WHO'S TO JUDGE

THE JUDGE IN A POST-MODERN JUSTICE SYSTEM

The zone through as the threw me for follow the does go through a profound and radical left range and lashed half century Hon. D.L. Blewitt, Esq, ret.

            The profession of a judge has gone through a profound and radical change in the last half century, as we entered into a post-modern society.  Judges previously were selected for their status and standing in the community, wisdom, intellect, propriety and wisdom.  Now, they are chosen without any qualification other than administrative adherence to the principals of image and management by objective.  Wisdom does not appear to be a factor for the office or even for qualification.  It also helps if the judge is not a deep thinker or is bothered by inequality or injustice, which could stand in the way of expediency and efficiency. Training for judges is generally accomplished by an internship in government, preferably a prosecutor’s office where the potential judge comes into daily contact with the Police State and can empathize with membership without being critical.  The construction of the reality for them is that there is danger everywhere, only police can be believed, the apocalypse is here if we don’t punish and imprison, and the Constitution is a quaint unimportant document.  Everyone is innately evil and must be caught and dealt with.  Then, like their predecessors in Germany, who signed millions of deportation and execution orders, the judges can function in the postmodern society, oblivious to the impact on the society, only concerned with immediate and measurable results.

            One of the basic tenets of postmodernism is that reality is socially constructed.  Reality is not absolute, but based upon signs, interpretations, experiences, and other social and environmental factors. Thus, if the judge’s milieu is based upon exposure only to the Police State, this milieu becomes his reality. Thus, until a person is socialized beyond police, the person is incapable of appreciating the lives or views of others outside that reality. The earth becomes flat because it is easier to deal with.  The judge’s reality is constructed by what he has taught, his background, his groups with whom he or she associates, and of course the written report. Police are trained to write reports in a way most favorable to their position and in a way that advances careers. For instance, when describing an incident involving a minority, the officer is inclined to sprinkle his reports with ethnocentric phrases, vernacular, class or race stereotyped terms and description calculated to prejudice the reader, particularly middle-class country club types. Therefore, judicial behavior in the postmodern society is not intentionally punitive or harsh, but as just plain ignorant.

            Another factor in the chaotic state is the abolition of common-law, replaced by a Napoleonic system, in which definitions are no longer commonly accepted among the population. Crimes are now defined, by administrators or legislators, and then by example is pressed upon the citizenry. There’s no commonality or general agreement. Only power matters.  The rationale is that the drafters of the law are representative of the people which the legislators represent.  Law is defined by the person who has the power to do so. In most cases, this is a prosecutor. For centuries, judges construed definitions using well-known rules of construction and interpretation.  However, that situation has been changed where the rules are now defined by legislatures and officials who can affect outcomes. There is also a concerted effort to remove any safety factors such as grand juries, rules of evidence, accepted scientific methodology and strict construction of criminal intent. Instead, we now have substituted “knowledge of the act”, instead of specific intent whereby a person knows what he is doing no matter what the consequences of his actions are criminal.  Until the last 3 or 4 decades, to be a criminal, one had to intend to do so or be so. This was inconvenient in the rush to lock up people for the safety of the privileged, who are deathly afraid of the common people.  It, therefore, all depends on the ability to deliver a message or communicate to define law.   Law essentially amounts to the result obtained by the power structure controlling information or the media.

            For centuries, juries have been the great safety valve of our system who could determine intent, facts, fairness, reasonableness, or any number of factors in the jury room. Laws general are made by lawyers, administered by lawyers, and interpreted by lawyers to the Judiciary consisting of lawyers. In a grab for power, prosecutors, and judges, not being able to abolish juries because of the Constitution, have attempted over the decades to limit the jury’s power to that of a rubber stamp of the administrative decision making process. Jurors are told that all they can do is determine facts. Since rarely are facts in dispute, they function, then as rubber stamps for the decision makers. Consequently, the real power is with the person who has the ability to initiate a charge or prosecution. That person has the capacity to construct a reality of the situation and hence the outcome. Since access to the means of communication is rarely accessible by the poor, disenfranchised or great masses of people, the power to speak and be heard becomes the power to destroy.  Many people have expressed frustration and cynicism toward the courts, unable to rationally explain their feelings. It is up to the People to take an interest in what their politicians, administrators, police, and judges do.  Additionally, they must take an interest in how these decisions are made, and the process by which people are put in the position to make them. Basically, the public has to realize that humans have consciousness, desires, reasons, emotions, feelings, and other factors that do not exist in a corporation. A corporation cannot distinguish right from wrong.  A corporation doesn’t feel or make decisions. It is merely a mechanism to administer rules. Under a common law definition, a corporation would be defined as insane, because it is incapable of determining or differentiating right from wrong. However, since it has no consciousness, they can become the tools of whomever controls them. Corporations.  To reward executives they give them funding to empower executives to by politicians, administrators, and others and defeat any democratic process

            Consequently, we have come to a point where any activity that annoys or is judged bad by those in power can be punished.  The activity doesn’t have to be intentional, nor does it have to have a specific goal in mind. All of this presents the illusion of a democracy with the people being protected by the dictatorial minions of power. The system is corrupt; not deliberately or intentionally. It is corrupt in the same way that a 3-year-old barrel of apples sitting out in the sun corrupts. It is up to us to determine whether the apples can be salvaged at least to make vinegar or should be destroyed as toxic.

            50 years ago, I was on the committee that drafted and graded the criminal law question on the bar exam. The leader was a very experienced US attorney who later became territorial governor of a US’s possession. The last year that we graded the exam, before it became a multiple choice exam, we noticed that the students were unable to differentiate between a crime or a civil wrong. The crime needed a specific intent and the civil wrong, needed a general intent defined as knowledge that the actor was doing the act. Thus, as in Victor Hugo’s novel, a person is punished for taking something that wasn’t his without regard to his motivation. He did the act, therefore he deserves to be punished and persecuted the remainder of his life. That is the main difference between Napoleonic and common law. Victor Hugo’s character would not have been a criminal because his intent was to feed his family. He may have been punished, but he would have been haunted the rest of his life as a branded criminal. Our system is going backward toward the Victor Hugo model for which we should be vigilant and debate whether this change is good or bad.  Unfortunately, the citizens have to be conscious of and do something about this because the people in power to change are not inclined, are too ignorant to do so. Like the judges in Germany, who rubberstamped the death warrants of the Jews without question, our judges blindly follow the abolition of common-law and destruction of the Constitution, believing that they are doing their job, and benefiting society. It is the delusion of the post-modern society.

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