Empowering juries and weakening democracy

Someone once said that the best thing to do with bad laws is to enforce them vigorously -- thus exposing their flaws and speeding their repeal. But South Dakotans are pondering another possibility. On their November ballot is a measure that would try to remedy bad laws by encouraging juries to chuck them out the window.

That may not sound like a bad idea. South Dakota is just one of many states with draconian drug laws that make criminals out of sick people who smoke marijuana to treat their symptoms. Recently a quadriplegic named Matthew Ducheneaux was prosecuted for possession of the drug, which he says he needs to ease muscle spasms. A jury convicted him -- even though, by his lawyer's account, "All of them conclusively said afterward that they didn't want to find him guilty."

Supporters of Amendment A, as it is known, say his case is exactly the type in which a jury should be free to decide that even if he broke the law, it's a stupid law that deserves to be ignored. They'd like to see this option, known as jury nullification, adopted not only in South Dakota but everywhere.

Advocates could do more to publicize that the measure would let juries effectively suspend not only bad laws but good laws, and not just in rare cases but in common ones. Prosecutors say it could be invoked in up to half of all criminal trials -- and might offer a refuge not only for those defendants charged with "victimless" offenses like drug use and prostitution but also domestic abuse, drunk driving and statutory rape.

As the puckish legal scholar Herbert Wexler once put it in reference to jury nullification, "What's sauce for the goose depends on whose ox is being gored." If you allow juries to acquit pot-smoking invalids, you have to let them give a pass to husbands who slap the missus around or good old boys who fail roadside sobriety tests. Good laws and bad laws alike can be overridden.

Supporters of jury nullification say the measure would merely tell juries about a right they already have. As Texas attorney Clay Conrad puts it in his book on the subject, withholding this information "is like trying to keep teenagers from finding out about sex: If they do not learn about it from a responsible source, they are likely to learn about it on the streets." Under Amendment A, defendants would be allowed to acknowledge technical guilt while arguing that the law they broke shouldn't be applied to them. And juries could then proceed to toss it aside.

It's true that juries already have the freedom to acquit even if the defendant is indisputably guilty. That verdict is final, and they may not be punished for it. But they also have the option of convicting a defendant whom they know is innocent. The fact that juries may freely abuse their power is no reason to invite them to do so.

This option is supposed to serve as a check on the decisions of police and prosecutors. It would also restrain the power of legislatures, which may pass laws without giving sufficient attention to the damage they may inflict on harmless individuals. The jury, in the view of Amendment A supporters, ought to be free to express the will of the community when exercising its judgment. As Conrad puts it, the nullification power "exists to prevent oppression by the government, allowing private citizens to veto government overreaching."

But private citizens can already veto government overreaching -- a process known as elections. We can vote out lawmakers who pass bills that authorize government overreaching. We have elections to assure that the government's laws and policies reflect as accurately as possible the preferences of the people.

There is no reason to think juries are more representative of community sentiment than legislatures. Juries may just as easily reflect minority views. If South Dakotans think medical need should be a defense for marijuana possession, they can demand that the legislature pass a law to that effect.

Juries are an important part of our system of law and justice. But they are also the only part that is totally unaccountable to the people. If legislators vote for bad laws, their constituents can vote them out. Likewise with prosecutors who bring unwarranted indictments. Police answer to their superiors, who answer to elected officials. But juries answer to no one. They can abuse their powers by spurning the will of the people, and the people have no recourse.

For a jury to overrule a law passed by an elected legislature is not a triumph for democracy, as supporters of Amendment A insist. It's the opposite of democracy.

Juries are an important part of our system of law and justice. But they are also the only part that is totally unaccountable to the people.

Jurors are not selected "willy-nilly" or on a whim to sit in the jury box. More important, each juror has the responsibility to uphold the constitution. The supreme law of the land. That is how they are held accountable to the people.

As will be shown in this post, jurors are better qualified and committed to honestly uphold the constitution than judges that preside over jury trials.

For a jury to overrule a law passed by an elected legislature is not a triumph for democracy, as supporters of Amendment A insist. It's the opposite of democracy.

I have not read Amendment A, yet I think can honestly say that the author, Steve Chapman, is right. It's not a triumph for democracy. But then again, The United States Constitution created a Constitutional Republic.

I began by critiquing the article from the bottom, now let's go at it from the top down.

Someone once said that the best thing to do with bad laws is to enforce them vigorously -- thus exposing their flaws and speeding their repeal.

For every law that is repealed there's about a hundred new laws enacted.

Congress has created so many laws that virtually every person is assured of breaking more than just traffic laws. Surely with all this supposed lawlessness people and society should have long ago run head long into destruction. But it has not.

Instead, people and society have progressively prospered. Doing so despite the federal government -- politicians and bureaucrats -- creating on average, 3,000 new laws and regulations each year which self-serving alphabet-agency bureaucrats implement/utilize to justify their usurped power and unearned paychecks. They both proclaim from on high -- with complicit endorsement from the media and academia -- that all those laws are "must-have" laws to thwart people and society from running headlong into self-destruction.

Despite not having this year's 3,000 must-have laws people and society increased prosperity for years and decades prior. How can it be that suddenly the people and the society they form has managed to be so prosperous for so long but suddenly they will run such great risk of destroying their self-created prosperity?

This option is supposed to serve as a check on the decisions of police and prosecutors. It would also restrain the power of legislatures, which may pass laws without giving sufficient attention to the damage they may inflict on harmless individuals. The jury, in the view of Amendment A supporters, ought to be free to express the will of the community when exercising its judgment. As Conrad puts it, the nullification power "exists to prevent oppression by the government, allowing private citizens to veto government overreaching."

While that is accurate and valid, it doesn't address a key constitutional issue. More on that in a minute.

But private citizens can already veto government overreaching -- a process known as elections. We can vote out lawmakers who pass bills that authorize government overreaching. We have elections to assure that the government's laws and policies reflect as accurately as possible the preferences of the people.

Logic, rational thought and most of all honesty, says that the people can be trusted on the "back-end" of the process. The people vote in elections on the front-end in hopes that the politicians they elect will act rationally, honestly and uphold the constitution they swear under oath to uphold.

Since it's obvious that the government acknowledges the people's right and people's commitment to honesty to make valid judgments on the front-end, there is no valid reason to deny acknowledging the people's right and commitment on the backend.

There is no reason to think juries are more representative of community sentiment than legislatures.

Ask virtually any man in the street who he trusts more, his friends, neighbors and co-workers or politicians campaigning for reelection? That's an honest reason. The author of the article, Steve Chapman would have you believe the opposite.

"If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? The organizers maintain that society, when left undirected, rushes headlong to its inevitable destruction because the instincts of the people are so perverse. The legislators claim to stop this suicidal course and to give it a saner direction. Apparently, then, the legislators and the organizers have received from Heaven an intelligence and virtue that place them beyond and above mankind.
"They would be the shepherds over us, their sheep. Certainly such an arrangement presupposes that they are naturally superior to the rest of us. And certainly we are fully justified in demanding from the legislators and organizers proof of this natural superiority." -- Frederick Bastiat, The Law (1850)

Juries may just as easily reflect minority views. If South Dakotans think medical need should be a defense for marijuana possession, they can demand that the legislature pass a law to that effect.

If the jurors think the person shouldn't go to jail for drug possession then they need not send the defendant to prison if a certain constitutional right is upheld.

The author is ignorant of a critical factor -- uneducated regarding a pivotal constitutional right. He is certainly not alone because I have not heard or read any person that writes or speaks on matters of law address the constitutional right being violated.

Whether each of those persons fail out of ignorance or intent to deceive, I assume you can figure that out for yourself for each of the usual suspects: pundits, reporters, journalists, politicians, bureaucrats, lawyers and academics. Frederick Basitiat's words quoted above could apply equally as well to most of them.

Perhaps you think it could only be valid if several supposed "higher authorities" were to weigh in on the issue? Sorry, you're out of luck. But luck is as much an illusion as is the notion of higher authorities. The individual is the highest authority. So this time around you're going to have to rely on your own rational thought, ability to integrate and judgment.

Below is a draft of an in-process article, sans the headline.

If you've been robbed -- having thousands of dollars stolen from you -- do you want politicians to decide whether you've been harmed and to what extent, or let an impartial jury of your peers decide?

Who do you trust more: twelve of your working-class peers sitting as an impartial jury or politicians debating your fate on the floor of the both houses of congress and state legislature?

Since 1894 judges presiding over jury trials have routinely violated defendants' Sixth Amendment right to an impartial jury. Largely leaving the people's fate in the hands of congress.

Each criminal trial is officially filed as -- THE STATE OF "XX" (fill in the state) VS. "XX" (fill in the defendant's name). In federal court trials the criminal trial is officially filed as -- THE UNITED STATES VS. "XX" (fill in the defendant's name). In some jurisdictions the official filing looks lie this: THE PEOPLE VS. BOB CROW

Each juror is not to be partial, in favor of or against the state, nor partial, in favor of or against the defendant. It is the judge presiding over the trial that has the responsibility of ensuring that the jury is impartial -- favoring neither the state or the defendant.

The Sixth Amendment reads: "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..."

Prior to 1894, judges routinely ensured that each jury was an impartial jury as mandated by the United States Constitution.

Gray and Shiras (Justices), Dissent: Sparf and Hansen v. U.S., 156 U.S. 51, October Term, 1894. The classic opinion of the two dissenting justices on the case which effectively ended routine instruction of juries in their right to judge both law and fact. The majority ruled that while jurors do have the power to nullify the law, judges need not tell them about it, except in cases where state laws or constitutions specify that jurors must be told.

What Justices Gray and Shiras failed to acknowledge, either by incompetence or intent to defraud, is that it is the defendant's right to be ensured that his or her Sixth Amendment right to an impartial jury is upheld. It is not a juror's right to be informed. It is the defendant's right that each juror be informed.

In effect, since 1894 each judge has instructed by omission that each juror is to be partial, in favor of the STATE.

As an example of this routine judicial abuse:

"As a practical matter, I don't know how this is different from the beginning of a trial, when you tell the jurors you have to follow the law as I state it," Warren said. "I just won't give [the disapproved instruction]." California Supreme Court Don't Tell Jurors to Rat on Each Other

Hence, "as I state it", the judge omits informing the jury that it is to judge the law as well as the facts. Thereby violating the defendant's Sixth Amendment right to an impartial jury.

"At issue in People v. Engelman, 02 C.D.O.S. 6411, was California Jury Instruction 17.41.1, which judges give before deliberations. It directs jurors to advise the court if they suspect someone is refusing to discuss the evidence or plans to disregard the law." California Supreme Court Don't Tell Jurors to Rat on Each Other

Here the want of the lone judge is acting on behalf of the State -- in favor of the State; saying that jurors are to inform the court if they suspect one of the jurors intends to nullify the law.

The California Supreme Court decision upheld the juror's right to be secure behind closed doors. But the decision says nothing about the defendant's Sixth Amendment right to an impartial jury. Defendant's rights was not at issue, just jurors' rights.

In regards to defendants' rights, in fact and effect the judges are the ones that disregard the law -- disregards the Sixth Amendment as it pertains to upholding the defendants' right to an impartial jury.

More so, the jury cannot disregard the law. For there are only two choices the jury has in reaching a verdict. 1) The law was correctly applied/charged against the defendant (guilty verdict), or 2) the law was wrongfully applied/charged against the defendant (acquittal: not guilty verdict).

However, a juror can disregard the judge's unconstitutional instruction to follow the law as he or she states it when the judge fails to instruct the jury to judge the facts and the law.

A clear example of jury nullification -- the jury nullifying the law. Connie Jones filed charges against Bob Crow for assault and battery.

THE PEOPLE VS. BOB CROW
Bob Crow is charged with assaulting Connie Jones. Bob slapped Connie, strangers to each other, hard in the face and then wrestled her to the ground. A man unconnected with either Bob or Connie just happened to video tape the entire incident including a few minutes prior to Bob slapping Connie. It is clear from the video that Bob did not act in self-defense.

Following the judge's instructions that the jury is to follow the law as the judge states it, the jury has no choice but to render a guilty verdict against Bob Crow.

However one other thing was abundantly clear in the video. The reason Bob Crow slapped Connie Jones and wrestled her to the ground was because Bob was convinced that Connie was attempting to jump off the three-hundred foot cliff. Unable to talk Connie out of jumping he slapped her and then wrestled her to the ground -- saving her life.

Had the judge upheld the defendant's Sixth Amendment right to an impartial jury, the jury could have nullified the law. Thereby selecting option #2 -- the law was wrongfully applied/charged against the defendant.

As a side note: If you were in Bob Crow's position, how well would your conscience hold up knowing that you could have at least tried to stop Connie Jones from jumping off the cliff yet chose to do nothing? Which is worse, being at the mercy of an impartial jury for having assault and battered -- initiated force against -- Connie Jones, or living the rest of your life knowing you did nothing to stop her?

Major problem, the judge will not permit an impartial jury to be seated in your trial.

Additional note: The intent of the authors of the constitution in regards to the Sixth Amendment impartial jury was to protect the defendant from discrimination. Not just discrimination against race, sex and religion, but to protect against discrimination by the much more powerful government.

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