Kort Explores conundrums of the human condition

The California Supreme Court recently handed down a landmark decision that redefines the relationship between citizens and government. In the conclusion of the majority decision, the court declared: "We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court's instructions on the law. A juror who is unable or unwilling to do so is 'unable to perform his [or her] duty' as a juror and may be discharged."(1)

The court claimed to be protecting the principles of equality before the law, and preserving a nation of laws not men. Unstated, but implicit in their decision, was the court's unilateral redefinition of the nature and source of the "law" it was protecting, and the "men" it was excluding from the judicial process. It's taken nearly 800 years of incremental infringements, but the court has finally stripped jurors of the rights and duties they gained in the Magna Carta, and re-established government as the sole author, interpreter, and enforcer of "law". According to the court, the "law" now means whatever a judge decides it will mean, and the "men" who are now excluded from interpretation and implementation of "the law" are the citizen jurors of America.

However, a detailed reading of the opinion reveals that the court grossly misused the words of America's founding documents to conceal its destruction of the carefully crafted system of checks and balances those words were intended to described. The court now seeks, through its redefinition of the words of our nation's founders, to turn the people's most powerful safeguard of liberty into the tool of its demise.

While this decision is technically limited to California, it's only the latest move in a progressive erosion of the rights and duties of citizen jurors by both state and federal judges. The California court was simply the first court with sufficient confidence in its hold on absolute power, to openly announce its contempt for the rights and duties of citizen jurors. After a century of docile acceptance of the court's progressive infringements on the power of jurors to judge the law as well as the accused, the court's latest decision was little more than the acknowledgment of its fait accompli.

The court's logic does appear to "hang together" fairly well within the limitations of the evidence and precedents provided in the opinion. The court's opinion leads the reader through a series of decisions by federal and state courts, each granting the court ever greater power to force jurors to return verdicts that offend the principles and consciences of those jurors.

But the limitations on the evidence the court was willing to consider in deciding this issue are the only reason their conclusions appear "reasonable". Considered within the broader context of the historical record, and a true search for legal precedents, the court's effort to deny the rights and duties of citizen jurors is revealed to be a usurpation of the lawful power of citizen jurors.

While the most glaring omission in the court's published opinion was the lack of any effort to establish a constitutional authorization for the vast new powers the court has granted itself, the court was able to find a number of "precedents" that appear to support its desired conclusions. Within the court's twisted logic, each new infringement that it granted itself provided a foundation on which to leverage further infringements - until it had leveraged itself enough power to deny the superior rights and powers jurors. What the court conveniently neglected to address was how any part of its artifice of self-serving self-empowerment was permitted under the Constitution and Bill of Rights.

The court did pay lip service to the long established power of jurors to refuse to enforce laws they considered unjust, but denied that this power was the expression of a fundamental right of citizen jurors. The court instead attributed "jury nullification" to the technical difficulties of effectively knowing and controlling the minds of jurors, and "the consequence of a number of specific procedural protections granted criminal defendants."(1) The court denied that individual citizen jurors possess any rights, duties or powers as a function of their role as jurors.

Quoting from previous decisions, the court proclaimed that "[n]ullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court ... We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent."(1)

"A jury has no more 'right' to find a 'guilty' defendant 'not guilty' than it has to find a 'not guilty' defendant 'guilty,' and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power."(1)

The cruel irony of accusing citizen jurors of exercising "erroneously seized power" in order to justify the court's own seizure of the fundamental rights of citizen jurors, provides a fair measure of just how completely the court has redefined the founding principles of our nation.

Perhaps the most revealing aspect of the court's published opinion is its claim of being unaware of any existing guidance on the issue of jury nullification. The court dismissed the possibility that any evidence that contradicts their interpretation of history exists by claiming: "No case of which we are aware refers to an individual juror's ability to disregard the law."(1) However, contrary to the court's claims, such evidence is easy to find - at least for those who allow themselves to find such evidence.

As recently as 1964, the Yale Law Journal was still willing to admit that "[t]he right of the jury to decide questions of law was widely recognized in the colonies. In 1771, John Adams stated unequivocally that a juror should ignore a judge's instruction on the law if it violates fundamental principles. There is much evidence of the general acceptance of this principle in the period immediately after the Constitution was adopted."(2)

The Supreme Court seemed to have been quite clear and unambiguous when in 1794 it instructed, "[i]t is presumed that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your [the jury's] power of decision."(3)

In a more recent 1969 decision, the US Court of Appeals also stated quite clearly in US vs Moylan, "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."(4)

The Supreme Court affirmed and expanded the findings of the Appeals Court in 1972, when in U.S. v. Dougherty, it admitted "[t]he jury has an unreviewable and unreversible power ... to acquit in disregard of the instructions on the law given by the trial judge." The opinion further recognized that "...jury law lessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly kings and ministers faced."(5)

The court's recent "opinion" appears to directly contradict the historical record and legal precedent. The first response to these observations might be to wonder how the court managed to arrive at such a contradictory conclusion. The next might be to wonder how the court expected to get away with such an obvious denial of our nation's fundamental principles. But only those citizens who start to wonder what is so important about the role of juries that the court would be so driven to deny their rights and powers, are likely to find a meaningful answer to the court's motivations - and its expectations of success in redefining the rights and power of all American citizens.

In order to appreciate the significance of the court's redefinition of the power of citizen jurors, it's first necessary to understand the critical role "jury nullification" has played in the evolution of our free society.

A society can only be free as long as its laws accurately reflect the constraints that the citizens freely imposed on themselves within the social contract. When laws exceed the limited common ground of the social contract, they impose constraints on the people that the people would not willingly impose on themselves. Such laws are offenses against the fundamental rights of freemen, and become themselves crimes against freedom.

Perhaps Lysander Spooner most clearly explained the critical role that jury nullification plays in the defense of liberty, when he wrote in 1852, "In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of government; for there are no oppressions which the government may not authorize by law."(6)

Our unique experiment in individual rights and freedoms began with the Magna Carta in 1215. The Magna Carta marked perhaps the most profound change in the balance of power between citizens and government when it replaced the previous "trial by government" with "trial by the country" as the primary means of enforcing the law.

By explicitly recognizing the power of individual citizen jurors to judge the law as well as the accused, the Magna Carta established that ultimate power was held by the governed, not by the government. After the Magna Carta, the power of government to enact laws was dependent on the willingness of juries composed of randomly selected citizens to convict their peers under the government's laws. Only those laws that a randomly selected jury of citizens found to be fair and just, could be enforced by government.

The King objected to the Magna Carta. Where previously his power to make and enforce laws had been absolute, his power would now be limited to formalizing in law those principles that his "subjects" were willing to impose on themselves. The King quite rightly objected that the Magna Carta would transform the very concept of government from ruler of the people, to servant of the people.

The King tried to reject the Magna Carta because it would make his power to govern entirely dependent on the willingness of his "subjects" to be governed by him. (His actual words were "...that he would never grant such liberties as would make himself a slave."(7)) The King's "subjects" forced him to accept the power of citizen jurors to nullify his laws for the same reason - they fully intended to make the power of the king to pass laws entirely dependent on the willingness of free citizens to accept those laws.

At the time of the American revolution, a jury was commonly expected to judge both the law and the facts in a case. John Adams wrote in 1771, "It is not only [the trial juror's] right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court."(8) In 1789, Thomas Jefferson added, "I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."(9)

The records of the Elliots Debates in 1788 leave little doubt that the importance of jury nullification was well understood: "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty."(10)

Also in 1788, Alexander Hamilton wrote in The Federalist No. 83, "The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.(11)

"For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty.(11)

[...]

"As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes."(11)

Clearly the authors of the eighth and ninth amendments intended "trial by jury" to mean a jury that would judge the validity of the law, as well as the guilt of the accused.

The early court clearly understood this intent when, in a 1794 case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Chief Justice John Jay instructed jurors that they had "a right ... to determine the law as well as the fact in controversy."(12)

Noah Webster's original dictionary records the commonly accepted definition of "jury" in use at the time it was published in 1828 as, "petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions."

However, during America's second century, judges began chipping away at this fundamental and vital right of free citizens, thereby transferring citizen power to themselves. The first major usurpation took place in 1895, when in Sparf and Hansen v. U.S., a bitterly split decision by the Supreme Court held that failure of the judge to remind the jurors of their powers was not a basis for mistrial or appeal. And once they'd granted themselves absolution for failing to inform jurors of their powers, judges found it all too easy to grant themselves absolution for willfully deceiving jurors about their powers.

The court today uses a "juror's oath" as an artificial device to void the individual rights of jurors. The court's recent opinion focused almost entirely on the court's self-proclaimed power to remove jurors who violate their oath to follow the instructions of the judge.

Jurors are told they must swear an oath that they will only consider whether the facts in a case meet the letter of the law when arriving at their verdict, and strictly adhere to the judge's instructions when it comes to interpreting the law. They're told that their sole purpose is to decide if those "facts" they've been allowed to see are sufficient to convict under the letter of the law as defined by the judge. They're told that if the narrow technicalities are met, they must find the defendant guilty - regardless of how unfair or unjust they may personally find such a verdict. Those jurors who attempt to exercise their power to refuse to convict under unfair laws in spite of the lies they've been told by the judge, can then be intimidated with threats of legal sanctions - not for refusing to convict under unfair laws, but for violating the judge's instructions not to exercise their powers as jurors.

The court may claim that a judge now has the power to require jurors to swear an oath of obedience to himself - and punish those he suspects of violating that oath. But the Constitution and Bill of Rights fail to mention this new power within the explicit enumeration of those limited powers delegated to government.

There is, however, a certain hard edged truth to the logic behind the court's original justification for not telling jurors about their powers. The court in essence pointed out that, if citizen jurors possess the right to decide the law, then those citizen jurors should also be expected to know their own rights. They shouldn't be told of their rights and powers by the court since they possess the power to ignore and/or reject any instructions on the law that the court may seek to provide them. The Constitution makes citizens the masters of public servants. To require a judge to inform a juror of his powers would be equivalent to requiring a servant to instruct his master on the rights of masters. It's the citizen's responsibility to know his own rights and powers as a citizen, and to reject any false instructions that might be provided to them by the court.

In order to keep jurors from learning of their powers from other sources, defense attorneys are now routinely threatened with contempt charges, and the loss of their livelihoods, if they urge jurors to exercise their power to nullify unjust laws. Prosecutors and judges routinely dismiss citizens who admit to knowing they have the right to judge the law from serving on juries. Freedom minded citizens distributing information about the rights and powers of jurors outside courthouses - without any reference to specific cases - have been prosecuted for "jury tampering".

The court has certainly gotten more aggressive over the years in its efforts to "avoid instructing jurors on their powers", but is the court the only villain in this piece? Could the court have progressed so far in usurping the power of jurors if jurors hadn't been willing to surrender their power? Are citizens who can't be bothered to acquire a basic understanding of their rights and duties as citizens, capable of rationally exercising their power to judge the validity of the law as jurors?

The prime reason the court assumes it will "get away" with such obvious revisionist interpretations is because the citizens of America have consistently tolerated such infringements in the past. This latest decision is simply a continuation of the court's long established doctrines that citizens who allow their rights to be taken from them without a struggle do not deserve those rights, and the government should take such powers from the citizens as the citizens allow it to take. When the court now claims that no other precedent exists regarding jury nullification, it's simply expressing its confidence that the citizenry will passively accept its authority, and meekly surrender their powers without bothering to independently investigate the court's claims.

Our nation's founding documents provide citizens with all of the rights and powers necessary to defend their individual freedoms from infringements by government. However, even the most profound prose is little more than ink stains on the paper unless citizens are willing to read it, understand it, and act on it. It's up to the citizens to give the words in our founding documents meaning in the real world.

It's estimated that between 60%-80% of the laws passed in the last half century would have been nullified by the kind of fully informed juries that were typical during America's first century. But would a dozen randomly selected Americans be capable of performing the role of a fully informed jury today? 50% of American adults lack the language skills to write a basic business letter, let alone read the Constitution and Bill of Rights with anything approaching meaningful comprehension. They elect politicians who promise them a socialist welfare state, and seek to outlaw the free market capitalism that created our unprecedented prosperity. They send their children to government schools where they're taught that America's quality of life was stolen from more enlightened third world societies, and that the once honored titans of American industry are now evil exploiters of the downtrodden. Most Americans don't even know whether they live in a democracy or a republic.

Our political system of checks and balances is based on the assumption that free citizens will value their freedom enough to defend it. The authors of our founding documents assumed that enlightened self-interest would provide sufficient incentive for citizens to remain informed and involved in their political system. But nothing written on paper can ever defend the rights of a citizenry that is unwilling to defend itself from the natural inclination of government to seek absolute power.

Over a century ago, Frederick Douglass advised, "Find out just what people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress."

The citizens of American still possess the right and power to reverse our nation's decline into tyranny, but we must first decide, as a people, that our freedoms are worth the effort to defend them.

When Benjamin Franklin finally emerged from the convention in Philadelphia, he was asked, "What kind of government have you given us?"

Franklin replied, "A republic, if you can keep it."

(1) People vs Williams, S066106, Super. Ct. No. 178305, (2001)
(2) Yale Law Journal, 1964:173
(3) State of Georgia vs Brailsford (3 Dall 1) (1794)
(4) US vs Moylan, 417 F 2d 1002, 1006 (1969)
(5) US vs Dougherty, 473 F 2d 1113, 1139 (1972)
(6) Spooner (1852)
(7) Echard's History of England, p. 1067.
(8) John Adams (1771)
(9) Thomas Jefferson (1789)
(10) Elliots Debates, 94, Bancroft, History of the Constitution, 267, (1788)
(11) The Federalist No. 83, Hamilton, (1788)
(12) Georgia vs. Brailsford, 1794:4.

More information is available from the Fully Informed Jury Association:

The Fully Informed Jury Association