Thursday, May 12, 2016

Doreen Hendrickson, Political Prisoner

The law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw
And I, m’lords, embody the law.

The Lord Chancellor, from Gilbert and Sullivan’s Iolanthe

Michigan resident Dorren Hendrickson was convicted of “criminal contempt” and sent to prison for 18 months for refusing a judge’s order to commit perjury. The first attempt to convict her of that supposed offense ended in a hung jury. In the second trial, U.S. District Judge Nancy Edmunds foreclosed the possibility of acquittal by instructing the jury that “It is not a defense to the crime of Contempt of Court that the Court Order that the Defendant is accused of violating was unlawful of unconstitutional.” 

Federal juries are notoriously pre-disposed toward conviction. The presence of a single conscientious juror in Mrs. Hendrickson’s first case was little less than providential. In the return engagement, the prosecution succeeded in winnowing out any potential jurors who might possess the character and intelligence necessary to nullify the pre-ordained verdict.

Hendrickson and her husband Peter are long-time libertarian activists, which of necessity means that they are devoted enemies to the criminal cabal called the IRS. Mr. Hendrickson is the author of a book entitled Cracking the Code which outlines his novel theory that only government employees are liable to pay income taxes. Acting on that assumption, the Hendricksons – and a number of others – have filed returns in which they have claimed no income, and through which they have received large refunds.

It is not immoral to cheat a thief, so any criticism of the “offenses” committed by the Hendricksons against the IRS is purely prudential in nature. In their long struggle against the world’s most contemptible criminal syndicate, the Hendricksons have displayed a tendency to borrow trouble at a high rate of interest.

In April 1990, the couple (who at the time were not yet married) plotted with another, Scott and Karen Scarborough, to mail a letter-bomb to the IRS. The package wound up in a mail bin at the Royal Oak, Michigan post office on the evening of April 16 – which was crowded with last-minute tax victims. When the letter began to smoke, a postal employee named Tom Berlucci extracted it and attempted to extinguish it by throwing it into a puddle and stomping on it. This caused the incendiary charge to detonate, causing minor burns to Berlucci’s face and hands and injuring a bystander.

Peter Hendrickson has described the incident as a prank that was opportunistically inflated into a terrorist bombing by the prosecution. He also insists that Berlucci exaggerated the extent of his injuries.

While stipulating that hyperbole and dishonesty are persistent federal traits, I must point out that there is no way to consider placing an incendiary device of any kind in the mail, and injuring innocent strangers to any extent, as anything other than serious crimes.

At the time, the Hendricksons and the Scarboroughs were members of the Libertarian Party, which means they were probably acquainted with the non-aggression principle – a moral axiom they either ignored or deliberately violated in staging their stunt. Summoned before a grand jury, the Scarboroughs claimed ignorance of the plot and specifically testified that the Hendricksons could not have put the letter bomb in the mail.

After he and Scott Scarborough were charged with conspiracy, Peter Hendrickson pleaded guilty in a deal that included dismissal of charges against Doreen. Seeking an additional reduction in his sentence, Mr. Hendrickson surreptitiously recorded conversations in which the Scarborough admitted to assembling the letter-bomb (using red phosphorous obtained by Doreen from the school where she worked) and planting it at the post office while Peter waited in the parking lot.

With the evidence provided by his erstwhile colleague-turned-informant, Scott Scarborough was convicted of perjury and obstruction, and joined him for a brief stint in prison.
Doreen Hendrickson’s current imprisonment has nothing to do with that misconceived caper, and her behavior more than a quarter-century ago does not justify the tyrannical actions of the prosecutor and judge who have imprisoned her for asserting her rights.

The IRS began legal action against the Hendricksons ten years ago, claiming that they had made false statements in their tax returns for 2002 and 2003. In 2010, the agency filed a motion that the couple be held in contempt for failing to file the amended returns demanded of them. A federal judge granted the motion and imposed a fine of $100 a day until the returns were filed.

When the Hendricksons did as they were ordered, filling out returns with figures dictated by the IRS, they inscribed the notation “UNDER DURESS” above their signatures as a protest. This was unacceptable to the Stalinists at the IRS, who secured another judicial decree demanding that they file the returns once again “in usable form, that in no way undermine[s] the verity of the returns….”

In January 2011, as ordered, the Hendricksons filed yet another set of revised returns. Both of them referred to Doreen’s affidavit stating that while the government regarded the most recent returns to be “true, correct, and complete,” that she was submitting them “under extreme protest” and that she “disclaim[ed] these coerced returns because they are wholly false and fraudulent.”

Mere obedience is not enough to placate totalitarian-minded functionaries when dealing with dissidents: The submission must be coupled with a profession of belief in the Regime, acceptance of its official falsehoods, and admiration for the boundless wisdom of its administrators. That is why Stalin demanded a confession from a convicted state enemy before he was fed a “Lubyanka Breakfast” – a cigarette and a bullet to the back of the head. It is also why the IRS, acting through a Stalin-grade federal judiciary, arranged the imprisonment of Doreen Hendrickson for expressing her appropriately contemptuous opinion of them.

What has been done to Doreen Hendrickson is abhorrent. It is not, however, unprecedented.
In matters of criminal contempt a trial judge enjoys the kind of unaccountable power boasted of by Gilbert and Sullivan’s Lord Chancellor: A judge not only issues orders, but can claim the jurisdiction to rule on their constitutionality. An obscure procedural principle called the “collateral bar rule” generally precludes those subject to such orders from challenging their constitutionality in contempt proceedings, or when appealing convictions. 

He was wrong, but he embodied the "law": Connor.
This is why the Supreme Court upheld the criminal contempt conviction of Martin Luther King for violating a patently spurious restraining order intended to prevent a peaceful demonstration in Birmingham, Alabama. Many civil libertarians who admire King will probably not find Doreen Hendrickson to be a sympathetic figure, but she is just as much a political prisoner as he was.

According to a ruling handed down in March by the Sixth Circuit Court of Appeals, “the collateral bar rule prevents Hendrickson from challenging the constitutionality of the underlying order in the court of her criminal contempt proceeding. When a district court has personal and subject matter jurisdiction over a case, an order issued by the court `must be obeyed by the parties until it is reversed by orderly and proper proceedings.’”

Precedents upholding the supposed authority of government to demand unquestioning obedience are generally set during wartime, and that principle applies here. The Sixth Circuit decision cites the Supreme Court’s 1947 ruling in United States v. United Mine Workers of America, which dealt with an anti-strike injunction issued against workers whose mines were operated under government control during World War II.

Chief Justice Fred Vinson asserted that “impressive authority” – of what provenance, he didn’t bother to explain – justifies “the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued.” (Emphasis added.)

What this means, in practical terms, is that when a judge issues a ruling, obedience is more important than lawfulness. This is because in our system, “order” is valued more than liberty. Where a judge injures the rights of a defendant by abusing his power, the latter is to submit to the abuse, or see it compounded through imprisonment.

In 1967, the Supreme Court made this explicit in Walker v. City of Birmingham, which dealt with the criminal contempt conviction of Martin Luther King four years earlier.

King and his colleagues announced their intention to conduct a peaceful protest march on Good Friday in Birmingham, which prompted the city’s arch-segregationist Police Commissioner, Eugene “Bull” Connor, to obtain a last-minute injunction forbidding all demonstrations in the city in the absence of a parade permit. City officials also made it clear that no such permit would be issued.

Pursuing a court challenge to the injunction would mean effectively calling off the demonstration, so King decided to violate the manifestly unconstitutional order and challenge it in court. He was arrested and jailed for about a week before being released on bond.
In his majority opinion, Justice Potter Stewart acknowledged that the order suppressing the demonstration implicated “substantial constitutional issues” but pretended that “this is not a case where the injunction was transparently invalid or had only a `frivolous pretense of validity.”

According to Stewart, “however erroneous the action of the court may be,” disobeying that unlawful edict “is contempt of its lawful authority, to be punished” as the same corrupt court would direct.

The acerbic dissent by Chief Justice Warren represents a detour in a career otherwise devoted to undermining sound constitutional principles. The injunction issued against King, and upheld by the High Court’s majority, Warren observed, “was such potent magic that it transformed the command of an unconstitutional statute into an impregnable barrier, challengeable only in what likely would have been protracted proceedings and entirely superior in the meantime to the United States Constitution.”

Paul W. Butler of the Georgetown Law School points out that the collateral bar rule enthrones a “judge-made rule of law” over “fundamental constitutional right[s]…. A requirement of absolute obedience to judicial orders appears facially inconsistent with a party’s right to violate a statute and then allege its unconstitutionality in court.”
Defending Bull Connor's legacy: Judge Edmunds.
However, he continues, “exceptions to the collateral bar rule have been recognized where use of its prohibitive powers would ride roughshod over rudimentary constitutional principles” – such as the First Amendment rights of media organizations found in contempt for publishing critical information in defiance of unconstitutional restraining orders. “To demand compliance with such orders pendente lite [before being ruled upon] would corrupt the constitutional process by elevating form over substance at the expense of individual liberties,” he continues.

Since that “expense” is paid by the victims of judicial corruption, it matters little to the corrupt functionaries who are responsible for their suffering. The punishment inflicted on Doreen Hendrickson violated several “rudimentary constitutional principles” – including supposed guarantees of rights found in the First and Fifth Amendments. This makes her case eminently worthy of an appeal to the Supreme Court.
Assuming that the Hendricksons were able to absorb the expense involved in such an appeal, in all likelihood, the Court would decline to hear it. The judiciary has no interest in challenging the conceit that the black-robed disposers of other peoples’ lives and liberties “embody the law,” rather than being subject to it. 

This week's Freedom Zealot Podcast deals with the tragic -- but not incurable -- condition called Collectivism Spectrum Disorder:

Dum spiro, pugno!


Kent McManigal said...

"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." - H. L. Mencken

Anonymous said...

Politics is war by other means, war is politics by other means is Clausewitz famous summarizing phrase of Western civilization. Political control is about either waging war or threatening to wage war in order to exact tribute. Until the 10th century in Europe soldiers from conquering armies collected tribute directly albeit ineffectively. In time a specialized branch of the conquering army emerged in order to administer a much more detailed tribute collecting mechanism. The Domesday Book was just such a meticulously inventoried list of lootable assets assembled for William the Conqueror. The judiciary evolved out of precisely this knowledge power pair: Its specialized tax assessor's organized asset manifests, its armed agents enforced tax collection. Political control and its judiciary has always been about conquering and organizing societies into inventoried lootable assets. The modern judiciary plays exactly the same role as it played in the time of William. Williams monarchy has evolved or devolved to democracy depending on one's perspective but the power knowledge pair of judiciary remains.