Victor Mote
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Trial by JuryThe purpose of this essay is to document the current state of my thoughts on the ancient common law right to a trial by jury. Recent jury duty gave me an opportunity to examine my obligations as a citizen-juror, and relieved some of my fears regarding how I should fulfill those obligations. Even the specific charge in the case served to draw these thoughts into focus. My thoughts are not fully formed on the subject, and my conclusions are tentative, so part of the purpose of this essay is to summarize the areas that still need work. I will confine for now the scope of this essay to matters of criminal law, as I do not see a parallel in civil cases. BackgroundJurors in Colorado are instructed during voir dire (the jury selection process in which prospective jurors take an oath to "tell the truth" about themselves) that the scope of their judgment is with regard to the facts of the case only, and that the judge is the arbiter of the applicable law. They are asked (under oath) to submit to that restriction. I have from time to time been exposed to the concept of jury nullification, the idea that jurors also have responsibility to nullify illegal laws. By illegal laws, I mean laws that violate some higher law, such as the constitution (in this case the constitution of the State of Colorado) or the fountainhead of all legitimate law, God's law itself. Obviously, the judge's instructions to confine the jury to facts only is in direct conflict with the concept of jury nullification. So, if jury nullification is a correct doctrine, then every criminal defendant in the State of Colorado is routinely deprived of his right to a trial by jury, a right guaranteed in Article II, Section 16 of the Colorado Constitution. This possibility greatly troubles me. ThesisI assert, and will attempt to prove, that a juror has the following duties:
I will take items 1, 2b, and 3 to be granted, because they are not generally in dispute. However, items 2b through 2d require explanation. Although they would be applied in order, they must be understood in reverse order. A Review of Civil PowerThe following propositions are supported by the citations shown in brackets. The extensive proofs are beyond the scope of this document, and I acknowledge that they may well be disputed by those disagreeing with my conclusions. Proposition 1. The people of the state are sovereign (Bible, natural law, Colorado Constitution, U.S. Constitution). This does not mean that they are autonomous with regard to the ultimate Sovereign, but merely means that there is no intervening authority between them and that ultimate Sovereign. There is no power to whom they should submit, nor any authority behind whom they are shielded, other than God Himself. If justice is not administered within their society, it is their fault, not the king's or the governor's or the judge's or the legislature's. To be sure, these have responsibilities as well, but those responsibilities are to the people and to God, either of which may properly hold them accountable. Proposition 2. Certain rights are inalienable, i.e. they cannot justly be alienated or removed by any means whatsoever, including laws or constitutions to the contrary (Bible, natural law, Colorado Constitution, U.S. Constitution). Proposition 3. For convenience and order, the people delegate pieces of their collective civil authority to individuals to administer them (Colorado Constitution, U.S. Constitution). In our system, those powers are separated into legislative, executive, and judicial branches, and are delegated through the instrument of a written constitution, so that there can be no misunderstanding about the scope and purpose of those powers. Nevertheless, human nature being what it is, we know that those powers are, from time to time, abused. To protect themselves from themselves, the people build various safeguards into the system. One of these safeguards is the trial by jury. Proposition 4. The trial by jury from ancient times includes the responsibility of judging the law as well as the facts of the criminal case (common law). Failure to tell juries of this responsibility is a modern innovation (mid-1800s), and active efforts to mislead juries with regard to these responsibilities is of even more recent origin. Judging the LawLet us suppose for a moment that juries are only allowed to try the facts of the case, not the law. What has been protected here? The truth has been protected only, but not justice. Is a jury more able to discern the truth of the facts than a judge? Perhaps, but only marginally so if at all. 12 pairs of eyes may miss less than one pair, and 12 sets of life experience may be richer and fuller than one. But these benefits are at least partially offset by a judge's training, disposition, temperament, and professional detachment. Perhaps it is easier to corrupt one judge than 12 jurors, but this is offset by the fact that it should be easier to corrupt one juror than one judge. The real benefit of the jury is that it is the meeting, in one place, at one time, in one body, of a sample of the underlying governing power, to ensure that the civil power, the power of the sword, is administered in the way that the governing power intended. If the legislature has overstepped its bounds, exceeded its constitutional authority, this is the underlying power's opportunity to check that excess. If the executive attempts to execute the laws in a manner not intended by the governing power, this is its opportunity to prevent that. If the judiciary fails to protect the rights of the accused, this is the governing power's forum for correction. So, if a jury may only judge of one, either the facts or the law, I would vastly prefer for it to judge the law, and leave the facts to the judge! That, however, is a Hobson's choice. The jury may and should do both. The Legislature's PrerogativesDoes this mean that the laws as written by the legislature should be ignored, or that the judge's interpretation of the law should be disregarded? No. Great deference should be given to the law. Jury nullification should only be practiced in the case of a clear violation of superior law. The case for which I was considered may be instructive. The charge was possession of a controlled substance. Now, most reasonable people will agree that the use of narcotics generally endangers the community, for many reasons. There are at least three possible legal solutions: 1) prohibition, which is currently generally practiced, 2) an aggravated status and additional penalties for crimes committed while "under the influence", or 3) the same penalties for crimes committed, whether or not under the influence. The governing document in this case is the Colorado Constitution. As a juror, I want the prosecution to show: 1) that the law (the legislative instrument) was violated, and 2) that the law was in conformity with the Colorado Constitution. If both of these are satisfied, I may not nullify the law, even though I might prefer a different solution among the three considered. The legislature, not I, has the right to choose which of the three otherwise legal alternatives to implement. And the judge, not I, has the responsibility to interpret the letter of that law. I should only override that judgment if a failure to do so would result in a travesty of judgment, a result unintended by the legislature because not imaginable to the jury. The People's Prerogatives(I speak of the people here in their sovereign capacity, not in their capacity as prosecutors). In the case for which I was considered, the judge asserted the right to judge the law, and insisted that jurors submit to his judgment. I was greatly alarmed when the sitting panel of juror candidates, without exception, verbally assented to this idea. I assert that judges can never be the arbiters of the constitution or even final arbiters of the legislature's laws. Why? In the first case, the constitution is not theirs to judge. It belongs to the people. One safeguard the people retain is the right to nullify laws that do not conform to the constitution. In the second case, although judges are expected to be experts on the letter of the law, only the judgment of peers can be expected to ensure that the spirit of the law is followed, to prevent a travesty of justice in the name of the law. One of the greatest strengths and nearly fatal weaknesses in the governments of the United States is separation of powers. Ask your Congressman why he votes for unconstitutional laws (almost all of them do), and you are likely to get the answer that he counts on the courts to weed the unconstitutional laws out. The prosecutor in the case for which I was considered was very vocal in his insistence that he prosecuted all laws (i.e. those passed by the legislature) whether he agreed with them or not. Both the legislative and executive branches have foresworn their oaths to uphold the constitution(s), and have deferred the matter to the judiciary. If the judiciary not only refuses to tell jurors of their rights, but actively misleads them (which seems to be the case), what check is there on the them to prevent them from interpreting the constitution as they see fit, to usurp not only the legislative and executive branches, but even the sovereign power of making and interpreting the constitution, which only rightly belongs to the people themselves? Is there any "reasonable doubt" that this is exactly what has taken place in the United States today? In order to maintain accountability, there must always be unity of responsibility. If that unity of responsibility lies in an unelected and unaccountable judiciary, then there is no accountability, and constitutional law cannot be safely maintained. In earthly terms, the unity of responsibility lies where it started -- with the people themselves. The Sovereign's PrerogativesHow should a juror react when faced with a situation where the governing constitution itself is in violation of God's law? I believe that these situations must always fall into some variation of the arguments above regarding constitutions. If an evil "constitution" has been forced upon a people, and they are asked to rubber-stamp it through a sham jury, they must certainly have an obligation to resist that, merely because the "constitution" is itself unconstitutional. Just because it is written down does not mean that it is constitutional. If a Hitler or Castro drafts a document and delivers it to the people as their "constitution", it should rightly be denied to govern the citizens. There are important sections of the United States constitution that were "ratified" by military governments, that should probably be treated by jurors as unconstitutional. If, on the other hand, an evil constitution has been willingly accepted by a people, do they have an obligation to be bound by its terms as jurors? I think they probably do. Arguments on the one hand revolve around the concept of inalienable rights. The theory is that the people, even in their sovereign capacity, do not have the ability, the legal capacity, to part with certain rights, even though they may appear to do so voluntarily. I am not aware of situations where this has risen through an explicit act. It tends instead to be rather inferred from a lack of zeal for protection of certain rights, and generally falls under the category of a usurpation, again already addressed in the section on constitutions. (The erosion of jury nullification falls into this category). The concept of inalienable rights is explicitly protected in the Colorado constitution (Article II, Sec. 3), so jurors have ample constitutional grounds to resist infringement of such rights already. The only other possibility that I see is that you have voluntarily entered into a civil society by subscribing to its immoral constitution. If you had no moral qualms to do this before the fact, then why do you try to bring a moral argument to the table during a trial? You are by definition unfit to be a juror under any circumstances. Within the courtroom, you are exercising covenantal rights and duties that were previously negotiated. It is neither the time nor place to try to renegotiate them. Yes, God's prerogatives must be protected, but they must be protected by due care with regard to the civil covenants that one freely enters. I cannot think of a case where nullifying a constitutional law would be just. Some of the greatest calamities have resulted from the nullification of constitutional laws, primarily because courtroom situations tend to be zero-sum games, where a benefit to one party is a detriment to the other, and the other parties have a right to have their side of the covenant upheld. Why Jury Nullification Is OpposedThere are at least two possible reasons why prosecutors and judges oppose jury nullification. Reason 1: The Cynical, Plausible, Anti-republican ViewIt is possible that some judges who oppose jury nullification do so because they simply want more power vested in the judiciary than it was intended to have. They don't trust republican ideas in general, and want the power that comes from usurping constitutional questions. Prosecutors are more likely in this scenario to be motivated by job security than by power. They advance their careers by winning cases, and wins are easier to get if there are fewer hurdles to cross. Reason 2: The Paternal, Still Anti-republican ViewA more charitable theory is that prosecutors and judges honestly think that justice is better served by opposing jury nullification. They may actually be right in the short run. However, this is the fountain from which all tyranny springs. If the government refuses to be governed by its own government, it is by definition despotic. If, in the long run, juries are unable or unwilling to convict those who are truly guilty of lawful laws, then it can only be because the civil society as a whole is no longer fit to govern itself, that it is too morally corrupt to mete out justice. This may very well be our current situation. However, our republican principles do not allow that decision to be made by judges or any other servant of the sovereign power. Civil societies on the decline should be allowed to decline until they either correct themselves or are dissolved by the same power that made them. Those practicing paternalism instead tend to try to shield society from the consequences of its own faults, and to deprive it of the very means by which it could correct itself. The Rule of LawSome will argue that my willingness to set aside the law (as written by the legislature and/or interpreted by the judiciary) violates the "rule of law." However, in every case, I have cited a higher law. If a lesser law violates a higher law, who really is ignoring the rule of law? If I am required to obey lawful laws that the legislature places on me (and I am), is not the legislature required to obey lawful laws placed on them? In the CourtroomMy worries about this issue centered around how or whether my understanding of jury nullification should be revealed to the court, and what penalty if any, my adherence to such a system, might carry with it. Specifically, would I be breaking "the law" by deciding the law as well as the facts of a case? Could the judge find me in contempt for disclosing such a fact and refusing to submit to his interpretation of the law? The voir dire process relieved my fears greatly. The juror's obligations at this stage are limited to telling the truth about his views. If asked whether he will "follow the law", he should tell the court that he subscribes to the doctrine of jury nullification in some situations. It is frankly unclear to me whether subscription to jury nullification is "cause" for dismissal from the panel. If so, a political solution is required to rectify this injustice. If not, it would instead force (or at least tempt) the prosecution to burn one of their limited (in Colorado to six) peremptory challenges (their ability to remove a juror without "cause"). I recommend making a studied effort not to try to influence other jurors (that should be done in a different setting), but if the judge wishes for me to answer questions regarding the matter within their hearing, I have no problem with doing so. So, isn't it a total waste to both 1) subscribe to the doctrine of jury nullification, then 2) reveal this fact to the court during voir dire? No. This serves the important function of removing the responsibility for its proper execution from my shoulders to those of the judge and/or the prosecution. If the judge or the judicial system is violating its obligations, then that is something that requires remediation in a different venue. If I fail to adhere to sound principles, or lie about those principles, I have done wrong. If I am removed from the panel because of either of these things, any wrong in the matter (and there may be none) lies elsewhere. Other IssuesOne other area that troubles me in the Colorado system is that sentencing may not be considered by the jury. This also seems to be an infringement of the defendant's rights. If the legislature passes a law demanding the death penalty for jaywalking, may not the jury intervene to prevent this? Is that not exactly what the jury system was created to prevent? Nullification on this issue is justified by the Colorado constitution's prohibition of cruel and unusual punishments (Article II, Sec. 20). Again, this probably requires a political solution. It is worth noting that although jury nullification always favors the defense, subscribing to it should not be interpreted as being anti-prosecution or being soft on crime, etc. It is very possible that an adherent of jury nullification will be a much more sympathetic to the prosecution's point of view than a juror who is not. For cases that can be shown to be moral and constitutional, there should be no difference at all. Does it bother me that many of the people clamoring for jury nullification are involved in movements attempting to legalize narcotics? No. It is very possible that the current prohibition laws are really unconstitutional, and that we should force the legislature to deal with the problem honestly. Certainly all levels of government engage in unconstitutional acts in their efforts to enforce narcotics laws. Now, let me be clear that I oppose the use of narcotics, and want the law to protect citizens from their bad effects. If the law is unable to do that in a constitutional manner, then either 1) republican government must be abandoned (the current solution), or 2) the people must bear the price of living in a corrupt society. Free people always have the right to form new governments with people of like mind to protect themselves from the latter consequence. SummaryIf I am the defendant in a courtroom, charged under and guilty of an unconstitutional law, the surest defense that I have is a jury of my peers that will consider nullifying the law, especially when the executive and judicial branches are asleep at their jobs. Without that protection, I have been deprived of my right to a trial by jury. Victor Mote Related links (not necessarily subscribed to by the author) |