- 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
- 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 Circuit 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
- 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
- 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. 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 their careers
- 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
- I hope that whoever writes the judgment will have the
courage to write what it takes - and not bow to America's censors.