JAILer Yannone Exchanges Discussion With A Judge

JAILer Mark Yannone exchanges discussion with a judge.

JOHN: Mark: It seems that your understanding of the South
Dakota initiative is that it is aimed at "insist[ing] that judges obey
the law." That certainly seems laudable since there is no reason why
judges (or any other government employees) should be "above the law." If
judges commit crimes they ought to be prosecuted and, where appropriate,
tried, convicted and sentenced. I don't quite understand why there needs
to be a special grand jury empaneled for such a purpose (why wouldn't
the regular grand jury suffice?), but that is beside the point.

MARK: There are several sites for Amendment E. The "official" site is

southdakotajudicialaccountability.com, which contains answers to many

of your questions. The reason that Amendment E is on the ballot in

South Dakota and will spread to other states is because judges are not

being held accountable for their lawbreaking. Two paragraphs of

Amendment E explain what it is for:

2. Immunity. No immunity shall extend to any judge of this State for any

deliberate violation of law, fraud or conspiracy, intentional violation of due

process of law, deliberate disregard of material facts, judicial acts without

jurisdiction, blocking of a lawful conclusion of a case, or any deliberate

violation of the Constitutions of South Dakota or the United States,

notwithstanding Common Law, or any other contrary statute.

3. Special Grand Jury. For the purpose of returning power to the People,

there is hereby created within this State a thirteen-member Special Grand

Jury with statewide jurisdiction having power to judge both law and fact.

This body shall exist independent of statutes governing county Grand Juries.

Their responsibility shall be limited to determining, on an objective standard,

whether any civil lawsuit against a judge would be frivolous or harassing,

or fall within the exclusions of immunity as set forth in paragraph 2, and

whether there is probable cause of criminal conduct by the judge complained

JOHN: My central question concerns the scope of what it means
to "obey the law." If all you mean is that judges should be subject to
criminal and civil actions if they murder, rape, breach a contract or
defraud someone then I'm with you all the way. But when I went to the
jail 4 judges web site I learned that they mean to imprison judges for
"misapplication of laws" or "ignor[ing] laws [or] evidence." As a trial
judge I make literally thousands of decisions a year concerning the
application of laws and ruling on whether to "ignore" a law cited by one
side or the other, because it does not apply or is being misread by
counsel, and whether to exclude or allow evidence under the rules of
evidence. Not surprisingly, I am in error in some (hopefully) small
number of those rulings. Sometimes I catch the error myself and change
my ruling. Sometimes the parties point out the error and I reconsider
and change my ruling. Sometimes the Court of Appeals catches the error
and reverses my decision. But nobody ever indicts me and sends me to
prison when I'm in error. If we focus only on reversed cases in Arizona
alone I would guess there are ten or so reversals a month. Would that
mean ten judges a month go to jail? Who will replace those judges? New
judges afraid to rule because they are risking imprisonment? How does
that improve matters for the litigants?

MARK: I expect that this grand jury will rarely be pressed into service,

not because they are not needed but because they serve as a logical

deterrent to law-breaking judges and all who have thus far failed to

discipline or remove corrupt judges.

This is a jury of last resort and not intended for small, occasional errors

that are likely to be corrected on appeal. Such cases will not reach the

I've mentioned District Court judge Kent Dawson as one example of a

corrupt judge. District Court judge John McBryde is another good example.

Please see http://www.givemeliberty.org/rtplawsuit/Update04-Jan-10.htm

for important details. Innocent defendants received what may well be life

sentences from these two judges. This is extreme, illegal abuse for which

these two judges will not be held accountable absent such an amendment.

JOHN: And what happens when the Court of Appeals believes
the trial court judge rule in accord with the law and the grand jury
disagrees? I assume the judge is indicted anyway. Is the appellate court
affirmance admissable at trial? What about the reverse situation where
the Court of Appeals reverses but the grand jury refuses to indict? Does
the judge who has been judicially determined to have "misappli[ed] the
laws" walk free to err another day? And in both those cases does the
grand jury then indict the Court of Appeals itself for failing to see
things its way?

MARK: To answer these questions I would refer you to the amendment

itself, and I would affirm my faith in those who sit on a grand jury to be

good and reasonable people who are extremely resistant to violating the

law. A mere difference of opinion is unlikely to constitute "deliberate

violation of law, fraud or conspiracy, intentional violation of due process

of law, deliberate disregard of material facts, judicial acts without

jurisdiction, blocking of a lawful conclusion of a case, or any deliberate

violation of the Constitutions of South Dakota or the United States."

JOHN: Where we have corrupt and criminal actions taken by judges I

am all for taking swift action to boot them out and prosecute where

MARK: We agree. And when it has been made impossible by his

brothers of the holy robe, then what? What is the alternative? Wait

for the judge to die? Shorten his life by encouraging suicide? Or

should we be reasonable and just remove his judicial immunity?

JOHN: But setting up a grand jury to review decisions and set criminal

proceedings in motion based on the jury's view that the judge misapplied

the law is a potentially dangerous undermining of the proper judicial function.

MARK: A misapplication of the law is unlikely to be considered criminal.

Since this grand jury has no jurisdiction in most cases until all other

lawful remedies have been exhausted, the jury is not likely to indict

blindly. After passage of Amendment E, I expect the jury will indict rarely.