From the May 2009 Idaho Observer:

"It" is actually legal fiction wearing miseryís pajamas


Iíve been a subscriber for a couple years now and I want to let you know I have learned a lot of things through your articles. Also, I now have a better understanding of many things that are going on in America and around the world and how it all is interconnected. Some of the things I felt were not quite "right" I now see, without any doubt, are in fact NOT right at all.

Iíve been challenging a murder conviction from within an Ohio prison. Iíve been lucky enough to have another prisoner teach me how to use the law library and how to see legal theory and doctrine. There are many things I still cannot understand and may never come to understand, such as: If the government convicts someone and says that person has a right to appeal all the way to the Supreme Court of the United States, then why is that person not given an attorney to fight through all of those courts? Why is that person required to learn and abide by all the differing court rules, meet strict time constraints and be able to write coherent legal arguments?

Further, how can a government that is supposed to be by the people and FOR the people mandate prisoners research, prepare and file their respective petitions using whatever resources are made available by the state or federal government agencies that are incarcerating them? And why all the convoluted legal constructivist garbage that disallows review in the federal courts of a state court conviction? A violation of the Fourth Amendment by state agents, for example, is said to NOT be cognizable in the federal courts. A mere footnote from Townsend v Sain (372 US 293 [1963]) is relied upon by the government in order to excuse state officialsí constitutional violations - this causes many prisoners to die in prison from unconstitutional convictions hinged on the Fourth Amendment violations.

Even more maddening is the fact that all convictions in America are founded upon "legal fiction." Legal fiction, as Iíve come to know the term, is anything made up by a court, such as an opinion or an order. All case law, then, is legal fiction. It is said to be legal fiction because it is all based on theories. Each ruling in a criminal case began with a ruling based upon a theory. Sometimes no one involved in the case actually knows what happened. This is seen when someone is accused of a murder where there are no eyewitnesses or other material evidence. If that person is convicted, the conviction is based upon a theory the government came up with out of its collective imagination. A theory it was able to sell to the jury at the cost of a man perishing in prison. This cannot be what the Founding Fathers meant to be when they gathered at the Constitutional Convention.

What, exactly, has happened since then to cause such malfeasance and outright disregard for the very document this country was founded upon? What is it that caused government officials to act with such seeming wanton disregard for the rights of anyone but themselves? What must happen in order to regain confidence in the government and restore real meaning to the words "justice" and "freedom" when spoken in the alleged courts of law? Is it all doomed? From my berth within the trenches of legal battles I might be too close to the trees myself to see the forest.

Whatever must occur to right the abuses of government, Iím hopeful it will happen soon for the sake of us all.

I thank you for your enlightening paper and look forward to reading, studying and learning more through your articles.

Eric Babos

Toledo, Ohio