ZGram - 6/14/2004 - "Summary of the Zundel / 6th District Court Hearing on June 11, 2004"

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

June 14, 2004

Good Morning from the Zundelsite:

Here is my promised summary of what transpired last Friday, June 11, 
at the Sixth District Court of Appeal in Cincinnati:

[START]

At the beginning of this month, I wrote some notes to myself about 
the legal front in the U.S.:

At long last, we have a court date for June 11th in the Sixth Circuit 
Appeal Court in Cincinnati, where our attorneys will have exactly 15 
minutes to summarize before a panel of three judges a beautifully 
argued brief we filed about a year ago.  It asks that Ernst be 
permitted to return to the United States, in chains if necessary, to 
make his case before a judge - something that was prevented by his 
illegal arrest and two rulings in the District Court in Knoxville as 
well as the Sixth Circuit Court in Cincinnati. 

Given the corruption of the judiciary system, we don't expect a 
blazing victory - but I, for one, have hopes that, at the very least, 
a partial victory might, after all, be possible.  Even a symbolic 
ruling would go a long way - such as the rescinding of the 20-year 
ban!

It took us just about a year and tens of thousands of dollars to get 
a slot for this 15-minute argument, the final step in appealing the 
Knoxville District Court decision in February of 2003 where Judge 
Jarvis had given his okay to the deportation in a one-sentence ruling 
without any hearing -  and without a single document before him 
justifying the arrest and deportation!  This was an egregious abuse 
of due process, and in a normal world there would have been justice - 
but would we get justice in the Appeal Court, with only 15 minutes to 
state our case and challenge the unjust ruling? 

To make matters worse, at the last minute, it looked as though our 
scheduled hearing would be postponed again because of Ronald Reagan's 
death and a declared holiday of mourning exactly on the day we were 
to appear. 

The day before, June 10th, my Tennessee attorney and I drove the 
five-hour stretch to Cincinnati and checked into a hotel across from 
the courthouse.  The next morning we met our lead attorney, who lives 
and practices in Ohio, who was staying in a different hotel and had 
asked us not to disturb him and break his concentration, because he 
wanted to study and lodge in his memory the important facts the 
evening before.  He is experienced with procedures at the Sixth 
Circuit Court and has argued cases before the judges there many 
times. 

Here is my take on what was said and what it means. I don't claim 
certainty because I am inexperienced in dealing with courts, judges, 
and transcripts. 

The core of our request, as stated above, was to bring Ernst back to 
the United States so he could have a hearing and argue his case 
before a neutral judge in the District Court in Knoxville. 
Additionally, we had previously registered a complaint in the Sixth 
District Court about a panel of judges who had denied Ernst's request 
for a stay of deportation by going outside the record, as we found 
out through the Freedom of Information Act.  It seems our complaint 
made a difference - this time we got a different panel of three 
judges who solemnly marched in and took their seats, facing us. 

I tried to study their expressions.  To the left sat a very 
young-looking man, Judge Jeffrey Sutton.  As the hearing progressed, 
this judge made the best impression on me because he seemed 
intellectually curious about our case and asked many probing 
questions.  In the middle sat Judge Martin, an older, heavy-set man, 
who seemed to be the leader of the panel.  Judge Williams, on the 
right, was apparently a substitute judge who hardly said anything 
throughout the hearing. 

Our U.S. lead attorney stood up and took the podium. Before he could 
say a single word beyond identifying his name, Judge Martin weighed 
in with a broadside:  "Where is Ernst Zundel now?"  Our attorney had 
no choice but to reply:  "In solitary confinement in a Canadian 
prisonŠ" and Judge Martin threw up his hands dramatically and said - 
and here I quote from memory:  "Then -why are we hearing this case? 
What can we do?  We can't do anything about someone in a Canadian 
prison!  We have no jurisdiction over Canada!"   

I felt my mouth go dry.  This was a very bad beginning.  Luckily, 
from this unfair salvo right at the start, our chances improved 
somewhat.  It was clear that this panel of judges may have hoped they 
could dismiss this case over jurisdiction, but thanks to Judge 
Sutton's very pointed questions, it soon became clear what played 
here:  Ernst was in prison precisely because the previous panel of 
this very court had denied him due process, and had rubber-stamped 
the deportation sanctioned by Judge Jarvis of the District Court - 
even though there were no documents justifying the arrest!  Like an 
exclamation mark, this issue stood in the courtroom without words.  
Would this court wash its hands by claiming their own previous 
misdeed as a justification for a follow-up misdeed? 

Then the government's attorney stood up and made his argument.  The 
case was very simple and straightforward, he claimed in a torrent of 
words.  Ernst had come to the United States on a 3-months "visa 
waiver" permit, had brazenly overstayed his visit, and had signed 
away all rights to contest a deportation due to overstay!  According 
to the U.S. stance, that was the alpha and omega of the case!

Our attorney countered in his closing arguments that this was simply 
not true - Ernst entered America on a B1/B2 visa - not on a 'visa 
waiver" permit!  The government, suggested Joe, was riding roughshot 
over law by an utterly false claim - for which they had offered no 
documentation!  Somebody had to unravel this mess! 

At that point, it must have become clear to the judges just how 
threadbare the government's argument was.  Where was the documented 
evidence that justified the arrest, the judges wanted to know.  There 
was none, the U.S. lawyer admitted - all he knew was that a local 
paper, the Mountain Press, had reported that the arrest was triggered 
by a "visa waiver" overstay! 

One of the judges - I forgot which one - said at this point:  "It 
would be interesting to know all the facts."  Well, sure!  That was 
our very grievance.  We had asked in our brief that a real judge look 
at the facts of this abominable deportation and subsequent 
incarceration and make a judgment based on facts! 

Several options were discussed throughout the hearing about what to 
do now.  Bolster the original complaint with additional information? 
Change the lawsuit altogether by making it a "Bivens" case?  A 
"Bivens action",  or so it was explained to me, would make it my 
grievance of having lost my husband, rather than Ernst's complaint 
that he had been unjustly booted out of the U.S. in a political 
vendetta operation.   

The judges stated several times that they could not "order" Canada to 
bring Ernst back - and then the government lawyer did us an amazing 
favor by admitting that, while nobody could "order" Ernst back from 
Canada, the U.S. could "invite" him back!  In fact, there were 
precedents in law where this had actually been done!

That was probably the most important item that we learned - that 
there existed that option, a symbolic invitation by the U.S. 
government to readmit a deportee who had been mistakenly or unjustly 
deported.  Then our fifteen minutes' time allotment was up.  As we 
walked out, my two attorneys were more hopeful than I was - in fact, 
they looked almost triumphant!  I guess both had expected that the 
judges would just hear us out with stony faces, write a weasely 
reply, and thereby rubberstamp the previous abuse.  Now, because of 
the revelation of an undocumented deportation,  both attorneys felt 
that the decision by the panel would grant us some relief, because it 
was very obvious that the judges understood that the abuse had been 
too blatant, and that some form of remedy was overdue. 

Will this happen?  Who's to say?  How much Jewish pressure will now 
be applied to the judges?  Will our detractors get on the phone and 
let it be known that Ernst Zundel is the "bad boy that America can do 
without", as the Anti-Defamation League's head honcho, Abe Foxman, 
had put it right after Ernst's arrest? Most federally appointed 
judges are agents of the government - can we expect this panel to be 
different and do what is right, rather than what might be good for 
themselves - and for the Noisy Lobby?

Will the judges - no dummies, with our beautifully argued brief 
before them - have the courage to say this deportation should never 
have happened?  I hope that whoever writes the judgment will have the 
courage to write what it takes - and not bow to America's censors.

[END]