(This is one issue of a subseries; see U.S. vs. Democracy for a list of all issues in the subseries.)
In the previous issue, I discussed grand juries, those bodies of the people which, in some democracies, have the authority to decide whether a crime has been committed and who is to be charged. I explained how, at the time the Constitution was ratified, we had such working grand juries in most states and at the national (Federal) level, but that they had been stripped of their authorities in power grabs by the government. They are called grand juries because they usually have more jurors than their smaller cousins, the petit juries. In the U.S., grand juries typically consist of twenty three jurors.
Petit juries, which typically have twelve jurors – but sometimes six or other numbers – are the juries that participate in trials. Although the grand jury in its present form, by general agreement, dates back to Henry II, the origin of the petit jury is disputed. Certainly, there were juries in Athens, over 2500 years ago, but the English version of jury trials is variously attributed to the Vikings (early Tenth Century C.E.), Æthelred II (later, the same Century), and others. Often, it seems, the same grand juries which reported what crimes had been committed and whom was to be charged, also decided guilt or innocence, but sometimes there were separate trials. Under Henry II, trials were by ordeal in many cases, but by the time of the Magna Carta (1215) jury trials became standard. In 1353, Edward III prohibited those sitting on the grand jury (then called the “presenting jury”: remember the term, “presentment”, from the previous issue of the Buffalo Bull) from sitting on the trial jury, thus separating the two main forms of jury.
The English tradition, to which the U.S. is heir, has employed various kinds of courts, depending on the kind of law. Some of the kinds of courts have been law courts (for ordinary crimes and for civil disputes), admiralty courts (for maritime issues), ecclesiastical courts (for religious law; remember that England has a state church), and equity courts (for situations where there is no other applicable law). These courts have had different names at times in history (for instance, equity grew out of the chancery courts), but those details aren’t relevant here. The role of juries has varied, depending on the kind of court. For purposes of this discussion, we will focus on the law courts and the equity courts, because those courts encompass most legal activity, both in England and in the U.S.
The equity courts need some explanation. The idea was that equity applied where law was inadequate or missing. In some situations, the fair remedy required action by multiple courts, a situation without an adequate mechanism. In other cases, as with trusts, there was simply no applicable law. In these events, which did not fit the rules, a litigant might appeal directly to the king, arguing that, as a matter of equity and fairness, a petition was made to the king’s conscience. As the practice grew, the king delegated most cases to the Lord Chancellor; it was from his courts, the chancery courts, that equity developed. The key point here is that, because equity was a creature of the king, equity courts didn’t employ juries at all: the people who would be jurors had no power over the king. It should also be noted that “equity” is not the same as “law”, and the term “equity law” is improper. There is law and there is equity, two distinct things. Equity relies on no law, and a court of equity will refuse to accept a case if there is an applicable law which would make the issue eligible for disposition in a court of law.
There were times in history when the equity courts were abused by the Crown. One notable example is the Star Chamber, a special court with origins in the Fifteenth Century. This was a multi-purpose court, handling appeals, equity, and other special matters. Eventually, however, it became famous for its abuses, and its use by the king to attack his enemies. It would even convict of crimes where no law existed, because the privy councillors on the court determined that a law should have existed, so why not go ahead and punish despite the absence of law? The Star Chamber was eventually abolished by an act of Parliament in 1641.
The American colonies inherited this system from England, and separated law and equity. Sometimes, law was heard in one court and equity in another. At other times, the same court would sit at some times as a law court, and at other times as an equity court. The distinction between the availability of juries in law or equity remained, and the U.S. Constitution guarantees jury trials only in some matters of law, but not in matters of equity. Of course, in a democracy, all matters are decided by juries, as they were in ancient Athens, but the U.S. was never intended to be a democracy.
Eventually, the different courts for law and equity were merged. This was a practical matter, because cases sometimes had to straddle two courts to be handled fairly, and the rules for law courts were often different from the rules for equity courts, even when both were in the same room before the same judge. This movement to merge law and equity courts began in earnest in the late Nineteenth Century, and was almost complete by the mid-Twentieth Century. A very few jurisdictions, however, still have separate equity courts.
However, although the courts might be merged, law and equity weren’t necessarily merged at the same time. Equity, by definition, applies only to matters for which there is no law. However, if Congress or a state legislature passes a law to provide a remedy formerly available only in equity, then it becomes a law, and is no longer a matter of equity. Despite this, the courts have refused to give up their power to decide such matters without juries. Consider, for instance, the remedies variously known as preliminary injunctions, temporary protective orders, and other related orders; the label depends on context and usage, but these all were once matters of equity. Now, though, statutes usually provide for these things, and they are matters of law, but courts will not allow juries to decide whether to grant these remedies. At the same time, those same courts will explain that equity is available only where there is no applicable remedy at law. By contradictions such as these, we lose what little democracy we have.
The refusal to grant juries authority over decisions in equity, however, is but one of the several ways in which petit juries have had their powers taken from them. The two main ways in which the government has grabbed power from the people relate to what is called “judging the law” and to the ways in which trials are conducted.
When juries participate in a trial, they are told that they are to judge the facts of the case. The judge decides what law is appropriate. However, juries have the inherent power to decide the law, as well. The jury’s power to decide the law goes back to 1670, when the Court of Common Pleas ruled that jurors could not be punished on account of its verdict. The decision was based on an appeal (formally, a petition for a writ of habeas corpus) by Edward Bushel, who was a juror in an earlier trial at King’s Court. The earlier trial concerned an accusation of speaking at an unlawful religious assembly. Although the facts were not disputed, the jury refused to declare the assembly unlawful, effectively declaring that the law itself, against such assemblies, was invalid. The King’s Court judge put the jurors in jail, without heat, food, or water, until they relented two days later. When the trial was over, the jurors were fined, but Bushel refused to pay the fine, and was again jailed as a consequence. The Court of Common Pleas found that the King’s Court judge had acted improperly. This principle stands to this day, and has been affirmed in the U.S. Supreme Court: jurors cannot be punished for their decisions. (There are actions, such as taking bribes, for which they can be punished, but they have complete freedom of conscience in reaching a decision.) As an aside: one of the defendants alleged in the King’s Court case to have spoken to an unlawful religious assembly was William Penn, a Quaker, who went on to found the colony named for him, which became the State of Pennsylvania.
This is a great power. Jurors can vote with their consciences, they can decide that laws are unconstitutional, or wrongly applied, or that an act which might otherwise be illegal is excusable under the circumstances. This power is generally known as the right to “judge the law”. The act of a jury to void a law is also called “jury nullification”. This power of juries has impacted the course of history. Juries have refused to return fugitive slaves (in violation of the law), have refused to convict for possession of alcohol and drugs (in violation of the law), and have refused to convict for allegedly seditious speech (in violation of the law). These nullifications by juries worked to end slavery, to end prohibition, and to end restrictions on free speech. These rebellions by juries acted as forces for change, signalling to legislatures and to Congress that laws were unpopular.
There is a twist to this situation, however: there is no obligation to inform jurors of this power. In fact, jury instructions routinely encourage jurors to consider the facts only, and not the law, giving jurors the incorrect impression that they have no right to contradict the law. Even worse, it is illegal in many if not most locations to inform jurors of their rights. People passing out literature in front of courthouses, informing anyone who cared to read, that they have this right, have been convicted – jailed and fined – for jury tampering. Lawyers telling jurors of their rights have been cited for contempt of court. And when laws have been passed to allow such instructions to jurors, the courts themselves have fought back to declare those laws improper. Potential jurors are sometimes questioned about their knowledge of this right: those who know about it are routinely rejected. The courts don’t want to hand over their power to the people, even when the legislatures are on board. It is notable that there have been no cases accepted by the U.S. Supreme Court which have dealt with this denial of jurors rights and with this theft of democracy, effectively saying that the Supreme Court agrees with the situation. (They have declared that jurors need not be told of their rights, but have not spoken on the alleged illegality of telling them when the courts refuse to let the jurors know.)
Judges have found other ways to bypass juries. When they realize that jurors are acting contrary to what the judges themselves believe, they often declare mistrials or dismiss juries, refusing to accept the jurors’ decisions. Most effective of all, they conduct much of a trial outside the view of jurors. For example, a judge may be personally opposed to allowing a jury to know that a defendant was using marijuana because of leukemia and the side effects of chemotherapy, so the judge will not allow the evidence to be presented to the jury. By written motions or by oral arguments concealed from the jurors, judges decide which laws and facts are salient and which are to be disregarded. The lawyers must obey, or the judges can discipline the lawyers for failure to abide by orders of the court. If the judge deems it inappropriate – a decision which should be submitted to the jury, not made by the judge – a judge may not inform a jury of rights, such as the jury’s prerogative to presume that, when a party destroys evidence, the missing evidence may be presumed to be against the destroying party; the jury likely will be shielded from the entire dispute about evidence and discovery which comes before the trial. By the time a jury gets to see the evidence including testimony, the jury is often seeing a carefully scripted performance, which ignores what the parties would like to present, a performance which is biased based on the legal and personal preferences of the judge. Ultimately, the juries have the power to decide what evidence and testimony to see, to decide whether evidence is or is not admissible, but the very existence of such material and witnesses is hidden from them. Such misconduct by judges is not democracy.
Selection of the legal bases upon which to consider the evidence can work not only to acquit a defendant, but also to convict. For example, consider a situation wherein a cop pulls over a driver for some minor problem such as a broken tail light or, when no one is endangered and no traffic is nearby, a turn where the driver has gone into the wrong lane or even temporarily crossed a line. At the stop, the driver reaches for his registration or some other document, and the cop shoots and kills the driver; the cop claims he thought the driver, who turns out to be unarmed, was reaching for a gun. A judge will likely say that the cop’s fear excused his error, and instruct the jury that the relevant question is, Was the cop in fear for his own life? But a reasonable person, and a reasonable jury, might not in a fair trial view things that way. An argument could be made that it was the cop who was completely negligent in the matter, because he endangered an unarmed driver for a trivial matter such as a tail light or unlawful but not dangerous turn: when one person puts another in mortal danger, the person who creates the dangerous situation is responsible for the outcome. A minor traffic violation without a hazard to anyone else does not justify risking someone else’s life. But it is unlikely that a judge would see things that way, and he wouldn’t permit a prosecutor to make such an argument, because the judge would not see that as an argument compatible with the law of the case. The jury would be unlikely to hear an argument not narrowly focused on the judge’s view of applicable law, and the murder of unarmed civilians by police with itchy trigger fingers is bound to grow. Jurors are herded, like cattle, into corrals of the judge’s choosing.
Similar bizarre examples of judicial reasoning, contrary to the way ordinary people think, are common. For example, environmental rules require the disclosure of chemicals released into the environment, but judges waive the requirement that they be disclosed in the case of chemicals used in shale oil fracking, on the grounds that the specific chemicals are “trade secrets”. Using that reasoning, all sorts of incriminating activity could be concealed on “trade secret” grounds. That defies logic altogether, because, What good is a law if it cannot be enforced, or if its enforcement can be blocked merely upon someone’s unquestioned word that he is, effectively, above the law? Similarly, a government official can simply declare that, for “national security” reasons, a conclusion by that official (that it is necessary to torture another person, to hold him incommunicado without charge, and so on), and the court must, obediently and slavishly, accept that official’s conclusion. These are examples of privilege, of private law, under which some refuse to submit to governance by others: lawyers and judges have arranged matters so that they need not submit to the decisions of juries or of other, lesser citizens. This is, emphatically, not a democracy.
As another illustration, it seems likely – given common sense and polling data – that juries would not find that corporations are “persons” in the same way that natural humans are persons. Some lawyers argued, and judges agreed, that corporations are persons, entitled to all of the freedoms that humans have, despite the fact that, when the law granted these freedoms were enshrined into law by various Constitutional amendments, such corporations didn’t exist. (At the time of the Bill of Rights, and of the Fourteenth Amendment, there were corporations, but, as we know them, they had not yet been developed.) Corporations have no feelings, no needs, no interests, no wills of their own, and they feel neither pleasure nor pain: all of these things are felt and possessed only by their owners. To think that a corporate person is the same as a human person is ridiculous. Although a lawyer might argue that a saw-horse is, under law, equivalent to a biological horse which eats oats, or that a plastic shoe tree is entitled to the protection of environmental laws in the same way as is a living, woody tree with roots and leaves, jurors have more common sense than lawyers and judges and are less likely than lawyers and judges to fall for that nonsense. We don’t need a Constitutional amendment to reverse the Citizens United decision, we need a return to the common sense of grand juries and petit juries. Without returning to democratic roots, the war of absurdity against the people by the government and the wealthy will continue.
As another example, the current mania for calling diverse and sundry offenses, “acts of terrorism”, results in absurd thought paths which a jury, if asked, would often refuse to follow. Suppose X is accused of terrorism, but the government refuses to allow X to see the evidence on “national security” grounds. However, if X is indeed guilty, as alleged by the prosecution, then he must already know what he or she did, otherwise he is being convicted for something he doesn’t even know about. If he already knows about it, then how can the government argue that he can’t be told about it? Admittedly, there might be a few situations wherein the secret evidence reveals, say, some undisclosed forensic technique, but secret evidence seems to be more the rule than the exception, and cases are based on one person’s word against another’s. Most of the time, it’s just a plot and not an actual act: there is no special technique for assaying explosives, no technology which can’t be revealed. Why the secrecy? A rational jury would often, given the chance, refuse to swallow the bait, but juries are told what to do, by having the script prepared in advance. If a man murders, then, by all means, convict him of murder, but if the prosecutor charges the man with “terrorism”, yet cannot reveal the details and evidence and a precise definition of “terrorism”, then it is the prosecutor who ought to face charges, else he should shut up and keep quiet.
There are, of course, some interpretations of laws which make sense, but which are not spelled out explicitly. For example, the U.S. Constitution requires context for interpretation. Of what does a “jury trial” consist? The answers depend in part, on trying to understand what the authors meant when they wrote the document, details which were omitted maybe even because they would have considered them obvious. However, some interpretations were developed without a legitimate basis. Spectators and participants organize themselves into teams called “federalists” and “originalists” and so on, but conveniently, for themselves, ignore fundamental issues, in the same way that “Democrats” ignore democracy, and “Republicans” sacrifice our republic to the international money interests. There was no “original” definition of corporations that courts would today recognize: the lawyers and judges have invented such interpretations from nothing and nowhere.
Courts, and lawyers in general – whose livelihoods depend on this nonsense – argue that the law is complicated, and lay people such as jurors cannot be expected to understand it. In their view, the law is too complex and requires too much advanced education, training, and experience, for mere mortal humans to grasp its subtleties. However, these same poor benighted citizens, who are incapable of understanding and judging the law, are expected to obey the laws they can’t understand. And when a person, perhaps inadvertently, is suspected or accused of transgressing this vast and incomprehensible body of law, then he or she is expected to pay a king’s ransom for an “expert”, a lawyer, to help him navigate the rocks and the shoals. If the law is too complicated, then fix the law, and make it intelligible to the people.
Removing the petit jury’s power and opportunity to judge the law, whether explicitly or indirectly by procedural or other mechanisms, has been an outright theft of power from the people, taking us further from democracy than we were before.
Although it doesn’t directly involve scripted and guided jury trials, I note that the presumption of innocence applies to formal charges and trials, and not to daily life. If a candidate refuses to disclose her speeches or the agreements she has made with campaign contributors, or the promises she has made behind closed doors, or if another candidate refuses to disclose his tax returns or the web of his business connections, then citizens are entitled – as they would be in a formal trial if the evidence were destroyed – to conclude that the secrets are damning to the candidates. If an official won’t conduct an open investigation of a criminal act, or if he or she refuses to prosecute when there is abundant evidence, then citizens are entitled to conclude absent full disclosure that the official is involved in a cover-up. Even excessive plea bargaining may be a sign that the official is involved in coercion, extortion, corruption, blackmail, or other improper acts. Citizens have had their rights to bring charges directly, and to judge both the law and the facts, taken from them by the government. Indeed, with the destruction of grand juries and petit juries as they existed two centuries ago, a citizen may have a moral obligation to presume the guilt, rather than the innocence, of judges and other public officials. We are not obligated to extend the sham and the fraud of “justice” system to the rest of our lives. Judging our officials harshly in the court of public opinion is all we have left of a judicial system which, in the past, was much more democratic.
Thursday 2017.07.10 — Initial release.
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