The Federal Rules of Criminal Procedure: One of the Most Evil Books in Print by Roger Roots
(2011-01-30 at 10:56:02 )

The Federal Rules of Criminal Procedure: One of the Most Evil Books in
Print by Roger Roots

I recently obtained the latest edition of Wests Criminal Code and Rules,
the book containing the rules you need to know if you are ever accused of
a federal criminal offense. The book is updated every year, and each new
edition supersedes the prior edition. It gets worse every year.

The Wests edition now runs to more than 1600 pages, with abridgments and
supplements. In addition to the Rules of Criminal Procedure, the book
contains selected federal criminal statutes, the Federal Rules of
Evidence, the Federal Rules of Appellate Procedure, and the Rules of the
Supreme Court of the United States. On virtually every page are
mechanisms to hurt, humiliate, control and enslave people to the
governments will - all presented within a framework of procedural rules.

In theory, these rules provide an accused with avenues to defend himself.
But one can judge a scheme of procedural rules by its fruits, and the
codification, growth and expansion of the Federal Rules of Procedure (of
which most state procedural codes are virtual copies), have produced the
worlds highest incarceration rate - and probably the highest
incarceration rate ever registered in any society in human history. Even
more significantly, the Federal Criminal Code and its procedural rules
and guidelines have almost eliminated criminal trials in many
jurisdictions, because most defendants are unable to defend themselves
effectively under the rules and simply plead guilty. Such is the lopsided
nature of the Federal Rules that they produce untold mountains of printed
accusations and claims against individual Americans, while facilitating
no more than a few sentences (generally at sentencing hearings) in
rebuttal in most cases.

Footnotes are found on virtually every page of the Federal Rules, tracing
dates of amendments and the steady progression of punishments over time.
In general, Congress has ratcheted up sentences, expanded the limitation
periods in statutes of limitations, expanded rewards for those who
cooperate with the government, and limited or eliminated avenues for
people to challenge government accusations and court judgments. One is
hard pressed to find crimes described in the book as misdemeanors, even
if they were misdemeanors long ago. Today, most federal crimes are
felonies, and conviction brings more or less automatic prison time.

Altering or removing motor vehicle identification numbers? Up to 5 years
in Federal prison. Using the telephone to incite or to "organize,
promote," or even encourage a riot? Up to 5 years. Attempting to coerce
any federal employee into "any political activity"? Up to 3 years.
Removing or affixing a U.S. Customs seal on any merchandise without
government permission? Up to 10 years in prison. Transporting
"terrorists" on your boat? Up to life in prison. Engaging in "street
gang" activity? An additional 10 years may be added to your sentence.
Knowingly using a misleading domain name on the Internet in order to
attract viewers to online porn? Up to two years in prison. Sending a
letter in the mail urging insurrection? Up to 10 years. Trading with
known pirates on the high seas? Up to 3 years.

The book seems to provide dozens of separate laws exposing unwary
Americans to federal prison for simply filling out paperwork wrong. (Note
that these provisions are almost never applied to people in government,
who regularly fill out paperwork incorrectly.) There are provisions
subjecting Americans to life in prison for cocaine possession. There are
open-ended provisions which may (or may not) criminalize pouring a cup of
coffee on the ground (and thus violating the Clean Water Act) or
accidentally catching certain breeds of fish from the oceans. It remains
only for a savvy prosecutor to fill in the blanks and add to the list of
crimes that Congress may (or may not) have created.

Few people are aware that the Federal Rules (not just of criminal
procedure but of civil procedure, appellate procedure, bankruptcy
procedure and Supreme Court procedure) are riddled with provisions that
grant more time to the government to f ile and respond to pleadings and
briefs, greater privileges of appearance, and greater ease of prosecuting
and defending litigation than individuals in the private sector. The
governing advisory committees that produce these rules of procedure have
offered no explanation for these filing requirement disparities.

Just a few examples:

- Federal Rule of Civil Procedure 12(a) provides that U.S. government
parties have 60 days to answer civil complaints, compared with only 20
days for private-sector parties. (This same 60-day/20-day filing
disparity applies to the filing of cross-claims, counterclaims and third-
party claims as well);
- Federal Rule of Appellate Procedure 4(a) provides that litigants have
30 days to file appeals in civil cases, "but if the United States or an
officer or agency thereof is a party, the notice of appeal may be filed
by any party within 60 days after such entry";
- Federal Rule of Appellate Procedure 4(b) provides that the United
States has 30 days to appeal from criminal judgments, compared with only
10 days for criminal defendants.
- Federal Rule of Appellate Procedure 40(a)(1) provides that petitions
for rehearing "may be f iled within 14 days after entry of judgment" in
a civil case unless "the United States or its off icer or agency is a
party," in which case any party may seek rehearing within 45 days of
judgment.

There are also provisions of the Rules that grant the government greater
privileges with regard to the filing of amicus curiae briefs in support
of government positions:

- Federal Rule of Appellate Procedure 29 allows "the United States or its
officer or agency, or a State, Territory, Commonwealth, or the District
of Columbia" to "file an amicus-curiae brief without the consent of the
parties or leave of court" while "any other amicus curiae may file a
brief only by leave of court or if the brief states that all parties have
consented to its filing";
- U.S. Supreme Court Rule 37.4 provides that "No motion for leave to file
an amicus curiae brief is necessary if the brief is presented on behalf
of the United States by the Solicitor General; on behalf of any agency of
the United States - ; on behalf of a State, Commonwealth, Territory, or
Possession when submitted by its Attorney General; or on behalf of a
city, county, town, or similar entity when submitted by its authorized
law officer." All other amici are required to seek permission to file
such briefs.

When compounded over time and federal jurisdictions since the 1930s (when
the feds began codifying rules of court procedure), these differing
deadlines for drafting briefs and pleadings have translated into millions
of hours of extra time for Justice Department lawyers to research and
prepare litigation documents. The disparities have almost certainly
contributed to profound inequalities exhibited between Americans of
different social, income and political strata in the past several decades.

FILING FEES: $350 FOR NON-GOVERNMENT PARTIES, FREE FOR THE GOVERNMENT

Americans seeking to access the federal courts independently will find
that the filing fees are substantial. It now costs $350 to file a
petition or a lawsuit in federal court. That is, unless you are a
government lawyer, and then there are no filing fees whatsoever. Filing
an appeal? Another $450 for parties in the private sector. Again, free
for the government. In recent years there have been repeated arguments
that certain politically marginalized individuals (incarcerated
prisoners, for example) file too many "frivolous" lawsuits. Congress
responded by drastically limiting the rights of such people to file suits
in federal court. Not so for the greatest single source of truly
frivolous cases - the U.S. Justice Department - whose access to the
courts remains limitless. This entity alone is responsible for thousands
of false accusations against innocent Americans, many of whom have
languished in prisons over the decades.

When neoconservatives gripe that federal courts coddle defendants (or
would coddle "terrorists"), they are depicting a fictional court system
that exists only in their imaginations. In practice, the federal courts
overwhelmingly favor the government, and the rules of procedure are
loaded with tricks and traps for the poor and the unwary. Anyone who
faces the federal government in court knows that these "protections" are
elusive, far-fetched, and in some cases illusionary.

Most so-called defense lawyers shiver in fear at the thought of trying to
actually "defend" a client from a federal prosecution. Most begin their
"defense" by seeking a plea bargain. Here is an interesting article
describing the exodus of criminal defense lawyers from the field due to
the increasingly lopsided rules of procedure. Criminal defense is not
only unrewarding financially; it can be downright dangerous. Many of the
most high profile defense lawyers of the past century - including
Clarence Darrow, William Kunstler, F. Lee Bailey, Bruce Cutler, Lynne
Stewart, Geoffrey Fieger (and doubtless many others) - have been
subjected to criminal prosecution themselves after defending clients too
zealously.

A recurring trick in federal court occurs when "defense" lawyers convince
their clients to plead guilty to what a defendant believes is a minor
count of a large indictment, in exchange for the government dropping
other counts. After the guilty plea, a sentencing investigation is
conducted by the U.S. Probation office (which is theoretically neutral
but which in practice works closely with the prosecution). The Probation
Offices "presentence investigation report" invariably recommends a
sentence consistent with conviction on all the counts that were "dropped"
by the government in the plea deal, and the defendant is then sentenced
according to the worst allegations of the prosecution (without any
ability to challenge such allegations at a trial). The lawbooks are
literally filled with appeals of such sentences. I have read many dozens
of these cases. There are probably hundreds. Here is a thoughtful dissent
by a federal judge regarding this shameful practice.

What makes the Federal Criminal Code truly despicable is its disguise as
a code of fair and equal procedural protections. Indeed, this deception
makes Wests Federal Criminal Code and Rules worthy of inclusion among
other infamously cruel books of human history. It deserves a place on the
shelves next to the Communist Manifesto, Mein Kampf, and Keynes General
Theory of Employment, Interest, and Money. The Federal Criminal Code
documents the advancement of coordinated, systematic scheme of state
tyrannical control - with a procedural overlay.

January 4, 2011

Dr. Roger Roots, J.D., Ph.D. has recently authored a detailed article on
the unfairness of the Federal Rules of Procedure for the American Journal
of Trial Advocacy.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or
in part is gladly granted, provided full credit is given.