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