The invidious discrimination in Utah’s criminal justice system

Miller, R. Henry

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The Invidious Discrimination in Utah's Criminal Justice System by R. Henry Miller The Utah legislature practically insists that judges practice invidious discrimination in their rulings and administration or court proceedings. The Utah Judicial Code of Conduct, Section 12, Canon 2C, says, "A judge shall not belong to any organization, other than a religious organization, that practices invidious discrimination on the basis of race, sex, religion, or national origin" (emphasis added). What the canon actually says is that judges shall belong to a religious organization that practices invidious discrimination. In Utah that is the Church of Jesus Christ of Latter-Day Saints (LDS), the Mormons. A former Utah judge told me the LDS church recruits all influential Utahans into high-ranking church positions. The judge's recruiter told him, "Remember, you may be a judge, but you're a brother in the church first." The implication, explained the judge, was that church dictates supersede the law and the Constitution. That is patently unconstitutional. It is also responsible for an excessively high rate of criminal convictions. The Utah defense attorneys have estimated the state's wrongful-conviction rate at 40 percent, ten times higher than the national average, and the U.S. incarcerates more people than any other nation on Earth. The conviction rate of actually innocent citizens is about 18 percent, also ten times higher than the U.S. average. The total number of state inmates in Utah is approximately 3,500. So, there are about 1,000 to 1,400 prison inmates who were wrongly convicted or who didn't commit a crime. A wrongful conviction here means a conviction for a more serious crime than the person actually committed. For example, "John Doe" may have committed a class-A misdemeanor punishable by one year in a county jail. If the prosecutor feels he may not have enough evidence to win a conviction - or just out of vindictiveness - he may stack a third-degree and two second-degree felony charges on Doe. He then offers Doe a deal whereby he will drop the second-degree felony charges if Doe will plead guilty to the third-degree felony and first-degree misdemeanor charges. Public defenders are overworked, and Utah public defender offices are funded through the prosecutor's office, a built-in conflict of interest. Consequently, most public defenders will urge their clients to take the plea deal even though the fictitious felony charges are unprovable. Now, here's the catch: After Doe pleads guilty the judge is not obligated to accept the plea. If all of the sentences for all four convictions are run consecutively one after the other, Doe could spend up to 36 years in prison when the maximum he should have spent is one year. Utah's prosecutorial malfeasance is the result of the Mormon Church's control of all legal and political entities in Utah. State legislators define the Constitution in the light of Mormon doctrine. Senator Ron Allen told the Salt Lake Tribune, "As a general rule, [state] legislators believe the Constitution is divinely inspired as long as it is translated correctly" (Utah section, 1 February, 2004). Allen paraphrased LDS Article of Faith 8, which reads: "We believe the Bible to be the word of God as far as it is translated correctly." Allen was using "translate" as "to change from one form to another; to transfer or turn from one set of symbols into another" (Merriam Webster's College Dictionary, 10th Ed.). That is, Mormons believe the U.S. Constitution is divinely inspired as far as they can interpolate it into conformity with Mormon dictates. State legislators pass laws to help facilitate the circumvention of the Constitution and federal court holdings. Utah Criminal Code § 76-1-106 says, "The rule that a penal [code] is to be strictly construed shall not apply to this code, any of its provisions, or any offense defined by the laws of this state. All provisions of this code and the offenses defined by the laws of this state shall be construed according to the fair import of the terms to promote justice and to effect the objectives of the law and general purposes of section 76-1-104" (emphasis added). Laws must be construed strictly or the citizens cannot know if they are violating the law or not. And, if the offenses defined by statute are not strictly construed police and prosecutors can arrest and prosecute innocent citizens for almost anything, which happens in Utah with alarming regularity. The LDS Church, and thus the state's criminal justice system, is particularly sensitive to alleged sex-abuse cases. An article in the Mormon magazine "Ensign" said that pornography is anything that stimulates sexual desire. The definition would include a TV ad for a major-brand bath soap. Citizens, including myself, have been imprisoned for legal materials the LDS morals declared pornographic. Former Utah Governor Michael Levitt hired Paula Houston as the nation's first "porn czar." "In a state where the Mormon Church and its socially-conservative views influence almost all aspects of life, "Leavitt told the New York Times, the law would "codify our highest moral aspirations by adding state power to community efforts to fight what some residents regard as offensive," but not necessarily illegal (emph. add.). Houston echoed Leavitt when she said, "Community standards define what porn is. In Utah, these standards reflect the dominant Church of Jesus Christ of Latter-Day Saints" (CBS News, 12 March 2001). Utah attorney Noel Reynolds, then associate academic vice president of Brigham Young University, the epicenter of Mormon education, wrote in the Georgia Law Review: "These matters are to be determined issue by issue according to social circumstances and the strength of public feelings, and it is the person in the jury box who will make the final determination." The implication was that jurors should make their decisions based on their personal subjective feelings rather than according to law. Laws are partially based on the prevailing societal mores and ethics, which is why laws vary somewhat from state to state. But jury decisions must strictly follow the law, which must be grounded in constitutional principles. A primary responsibility of both state and federal legislators is to weace laws seamlessly into the fabric of our Constitution. Laws must also comply with federal court holdings that interpret and define the application of constitutional principles. Reynold's implication that the administration of law is to be subjectively determined only on (LDS) social custom and public sentiment flies in the face of the U.S. Constitution and its Bill of Rights. In Utah where almost all jurors are Mormons who are dominated by their church to the point where they are told what type of underclothes they must wear, and LDS judges practice invidious discrimination, fair trials for contrarian citizens is impossible. The U.S. 10th Circuit Court of Appeals said in United States v. P.H.E., Inc., that there is a long-standing punitive animus in the Utah judicial system that is designed to pressure certain classes of people into relinquishing their First Amendment rights. In other words, the constitutional rights of non-LDS citizens in Utah do not matter to the predominant Mormon majority; the numerically and politically more powerful Mormon prejudices simply subsume minority rights. My case is a typical example of Utah's inveterate hostility to alternative social mores and to anything federal. I was arrested by the West Valley City, Utah, police in 2002 for providing the FBI with information and evidence of internet child pornography. The legal description is that I had custody of images of questionable illegality in order to preserve their integrity until I could turn them over to the FBI. There was no conversion to possession for personal use. Custody means I had a guardianship, or protective care of the material. I had been been doing similar actions in my home state since 1993 with no problems. Plus, State's computer forensic expert testified that the questionable images were "not consistent" with images that would be proscribed (preliminary hearing, pp. 14-15): they could not be proven to violate state or federal law. Prosecutor Paul Parker stated he did not have a valid case when he made the following statements to the jury: 1) My defense was valid if they believed it. Parker then hoodwinked the jury into convicting me on personal subjective grounds rather than on the elements of the charged crime. 2) He did not have to "show" all the elements of the crime. It was enough if he could "show" only one: The law required him to prove all elements of the charged crime beyond a reasonable doubt or there was no crime. Parker could not prove even one. 3) It did not matter if the pictures were of children or not: I was charged with sexual exploitation of a minor, but State could not prove the pictures were of minors, and it admits there were no victims. Therefore there was no crime. But remember, Utah law allowed Parker to construe the law, charged, and elements however he wished. Legally and constitutionally, though, he had no case. Therefore, Parker conned the jury into convicting me because the internet images were "disgusting, they're repulsive." They certainly were. But "disgusting" and "repulsive" were not elements of the crime charged. And, no other Utah law makes "disgusting" and "repulsive" a crime. 4) "There is some innuendo, certainly, one could make that some of these [pictures] could have been produced by [me]" (emph. add.). No factual foundation existed for this remark. Convictions may not be based on speculation or unfounded innuendo but must be based on objective facts provable beyond a reasonable doubt. 5) "Everyone has been talking about this man. It's not a whodunnit. As a party to the crime. I haven't defined party to the crime because it doesn't apply here." It didn't apply, so Parker was acting improperly by mentioning it. He continued by improperly defining "party to the crime" as someone who could be charged "as if" he had committed a crime. My defense was valid, I did not violate the law. But, because the internet images destined for the FBI were disgusting and repulsive, there was some innuendo he could make that I could have committed a crime. Accordingly, Parker was prosecuting me as if I had committed a crime. Parker could not parade past the jury a litany of potentially prejudicial similar acts that were connected to me only by unsubstantiated inference. The improper remarks substantially prejudiced my right to a fair trial by undermining the presumption of innocence by placing on me the burden of proving my innocence. With no challenge by my attorney or corrective instruction by the judge, the jurors construed Parker's remarks as mandatory inferences of guilt. Fundamental due process law prohibits shifting the burden of proof to the defendant. My custody of questionable images should have been characterized merely as an evidentiary fact, not portrayed as requiring a reasonable explanation. The court's failure to correct Parker's misconduct, and failure to instruct the jury on proper purpose use and other exemptions, even though not requested by my attorney, was structural error requiring reversal of my conviction. Parker's primary duty to seek justice precluded his use of pharisaical bamboozlement of judge and jury to obtain an unreliable conviction to punish me because I had done only what the law plainly allowed me to do was a due process violation of the most basic sort. And, for state agents to pursue a course of action whose object was to penalize my reliance on my legal rights was patently unconstitutional. To punish me for what was my civic duty and social responsibility to do destroys the people's trust in its government, cripples law enforcement efforts and undermines the integrity of the judicial system. Defense attorneys are affected by LDS theo-judicial despotism. My attorney, Stephen Spenser, had an internal conflict of interest in that he believed me guilty simply because I had the images even though I "actually perceived [myself] as attempting to do something beneficial," because "regardless of the fact that's not technically a defense," a most peculiar position for a defense attorney. Having custody of material to turn it over to law enforcement is what sources and informants do every day. If that's not "technically" a defense then police could not legally use informants without arresting them for possessing contraband. Next, for a crime to be committed there must be a culpable intent. "Actually perceiving" myself as doing something beneficial negated culpable intent. Furthermore, the prosecutor told the jury my defense was valid. The Utah legislature's intent in passing the Sexual Exploitation of a Minor law was "to eliminate the market for those materials [that sexually exploit minors] and reduce the harm to minors inherent in the perpetuation of his sexually exploitive activities" (State v. Morrison, at 547, ¶ 6). That was exactly my intent. Spenser deliberately did not: 1) Move to have charges dismissed after the arresting officer testified to the existence of exculpatory evidence state could not produce. 2) Place exculpatory FBI memos proving my defense into evidence. 3) Move for dismissal of charges due to proven corruption of evidence. 4) Develop the point he made with State's forensic computer expert that the questionable images could not be proven illegal which was grounds for dismissal. 5) Raise proper purpose and other exemptions in his proposed jury instructions. 6) Correct Parker's misconduct at trial. 7) Object to two double jeopardy issues. Spenser's deliberately defective assistance of counsel denied me a fair trial with more than a reasonable probability of exoneration. In short, Spenser was as effective as a screen door on a submarine: He deliberately sunk my defense. His failure to raise issues that were dead-bang winners obvious on the record was such an objectively unreasonable performance that it fell below objective national standards. Had he raised these issues I probably would have prevailed at trial. The First Amendment Establishment Clause prohibits a government-established religion, and by extension prohibits Utah's LDS-controlled government. Utah cannot hamper its citizens in the free exercise of their faith or for the lack of faith. The indignity of being singled out for not adhering to LDS mores cannot be dismissed as insubstantial. Convicting and incarcerating an innocent citizen is harmful to his physical, psychological and emotional health. He may be confined for many years, or even for life. He is compelled to take classes designed for drug and alcohol abuse and gang members, subject to personal and property searches at any time, and he may not be able to attend the religious service of his choice. If he is allowed outside it is for only one or two hours a day. And sex offenders are in danger of attack by other inmates looking for an excuse to vent their hostilities. An inmate is not allowed into treatment if he is appealing his case claiming innocence, and his privilege levels will be dropped until he is accepted for the treatment waiting list. The only way he can get on the waiting list is to drop his appeal: forcing him to stop his appeal is unconstitutional. The indignities continue after he is released from prison. He may be on parole for years or for life. Utah has a "good landlord" law which prohibits landlords in many areas from renting to ex-convicts, and he will not be able to work in some occupations. Sex offenders may not take their children to a park. Police visit ex-convicts anytime there is a serious crime related to the person's conviction. And, Utah sex offenders must register with the police for 10 years to life. They have to register their car every year[superscript 1], so owning a car costs the offender four times as much as the average citizen. The offender's family is negatively affected also when an innocent family member is imprisoned. The family loses its main source of income, the wife loses her husband and the children lose their father; letters, phone calls and occasional short visits are poor substitutes to having him home with the family. The majority of wives divorce their husbands. The family is often ostracized by friends and neighbors. After a sex offender's release other parents will not allow their children to visit the offender's children at home: his children cannot have a home birthday party. His children may also be victimized by others who wrongly think his children must be complicit in some form of abuse. All considered, deliberately convicting an innocent person is a worse crime than whatever crime he allegedly committed. The Utah Supreme Court said 27 years ago, before the invidious discrimination got out of control, "It is because of the strong emotions which surround these areas that we must insure that trial proceedings are fair, and the rights of all concerned are protected. The only occurrence worse than the sexual abuse of a child would be the conviction and incarceration of an innocent defendant based on misleading and unreliable testimony" (State v. Rimmasch, 775 P. 2d 388, 390 (Utah 1989)). Utahans would, if they were aware of the oppressive forces at work, not countenance the trampling of their civil rights. This includes the average Mormon as well as non-LDS citizens. However, the situation is changing. Groups like the Utah Prisoner Advocate Network, and individuals like myself, are starting to publicize the abuses, and state legislators are noticing. Mahatma Gandhi said you must be the change you want to see in the world. The more people who rationally protest Utah's theo-judicial despotism the sooner it will be controlled. End Note: 1. I misspoke. It is their driver's license that must be renewed yearly.

Author: Miller, R. Henry

Author Location: Utah

Date: July 13, 2017

Genre: Essay

Extent: 9 pages

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