Los Angeles, California
LAURACK D. BRAY, M.S., M.P.A., J.D.
April 30, 2015
(Today's date)
October 22, 2013
(Original Date)
*(Denotes a change or new information added to the original blog)
**UPDATE(Denotes NEW information added after the original blog was published)
****This blog is submitted as part of the War on Racial Discrimination (WRD) in California
When 9th Circuit Judge Mary M. Schroeder in September, 2013 wrote a panel decision affirming the conviction of major league baseball player Barry Bonds for obstruction of justice, it was a case of one criminal judging another criminal for the same crime. This is so because judge Schroeder herself has been charged, through a federal civilian criminal complaint, with obstruction of justice and conspiracy to obstruct justice, and the only reason that she likely hasn't been convicted and sentenced like Bonds, is because the U.S. Justice Department has refused to prosecute her, while, at the same time, prosecuting Bonds for the same crime. The Complaint against Schroeder is still pending, and was pending at the time that she decided Bonds' appeal.***
In 2007, I, a Black lawyer, and on behalf of two clients, one a white male, Harold Griffith, and one, a white female, Jeanette Andrews, filed a multi-party criminal-civil rights complaint in the U.S. Attorney's Office in Los Angeles charging multiple individuals, including several (and mostly) judges, both state and federal, with a range of criminal violations or crimes associated with the conduct or misconduct of those individuals in the treatment of our cases, at both the state level (my case only) and the federal level (all our cases). Schroeder was one of those charged. See my "ICR" blog for other individuals charged in the complaint. Although each individual named in the Complaint was charged with and for his or her own individual action, the general theme of the Complaint was racial discrimination directed at me (likely in part because I had charged several state court judges with racism or racial discrimination) which ultimately affected my clients, resulting in my clients being denied relief when they should have received relief. One vivid example was Ms. Andrews' case (a disability discrimination case), where, after the Navy defaulted and a default had been entered against the Navy (which was brought about, in part, by and through actions of a panel of judges of the Ninth Circuit Court of Appeals through a writ of mandamus), the final panel of Ninth Circuit judges (the so-called merits panel) refused to order that a default judgment be entered (and the entering of the judgment should have been done as a matter of course--and my client would have been provided relief), for no legitimate reason (only offering a boilerplate statement of denial). This was a simple default.
At the time Schroeder was charged in the criminal Complaint, she was the Chief Judge or former Chief Judge of the United States Court of Appeals for the Ninth Circuit (Alex Kozinski took over as Chief Judge during this time period, 2006-2009), at least, she was charged in the Complaint based on her position and actions as Chief Judge of the Court. And because the Chief Judge is the chief, and ultimate, administrator of the Court, she was charged with the administrative actions of the Clerk of the Court at the time, Cathy Catterson (Catterson was also charged in the Complaint).
***NOTE : Schroeder is also listed on my premiere "1st Annual List of Racist Judges and Other Public Officials in California", which is being published concurrently with this blog.
Before I proceed further, I should comment on the merits of the overall criminal Complaint. As some evidence that our criminal complaint had merit and was not frivolous, the George Bush FBI took actions against several of the named individuals in our complaint. While the U.S. Attorney's Office refused to prosecute any of the individuals, including Schroeder, the FBI, apparently utilizing its own authority, took action against at least six individuals, whom (together with another individual who ultimately resigned) I designated the "Judicial
Seven". At least two of the individuals, state court judges Steven Hintz and Barry Klopfer, whom I had charged with racial discrimination, were made to step down from the state court bench (Ventura County, CA). Others, including two district court judges and a Ninth Circuit Clerk (Cathy Catterson), were made to retire or resign. However, even with the FBI actions (which were conducted quietly and secretly), neither I nor my clients were provided with any relief for the Defendants' misconduct.
Among other things, we charged Schroeder with obstruction of justice and conspiracy to obstruct justice, which, like the affirmance of Barry Bonds' conviction on appeal in the Ninth Circuit, was based, in part, on Schroeder refusing to answer questions that were central to proof of illegal actions by her and other Ninth Circuit judges. To summarize the obstruction for this blog: we charged that a three-judge panel of the Ninth Circuit acted illegally (and without authority) in purportedly making a ruling (which ultimately resulted in my being denied the right to seek en banc or full court review of my case), which they had no authority or legal basis to make. In an effort to obtain proof or evidence of the illegal activity, and through a memorandum directed to Schroeder as Chief Judge of the Court, I asked three questions. Two of which were :
1. May a three-judge panel usurp the authority of an en banc court and address a motion directed specifically to the en banc court, thereby denying the en banc court itself of an opportunity to review or consider the motion?
2. May a three-judge panel, rather than an en banc court, deny a plaintiff the right to an initial rehearing (sic) en banc?
Schroeder, as chief judge, refused to answer either of the questions. Thus, in addition to other matters regarding Griffith and Andrews that went to obstruction of justice, we charged Schroeder with, among other charges, obstruction of justice, conspiracy to obstruct justice, and the denial of constitutional rights under color of law (with the racial component). As alluded to above, the Complaint against Schroeder is still pending.
As I explain more fully in my ICR blog (#61), Schroeder is a criminal because she has committed a crime, in violation of federal criminal law (and the crime was witnessed and/or experienced, either directly or indirectly, by a victim of the crime), but, she has not been processed through the criminal justice system, like Bonds was (i.e., he was indicted); therefore, she has not been cloaked with the presumption of "innocent until proven guilty" that the criminal justice system provides. So, she remains a criminal until she is so-processed.
THE IRONY OF OBAMA'S JUSTICE DEPARTMENT
It is ironic that the Justice Department in attempting to shield Schroeder from prosecution for her crimes, while prosecuting Bonds for his, has likely caused the perhaps valid prosecution of Bonds, although questionable at best, to be placed in jeopardy or question. Where, if it had prosecuted Schroeder for her crimes, as it should have, and as it did Bonds for his, Schroeder, likely, would not have been available to decide Bonds' appeal; therefore, she could not have placed Bonds prosecution in jeopardy.
It is also ironic that the Justice Department, in providing favorable treatment to Schroeder which was meant to help keep her out of trouble, while providing Bonds with unfavorable treatment meant to keep him in trouble, may see its objectives reversed because Schroeder heard and decided Bond's appeal. That is, with a finding that Schroeder should not have decided Bond's appeal, the results may be that Schroeder ends up in trouble and Bonds ends up out of trouble.
THE INJUSTICE OF OBAMA'S JUSTICE DEPARTMENT, WHICH IS "FOR WHITE PEOPLE ONLY"
So, why did the Justice Department prosecute Barry Bonds and not prosecute Mary Schroeder, when they both committed the same crime (obstruction of justice)? :
1. Could it be that Schroeder's obstruction was less serious or less severe than Bond's obstruction? I think not. First of all, even though Bonds waivered in answering a specific question (which was the basis of his conviction for obstruction of justice being affirmed on appeal), he eventually answered the question. Yet, he was still convicted of obstruction of justice, and Schroeder affirmed that conviction on appeal, stating that nonetheless, "The statement was. . . evasive" and "The statement was also at the very least misleading." However, Schroeder, when the above-stated questions were posed to her, refused to answer the questions altogether . Clearly, the refusal to answer a question at all is more serious and/or severe than waivering prior to answering the question. At least Bonds answered the question that was asked. Schroeder did not. Schroeder's violation was clear and absolute obstruction of justice, because she refused to answer the question at all, while Bonds' obstruction, if obstruction at all, was merely "temporary".
Moreover, Bonds obstruction of justice only affected Barry Bonds himself, while Schroeder's obstruction and other misconduct affected other parties, and more specfically, other litigants, i.e., Mr. Griffith, Ms. Andrews, and myself. Further, while Griffith, Andrews, and myself turned to the Court to protect our rights, Schroeder instead destroyed our rights, through the obstruction and other misconduct.
In fact, Schroeder's obstruction of justice was done for the specific purpose and with the specific intent to deny me my due process right to have a full court (en banc) consider whether my case could be re-heard and decided by the full court. And, through her actions, I was finally denied that right.
As a footnote to this discussion, I think there is a serious question as to whether Bonds could legally be convicted of obstruction of justice after answering the question that was asked. But that's a discussion for another time perhaps. However, had I been Bonds' appellate attorney, I would have raised this issue on appeal. I would have argued that even if bonds had temporarily obstructed justice in fudging on answering the question initially, he repaired or corrected the obstruction when he finally answered the question. I am a federal appellate attorney. Furthermore, if every witness who "fudged" or avoided answering a question before finally answering it (during a criminal or civil proceeding) was charged with obstruction of justice for "misleading" the Court, criminal courts nationwide would be overwhelmed with obstruction of justice cases and trials. Witnesses (a few) do this all the time, when they do not wish to answer a certain question. Sometimes judges are called upon to make them answer the specific question that was asked. But, the witnesses are not charged with obstruction of justice. Bonds was charged with obstruction of justice because Bonds is Bonds.
2. Could it be because Bonds' obstruction occurred during a grand jury investigation, while Bonds was on the witness stand before a grand jury? Again, I think not. Because the statute that Schroeder relied on to affirm Bond's obstruction of justice conviction is the same statute that applies to her obstruction crime, and that statute, 18 U.S.C. sec. 1503, applies to, among other proceedings, all judicial proceedings, including grand jury, trial, appellate proceedings (which is the focus of Schroeder's obstruction of justice charge), etc.. The statute simply states, in part, "Whoever. . . corruptly. . . obstructs. . . or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided . . . ." Therefore, "That portion of the statute, known as the omnibus clause, is comprehensive. We have described it as being 'designed to proscribe all manner of corrupt methods of obstructing justice.'" (Citation omitted). United States v. Bonds, NO. 11-10669, September 13, 2013, 9th Cir., (Slip Opinion). In fact, per Schroeder herself (who authored the opinion), "The essence of the statute is that it criminalizes conduct intended to deprive the factfinder (one of whom was myself) of relevant information." Id., at 10. Moreover, "Section 1503 punishes any 'endeavor' to obstruct." Id., at 13. That is, "It 'procribes all manner of corrupt methods of obstructing justice.'" (Citation omitted). Id.
3. Could it be because Schroeder is a judge and Bonds is just a professional baseball player? Probably. But, it's neither legal nor constitutional. Unlike conduct occurring during civil actions, which is usually protected by judicial immunity, judicial misconduct which amounts to a crime (or is criminal) is not protected by judicial immunity, therefore, the Justice Department cannot refuse to prosecute Schroeder because she is a judge. Again, it's neither legal nor constitutional (in terms of due process and equal protection of the law). And, as some proof that Schroeder was not prosecuted because she is a judge, I cite the recent case of an ex-BP engineer who was convicted of "obstructing an investigation of the 2010 oil spill in the Gulf of Mexico." L.A. Times, "Ex-BP engineer convicted in gulf oil spill case", December 19, 2013. According to the Times, "A former BP engineer has been convicted of obstructing an investigation of the 2010 oil spill in the Gulf of Mexico, in the first criminal trial to result from environmental disaster." Id. "(A) drilling engineer who formerly worked for the oil giant, was convicted Wednesday of obstructing the investigation of the massive spill. . . ." Id.
So why was a BP engineer prosecuted for obstruction of justice, but Schroeder wasn't? ANS: Because, at least in part, Schroeder is a federal judge and the engineer is just an engineer. Furthermore, according to the Times, Mythili Raman, acting assistant attorney general of the Justice's Department's Criminal Division, stated (after the verdict was returned in New Orleans) "This prosecution shows the commitment of the Justice Department to hold accountable those who attempt to interfere with the administration of justice." Id. So, why isn't the Justice Department holding Schroeder accountable, as compared to the engineer ? ANS: Because she is a federal judge (and because the Complaint against her was brought by a Black male). But, she is not legally protected from prosecution.
4. Could it be because Schroeder is a (white) female and Bonds is a (Black) male? Yes. But, once more, it is neither legal nor constitutional (due process and equal protection of the law). While the Justice Department (U.S. Attorney Office in Los Angeles) has protected (from prosecution) both male and female Defendants in the 2007 Complaint, I believe that it has provided "extra" protection to Schroeder because she is a white female, here, being pitted against a black male, Bonds, for the same crime. Quite illustrative of this circumstance in Los Angeles is the case of Teresa Evans, a white female police officer, versus Christopher Dorner, a former (and deceased) black male police officer (who killed several people in pursuance of clearing his name) and the Los Angeles Police Department (LAPD). When the LAPD was faced with charging either Evans, the supervising officer (at the scene) or Dorner with kicking an arrestee, it chose to charge Dorner with lying about the kicking rather than charge Evans with the actual kicking, although it had significant evidence supporting the proposition that Evans actually kicked the arrestee. The LAPD chose to accept the word or position of a white female supervising officer, Evans (who denied doing the kicking), over the testimony (supported by substantial, including eyewitness-victim, evidence) of a Black officer, Dorner, to protect the white female officer from guilt or liability (even if it was at the sacrifice of Dorner losing his job). Here, when Obama's Justice Department received Schroeder's Complaint in 2008-2009, it decided that it would protect Schroeder from prosecution, notwithstanding evidence of an absolute obstruction of justice, because Schroeder was a white female federal judge (former chief judge). On the other hand, when Obama's Justice Department had to decide whether to prosecute Barry Bonds for obstruction of justice, after Bonds' grand jury testimony, it decided that it would not protect Bonds, notwithstanding his high profile and record-setting status and his questionable obstruction of justice, because he is a black male. It decided that it would treat Bonds like it does other Black males , and other Black males would be prosecuted for the questionable obstruction of justice, so Bonds would be too, notwithstanding the effect that it might have on his Hall of Fame future.
So, Schroeder was protected, at least in part, because she is a white female, and Bonds was not protected, at least in part, because he is a Black male.
5. Could it be because Schroeder is white and Bonds is black? Yes. But, it is neither legal nor constitutional (due process and equal protection). Even if there are other reasons for the Justice Department prosecuting Bonds and not prosecuting Schroeder, clearly the fact that Bonds is Black and Schroeder is white is one reason. "But much of the reaction to Bonds is simply bad old-fashioned racism. Not since Jack Johnson has an athlete become the repository for so much racial animus--and revealed broader gaps in Black and white perceptions--as Barry Lamar Bonds." Zirin, D., "The Unforgiven: Jack Johnson and Barry Bonds", International Socialist Review, July-August, 2007. "But the Black-white divide on Bonds is not about people being 'more concerned with race than right.' Rather, it represents a visceral response to the way Bonds has been subjected to criticism when white players with reputations of steroid use haven't gotten nearly the heat he has. For instance, suspicions have swirled around future Hall of Fame pitcher Roger Clemens, but he hasn't come close to receiving Bonds' level of media and investigative scrutiny." Id. But, again, prosecuting Bonds because he is Black, and not prosecuting Schroeder because she is white is neither legal nor constitutional. Clearly, it's a denial of equal protection of the law to Bonds.
Consequently, there are no legitimate or justifiable reasons for the Justice Department to have prosecuted Bonds and not prosecuted Schroeder for obstruction of justice, especially since both could have been indicted at the time Bonds was indicted, i.e., 2007.
Schroeder should have been prosecuted like Bonds was. Schroeder should have been prosecuted when Bonds was, i.e., 2007. And, she should be prosecuted now.
OBAMA'S "FOR WHITE PEOPLE ONLY" JUSTICE DEPARTMENT
Clearly, Obama's Justice Department is "for white people only". That is, the Justice Department generally prosecutes cases or people that white people want prosecuted and, conversely, do not prosecute cases or people that black people want prosecuted. The prosecution of Barry Bonds, when placed in the context of our 2007 Complaint and the recent murders of Oscar Grant, Trayvon Martin, and now Miriam Carey, vividly illustrates the point.
A significant number of white people wanted Barry Bonds prosecuted for something, anything, as long as he was prosecuted. "This just wouldn't be America if somehow race didn't factor into things. And what jumps out is that blacks tend to be twice as likely as whites to support Bonds' grab for the history books. Going with a New York Times/CBS News poll, 57 percent of blacks are rooting for Bonds to break the record, with only 29 percent of whites showing similar support." NPR, "The Unforgivable Blackness of Barry Bonds", John Ridley, July 23, 2007. "Bonds has also earned the ample attention of the federal government that has joined the media in the Get Barry Brigade." International Socialist Review, supra. "Federal prosecutors have made it all too clear that they want to imprison Bonds for perjury, tax evasion, anything short of kidnapping the Lindbergh baby. One writer cited an agent saying, 'He's our Capone.' The anti-Bonds cottage industry has become so bombastic, so disproportionate to his alleged offenses, that it is having an ugly and divisive effect on society." Id. "Mainstream radio is a veritable 'I hate Barry' parade." Id. "Countless black athletes have been adored and appreciated by fans of all races. Only difference : They were not Barry Bonds." USA TODAY, "Bonds' attitude, not his race, triggers fans' disapproval", Editorial/Opinion, April 4, 2006.
This desire for Bonds' prosecution was in large part based on Bonds' attitude and the white public's reaction to that attitude. "The amount of media detritus hurled at Bonds boggles the mind. As Jeff Pearlman, a writer for ESPN wrote, Barry Bonds is an evil man. A truly evil man. As a husband, he has cheated on both his wives. As a father, he has been absent and indifferent. As a role model, he has spit at autograph seekers and directed kids to 'f--- off'. As a Giant, he has held a franchise hostage and refused to help teammates in need. As a blatant abuser of steroids and human growth hormone, he has deprived the game of integrity and turned its record books into mush." International Socialist Review, supra. Very few Black people reacted to Bonds' attitude the way white people reacted to it. "(H)e generates animosity because he's a straight up, uh. . . jerk. He's a cocky guy with a bad attitude who does not care one thing for being liked, and I think that plays differently with some blacks ---some, in this case, being that divergent 28 percent. Why? Because likability has never been an issue with blacks." NPR, supra.
And so, because white people wanted Bonds prosecuted, the Obama-Holder Justice Department prosecuted Bonds.
On the other hand, Black people (including myself) wanted George Zimmerman, Johannes Mehserle, and Schroeder prosecuted, but the Justice Department has refused to prosecute any of them, because Black people want them prosecuted.
Thus, under the "black" leadership of President (Barack) Obama and Attorney General (Eric) Holder, the Justice Department, in some ways, has returned us to the days of the old Jim Crow South, where whites, at times, could mistreat blacks as they saw fit, and generally nothing was done. While Black people, including Dr. Martin Luther King, Jr. and others, have lost their lives and put their lives on the line (e.g.,Congressman John Lewis) to get rid of "for colored only" and "for whites only" signs of the early Civil Rights Era, our black leadership today is progressively taking us back there, beginning with the Justice Department. And, there's no attempt to disguise it. While Obama and Holder make civil rights speeches purportedly supporting Black rights, their actions are not supportive of the speeches. Rather, their actions are indicative of a new sign that should be placed in front of the Justice Department, "For White People Only."
BARRY BONDS HAVE A RIGHT TO A NEW APPEAL BEFORE A NEW THREE-JUDGE PANEL
The consequence of judge Mary M. Schroeder presiding over Barry Bonds' appeal must be a new appeal for Bonds before a new three-judge appeals panel. And there is a serious question as to whether Bonds new appeal should be heard before a different Circuit, because the Ninth Circuit judges may have a tendency to want to sustain the affirmation of Bonds conviction in order to support a colleague and demonstrate that Schroeder's ruling would have been the right one regardless of the inappropriateness of her presiding over Bonds appeal. But that's an issue for Bonds' attorneys to address.
Additionally, while I will leave it up to Bonds and his attorneys how they wish to approach the matter, I will offer the following based on some information that I am aware of:
I believe that Schroeder ought not have presided over Bonds appeal in the first place, because of the pending criminal Complaint against her; but especially, because of the identical claim lodged against her, obstruction of justice. I think it presented an appearance of impropriety, as well as a conflict of interest for Schroeder, based on the fact that Schroeder wasn't prosecuted by the Justice Department for the same crime or criminal offense. That is, it could easily be perceived that Schroeder had a personal interest in affirming Bonds' appeal of his conviction, to wit: she owed the Justice Department a favor for not prosecuting her for the same crime (and the rest of the crimes that she is charged with), while simultaneously, knowing (at least via press coverage) that the Justice Department wanted Bonds convicted of something, anything. So, she returned the favor and affirmed Bonds' conviction for obstruction of justice. "Federal prosecutors have made it all too clear that they want to imprison Bonds for perjury, tax evasion, anything short of kidnapping the Lindbergh baby." International Socialist Review, supra. However, even without Schroeder's personal interest, the Justice Department had a duty, with knowledge of the Complaint against Schroeder, to not only investigate the Complaint while informing Schroeder, but to move for the recusal of Schroeder if Schroeder did not voluntarily recuse or self-recuse. So, the Justice Department is equally as liable as Schroeder for Schroeder presiding over Bonds' appeal. Actually, the Justice Department is more liable than Schroeder because the Justice Department's investigation and prosecution of Schroeder for her crimes would have prevented Schroeder from even being considered for assignment as a panel judge, thereby preventing Schroeder from playing any role in Bonds' appeal.
Schroeder should have recused herself from hearing Bonds appeal. Furthermore, under the circumstances, she was required to do so. In a similar case involving 9th Circuit Judge Alex Kozinski, the Ninth Circuit affirmed the decision of judge Kozinski to recuse himself from presiding over an obscenity trial in which it could have been concluded that he had an interest in the subject matter and/or outcome of the trial, or that in someway his personal life's endeavors had a connection to the subject matter of the trial that might be prejudicial to one of the parties in the case. That case was U.S. v. Isaacs, District Court(D.C.). No. CR 07-732-GHK. Briefly, from Wikipedia :
Kozinski was assigned an obscenity case in which Ira Isaacs was accused of distributing videos depicting bestiality and other images, similar to the 1973 Miller v. California case. During the trial, on June 11, 2008, the Los Angeles Times reported that Kozinski had "maintained a publicly accessible Web site featuring sexually explicit photos and videos" at alex.kozinski.com. The Times reported that Kozinski's site included a photo of naked women on all fours painted to look like cows, a video of a half-dressed man cavorting with a sexually aroused farm animal, images of masturbation and public and contortionist sex, a slide show striptease featuring a transexual, a series of photos of women's crotches as seen through snug fitting clothing or underwear, and content with themes of defecation and urination. Kozinski agreed that some of the material was inappropriate, but defended other content as "funny". Kozinski initially refused to comment on disqualifying himself, then granted a 48-hour stay after the prosecutor requested time to explore "a potential conflict of interest." On June 13, Kozinski petitioned an ethics panel to investigate his own conduct. He asked Chief Justice John Roberts to assign the inquiry to a panel of judges outside the 9th Circuit's jurisdiction. Also, he said that his son Yale, and his family or friends may have been responsible for posting some of the material.
On June 15, 2008, it was reported that Kozinski had recused himself from the case.
(End of Wikipedia information).
Kozinski, apparently (and based on my knowlege and information) did not provide any specific reasons for recusing himself. He simply stated that he was recusing himself from the case. But his recusal was clearly based on the connection between his personal life's endeavors (his website with the pornographic materials that could be questioned as "obscene") and the actual obscenity trial, where a defendant was on trial for distributing obscene materials.
Both the District Court and the Ninth Circuit upheld Kozinski's recusal. Neither court determined that Kozinski should not have recused himself from the case. The District Court stated, "Under 28 U.S.C. sec. 455(a) a judge must recuse himself if 'a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" U.S. v. Isaacs, No. CR 07-732-GHK, Order Denying Defendant's Motion to Dismiss Indictment With Prejudice, September, 2008. And the Court went on to state, "The purpose of (sec.) 455 is to 'promote public confidence in the integrity of the judicial process.' (Citation omitted). With that in mind, the question before us is not whether Judge Kozinski had any actual bias, either for or against Defendant or the Government, but whether a reasonable person with knowledge of all the facts would conclude that his impartiality might reasonably be questioned." (Citation omitted). . . . Therefore, based upon the entire record, taken in context and its entirety, we find and conclude that Judge Kozinski's recusal was required by 28 U.S.C. (sec. 455(a)." Id.
The Ninth Circuit stated, "Judge King did not err in ruling that Judge Kozinski properly recused himself from Isaacs's case under 28 U.S.C. (sec.) 455(a). In analyzing (sec.) 455(a) recusals, we ask 'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.' (Citation omitted)." U.S. v. Isaacs, No. 08-50423 (9th Cir. 2009)(unpublished Memorandum). Most importantly, "We find that a well-informed observer may reasonably have questioned Judge Kozinski's ability to act as an impartial judge in Isaacs's trial. Thus, we affirm Judge King's determination that the recusal was proper under (sec.) 455(a).'" Id.
Schroeder's connection in the Bonds' appeal : Schroeder's personal life and judicial endeavors were (1) she exercised conduct or misconduct as Chief Judge of the Ninth Circuit that amounted to obstruction of justice (judicial); (2) she was charged (by Complainants) with obstruction of justice (centered on her response to questions on appeal related to illegalities) and other charges by multiple parties (personal); (3) she was not prosecuted by the Justice Department (personal); and (4) Bonds and his lawyers were probably not aware of this information when Schroeder presided over Bonds' appeal (and Schroeder and/or the Justice Department had at least an ethical duty to disclose the information, particularly information that there was an unresolved criminal Complaint against Schroeder charging her with racial discrimination directed against a Black male (like Bonds), to Bonds and his lawyers)(personal/judicial). Schroeder's endeavors were connected to Bonds' appeal because Bonds' appeal was from a conviction for obtruction of justice (which is the same crime Schroeder was charged with) and it was centered on Bonds' response to a grand jury question (like Schroeder's obstruction was centered on Schroeder's failure to respond to an appellate question).
Moreover, an additional reason why Schroeder was required to recuse herself was because of the above-mentioned charge of racial discrimination lodged against her via 18 U.S.C. sec. 242, that is, violation of a constitutional right under color of law and based on race or color. Again, this was an unresolved claim of racial discrimination exercised against a Black male that was brought against Schroeder in the criminal Complaint. At minimum, because it was unresolved, the charge or claim created an appearance of impropriety and impartiality for Schroeder to preside over and decide the appeal of Barry Bonds, who is a Black male. If Schroeder had been prosecuted, tried, and found guilty of the racial discrimination charge, it would be beyond an "appearance" of impropriety, and it would have been absolutely improper for Schroeder to preside over Bonds' trial, because it would have been proven that she was prejudiced against Black males. If Schroeder had been found not guilty of the racial discrimination charge, then, with respect to Bonds being a Black male, it would not have presented an appearance of impropriety or impartiality for Schroeder to preside over Bonds' appeal. However, since Schroeder has not been prosecuted and tried for the racial discrimination charge, and since the charge is so serious (and, in fact, a felony), and so prejudicial (to Bonds, if true), it created an appearance of impropriety and impartiality for Schroeder to have presided over Bonds' appeal. Criminals are ordinarily, and generally, arrested based on criminal complaints alone. Especially, when the complaints are based on eyewitness testimony and/or documentary evidence (which was the case for Schroeder). In fact, there would be an appearance of impropriety and impartiality for Schroeder to preside over the appeals of any black males until the pending racial discrimination charge against her is resolved.
Plus, Schroeder was charged with other offenses, such as : either through participation or approval, (1) allowing the Clerk to fraudulently change the true title of a case to a false title (and false District Court case number) in order to coverup misconduct by the Clerk herself (who was actually named in the true title, and she removed her name in the false title)(and we can see the effects of utilizing false documents and fraud by way of two convicts serving life sentences who were able to escape or leave prison relying on false documents and fraud--see the L.A. Times article, "Police recapture two Florida prison escapees", October 20, 2013, where "The bogus paperwork, complete with case numbers and the forged signature of a judge, duped prison officials. It purportedly reduced the men's sentences to 15 years"); and (2) causing Griffith (a Social Security disability claim appellant) to be denied a due process appeal by inappropriately and invidiously removing his case from an oral argument calendar (or deciding the case without oral argument after it had been calendared for argument), and subsequently denying him relief, because neither Griffith nor I, as his counsel of record (and only counsel on appeal), would accept a white lawyer designated by the Court (through the Clerk) to either join the appeal and/or argue the appeal of Griffith's case.
NOTE: The Ninth Circuit had no problem with me arguing a criminal, no-money, case alone (while representing a black client), see Jackson v. Giurbino, 364 F.3d 1002 (9th Cir. 2004)(I was retained by Jackson's parents and when I entered the case, Jackson was proceeding pro se and had already filed his Opening Brief--which is why there were so many issues raised in the case--so I had to file a Supplemental Brief, and it was the Miranda issue that I raised in my supplemental brief that caused the vacation of Jackson's murder conviction), but because the Griffith case potentially involved a substantial amount of money (perhaps $2 million), the Court decides it wants to force a white lawyer on both my client and I. We rejected the offer. The act of attempting to interject a white lawyer into our case unsolicited was both racism and racial discrimination. Yet, we received no relief for this conduct either (with the court intentionally denying Griffith relief--without putting it's intent in writing--because we refused to accept a white lawyer as part of our case).
Therefore, it appears that, under the circumstances of Schroeder's conduct or misconduct and the connection of that conduct to Bonds' appeal, Schroeder was required to and should have recused herself from hearing and deciding Bonds' appeal. Bonds must be given another appeal before a new and different three-judge panel.
BONDS HAS A RIGHT TO CHALLENGE HIS CONVICTION; AND THAT SHOULD BE HIS PRIORITY
Bonds also has a right to challenge his lower court conviction, based on selective prosecution and/or denial of equal protection of the law. And, it appears, this challenge would present Bonds with his greatest potential for exoneration of the obstruction of justice charge; therefore, this should be his first priority with respect to challenging the appeal. Because, if he is successful in challenging the conviction itself, he may not need to exercise his right to a new appeal. Moreover, a new appeal would still leave the possibility of the conviction being affirmed again; while, a successful challenge of the conviction would foreclose this possibility. Moreover, if Bonds has any desire to be admitted to the Hall of Fame, and he should have, based on his accomplishments, i.e., he's earned it, he must at least try to rid himself of the felony conviction. I know of no Hall of Famer admitted with a felony conviction on his record. And, for those searching for reasons to keep Bonds out of the Hall, the felony conviction is the easiest and best one. That is, "They didn't get him on the perjury counts, but they got him on something, and that's enough to keep him out of the Hall of Fame." A current example of the effect that a felony conviction might have on the prospect of Bonds entering the Hall of Fame is the case of Jameis Winston, the Black quarterback of Florida State University, who was faced with a rape charge and conviction and who is a prospect for being awarded the Heisman Trophy (for being college football's best player). The Florida state attorney has now decided not to bring charges against Winston, so his Heisman prospects should not be affected. But, its clear that a felony conviction would have had a near lethal, if not lethal, effect on his Heisman prospects; if not for this year, for future years (Winston is a redshirt freshman). "No charges for Winston. . . he still has a shot at the Heisman", L.A. Times, December 6, 2013. "Winston, had he been charged with a felony, would immediately have been ruled ineligible by Florida State and his Heisman chances would have been gravely imperiled." Id. "Because Winston was not charged, . . . (m)any Heisman voters had their consciences cleared enough to pull the lever for Winston in advance of next Monday's voting deadline. One Heisman voter, on the fence before Thursday's ruling, said he was now leaning toward casting his first-place vote for Winston." Finally, "Thursday was a good day for Florida State and Winston. It was also a good day for Heisman voters, who won't have to worry about voting for a player who may end up convicted of a felony." Id. UPDATE: Jameis Winston has now won the 2013 Heisman Trophy!
But, entrance into the Hall of Fame should not be the most important reason for Bonds challenging the felony obstruction conviction. The most important reason should be his own integrity and dignity. Bonds did not obstruct justice, and he now has a second opportunity to demonstrate that. Once the door is opened by the selective prosecution and/or equal protection of the law defense, Bonds can again challenge the sufficiency of the evidence which was used to convict him. I believe that he would prevail in his challenge.
Lastly, if Bonds does not challenge his conviction when he has an opportunity to do so, it would reveal a level of lack of self-respect and weakness that would be embarrassing to Bonds and an injustice to the men, women, and children of the civil rights movement, who significantly helped produce the Civil Rights Act of 1964; and particularly so for those who lost their lives, in order for Bonds, as a Black man in America, to have the right to exercise this challenge. Further, it would also ignore the contributions of those who lost their lives on the way towards erection of the Fourteenth Amendment to the United States Constitution.
I will submit a copy of this blog to Barry Bonds and his appellate attorneys, or at least notify them in some way.
**UPDATE--August 15, 2014
Thusfar, I haven't heard anything about Bonds' response to my blog, or to his appellate situation. That is, I haven't heard of any actions taken by Bonds in response to my blog, and I sent him a copy of the blog (addressed to him and his attorneys at the address of the law firm of his appellate attorneys).
If he doesn't take any action, I will absolutely lose respect for him, and I will have no sympathy for him regarding his conviction, his appeal, or the Hall of Fame. Any negative outcomes that he receives will be his own doing for not fighting for his civil and/or constitutional rights and likely listening to white lawyers, who generally, though not always , are part of the system themselves, that is, the white establishment, as far as challenging the system (in this instance, the court systems)in an assertion of civil/constitutional rights involving race and Black people.
In earlier years, Bonds was rebellious and anti-establishment, and was generally ostracized for it (as noted above). But, generally, he didn't care, and maintained his autonomy, which the white establishment characterized as an "attitude". I respected him for being himself.
Now, after baseball and his conviction, Bond has appeared to take a "new" attitude. He says, for instance, whatever the Court of Appeals decides is fine with him (in so many words). He agreed to serve his time and has done so. He purportedly stated earlier, "I went through the system. And that's what it is." ESPN.com news services, May 28, 2012.
But, now, he has an opporunity to challenge the system in the protection of his constitutional and/or civil rights, not only for himself, but for others, especially other Black men who have been denied their constitutional rights at trial and on appeal.
So, now the 9th Circuit, after the publishing and re-publishing of this blog, has decided to grant Bonds a rehearing of his appeal. How convenient! But, Bonds has a right to a new appeal now, and a right to challenge his conviction, regardless of the grant of a rehearing. However, Bonds must pursue those rights. Otherwise, he must wait and rely on the 9th Cir. to decide his justice. The same Ninth Circuit that affirmed his conviction with a judge who ought not have been on the appellate panel.
On OBAMA'S "FOR WHITE PEOPLE ONLY" JUSTICE DEPARTMENT
We can now add to the list of people that Black people want prosecuted based on recent events. Black people now want the racially motivated killers of Eric Garner of New York, Michael Brown of Missouri, and Ezell Ford of California prosecuted for civil rights violations involving and resulting in death. Black people also want the California Highway Patrol Officer that beat the Black woman, Marlene M. Pinnock, near or on the Santa Monica Freeway in Los Angeles, California prosecuted for civil rights violations resulting in bodily harm.
Let's see how many, if any, are prosecuted federally, or by the federal Justice Department. And, the Justice Department need not wait for state action in order to conduct its own investigation and to bring its own prosecution. And, with the multiple eye witnesses who have appeared and given statements, there clearly is sufficient probable cause evidence to make an arrest for civil rights violations, with or without a hate crime element.
However, it is likely that the only thing that's going to happen is the Justice Department is going to pretend to investigate (that is ,give the appearance of investigating--some investigation will clearly be done, but, the Justice Department knows, at the time, that it has no intention of bringing a federal prosecution. In other words, it's for show only. While Obama and/or Holder will give speeches on how the country needs to come together, but not get violent, while nothing gets done in terms of prosecuting the white police officers who murdered the young Black males. And, without a federal prosecution of any of the white police officers who murdered or assaulted/battered the Black males and/or female, i.e., Garner, Brown, Ford, and Pinnock, or otherwise deprived them of their constitutional rights under color of law and based on race or color, Obama's Justice Department continues to be "for white people only".
Finally, although Obama and Holder are Democrats, it took a Republican, Sen. Rand Paul, to address the issue of racism and racial discrimination head-on with respect to the murder of Michael Brown and the criminal justice system as applied to minorities, particularly black and brown men and women. "Anyone who thinks that race does not still, even if inadvertently, skew the application of criminal justice in this country is just not paying close enough attention." "Our prisons are full of black and brown men and women who are serving inappropriately long and harsh sentences for non-violent mistakes in their youth." Quotes by Paul, according to the L.A. Times, "No law-and-order Republican", August 15, 2014. Race and racism is clearly a part of the murder of Michael Brown, and if the Justice Department would acknowledge that, maybe it would do something or work for Black people as it does for whites.
UPDATE--April 25, 2015
A few days ago, the Ninth Circuit issued its en banc decision in the Bonds' case. Bonds' conviction for obstruction of justice has now been reversed. Surprise!! Please.
It was quite expected. *This provides Bonds with positive relief without implicating (or discussing) Judge Schroeder; and Bonds need not pursue the matter further (which might also implicate judge Schroeder).
And, as I stated and forecasted above, the en banc Court found that there was insufficent evidence with which to convict Bonds of obstruction of justice. See above where I stated, "Once the door is opened by the selective prosecution and/or equal protection of the law defense, Bonds can again challenge the sufficiency of the evidence which was used to convict him. I believe that he would prevail in his challenge."
The en banc Court found, in its Per Curiam decision, "A reversal for insufficient evidence implicates defendant's right under the Double Jeoppardy Clause. (Citations omitted). His conviction and sentence must therefore be vacated, and he may not be tried again on that count."
But, the Justice Department and Judge Schroeder got off the hook, because Bonds refused to assert his constitutional rights. And, for this, I disrespect Bonds.
More later.
**UPDATE--April 30, 2015
WHY WASN'T JUDGE SHROEDER A MEMBER OF THE NINTH CIRCUIT EN BANC PANEL?
Judge Shroeder, who wrote the Bonds' panel decision, was not a member of the en banc panel. This is unusual. Ordinarily, the author of the three-judge panel upon en banc review is usually a member of the en banc panel. That was not the case here. I wonder why or why not? Could it have anything to do with my blog?
More next time.
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