The Death of Jury Trials: A Fantasy of Politicians and Judges Everywhere

Yesterday the WSJ Law Blog ran a post with the headline, “Jury Trial is an Endangered Species,” with the accompanying text suggesting that jury trials were too expensive and inconvenient to be useful. We frequently post about the importance of a jury in preventing state overreach. This can only take place when a jury is fully informed of its rights and is aware of the penalties involved in the cases they are judging. The importance of a jury having a final say cannot be overstated.

In Lysander Spooner's Trial By Jury he repeatedly makes the point that liberty cannot be protected without an informed jury to reign in prosecutors and judges. Essentially, he states, if the sole function of a jury is to judge manners by the letter of the law, then the jury is useless. Because the state can create any laws and rules it wants, a jury must have the power to determine the validity of the law as well as guilt or innocence.

So why do the judges and politicians hate the jury so much? Simply because it allows citizens a check on the power of the state. Spooner writes:

The powers of juries, therefore, not only place a curb upon the powers of legislators and judges, but imply also an imputation upon their integrity and trustworthiness; and these are the reasons why legislators and judges have formerly entertained the intensest hatred of juries, and, so fast as they could do it without alarming the people for their liberties, have, by indirection, denied, undermined, and practically destroyed their power. And it is only since all the real power of juries has been destroyed, and they have become mere tools in the hands of legislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations.

Read the full essay here. It was written over 100 years ago and is still the best explanation of the importance of having an informed jury.

"The law is an ass.." and in some cases a waste of tax dollars and a mockery of civil liberties

Man arrested for feeding the homeless. The good news is it's a jury trial:

A man is facing a judge and jury for violating Orlando's ban on feeding the homeless. Eric Montanez, 22, was caught feeding a group in Lake Eola Park earlier this year. The prosecution told Eyewitness News their case rests on video taken of Montanez feeding the homeless, breaking Orlando's feeding ban.

Man arrested for swearing:

A man who police say shouted obscenities in front of two dozen children at the Payne Park grand opening on Saturday has been charged with violating a city ordinance that forbids using foul language in the presence of minors.

2nd Circuit Removed Judge Over Sentencing

We talked before about how little control judges have over sentencing here. Judge John T. Elfvin has now been removed from a case for exercising discretion during sentencing.

A federal appeals court has sharply criticized a judge for repeatedly ignoring the requirements of the sentencing guidelines and once again has removed him from a case.
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Judges Ralph Winter, John Walker and Robert Sack said in United States v. Benjamin, 05-3677-cr, that "the need to remove Judge Elfvin from this case" was "self-evident." Winter wrote for the panel.

Bureaucrats don’t like disobedient bureaucrats.

Judges cannot be counted on for reasonableness; they have the same pay master as the prosecutors. The jury exists as a bulwark against draconian sentences for this very reason.

"A shocking number of readers have had the same idea"

Music to my ears:

Your reader should have his scotch-and-cigar nights and dare the government to arrest him. I have as much respect for authority as the next wingnut, but these anti-smoking [epithets] have to be stopped, and if civil disobedience and jury nullification are the only way, make it so.

Jury Nullification and the Jena Six

For a long time I’ve believed that jury nullification is a way to provide justice for underrepresented groups in the United States. One of the reasons I started The Civil Rights Action Corp. is because groups like the NAACP, for instance, would complain about sentencing disparities between races but not champion nullification to as a way fill in the gap. Although it would directly accomplish their stated goals these groups refused to provide this information to their members. I viewed this omission then and still do as close to immoral.

Maybe it shouldn’t be too surprising. Nullification gives power to the citizens. An individual actually has a say in the laws of the society they wish to live in. The people who hold authority, if they are politicians or non-profits, aren’t eager to give that up.

The Jena Six have again brought this topic to the mainstream. This is from US News!:

At the time, many questioned whether the former football great could get a fair trial with the mélange of wealth, race, celebrity, obsessive love, and domestic violence all involved in the case. New debates sprang up on racism, as detailed in this article, where academics and social critics questioned how much white racism is responsible for the disparity in income and education between blacks and whites.

Opinion writer John Leo discussed the trend of "race-based jury nullification," where black jurors would acquit blacks on trial, even if there was overwhelming evidence against them, as a way to remedy the imbalance.

The Facts About Jury Duty

Article from Jeff Maehr:

If you hear a case, and you believe it is morally wrong to convict a defendant, or it is a vendetta, even if a law was broken, you have the right of "Jury Nullification." You can nullify a possible conviction which would be held against someone, by finding the defendant innocent, even though the law and evidence says he is guilty. This is a fact proven by case law.

The jury is there, by design, "to prevent oppression by the Government" and to "protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." Duncan v. Louisiana,
391 U.S. 145, 155-56 (1968).

When the Jury is Prevented from Knowing the Law

How can justice be served when the jury is prevented from knowing the defendants side of the story? Even more unconscionable is when the law is on their side and the judge prevents the jury from hearing that information. Newreview.com takes a look at a federal marijuana case and includes an honest nullification discussion:

He was less generous whenever the defense tried to bring in what they felt was at the heart of the case: Proposition 215 and the fact that the people of California had rejected federal law and adopted their own medical-marijuana law.

He also struck legitimate considerations:

Indeed, Judge Damrell told Serra he had “crossed the line” after Serra asked the jury to consider that the case was biased, a political prosecution emanating from Washington, D.C. Such bias, he said, constituted reasonable doubt.

The couple was convicted in less than three hours and will appeal. The penalties are absurdly harsh, and enough by themselves to cause any thinking man to nullify:

The defense says there were never 100 plants at any one time. Remember, the DEA only found 34 when they raided the couple’s home, which they argue is consistent with the “reasonable personal use” provisions of Proposition 215. But federal law allows the jury to add up all the plants that were grown “over the course of the conspiracy,” in this case three years.

Teach jurors their rights and power

Any perceived attack on our freedom of speech is met with a firestorm of protest from bloggers and the media. Yet full frontal assaults on jurors rights are met with a shrug. Most people are not even aware of their power to decide if the law is a good one.

Very few citizens have the opportunity to influence legislation; however the jury box is the great equalizer, where any one can have their say on the law. Ultimately, citizens can prevent erosion of all of their other rights through jury nullification. Our founding fathers understood how a citizen jury can prevent tyranny, and cited the deprivation of the “benefits of trial by jury,” in our Declaration of Independence as one of the King’s “injuries and usurpations.”

This letter is a rare example of the issue being mention in the press:

Jury nullification is an integral part of our judicial system, serving as one of the checks and balances required by a free society. The fact that it is unknown to most jurors has contributed greatly to the decline of our court system.
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In 1991 FIJA National promoted the first Jury Rights Day celebration, commemorating the acquittal of William Penn on Sept. 5, 1670, by an independent jury, on charges of preaching an illegal religion to an illegal assembly. The judge fined and imprisoned the jury for refusing to bring in a conviction, but a high court established that jurors may not be punished for voting their consciences.

Kafka in Florida

From the Reason blog:

Tampa's Mark O'Hara was released from prison this week. He was serving a 25-year sentence for possession of 58 Vicodin tablets. Prosecutors acknowledge he wasn't selling the drug. They acknowledge that he had a prescription for it. At his trial, two doctors testified they'd been treating O'Hara since the early 1990s for pain related to gout and an automobile accident.

But prosecutors inexplicably brought drug trafficking charges anyway, because as the article explains, "Under the law, simply possessing the quantity of pills he had constitutes trafficking."

Fighting off a vindictive prosecution is nearly impossible for the innocent. The prosecution took Mr. O’Hara’s business, his cars and his condos and he was in jail for two years before the sentence was overturned.

Unfortunately prosecutors are almost never held accountable for their actions. No matter how abusive their action they hide behind the, “it’s the law and we have no choice” shield, as if they have no prosecutorial discretion. Even a child could tell you this was absurd case yet they face no penalty at all. An informed jury can prevent these abuses right now with out any changes to the law.

Several comments on the Reason blog expressed skepticism that jury nullification would have helped here since the information that there was a prescription was not available during the trial. Even so, a fully-informed juror would have enough reason to nullify on the basis that this was a victimless crime and that possible sentence of 25 years was grossly out of line with the alleged offense. Keeping juries in the dark is the only way to get them to convict.

An Attack on Religious Freedom - Where is the ACLU Here?

If recent history is any guide, they are shooting lay-ups on 10 commandment displays while ignoring the State’s persecution of religion.

Currently, advocates of religious rights continue to focus on the abstract limits of the establishment clause while ignoring the more relevant free exercise clause. The establishment clause in the First Amendment, a prohibition on the establishment of a national religion, is the focus of the ACLU’s frequent suits against displays of the 10 commandments.

Victories in establishment clause cases are generally symbolic though the cost in political capital makes them losers for the ACLU. The link between displaying the commandments and the State proselytizing/discriminating for/against a religion is tenuous at best. It follows that the fight comes off as obnoxious grand standing to people who would otherwise be neutral on the issue. There or not there, the displays existence doesn’t affect anyone’s rights directly. At the same time restrictions on the practice of religion are overlooked.

More thorny issues of prohibition of religious practices are raised by the free exercise clause which guarantees freedom from Government inference in such practices. In this recent case, a California minister’s religion requires the use of marijuana; the State called him a drug dealer and brought charges. This case is a prime candidate for jury nullification, in a “trial by country” this would never result in a conviction:

A Hollywood church that burned marijuana during services and distributed it to members is protected under federal law because the drug is a religious sacrament, the leader of the congregation argued in a hearing before his drug possession trial Tuesday.

The Rev. Craig X Rubin, 41, the leader of the 420 Temple who has appeared in episodes of the Showtime comedy "Weeds," faces up to seven years in prison if convicted of possessing marijuana for sale. Jury selection was set to begin Tuesday afternoon.