MILT HIRSCH'S CONSTITUTIONAL CALENDAR ..... & A POSTSCRIPT ON JASON BLOCH .....

 

THE CAPTAIN REPORTS:

MILT HIRSCH'S CONSTITUTIONAL CALENDAR .....

John Provoo passed away 23 years ago this week. Who is John Provoo you ask:

"In the weeks and months before December 7, 1941 – that “day that will live forever in infamy” – the plan was simple.  When the armies of Imperial Japan came sweeping through southeast Asia, the American forces based in the Philippines would fall back upon positions in and around Manilla Bay, there to await rescue by America’s Pacific Fleet.  The plan was simple because it had to be.  America’s military presence in that part of the South Pacific was inadequate for any purpose but tactical retreat, and Americans burdened by the Great Depression were in no mood to fund an expanded military presence on the far side of the globe.

In the wake of their surprise attack on Hawaii, the Japanese destroyed Clark Field, America’s airbase in the Philippines, as well as other military and naval installations in and around Manilla Bay.  The Pacific Fleet, which according to the plan was to rescue the American forces in the Philippines, had been sent to the bottom of Pearl Harbor.

American and allied forces fell back upon such positions as were available to them, chiefly upon a barren rock called Corregidor.  Bereft of supplies, bereft of reinforcements, bereft of hope, they held out for four full months, obliging the enemy to engage them until April 9, 1942.  The fate that awaited the souls who surrendered was reported in the American press as the “Bataan Death March.”

During and after the Death March one American soldier, John Provoo, formed an alliance with his Japanese captors.  He was given decent nutrition and sanitary living conditions.  In return, he acted as a guard and informer against his own comrades, and later even made radio broadcasts for Imperial Japan.

It was not until 1949 that the United States Department of Justice was prepared to go forward against Provoo on charges of treason and related crimes.  The delay was entirely understandable.  Provoo’s crimes, committed in 1942, were beyond the reach of the law until the war ended.  Even then, there were military, economic, and other claims on the nation’s post-war attention that took priority over the prosecution of Provoo.  And when prosecutors did begin to assemble their case, they had precious little to work with: most of the witnesses were dead, and many of the survivors were in far-off Japan or Australia.  

In the meantime, on September 5, 1946, Provoo had found the perfect hiding place: incredible as it seems, he had quietly reenlisted in the United States Army.  He was stationed at Ft. Meade, in Maryland.

In June of 1949, the Department of Justice arranged to have Provoo taken into custody at Ft. Meade; transported under guard to Fort Jay, Governors Island, New York; and ordered to accept an “undesirable discharge” from the Army.  He was then turned over to agents of the F.B.I. who arrested him for treason.  Provoo was tried in the Southern District of New York, convicted, and sentenced to life imprisonment.

Provoo’s lead counsel on appeal was George A. Spiegelberg.  Spiegelberg, the grandson of German-Jewish immigrants, was a Harvard Law grad; served prominently in World War II; and after the war was among the founders of the law firm that is today Fried, Frank .  He had little criminal-law experience, but when the Second Circuit appellate panel – an all-star team of Swan, Medina, and Harlan – asked him to undertake Provoo’s appeal, he agreed to do so on condition that he and his colleagues receive no compensation at all.  He would represent Provoo for principle, but not for money.  

On appeal, Spiegelberg had a powerful argument grounded in 18 U.S.C. 3238, which at that time provided that, “The trial of all offenses begun or committed . . . out of the jurisdiction of any particular state or district, shall be in the district where the offender is found.”  Provoo was “found” at Ft. Meade, in the District of Maryland.  His travel to New York was a contrivance of the Department of Justice.  It could not create venue.  In the words of the appellate court:

“We cannot blind our eyes to the fact that the real purpose in bringing [Provoo] to New York was to meet the wish of the Department of Justice to have him tried for treason under the indictment subsequently filed here.  Consequently we hold that the continuance of Provoo’s restraint in Ft. Meade . . . for the purpose of bringing him to New York for trial, was an apprehension for treason and that he was ‘found’ in Maryland within the meaning of the venue statute.”  United States v. Provoo, 214 F. 2d 531, 538 (2nd Cir. 1954).  

The Second Circuit’s opinion reversing Provoo’s conviction was dated August 27, 1954.  Of course the appellate ruling did not bar re-trial; on the contrary, it invited it.  On October 27, Provoo was indicted in the District of Maryland.  

The lawyers who represented him there dropped a bombshell: they moved to dismiss the charges against him on constitutional speedy trial grounds.  See Petition of Provoo, 17 F.R.D. 183 (D. Md. 1955).  In essence, the motion to dismiss claimed that the delay of approximately five years associated with trial and appeal in New York had prejudiced Provoo’s defense irremediably.  The motion identified defense witnesses who had died, and evidence that had become unavailable, in the intervening period.  

The resolution of the motion would turn in substantial part on the government’s reason for having Provoo transferred to New York for trial.  In the America of the 1950's, all television and radio networks were headquartered in New York City, as were several of the nation’s largest daily newspapers.  It was almost certainly the case that the prosecution’s real reason for trying to manufacture venue in New York was so that a notorious traitor could be tried and convicted before the largest possible audience.  

The Maryland case would proceed before U.S. District Judge Roszel C. Thomsen, who had been on the bench for no more than eight or nine months when the case came before him.  But what Judge Thomsen lacked in experience he made up for in fidelity to the Constitution.  To the unspoken argument that so vile a traitor as Provoo should not be permitted to go unwhipped of justice for a violation of his right to a speedy trial – a violation of the sort that the lay public refers to as a “technicality” – Judge Thomsen replied: “The offenses charged could not be more serious.  But it would be a poor tribute to [a fellow-soldier whom Provoo was accused of betraying] to deny to this defendant the rights for which [that fellow-soldier] gave his life.”  Petition of Provoo, 17 F.R.D. at 196.  He explained:

“It . . . appears that Provoo . . . was taken to New York in September, 1949, charged with treason, and held in custody for more than five years before being indicted and brought to trial in a district having jurisdiction to try the case.

“The government must have known that venue in New York was at least doubtful . . . yet the government caused Provoo to be taken under guard from Fort Meade to Fort Jay, for the supposed advantage of proceeding in New York rather than in Maryland.  It therefore appears that a large part of the long delay – at least five years – has been due to the deliberate choice of the government, exercised for a supposed advantage.

. . .

“. . .  The long periods of imprisonment have caused other prejudice to the defendant beside the deprivation of his freedom, with a capital charge hanging over him.  He has been handicapped in his ability to locate and keep in touch with possible witnesses.  But even more serious has been the effect on Provoo himself. . . .  His ability to cooperate with his counsel in preparing his defense, and to testify in his own behalf with respect to matters which occurred from 1942 to 1945, has obviously deteriorated during the years in prison.”  Id. at 195.  

The case was dismissed.  Provoo went free.  But his story doesn’t end there.

It ends with a small piece in a Honolulu newspaper – just a small piece down in the corner on the obituaries page.  It was dated August 28, 2001, exactly two weeks before the debacle of September 11, and it noted the quiet death of an 84-year-old Buddhist priest at Hilo Medical Center in Hawaii.  His name was John Provoo, and he was buried at Hawaii Veterans’ Cemetery. "

JASON BLOCH, POSTSCRIPT:

The Comments section from our last post was filled with a back-and-forth about Judge-Elect Jason Bloch. (To the educated reader it would appear that Jason or someone very close to him wrote many of the replies to the somewhat negative comments about his last stint on the bench, how he won the election this time, his net worth, how he earned that money, and on and on and on).

As Joe Friday liked to say "just the facts". So here are the actual facts:

Jason Bloch reported raising $13,300 for his campaign. He contributed (loaned his campaign) an additional $170,975. He spent $313,978 on his campaign. (I have not figured out how that is actually possible - he spent $129,703 more than he had in his campaign account. Maybe Judge Bloch can weigh in on that matter in the Comments section or privately email us).

His opponent, Bonita Jones-Peabody, raised $50,270 and loaned her campaign $80,025. She spent $90,790.

According to the publically available documents, Jason's net worth indicates he had about $68,000,000 as of December 31, 2023. How he acquired that wealth has also been the subject of debate in the comments. But, strictly for argument's sake, who cares. If Jason Bloch wants to serve the public as a judge, and if the people of Miami-Dade County choose to elect him, then why does it matter how much he is worth on paper, or how he acquired that money.  Certainly, his abilities on the bench are fair game, and he will once again be judged by the attorneys that appear before him over the next six years. But his net worth - sounds like just a little bit of jealousy out there.

As for past elections, Jason ran twice in contested elections for Circuit Court Judge. He spent 20 years working at the Miami-Dade County Attorney's office before being appointed to the bench by Governor Rick Scott in 2014.

Two years later, in 2016, he ran as the incumbent against challenger Marcia Del Rey. Bloch lost that election 52% - 48%.

In 2022, Bloch challenged incumbent Judge Oscar Rodriguez-Fonts. Bloch lost that contest 50.4% - 49.6% (a total of 262,589 votes were cast - Bloch lost by 1,851 votes).

Those are the facts.

CAPTAIN OUT .......
Captain4Justice@gmail.com