Wednesday, November 30, 2011

The Police State Cometh: Episode II

From the New York Times (not *my* 'paper of record' by any means) we hear that Prosecution Explains Jury Tampering Charge. Wow, did some Mob guy get to a juror with threats or a bribe? Were gang-members busted intimidating witnesses? What happened?

"Julian P. Heicklen, a 79-year-old retired chemistry professor, has often stood on a plaza outside the United States Courthouse in Manhattan, holding a 'Jury Info' sign and handing out brochures that advocate jury nullification, the controversial view that if jurors disagree with a law, they may ignore their oaths to follow it and may acquit a defendant who violated it."

Wait, huh? Isn't political speech one of the most protected forms of speech? But a couple of paragraphs down we learn:

"... [P]rosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his 'advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.'"

"His speech is not protected by the First Amendment,' prosecutors wrote."

Well that's a relief! For a moment there I was worried that tyrannical government bureaucrats were attempting to abrogate one of our most sacred rights. But if they say that the First Amendment doesn't apply here then we must be okay, right? I mean what possible motive would minions of the state have for abusing the force of law to intimidate people who attempt to question the statu quo? Okay, enough sarcasm now onto the outrage. What the hell do these bozos think they are playing at?!? This is exactly the sort of speech the Founders wanted most to protect and these are precisely the type of petty tyrant the Founders wanted to protect us from!

Where are the heirs of Supreme Court Justice Louis Brandeis? It was he who famously advised that the remedy for bad speech is more speech, but I find the sentence before that to be very telling, especially in this instance:

"To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California 1927

So what does this tell us about the federal prosecutors here? Obviously they are neither courageous, nor self-reliant. They clearly do not have confidence in the power of reasoning. Could this be because they are afraid of thinking, reasoning jurors? Because they know how sick people are of mala prohibita laws? How horrified jurors are when they convict someone of actions the jurors don't themselves believe should be crimes? More and more frequently we see jurors bursting into tears and begging forgiveness from the defendant they just convicted, and trust me, the prosecutors are seeing it too. They don't dare allow anyone to raise the possibility of acquitting people because their "offense" should not even be a crime.

Which brings us to the next matter, the subject of jury nullification itself. The Times seems to think that it is "controversial" and the federal prosecutors would have us believe that:

"'No legal system could long survive,' they added, 'if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.'"

Tell that to William Penn who in 1670 was acquitted of unlawful assembly in England for preaching Quakerism in the streets despite the judges instructions to the jury that only a guilty verdict was acceptable. Indeed when the jurors still refused to convict he had them sequestered without food or water. When they still refused to obey the judge and convict they were fined and imprisoned until a superior court released them, establishing the precedent of nullification in English law.

Tell that to newspaper publisher John Peter Zenger who went to trial in 1735 for "seditious libel". He had printed numerous stories attacking New York's Governor William Cosby, and under the seditious libel law printing anything defamatory about the King or his appointees was prohibited even if the statements were true. Zenger's attorney, Alexander Hamilton, argued that the truth could never be libelous and the jury acquitted Zenger in just a few minutes, thus setting the precedent for freedom of the press and truth as a defense against libel.

John Adams also would disagree with those prosecutors: "It's not only ....(the juror's) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court." [emphasis mine[ John Jay, the first Chief Justice of the U. S. Supreme Court, would also disagree as made clear when he said: "The jury has a right to judge both the law as well as the fact in controversy." More recently Supreme Court Justice Byron White said in 1975: "The purpose of a jury is to guard against the exercise of arbitrary power--to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over conditioned or biased response of a judge." In 1969, ruling in US v Moylan the US Court of Appeals for the District of Maryland stated:

"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." [emphasis mine]

Indeed, up until the late 1800s it was common for judges to instruct jurors that if they disagreed with the law they should acquit. This began to change when the union movement began to take hold. Judges tended to be from the upper-classes, thus were generally more sympathetic to industrialists than they were to labor and would use their injunction powers to break labor strikes. Juries, on the other hand, tended to be made up of working class people who would be more sympathetic to union organizers and members. As a result trials of striking workers or union organizers for violating anti-union criminal conspiracy laws often ended in hung juries (it only takes one out of twelve jurors to hang a jury after all) or outright acquittals.

Judges' attempts to rein in juries got a boost after Sparf v. Hansen where the Supreme Court ruled that since all jurors knew of their ability to nullify the law it was not reversible error for a judge to fail to inform them of that right. Since that time the mere mention of the possibility of jury nullification by a defense attorney has become grounds for a mistrial, and usually a contempt citation for the offending attorney as well.

But despite all of this, the right of juries to nullify laws still exist explicitly in several state constitutions:

Maryland - Declaration of Rights Art. 23. "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

Indiana - Article 1 Section 19. "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."

Oregon - Article 1 Section 16. "... In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."

Georgia - Article 1 Section I Paragraph XI (a) "The right to trial by jury shall remain inviolate ... In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts."

It was jury nullification that robbed the Fugitive Slave Acts of their efficacy so thoroughly that South Carolina cited the fact as one of its reasons for secession, and jury nullification was so prevalent near the end of Prohibition that prosecutors stopped even bringing alcohol charges. Situations like this, where unpopular and Constitutionally questionable laws are passed and enforced, are precisely why the Founders included the right of jury trial in our Constitution, as another check on the power of government. It is for this reason that some have called juries "the fourth branch of government", because in order to be effective a law must be passed by the legislative branch, endorsed by the executive branch, affirmed by the judicial branch and agreed to by the citizens (as demonstrated by convicting those who break the law).

Jury nullification is not about "setting murderers free" or "allowing rapists to walk", it is about citizens deciding what laws are unreasonable or unjust and exercising their conscience and refusing to convict. For the government to try to take this power away from the citizens takes us one step further down the path to a Police State. Remember the words of John F. Kennedy: "Those who make peaceful revolution impossible will make violent revolution inevitable."

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