November 11, 2017 Greg Penglis
There are two ways that the Judiciary have imposed their own tyranny on this nation. One is to usurp the unconstitutional power of “Judicial Review,” which is judges taking it upon themselves to rule on the constitutionality of laws, a power that is specifically not delegated to the Judiciary in Article III of the Constitution. The other is by denying the instruction to juries that they have the power to judge not just the facts of the case and rule as the judge explains the law to them, but to rule, judge, and if necessary nullify the laws in the case. The defendant can then be judged not guilty, because the law or laws they are charged under, never should have existed. It is called “Jury Nullification.” I propose that a Miranda type instruction be mandated for every jury that sits, that before deliberation they be given this instruction, just like people are given a Miranda warning at the time of arrest. It is an explanation of their rights, which they must certify that they understand.
Juries, before deliberating, will receive this mandated instruction from all judges:
“You have the right to judge the laws as well as the facts of the case, and if you find the laws unjust or unconstitutional, you have the right, power, and duty, to nullify the law or laws, and can acquit or find not guilty on that basis alone.”
An alternate is to consider a longer and more comprehensive version requiring proof of compliance. This could also be included in a State or Federal Jury Bill of Rights.
“You have the right to judge the laws, as well as the facts of the case, and if you find the laws unjust, unfair, unworkable, prejudiced, unconstitutional, oppressive, exceeding of legitimate government power, or on another basis you declare, you have the right, power, and duty, to nullify the law or laws in the case, and acquit or find not guilty, on the basis that the law or laws themselves never should have existed. You have the right to access the Constitution, relevant jury nullification cases, and any relevant case law you request around the laws in question, regardless whether or not they have been introduced in the proceedings.”
No member of the judiciary, law enforcement officer, or government official, shall withhold this instruction, nor offer any instructions, coercion, or threat of prosecution, consequence, or repercussion, to the contrary of these juror rights.
Every juror shall certify in writing before deliberation that they have received and understood their full rights of jury nullification under this statement of rights. Such written confirmation shall be made part of the legal record of the proceedings.
All jurors are required to be actual “peers” of the defendant, “known to and known by” the accused per the Constitution.
This proves my case. In California, and perhaps other jurisdictions, no officer of the court is allowed to even tell a juror or jury of the power they have to nullify laws. From a Fully Informed Jury Association (F.I.J.A.) article: California’s charge to the jury in criminal cases is typical:
“It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I shall state it to you … You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me.”
Compare this to a quote from 1788:
“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.” (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267).
Miranda vs. Arizona in 1966 was a Supreme Court case that ruled police could not use self incriminating statements, or waive counsel to the accused, unless specific rights known now as Miranda Rights were read to the accused upon arrest. Before that you could be arrested and never know that you could legally remain silent and not incriminate yourself. It’s not that police took away rights, but denied rights by omission of not telling suspects of the existence of those rights. Since you can’t exercise what you don’t know exists, Miranda warnings became the standard ever since. What I want to do is the same thing for juries. Since jurors won’t exercise a right they don’t know exists, and especially won’t exercise a right where the judge instructs them that they can not, or makes them swear an oath to say they will not, then the only way to guarantee juror knowledge of their rights is to guarantee that judges will read the Miranda Jury Rights that I have outlined above, or a mistrial is declared automatically.
Jury nullification started with King John and the Magna Carta back in 1215. The King went along with the idea of jury trials so the barons could be judged by their peers instead of the King, in exchange for the King keeping his crown and castle. By the 1600’s in England, jurors were fined by the crown when defendants the king wanted found guilty were acquitted instead. The famous case here is William Penn, who was prosecuted for preaching Quakerism to an unlawful assembly. Even though that was against the law, four jurors refused to convict because they judged the law to be wrong. They were fined for their decision, and when they refused to pay, were starved and imprisoned for four days. One juror still refused to pay the fine and brought the case to the Court of Common Pleas, which held that jurors could not be punished for their verdicts. And that in 1670 was the real birth of jury nullification.
In Colonial America jurors were used to ruling against English law, particularly asset forfeitures under the Navigation Acts which were trade laws in favor of England. So England moved the cases to the British Admiralty. John Hancock had his yacht “Liberty” forfeited due to these Acts, and John Adams argued for Hancock against Parliament for depriving Americans of trial by jury. Adams said, “It is not only his 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.” (Yale Law Journal, 1964:173.). Our first Supreme Court Chief Justice John Jay, instructed jurors that the jury has “a right … to determine the law as well as the fact in controversy.” (Georgia vs. Brailsford, 1794:4.) It was our fourth Supreme Court Chief Justice John Marshall who really screwed things up when he ruled in Marbury vs. Madison in 1803, that the Supreme Court, and every subsequent federal court and judge, could usurp the power from juries to rule on the constitutionality of laws, what we benignly call judicial review, which is in reality the nullification of jury nullification. The illegal practice of judicial review has only gotten more expansive, as the right of jury nullification has been repressed almost out of existence.
In 1850, judges were asking jurors whether they were prejudiced against the government and the 1850 Fugitive Slave Act, peremptorily dismissing jurors who said they were. Jurors were not generally asked their positions before this. In 1895, in United States v Sparf, the U. S. Supreme Court voted 5-4 with two dissenting opinions, to uphold the conviction in a case where the trial judge refused the defense attorney’s request to inform the jury of their nullification power and right. Pressure on the Supreme Court for this decision was brought by giant corporations, and pressure from the American Bar Association because jurors “as the American Law Review wrote in 1892, had ‘developed agrarian tendencies of an alarming character’.” (Barkan, 1983, emphasis added.) In other words jurors were still thinking for themselves and didn’t want all power concentrated in corporations and government.
Despite the deplorable behavior from judges, juries continued to nullify laws when they found those laws to be the real crime. Jury nullification of laws has been used in cases during Prohibition, draft evading during the Viet Nam War, and with marijuana laws. However, many more cases would have been nullified had jurors known of this right, as studies have shown. The practice of questioning jurors to eliminate any who on their own might nullify a law and bring verdicts contrary to government social control and power still goes on today, especially through juror oaths. “Juror’s oath is a statement under oath by a juror that he will do his duty as a juror, that he will well and truly try the issues joined, and a true verdict render according to the law and the evidence. The juror’s oath prescribes his duty. [Demato v. People, 49 Colo. 147 (Colo. 1910)].” It is swearing to “render according to the law” that violates jury nullification by forcing jurors to swear they won’t invoke it.
Juror oaths under this law would be abolished.
Again from the article: History of Jury Nullification. They have the best summary of jury nullification where it says,
“Twelve men taken randomly from the population will represent both friends and opponents of the party in power. With fully informed juries the government can exercise no powers over the people without the consent of the people. Trial by jury is trial by the people. When juries are not allowed to judge law it becomes trial by the government.”
Here’s a quote from me:
“The people can only give their consent to be governed, when they write the laws by which they are governed, and have the power to nullify laws by which they do not consent to be governed.”
I have modified it to a more modern version:
“We the people, give our consent to be governed, by writing the laws by which we are governed, and have the power through juries, to nullify the laws by which we do not consent to be governed.”
Besides linking judicial review and jury nullification suppression as judicial tyranny, so I link the Miranda arrest reading of rights to my Miranda style reading of jury rights as being essential weapons against judicial tyranny. Miranda vs. Arizona in 1966 was a Supreme Court case that ruled police could not use self incriminating statements, or waive counsel to the accused, unless specific rights known now as Miranda Rights were read to the accused upon arrest. Before that you could be arrested and never know that you could legally remain silent and not incriminate yourself. It’s not that police took away rights, but denied rights by omission of not telling suspects of the existence of those rights. Since you can’t exercise what you don’t know exists, Miranda warnings became the standard ever since. What I want to do is the same thing for juries. Since jurors won’t exercise a right they don’t know exists, and especially won’t exercise a right where the judge instructs them that they can not, or makes them swear an oath to say they will not, then the only way to guarantee juror knowledge of their rights is to guarantee that judges will read the Miranda Jury Rights that I have outlined above, or a mistrial is declared automatically.
One of the most important areas for jury nullification of unconstitutional laws are in cases where the laws infringe (touch) in any way, the Second Amendment right to own and carry firearms. Since there are so many such laws, local, state. and federal, that is an article all by itself.
There are only two ways to serve on a jury: one is as a government minion made so by judicial conspiracy to deny your right of jury nullification; or two, as a fully informed juror who knows exactly your rights, and represents the people, and not the government. This law will make all jurors fully informed, and fully empowered.
Sources:
http://fija.org/document-library/jury-nullification-faq/
http://www.constitution.org/jury/pj/fija_history.htm
http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
https://en.wikipedia.org/wiki/Sparf_v._United_States
http://definitions.uslegal.com/j/jurors-oath/
http://www.revolutionary-war-and-beyond.com/7th-amendment.html
http://canadafreepress.com/article/why-judges-are-incapable-of-ruling-on-the-second-amendment
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584168
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