United States of America v - Center for Judicial ...



DIRECTOR’S LEGAL ANALYSIS OF THE SENTENCING TRANSCRIPTS

TAMPERING[1] (FALSIFYING OF OFFICIAL RECORDS) AND OBSTRUCTION OF JUSTICE[2] BY THE DC SUPERIOR COURT

in the case of United States of America v. Elena Ruth Sassower, M-4113-03

As reported by Doris L. Sassower, Director, Center for Judicial Accountability, Inc. (CJA), US Supreme Court Bar.[3]

SCOPE NOTE: This legal analysis and discussion concerns the sentencing proceeding in the criminal case of United States of America v. Elena Ruth Sassower, #M-4113-03, wherein she was convicted of the crime of “Disruption of Congress,[4]” a federal misdemeanor. It is important to make CJA members and supporters aware of newly discovered facts, providing clear and convincing evidence that serious crimes were committed in the above-captioned criminal matter, but they were committed by the DC Superior Court, where the criminal case was tried to conviction. Such may be gleaned from the most extraordinary fact that there are two separate official transcripts of the same June 28, 2004, sentencing proceeding[5], differing in marked respects hereinafter detailed.[6]

BACKGROUND: The government’s “Disruption of Congress” case rested on Ms. Sassower’s having respectfully requested to testify at a Senate Judiciary Committee Public Hearing[7] on the confirmation of one of President Bush’s nominees to a lifetime federal judgeship on the Second Circuit Court of Appeals (which includes her home state of New York. Within seconds of making such request, she was forcibly removed from the Senate Chamber, handcuffed with her hands behind her back, arrested and incarcerated for 21 hours until she was brought before a magistrate and charged with “Disruption of Congress.” The case was thereafter prosecuted by the US Attorney’s Office in the District of Columbia and tried before a jury through conviction by DC Superior Court Judge Brian F. Holeman, on a guilty verdict. Judge Holeman was, and is, a new judge, who had been nominated by President Bush as an Associate Judge of that Court on the very same day as Ms. Sassower’s arrest, at age 46, with no judicial experience and no criminal law trial experience. His judicial tenure on the DC Superior Court started on January 2, 2004 as well as his handling of this criminal matter, including the trial thereof, was his first and only encounter with a “Disruption of Congress charge.”

As noted, this legal analysis is limited to the sentencing aspects. However, the judicial misconduct reflected in the sentencing transcripts only replicates the similar misconduct revealed in the trial transcripts. With respect to the sentencing, Judge Holeman sentenced Ms. Sassower to the maximum six months imprisonment in a DC jail, plus (rather than alternatively, as the DC statute allows) payment of the maximum $500 fine allowable, plus the maximum $250 payment to the Victims of Violent Crimes Fund. Also recorded is the fact that Judge Holeman DOUBLED the amount originally imposed within seconds of her response, after being told by him, falsely, that she “must” accept the conditions he proposed for her release on probation, and being pressed by him for a “yes or no” answer, to punish her for giving him a principled “No” answer. This was done without warning, without reasons or factual findings, citation of legal authority, and without giving Ms. Sassower an opportunity to be heard with respect to such unlawfully imposed doubled sentence.

The extraordinary and onerous conditions to Ms. Sassower’s release on probation, which were not given to her in written form, but only read to her by Judge Holeman from the bench, were numerous and complex, as may be seen from the transcripts. Since the recording of such conditions alone takes up seven pages thereof, the reader is referred to pp. 15-21 of the sentencing transcripts, accessible on our website. In addition, they were patently unconstitutional in diverse respects. Yet, Judge Holeman failed even to offer Ms. Sassower the opportunity to be heard with respect thereto, in whole or in part, or as to her understanding thereof. On their face, those conditions were more appropriate for felons convicted of violent crimes or terrorists than for a misdemeanor involving a free speech advocate. Last, but by no means least,of such conditions, was the requirement that Ms. Sassower “prepare and send letters of apology” to Senate Judiciary Committee members, stating her “remorse for any inconvenience caused by her.” The Judge was well aware from the pre-sentence reports of both Probation Services and the US Attorney’s Office that she was “not remorseful,” as specifically identified in those reports, that she could not honestly accept such condition. Both reports recommended against any jail time despite the fact that she expressed no contrition for her “crime” because of her steadfast belief that she was innocent.

As to the imposed $250 payment to the VVCF, the Judge identified such as a “mandatory assessment,” without informing her thereof at any time prior to his imposition of sentence upon her of such requirement. Neither did the Court identify that the mandatory assessment was discretionary in amount, nor state any findings as to why it was imposing the maximum in each penalty imposed.

On such pronounced sentence, the Judge ordered that Ms. Sassower’s incarceration “begins forthwith,” without giving her any warning thereof, without offering her an opportunity to be heard, without making any findings,[8] and without stating any reasons for ordering her incarceration on the very day of sentence , or for any incarceration at all.[9] This unprecedented sentence only further evidenced the Court’s bias, displayed from the inception of the case, compounded by the fact that its sentence was considerably harsher than the prosecuting attorneys themselves had asked for and that such sentence flew in the face of the pre-sentence reports of the Court’s own Probation Services, as well as of the US Attorneys Office that NO jail time be imposed because she continued to believe that she was innocent of any crime.

The most glaring point of departure between the two transcripts appears in the two additional pages found in the “Amended Transcript”’ that were non-existent in the original transcript. In the “Amended Transcript”, Judge Holeman did not just ignore Ms. Sassower’s request for a stay of sentence, as he did in the original Transcript. In the post-sentence proceeding, he expressly denied the requested stay, and the “Amended Transcript” identifies the reason. However, it is a legally impermissible reason, demonstrating a general bias. The Judge’s closed mindedness on the subject of stays, epitomized his judicial conduct throughout the sentencing proceeding and in the trial and pretrial stages.

Denial of the applied for stay pending appeal and his failure to set bail or bond for her release pending appeal meant, as Judge Holeman was fully aware, that Ms. Sassower would be “celebrating” the 4th of July weekend in the DC jail. Her six months sentence meant that she would remain incarcerated until Christmas Day, unless and until such order was vacated, reversed, or modified, given his sentencing took place on June 28, 2003, and incarcerated that very day.

GENESIS OF THE ““AMENDED TRANSCRIPT””: By reason of various factual discrepancies and omissions in the official transcript of such proceeding, CJA’s Director made a letter-motion to hear the audiotape of the June 28, 2004 sentencing proceeding. Without explanation, Chief Judge Rufus King III denied that motion by letter faxed to CJA’s Director, stating however that an “updated transcript for the proceedings on June 28, 2004 would be forthcoming.” No explanation was given for the sua sponte “updating.” Neither was there any identification of the specific changes constituting the intended “updating” supplied, as requested. Nor was any notice of such intended action given to the pro se incarcerated defendant.

By responding letter to Chief Judge King on July 15, 2004, CJA Director requested reconsideration of his summary denial of her letter-motion to hear the audiotape, Chief Judge King, without addressing or even identifying such request, stated that he would require a formal motion for such relief, contrary to the procedure followed on submission of the original letter-motion request. Totally ignored and disregarded was the never responded to July 20, 2004 written motion FOIL request submitted for production of the audiotape.

TAMPERING, FALSIFICATION AND OBSTRUCTION OF JUSTICE:

THE PROOF LIES IN THE TRANSCRIPTS

The original transcript of the sentencing, certified on June 30, 2004[10], consists of 22 pages, plus a certification page[11], identified as page “23.” An ““Amended Transcript”,” which was referred to by Chief Judge Rufus King III as “an updated transcript,” for which no legal authority was given, added two entirely new pages, pages 23 and 24, that were missing from the original 22-page Transcript of the June 28, 2004 sentencing of the defendant, with the certification page, dated July 15, 2004, now page 25.

The “Amended Transcript”” obtained by CJA revealed two new pages added, the omission of which served to conceal Judge Holeman’s judicial derelictions and mistreatment of his then prisoner Elena Sassower, as well as his admitted general bias about the granting of stays. To cover up the fact that two new pages have been added to the Transcript, a material alteration of the text was also made to the original Transcript, appearing on page 22, line 23, which no longer bears the words immediately following: “This incarceration begins forthwith. Step her back.”

Line 24 of the original Transcript reading (“Thereupon, the proceedings were concluded.”) followed by a row of asterisks on line 25 to prevent insertion of any added line of text has been altered in the ““Amended Transcript”” so as to create a new sentence omitting those words instead, substituting after Judge Holeman’s words “This incarceration begins forthwith. Step her back.” a new last line 25 of page 22, reading as follows:

“THE DEPUTY MARSHALL: Ma’am.”

The “Amended Transcript” continues onto the new page 23, which was entirely omitted from the original Transcript, with the following colloquy thereby recorded:

P.23, Line 1: “Ms. Sassower: (indiscernible) are uncomfortable.”

[Presumably, the omitted indiscernible words were “The handcuffs,” spoken just after she was handcuffed and as - the U.S. Marshal was trying to get her to move along with him in her handcuffed state, pursuant to the Court’s direction.]

Line 2: “THE DEPUTY MARSHALL: Ma’am, come on.”

Line 3: “THE DEPUTY CLERK: The Court stands a brief recess.”

Line 4: “(Thereupon, the proceedings were recalled.)”

No explanation is offered for the substitution of the word “recalled” in place of the word “concluded.” No identification is made as to the time elapsing between Ms. Sassower’s forcible removal from the courtroom, unidentified in the transcript, and the Court’s purported calling of “a brief recess,” the reason for such alleged “brief recess,” the reason for the recalling of the already “concluded” case, the time of which is unidentified, as are

the persons in attendance for same for the government.

The ““Amended Transcript” reflects no prior notice to the by then already incarcerated defendant, or her attorney advisor, who, like the press and members of the public that had come to hear Ms. Sassower’s sentencing, and had departed from the courtroom as soon as she was taken away to be incarcerated. Also absent from the courtroom and unnotified were members of the press, there covering the story, and who had likewise left. The result was that the news reports thereafter appearing by journalists who had attended, including Washington Post, Legal Times, and Roll Call, contained no reference to the fact that Ms. Sassower was taken out of her cell wherein she was incarcerated and brought back to the courtroom and taken before the judge again, where further post-sentencing proceedings took place, as revealed by the ““Amended Transcript”.” The altered and added transcript pages therein depict a shocking deprivation of Ms. Sassower’s Fifth Amendment due process and equal protection rights, as well as her Sixth Amendment right to a public trial at every stage of the proceeding, which would have included such p. Moreover, as shown by the “Amended Transcript”, the Judge denied Ms. Sassower any opportunity, as defendant and as her own pro se counsel, to object to such legally unauthorized procedure, as she was legally entitled to do as a matter of due process and equal protection.

Nor, as both transcripts show, did the judge inform her of her right to counsel to represent her at such proceeding, of especial importance as he cut her off virtually every time she opened her mouth to speak in her own defense as the law entitled her to do, as a pro se litigant.

The “Amended Transcript”:

p.23, Line 11-21: Judge Holeman admits to a damning official dereliction, without the slightest apology or explanation: his failure to advise her of her appellate rights:

“Judge Holeman: Very well. Ms. Sassower, when we were last here, I failed to give you your – the notice of your right of appeal.”

Such notice is mandatory under the law. This fatal omission was implicitly acknowledged by Judge Holeman’s belated attempt to rectify his error, wherein he admitted that he had “failed” to so inform her.

At p. 22, line 22 of the original Transcript and ““Amended Transcript”,” the Court directs Elena’s incarceration to commence “forthwith,” citing no facts or law justifying her immediate jailing.

As in the original Transcript, Judge Holeman summarily denied her right to be heard as to staying sentence pending appeal (at p.23, Lines 24-5). The ““Amended Transcript”” shows the Judge interrupting her request in an attempt to cut her off.

This is shown by p. 23, Line 22.

“Elena Sassower: Would your Honor –

Judge Holeman: Thank You.

Elena Sassower: -- consider staying sentence pending appeal?

Judge Holeman: No. To do so would be to show you favorable treatment that I have not in the past shown any other convicted criminal defendant in this courtroom and I won’t start that practice now. So you may step back.”

Thus admitted by Judge Holeman is his general bias against affording ANY convicted criminal a stay of sentence pending appeal, in total disregard of sentencing standards and guidelines for trial judges, calling for factual findings that would support his aberrational denial.

The Judge was fully aware from the recommendations of NO jail time by the reports of the prosecuting US Attorney and the Court’s own Probation Services that Ms. Sassower was nether a flight risk nor a danger to the public. Consequently, the Judge’s admission to a fixed bias against granting stays to ANY convicted criminal defendant, irrespective of the equities, amounts to constitutionally intolerable robotic justice, in place of the judicial discretion the law requires be exercised.

The judge’s on the record admission of a general bias not only requires vacating of Elena’s sentence as a matter of law, but a review of his conduct throughout the trial and pretrial stages of the case, which his conduct at the sentencing proceeding epitomizes. Indeed, in light of such a general policy against stays admitted by Judge Holeman’s review, a mandatory review is called for as to each and every sentence imposed on convicted criminal defendants from the time Judge Holeman took office early this year; upon confirmatory review of the records of other cases of convicted criminals tried before him and where appropriate, vacatur of each and every jail sentence he has imposed without a stay pending appeal.

Both transcripts show that Judge denied Ms. Sassower her right to be heard from the very outset of the sentencing proceeding, over and over again, and in the face of her stated wish to be do so. This is seen from the very beginning of her sentencing proceeding, when she sought to orally address the prosecuting attorneys’ contentions, as set forth in their Pre-Sentence Report and the Government’s Memorandum in Aid of Sentencing, the latter of which had been served on her on June 1, 2004, the original date of sentencing, without allowing any time for reply by her, by reason of which the sentencing had to be postponed to July 28th. Meantime, she served and filed a 35-page documented response to clarify and correct the Probation Services Pre-Sentence report, as well as to the US Attorneys’ memo in aid of sentencing, both of which had been served and filed by her with the Court that very morning. Notwithstanding such written submission, the Court not only denied Ms. Sassower the right to present her position orally on the subject, or to require a statement from the government and the Probation Officer, who had prepared the Pre-Sentence Report, as to their position thereon, but also failed to make any rulings as to the matters disputed by Ms. Sassower.

The “Amended Transcript” shows that even when she was brought back to the courtroom, due to Judge Holeman’s failure to inform her of her appellate rights, he, nonetheless, persisted in denying her the right to be heard and even cut her off when she attempted to repeat her pre-sentence request for a stay pending appeal, which he had just simply ignored. Fully corroborated throughout the 22 page original Transcript is Judge Holeman’s consistent pattern of silencing Ms. Sassower every time she tries to speak, in deprivation of her fundamental constitutional right to be heard as the defendant, as well as a pro se party litigant, who had elected to exercise her right to self-representation.

Before imposing sentence, the Court was required to give the defendant “the opportunity to speak,” “to make a statement on his own behalf and to present any information in mitigation of punishment.[12]” As both sentencing transcripts indisputably reflect, Judge Holeman not only failed to warn Ms. Sassower that he would double her jail term to six months, if she exercised the choice he gave her by demanding repeatedly a “yes or no” answer. This, he did, no less, after stating, falsely, to Ms. Sassower that she “must accept the conditions to probation,[13]” when he again denied her requested stay pending appeal of his unprecedented, entirely disproportionate sentence.

CONCLUSIONS AND RECOMMENDATIONS:

The mistreatment of Ms. Sassower in connection with her sentencing was the culmination of biased and due processless treatment that was apparent from the very outset of this criminal matter, so much so that she was caused to file a formal motion to recuse Judge Holeman at the pre-trial stage of the case, When the Judge denied that relief, she filed an extensive April 6, 2004 Petition for Mandamus against Judge Holeman in the DC Court of Appeals to compel his recusal and a well-supported motion to stay the trial set down before him on April 12, 2004. That Court, nonetheless, denied such requested relief, which was not even opposed by the US Attorney’s Office, by Order issued the next day.

Regrettably, these purported judicial remedies, designed to ensure a litigant a fair hearing before an impartial tribunal, are proved in practice to be not worth the price of the paper they were written on. Judicial remedies are only as good as the judges asked to enforce them: when those judges are politically-motivated or otherwise biased, the remedies exist only on paper.

The “Amended Transcript” of the June 28, 2004 sentencing proceeding represents irrefutable evidence of felonious crimes. These include Tampering, Falsification of official records, and Obstruction of justice. Such evidence implicates DC Superior Court Chief Judge Rufus King III, under whose direction the “Amended Transcript” was presumably made and supplied, as well as Superior Court Judge Holeman, whose post-sentence wrongdoing, as revealed in the “Amended Transcript,” was complicitously condoned and covered up by the original Transcript, as well as by the DC Superior Court Transcription Office. It appears that such Office conspiratorially aided and abetted such crimes. Such is also the case with the prosecuting US Attorney, who not only covered up the fact that the original Transcript was not a true and complete copy of the sentencing proceeding, but twice in legal papers filed with the DC Appeals Court, in opposition to Ms. Sassower’s request for a stay from that Court, has misrepresented and relied on the earlier Transcript as the transcript of the sentencing proceeding, so as to assert, falsely, that Ms. Sassower had made no post-sentence request to the sentencing judge for a stay.

Such serious acts and omissions by public officers affecting the integrity of court records and the concomitant inevitable lost of trust and confidence by the public are so violative of the mandated integrity of the judicial records of that Court and of the defendant’s most fundamental constitutional rights as to require formal investigation by Congress, the Attorney-General, the US Attorney’s Office, and the Commission on Judicial Disabilities and Tenure.

The “Amended Transcript” is proof-positive that the sentence imposed in this case is the tainted work-product of a biased, sadistic and dishonest judge, aided and abetted by collusive prosecuting Assistant US Attorneys who covered up the flagrant misconduct of the DC Capitol Police in making the original unlawful arrest and the Judge’s unlawful conduct, as he covered up theirs in maliciously prosecuting the “Disruption of Congress” case, have sought to cover up the facts set forth in the “Amended Transcript.” These public officers should be condemned for their disrespect for the taxpayers, whose tax-paid monies financed so unprecedented and shameful a mockery of justice.

At a time when we are preaching and teaching Iraquis and others in foreign lands the virtues of American values, including the transcending importance of constitutionally-protected human rights -- to freedom of speech, to due process, to equal justice for all, to the effective assistance of counsel or to self representation, to freedom from cruel and inhuman punishment, from excessive fines, and from the withholding of bail or bond to allow release from jail pending appeal, in circumstances where such is not only normally and customarily allowed, but a right not to be denied without good and sufficient reason – the case of USA v. Elena Ruth Sassower will be forever seen all over the world as not merely an American tragedy, but an American disgrace.

Respectfully submitted,

Doris L. Sassower, Member, U.S. Supreme Court Bar

Co-Founder & Director

Center for Judicial Accountability, Inc.

283 Soundview Avenue

White Plains, NY 10606-3821

Judgewatch@,



Tel: 914 997 8105

Fax: 914 684 6554

-----------------------

[1] “It is a crime, under state and federal statutes, for a person, knowing that he has no privilege to do so, to falsify or otherwise tamper with public records with purpose to deceive or injure anyone or to conceal any wrongdoing.” Black’s Law Dictionary, 6th ed., 1990.

See, more specifically, DC Code § 22-723. Tampering with physical evidence; penalty, as amended 2004.

“ (a) A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its

availability for use in the official proceeding.

(b) Any person convicted of tampering with physical evidence shall be fined not more than $1,000 or imprisoned for not more than 3 years, or both.”

[2] DC Code §22-722. Obstruction of Justice includes conduct which in “any way obstructs or impedes or endeavors to obstruct or impede the due administration of justice in any official proceeding.” Such crime is punishable by up to 30 years imprisonment and “not less than three years, or a fine of $10,000, or both.

[3] Last published professional credentials of Doris L. Sassower are accessible from Martindale’s Law Directory (1989 ed.) on CJA’s website at , by clicking on “Who We Are.”

[4] DC Code §10-503 .16(b)(4): it shall be unlawful for any person or group of persons willfully and knowingly: **** (4) To utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds within any Capitol Buildings with intent to impede, disrupt or disturb the orderly conduct of any session of Congress or either House thereof, or to orderly conduct within any such buildings of any hearing before, or any deliberations of any committee or subcommittee of the Congress or either House thereof."

[5] Both transcripts are accessible online from CJA’s website homepage by clicking on “The Tale of Two Transcripts.”

[6] Beyond the scope of this legal analysis are other criminal acts, such as the official misconduct of the sentencing Judge by his knowing and deliberate denial of Ms. Sassower’s right to its recusal for bias and interest at the outset of the case, as legally and ethically required, thereby enabling him to violate her due process, equal protection and other constitutional rights to a fair trial before an impartial tribunal so as to achieve its predetermined result: a guilty verdict and conviction of the charge, both being contrary to law and fact. Neither does it address the Judge’s complicity with the US Attorney’s malicious prosecution of Ms. Sassower based on an arrest, that both the Court and prosecuting US attorneys were fully aware was without basis in law or fact, constituting an unlawful abridgement of Ms. Sassower’s First Amendment free speech rights. Such governmental crimes will be addressed separately in due course.

.

[7] Full details and documents relating to Ms. Sassower’s request to testify at the Senate Judiciary Committee are accessible from CJA’s website at by clicking on the homepage the button saying “Paper Trail to JAIL.”

[8] DC Code §16-170 Suspension of imposition or execution of sentence:

“… the Court may, upon conviction, suspend the imposition of sentence or impose sentence and suspend the execution thereof, or impose sentence and suspend the execution of a portion thereof, for such time and upon such terms as it deems best, if it appears to the satisfaction of the court that the ends of justice and the best interest of the public and of the defendant would be served thereby.’ Cf.§24-401c “reduction of sentence”, specifically providing that “where “there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, and that his immediate release is not incompatible with the welfare of society,” application can be made for reduction of sentence.

It is illogical for such standards to apply after sentence, and not govern the original imposition of sentence. Such standards required Judge Holeman as the sentencing judge to release her unconditionally, and at very least, identify the factors on which he based his unprecedented sentence of incarceration and denial of a stay pending appeal. Such critical constitutional deprivations, including his unexplained, legally unauthorized and presumptively vindictive doubling of Ms. Sassower’s sentence, must be viewed as all part of his presumptively vindictive pattern of mistreatment of her throughout the sentencing and post-sentencing proceeding that took place after the sentencing proceeding had been concluded, which was falsified on record as part of the sentencing proceeding, hereinafter detailed..

[9] A sentence of jail time is totally unprecedented in the thousands of free speech cases involving nonviolent Disruption of Congress charges. According to lawyers specializing in First Amendment cases, no one involved in nonviolent, speech at a Congressional committee public hearing has ever been spent even ONE MINUTE in jail time on a “Disruption of Congress” charge, and outright civil disobedience disrupters at Congressional committee hearings have not even been arrested.

[10] The Deputy Clerk identified on 7/23/04 that their computer reflects completion of the transcript on 7/1/04.

[11] For unexplained reasons, there was no live court reporter at the sentencing., although there had been one at the start of the trial of the case. The certification on the transcripts, signed by an “Official Court Transcriber for the Superior Court of the District of Columbia” who was not inside the courtroom as a witness to the sentencing proceeding, does not attest to the truth and accuracy of the words reproduced in the transcript furnished. The transcriber of each transcript certified only that in her “official capacity”, she “prepared from electronic recordings the proceedings had and testimony adduced in the matter of United States of America v. Elena Sassower, Docket Number M-4113-03, in said Court, on the 28th day of June, 2004. I further certify that the foregoing 22 pages were transcribed to the best of my ability from said recordings” As hereinafter shown, the certification is as meaningless as the audiotape, which, in practice, is one of the least reliable methods of authenticating the truth of the facts, as spoken or presented at the sentencing proceeding.

[12] DC Code, §23-103 Statements prior to sentence.

[13] Such statement is belied by DC Code 16-710(a), which explicitly states that “a person may not be put on probation without (her) consent.”

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download