10-05-16 draft power point presentation- human rights alert universal periodic review report and...

8/9/2019 10-05-16 DRAFT Power Point Presentation- Human Rights Alert Universal Periodic Review report and proposal for UN resolution-s

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Universal Periodic Review (UPR)Outline of the first ever Universal Periodic Review (UPR) by

the United Nations of Human Rights in the United States:

• April 2010 - Reports by stakeholders due with the UN.

• August 2010 - Response on the reports by the US State

Dept due with the UN

• November 2010 - Review session and report by the UN

• > November 2010 - US State Dept-UN discussion on

future goals.

• 2014 - Next UPR by the UN of the US

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Digitally signed

by Joseph Zernik

DN: cn=Joseph

Zernik, o, ou,

email=jz12345@

earthlink.net,

c=US

Date: 2010.05.17

16:03:33 +03'00'



Human Rights Alert (NGO)

Submission as part of 2010 UPR of the US:• Core Allegations – serious widespread violations

of Human Rights by the US federal courts –

– enabled by the new computer systems of the federalcourts – PACER & CM/ECF.

• Resulting Alleged violations –– False imprisonment

– Abuse of the right for possession

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PACER & CM/ECF

• New computer systems of the US courts

were established US-wide by the

Administrative Office of the US Courts.• The project took over a decade to complete

• The cost was estimated at the low $ billions

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• Separate and unequal access systems• Parties in litigation are segregated

• PACER access is permitted to the publicand pro se litigants

• CM/ECF access is permitted to attorneys

authorized by a given court in a given case.

PACER & CM/ECFDRAFT



Due Process & Fair Hearings

• Due Process - a fundamental Civil Right in USlaw

• Fair Hearings - a fundamental Human Right in

ratified international law• Disambiguation of court rules and courtprocedures - a cornerstone of Due Process & Fair

Hearings:

– Published Rules of Court

– Right for Notice and Service of court records

– Right to access court records – to inspect and to copy

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Full Faith & Credit

• Core issue – defining court records (orders, judgments) that are honest, valid, and

effectual

• Alternative – court records that may be:

– Proposed order and judgments,

– Unentered (“lodged”) orders and judgments– False court records.

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Full Faith & Credit

• US Constitution, Article IV, § 1:Full faith and credit shall be given in each

state to the public acts, records and judicial

proceedings of every other state. Andcongress may by general laws prescribe themanner in which such acts, records and

proceedings shall be proved, and the effectthereof.

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Full Faith & Credit

• US Act of May 26, 1790:…That the act of the legislatures of the

several states shall be authenticated by

having the seal of their respective statesaffixed thereto; That the records and judicialproceedings of the courts of any state shall

be proved or admitted, in any other courtwithin the United States, by the attestation ofthe clerk, and the seal of the court annexed…

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Full Faith & Credit - Paper Records

The procedures were well established forgenerations:

• Assigned judge would verify orders/ judgments byhand signature and date.

• Authorized clerk would authenticate the record byhand signature and date with court seal/stamp.

• Verified and authenticated records were entered incourt files as such and thereby became publicrecords.

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Full Faith & Credit - Digital Records

Unreasonable ambiguity emerged:• No Rules of Courts were published pertaining to

verification and authentication of court records

• Based on “Users’ Manuals” of federal courtsacross the US:

– NEFs (Notices of Electronic Filings) are the new

authentication instruments.– RSA-encrypted “Court Stamp” replaced the hand

signature of the clerk and the seal of the court.

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Digital Records –US Court, Central District of California

In the specific case of the Los Angeles Court, anunsigned, unauthenticated “General Order 08-02”further defined the procedures:

O. Certification of Electronic DocumentsO. Certification of Electronic DocumentsO. Certification of Electronic DocumentsO. Certification of Electronic Documents. Pursuant to Federal Rules of

Civil Procedure 44(a)(1) and 44(c), the method of electronic certification describedherein is deemed proof of an official court record maintained by the Clerk of Court.

The NEF contains the date of electronic distribution and identification of the United

States District Court for the Central District of California as the sender. An

encrypted verification code appears in the electronic document stamp section of the

NEF. The electronic document stamp shall be used for the purpose of confirming

the authenticity of the transmission and associated document(s) with the Clerk of Court, as necessary. When a document has been electronically filed into CM/ECF,

the official record is the electronic recording of the document kept in the custody of

the Clerk of Court. The NEF provides certification that the associated document(s)

is a true and correct copy of the original filed with the court.

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Deficiencies in Digital Records Integrity

• Failure to publish the new Rules of Court• Order, judgments were separated from the

authentication instruments – NEFs

• PACER – displays orders, judgments without theauthentication at all.

• PACER – does not permit public access to the

authentication instruments.• PACER – what appears to the public as signaturesin the PACER dockets may or may not beassociated with digital signatures in the NEFs.

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• PACER – access to dockets was permitted to courtstaff, who were NOT authorized as deputy clerks.

• CM/ECF – the system permits the issuance andnotice and service of NEFs bearing no court stampat all.

• CM/ECF – no electronic public access ispermitted to NEFs – which are electronic records

• CM/ECF – allows access to NEFs only toattorneys who are authorized by a given court in agiven case.

Deficiencies in Digital Records IntegrityDRAFT



The Culmination of Deficiencies

in System Integrity• The court marks as “entered” – albeit with no

valid authentication large volume of records that

are not authenticated, and are not valid andeffectual court records.

• Such records are noticed and served on parties tolitigation, with no court stamps, or with no NEFsat all.

• Even accomplished, experienced attorneys aremislead relative to validity of court records.

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Sample Evidence

1. Court filings, court minutes, orders, & judgments, which were served with invalidNEFs or no NEFs at all.

2. Evidence of denial of access to court records –particularly to NEFs.

3. Evidence of refusal of senior US officer to

initiate corrective actions.

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Valid NEFUS Court, Central District of California

Petition for Writ of Habeas Corpus - Fine v Sheriff (2:09-cv-01914)

(click to enlarge image)



Invalid NEFUS Court, Central District of California

Mandate of the US Court of Appeals, 9th Circuit in Petition for Writ of

Habeas Corpus - Fine v Sheriff (2:09-cv-01914)



Conclusion -I

• Orders and Judgments are routinely issued andserved by the US courts, which are not

authenticated.

• A reasonable person is likely to conclude that suchrecords did require “full faith and credit”.

• The evidence is compelling that considerable

ambiguity was introduced into defining thevalidity of court records, even by accomplished

attorneys.

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Conclusion II

• The public, and pro se litigants are unable todiscern such valid from invalid, since access

to NEFs is denied.

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Proposed Solution

Publicly accountable validation (certifiedfunctional logic verification) of such

systems in the courts -- pursuant to the

Rulemaking Enabling Act.

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Exhibits

• Declaration re: Attempt to access courtrecords September 18, 2009

• Declaration re: Attempt to access court

records December 31, 2009

• Declaration re: Attempt to access court

records March 25, 2010

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Proposed UN-UPR Resolution

1) Compelling evidence was provided of unreasonable ambiguity in the US federal

courts public access and case management

systems – PACER & CM/ECF, relative toverification and authentication of court

records, such that require ‘full faith and

credit’.

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Proposed UN-UPR Resolution (cont)

2) Concerns were raised that establishedprinciples of Due Process and Fair Hearing

were undermined, or not fully sustained in

PACER & CM/ECF:– Published Rules of Court

– Right for Notice and Service of court records

– Right to access court records – to inspect and to

copy

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Proposed UN-UPR Resolution (cont)

3) The US is called upon to document thatsuch principles of Due Process and Fair

Hearings are fully sustained in PACER and

CM/ECF.4) Publicly accountable validation of case

management and public access systems of

the courts is recommended in courts of all

member nations.

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Expert Opinions

• To be completed

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