by Harvey Wysong

By UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

[I]t is presumed, that the juries are the best judges of facts;
it is, on the other hand, presumed that the courts are the best judges of law.
But still, both objects are within your power of decision.
You have a right to take upon yourselves to judge of both,
and to determine the law as well as the fact in controversy.
—John Jay, First Chief Justice, United States Supreme Court
State of Georgia v. Brailsford 3 Dall. 1,4

A Chance Encounter

As my friends and I passed out literature at the courthouse steps in Atlanta, a young lawyer approached us. In his hand he held one of our brochures, which he had apparently read. If only the jurors had known their own authority in one of his cases…

The Lawyer’s Story

The father of a young woman had been at home when his panic-stricken daughter had called. Her “boyfriend” was beating her and had threatened to kill her. The father, who lived nearby, rushed over to defend his daughter.

He struggled with the young man and was able to throw him out of the daughter’s house. Then he locked the doors and windows. The “boyfriend” returned moments later with a piece of heavy chain as a weapon. Finding the door locked he tried the window. And finding it, too, locked, he broke through it with the chain. And, during this time, he swore that he would kill them both.

The father, realizing that the heavy chain gave the young man a lethal advantage, went to his daughter’s bedroom and retrieved her pistol. As the menacing “boyfriend” attacked with his chain, the father of the young woman shot him dead.

The case was a clear matter of self-defense until someone discovered that many years before, the father had been convicted of several instances of driving under the influence of alcohol. He had been declared a felon under the “habitual offender” statute.

Under Georgia law, the father was forbidden to possess a firearm, because he was a convicted felon. The court held that the law even prohibited the father from picking up the pistol to save his own life and that of his daughter. In other words, he was committing a felony just by picking up the pistol.

Georgia law also provided that any person who kills another during the commission of a felony cannot plead self-defense. Thus, the judge refused to allow the defendant to enter a plea of self-defense, and he further refused to allow the defense attorney to ask the jury to nullify the law. The intent of the law was to prevent a felon, such as a bank robber, from pleading self-defense in shooting the bank’s armed guard. But this case was quite different. The result was that the father was sentenced to several years in the State prison.

In this trial the judge and jury were present, but justice was absent. The Constitution of the State of Georgia clearly states that the jury is the judge of both fact and law. Had the jury known of its authority to judge the law as well as the facts, this trial would have certainly had a different ending. Indeed, this trial would probably not have occurred. Knowing that an informed jury would probably find the defendant “not guilty,” it is unlikely that the prosecutor would have wasted his time and effort on such a trial. But the trial judge refused to allow the defense attorney to advise the jury of its authority and ask it to over-rule the law.

…it was impossible any matter of law could come in question
till the matter of fact were settled and stated and agreed by the jury,
and of such matter of fact they [the jury] were the only competent judges.
—Lord Chief Justice Mathew Hale
(2 Hale P C 312) (1665):

Further, the entire prosecution was based on the judge’s holding that the defendant was in the commission of a felony when he shot the “boyfriend.” But, in a trial by jury, all facts must be determined by the jury. Everyone admits that. The “fact” that a felony had been committed could be determined only by a jury. But that question was never submitted to the jury. Thus, the judge subverted the jury system from the outset of the trial.

And what was the real issue? It was simply this: no legislature can deny by statute the Natural Right of an innocent man to defend his life or to defend the life of another innocent party—especially that of his child.

In law this is known as necessity. It’s all right to run a red light, if you’re rushing to the hospital in a medical emergency. It’s all right to break into an unoccupied mountain cabin, if you would otherwise freeze to death. When common sense and the law come into conflict, the law must give way.

Under Necessity, Black’s Law Dictionary explains it this way:
A person is excused from criminal liability if he acts under a duress of circumstances to protect his life or limb or health in a reasonable manner and with no other acceptable choice.
Black’s Law Dictionary, Sixth Edition, p. 1030

The father’s jury had the right to declare this fact, but they were ignorant of their rights, ignorant of some of the facts, and were misled by the judge who presided at the trial. Thus, Justice was raped by the judge and the “law.”

Where on Earth Did We Get Our Rights?

The moral justification for the establishment of the governments of the United States is stated in the Declaration of Independence. It is the moral basis of all law in this Nation. It states unequivocally a belief in Natural Law. In the first paragraph, it uses the phrase “…Laws of Nature and of Nature’s God ….” In the second paragraph it says “…that they are endowed by their Creator with certain unalienable Rights….” Despite what you may have heard from legal “authorities,” the Declaration of Independence is, indeed, a part of the organic law of the United States of America. It is, in fact, the bedrock of our entire legal structure. The Constitution simply tried to give form to the beliefs that were proclaimed in the Declaration of Independence.

John Adams, a signer of the Declaration and the Second President of the United States expressed a belief in higher law in these words:
You have rights antecedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.

Any law or regulation of the State or Federal governments which violates the Constitution, or Natural Law, as expressed in the Declaration of Independence, is an unjust law and, therefore, of no effect.

All laws which are repugnant to the Constitution are null and void.
—United States Supreme Court, Marbury v. Madison, 1 Cranch 137, 1803

So, where on earth did we get our rights? We didn’t. There is no agent on earth competent to give us rights. Our rights came from the Creator and are as ancient as mankind.

Holding Government to the Bargain

Usually, vital knowledge is more valuable to you, if you are the only one who possesses it. Manufacturers’ trade secrets are an example of this. Military intelligence is another. But the knowledge you gain from this article will be valuable to you only if you pass it on to others. This is the information that could preserve your life, liberty, or property should you be wrongfully accused of a crime. And, only if the jurors know their authority, can you expect them to exercise their right to protect you against wrongful laws, wrongful prosecution, or an unfair judge.

Every day in our courts, people’s lives and freedoms are at stake. It is unwise to rely on the belief that you will never be the defendant in a criminal trial. Unfortunate coincidences and sloppy or dishonest police work have forced many innocent people to defend their lives and freedoms against the awesome power of the State. And, one day, you may be among them.

Webster_County,_Nebraska_courthouse_courtroom_3 (1)Neither the Constitution of the United States nor those of the individual States authorize Government to deprive you of life, liberty, or property. That authority is reserved for the jury.

Only your fellow citizens, acting in the capacity of the Jury, have the authority to punish you. In the Federal Constitution, Article III, Amendment V, and Amendment VI require that indictments be issued by a Grand Jury and that trials be conducted by Petit (Trial) Juries. There were some good reasons that the Founding Fathers entrusted these functions to juries.

To put the issues of a trial in the hands of one man (or woman) is to put all your eggs in one basket. From the dawn of history up to this very moment, judges have been subjected to external pressures – pressures which might improperly influence a trial. Career advancement, threats, blackmail, and bribes are examples. Not all judges are immune.

[J]udges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and…are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused.
Sparf and Hansen v. U.S, Dissenting Opinion, 156 U.S. 51, 174

But, exerting similar pressures on all twelve jurors – whose names are not known until the time of trial – is extremely unlikely. Thus, a jury that is selected at random from the population is virtually influence-proof.

The history of all Government is a history of continuous warfare against individual rights. Everywhere on earth, in every year of recorded history, man’s rights have been under attack by his own creation: Government.

The Founding Fathers of this Nation knew from study and from personal experience what the natural tendencies of Government are. And this century proved that their fears were well founded. During the Twentieth Century, more people have been murdered by their own Governments than by foreign armies. (See Death By Government by R.J. Rummel). Once again Pogo’s words ring true, “We have met the enemy, and he is us.”

To prevent Government injustice in their new Nation, the founders of the Federal and State Governments included in their Constitutions the recognition of the Right to Trial by Jury. It was a right which we derived from the Common Law of England.

Thomas Jefferson, in a letter to Thomas Paine in 1789, said,
I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

Please note that Jefferson stated that the purpose of the jury was to hold government to the principles of its constitution.

A Brief History

Throughout the history of the jury, government officials of every stripe have regarded the jury as a threat to their authority. And they have been right. The jury is a threat to their authority—by design. But before the ink was dry on the Sixth Amendment, men in government were attempting to torpedo its guarantees.

The jury was established in English law before the invasion of England by William the Conqueror in the year A.D., 1066. The form of the jury was quite different, but the principle was there. William and his successors agreed to leave the laws of England unchanged. But King John grew heavy handed, and the Lords of the realm grew rebellious. John saved his life by signing the Magna Carta in A.D., 1215. Among the guarantees of the Magna Carta was the right of the Lords to be tried by a “jury of their peers.” This principle was later accepted as the right of commoners as well.

Trial by Whom?

The Sixth Amendment reads, in part,
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

Did you notice that the Amendment says “…a speedy and public trial, by an impartial JURY….?” Anything which prevents the jury from hearing the defendant’s complete defense has prevented him from receiving the Trial by Jury which he was guaranteed.

If a judge decides what can be said by whom and what evidence can be submitted by whom during a trial, how can that process be described as a Trial by Jury?

You should understand that the jury is not created by the trial judge (or “Court”) which is presiding over the trial. The jury is a creature of the Common Law and existed before our Constitution and Declaration of Independence. The jury was brought into and afforded the protection of the State and Federal Constitutions. In Federal criminal cases, the jury is guaranteed by Article III, Section 2 and by the Sixth Amendment. The jury is an independent branch of government with its own Constitutional authority. If the Constitution is respected, the judge serves as a legal advisor to the jury and as a courtroom referee. The judge has no authority to direct the jury’s verdict, nor to punish or discipline the jury in any way because of its verdict.

Nor does the Legislature have authority to tell a jury what it must do. If the Legislature passes a law with a mandatory minimum sentence and the jury finds that sentence too harsh, they can find the defendant “not guilty.”

Lysander Spooner questioned whether a legislature could fix a minimum sentence and whether a sentence could be imposed upon a defendant by any agent other than a jury. He points out that Magna Carta requires that each case be considered on its own merits (ad hoc) and that the sentence must be imposed by a jury.

…the amount of punishment proper to be inflicted in any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly…in providing that freemen, merchants, and villeins, “shall not be amerced [fined] for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it;” and that “none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;” and that “earls and barons shall not be amerced but by their peers, and according to the quality of the offence.”
—Lysander Spooner, An Essay on the Trial by Jury, 1852

In nearly every jury trial in the United States, the trial judge, in one way or another, tampers with the jury to deny the defendant his rights. One way in which this is done is for the judge to tell the jury that they must take the law as he gives it. Nonsense!

In England, a Nation ruled by the Common Law, Lord Denman had this to say:
Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.
—C.J. O’Connel v. R., (1884)
[“R” signifies the King or Queen: “Rex” or “Regina”]

There are many cases, such as the one cited at the beginning of this article, where the law and the facts seem to dictate a guilty verdict. But, as the Lawyer’s Story illustrates, a “guilty” verdict would be a miscarriage of justice.

The Purpose of the Jury

No venture can be successful, unless it has a purpose—an objective. After the National Aeronautics and Space Administration (NASA) had put a man on the moon, it no longer had a clearly defined objective. The organization quickly fell apart, and its rockets tumbled from the sky. Its decline was so sudden, so dramatic that many Americans believed that Soviet sabotage was responsible. No, just human nature at work.

The U.S. Armed Forces in Vietnam fell to pieces. Not because of deficiencies in weapons or supplies. Not because the men in the field lacked character. But because of deficiencies in Washington, D.C.! From President Lyndon Johnson, Secretary of Defense Robert McNamara and the Congress on down, no one really knew what we were doing there. Lacking an objective, the Armed Forces quickly deteriorated.

“Everything rises and falls on leadership.”
—Rev. Lee Roberson
Highland Park Baptist Church
Chattanooga, Tennessee

How can we expect juries to do their jobs when they don’t know what their job is? It’s not a secret. Jefferson’s quote above says it. And the Supreme Court recently affirmed it in three separate cases: Singer in 1965, Duncan in 1968, and Taylor in 1975.

I prefer the words of Justice White:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.
—Justice Byron White, Duncan v. Louisiana, 391 US 145, 155 (1968)

Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.
—Justice Byron White, Duncan v. Louisiana, 391 US 145, 156 (1968)

The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.
—Justice Byron White, Taylor v. Louisiana, 419 US 522, 530 (1975)

Despite clear language from the Supreme Court and lessons of history, there are judges who instruct the jurors that they must take the law as the Court gives it, whether they like the law or not. That is absolutely untrue.

If the jurors must take the law as the legislature wrote it, how can the jury prevent oppression by the legislature?

It is simply impossible that the jury could put itself under the control of the Government (Courts and Legislature) and still be able to prevent oppression by the Government. Remember, the purpose of the jury for over a thousand years has been to prevent oppression and see that justice is done.

Can Juries Be Trusted?

Not if the jurors don’t have the facts, don’t know the law, and don’t know their purpose.

But, if they do know these things, the overwhelming number of juries will return just verdicts. And that is their job: JUSTICE.

“Jury Nullification”

When the jury decides that the law itself is unjust or it is being applied improperly, they may decide not to enforce the law in the case before them. They simply vote “not guilty.” This is called “jury nullification” of the law. These are the only situations that are accurately described as “jury nullification.” The jury can find the defendant not guilty for many other reasons which do not constitute nullification.

Fools or Geniuses?

Does all of this make sense, that juries should be able to disregard the laws passed by the legislature and instructions issued by a judge? Are they competent to make such decisions? Isn’t the law too complicated for juries to understand?

It is amusing how the government’s view of the Average Citizen changes to suit the Purpose of the Moment. When people are accused of crimes, they are presumed to have notice of and perfect understanding of The Law. All the Law. Every obscure line of The Law. But, when Average Citizen serves as a juror, he’s presumed to be a retarded child.

What we need is a consistent policy. Are we geniuses or fools? Perhaps we’re somewhere in between. Whatever we are doesn’t change just because of the chair we occupy in the courtroom.

All the legislators and most of the judges in this country are elected. If citizens serving as jurors are not bright enough to understand the laws, how can they judge how well the legislators have done their job of writing laws? How can they judge how well the judges have administered the laws?

The citizens have the final say, whether in the voting booth or the jury room. If our citizens are not smart enough to satisfy the elitists, perhaps our government schools should start doing a better job of educating children – or, maybe, get out of education altogether.

And just how smart does a person have to be to know right from wrong?

Law versus Politics

When we serve as jurors, we are usually told that we “must follow the law.” Oh? Why is that?

Is the law so sacred? Do we need a priest class called lawyers to read it for us and give us a Readers Digest version of it? Should we revere it?

The answers are: No, No, and, Usually not.

Laws—like people—should be accorded the respect they have earned. Recently enacted laws cannot possibly command the respect accorded to laws prohibiting murder, rape, theft, and fraud, nor the laws that regulate inheritance, the ownership of property, and family obligations.

There are some obvious reasons why recent law seldom merits the same respect as laws long established. First, the vital topics were dealt with centuries ago. The issues that remain are, for the most part, trivial by comparison. Second, the old laws have stood the test of time – sometimes centuries. On the other hand, the new laws haven’t been de-bugged yet.

We are told that it’s OK for us to dabble in politics; and it’s good citizenship to vote. But—for God’s sake—leave the law to the lawyers. That is the talk of a tight-knit group of people (lawyers and judges) who are trying to protect their turf. They have a closed shop, and they don’t want you in.

In fact, there is no real difference between politics and law. If WE participate in politics and get enough of OUR guys elected, WE pass the laws that WE want.

On the other hand, if THEY are better at electioneering and get THEIR guys elected, THEY pass the laws that THEY want.

Writing the law is an intermediate objective of politics. The ultimate objective of politics is for the one group to control another group with the blessings of THE LAW. Frederick Bastiat noted in The Law in 1852, that the law is usually used for legalized plunder. When that is the case, the law deserves contempt, not honor.

“Lawyer Nullification”

Isn’t it funny that government agents (and lawyers are government agents) are unwilling to trust the judgment of twelve good citizens on matters of law? They dislike the idea of jury nullification. They want the jury bound by the dictates of the legislature. Yet, you don’t hear a peep out of them when a certain lawyer makes a decision to nullify the law—when that lawyer decides to ignore the law or determine for himself what the “spirit of the law” is. Well, that’s exactly what happens when the prosecutor decides not to prosecute a case in which the law has been violated. When the prosecutor accepts a guilty plea to lesser charges. When the prosecutor drops some charges in exchange for a guilty plea on another charge. When a prosecutor thinks a prosecution would be a misapplication of the law. And on, and on. Oh, it’s OK for a lawyer to make such a decision by himself; but it’s not OK for twelve good citizens to make the same decision.

When lawyers are the most despised class in our society, how can we accept the judgment of one lawyer in preference to the collective wisdom of twelve good citizens? Somehow, it just doesn’t add up.

A Record of Achievement

It was a jury of twelve ordinary men who struck the decisive blow for religious liberty. In London in the year 1670, William Penn was on trial for his life for having preached the Quaker gospel in violation of the Conventicle Act. It was a CAPITAL OFFENSE to preach any religion other than that of the Church of England. Penn stated to the jurors that the king had no right to interfere in man’s relationship with God. He insisted that they must acquit him. The chief judge, however, told the jurors that since Penn had admitted the law and admitted that he preached in violation of it, they had no choice but to find him guilty.

Despite two days of intimidation by the court, the jurors held to their verdict of “not guilty.” The court bitterly accepted the verdict, but fined the jurors for going against the good advice of the court. (These two trials are the subject of an historical novel: The Trial of Edward Bushell, by Godfrey Lehman.)

In the appeals that followed, the jurors’ fines were found to be unlawful. Thus ended one of the most important jury trials in history. From these controversies we derive several vital fundamentals of law:
● freedom of religion,
● right of peaceable assembly,
● right of the jurors to render their verdict without fear of punishment,
● freedom of speech, and
● right of the jury to acquit the defendant regardless of the law and the evidence.

Freedom of the Press

John Peter Zenger had made a nuisance of himself: he published a newspaper which told the truth about corruption in government—especially the rampant corruption in the Governors office. To silence Zenger, the Colony of New York passed a law requiring newspapers to obtain licenses from the government. But Zenger continued to publish without one. So, in 1735 in the Colony of New York, John Peter Zenger was tried for publishing an illegal newspaper. Attorney Andrew Hamilton (not related to Alexander) asked the jury to nullify the law and declare Zenger not guilty. They did. And that verdict secured our right of Freedom of the Press.

Slavery

From the case of Jenny Slew in 1766 to the case of Quock Walker in 1783, Massachusetts juries returned verdicts declaring about 20 slaves to be free men and women. With the Walker verdict slavery was forever eradicated in Massachusetts.

Advertisement for sale of Shadrach Minkins, 1849In the 1850’s juries throughout the non-slave states refused to enforce the Fugitive Slave Act and Article IV, Section 3, Paragraph 2 of the U.S. Constitution. The juries nullified both Federal laws and the U.S. Constitution!

In the late 1800’s juries protected the right of laborers to organize unions, despite state laws which made it illegal.

And in the 1920’s and 30’s, juries frequently acquitted people who had violated the Prohibition laws. As a consequence of these “no confidence” votes, the 18th Amendment, which had authorized Prohibition, was repealed by the 21st Amendment in 1933.

Exceptions to the Rule

You might be wondering what other circumstances might compel a jury to find the defendant “not guilty” despite the facts and the law. Let’s look at a few examples.

Is the punishment too severe for the crime?

In many cases today—especially drug cases—there are mandatory minimum sentences. If the defendant is found guilty, he is automatically sentenced to life without chance of parole, or 20 years, or more. If the juror feels that the punishment is too harsh for the severity of the crime, he should vote “not guilty.”

Government has learned the hard way that juries will acquit defendants if the punishment is too severe. Therefore, government officials passed rules and regulations prohibiting the Defense Attorney from addressing this issue to the jury. In Federal and most state cases, the jury cannot be informed of the punishment the defendant will suffer upon conviction.

But the jury has a remedy. If they inquire about the sentence, and the Court refuses to inform them, the jury can simply play its trump card: NOT GUILTY

Henry VIII manufactured almost two hundred petty regulations, which he enforced as felonies, with hanging. One law was against begging.
—Charles Adams, For Good and Evil: The Impact of Taxes on the Course of Civilization

Is the law obscure?

We frequently hear the glib phrase that “ignorance of the law is no excuse.” But does that make sense? Does that mean that the legislative and executive branches could pass a secret law, that we would be bound to obey that law, and that a jury would be bound to enforce that law? No. That offends our sensibilities. We cannot be bound to obey a law of which we have not been given notice.

But, in the United States, over 15,000 new laws are passed each year. Is there any difference between passing 15,000 laws per year and passing laws in secret. No one can possibly know what his legal obligations are when there are 15,000 new laws each and every year.

The more corrupt the state, the more numerous the laws.
—Tacitus, Roman Historian, A.D. 55-117

That phrase, “ignorance of the law is no excuse,” might have made sense hundreds of years ago when the law confined itself to real crimes with real victims. Everyone knew that murder, rape, theft, and arson were crimes. No sensible person would accept the argument that the defendant was ignorant of the criminal nature of those acts. Today, that phrase is used to hold each of us responsible for tens of thousands of laws which protect government authority, not people. It is time to abandon this Orwellian maxim and demand that our laws be governed by reason: Ignorance of the law IS an excuse, if the jury says it is.

Can the law be understood by the average citizen?

Let us assume that Government did agree to abandon its present practice of passing tens of thousands of laws and publishing them in law books that the public never sees. Assume that they agree to publish all new laws in your local newspaper—but they print the laws in Latin or Swahili. Would that constitute proper notice? I think not. The average citizen cannot understand them. But are Latin and Swahili any more difficult to understand than the legalese which is now employed? Not by much.

In 1992 the Georgia legislature passed a bill (Senate Bill 159) which, they said, would make it a felony for an optometrist to perform eye surgery with a laser instrument. (Optometrists are not medical doctors.) Many legal authorities claimed that the law made it a felony for anyone but a medical doctor to administer a hypodermic injection. Upon review, the State Supreme Court declared the law unconstitutional for reason of vagueness. It seems that even $200,000-per-year lawyers have trouble understanding legalese.

In truth, it’s very difficult to write a law that does what its authors intend. Without the jury’s common-sense review, some of these laws become misguided missiles the instant they are launched.

This view was eloquently stated by Judge David Bazelon of the D.C. Circuit Court of Appeals:
The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful” but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury – as spokesman for the community’s sense of values – that must explore that subtle and elusive boundary.
—U.S. v. Dougherty, 473 F.2d 1113, 1140, D.C. Circ. (1972)

Is the Government exceeding its authority, violating the Constitution, violating common decency?

Judge Wiseman observed,
Judicial and prosecutorial misconduct still occur, and Congress is not yet an infallible body incapable of making tyrannical laws.
–U.S. v. Datcher, 830 F.Supp. 411, 413, Middle District of Tennessee (1993)

When you sit on the jury, it is your obligation to enforce only those laws that are constitutional. How on earth will you know, if you haven’t studied the Constitution? The court will not provide you a copy as you deliberate in the jury room. If you don’t know the Constitution or have a copy in your pocket, you won’t get the answers in the jury room.

Does the law say what the judge says it says?

There either is or is not a law forbidding a certain conduct or requiring a certain conduct. The jurors do not know, unless they are given a copy of the law to read. If the jury cannot understand the law, how can the defendant be required to understand and obey the law? If the judge refuses to provide a copy of the law as evidence of its existence, the jury should assume that no such law exists and simply vote “not guilty.” When the crime in question is rape, robbery, murder, arson, battery, or the like, it is not necessary to read the law. Those acts are crimes whether the law is written or not.

Is the law being selectively enforced?

There is no effective difference between a law that discriminates against a group or class of people and law enforcement that does the same thing. If the jurors see evidence of this, they have the right to vote “not guilty.”

Is this a case of double jeopardy?

In some cases, a person who has been acquitted by a State jury will be indicted and re-tried by the Federal Government. The Fifth Amendment forbids that the Government try a person twice for the same crime. Giving the crime two different names does not change the reality that the defendant is being tried twice for the same alleged act.

Has the judge refused to allow the jury to review some of the testimony in the case?

In cases which drag on for weeks or months, the jury may ask to have the court reporter read back some of the testimony in the trial. Remember, now, the standard for conviction in criminal trials is “beyond a reasonable doubt.” If the jury has asked to review some of the testimony, it is because they are uncertain what that testimony was and think that the testimony is important. If the jury is prevented from reviewing such testimony, they cannot be certain of the defendant’s guilt “beyond a reasonable doubt” and must, in good conscience, vote to acquit.

Did the defendant intend to commit a crime?

Both the Civil Law of Rome and the Common Law of England acknowledged that a person could not commit a crime unless his intent was criminal. That principle exists in our Law as well. That is one reason why people who are truly insane cannot commit a crime. They lack the capacity for criminal intent. Let’s look at another example. If a missile technician accidentally launches a nuclear missile that hits New York City, killing millions, has he committed a crime? No. There was no criminal intent. He may be liable for some real stiff damage suits, but he is not a criminal. It is the jury’s job to determine intent. If they find none, the defendant is not a criminal.

Was there a victim?

Was the only “party” injured the Government? The only real crimes are those with real victims. The others are simply regulations imposed by Government to exert more authority over its citizens. Should someone go to jail for violating regulations? If you are on the jury, you will be able to send a message to government officials about victimless “crimes.”

True crimes are evil at all times in all places. Murder, rape, theft, arson, and battery are examples. Manufactured “crimes” depend on the time and place. Take for example Government’s elastic view on gold and whiskey. After the 18th Amendment (Prohibition) passed, a man walking down the street with some gold coins in one hand and a bottle of whiskey in the other could be arrested for the possession of whiskey. Then in 1933, Prohibition was repealed and the private ownership of gold was made illegal. That same pedestrian could then carry the bottle of whiskey without fear, but be arrested for possession of the gold coins.

Does the law or the enforcement of it violate the Fourth Amendment?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
—Fourth Amendment to the United States Constitution

The Jury’s Awesome Power

The jury can acquit the defendant for any reason that seems sufficient to them. And they are under no obligation to explain their verdict to anyone but God.

But juries are not bound by what seems inescapable logic to judges.
—Justice Robert H. Jackson, Morisette v. United States, 342 U.S. 246

And, in criminal trials, a conviction may be appealed, but a jury’s acquittal cannot be appealed, reversed, or overruled. A jury’s “not guilty” verdict is absolutely final.

The jury’s power to protect the defendant against bad law, overzealous prosecutors, derelict judges, and arbitrary rules and regulations is one to be exercised cautiously.

…this remedy [jury nullification] is one that should be reserved for only those cases where criminal law and community norms greatly diverge.
—Judge Wiseman, U.S. v. Datcher 830 F.Supp. 411, 413, Middle District of Tennessee (1993)

Those Hideous Witnesses

This author finds one practice—which is especially common in the Federal system—to be a hideous distortion of the search for truth and justice: bribing witnesses.

This issue receives little or no mention in the captive press. But Government is allowed by the courts to put witnesses on the stand who have been bribed by the Government. The defendant would never be allowed to present such tainted witnesses.

If the courts insist on allowing the Government to continue the practice, they should, at least, be required to let the jury understand the exact nature of the witness’ testimony.

First, the court should calculate the market value of the witness’ testimony. One way they could do this by taking the amount of time by which his prison sentence will be reduced and multiplying it by the amount of money he can be expected to earn in that time. Then the prosecutor would be required to pay the witness that amount of money while the jury looked on.

The defense attorney should also be allowed to itemize for the jury all the other means of coercion which the government had at its disposal in dealing with the witness. For example, charges which they could threaten to bring against the witness and members of his family.

If the sordid truth of Government coercion were made know to the jury, the conviction rate would be cut in half. Furthermore, the congestion in the courts would be reduced, because the government would quit bringing many of those suspect cases to trial.

Bad Judges? Crooked Legislators?

I realize that this article is critical of the misdeeds of some governmental officials. But it’s not intended as a blanket-condemnation of or diatribe against the men and women serving on the bench. It is a condemnation of a system which requires more that is humanly possible from a small, non-representative fraction of the population. As a class, judges are an academically gifted group; but they are not super-humans. It is our experiences which shape our senses of justice. With limited experiences, a judge’s understanding of the community’s sense of justice is likewise limited. As a rule, judges have never dug ditches, driven trucks, repaired copiers, cleaned office buildings, written weekly paychecks, cared for the sick, sold clothing, performed statistical studies, waited tables, painted houses, repaired automobiles, designed bridges, piloted airplanes, fought fires, sold real estate, taught children, tended bar, or roofed houses. And each year which they spend on the bench further isolates them from the ordinary experiences of other men and women.

No one person can embody the collective wisdom of the entire population “Justice” is a societal concept born of the commonly held beliefs of the individuals who comprise that society. And the repository of justice is the people themselves, not the government. Justice cannot be dictated from the government to the people, but must flow up from the people to their agent, the government. The foremost authority on justice is a fairly drawn jury.

Justice is too important an issue to be entrusted entirely to government employees.

Civil liberties had their origin and must find their ultimate guaranty in the faith of the people.
—Justice Robert H. Jackson, Douglas v. Jeannette, 319 US 157, 182 (1943)

If anyone is to blame for the deplorable condition of justice today, it is you and I. Our disinterest, our naiveté’, and our lack of courage has let the system get out of hand. Now it is our responsibility to correct it.

The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.
—William Shakespeare, Julius Caesar

Your judges and legislators—if made aware of this issue—may very well be supportive. But, if you and I don’t care and won’t fight for our rights, why should we expect them to? Only a spoiled brat would expect another person to single-handedly fight the battle to protect individual rights. If the thousands of people he represents don’t care about their rights, why should the legislator? Why should the judge?

What Can You Do?

You and I must talk to our government officials, explain this issue, oppose the ones who oppose us, and support those who support us. Only then will we be able to change the system Also, we must read. We must learn what the schools didn’t teach us about government.

“State education is designed to justify the current system, not to criticize or correct it.”
–Joseph Sobran

When you report for jury duty, you should be prepared to take a leadership position. Study the Constitution, especially the First, Second, Fourth, and Sixth Amendments. Be alert for evidence of the violation of individual rights by government agents.

Next, you may want to discuss general issues of the law and the Constitution with your fellow jurors while the case is in progress. This will position you to be elected foreman of the jury.

But be cautious to observe the rules. In most jurisdictions, you are not allowed to discuss the specifics of the case you are deciding until
● both sides have rested,
● the Court has issued its instructions,
● the jury has retired to the jury room,
● a foreman has been elected,
● the evidence has been delivered to the jury,
● and the charge sheet has been delivered to the jury.

Morality

At one time the people of this nation possessed a large body of morality in common. Through the government schools, Government has become the true parent of our children. This education has become increasingly secularized and devoid of any sense of individual rights and moral standards. The Government schools exist to teach obedience. If you can homeschool your children, your child, your family, and your country will all grow stronger.

Please, take some time to investigate this matter. Get Mary Pride’s books from your bookstore. Get in touch with homeschooling parents. And, most importantly, attend a homeschool fair in your area. There you will see the happiest families and brightest children you have ever seen. Once you see this, you will be unable to resist bringing this same harmony and happiness into your family.

Lysander Spooner

It is probably best to end this article with the words of the great legal scholar, Lysander Spooner.

[S]ince 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 of 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 laws.
–Lysander Spooner, An Essay on the Trial by Jury, 1852

Photo credit: Supreme Court building photo by UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons