posted on Dec, 2 2012 @ 04:03 PM
Anderson v. U.S., 352 F.2d 945. An arraignment accordance with Rule 10 is intended to be a safeguard for due process and failure to observe this
safeguard amounts to denial of due process and the court is deprived of jurisdiction. Merrritt v. Hunter, 170 F.2d 739. Arraignment in a federal
criminal prosecution is a vital part of the criminal process. McConnell v. U.S. 375 F. 2d 905.
The Court at the arraignment must determine whether it has personal and subject-matter jurisdiction concerning this case before any other
determinations are made. This critical step cannot be performed by a non-Article III judge in an Article III court involving a felony case. The
magistrate proceeded to conduct the arraignment proceeding and made final determinations and rulings as they arose. There is no indication in the
record of the existence of communication between the Magistrate and an Article III Judge or of the method of any such communication. We cannot
presume, where no evidence exists in the record to support such a presumption; that the Article III judge was playing an active role in making rulings
as they were made. Fowler v. Jones, 899 F.2d 1088 (11th circ. 1990).
The Fifth Circuit Court of Appeals in the case U.S. v. Johnston, supra rules that a Magistrate Judge cannot conduct vital criminal felony
proceedings even with the consent of the defendant.
In this instant case the defendant was arraigned without the informed consent of the defendant. The Magistrate Judge is not an Article III Judge
as demanded by the U.S. Constitution. The appointment of a magistrate “was conditioned upon the defendant’s express written consent.” Peretz
The legislative history of the statute (28 USC § 636(b)(3) also emphasizes the crucial nature of the litigant’s consent. See H.R. Rep. No.
96-287, p. 20 (1979) (Because of the consent requirement, magistrates will be used only as the bench, bar, and litigants desire, only in case where
they are felt by all participants to be competent”) (emphasis added)
There is no Article III problem with the defendant’s consent. No written consent to be arraigned before a U.S. Magistrate Judge was given by
defendant in this case. The legal result is that the alleged proceeding never occurred or happened. When jurisdiction is void, any subsequent criminal
proceedings have no validity and are also necessarily void. Any resulting final order form this court, in this case, are void and of no effect and the
defendant must be immediately released from custody, the case vacated, all fines, penalties and confiscated property returned, all liens removed and
the record expunged or a grave miscarriage of justice will have occurred.
A criminal defendant has a “right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.” Thus,
harmless-error analysis does not apply in a felony case. In re Morrissey v. Arnold, 717 F.2d 100 at 102; Gomez v. U.S., 104 L.Ed. 2d 923; Government
of the Virgin Islands v. Williams, 8892 F.2d 305 at 309. Defendant had ineffective assistance of counsel in that they did not vigorously object to
this grave miscarriage of justice. The trial cannot be trusted to have produced a just result.