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Post by Sir Alexandreu Davinescu on May 1, 2018 19:47:18 GMT -6
Your Honour, I believe that neither of the factual issues you note are a problem here, after all. You have rejected my request to submit arguments based on (a) my proposition that this petition was brought by the Government ("the first being that this was a case in which the Government was a party, as it was not"), and (b) my argument that this case has not abided by Organic requirements for the "fullest opportunity" for consideration" ("as that time for consideration has been noted supra, which time gave the 'fullest opportunity'").
With regards to (a), I'd like to note that this petition was brought by the Avocat-Xheneral explicitly in keeping with what he believed to be his statutory duties. But if the chief legal official of the Government petitioning in explicit obedience to what he thought the duty prescribed for his role by law is not a Government petition, then what could be? Simply put, the Government has prosecuted the accused, and now the Government -- with an election intervening -- has decided to prosecute the other way. While I am certain that your Honour has been as fair as possible, and the Avocat-Xheneral was acting in good faith and in keeping with his Government's policies, the fact remains that this represents a pernicious precedent.
In Talossa, the Government's legal power is surprisingly vast. The Government appoints a legal expert to a position which has few duties but to prosecute our rare offenders, while everyone else must rely on the good-will of the very few remaining lawyers to defend them (or pay them, a nearly unheard-of burden in Talossan affairs). Accordingly, if we cede that the Government may revisit prior offenses from years past at will, we establish that justice is -- quite simply -- up for election. No proceeding can give a fair hearing, no matter how just the tribunal or rigorous the procedure, when it consists of the nation's top lawyer arguing against an empty desk.
In this case, the outcome might seem just, but we would also be setting a precedent: all convictions and acts of justice exist at the whim of the Government. At will, the Government may convene a proceeding and argue unopposed to overturn a conviction -- if it was an ally who was convicted.
But I would even argue that this specific case is especially pernicious, because it involved electoral fraud. In case it needs to be said: we would be here setting a precedent that a Government may be elected by widespread fraud, and then argue unopposed to overturn any resulting convictions. This ruling, if unaltered before the end of these proceedings, would not only permit this miscarriage of justice at the whim of the Government... it would incentivize it.
With regards to (b), my precise argument is that the "fullest opportunity" for consideration could not exist merely on the basis that the proceedings have taken five months and people were free to submit petitions. I agree with the statement that there were no adversaries here except perhaps for the entire Cort of 14-05... indeed, that is my very point and warning. Not ever proceeding must be adversarial, and many are not, but our Organic Law requires the Government's interests to be represented in cort when they are threatened. In this cort, the people have not been represented.
At the very least, I believe that it must be clear that these matters are at least in question and should be discussed in their fullest. I beg this Cort to permit a brief where I can lay these matters out more fully.
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Post by Avocat-Xheneral on May 2, 2018 10:20:35 GMT -6
May it please the Cort,
The Office of the Attorney General respectfully disagrees with arguments put forth by Sir Davinescu. Likewise, it remains this Office's position that this is not the proper venue and will not address in their entirety the merits of the allegations. Said individual is encouraged to seek redress through other avenues, including, but not limited to, commencing an action.
The Office does wish to note, however, that the People were represented. If a contingency disagrees, they can use the democratic process. The logic advanced above necessarily follows that the Government can never take legal action to cure its own mistakes.
The Attorney General objects to further distraction and requests that the Cort instruct the individual as to his options, which does not include interjecting himself in this manner.
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Post by Sir Alexandreu Davinescu on May 4, 2018 18:59:57 GMT -6
Your Honour, if there are other options available, I'd certainly be open to them. I do not honestly see any that would remedy the immediate and serious danger of a pernicious precedent that looms before us. I suppose I could begin a prosecution of the Avocat-Xheneral and this Government, but what possible cause of action could I have for doing so -- merely being a citizen in a Talossa in which the justice system has been seriously damaged would not provide standing, would it? Nor could I attempt to bring new charges against the accused, who would be protected by double jeopardy. My belief is that we are establishing in this case that the Government can attempt to excuse convicted criminals before a judge, unopposed by any advocate for the interests of vigorous justice. The obvious reply might be that the judge represents vigorous justice, hearing the arguments and rendering a disinterested amendment of the past conviction. But no human being is wise enough to decide the twisty issues of right and wrong after hearing only one side of the case, are they? Even if that might happen to perfection in this instance, the precedent would be set, and the future is wide and full of more complex and contentious cases. The other obvious reply might be that the Avocat-Xheneral represents vigorous justice, in this case acting to that end by attempting to right a past wrong. But this would be exactly my complaint: the Government acting to convict with all its power or exonerate without opposition, as it pleases and as electoral whim dictates. If someone is convicted, their sentence should not be up for a vote. The power to pardon does not reside with the Avocat-Xheneral. As a co-sponsor of the bill that granted the Avocat-Xheneral the power to "monitor the justice system," I can assure you with great surety (since I wrote that language: talossa.proboards.com/thread/9388/nolite-ivre-pigrari-act-nopig) that this task was envisioned as a way of stopping long waits in the corts, not as setting up a Cabinet official with the power to revisit past convictions and attempt to overturn them. There is a process already in place if someone is dissatisfied with their sentence: an appeal. And an appeal is defended by the Crown. Again, at a minimum we must agree that there are serious issues that need a full airing before precedent is set, not after? Your Honour may see fit to dismiss my concerns if my arguments turn out to be empty or fallacious, but I pray you will let me make them in a form that allows me sufficient scope to cite precedent and set out my reasoning.
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Post by Avocat-Xheneral on May 4, 2018 23:48:49 GMT -6
May It Please the Cort, The Office of the Attorney General renews its objection to commentary that seeks to misuse this proceeding for a purpose that is properly a political question. As such, this Office respectfully reminds the Cort that the logic advanced above counters the basic concept of prosecutorial discretion, and misunderstands the interplay between the Cort and the Government. Of note, the Attorney General did not, as erroneously alleged, assert the power to pardon, but filed a petition with the Cort based upon errors that implicated substantial Organic concerns. The Cort, throughout this process, maintained the power to dismiss the petition and affirm the conviction. Further, in exercising its ability to review, this Cort permitted an extraordinary and extensive period whereby public commentary was permitted, and that period having now elapsed, it cannot be said that other voices were not afforded the opportunity to be heard. The Attorney General will take a moment to address the Cort with respect to the argument advanced. For the purpose of a fully developed record, the Attorney-General, having now been accused of "seriously damag[ing]" the justice system, submits the following simple points: (1) the Attorney-General, being charged with prosecuting crimes, enjoys discretion to not prosecute a crime, and as such, this necessarily negates an argument that somehow petitioning the judiciary to remedy a wrong implicates justice at the whim of an elected government (or to put it another way - the nature of a political prosecutor, as is the case in Talossa and in many jurisdictions within the US, means that elections impact how crimes are charged [ compare USAG Sessions, with USAG Lynch]); (2) it is certainly uncommon but it is not novel for a prosecutor (whatever the title may be in the respective jurisdiction) to seek to overturn a conviction or reduce a sentence based on subsequent information, for example, in Arkansas, a prosecutor sought to vacate a criminal conviction when a key witness was found to have tampered with evidence ( see www.arktimes.com/ArkansasBlog/archives/2013/07/22/state-moves-to-vacate-conviction-because-of-tainted-state-police-witness); or the infamous Central Park Five, where DA Morgenthau filed an affirmation in support of vacatur, and went so far as to request additional relief to vacate all of the convictions of the individuals, even those unrelated to improperly charged rape ( see big.assets.huffingtonpost.com/wise.pdf) ; or in the US's Fed R. Crim. P. 35 which permits a US prosecutor to move to reduce a sentence if the convicted individual offers substantial information (certainly allowing the Government the ability to negotiate with convicted individuals to charge more crimes in exchange for a reduction of a sentence would never be allowed in the supernatural world envisioned by the above individual's argument); or DC Criminal Rule 35, which permits the Court, sua sponte, or upon motion, to reduce or set aside a sentence (this list can go on); and, (3) precedent was already set by this Cort's final order - and good precedent in that the Cort made it clear that those civil rights enshrined in the Organic Law must triumph over hurt feelings and bad prosecutions; there is nothing in that precedent that the Attorney General can undo prior convictions simply because they represent a newly elected Government that differs from the prosecuting Government anymore than it is already understood that the Attorney General necessarily represents the Government at that time which may contrast the position of a prior Government (this is not a novel concept), and that, just as it remains in the Cort's power to grant a motion for a directed verdict, it is also within the Cort's power to deny a motion for postconviction relief. The Office of the Attorney General submits these points to demonstrate the legal absurdity of the opposing arguments currently advanced and to demonstrate that they are unequivocally without merit. If the opposing individual is dissatisfied with the Cort's denial of his request to file a brief, he may seek an an appeal or file an action (the genesis of the common law system finds itself in such similarly situated instances where no immediate legal remedy was available). Likewise, if they are dissatisfied with how the Government seeks to protect justice, they may advocate such as a political question in the court of public opinion and seek to win an election to replace the Attorney General (or even lobby the current government to dispose the individual). That would, of course, merely illustrate the Attorney General's point - with removal would mean that the new Attorney General would take a different approach to his or her duties than the previous Attorney General). They do not, however, reserve some right to barge into a proceeding that has been decided and start lecturing the Cort that it is somehow "seriously damaging" the Talossan justice system because the Cort remedied an inOrganic conviction that imposed an inOrganic sentence, irrespective of that individual's own fault in not appearing during the months long period when public commentary was invited. Ultimately, this red herring about a "political prosecutor" truly is no different than what Talossa already, except now it is merely more evident inasmuch as the office is one of the more active ministries and possibly on account of heightened attention to the judicial system currently involved in US politics. To put it quite frankly, this Cort did not set some pernicious precedent - the role and power of the Attorney General is exactly as it was prior to filing the petition. The Attorney General is attempting to exercise restraint but requests that the Cort end this exchange. With one exception, the matter is done. No further commentary is needed.
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Post by Sir Alexandreu Davinescu on May 5, 2018 13:40:21 GMT -6
Your Honour:
(1) The power to decline to prosecute an offense does not imply the additional and unrelated power of convening one-sided tribunals to overturn past convictions. I do not deny that elections change personnel and policies of justice in the Government, but rather I deny the new power being claimed by the Government by way of a statute that was not intended and cannot fairly be read to include (a) a summative review power over all matters of justice, present and past, (a) a duplicate power that allows the Government to initiate appeals on behalf of the convicted without their action or assent, (c) a proceeding in which the Government acts to benefit its political allies without any disinterested party acting to represent the cause of justice before the corts.
In other words, if I choose to turn left down a one-way road, then I cannot argue that my ability to choose my turns means that I can head back the wrong way, should I so choose. The Avocat-Xheneral does not have the power to issue pardons, nor should he be able to pursue pseudo-pardons in one-sided proceedings.
(2) I enthusiastically endorse and second the reference to the cases cited by the Avocat-Xheneral. I would like to draw particular attention to the following key phrase from the main clause of one of the cases linked, a clause duplicated in substance in the others: "The People consent to the defendants' motions." It is widely-accepted that the Government may decline to contest an appeal, on the basis of resources or principle. It is widely-accepted that the Government may decline to prosecute a case, on the basis of resources of principle. It is widely-accepted that the Government may decline to seek the full possible penalty for crimes that it is prosecuting. But the Avocat-Xheneral unwittingly highlights the key distinction: it is highly unusual and strange for the Government to purport to initiate an appeal on behalf of a convicted criminal, conducting its own one-sided tribunal in front of a judge to benefit an ally.
I am grateful to the Avocat-Xheneral, whose legal knowledge outstrips my own, for the assistance.
(3) This Cort has indicated it is open to receiving briefs on this matter before issuing a final order. Indeed, it was my understanding that this case had not yet closed and the previous ruling was provisional in nature.
But even beyond that, the Avocat-Xheneral himself seems to endorse the seriousness of my arguments -- even before I have been permitted to file a brief. Above, he has repeatedly engaged with them on the merits, making (by my count) eight coherent and independent arguments with regards to their content, entirely aside from any question of procedure. If the Avocat-Xheneral believes they have weight enough to throw doubt on the outcome, and deems them significant enough to expend his considerable expertise on them (he's a lawyer! like for realsies!), surely we must give them a fair hearing? The Avocat-Xheneral even explicitly says that he is engaging with the arguments to discuss their merit.
Now, it is possible that I am being unfair, there. I admit that it is possible that the Avocat-Xheneral might feel there is no merit at all to my claims... perhaps in his view they are silly, specious, and untimely, with no chance of affecting the outcome or your Honour's judgment.
But if this is the case, why is he not content to let them stand unopposed? Is it, perhaps, because he recognizes that even a weak argument, unopposed, has an enormous advantage? He must speak to present an adversary, but by being driven to do so, he is strengthening my very point.
He must answer each of my arguments on their merit, since he knows that even the most honest and intelligent judge must benefit from hearing both sides of the story before deciding a point.
Listen to the Avocat-Xheneral's actions. Listen to the case law he cites. Listen to your own caution, and I beg your Honour to let me make my brief.
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Post by Avocat-Xheneral on May 5, 2018 19:59:40 GMT -6
May it please the Cort,
The interloping argument illustrates the logical fallacy of inductive reasoning upon which the argument advanced seejs to prove use the negative for support. The Attorney General asserts that said argument, having been advanced for seeking leave to file a brief, is prima facie unpersuasive for such leave to be granted, not, as asserted, to address the merits of said argument (alternatively, one need not look beyond the European Court of Human Rights with respect to its admissibility doctrine to understand that addressing the argument may, at times, inform whether such leave should be granted, without requiring the Cort itself to address the merits). Said interloper merely seeks to confuse the Cort using tricks of language and does not disprove any of the points to counter denying further interruption of the already resolved issue. Rather, the Attorney General notes that the interloper selectively chooses one of the sources cited to prove their point in a manner that is best described as a confirmation bias, while obviously ignoring the other cited references where the prosecutor did, on its own motion, move to overturn a conviction. Needless to say, such an argument is an attempt to mislead the Cort and the public who currently follows this proceeding. Moreover, said interloper appeals to the emotion of the Cort in an obfuscated false appeal to authority by citing the Attorney General's legal background as some, in lay terms, "a ha" moment, when, equally in lay terms, said attempt is nothing less than trying to confuse the Attorney General's explanation with the interloper's excuse to justify further commentary. The Attorney General contends that the interloper seeks to mislead the Cort and misrepresent the facts and citations, and beseeches the Cort to take corrective action to affirmatively assert a precedent that such further action is not acceptable in a court of law that represents Talossa.
The Attorney General respectfully requests that this Cort affirmatively, and with absolute finality, deny the interloper's request, and, in so doing, instruct said interloper that further intervention shall result in contempt.
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Post by Sir Alexandreu Davinescu on May 6, 2018 8:36:44 GMT -6
Your Honour:
The Avocat-Xheneral offers as precedent three specific cases and two specific rules. Two of the three cases are available -- the link to the Arkansas filings is dead. But in the two that are available, both represent incidents where the prosecution supported a defense motion to vacate. And in the rules cited, the prosecution is declining to seek the maximum sentence or the court is assigning a lower sentence upon a motion. I am not sure if I am confused or if the Avocat-Xheneral is confused, so I will merely quote myself:
"I enthusiastically endorse and second the reference to the cases cited by the Avocat-Xheneral. I would like to draw particular attention to the following key phrase from the main clause of one of the cases linked, a clause duplicated in substance in the others: "The People consent to the defendants' motions." It is widely-accepted that the Government may decline to contest an appeal, on the basis of resources or principle. It is widely-accepted that the Government may decline to prosecute a case, on the basis of resources of principle. It is widely-accepted that the Government may decline to seek the full possible penalty for crimes that it is prosecuting. But the Avocat-Xheneral unwittingly highlights the key distinction: it is highly unusual and strange for the Government to purport to initiate an appeal on behalf of a convicted criminal, conducting its own one-sided tribunal in front of a judge to benefit an ally."
If the Avocat-Xheneral is proposing that these proceedings be summarily dismissed as improper, and that he will then decline to vigorously defend some part of an appeal by the Accused to vacate their conviction, then I wholeheartedly endorse this idea, which will achieve the same results sought here without the hideous precedent of one-sided tribunals. This might seem a silly distinction, but much of our safety under the law lies in adhering to distinctions of procedure, even when it poses inconvenience.
Beyond that possibility, I maintain the Avocat-Xheneral is simply furthering my argument.
As to the other point about merits, wherein the Avocat-Xheneral defends his attempt to shoot down my request by engaging on its contents beyond procedure, I believe I may have been misunderstood. My entire point was that the Avocat-Xheneral was not only allowed and such engagement was not prejudicial to his arguments against disallowing the brief, but instead that the very fact that he felt it was necessary to do so was support for its allowance!
Sorry, that was a twisty sentence.
To put it another way: the Avocat-Xheneral should certainly slap down the attempt of an "interloper" to submit a brief on serious Organic matters if he thinks they have no merit, and his willingness to address some of the arguments doesn't imply that they have inherent value to these proceedings. If I proposed a brief saying that the Avocat-Xheneral should be conflicted off of this case because he is political allies with the accused, he'd be completely right to reply on the merits that Talossa is a very small place and we're all so conflicted about things that only a direct material conflict should matter to the Cort. Merely replying to my argument wouldn't justify the value of a further brief on it!
Instead, I am attempting to illustrate how even this very exchange is representative of the principle that is at issue: the necessity for a the fullest consideration of an issue through discussion, rather than a one-sided tribunal where arguments are directed, unmet, at an empty table.
The Avocat-Xheneral is trapped by necessity. He cannot allow my request for a brief to be heard and considered by your Honour without commentary, since he knows that unopposed arguments are always much more likely to win. But in feeling compelled to reply to every assertion I make, he exemplifies the necessity for my brief.
I hope that your Honour will, in light of these facts, allow me to make my arguments in full, supported by law and rule and precedent. I request to submit a single brief in a timely fashion to prevent serious and irreparable breaches of our justice system.
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Ián Tamorán S.H.
Chief Justice of the Uppermost Court
Proud Philosopher of Talossa
Posts: 1,401
Talossan Since: 9-27-2010
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Post by Ián Tamorán S.H. on May 6, 2018 17:04:09 GMT -6
This Cort has examined the recent (uninvited, but permitted) discussion in open Cort. There are several apposite comments that need to be made.
The time for comment in this case was lengthy. On the 13th January AD 2018/xxxix and on the 14th January AD 2018/xxxix and on the 24th January AD 2018/xxxix comments were again openly invited by this Cort. Some comments were received by this Cort on 25th February AD 2018/xxxix. On the 3rd April AD 2018/xxxix this Cort issued a short document which itself reminded all who had made themselves aware of its contents, that further comment was invited – the comment period was still open – and was declared to be. On 9th April AD 2018/xxxix the Cort indicated that the comment period would close on the 20th April AD 2018/xxxix. Recognising the request of one party for a longer period, this Cort on the 10th April AD 2018/xxxix extended the consultation period to the 24th April AD 2018/xxxix, and did indeed receive one comment in that time of extension, which comment was considered and mentioned in the Judgement Document. There was thus slightly in excess of three months in which comment could have been presented to this Cort for consideration This Cort did not invite comments beyond that point in time. The fact that S:reu Davinescu did not make any comments in that extensive period means that he had denied himself the opportunity to do so, having been warned by the Cort in its public pronouncements that the comment period was coming to an end.
The only comments which could then be subsequently made were not political comments, not comments about what the Law should be, not comments about the organisational structure of Talossa as it has been set up, not comments about whether other realms – nations other than Talossa – run their justice systems under different regulations than we do in Talossa, not comments about whether the stated rulings were acceptable or not acceptable to the commentator, but only and exclusively comments about any possible transgressions by this Cort of Talossan Law. None of the comments raised on the 27th April AD 2018/xxxix have matched any of this criterion of exception, and must, therefore, be turned away by this Cort.
This Cort has processed all of the formal requests made prior to the end of the 24th April AD 2018/xxxix. No briefs were received in that period. The Judgement Document issued by the Cort on 26th April AD 2018/xxxix is the definitive judgement reached by this Cort, which judgement is not open for reconsideration here.
There are only two further points being considered in this case – as indicated in that judgement document – that are still open for consideration, and which depend upon submissions made in camera, which will, in due time, be published, together with this Cort’s final ruling on those two points (those of perjury and duress). Further comments to this Cort on those two points are no longer invited, as such comments should have been made earlier, during the lengthy prior comment period.
Within the open democracy that we so fortunately enjoy here in Talossa, every party has the right to challenge the organisation and behaviour of every part of the government – legislative, executive and judicial – which that party may do by all of the means set out in our Laws, including public discussion, alteration of legislation (through the proper channels) or bringing cases to Cort. Good order, however, depends partly upon our collective adherence to the Law as it is, and not to the Law as we would like it to be. Part of the function of the Corts is to interpret that Law which, as all human creations, is necessarily incomplete or ambiguous or contradictory, which the Corts do in their overriding considerations of Justice. If you do not like the Law, then you must work to change the Law: the Corts, however, exist to implement that Law as it is, or as it was at the time of the alleged events or situations under consideration, within Justice.
This Cort invites those following this case to read all of the public announcements made by this Cort, including specifically that on the 27th April AD 2018/xxxix.
Therefore this Cort does not accept any presentation made to it since the 26th April AD 2018/xxxix except those specific in camera submissions mandated in the judgement document. If any party wishes to make further comments upon this case they are, of course, free to do so in public fora, which comments will form no part of this Cort’s considerations, or pro tem. by informal private submissions made in camera which this Cort may or may not consider. This invitation for in camera submissions (other than those already mandated) may, at any time, be withdrawn.
The Cort thanks those who have spoken, and is impressed by their energy and concern for the good exercise of out Laws, but no further discussions in open Cort shall be permitted. Formal, but extremely brief, applications can still of course be made, but this Cort requests that the body of all such submissions be presented in documents attached to the short postings.
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Post by Sir Alexandreu Davinescu on May 6, 2018 19:12:55 GMT -6
Thank you, your Honour. I believe this is a grave error, and I regret that we will now be entering a new phase of Talossan jurisprudence. But thank you for consideration of consideration, and I wish the best of luck to us all.
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