Interview with Sherry Swiney,
Founder of the Patrick Crusade Organization
People Aligned to Replace Injustice & Cruelty with Knowledge - P.A.T.R.I.C.K

Original Article Published Jun 23, 2008
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How did they do that?
Common law is established by a court when they decide a case. In other words, the case sets precedent for future decisions of that court. Every federal court must also honor precedent set by the U.S. Supreme Court. Precedent is extremely important because it is the basis for decisions that have a similar interpretation to previous cases. This is how the courts establish common law (decisions contrary to common law fall under "activist" decisions and may take a lot of heat). This is why it’s so difficult to change precedent. Another factor is that when precedent is changed, a new interpretation takes place and that interpretation may be retroactive to prior cases (like Apprendi was) and open up a deluge of cases coming back to court based upon the new precedent. A case called Teague v. Lane is the "patch" for this potential deluge. That means that the courts prefer to call something a precedent rather than tread on new ground, regardless of the truth that may be coming out in a case.
Now, fast forward to 2007 and the 11th Circuit's recent decision in Patrick's case. The Court was presented with a pleading containing several relevant legal questions as they relate to this particular case. Remember that the chartered duty of the courts is to interpret the law. They refused to do so. Why? Because they can't interpret the law in light of his case and remain consistent with their own precedent. The Court can avoid the issue – basically keeping the case under the radar – like they did, and doing anything else would violate their own precedent. Judges do not want to be seen as "activist" judges because that opens up a deluge of cases coming back to court based upon the new precedent. Doing what they do frequently, however, is essentially encroachment on the Executive branch of government (which enforces laws). So they are enforcing their own precedent rather than interpreting the law. This encroachment on the Executive branch has been accomplished by federal conservative courts for a long time but it doesn't get any attention of the public because its done in opinions like this one that contain NO INFORMATION related to the actual case. Opinions without information are worthless to other courts, lawyers, legal scholars and litigants.
But opinions like this have historically been "safe" for the Court. Why are they safe? Because the Court does not have to violate their own precedent even if that precedent is wrong. If the precedent is wrong and the Court stands by it anyway, it has, at worst, created its own law and at best ignored the intent of Congress (encroachment on the Legislative branch). The 11th Circuit could have agreed that Patrick's case has merit and then blocked it using Teague v. Lane. I don't doubt for a moment that this was one strategy the judges discussed among themselves. However, blocking it with Teague (in order to maintain their own precedent) might have had a more high profile affect.
I think I'm following you but am not sure. Please explain further.
Okay. If they used Teague v. Lane, they would have in essence brought the case into the realm of Supreme Court strict scrutiny. Strict scrutiny is a legal term that is the means-end test that the Supreme Court uses to determine whether they will hear a case. If the case meets the "strict scrutiny" means-end test, the Court HAS to hear the case. This is a whole discussion in itself that I won't go into in this interview. Suffice it to say, for now, that by not imposing Teague, the 11th Circuit kept the case under the radar and out of the U.S. Supreme Court at the same time.
But how did the 11th Circuit avoid not imposing Teague v. Lane?
They simply denied the case without comment. In other words, they did not write an opinion.
Okay, so how does this fit with the "secrecy" portion of the analysis that you mentioned earlier?
Well, to wrap that up for you, the courts already know that violating precedent is termed "activist". This is a political no-no because it opens the floodgates. The people also know this because there's been a lot of media about “activist judges” over the years, thus in standing on precedent regardless of evidence that a law (due process) has been broken, they are – in essence – making their own law. By making their own law to avoid political outfall, they have committed Legislative branch encroachment.
The Courts also know that in refusing to interpret a federal law question (such as “based on the evidence presented, was any element of due process violated in Patrick’s case?”), they are empowering the Bush mandate of the Executive branch of government that enforces the laws. In doing so, they have committed Executive branch encroachment. Both of these actions are strictly prohibited by the Constitution for reasons I stated earlier. When courts refuse to answer federal questions, by citing procedural bars, precedents, or merely denying “without comment”, they are deliberately avoiding the Constitutional law, thus preventing the litigant from proceeding further with his/her case of innocence (preventing access to the courts). The “secrecy” part of it comes in when the courts do this without writing an opinion or writing an unpublished opinion, as they did in Patrick’s case. Unpublished opinions cannot be cited in a litigant’s motion and are therefore worthless.
Let me say this in a different way. The Judicial branch consists of the judge, jury and so forth. The determination of guilt is within the judicial branch. The Executive branch assumes that the crime has been committed and that the accused is guilty based upon the evidence. The purpose of the courts (jury) is to sort this out to see if it is, indeed true. Laws are in place that prevent innocent people from being convicted. These laws are called Due Process. When a person is convicted of a crime but has evidence that the conviction occurred by violating Due Process, that person has the right to take the evidence of illegal conviction to courts that are higher than the court that convicted.
To maintain the conviction of an innocent person, these higher courts would merely have to ignore the evidence of the Due Process violations that took place at trial. They can do this by saying that the evidence is "procedurally barred" and simply refuse to hear the case. In these cases, the courts will write an order that says nothing about the facts related to the crime or the illegal acts committed at trial. Remember that the entire purpose of the courts is to interpret whether a law has been broken, which is an important part of the checks and balances set up in the Constitution. When they refuse to say one way or another, they take themselves out of a "checks and balances" position. When there are no checks and balances on the Executive branch, there is no due process of law. There is merely a silent (secret) agreement with the Executive branch where the courts ignore their Constitutionally imposed duty. In other words, the Courts are supposed to "check" the actions of the Executive branch, essentially providing relief where the Executive branch was in error. This keeps everything in balance so that people are not convicted of crimes they did not commit. This is the way the Constitutional system in this country is designed to work.
How is it that they are committing Executive branch encroachment through these actions?
In order to understand that we must look at how the Executive branch operates in that capacity. The Executive branch uses police to enforce the law. Enforcement includes a determination that the law has probably been broken. The person is seized into police custody awaiting a determination of whether the law has actually been broken and whether the person seized is guilty of breaking that law. If a police officer seizes a person and then beats the hell out of them or denies them access to the courts, then the Executive branch is encroaching on the functions reserved to the Courts (the Judicial branch). We know all about when this happens too because it generally gets a lot of press. The two duties of law enforcement are seizing the person and presenting them to the courts. This is because people are supposedly innocent until proven guilty in this country. Seizing and presenting the Executive power and duty (that's also why we heard about suspension of habeas corpus in the Guatanamo Bay situation...the Executive branch seized the prisoners but refused to present them for trial). When the courts refuse or do not have the opportunity to interpret the law a person is denied access to the courts and the checks and balances stated in the Constitution are circumvented. This is a very important component of Patrick's case and the so-called decision handed down by the 11th Circuit Court.
The courts gave physical control over Patrick to the Executive branch (the State of Alabama) and denied him access to the courts. This practice is extremely widespread in the 11th Circuit and I suspect in the other conservative circuits. People don't know this is happening because it’s hidden behind opinions just like the one they issued in Patrick's case.
The 11th Circuit's dispensation of the case has nothing to do with what happened in the precedent-setting U.S. Supreme Court case, Slack v. McDaniel, which the Court cited in Patrick’s case. Slack simply gives them the precedent that allows them to follow their own established precedent with ease. In other words, the 11th Circuit acts in the capacity of police (Executive branch) by denying litigants access to the federal courts and then hides that action by not publishing a valid opinion of the case. If they published an opinion on Patrick's case, it would open up a floodgate of media attention and they know that . . . just as "activist" opinions open up floodgates and illegal police actions open up floodgates (crossing into the Judicial branch). Their actions on Patrick's case and any other case similarly situated are, by legal definition, encroachment on the Executive branch and therefore illegal under Constitutional law. Do the judges on the 11th Circuit know this? Of course they do. They're counting on the people NOT knowing this.
This is outrageous! How widespread is this? How high up does this go?
Bush packed the federal courts with conservative judges specifically to get the courts to propel the wishes of the Executive branch, which are to seize people and maintain that seizure. Police complain all the time about how they go through all manner of gyrations to build a case against a person and then the courts let him go. Police are interested in getting convictions usually because they believe the person is guilty or they wouldn't be arresting him. If the Police could choose judges, they would choose Bill Pryor (former Alabama Attorney General who prosecuted Patrick's case at the State level, and who is now a judge on the 11th Circuit Court) and his ilk every time because they would know the arrest would hold.
The Executive branch is likewise, interested in getting convictions but can only get convictions when federal laws are broken. They can however, maintain convictions through federal oversight by packing the courts with judges who ensure that state convictions are upheld in habeas corpus actions. The 11th Circuit was always a conservative court, as far back as I know about, since it arose from the 5th Circuit which is also conservative. Bush appointed Pryor to the 11th Circuit Court because the Executive branch is concerned with maintaining convictions and Pryor is known for that. Bush also appointed several conservative judges to the U.S. Supreme Court because a conservative Supreme Court branch is interested in empowering the wishes of the Executive branch. These actions have changed the balance of the federal courts. That balance wasn't changed because Bush appointed them but because the conservative Congress approved his appointments. Remember when the Republican party controlled Congress before the last election? Bush appointed those judges on the heels of the newly declared "war on terror" before Americans started to wise up and recognize that the White House needed to be reined in by a more liberal Congress.
The Courts have to maintain a semblance of their established duty which is to interpret federal law equitably and according to the established common law while not encroaching on the other two branches of government. The common law is different across the country because it's interpreted by different Circuit Courts. This violates the equal protection clause of the Constitution because everyone is NOT equal under the law. Equality under the law cannot ever be introduced into a case unless the case is in the Supreme Court (which oversees all Circuits). Vague or unpublished opinions, like the 11th Circuit issued in Patrick's case, prevent escalation of the arguments to the Supreme Court. Does the 11th Circuit know this? Certainly! This prevention is deliberate and is encroachment on those duties exclusively granted to the Executive branch by the U.S. Constitution. This practice violates the established checks and balances of the federal government because the Courts work in concert with the Executive branch and that is strictly disallowed under the charter that defined the government of the United States. Without checks and balances, the Founders of this country knew that we would be headed for despotism like those who escaped the rule of England's King George.
This action taken by the 11th Circuit is an example of violation of separation of powers. It is an example that the Rule of Law (equal protection under the law) has been suspended. Not only is maintenance of Patrick's conviction ridiculous, unfair, ludicrous, and a waste of money, it is ILLEGAL! I can't stress enough what I'm saying here. Patrick isn't by any means the only person this happens to; this happens to tens if not hundreds of thousands of people. The courts are not an independent branch of government anymore. They have violated the Constitution by merging with the Executive branch to empower the aim of the Executive branch. They hide that fact from the public by issuing unpublished opinions like the one issued in Patrick's case.
Is there much corruption in the Alabama justice system?
I'd say that the Alabama justice system is the very definition of the word corruption. For most people, it is disturbing to see the corruption in the courts, followed by the corruption in the prisons. We see a lot of people feeling lost and believing that as one person, they cannot make a difference, but I know differently. One person can make a large difference but not by fighting in the conventional way.
What do you mean by that? People have to fight the system, if they want it to change, don't they?
Yes, but in a different way. We have to remember that this is not a physical battle really. That is an illusion. This is a spiritual battle and it always has been. People have gotten so conditioned to believe that they are their physical body and their physical brain that they have forgotten who they really are and what they can really do to affect changes in reality.
From my point of view, there is a great healing taking place on planet earth. It is happening because there are some people who have come to realize that fighting FOR a principle is more powerful than fighting AGAINST that which they perceive as corruption. It's a mindset really. When we constantly see things as bad, they are bad and the more we see it that way, the worse things get. So we fight harder claiming how bad things are and we are amazed that they just get worse. Have you ever noticed that? It is the decrying "This is so bad" that brings the bad-ness of things to us. And why does that happen? Well, because we do not remember how powerful our thoughts and feelings are. We do not remember that we create our own worlds — our own realities — by our thoughts and emotions.
I don't get that. How does this work?
It's really quite simple. The difficulty is in getting through the conditioning to see this as reality. The first hurdle is recognizing that you have been conditioned to think certain ways — to perceive things in a certain light, depending on your culture, or what you were told as you were growing up. Apathy is one of the conditions put on people in our society. Racism is another. Fear of government (or fear of what the neighbors will think) is yet another. Low self-worth, victimhood and powerlessness are other conditions put upon people by our society. Once you recognize you have been conditioned, the road to waking up is easier. I call this having an “open mind” to heretofore unheard of possibilities. Until then, people with “closed minds” will continue to suffer injustice and cruelty — none of which is deserved and none of which is necessary.
Let’s jump to something else for the moment. How is your husband’s health and well-being?
Patrick has gone through so many life-threatening events that that's a story all its own. Click here for one example and click here for another example and then click here for yet another. The links go on and on...and most all the abuses are documented and posted on the P.A.T.R.I.C.K. Crusade website. Despite these abuses, he is doing okay, and I attribute this to the hundreds of people who pray continuously for him to stay strong and healthy.
Do you visit him often?
For many years, I could visit Patrick every week for 6 hours. When the prisons started getting overcrowded, they changed that to every week for 3 hours, then every other week for 3 hours and that's what it is today in Alabama prisons. So the Alabama system went from allowing 312 hours per year for visits to 78 hours per year. That's a 75% cut in visiting hours.
Now, because I work so far away from where he is, I only visit him once a month for 3 hours. For the past two years, I have been bringing his 87-year old mother with me to each visit so she may see her son. No one else in the "immediate" family can take her there. Others in the family would, but the Alabama prisons have a rule that visitors have to be what they consider immediate family (mother, father, siblings, children, one female friend and male friends). The female friend position is taken up when the wife visits so no other females are allowed, even if they are family (cousins or nieces). Patrick's father, brother and one sister have died. His daughter has disowned him. He has one sister left and his mother in his immediate family. These rules are actually discrimination against the elderly prisoners. As they get older, and their immediate family members die, they are left with fewer and fewer visitors until there are none left to visit. It's crazy but then so are many other Alabama prison rules. We're always told it's about "security" but it clearly has nothing at all to do with security.
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