Jury Nullification

Last month the ever intriguing Joe Bageant (http://www.joebageant.com) posted a story about a friend of his that had been railroaded by the injustice system. I felt compelled to respond and my response is on his site, but I thought I would also post it here.

Dear Joe:

As a practicing attorney I must respond to your tale of your friend Stokes (Old Dogs and Hard Time). First, the vast majority of lawyers and judges in this country are just as appalled at the hijacking of our system of "justice" as are you and your readers. Stories like that of Mr. Stokes are now just every day occurrences in courts all over the country.

The cause of this is the legislature. During the 30 years of my practice, Congress and the state legislatures have propounded the largest, most mind numbing plethora of rules and regulations with such draconian penalties that practically everyone is risking their freedom for violation of something or other all the time.

The aristocrats bandy the word "freedom" as a favorite bumper sticker but they absolutely hate individual freedom. The want to protect themselves from us at our expense so we have rules and regulations governing everything. My state of North Carolina, famous for its court ruling that "a man can beat his wife with a stick no bigger than his thumb", now requires six months of coursework and a license before you can give someone else a massage.

A lot of this got started in the drug war -- the idea of forfeitures, mandatory sentencing, presumptions of guilt from vague circumstantial evidence and so on. The result has been to create a growing, dependent cancer known as the justice system. It isn't about justice anymore, it's about revenue. I've read that over 8,000 government agencies are dependent on the drug laws for their funding. This covers everything from the DEA to local sheriffs to drug courts, rehab therapy groups to things that seem to be unrelated like the Navy seals.

And it didn't take long for the overreaching authorities to allow these wholly unconstitutional measures to seep into every aspect of our laws and lives. Pharmacists, bank tellers, emergency room nurses, school teachers and so many others are forced to become unpaid government informants on pain of incarceration just to keep the wheel spinning. God forbid you should be charged with domestic abuse, a sex crime, a minor drug offense or any other politically incorrect offense.

Joe, every generation has a boogey man issue that persuades government hacks that the constitution must be suspended -- hippies and war protesters in the 60's, communism in the 50's, U. S. citizens that looked Japanese in the 40's, and a black man traveling across state lines with a white women earlier. Our generation has paraded out a litany of reasons why we should roll over on our constitutional rights -- the war on drugs, child porn, spousal abuse, internet kidnapping, and now the granddaddy of them all, terrorism. We are told that we need to give up our liberties to protect us from ourselves. And we are being taxed to support it. We've even gone so far as to deny any trials whatsoever.

The essence of the genius of Madison, Jefferson, Washington, Franklin, et al. was a governmental system that held unbridled power in check. It effectively transferred power from Kings and Lords to farmers and teachers. Nothing like it had ever been seen and it worked during their horse and buggy days and it works now. Although our forefathers never heard of cell phones, airline travel, television, automobiles, shopping malls or suburbs, nothing has proved to be a better system since. The brilliance of our system of government is that it intends to give all of us safety from the typical brutality and tyranny of governments. It is for precisely those reasons that those entrenched in power and wealth tirelessly try to combat its ideas.

There is a point to my rant. There is but one area left that is the sacred province of the commoner -- the jury trial. It resists lobbying, payoffs, corruption, and direct influence. For those reasons, there is every effort to dilute and avoid the jury. It is being eroded by statutory edicts and the misguided belief that a jury is bound by the Judge's instructions on the law.

Less than 6% of all cases now go to trial. The most shocking aspects of the law's application are required to be kept from the jury. Most juries have no idea that they are sentencing the defendant in a domestic scuffle, late night tryst or minor drug buy to being branded, jailed, re-educated, reduced to slavery, monitored and harassed, all at the defendant's expense. It is commonplace for jurors to report in surveys that they would not have convicted if they had been told the entire story about the laws.

The answer, of course, is jury nullification. Juries have the right to refuse to enforce unjust laws, despite the carefully worded and intimidating instructions to the contrary. The founding fathers, the United States Supreme Court, the Fourth Circuit Court of Appeals and Oliver Wendell Holmes all agreed on this point.

Unfortunately, virtually every court now prohibits this information from being communicated to the jury. The producers of The Wire television series ended their series with a pledge that none of them would ever convict anyone in a drug case. In response, one jackass prosecutor in Texas (with a system of justice the Gulag would have envied) says he will indict in his jurisdiction for advocating jury nullification.

Here's the bottom line. We must resolve to fight the aristocratically sponsored injustice. Perhaps a groundswell can be started whereby we common folk "just say no" to these laws by hanging the juries on which we serve whenever they come up.

Naturally this will allow some of the "guilty" to walk free but that's the point isn't it? You must first starve the beast that is attacking you before you can decide how to govern yourselves thereafter. This will only happen if we demand jury trials and then have a sufficiently informed minority to have a fighting chance in a courtroom stacked against the average shmoe. Since the aristocratic party has tilted the scales in their favor, we must tilt them back.

Keep up your good work and if you are ever in North Carolina, I'll buy the beer.