Friday, November 28, 2014

 
DESUETUDE MUST BE REVIVED IF DUE PROCESS IS TO HAVE MEANING

The cases of the 8-Liners and Politiqueras

One reason lawyers come to me for consultation is I am an expert on the Kings Bench and common law. I have read most of the writings of Lord Coke, William Blackstone, and hundreds of years of Kings Bench decisions through about 1800.

One reason I know Associate Justice Antonin Scalia makes a mockery of the doctrine of original intent is I actually read the pleadings in high profile cases before the Supreme Court.  You will notice in Associate Justice Scalia's opinions a complete dismissal for the law as it existed at the time of the writing of the Constitution.  One party will detail the law as summarized by Lord Coke or William Blackstone as it existed at the time of the penning of the Constitution and Associate Justice Scalia will not even acknowledge the argument in his opinion.  He will simply pretend it was never made and then issue an opinion which ignores the law as it existed at the time of the penning of the Constitution.  But so long as he claims to believe in original intent, the ignorant will praise him.

I am compelled to reprint this excerpt from a letter written in 1939 by the President designate of U.T. Austin.

This quote so applies to Associate Justice Antonin Scalia and all the lemmings who believe he believes in Original Intent.


[SIDE NOTE:  Based on what I am learning from students at TSC and UTB, it may be time to eliminate American Government as a mandated course.  They are learning nothing.  The Pearson E-College program is a joke.  The students do not like it.  Some instructors are using the online tests because they are too lazy to write their own quizzes and tests.  Students are complaining the tests are flawed with incorrect answers.  I previously documented one quiz which marked me wrong for saying the U.S. is a democracy.  According to Pearson E-College the correct answer is Saudi Arabia. 

We are not educating our students at BISD, TSC or UTB in government.  It is a joke.  Key to any high quality instruction is the instructor writing their own lectures with the intent that the lecture will align with essay and short answer tests which force the student to demonstrate a substantive understanding of the material.  This is not happening.  Multiple choice tests should be banned at TSC and UTB.  Every classroom should have a smartboard .  If the instructor is not willing to write their own lectures which interact with the smartboard, and align with their written essay tests, they should be fired.  All essay tests should have as their purpose the students demonstrating a substantive understanding of the material.

It is time we start to give our students meaningful instruction in government or simply abandon it as a mandatory course.  Right now government instruction is nothing more than a way for TSC and UTB to raise money in the form of tuition, while returning nothing to the students.  They are completing the course with zero substantive understanding of government.  This is criminal.  This is why we cannot move our society forward and so many Americans are so easily taken in by the demigods.  It is time we end the lie that we are educating our students in the substantive mechanics of government.]

INHEREINT IN JUSTICE IS EQUITY

While not directly applicable here the concept is the same - when you go to court you must have clean hands.

DESUETUDE

You can  click above to more fully understand the doctrine.  In simple form it means if you have a law on the books which you do not enforce, at some point it becomes void for lack of enforcement.  The doctrine is found in equity.  Reviving old laws not previously enforced to prosecute people, raises questions of equity.

Now before I hear it, what is and is not inherently immoral, with rare exception, is subjective .

THE 8 LINERS

In my view it is in the best interests of justice for DA Saenz to offer all operators of 8 Liners, pretrial diversion or deferred adjudication, depending on what the law will permit based on the alleged offenders previous history.  They cannot challenge the forfeiture of their machines.

For more than a decade law enforcement turned a blind eye to the business of 8 Liners.  The lack of law enforcement lead to confusion as to the law.  I realize those who prefer ignorance over knowledge claim DA Saenz initiated the prosecution of 8 Liner owners.  False - for 18 months before Saenz took office the DEA was actively working Operation Bishop.  Saenz had nothing to do with the creation of Operation Bishop.  It was handed to him by the DEA and he was told to execute on their investigations.  Whether you want to believe it or not, the DEA had legitimate concerns that the 8 Liner business involved some laundering of cartel money.  Why else would the DEA get involved in petty gambling?

If DA Saenz and the DEA can be sure the owner who is being prosecuted had no ties or interests with the cartels the spirit of desuetude should be applied to their cases.  But DA Saenz should make clear this is a one time semi-amnesty so to speak.  After his decision to apply quasi-desuetude to the cases, he should make clear all future cases will be prosecuted to the fullest extent of the law. 

Further the state legislature needs to end this nonsense of criminalizing gambling.  I do not gamble other than driving in Brownsville [lol], or Bingo, or the Texas lottery.  I do not understand putting money in a machine on the hope I will walk away wealthier.  The casinos are operating to make money which means they intend for you to lose. 

But Texas is losing too much money as our citizens take bus tours to Shreveport and any number of Indigenous Reservations to gamble anyway.  Why not let the people of Brownsville gamble on river boats on the Rio Grande - that will bring in tourist dollars.  If the legislature will not just be done with criminalizing gambling, they then must enhance the punishment to be applied to those who engage in illegal gambling establishments.

THE POLITIQUERAS

The Honorable Hilda Tagle in the case of Sonia Solis had it right - why was the DOJ prosecuting the worker and not the organizers?  This is why Judge Tagle refused to impose a stronger sentence. 

The harvesting of mail ballots was a disease which impacted nearly every election for decades.  After I sent the trial transcript in the Pena/Hernandez case to the Texas AG for prosecution of Margarita Ozuna, and her prosecution became known there has been no evidence of ballot harvesting in Brownsville or in Cameron county wide elections.

The qualifier - because I know someone will try and correct me and be wrong.  Yes, it is true after the Pena/Hernandez trial several politiqueras did in fact, according to criminal Informations filed by the AG's office, illegally harvested mail ballots.  But that was before they knew Margarita Ozuna was to be prosecuted.  But since the AG filed the criminal Information on Margarita Ozuna there has been no evidence of mail ballot harvesting in either Brownsville or Cameron county wide elections.  Now before you post a comment which makes you look stupid consider what the highlighted part means in terms of your comment.

For decades nearly every elected official in Brownsville and Cameron county used politiqueras to work the mail ballots.  The nonsense of blaming the Hernandez family for the acts of every politician is found simply in their refusal to pay extortion money to keep certain people from writing about them.

There is no excuse for what happened for decades.  I first learned of the practice in Dallas where not only did I win the election contest, but also the criminal case against the alleged politiquera.  I was repulsed - but I was also educated as to why it was happening.  In south Dallas it was a way of elections and nearly everyone was doing it - including the losing candidate who sued my client.

I do not live in a world of perfection  - mistakes are an important tool in learning.  The harvesting of mail-ballots was an unfortunate abuse of the process as a necessary evil to political survival.  It is now behind us - and that is good.  And I am proud of the fact I sent that transcript to the AG which brought an end to the problem.  I was not paid by Alex Begum to feign interest in the issue, and then claim to be the hero in the war against politiqueras.  In fact Montoya vilified me for helping Ruben Pena in his case against Ernie Hernandez - but then Begum wrote a bigger check and Montoya found god.  I hate Johnny-come-latelies, who join the battle after the war is won so that they can create a bogus organization to raise money.

DA Luis Saenz needs to go the AG's office which is prosecuting the current politiquera cases and recommend pretrial diversion to the extent allowed by law or deferred adjudication.  But the AG should then make a clear statement that all future cases will be prosecuted with the intend of jail time.

But it should not end there - the legislature needs to make the harvesting of mail-ballots a State Jail Felony.  They need to make it a second degree felony for the organizers.

But there is no justice in prosecuting poor women who for decades practiced the harvesting of mail ballots while no one enforced the law.  What they did is wrong - but the state does not enter the process with clean hands.  They spent decades ignoring the law and allowing for the practice.  The AG and all previous DA's do not have clean hands on this issue, and equity demands clean hands before you go to court and ask for justice.

Cannot the good Christian Greg Abbott show some mercy and equity by ending the current prosecutions with pretrial diversion or deferred adjudication?

A QUALIFIER

The legal concept of desuetude is found in equity.  This needs to be a one time deal.

I am not asking desuetude or any quasi-desuetude be applied to the organizers behind mail-ballot harvesting.  If  DA Saenz or the DOJ can prove a case on direct evidence - he said she said will not fly - by the organizers then I say hang them.  But the idea we are letting the organizers walk while seeking to punish women who for decades were lead to believe what that they were doing was legal because nearly every candidate was hiring them is just wrong.

3 comments:

Anonymous said...

As the current law stands, 8- liners are legal. The act of paying more than $5.00 cash per play or 10x's their play is illegal. The machines get state, county and city stamps. The DA's office is saying that the fuzzy animal law says the prize cannot be over $5.00 which simply is not true. Look at any Dave n Busters of Main Event and they have x boxes ipads, etc. Even the large prizes at the carnival are worth more than $5.00. My problem with this stance by the DA's office on his crusade is we will never see a Main Event or Dave n Busters in Cameron County. I disagree with who initiated operation bishop. If the DEA had proof of money laundering they SURELY would have done something about it. The DA is now raiding 8-liners locations without a warrant and without due process. This a constitutional assault on individuals rights. His investigators are throwing Carlos Masses name around at the raids hoping some dummy will say, yeah he's the owner. This is not only slanderous and defamatory, it is also terribly un ethical. He wants to smear Masso be for the primaries. Raiding without a proper warrant is exactly what Villalobos was doing, any ADA taking part as well as investigators should be prosecuted if proven breaking the law. Some ADA's are already looking for employment elsewhere because they know this is illegal. Do your proper due diligence and perform raids and arrests in accordance with the law. If the office will break the the in the pursuit of 8-liners then why wouldn't they in any other case?

BobbyWC said...

You are very misguided - just because the DEA never found cartel money does not mean they were not concerned. It was made very clear by the DEA at the first press conference Project Bishop was 18 months old before Saenz took office.

What is sad is, I am trying to find a way out for everyone and you instead choose to continue to push the same nonsense.

Prizes by law are not cash - the law is stupid - but it is still the law

Bobby WC

Anonymous said...

I totally agree with you on the handling of the politiqueras. The DA knows who is behind their organizing and financing