Johnny Kramer explains the real reason we have jury trials in the United States by Johnny Kramer
(libertarian)
Saturday, September 25, 2010
"Thank you for your candor. Your Honor, at this time, I'm going to move that Mr. Kramer be dismissed."
The judge asked the defense attorney if he had any objections to the prosecutor's motion.
The defense attorney stared at the table and shuffled some papers for at least 15 seconds. I knew his mind was racing to come up with some reason to object. Finally, having found none, he meekly told the judge "No."
With that, my latest foray into the slavery of jury "duty" ended.
Hurry Up and Wait
The previous day, I sat through hours of mind-numbing boredom, finally to be called for a jury panel near the end of the day.
After another hour or so of waiting in the courtroom, the judge, prosecutors, defense attorney and defendant finally entered.
One of the two prosecutors began the process of "voire dire" (derived from Latin, the phrase means "to tell the truth"), which is supposedly meant to screen the prospective jurors for biases that would prevent them from judging the facts of the case impartially.
As usual with government, its order for us "to tell the truth" doesn't apply to its own employees; the other purpose of voire dire now is for the government judge and prosecutors to lie to the jury panel about what their rights and responsibilities as jurors are, and to screen out anyone who knows that they're lying. Today, jurors are instructed that they are to be simply the "finders of fact," that the judge will explain the law to them, and that they are to judge only whether the facts of the case prove beyond a reasonable doubt that the defendant violated the strict letter of the law, as explained to them by the judge. They are to abandon their consciences and their common sense, and are to disregard the morality of the law and of the punishment, as well as the context of the case.
The Purpose of Juries
These lying instructions contradict hundreds of years of common law tradition, dating back at least to the Magna Carta.They also contradict the whole purpose of jury trials and of the Sixth Amendment. The jury system in the United States, with the right and responsibility of jurors to judge both the guilt of the accused and the law itself, was supposed to be a last line of defense against government tyranny.
Indeed, the purpose of jury trials is not that a group of random, everyday people plucked off the street can mindlessly apply the facts of a case to the letter of the law any better than can a government judge; if anything, a judge is far more qualified to do that than are average people, because he or she has legal training that most regular people don't have.
No, the purpose of juries was to be another check against government power, to give people who didn't work for the government the power to not only determine the guilt of the accused, and the context iof his conduct if he was guilty beyond a reasonable doubt, but to determine the morality of the government's laws and punishments. If they found that the legislature had written an unjust law or an unjust punishment, they could effectively nullify that law or punishment by refusing to convict on that basis, even if they believed the defendant was guilty. And, if that happened often enough, theoretically it would embarrass the legislature into changing the law or the punishment.
Jury nullification has a rich history of helping to reign in government; it played a role in the repeal of, among other government abuses, the Alien and Sedition Acts, the Fugitive Slave Act, and Prohibition.
(It's true that jury nullification has also been misused at times, such as when racist white jurors refused to convict whites of murdering blacks. during the Jim Crow era. But, with questions of liberty vs. tyranny, the nod must always be given to liberty; it's better, as the saying goes, that ten guilty people go free than one innocent person be convicted. And, if anything, such blatant injustices are another indictment against government having a monopoly on justice, a subject we'll touch on shortly.)
The true purpose of juries was commonly understood around the time of the American Revolution.
In giving the first ever instructions to a jury by the Supreme Court, Justice John Jay said in 1794, "It is presumed that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision . . . you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
John Adams, second President of the United States, said of the juror, "it is not only his right, but his duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
Thomas Jefferson, third President of the United States, wrote in 1782 that, ". . . it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact."
In a letter to Thomas Paine in 1789, Jefferson also wrote, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."
James Madison, fourth President of the United States and chief author of the U.S. Constitution, said, "Further, the jury's veto power protects minorities from the body of the people, operating by the majority against the minority."
Even the more statist figures of that era acknowledged the legitimacy of jury nullification.
Alexander Hamilton wrote in 1804, "Jurors should acquit, even against the judge's instruction . . . if exercising their judgement with discretion and honesty they have a clear conviction the charge of the court is wrong."
In his first dictionary, titled the Dictionary of the English Language, Noah Webster defined the words "juries" and "verdict" thusly in 1828: "Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions. The decision of a petty jury is called a verdict."
The anarchist Lysander Spooner echoed those sentiments in 1852 when he wrote, "For more than six hundred years -- that is, since Magna Carta, in 1215 -- there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law."
Until Spooner's time, federal and state judges both frequently informed jurors that they had the right to reject the court's view of the law.
That began to change when jurors frequently refused to convict abolitionists of violating the federal government's Fugitive Slave Act of 1850.
The Act required federal marshals everywhere in the U.S. to arrest any suspected runaway slave; those who complied received promotions, while those who refused could be fined $1,000 (roughly $25,500 today). Any private citizen who aided a suspected runaway slave, such by giving him food or shelter, was subject to the same fine and six months' imprisonment. The only "proof" required that someone was a slave was a sworn affidavit from the claimant; those accused of being slaves weren't entitled to trials or to even say anything in their own defense.
In response to jurors refusing to convict anyone for violating this horrific law, judges began questioning jurors on their view of it, and dismissed any whom so much as expressed qualms about enforcing it.
But the big change came in 1895, when the Supreme Court addressed jury nullification for the first and only time, voting 5-4 in Sparf v. United States that courts no longer had to inform jurors that they had the power to veto laws they found unjust. The ruling didn't state per se that jurors had no nullification power, only that courts could commit lies of omission and not inform them of it. Big business agitated for this change because, although labor strikes were illegal at the time, juries frequently refused to convict striking workers of violating the law.
In the dissenting opinion, Justices Gray and Shiras wrote, "It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issues of guilty or not guilty."
Looking back, the American Law Review in 1892 praised the decision, writing that jurors had "developed agrarian tendencies of an alarming nature."
Even since then, nullification hasn't been without prominent comment.
Justice Oliver Wendell Holmes wrote in 1920 that, "The jury has the power to bring a verdict in the teeth of both the law and the facts."
Chief Justice Harlan F. Stone wrote in the 1940s that, "If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law."
Numerous circuit court decisions since 1895 have also ruled that juries have the power to nullify, but have also ruled that courts are under no obligation to inform juries of their rights. Amusingly, all of the decisions contain the twisted logic of saying that nullification is undesirable because it weakens the "rule of law" and encourages "lawlessness." But what could be more "lawless" than an unjust law (one that violates natural law)? And what could be more "lawful" than nullifying it?
Obviously, defense attorneys would love to tell juries about nullification, so there must be something stopping them. This probably varies by jurisdiction and by judge, but my guess is judges who wish to try and revoke a jury's real power will strike a prospective juror who admits to knowing his rights (in the unlikely event that the prosecutor doesn't strike him first, as in my experience), strike the whole panel if the informed panelist says too much before only he can be struck, or declare a mistrial if anything is overtly said about nullification to the jury once the trial is underway.
Lessons from One-Way "Voire Dire"
Now back to my story.
The prosecutor went through his one-way "viore dire" process, asking various jurors if they would blindly apply the law, regardless of their opinion of it, and whether they would vote to convict without knowing the punishment that would be imposed. Sadly, all who were asked readily said they would.
I was the next person up, and had my speech all ready to go, when the judge called it a day. Now I'd have to get up early the next morning and drive all the way back, only to quickly be dismissed. When I got to my car, I wrote down everything I intended to say, on the off-chance that I might forget any of it by the next morning.
When my turn came the next day, I asked to address some of the questions the prosecutor had posed to some people on the panel the previous day, since not every person was asked every question.
I explained my views on the responsibilities of a juror, and also said that I would likely acquit, regardless of the evidence and even if I agreed with the law, simply based on the fact that I can't know what punishment will be imposed on the defendant if I convict.
The defendant was charged with burglary. While that's certainly wrong, I know the penalties are severe; I'm sure he was looking at several years in a cage - which is just a make-work scam for government employees that has nothing to do with helping the victim, who will have further money stolen from him through taxes to pay for the burglar's incarceration.
In my view, except possibly for repeat offenders, the penalty for a burglary conviction should be to return the stolen items or pay for them, plus maybe an additional amount for the victim's distress, along with paying for the trial.
But I didn't say any of that, nor did I say how rich I found it that government - the biggest thief in society, and one that funds its entire operation through theft - claimed the moral authority to prosecute someone else for a minor burglary.
The prosecutor used speeding as an example to clarify my comments, asking if I would convict someone whom the evidence showed beyond a reasonable doubt was guilty of breaking a speeding law, regardless of my opinion of speeding laws or of the person's reason for speeding (he spent the most time on this aspect of his argument; I didn't think of this response at the time, but apparently to him, someone speeding on the highway, rushing his father who's having a heart attack to the hospital because the government's 911 system is too slow to respond, is no different than someone driving 100 mph through a School Zone).
I affirmed that I couldn't guarantee to apply the law blindly in that - or any other - case, and he moved that I be dismissed.
It seems to be a fundamental law of the universe that you always think of what you should've said on the way home from the party. I wish I had thought to throw some scenarios back at him, like whether he would expect me to convict a "witch" in Massachusetts in the 1600s, or to uphold slavery in the U.S. prior to 1865, or to endorse the gassing of Jews in Nazi Germany. It would've been fun to see his reaction.
My sad experience with a government court illustrates three important lessons everyone should understand.
1. Government isn't fixable.
A government, by definition, is a group of people who have a monopoly on the legal use of force within a certain area.
If history teaches anything, it's that such a group of people, once they have that monopoly, can never be trusted to "limit" their use of it in any meaningful way. The neutering of juries is another example of why it matters not what kinds of "safeguards" are put in place to "limit" government. Neither constitutions, nor breaking government up into "separate" branches or levels, nor juries, nor anything else can fix government because, by definition, that same government will also interpret what those "restrictions" mean for its own power.
That monopoly is evident through every facet of the government's criminal "justice" system.
The government's politicians (often lawyers) write laws and the punishments imposed for breaking them (often with the help of more lawyers, who usually write legislation in such legalese that it frequently requires a lawyer even to understand it).
Government police collect evidence of violations of laws, which they give to government prosecutors (lawyers).
The prosecutors determine which laws have been broken and which charges to bring, and then arbitrarily decide whether to bring charges at all.
Once trials are initiated, the government judge (who is, as Mencken quipped, nothing but a law student who grades his own papers) decides all questions pertaining to the law.
Upon conviction - which is virtually guaranteed since the only non- government employees involved in the whole process, the jury, have been told by the government judge that they must blindly apply the law written by government politicians as he instructs them, effectively also making them part of the government monopoly - the judge imposes sentence based on the guidelines written by the politicians, and only he may take into account any mitigating factors regarding the context of the defendant's conduct when imposing the sentence.
The government judge then either sentences the defendant to a prison owned and operated by the government, or to probation overseen by government probation officers.
As James Madison also said, "It will be of little avail to the people that the laws are made by men of their choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they . . . undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow."
The fact that the government lies to juries about their power to judge all aspects of the case, including the law and punishment, especially illustrates the monopoly. "Neutral" courts are still part of the government - the same government that's prosecuting the case. By telling the jury only to apply the evidence against the law as the judge explains it, the "neutral" judge goes from being a "referee" to being part of a tag-team with the prosecution - which, of course, also makes the jury part of the team. So maybe it's more like he prosecutor and jury are the tag-team, and the judge is their heel manager. As a result, the vast majority of jury trials in the U.S. now end in conviction; instead of a last line of defense against tyranny, juries have been turned into mindless conviction machines, routinely enforcing horrifically unjust laws and punishments.
And, of course, if the defendant objects to this unfair treatment, he can't take his business to a competing court that attempts to attract customers by fully empowering its jurors. All he can do is appeal his near-certain conviction to a higher government court after it happens - which will take years, and which is almost certain to fail.
Real law (natural law) doesn't come from government, and government isn't needed to protect it. Indeed, government is the biggest violator of natural law in any society; for one thing, its entire operation is funded by theft. To expect liberty to be defended by the only entity in society capable of revoking it is absurd. A government exists specifically to aggress against people; that's its raison d'etre. Expecting it to do otherwise is like expecting the mafia to turn into a charitable organization for widows and orphans.
The fact that the government discourages regular people from reviewing its laws as jurors also brings us to our second point.
2. Democracy is a sham.
The ruling elite attempt to placate us about this ridiculous monopoly on the legal use of force they use to perpetually rob and enslave us. One of their methods is relentlessly conditioning us, through government schools as children and through the mainstream media as adults, into accepting the secular religion of democracy, which is the illusion that "we" somehow run the government because our betters allow us at regular intervals to choose between two or more candidates they've hand-picked to dutifully continue their system.
Those hand-picked candidates, along with other examples like the immediate repeal of citizen ballot initiatives that go against the wishes of our rulers, or of the unified dismissal, ridicule or attacks (whatever tactic seems most appropriate for the particular situation) by the Establishment media against non hand-picked candidates like Ron Paul, show what the political class really thinks about democracy.
And so does lying to juries about what their real powers are. Why should professional government lawyers, judges and politicians (often all the same thing) have a monopoly on making judgments about laws? What could be more democratic than individual citizens who don't work for the government having the direct power to review laws that professional politicians have forced on regular people like them against their will - or even their knowledge - and to refuse to enforce any such laws that they find to be unjust?
Not much, which is exactly why our betters hate jury nullification. And that hatred shows why "democracy" is just one of a number of false justifications for the coercive power they presume to hold over us, justifications that they trot out whenever needed to help keep us in our places.
In that vein, the political class tells us that the place to change the law is the ballot box, not the jury box. If you don't like the law, they say, you are free to choose between these candidates we've carefully selected for you - whose stated positions on any given law you usually won't know, and whose promises you won't be able to enforce even if you do, except to vote to replace him in the next election with an "opposing" candidate we've also carefully selected for you - whose stated positions on any given law you usually won't know, and whose promises you won't be able to enforce even if you do, except to vote to replace him in the next election . . .
3. Juries have power beyond what the court instructs.
History and common sense both show that juries have the power to judge not just the facts of a case against the letter of the law, but to judge the whole context of a defendant's actions, and especially to judge the law itself and the punishment.
Even though government as an institution isn't fixable, realistically, it's going to impose itself on us whether we like it or not. Jurors potentially can strike a blow for liberty, however small that blow may be, by exercising their power and nullifying. Isn't that worthwhile?
Perhaps they're correct in theory, but it's unclear how well such intentions might work in practice.
I don't know what legal consequences, if any, you might be subjecting yourself to if you admit during deliberations to nullifying. They probably vary by jurisdiction, or even by judge within a jurisdiction.
It would probably be impossible to prove that you're nullifying if you don't admit to it, because no one can read your mind. You could lie and say that you're dissatisfied of proof beyond a reasonable doubt. But it may be difficult to stick to that, especially if the evidence is overwhelming and the other jurors are pressuring you to change your voteEven if you do stick to your vote, some jurisdictions may not require unanimous verdicts.
But most do for criminal matters, and it's unlikely that you'll be able to persuade as many as 11 other people to change their votes. So you're unlikely to accomplish anything for your efforts but a hung jury, which leaves the prosecutor free to bring the charges again before a different jury - one that's unlikely to also contain someone who's aware of a juror's real power.
So, to strike a blow for liberty, you may not only have to nullify. You will also have to lie about it convincingly. And, if the others jurors vote to convict, you will not only have to stand up to the pressure of them pressuring you to change your vote, but you'll also have to convince all of them to change their votes.
It's unlikely to succeed.
Maybe it's selfish of me, but for all of these reasons, and because government courts creep me out and I wish to spend as little time around them as possible, I prefer to admit to knowing about nullification and getting myself dismissed.
But everyone has to make their own decisions. Take the time to learn about your full rights and responsibilities as a juror, so you're prepared if you receive a summons. Then what you do with that knowledge is up to you.
Johnny Kramer [send him mail] holds a BA in journalism from Wichita State University. He is one of the authors and editors of the first-ever biography of Congressman Ron Paul, Ron Paul: a Life of Ideas. For more information on his work, or to hire him as a writer, editor, or to speak at your next event, please visit his website.
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