After the Fall of Justice
In Alaska, a demonstrator is charged with felony jury tampering for shouting, "Call 1-800-TEL-JURY!" within the hearing of jurors. Those who dial the number hear a recording that simply informs them they have a right to vote their conscience.
In Washington state, a judge and three U.S. attorneys covertly excise key pages from a booklet before allowing it to be entered as defense evidence in the trial of several militia members. They are not charged with evidence tampering.
Another day in the American court system. Justice, or its simulacrum, is dispensed as judges and prosecutors see fit. There's nothing new in that.
What's new, or what's dangerously on the increase, is the systematic rigging of the court system to preserve judicial power and punish anyone who dares challenge it. And what's more important -- but clearly unforeseen by the riggers -- is the catastrophe likely to arise from this power grab.
Myths and Hopes
We cherish a myth that the justice system is the last, best hope for the beleaguered "little guy" in the world of the powerful. No matter what happens, we've been told, even the humblest of us can "have our day in court," be heard and be vindicated, as long as truth and fairness are on our side.
This was never literally true, of course. Any poor, black man can tell you the reality of justice. The surviving, imprisoned Branch Davidians can tell you, as can the girlfriend of a drug dealer, locked away for years for sitting in a car during a transaction. Dozens of militiamen, set up by government informants, can tell you. As can dope smokers, tax resisters and businesspeople who made the mistake of violating arcane regulations.
Nevertheless, justice is sometimes served, and the myth prevails. There are good reasons why it must prevail.
In a civil society, the myth of justice serves two related -- if contradictory -- purposes. On one hand, ordinary people need the myth to give them hope against the powerful. On the other, the powerful require ordinary people to believe in the myth because it keeps the rabble complacent.
A belief in justice -- even an erroneous belief -- can be the line that separates gentility from riots in the streets.
Even in these days of cynicism, there has still existed a flame of optimism about the power of ordinary people in the courtroom. The belief is so strong that some advocates of limited government have built their main hope upon it. The constitutionalists -- loosely, the legal researchers, sovereign citizens and pro se litigants who seek to limit the influence of government -- have spent endless hours and endless dollars building cases for, and on, the law.
These hopeful Good Citizens have cherished the belief that they could go into court, present their arguments and (if those arguments proved intellectually, historically and constitutionally correct) prevail against institutionalized injustice. Not only prevail, personally, but return America to a land of limited government and individual rights. With that hope, and armed with reams of legal documents, many have besieged courts and other government agencies.
Some of their arguments have been bogus. Some undeniably correct. A few have won the day. Most have been futile.
A Change in the Tide
Recently, a tiny time bomb landed in my e-mail box. In one sense, there was nothing new about it; some of us radical anti-government curmudgeons have been shouting a similar message for years. But given the source, it was revolutionary.[Note 1]
Headed "Citizen Soldiers," the message said, in part:
I have just returned from a meeting with a true constitutionalist attorney here in town, one with past and quite recent important victories in the area of tax issues....Basically, he intimated we as Americans must finally realize there is no such thing as an unassailable constitutional protection in this republic anymore.
....Face it, we're on our own; there is not and CAN NEVER BE any 'silver bullet.' So what's new, you ask? Check the endless well reasoned posts on this list, as well as the other lists many of you monitor. We know the law better than the DOJ, we have higher judicial scruples than the judges, and we're losing ground every day. In essence, we are fielding the GE College Bowl winners against the Gestapo.
I have spent endless hours over the last five years studying and applying the law, contacting the IRS, my congressman...and the only difference it has made is that I understand PERFECTLY the gargantuan fraud this government (sic) is perpetrating on its citizens. The question arises: do I continue the futile?
Within days, confirmations poured fourth. One came from attorney Steffan Bertsch of Lake Stevens, Washington, author of the book Crisis in Our Courts:
I am sorry to admit that your writer is correct in that there is little or no law running the "justice" system; American justice has given way to ignorance, cowardice and corruption.
....Henry David Thoreau told us that if a law was immoral, that we as moral people must realize that we will not live long enough to change the immoral law by any democratic process and that we must realize that "if it [a law] is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law." On Civil Disobedience.
This advice is especially true today when Congress and state legislatures pass so many laws that lawyers cannot read the annual output and are forced to resort to reading summaries of statutes and regulations, hence are left vastly ignorant of the laws. American laws are so numerous that "ignorance of the law" should be made a defense if a reasonable person would not know of the law.[Note 2]
The essential point is, again, not the words, but the source. The last dogged proponents of "the system" are beginning to abandon hope.
The justice system was the last legal avenue for these "little guys" and their principled attorneys.[Note 3] What has changed? Why are they abandoning it now when it never has been a perfect system? And, perhaps more important, what happens after they bail out?
Why Now?
The various justice-system reformers have seen some victories, some defeats. The record is inconclusive. But the very existence of these challengers threatens the security of the powers-that-be. Recently, those powers have been taking harsh steps to fight back:
- In a now-notorious case, political activist Laura Kriho of Colorado became the first American juror in more than 300 years put on trial after refusing to convict a defendant. She was, among other things, charged with perjury for failing to volunteer information about her past that she was never actually asked to give.
- In the Team Viper cases in Arizona (and many others) the judge refused to allow defendants to question the constitutionality of the laws they were charged with violating, even though the Supreme Court declared in one of its most famous cases: "All laws which are repugnant to the Constitution are null and void" and have no force from the moment they are passed (Marbury v. Madison, 5 U.S. (2 Cranch) 137 (1803)). The judges shrug, "Take it up on appeal," knowing all the while that, by then, an innocent person may have spent years in prison and be bankrupt.
- Fearful of the power of minority opinions on juries, the state of Oregon changed its laws to enable conviction on an 11-1 vote. The U.S. Supreme Court decreed that states may authorize conviction on a 10-2 vote.
- In Albany, New York, a juror refused to convict a defendant in a drug case, saying the law under which the defendant was charged was wrong. Instead of declaring a mistrial, as has been done in the past, the judge simply fired the juror and granted the rest of the jury the spurious power to convict 11-0.
- In Washington, Republican state representative Karen Schmidt circulated a memo warning fellow members of government they might be "victims" of a type of "organized crime" committed by "extremists." Schmidt's newly defined crime, Paper Terrorism, is characterized primarily as an attempt to use the justice system to challenge the status quo: "Frivolous lawsuits against government entities"; challenging judges in court cases; "disrupting the court system by persuading fellow jail inmates to defend themselves..."; "distributing the extremist Citizens Handbook (sic) to foster jury nullification" and "requesting information from courts, government agencies, elected officials and businesses..." California, Indiana and other states soon followed suit. Legislatures and enforcement agencies are now actively prosecuting courtroom "terrorists."
The Attack on the Jury
An increasing number of judicial power plays involve attempts to curb jury nullification. Nullification is the historic, common-law practice by which jurors pass judgment on the law, as well as the facts of the case before them.[Note 4] Today, trial judges habitually inform jurors that they may deliberate on the facts only -- that they may never ask, "Is the law just?" or, "Is the law justly applied to this defendant?"
Until the Kriho case, jury-rights activists (notably the Fully Informed Jury Association, FIJA[Note 5]) considered their position to be win-win; even if activists were arrested for telling jurors about nullification, or if jurors were charged for practicing it, the juries who tried their cases would -- voila! -- hear jury-rights arguments or see jury-rights literature presented in evidence. Naturally. How else could jurors gauge activists' actions?
But under a recent Colorado law, defendants facing six months or less don't receive jury trials.[Note 6] Therefore, a judge and prosecutor got together and carefully structured charges against Kriho to ensure she would not have the benefit of a jury. Facing only a judge, whose power was directly threatened by her stand, Kriho naturally lost (although the judge's decision vindicated part of her position).
But this was only one early, and highly visible, example of the attack on those who challenge the authority of judges and the will of prosecutors. The two cases cited at the top of this article are others. In the Washington State Militia case, what did the judge and prosecutors excise from the evidence? The jury-rights section of The Citizen's Rulebook.
The attack on the jury extends across national borders, as well. In Canada, a juror in that country's longest and most expensive murder trial (Regina v. Bhudpinder Johal et al., Court File No. CC940998) now faces up to 10 years in prison for obstruction of justice. There is evidence the juror, Gillian Guess, behaved foolishly -- visiting several defendants and, after the verdict, forming a sexual relationship with one of them. However, she never received an order not to visit them, and there is no evidence she influenced the outcome of the trial.
Why charge Guess? For one thing, the jury humiliated the prosecution -- finding every defendant not guilty in this highly publicized trial. But Guess was the only one who went on television afterward and declared that the government should never have brought "such flimsy charges" against the defendants.
In previous cases of juror misconduct, judges have declared mistrials, or appeals courts have overturned guilty verdicts. But for 300 years, the independence of the jury has never been threatened, even by the angriest prosecutor or most dictatorial judge. Prosecuting jurors is a new trend whose danger as an intimidation tactic can't be overstated.
There is, however, not only a trend to cow jurors into obedience, but to fill juries with those who are predisposed to obey orders.
The process of voir dire was originally intended to screen out friends of either side or people with unshakable prejudices. However, it has become, as syndicated columnist Vin Suprynowicz and attorney Bertsch have both pointed out, a jury-stacking scheme. Jurors are grilled on their sex lives and the number of guns in their homes. (The very process screens out anyone with enough spine to refuse to answer outrageous questions.) In high-profile trials they are subject to private investigation and "management" by jury consultants, looking not for impartiality, but for desired forms of bias.
If prospective jurors express knowledge of jury rights or hint that conscience might take precedence over authority, they're out. The truly independent-minded juror is automatically abolished from the panel.
Thus, the news is filled with tales from jurors, who cry that they had "no choice but to convict," over the objections of their own conscience and common sense. In a notorious 1997 case, jurors emerged from deliberations weeping and demanding a governor's pardon for an 18-year-old boy they had just convicted of child molesting. His "crime" carried a horrifying mandatory sentence. Yet he had done nothing worse than get his 15-year-old girlfriend pregnant. Jurors recognized they had before them a normal teenager who, in fact, wanted to "do the right thing" and marry the girl. But the judge decreed his jurors could only judge the facts, not the fairness of the law. The jurors were, as the old Nazi claim goes, "only following orders."
Swimming with Piranhas
We have reached a point at which "the law is whatever I say it is" -- as long as the "I" in question is a judge or a prosecutor. Because the appeals system is populated by members of the same "club," the most outrageous injustices are often upheld.
Those who dissent are like minnows among piranhas. Their earnest belief in the truth is no defense against a frenzy of carnivores.
Yet, the piranhas fear the minnows -- or are at least determined to show the next little school of challengers not to mess with guys who have sharp teeth. Clearly many of the above judicial maneuverings are in response to the perceived threat posed by self-taught legal scholars and jury-rights activists.
The problem is this: No matter why authorities maneuver to curb the power of juries and political dissidents, the effect of their power play can strike anyone.
A judge may issue orders in defiance of FIJA, but it isn't FIJA who suffers when the jury convicts against its own conscience. It's the poor pot smoker, militia member or gun owner convicted of violating an unconscionable law.
A judge may refuse to admit constitutional arguments to her courtroom out of frustration with "paper terrorists." And indeed the "terrorists" suffer and become more outraged. But the status of justice suffers worse.
Even victories present dangers. When a FIJA activist or drug user goes free because of a hung jury, those momentary triumphs inspire courtroom crackdowns, revenge against jurors, and laws to further curtail jury power.
Ultimately, the myth dies. Whether you're a constitutional scholar or a semi-literate kid, you know you won't get justice in the justice system. Remember, the justice system isn't the little guy's first hope. It's the last. What do you do when that hope is snuffed?
The weary, but principled writer of "Citizen Soldiers" says:
In my humble opinion, we should ALL be deciding on the level of civil disobedience we are willing to engage in. If this is the law, we should all become LAWBREAKERS, encourage others to become LAWBREAKERS, be steadfast on juries to free LAWBREAKERS, stand tall in the rightness of being LAWBREAKERS.
But this cry of defiance sounds sweetly innocent when compared with what a less principled "little guy" is likely to do if he knows he can't get justice in the courts. As Vin Suprynowicz wrote, commenting upon the New York 11-0 verdict, which was partially supported by the Court of Appeals:
The segment of the American populace who should be most concerned about the arrogant, elitist trend reflected by this New York appeals court ruling should be police officers.
So far, when advising an armed suspect to "Give it up, and I'll see you get a jury trial," the average cop has had a fair chance of success.
But once the average suspect realizes that government-salaried judges now can and will remove any juror who votes to acquit -- or who admits under questioning that he might favor a defendant's view of the law over the government's -- that suspect is far more likely to figure "I'm dead anyway, and I might as well take one lying government bureaucrat with me."
The same is true of any form of court-rigging. Those who crave authority should understand that when they do anything to reduce the power of ordinary citizens in court -- whether jurors or defendants -- they do so at their own peril. The justice system serves as a safety valve on the overheated engine of society. Plug the valve and something explodes.
Ultimately, prosecutors and judges who behave like tyrants in the courtroom will find that it isn't the little guy -- the demonized "paper terrorist," the jury-rights advocate, the pot smoker, the militia member, the drug entrepreneur or the errant juror -- who suffers the most dire consequences when the justice myth dies.
No. When the powerful close the doors to justice -- and when common people understand that the doors are closed, we have one more place to turn: the streets.
# # #
- 1 The message was posted anonymously to the ICE Internet list. The author copied it to me, under his own name.
- Both Bertsch's essay and "Citizen Soldiers" can be read in full at Wolfe's Lodge.
- Yes, believe it or not "principled attorney" isn't always an oxymoron.
- The 1895 U.S. Supreme Court decision, Sparf v. U.S. (also known as Sparf and Hansen v. U.S.) firmly denounced this ancient right, citing more than 100 years of court precedents and legal opinion. Contrary to the mythology of the jury-rights movement, Sparf did not, in any way, uphold the concept that juries have a right to judge the law as well as the facts. However, a resounding dissent by Justice Gray traced jury nullification much farther back into history and showed that such a right did -- and does -- indeed exist. Even the elitist majority, which held that the judge is the sole arbiter of the law, conceded that, since jurors can vote any way they please, they effectively can nullify the law, whether or not anyone else approves. And this is exactly what juries have always done: Slavery and prohibition were, in part, ended by juries' refusal to convict runaway slaves, underground railroad operators and buyers and producers of alcohol. Three juries have refused to convict Dr. Jack Kevorkian, in part because they disagreed with the laws he was accused of breaking. In some areas, prosecutors are finding it increasingly difficult to convict drug users and dealers because juries simply won't deliver the desired verdicts. The Sparf decision can be found on the Internet. Go to http://www.findlaw.com/casecode/supreme.html. In the site's search engine, select the option "Supreme Court Cases 1893+." Then type "Sparf."
- FIJA, P.O. Box 59, Helmville, Montana 59843, (406) 793-5550, http://www.fija.org/. Prospective jurors call 1-800-TEL-JURY. Also see The Jury Rights Project, http://www.lrt.org/jrp.homepage.htm
- The Colorado statute and similar statutes in other states are unconstitutional. The Bill of Rights, Article VI, says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..."
