Judge denies grand jury hearing; complaint headed to NV Supreme Court

“HE WAS NOT SUPPOSED TO BE A TRIER OF FACT”

by Sharon Rondeau

(Aug. 19, 2010) — Mr. Tim Fasano, candidate for U.S. Senate from Nevada, has updated The Post & Email on his request for a grand jury to investigate a criminal complaint he had filed against Churchill County Judge David A. Huff.  As a result of Mr. Fasano and his wife having become victims of a horrific crime, they have learned that a grand jury has not been convened in the county for more than 35 years.  Our original report on Mr. Fasano’s ordeal and request for the convening of a grand jury is here.

MRS. RONDEAU: I understand that you have some important updates to your criminal complaint and subsequent grand jury hearing request.

MR. FASANO: It appears that we are going to the Nevada Supreme Court.  We actually gave them more time than the statute requires regarding the convening of a grand jury; we gave them seven days.  There was no response from Department 2 (the judge to whom the complaint was given).  So we decided that we would submit for a certificate from the county clerk so that we could proceed to the Supreme Court. Also, during the same time period, we’d been in contact with the Supreme Court; we submitted questions to them; last Friday they asked us to submit very specific questions for them because they did not know how to proceed under this statute.  It hasn’t been done since 1911.

With all of that said, one of the issues they brought up was that there is nobody alive who was practicing law in 1911 who could give any indication of how to proceed.  So we submitted our questions, and the Supreme Court clerk got back with us at essentially the same time that we were in contact with the county clerk down there.  She answered all of our questions, and according to the rules of appellate procedure, we can proceed directly to the Supreme Court standing in propia persona.  It’s not normally done, but the type of issues in place and the fact that it’s going to be under a Writ of Mandamus, which was one of the questions we asked – which process would they prefer:  an order to compel, a request for a Writ of Mandamus, or by general petition or application; and they clarified that issue.  They also clarified that we won’t be violating Supreme Court Rule 44A or 44G-1, given standing in propia persona.  They also indicated that if there is any conflict that resides with our standing in propia persona, the Supreme Court would agree to waive their rules in order to hear it.  We can submit our pleading or application to the Supreme Court, and if they order an oral hearing, they will suspend their rules.

MRS. RONDEAU: Do you have all of this in writing?

MR. FASANO: That is forthcoming.

MRS. RONDEAU: Is the reason you are going to the Nevada Supreme Court that you want a grand jury convened?

MR. FASANO: That is correct.

MRS. RONDEAU: You had originally said that Churchill County hasn’t convened a grand jury for 25 years, but it turned out to be longer than that.  Is the clerk’s office still denying your right to a grand jury?

MR. FASANO: We don’t know the particular intricate details inside the District Court because we’re not privy to what the judge is deciding.  We don’t know what his decision-making process is.  All we know is that he has failed under the statute to order the grand jury to be summoned in this case within the statutory time frame.  I have a feeling that we could bring a little pressure to bear on the new judge, Judge Aberasturi, because when Wes McWethy, the primary petitioner, went into the county clerk’s office yesterday, it turned out that the county clerk and the District Court clerk are the same person.

MRS. RONDEAU: Really?  Had you known that before?

MR. FASANO: No, I never realized it.  I have yet to check into that.  It’s a sideline issue right now.  She tried to argue with him and say, “No, this document or request had to go to the District Court clerk.”  But we had the statute included as part of our request, stating that it is incumbent upon the county clerk to issue that certificate, not the District Court clerk.  The statute is very specific.  So after the argument that ensued, Wes (I wasn’t there, but I’m sure his story is accurate) said that the clerk became very upset because she didn’t want to have to do her job.  So Wes said, “Look, this is a statute; read it.  Perhaps you should read the other statutes which pertain to grand juries and the county clerk, and you might know what your job is supposed to be.”  I think he was being a little facetious, but he was on point.  Then she said, “Well, I’m taking this to the judge.”  Then she said, “Wait a second,” and she went and picked up the phone, and I’m sure she called the judge assigned to the case.  Wes said he was 99% positive that that was the person she called.  So now that judge knows that this is no game; we’re not fooling around.  We’re going through the statutes and following the statutes, and we’re going to proceed in accordance with them.  I wouldn’t be surprised if there weren’t a ruling today on it, but it also wouldn’t surprise me if they continued to not rule.

However, we’re not even thinking about that.  We’re proceeding along the lines of the statute.  It says we can apply to the Supreme Court; we now have our questions being answered by the Supreme Court clerk  such that we can proceed on into the Supreme Court.  The other thing she tried to do is take the documents (the request for the certificate) from Wes and she did not want to give us a certified copy back.  That was proof of notice, a stamped copy.  Wes insisted that he get a copy of that document, and she begrudgingly gave him one.  According to Wes, she wasn’t too happy about that.

MRS. RONDEAU: As you said in our first conversation, you are a sovereign.  Perhaps it takes a lot of “sovereigns” or perhaps just a few who are thinking the way you are to enforce the statutes.

MR. FASANO: Yes, and all we’re doing is trying to enforce the law that is on the books.  It hasn’t been done in a long time, but that’s not the point.  The point is that the law is there; we have the right and expectation that all citizens, all sovereigns, will follow the law.  So we’re using the law which is in place against the system which is supposed to uphold the law.  I believe that is the way we have to proceed, but we have to be very resolute in our standing and not back down.  It appears that when we get into a position where our standing is solid, our ground is solid, we have the statutes in our pocket and we know what they are, like with this county clerk, we knew what the law said.  She was pretty upset about having to face a citizen, or a sovereign, if you will, who understood what the law said.

MRS. RONDEAU: If you do end up going in front of the Nevada Supreme Court, they have waived the rule which requires that you have representation.  Why did they do that?

MR. FASANO: What they had said is because the Nevada Rules of Appellate Procedure (NRAP 46B) which affords any  citizen who is standing pro se to proceed into any venue, if you will, or tribunal, standing as pro se, as his own attorney.   It’s kind-of confusing because I think, and I discussed this at length with the clerk, that the rule is in conflict with the rules that the Supreme Court put in place for itself, specifically Rule 44A, which said that no person other than an attorney may appear before the Supreme Court.

MRS. RONDEAU: So there are two conflicting rules.

MR. FASANO: Yes, but she said what they would do if they had oral arguments was to immediately suspend that rule in this case because it would conflict.  Now it’s very odd that they would put a rule there that they would have to suspend in a specific case.

MRS. RONDEAU: Could you decide to use an attorney if you wanted to?

MR. FASANO: Yes, if we could find one.  I have personally talked to at least a dozen attorneys, probably more like 15, and I’ve talked to the Nevada State Bar, and I get the same thing from both the attorneys and the State Bar.  There is no attorney out there that is going to take this on, because that means they would be going against the system to which they swore an oath.

MRS. RONDEAU: Attorneys are supposed to be officers of the court, aren’t they?  And courts are supposed to decide disputes based on existing statutes and the state or U.S. Constitution.

MR. FASANO: Right.  But here is another issue that has come to light in my research, and it’s obvious that it is commonly overlooked.  When an attorney in Nevada comes into the Bar and he takes an oath, he takes an oath to the Judicial Branch of the State of Nevada.

MRS. RONDEAU: Not to the state or U.S. Constitution?

MR. FASANO: That’s in there as well, but it’s an implied contract between the attorney and the State of Nevada Judicial Branch.  As a matter of fact, the State Bar is an arm of the Supreme Court of the State of Nevada.

MRS. RONDEAU: I wonder how many states are like that?

MR. FASANO: I don’t know; I bet it’s more than a lot of people would realize.

MRS. RONDEAU: You’re uncovering some very valuable information for all citizens.

MR. FASANO: I never realized that their rules of establishment are under the Supreme Court rules.  In other words, the Bar works for the Judiciary, and as an arm of the Judiciary, it makes sense when the State Bar tells me, “You’re not going to find an attorney who is going to go against the system to which they have sworn an oath, ” it’s true.

MRS. RONDEAU: That raises the question, “Is every state bar association unconstitutional?”

MR. FASANO: Makes you wonder, doesn’t it? (laughs)  I haven’t gotten to that one, yet.

MRS. RONDEAU: Do you think the state and U.S. Constitutions are on your side in this struggle?

MR. FASANO: There is something I have found which I believe I have traced back in history:  the grand jury system has been usurped.  The case of Hurtado v. California, which was decided in 1884.  It was a murder case, and the gentleman appealed his conviction based on the fact that he was not indicted with a grand jury indictment.  It had been done based on information supplied to his attorney, which is very similar to the circumstance in our constitution, because our constitution clearly states “by grand jury or information by District Attorney.”  The ruling in 1884 was that the grand jury, in the opinion of the court, was not a due process of law.  However, in defense of the court, which was a very good defense in context, was that the due process of law comes back through antiquity from the Magna Carta.  They had a good argument as to why a grand jury is a due process of law function.

MRS. RONDEAU: The Fifth Amendment to the U.S. Constitution doesn’t mention anything about a prosecutor or District Attorney.  Were you referring to the Nevada state constitution?

MR. FASANO: Yes.

MRS. RONDEAU: So there are two conflicting constitutions which impact on this matter?

MR. FASANO: That’s right. Here’s the other issue I had with this, because I’m trying to find out when this grand jury system started going astray.  I can track it back to 1884 and to this case.  After that was when you started to see more and more indictments by information and District Attorneys than from grand juries.

MRS. RONDEAU: I have read that grand juries were originally composed only of citizens who convened without any government official or attorney present so that they could discuss possible wrongdoing on the part of public officials privately.

MR. FASANO: That’s exactly the point I made when I first told you what the grand jury power was here in Nevada.  One of their powers is to look into the conduct of elected officials, and that’s an inherent drawback as far as the government is concerned.  They don’t want that; they don’t want grand juries to have that kind of power.  What I also have found out from my research is that there is a part of the state constitution which allows for the conveyance of information by District Attorney, which is contrary to what the U.S. Constitution says.

{Editor’s Note: The section of the Nevada constitution which describes the indictment process reads as follows:

Sec. 8.  Rights of accused in criminal prosecutions; jeopardy; rights of victims of crime; due process of law; eminent domain. [Effective through November 22, 2010, and after that date unless the proposed amendment is approved and ratified by the voters at the 2010 General Election.]

1.  No person shall be tried for a capital or other infamous crime (except in cases of impeachment, and in cases of the militia when in actual service and the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace, and in cases of petit larceny, under the regulation of the Legislature) except on presentment or indictment of the grand jury, or upon information duly filed by a district attorney, or Attorney General of the State, and in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person, and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness against himself.}

In our constitution, we confer superiority of the U.S. Constitution over that of the state and all the statutes of the state.

{Sec: 2.  Purpose of government; paramount allegiance to United States. All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.}

I understand that point of conferring superiority to the U.S. Constitution, but does the state have the authority to pick and choose which portions of the U.S. Constitution to follow, and can they amend those portions of the U.S. Constitution to suit a state’s right?  I’m finding that under the context of case law, if you were to confer superiority of a document or a situation or, in this case, the U.S. Constitution, you are to take all the constraints that it implies.  You can’t pick and choose; that would be like a state saying, “OK, well, we like the First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment, and Tenth Amendment, but we don’t want the others.”  You have to take them all, and the state of Nevada, in 1865, accepted all the amendments along with the U.S. Constitution as the superior law of the land.

MRS. RONDEAU: Nevada hasn’t been a state for much longer than that, has it?

MR. FASANO: It became a state in 1865.  And what we’re finding is that there is a substantial case to be made with relative ease in front of a tribunal that that part of the state constitution that adds “information from a District Attorney” could very well be unconstitutional.

MRS. RONDEAU: So by going through your ordeal, the trial and acquittal of the defendants, your discovery of possible criminal activity on the part of the judge, and your subsequent request for a grand jury hearing to review your evidence, you are uncovering numerous revelations for the people of Nevada regarding their local and state governments.  Does it seem that the more government we have, the worse things become?

MR. FASANO: Actually, I think you’re right on target with that. and they’ve tried to bastardize the Constitution.  I hate to use that term, but that’s what they seem to have done.  Here’s a tidbit of information that you might find interesting.  I went to a political event last week where I gave a speech, and I happened to sit next to a gentleman by the name of Dick Gammick.  He is the District Attorney for Washoe County, where Reno is located.  What I found is that there are two counties in this state that are operating grand juries:  Washoe County and Clark County.  Not one other county in Nevada is operating a grand jury.  I discussed this with him at length, and he said, “You know, it’s a pain having to deal with the grand jury.  However, they cover my back, because if I can’t support my claim for a felony before a grand jury, I’m not taking it to court.  And they won’t allow me to.”

MRS. RONDEAU: Because the purpose of a grand jury, including the Fifth Amendment citizens’ grand juries, was to investigate in order to determine whether or not there was probable cause to bring a presentment to a law enforcement official.  So the grand jury was the first set of investigators, so to speak.

MR. FASANO: Yes, and one of the issues that was brought up in Hurtado, in the dissent, was the fact that the grand jury is supposed to be in place so that an individual cannot be subject to a malicious attack from any one person, be it a District Attorney or any government official; it must go through a grand jury first, because if the grand jury doesn’t really exist, as in the case in Churchill County, a single person could bring charges against a citizen in a courtroom, and he has no due course but to defend himself.  He may be innocent of the charges right up front, but there is no system of checks and balances to ensure that there is adequate information to sustain an indictment or a presentment.

{Text of Hurtado decision:  “7th. That it appeared upon the face of the judgment that the plaintiff in error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was proceeded against by information made and filed by the district attorney of the county of Sacramento, after examination and commitment by a magistrate of the said county.”

“8th. That the said proceedings, as well as the laws and Constitution of California, attempting to authorize them, and the alleged verdict of the jury, and judgment of the said Superior Court of said county of Sacramento, were in conflict with and prohibited by the Fifth and Fourteenth Articles of Amendment of the Constitution of the United States, and that they were therefore void.”}

MRS. RONDEAU: So because the grand juries have been taken away from citizens, could there be a lot of people being charged with crimes that they didn’t commit?

MR. FASANO: Yes.  That was the dissent inside Hurtado.  It’s a very, very good case.  The dissent, to me, is more important than the opinion.  I say “the opinion” because I could see where they circumvented the actual question in the prominence of the grand jury system.  In their opinion, they skirted the issue and tried to support the position that it wasn’t a case of due process.  But in the dissent, they went right at it and attacked the issue. They actually came out and showed that from antiquity, from the Magna Carta through the British common law as far back as Roman law, the grand jury system was there to protect the citizens from injustice from individuals.  It’s supposed to be a process of law.

Now Justice Scalia came out with a dissent wherein he said that the grand jury is the Fourth Arm of government.  That was also a dissent.  So that’s why I think dissent arguments are just as valuable as the opinion of the court because they’re much stronger than the opinion.  What I’m finding through all of my research is that it keeps going back to the same argument, the same time frame.  I can see in this state that it was 1911 or 1912 when the change really took place.  The precursor of that, from my research, goes back to 1884.  It’s pretty interesting.

My conclusion is that the degradation of the Republic stems from the degradation of the grand jury system.  When you look at the effects of corruption in government, it’s clear, because corruption in government didn’t just suddenly rear its ugly head all at once. It’s systemic and has been slowly growing since after the Civil War to the present.  And right now you know that the corrupt practices of many individuals holding public offices are almost commonplace.  Look at Rangel.  They’re treating the guy as if he’s a hero, but, I’m sorry, he’s a criminal.  He hasn’t been convicted yet, but he certainly appears to be a criminal.  If you or I committed those crimes, you know where we would be, and they’re treating him as if he’s a folk hero.  Remember Robin Hood?  He was a folk hero because he actually did good for the people by doing wrong, but Charlie Rangel is no Robin Hood.

MRS. RONDEAU: It would seem hard not to know about one’s income from a property in the Dominican Republic.

MR. FASANO: Yes, and he’s the one writing tax policy (laughs).

MRS. RONDEAU: That almost begs the question of how a questionably ineligible candidate could run for office, win and be installed in the White House.

MR. FASANO: There is an article on Repubx concerning the dirty dealings inside the DNC getting through the primary process with Obama and Clinton.  Technically, they broke the law in many states regarding the voting of superdelegates.  The article is very good and is Part 1 of 3, I believe.  It will give you an insight on how they corrupted the system, the very system that they’re supposed to be upholding, just as they did in 2008 at the Republican Convention here in Nevada with Ron Paul.

MRS. RONDEAU: What happened there?

MR. FASANO: Ron Paul had most of the delegates; I think it was 26 out of 31 delegates who were supposed to vote for him, and they shut that thing down!  After that, the Ron Paul people were very angry, as they were all disenfranchised, and they held another convention outside of that one where Ron Paul actually got the nomination.  What the RNC did after that was establish a committee to look into the complaint that was filed, and on that committee, I think there were seven states represented; some of them had chairmen and delegates from other states. They looked into it, and they flat-out said that they disenfranchised and violated the constitutional rights of individual delegates of that convention by not upholding the rule of law.

MRS. RONDEAU: So what happened with Hillary Clinton and Obama in 2008 wasn’t new?

MR. FASANO: No, it’s systemic.  Both parties are doing it.  Now if a grand jury had been in place, someone would have gone to jail over this.  And where the Ron Paul incident occurred, in Carson City, they don’t even have a grand jury.  And that’s the seat of our state government.  It makes it look really bad, doesn’t it?

MRS. RONDEAU: The way you have explained it, government officials are purposely refusing to convene grand juries, channeling the money that should be spent on them into corrupt practices, which almost gives them carte blanche to do whatever they want, depending on how corrupt they are.

MR. FASANO: Yes, and if you eliminate the grand jury that is supposed to be looking at those very things, boy…it’s like the wolves guarding the henhouse.

Update, August 19, 2010: Mr. Fasano has reported to The Post & Email that Judge Aberasturi has denied his request for the convening of a grand jury.

The text of the judge’s order reads:

On August 2, 2010, the Petitioner filed a Petition Requesting the Summons and Setting of a grand Jury Pursuant to NRS 6.130.  The Petition was randomly assigned to Department 1 pursuant to court rules and had to be reassigned to Department 2 due to a conflict.

The gravamen of the Petition is based upon alleged violations of the Code of Judicial Conduct by David A Huff, District Court Judge, Third Judicial District Court of the State of Nevada.  The Petition alleges that a district court judge must make further disclosures than provided by campaign statutes and the Code of Judicial Conduct.

NRS 6.130 states:

1.  In any county, if the statute of limitations has not run against the person offending, the district judge may summon a grand jury after an affidavit or verified petition by any taxpayer of the county accompanied by and with corroborating affidavits of at least two additional persons has been filed with the clerk of the district court, setting forth reasonable evidence upon which a belief is based that there has been a misappropriation of public money or property by a public officer, past or present, or any fraud committed against the county or state by any officer, past or present, or any violation of trust by any officer, past or present.  The district judge shall act upon the affidavit or petition within 5 days.  If he or she fails or refuses to recall or summon a grand jury, the affiant or petitioner may proceed as provided in NRS 6.140.

Petitioner has failed to allege any specific acts that would provide the basis for a criminal action based upon Nevada statutes.  The Court found no legal authority that would subject a public official to criminal sanctions for failing to make campaign disclosures not otherwise required by law.  The Court found no legal authority that a violation of the Code of Judicial Conduct provisions regarding disclosure of campaign contributions would subject a judicial officer to criminal sanctions.  As no basis has been provided, the Court finds that the Petitioner has failed to meet the requirements of NRS 6.130.

Based upon the above and good cause appearing, the requested relief is DENIED.

Dated this 13th day of August 2010.

LEON ABERASTURI
DISTRICT COURT JUDGE

Mr. Fasano disagrees with the judge’s decision because he claims that it does not address the criminality of Judge David A. Huff’s alleged acceptance of campaign donations as a bribe to allow the defendants accused of injuring his wife and him to walk free.  However, he said that the decision “was expected.”