I guess I’ll just make a short summary of the ways in which we’ve lost our rights as jury members, and what I suggest –in general terms– we do about it. In order for a problem to be fixed, the American people first need to know that the problem exists.
The Problem: Juries once had the clear and commonly-recognized power and authority to vote against the validity of any law, by issuing “Not Guilty” verdicts to defendants, even when it was clear that the accused had broken the law. Prior to 1800, it was assumed that juries had the duty and obligation to determine three things, in order to find someone “Guilty”.
a) That the client had, in fact broken the law
b) That the law itself was fair, valid, and morally right
c) That the law, if fair and valid, was being fairly applied under the circumstances (for instance, it’s not considered “murder” if a person kills someone in self-defense).
This common understanding meant that the jury functioned as a conscience that limited the punishing power of the legal system. Now, judges routinely mislead juries into thinking that “all laws must be fair, or they wouldn’t be laws”, and mislead and encourage them into believing that they cannot vote “Not Guilty” because of disagreement with the law. If a jury member believes that a law is unfair or immoral, and votes “Not Guilty” because they disagree with the law, that is called “Jury Nullification of Law” or “Jury Nullification” for short. Although jury members still have this power (superior to the power of the judge) once they are seated, they are usually ignorant of it, and have been misled by the judge prior to being seated.
How did defendants lose the right to be tried by a random jury? Well, it happened gradually, over the first 200 years of our country’s existence, through a series of incremental losses of individual freedom, and government power grabs. Here’s a general outline of those government power grabs:
1) The arrival of “voir dire” AKA “unlawful prosecutorial jury-stacking”.
Prior to 1850, juries were much more randomly-selected (and chosen or “seated”) than they are today. The loss of randomness has led to juries that are mere puppets of the prosecutor and judge. In 1850, the Fugitive Slave Law was passed by congress. This law required northerners to inform on, or “bear witness against” anyone who sheltered a runaway slave, so that that person could be punished, and the slave could be returned south, to slavery. Many northerners disagreed morally with slavery, and they correctly viewed any cooperation with slavery as morally wrong (the way that many people today view “drug prohibitions” or “gun prohibitions” as being morally wrong, and similarly view any participation with a guilty verdict in those cases as morally wrong). Therefore, when northerners were seated on a jury in a runaway slave case, they would often refuse to convict their neighbors of “harboring fugitive slaves”. This enraged the northern judges and prosecutors who were the same kind of people who seek to be judges and prosecutors today: authoritarians who have the desire to punish their fellow man.
So what did those judges do? They wouldn’t admit that they sought to eliminate “due process”, they simple “changed courtroom procedure”. Instead of checking jurors for a personal relationship with the accused (or the state), they expanded prosecutorial jury questioning to allow the prosecution to remove jurors for “disagreement with the law”. Well, this effectively eliminated all of the well-informed jurors who believed that slavery was unconstitutional.
Before the allowal of “voir dire” (which is French for “to see the truth”), it was almost impossible for northern prosecutors to seat a jury that didn’t have one northerner who disagreed with slavery. After the instatement of “voir dire”, it was still difficult, because slavery was so unpopular. But the civil war passed, and gradually, the general public forgot that the jury was designed to be the supreme check on government power. As people lost their freedom, and the public schools paid generation after generation of tax-funded socialist to educate the majority of the public, “voir dire” questioning continued to select only the obedient for “jury duty”. Modern juries know nothing of the history of juries, or their proper constitutional function. Those who are not easily manipulated are sent home during “voir dire” – an artifact of slavery.
To this day, prosecutors ask you about your political ideas, and your philosophy, and your conscience. If you give answers that indicate that you are in anyway a questioning, reasoning person, then you are dismissed before the trial even starts. Judges and prosecutors know that courtrooms are mysterious and alien to the average man, which is why they disguise their mischief and misdeeds with foreign terms. Most jurors can’t pronounce or spell the term “voir dire” (pron: “Vwahr Deer”), they are off balance and intimidated by their lack of knowledge, and worried about being punished in some strange way. So instead of telling the prosecutor they answers they want to hear (to questions the prosecutor has no lawful right to ask in the first place), and getting seated, the average man of conscience is sent home from the intimidating and alien “King’s court”. This leaves the dupes, simpletons, and conformists to judge their fellow man. And that’s why, as of December of 2009, there were 2.4 million people in prison in the “land of the free”.
Without “voir dire” it would be very difficult indeed to send anyone to prison for growing marijuana, coca, or opium poppies, for owning and carrying a handgun for self-defense, or for helping a slave escape from his “master”. …But even “voir dire” (allowing the prosecution to hand-pick the jury) was not enough for the power-hungry judges and prosecutors.
2) Judicial instruction – manipulation of the jury by (nonexistent) judicial “authority”. (1895, arrived with the “Sparf and Hansen v. The USA” Supreme Court Case). Sparf’s jury was not informed by the judge that they had a right to vote their conscience, which before 1895 was the case in all local courts, in every county in America.
After 1895′s decision, judges realized that they could fail to inform the jury of their right to acquit, and not pay any penalty for doing so. This made convictions more likely. Over time, not only did judges stop informing juries of their right to acquit, they actually started misleading them that the opposite was true, and that they had a duty to “enforce the law”.
Now, before trials in most states, judges ask the jury this misleading question, before they are seated: “Can you, the citizens of Massachusetts, agree to enforce the law as I give it to you?” If any jury member says “no” they are not seated (they are removed and replaced with an “alternate” juror). If they say yes, they are indicating willful conformity, and a lack of historical understanding of the power of the jury –in short they are indicating they will do as the judge and prosecutor desire.
Now, they are under no obligation to follow through and “enforce the law as the judge gives it to them” …but they don’t know that. After all, unless they are smart enough to lie in order to be seated, they just stated that they would violate the traditional, historical, and constitutionally proper role of the jury. In short, judicial instruction means that only those willing to lie or commit treason are now seated on juries.
3) The loss of free speech inside of courtrooms, the one place such speech matters most. (From the beginning of the USA in some courts, but ramped up after “Sparf and Hansen v. USA” in the early 1900s). Judges regularly threaten clients and defense attorneys with “contempt of court” citations if they argue that a law is morally wrong. There is no trial by jury afforded to such unconstitutional citations, although they are almost always thrown out on appeal.
Nonetheless, the threats of the judge represent and enormous headache and waste of time, and potentially a cruel an unusual punishement, simply for defending one’s innocence. In addition, judges often allow a prosecutor to file what is known as a “motion in limine” (pron: motion in Limb-Uh-Nay). This is a fancy term for “gag order that renders a certain subject or topic ‘off limits’ in court”. For instance, when I was accused of speeding in Wisconsin, the judge approved a “motion in limine” from the prosecutor that stated that I was not allowed to mention “informed juries” or “truth in sentencing”.
Of course, this directly violated my right to free speech, and the jury could have overridden the judge and demanded to know what I had to say, but they were unphilosophical dupes, so they played along with my railroading.
4) “The licensing of lawyers” (requiring of government permission to argue in the defense of justice as a career, the creation of “attorneys” also known as “state-licensed lawyers”). (early 1800s – 1960s, incremental and varied arrival in each state) Such “attorneys” were granted permission to practice law via the creation of state “BAR Foundations”, or new laws that mandated that lawyers possess 4 year degrees. This meant several things: First, it meant that only those who could afford to attend lawschool could argue in favor of justice, so it meant that only one class of people had the power of logic and law on their side in the courts: the rich. Second, it meant that in order to bias the law in the favor of the state, the only thing that the government needed to do was to assume control of the law schools. Third, it meant that the newfound protected class of lawyer would be protected by the judge from competition from the unlicensed, but nonetheless often skilled, passionate, and unbiased laymen lawyer.
BAR licensing and lawschool requirements arrived in each state in different years. The arrival of state-required permission to defend justice in court was grossly unconstitutional, and in 1832, the then young anarcho-capitalist Lysander Spooner defeated a law school requirement in Ohio on the grounds that it made the practice of law the domain of the rich. As he worked his way through the appeals process, the state legislature was shamed into repealing the unconstitutional law.
But Spooner died, and there was no replacement for his kind of pro-jury anti-slavery firebrand activism. By the year 1950, virtually every state had some form of licensing (barrier to entry to the market) for lawyers.
The result of all of this is that defense lawyers now take an oath to “uphold every law”. This applies even to laws that they personally believe to be immoral as slavery. They are not allowed to argue against the validity of the law, using logic and reason. Instead, they must dance around the law, and insinuate doubt that the law was actually broken, or raise doubt that the law was “not fairly applied”.
Instead of being able to say “Smoking marijuana can not properly be considered a crime, since there is no victim created by one adult choosing marijuana or opium (over the even more dangerous alcohol), in the privacy of his own home” or “A man in Chicago has the same right to carry a pistol for personal protection that a man in Alaska has”, defense attorneys whimper: “How do we really know my client was the one who threw that bag or marijuana (or handgun) into the sewer drain?” Defeating immoral laws with individual rights, logic, and compassion are no longer options, so defendants’ worst enemies are actually the person who is in the court to defend them. …They don’t have a chance!
In the year 1832, a self-taught lawyer might have quoted the Lysander Spooner essay “Vices are Not Crimes” in his client’s defense. That lawyer might have been someone who opposed rich establishment lawyers. He might have had the sympathy of a jury that was as poor, and from an equally impoverished background as himself. He might have simply had logic and reason and a good mind on his side. But now, even well-intentioned lawyers know that when they walk into court, if the judge gets angry with them, they risk having their license stripped from them, or being “disbarred”. With the loss of their careers in hanging in the balance virtually no lawyer dares to challenge the validity of the law. And, if they do dare to do so, they can be disbarred and removed from the pool of available lawyers that way. So they either self-censor, or are removed from service by judicial power.
5) High-pressure “plea bargaining” and “cruel and unusual” punishments (threatening of punishments that don’t fit the crime, used by judges and prosecutors to cause a person to admit unearned guilt). (Existed from the beginning of our nation, but greatly expanded with the millions of laws that have been added since 1776.) This is a more of an all-around strategy than a single tactic. Of course, the constitution forbids “cruel and unusual” punishments, but constitutional standards are long gone from our legal system.
Things that weren’t even considered crimes in 1900 are now punished with prison sentences (tax evasion, drug possession, gun possession, driving without a license, breaking parole agreements for offenses that were originally victimless crimes, etc.). A single day in prison is torturous and soul-killing. It is being caged, literally enslaved (and perhaps even worse in effect –minute for minute– than the punishment of southern chattel slavery, because of the constant risk of death, and lack of even fresh air and sunlight). How dare we call ourselves a free country that cares for the poor with a “social safety net” when we imprison more than 1.2 million people without legitimate justification, for nonviolent “victimless crimes”? How can threatening people with such treatment in order to get them to admit unearned guilt be called anything other than “cruel and unusual”?
If a person is sent to prison for six months for committing rape and assault, that’s not “cruel and unusual”, it is too lenient! But if a person is sent to prison for six months for driving without a license, without having harmed a single other human being, that is absurdly cruel! Every value judgement in any punishment is contextual, and contingent on logical judgment. Sadly, the cruel is no longer unusual, and the average public school graduate selected for jury duty is severely unphilosophical and nearly incapable of complex contextual reasoning. And, of course, the judges are tyrants who sought out positions of power where they would be able to punish people for a living. As the laws grew more and more numerous and immoral over the course of our country’s history, the kinds of people who willingly sought out the ability to enforce them declined in quality.
A moral man has no desire to send someone to jail for victimless crimes, but an immoral man will happily do this. Similarly, an immoral man has no problem with intimidating a man to take an unreasonable fine or prison sentence to avoid an even worse fine or prison sentence. This is one more pressure on the system towards the favoring of injustice. The average man takes a look at prison sentences and says “on an absolute scale, 6 months in prison is not so bad! After all, the state sometimes puts people to death!” …but this shallow thinking ignores the context in which the punishment was rendered, and it also ignores the pressure toward justice that formerly allowed the defendant to reveal how cruel and unusual his punishement was. After all, if a person is never allowed to argue in his own defense, (in trial) he loses the chance to show a jury how unfair his punishment is.
A great example of “cruel and unusual” “plea bargain” extortion is a traffic ticket I got in IL. I wanted to test the handling of my car around a dangerous curve in IL, a year after I had moved to Alaska, while I was visiting in my former state of IL. I prepared to take the curve (recommended at 25mph) at a safe but slightly fast speed (30 mph), knowingly and while claiming full responsibility for my actions (because I could see the entire curve). While approaching the curve, I noticed two things that made me quickly pump the brakes:
1) A cop car hiding just before the curve, just past the cover of a treeline, with his lights off. 2) The glint of broken glass on the road.
As I slightly swerved around the broken glass, I pumped the brakes. I touched the center line, and then returned to my lane of traffic. The road was abandoned and desolate, and the road was visible at least 200 yards out. My driving never endangered anyone, or any property, not even myself or my own.
I didn’t hear the cop yell “stop” because my windows were only cracked, his voice was unamplified, and my radio was on. The cop remained stationary, with his lights off, and I continued on my way. Apparently the cop was playing with himself in his car (I don’t have proof of this, but I strongly suspect it), and it took him a few minutes to turn his lights on and follow me out onto a local highway.
When he finally caught up to me a mile down the road, he pulled me over and ticketed me for “squealing of tires” (as allegedly one might do with a racecar, in a drag race), which is against the local law in Woodstock, IL. In addition, although he took my Alaska drivers’ license, he ignored it, and entered outdated, incorrect information from my old IL address that was contained in the IL police-car database. This error on his part caused him to also ticket me for “driving without a license”, which made no sense, because he proceeded to let me drive away. Apparently, he agreed that my Alaska drivers’ license was valid enough to allow me to continue driving, but that his denying that fact would arm the prosecutor with a “secret weapon” to coerce or intimidate me into surrendering my money to the McHenry County government in the form of a traffic ticket fine.
I looked up the law when I got home, and found some interesting weaknesses in it (weaknesses that I knew would be there, by my grasp of simple logic –the law cannot require people to avoid evasive driving if they see, or even believe they see, an obstacle in the road). The law applies to people who brake while attempting to take a turn too quickly, but not to people who brake to avoid an obstacle in the road (such as the broken glass I saw in the road). Moreovoer, the cop was hiding next to a turn that he knew to be dangerous, in the hopes that someone might take it too quickly, and be forced to slam on their brakes. If the goal was to prevent accidents and danger, why wouldn’t he wait openly by the side of the road, in plain sight? That would cause 99% of cars to slow down for the “dangerous curve”. This really reveals the adversarial nature of modern law enforcement in the US. The majority of their duties is no longer “serving and protecting”, it is “ensnaring and stealing”.
Anyway, the next morning I called the courthouse, and found out the procedure for demanding a jury trial from the court clerk. I found out that if I had waited more than 7 days, the court would simply deny me a trial by jury, and “offer me” the ability to be assumed guilty by a judge and prosecutor team. I instantly filed for the jury trial. In the process of demanding a jury trial, the court clerk asked me not less than 5 times if I was “sure I didn’t just want to pay the ticket over the phone”. She emphasized that the cost of the ticket was only $50, that I could pay with credit card, that I could pay with check-by-phone, and “was I sure I wanted a jury trial, and not a ‘bench trial’?” Her insistent urging that I accept a costly but-not-unbearable injustice was the court’s first line of defense that allows their police and prosecutors to trample the rights of innocent submitizens.
When I showed up for my trial the first time, I was told to be ready to defend myself. This turned out to not be necessary, since the judge simply called a pretrial hearing. I knew this was the case and came unprepared to do anything but demand a jury trial, which I did. I also stated I would be defending myself, “pro se”.
At the next hearing, I came prepared for a trial, and the judge stated that there would not be a trial that day, either, because the prosecutor had new charges to file against me. She stated that I was being charged with “driving without a license”. The judge counseled me to hire an attorney, because “that charge carries a potential 6 month prison sentence”. In addition to wasting my time with the frivolous charge, they were trying to coerce me into paying more than the cost of the initial ticket, in fees to a government-approved “attorney”. In addition to that, they were showing me a threat that they could then remove at will, in an attempt to extort my compliance in paying the lesser fine for “squealing of tires”. In addition, they were wasting more of my time and money by drawing out the proceedings, and causing me to waste money on gas, which is a penalty in and of itself.
The judge kept urging me to “make a deal” with the prosecutor. He urged and cajoled, and said “At least hear what she has to offer”. I finally agreed to listen to the idiotic prosecutor (a slick looking, well-groomed, and attractive young female tyrant), so as to not anger the judicial tyrant. I asked if her “plea deal” was “complete dismissal of all charges”, if not, I was totally uninterested.
I had to return to court once more, because I was –at that time– too unsophisticated to know that they don’t care how they make people pay, they simply want them to have a terrible time in court, so that they will be conditioned to “give in and pay” in the future. I returned for what they called yet another “pretrial hearing” where they once again urged me to pay, after wasting my time and gas money.
When I returned the final time, for my jury trial, it was six months after the alleged “squealing of tires”.
The prosecutor offered me this extortion deal (also called a plea “bargain”):
If I admitted guilt and paid $25, I would not receive any “points” counted against my driving record, and they would drop the bogus charges of “driving without a license”, thus meaning I would no need to fear time in prison and the abject ruination of my life for 6 months, in a hellhole, where my very life and health would be at risk. Plus, the waste of my time, and loss of my gas money up to that point.
If I did not admit guilt, I would face all of the above, a $75 fine, court costs if I were found “Guilty”, 6 months of prison time (the abject ruination of my life for 6 months, in a hellhole, where my very life and health would be at risk), plus, the waste of my time, and loss of my gas money up to that point. Also, three points against my driving record would be added towards a possible of 12 that would allow the state to confiscate my license (and hence my ability to make a living). In addition to all of this, the 6 months in prison would mean the loss of several insurance clients, the expiration of several valuable insurance leads I was working on, the possible collapse of my business, firing from my current employ for lack of production, the loss of anything in my life that required regular payments (such as my car).
The state claims to have compassion for the poor, and they claim that they want to keep society safe, and keep us safe from all of our own bad choices.
For starters, they could stop cruel and unusual punishment, and the massive theft of our money and financial resources.
I steadfastly demanded a jury trial, determined to argue all of the above to a jury, and damn them if they tried to silence me with “contempt of court” threats. It turns out all their blustering and threatening was actually bluffing, and when she heard the words come out of my mouth, the prosecutor turned white, trembled, and walked over to the judge and he instantly stated “Charges against Jacob Witmer case number _____ are dismissed”.
If I was a normal coward, I would have caved in to escape the sword of damocles in the form of a possible prison sentence, out of a fear and ignorance of the court system. Luckily, my knowledge of juries and the law served me well. When I was dismissed after boldly standing up to the prosecutor, several heads turned in the courtroom. Instead of leaving, I walked back to the seating area, and waited for the judge to call a recess. (The judge kept staring at me until that point, wondering what was going on, I think hoping that I would leave.)
During the recess I openly factually –and without profanity!– mocked the court in a plainly heard tone of voice, told other people the reasons why they had dismissed the charges, and briefly summed up the information on this page. I made sure that my condemnation took the form of a political opinion, and that it was in a time that loud speech was allowed. I told the other defendants that as long as they were uninformed and fearful prosecutors and judges, they would never be free. I mocked the prosecutor and judge, pointing out all the ways in which they colluded to threaten and extort an American citizen / “submitizen”. And I challenged those who remained there to do the same, visit http://www.fija.org and http://marcstevens.net and educate themselves, and never back down.
If everyone were to do the same, then people would not risk their livelihoods for “mala prohibita” (victimless crimes) that are punished cruelly and unusually. After all, the standard that determines whether a punishment is “cruel and unusual” is whether or not it meets the crime. If there is no clear victim caused by my actions, how can a judge state that costing me my job, my freedom, thousands of dollars in future auto insurance premiums, and the possible loss of my freedom to travel, is not cruel and unusual? The fact that this is a “value judgment” shows just how twisted and immoral the ethical beliefs of our elected officials, judges, and prosecutors truly are.
All of the above limits on the proper functioning of juries have effectively eliminated the power of the jury. All of the above factors put an immense pressure on the system to favor injustice, and to disarm those who might argue in favor of justice. Whereas logic and reason were once the standard in courts of law, threats and intimidation now reign supreme. Although the jury was once considered the Fourth branch of government that was superior to the other three branches (legislative, executive, and judicial), modern school children are taught a grossly abbreviated form of the truth. Grade schools, high schools, colleges, and universities all across the USA now teach students that the jury is a mere part of the judicial branch, underneath the authority of judges.
Essentially, the solution to the problem is simple: distribute this information to potential jury members. If you want the information to be very effective, distribute it outside of your local courthouse. If you want to increase your effectiveness even more, distribute it outside of your local courthouse with one other person, and videotape yourself as you are doing so, and be prepared to stand up for your right to free speech when the judge sends the bailiff or court security out to attempt to intimidate you into leaving (this usually happens, and unsophisticated people who are unaware of their rights are often intimidated into leaving). If you want to increase your effectiveness even more, find libertarians who live in your local area, and ask them to come with you –support their campaigns for state and local office, preferably in exchange for them mentioning jury rights as a campaign issue.
As people who desire individual liberty, we must face the fact that we cannot likely get 51% of people to support the legalization of property rights (the right to own drugs, guns, and FDA-unapproved cancer medication). But we can likely get at least 8.6% of randomly-selected people to agree that the jury –comprised of “We The People”– should be superior in power to the judge and prosecutor.
The jury is the supreme check on government power. The jury is comprised of people who did not want a career in politics. They didn’t go through law school with the intent of collecting tax dollars, and wielding the might of the state. As such, they are the only people anywhere in any branch of government that are not under social, political, and economic pressure to favor injustice.
Trust the jury, use the jury, be the jury. The jury is “We The People”, the most powerful branch of government. The verdict of a jury remains uncontestible.
Take the power back!
Tags: activism, attorney, bar, corruption, crime, decentralist, decentralization, defendants, defense attorneys, distributed, freedom, fully informed jury, Fully Informed Jury Amendment, incremental loss of freedom, independence, individual freedom, individual rights, injustice, Jake, Jake Witmer, judges, judicial, judicial instruction, juries, jury, jury duty, jury rights, justice, law, legal, legal system, libertarian, liberty, licensing, mala in se, mala prohibita, marc stevens, motion in limine, pro se, prosecutors, Ron Paul, rule of law, Sparf and Hansen, state prosecutors, truth, truth in sentencing, victimless crimes, Witmer
