world that the acts being committed against the colonists were acts committed against the Laws of Nations, and it (the Declaration of Independence) became an ordinance, a public trust, within the Law of Nations -- and those Founding Fathers knew that they would have to fight to win the independence that they had so declared.
Editors note: It now appears that Jefferson used George Mason's 'Virginia Declaration of Rights' (June 12, 1776) as the basis for his Declaration of Independence (July 4, 1776); but Jefferson deleted the very specific 'property rights' included by George Mason. Read here.
After the English surrendered at Yorktown, the Articles of Confederation period followed. Then our Founding Fathers implemented the Constitution into this Public Trust, which was the mechanism to provide for us our hopes and aspirations. In the Constitution you will find principles; but, not necessarily those found in the Declaration of Independence.
Editor's note: To learn the reality of the grand deception by the Founding Fathers, read here.
Some of the writers of the Constitution thought it was a little too restrictive. It was generally conceded, for instance, that the people had the right to bear arms, but they also knew that if we ever were placed or allowed ourselves to be brought under Maritime Admiralty Law concerning our persons and property, we would have dire need of a guarantee for our rights -- thus, the ten amendments were added to the Constitution, and that became the substantive part of the Constitution. Article III, Section 2, of the Constitution defines the Maritime Admiralty jurisdiction.
How have we been tricked out of our Common Law rights; and, into the Admiralty courts? How has equity as well as Admiralty been corrupted? How has the Federal Government made it almost impossible for us to receive our constitutional rights -- our substantive rights in the Constitution?
Now, to understand the Constitution -- we must examine the Declaration of Independence and those 56 men who signed it, and pledged their lives, liberty, family, property, and their honor to this sacred trust. All of these men were very knowledgeable and learned in the Common Law -- they knew the law because they studied the law, they may not have had a high school education (many of them). But they could read, and they read and studied law. They were men of the age or reason and they knew and they understood. They knew exactly what the king was doing. They knew the law.
Knowledge is a very important thing. And, as James Madison wrote years ago: "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives." Education should never be terminal! The First Amendment to the U S Constitution cites "Freedom of Religion" that in actual fact is "Freedom of Education" since the church controlled education, at the time of its writing.
Now, there is a chronological sequence of events that placed us where we are today. We can almost assure you that you will reject, or want to reject, parts of what you are about to see and hear. There is a theory known as the Theory of Cognitive Dissonance (TCD) that holds that the mind involuntarily rejects information not in line with previous thoughts and/or actions. Brace yourself, the following message may be entirely different from anything you heretofore believed to be true. If you are unaware, you are unaware of being unaware!
END PART ONE
Proceed To PART TWO THREE FOUR FIVE SIX SEVEN EIGHT NINE TEN ELEVEN TWELVE THIRTEEN
GoTo: MY OTHER SITE ABOUT DETAX CANADA (Home Page)
GoTo: REPUBLIC vs. DEMOCRACY
BY: ELDON WARMAN
Calgary, Alberta, Canada
Wednesday, April 8, 2009
Stevens conviction to be reversed
BBC News
21:35 GMT, Wednesday, 1 April 2009 22:35 UK
Alaska Senator Ted Stevens's conviction for corruption should be overturned, officials from the US justice department have requested. Mistakes made by prosecutors during his trial render the conviction invalid, the officials said. In October 2008, a jury found Mr Stevens, a Republican, guilty of lying about gifts and free home renovations he received from an oil company. Mr Stevens went on to lose his Senate re-election battle the following month. He was the longest-serving Republican senator, having first entered the chamber in 1968. 'Cloud removed' Prosecutors made a number of errors during the trial, officials said, the chief among which was the failure to make available notes of a crucial interview in which a witness made a statement that contradicted evidence he gave later under oath. The prosecutors who made the error have been removed from the case and placed under investigation. A judge will hear the justice department's request on Tuesday, and is expected to grant the motion to overturn Mr Stevens's conviction. "I always knew that there would be a day when the cloud that surrounded me would be removed," Mr Stevens said in a statement. "That day has finally come. It is unfortunate that an election was affected by proceedings now recognised as unfair." The BBC's Jon Donnison in Washington says the high profile case clearly led to Mr Stevens losing his seat and gave the Democrats an important addition to its ranks in the US Senate. But President Obama's new Attorney General Eric Holder is sending a message that Justice Department prosecutors must operate within the law, our correspondent adds.
21:35 GMT, Wednesday, 1 April 2009 22:35 UK
Alaska Senator Ted Stevens's conviction for corruption should be overturned, officials from the US justice department have requested. Mistakes made by prosecutors during his trial render the conviction invalid, the officials said. In October 2008, a jury found Mr Stevens, a Republican, guilty of lying about gifts and free home renovations he received from an oil company. Mr Stevens went on to lose his Senate re-election battle the following month. He was the longest-serving Republican senator, having first entered the chamber in 1968. 'Cloud removed' Prosecutors made a number of errors during the trial, officials said, the chief among which was the failure to make available notes of a crucial interview in which a witness made a statement that contradicted evidence he gave later under oath. The prosecutors who made the error have been removed from the case and placed under investigation. A judge will hear the justice department's request on Tuesday, and is expected to grant the motion to overturn Mr Stevens's conviction. "I always knew that there would be a day when the cloud that surrounded me would be removed," Mr Stevens said in a statement. "That day has finally come. It is unfortunate that an election was affected by proceedings now recognised as unfair." The BBC's Jon Donnison in Washington says the high profile case clearly led to Mr Stevens losing his seat and gave the Democrats an important addition to its ranks in the US Senate. But President Obama's new Attorney General Eric Holder is sending a message that Justice Department prosecutors must operate within the law, our correspondent adds.
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