The validity of our entire justice system has been tarnished and undermined by the proliferation of rules and legislation enacted by Congress and federal agencies that disregard and abolish the individual rights and freedoms guaranteed by the Constitution. The judiciary is charged with upholding constitutional law, yet they continuously ignore the dealings of greedy and corrupt legislators and bureaucrats whose illegal ventures steal taxpayer funds for personal gain. Access to the wheels of government by the wealthy elite allows them to avoid compliance with the law and the penalties imposed by the judicial system on the rest of us.
The right to a trial by jury, although not an American invention, is a constitutional guarantee that is part of our national culture. Being judged by a jury of one’s peers is seen as essential to protect the individual from the unbridled prosecutorial power of government. People naturally suspect and fear that such life and death decisions will reflect agendas over which they have no control. American history may lead us to believe that we will be judged by the wisdom of King Solomon, but, nevertheless, we now realize that centuries of greed and corruption have made that unlikely.
I see three fundamental pathologies in America’s criminal justice system that completely undermine its moral and political legitimacy and render it a menace to the very concept of constitutionally limited government. Those three pathologies are: (1) unconstitutional overcriminalization; (2) point‐and‐convict adjudication; and (3) near‐zero accountability for police and prosecutors.
The primary purpose of enacting laws is to protect the life and property of citizens to enable a peaceful existence for all. In a broad sense, we can look to the Ten Commandments and Golden Rule as guidelines. To be effective, laws must be enforceable and the punishment viewed as reasonable by the majority. If a legal system adheres to those general principles, “consent to be judged” can be achieved and maintained. Power, however, tends to corrupt the outlook and agenda of the ruling class. They seek to increase control over the population by using laws that allow for selective enforcement and punishment systems that are vague and arbitrary. Selective enforcement and arbitrary punishment greatly increase the power of the state over its citizens.
Loss of freedom results when the state criminalizes free market interactions between citizens in which no one is a victim and attempts to legislate morality. Neal Boortz, a retired talk radio host in Atlanta, used to define prostitution as involving sex and the free market. He’d then ask, “Which one are you against?” Legislative prohibitions of alcohol consumption, personal behaviors, and recreational drug use made criminals of common citizens and millionaires of petty criminals without altering the activities or personal safety of most people.
All these laws increase the power of law enforcement to inflict punishment with only retrospective responsibility for justifying the use of potentially lethal levels of force. These injustices, lack of accountability, and unequal application of law lead to decreased respect for law and order and a withdrawal of the “consent to be judged”. We are seeing this every day in the streets of our cities.
Trial by jury was an important tool for ordinary citizens to uphold the basic sense of right and wrong. The roots of the jury system can be traced back over a thousand years to England after the Norman conquest in 1066 AD. Early juries were used to find facts, testify under oath, settle disputes among the people, and, eventually, to render verdicts in civil and criminal trials.
People of that era rightfully viewed juries as an important protection against the dictatorial verdicts of monarchs. Juries were expanded to twelve jurors during the reign of King Henry II to decrease the likelihood of corruption, bribery, and intimidation. This rudimentary configuration for the jury and the duties of jurors were brought to this country by the Puritans.
The founders of our nation and subsequent members of the judiciary understood the importance of the jury system to protect the people from government overreach. Here are some quotations from the past:
In suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people. ~The Virginia Bill of Rights written in 1788
The jury system has come to stand for all we mean by English justice The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law. ~Winston Churchill
The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign. ~Chief Justice William Rehnquist, 1979
Against this historical background, it is important to understand how the jury system operated in the past. Jurors were expected to be part of the fact-finding process, to weigh all the circumstances involving the alleged perpetrator and the crime, to evaluate the law itself, and to consider all that in rendering decisions.
In “An Essay on the Trial by Jury,” written by Lysander Spooner in 1852, the author wrote: “Trial by jury, then, is a trial by the country, that is, by the people, as distinguished from a trial by the government.” During the Bloody Code era in England, several hundred mostly petty crimes were punishable by instant death. When citizens were tried for theft, the juries often found the perpetrator guilty of stealing less money than that which required hanging. It was especially frustrating for the British that colonial juries used the English practice of jury nullification to prevent conviction of colonists arrested for activities that opposed British rule. In 1735, John Peter Zenger admitted to printing libelous tracts about the British governor of New York colony, William Cosby. He was acquitted by a jury of his peers. Jury nullification was also used to protect runaway slaves and their collaborators in the northern states prior to 1860.
Jury nullification is based on the theory that the average citizen, when serving on a jury, should be able to override or nullify the laws passed by the legislative body. The jury’s reasons may include the belief that the law itself is unjust, that the prosecution has misapplied the law in the defendant’s case, that the punishment for breaking the law is unjustly harsh, or out of general frustrations with the government or the criminal justice system.Robert Longley, Jury Nullification: Definition and Examples
The law limits the ability of trial judges or attorneys to inquire into jurors’ motivations in reaching their verdict. Jurors cannot be punished for their verdict, regardless of their reasons, and a jury’s verdict of “not guilty” may not be overturned or appealed by the prosecution. Nevertheless, current procedures in our judicial system have gradually changed to favor the prosecution and limit the power of juries. Prosecutors have opportunities to limit what evidence can be presented at trial and have increased challenges to seating jurors they suspect will rule unfavorably.
The single most destructive factor to our right to trial by jury, however, is the practice of coercive plea bargaining. Over 95% of all persons charged with crimes are forced to give up their constitutional right to a jury trial by prosecutorial threats of greater sentence length under harsher conditions if the plea bargain is not accepted. Federal courts have unfortunately upheld this injustice even when the conduct of prosecutors was morally indefensible.
It is essential that a nation’s judicial system be balanced to provide fair and equal justice for all. Laws and rules must be enforceable, deal primarily with crimes that truly threaten the lives, safety and financial interests of the citizenry, and be applied equally to all citizens. Punishment should fit the crime and not be used as coercion or reward for adherence to specific political or social agendas. Law enforcement must be accountable for the use of force, while recognizing its necessity in many circumstances.
Most important, the constitutional right to a trial by jury must be restored. The practice of coerced plea bargaining, which deprives an individual of an opportunity to be judged by his peers in public, must be eliminated. Courtroom policies that favor prosecution over the defense must also be set in balance.
When the judicial system is unbalanced and skewed to favor some over others, the people will eventually rescind their “consent to be judged” with disastrous results for the public safety of all.
Resist Tyranny and Trust in Freedom!
Dr. Dan’s guest on Freedom Forum Radio this weekend is Kirsten C. Tynan, Executive Director of the Fully Informed Jury Association (FIJA). She has been educating people for more than a decade on the protective role of the jury and the full rights and authority of jurors. Her educational workplaces special focus is on jurors’ right to temper the law with mercy through jury nullification to deliver just verdicts.
In Tynan’s time with FIJA, she has testified in federal court, spoken to community groups around the country, presented in academic settings, political conventions and professional legal conferences. Her presentations cover a wide variety of historic and modern topics, from general introductions to jury rights, to more in-depth treatment of specific issues related to the role of the jury in protecting individual rights and liberty.
Part one of this fascinating and informative interview airs on Saturday and Sunday, February 25-26, on WJRB 95.1 FM and is streamed live over the Internet. Part two airs on Saturday and Sunday, March 4-5, part three airs on March 11-12, and part four airs on March 18-19.
Streaming times are Saturday, 8:00 AM and 9:30 AM, and Sunday, 2:30 PM and 7:00 PM. All programs are available by podcast following airtime here.