Stacked to convict


Ever been called for jury duty?

Typically, you’ll end up sitting around for hours with a bunch of senior citizens in sweat pants, watching daytime TV or reading out-of-date magazines. And I don’t mean “Scientific American.”

Occasionally, they actually go so far as to march a couple dozen of you into an otherwise empty courtroom, where a judge and a couple of attorneys question the gang, first as a group and then individually, to find out if you’re familiar with any of the principals in the case, or have been prejudiced by watching TV news accounts of the crime, whatever.

At some point, if you make it into the “first 15” in the box (three will be alternates), the judge will ask if you think you can render an objective verdict based on the evidence. If they stopped there, I’d have no big problem. But most will go beyond that, asking whether you will swear to “take the law as I give it to you.”

If you want to get on that jury, to block the conviction and imprisonment of some poor sap who’s violated some victimless, unconstitutional drug or gun or tax law (you’ll have figured out by now what kind of case it is), play dumb and agree to anything they suggest. Shuffling and mumbling like a moron are encouraged. They want morons.

(After all, they’re lying to you.)

On the other hand, if you want to get out of there, scratch your head and say, “Well, my understanding is that all the laws are written down for a reason, so nobody can get sneaky and ‘re-interpret’ them over time. And we can’t very well expect anyone to obey the laws if they’re so vague or complicated than an average person can’t understand them. So I assume you mean you’re going to give us the actual statute book so we can read the relevant statutes for ourselves. Then we’ll decide what the law is and what it means, thank you very much.”

They don’t want to do that, of course. The tax-paid political appointee in the black dress, who’s part of the police state and usually a “former” prosecutor, wants to “instruct” you in the law –- which is to say the law as the courts have decided they want it to read — instead of letting you actually read it.

They also don’t want you to ask any questions, especially why all kinds of relevant information is obviously being withheld -– why the defense isn’t allowed to argue that the law in question exceeds the powers delegated to the government by the constitution, or that federal officials had no jurisdiction where they made the arrest, or that the law in question applies only to federal employees, etc.

At that point, your ticket to go home right away — though the jerk in the black dress will fume a bit, you understand — is to say, “I believe Chief Justice John Jay held a higher rank than yours, and in his charge to the jury in Georgia versus Brailsford, 1794, he said ‘You (jurors) have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.’ Then, as recently as 1972, the U.S. Court of Appeals for the District of Columbia -– they outrank you, too –- ruled in U.S. versus Dougherty that the jury has an ‘unreviewable and irreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge. . . . The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law.’

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“Obviously, I’ll discuss all this with my fellow jurors before we decide whether we’re going to ‘enforce the law as you give it to us.’ We may have some questions for the witnesses during the trial, too, just to make sure you lawyers haven’t conspired to keep them from telling us ‘the whole truth,’ like they’re supposed to.”

You’ll never get that far, of course. You’ll be lucky if you have time to grab your hat before they’re marching you out the door.


What’s that? “But Vin, it’s always been this way. These procedures are in place to make sure everything is fair . . .”

Oh, bull. When our Anglo-Saxon ancestors empaneled a jury, they chose twelve men who had witnessed the crime. Under the code of King Aethelred, jurors were required to investigate the case themselves. Under Henry II in the Twelfth Century, jurors were still charged with uncovering the facts of the case on their own.

This business about jurors having to be ignorant idiots who’ve been living in a cave somewhere, so they can be shown only those tiny, carefully selected pieces of evidence approved by the judge, is actually very new, designed to weaken our juries out of all keeping with the role they were intended to play in blocking wrongheaded prosecutions under unpopular laws, a criminal conspiracy to keep jurors in ignorance of their real and perfectly legal power to challenge unjust prosecutions or bad, wrongheaded laws — a conspiracy which has the current effect of crowding our prisons with two million people, a lot of whom haven’t hurt anybody.

In 1891, John Carr wrote an excellent book called “Pioneer Days in California.” (More copies here.) I picked up a copy to price it, last week. Want to know how things worked in 1851, just 64 years after this country was founded? Turn with me to page 127:


“A man by the name of Charley Williams . . . lost some dust, said to have been stolen out of his tent. . . . Suspicion fell on a man by the name of Allen, who was arrested and kept in custody.

“Word was sent down to Weaverville that Charley Williams was robbed, and they had caught the thief and were going to try him that evening at the mouth of Sidney Gulch. Some of the miners . . . came down to town and talked the matter over with the boys in town, and finally about twenty-five of us went to the trial.

“They had the prisoner under guard. They then elected a fellow by the name of A.K. Young as judge, and a jury of twelve men was impaneled and sworn to try the case. I was one of the twelve jurors.

“The evidence was given in. None of the witnesses knew of his stealing the money; only he had behaved in a very suspicious manner, and his looks ought to convict him. Some of the jury commenced questioning the witnesses, and it finally turned out that they had not one particle of proof against him. The jury acquitted him unanimously.

“This A.K. Young, who acted as judge, said he was guilty anyway, and would have to leave the camp. The foreman of the jury spoke in reply to Young, stating that Allen had a fair and impartial trial by a jury of his countrymen and was honorably acquitted, and it was not just to make him leave.

“The balance of the jury sided in with the foreman while the rest of the miners present were of the same opinion. We took Allen to town with us for his better protection.

“This fellow, A.K. Young, turned out to be a scoundrel of the first water, and deserved hanging more than the man he was trying. Allen stayed about town for a few weeks and left. Ten years later I called on him at his ranch in the Sacramento Valley. He was then a well-to-do farmer, and a man who was well respected by his neighbors.”


Did you notice “Some of the jury commenced questioning the witnesses”? That’s the way it used to work. I didn’t notice the author saying the jurors passed little slips of paper to the judge, so the all-powerful judge could decide whether to ask their question, did you? I didn’t notice the author mentioning all those jurors had to go through some strip-search or metal detector to make sure they weren’t carrying more guns than the crooked judge and his bailiff, did you?

(In fact, it’s a pretty good bet they were. What psychological message does it send when today’s jurors are forcibly disarmed, and then marched around by armed guards who take orders from the judge, and nobody else? If you think this doesn’t matter, try showing up for jury duty with your own armed guard, explaining that if you’re seated on the jury you’re going to have your paid private cop guard the judge, to make sure he doesn’t have any illegal “ex parte” discussions about the case with anyone else while it’s going on. They won’t have any objections to that, right?)

The jury is supposed to be in charge.

Our Constitution also requires a trial by a jury of the defendant’s “peers,” by the way, which means his or her social equals. Look and see, the next time an 18-year-old black man is on trial (assuming they’ll let you look — you might be surprised at how hard it is to get inside a “public” courtroom, these days) and let me know how many black people under the age of 22 you see in the jury box, wearing baggy pants with their hats on backwards. Or how many people of about the defendant’s age, of any color.

A “jury of his peers”? It’s all stacked to convict, brother. Assuming they’ll even give you that jury trial, at all. Seems the “high court” has now “interpreted” that guarantee to mean “only if they seek a sentence of more than 364 days.”

They’ve been arresting so many of us on their bogus gun and drug laws that the courts were getting too crowded, you see. Why, imagine what would happen if everyone demanded a jury trial! . . .

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