Elena Campbell: An interesting morning at the Grand County Courthouse
I was recently called as a potential juror in a criminal court of law. As an introduction to the processes of jury selection and courtroom proceedings, our presiding judge treated us to a most eloquent reminder of the importance of serving as jurors.
He reminded us that until the Declaration of Independence and the passage of the U.S. Constitution, power flowed from the government to the people, as in England, the superpower of the day. To paraphrase the judge, “Who would have thought then that there could be a system where power flowed from the people to the government? In our country after the Revolution, it is indeed the people who grant power to the government.”
He went on to read Lincoln’s short speech, reminding us of government for the people and by the people. “This (courtroom) is the people’s house,” the judge concluded.
After we swore an oath to tell the truth, we were asked a number of questions to ensure that we would not be hindered or biased in any way as we heard the case. A number of jurors were excused, one of whom was the defendant’s neighbor who stated that the defendant “is a very good neighbor.”
Another was dismissed because the defendant frequents his store. After a time, the assistant district attorney asked a rhetorical question of us, and went to each of us for our individual answers. We were asked, in effect, “What are your thoughts about a law that is broken, and there is no resulting injury, like not carrying a driver’s license?” Most answered something to the effect that laws are there to protect the public and that they must be followed. My answer got me summarily dismissed as a potential juror.
To paraphrase, I answered, “Any civil society needs laws to protect our persons and our property. Unfortunately, there are a bunch of bogus laws on the books that are unconstitutional and have little to do with our protection. The judge reminded us early on of the importance of our service as jurors. When we view a law as bad, it is our civic duty, all of us unanimously, to make that determination during deliberation.” I was wrong in my statement on one count, and didn’t make myself clear on another.
First, such determination doesn’t have to be unanimous. One individual acting alone in good faith and conscience can “hang” a jury. On the second count, I was unclear by implying that the jury’s actions would “nullify” a law. Only Congress can do that (state legislators, for example, can declare a federal law unconstitutional and therefore, null and void.) However, in an individual, particular court case for which an individual is part of a jury, a law can most certainly, in essence, be nullified for just that particular court case, with a verdict of “not guilty.” Horrors! What’s this? Jury Lawlessness?
Let’s review some history and some of the views expressed by our Founders and notable others who tried to ensure that power would rightfully flow from the people to the government, with the people’s consent.
In 1670, William Penn was on trial for most decidedly breaking a law. The law at the time was that the Church of England was to be the only lawful church. Penn was a Quaker. Four jurors held out with a finding of “not guilty.” (These four were kept in grotesque conditions while jailed.) The people of our little fledgling nation went on from that pivotal court case to enjoy freedom of religion, freedom of speech, and freedom to peacefully assemble. We can thank those four jurors for the state of Pennsylvania, Independence Hall, and the Liberty Bell.
In discussing the Constitution, Alexander Hamilton stated, “The friends and adversaries of the plan (the Constitution) concur at least in the value they set upon the trial by jury. … The former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”
Chief Justice Parsons of Massachusetts stated, “… only his own fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation (removing government power.)”
Patrick Henry witnessed a minister being whipped to death. His crime? The minister refused to take a license. The license turned this minister’s natural right into a privilege granted by the power of the state. Patrick Henry responded with his famous speech, “I know not what course others may take, but as for me, Give me Liberty or Give me Death.”
Lysander Spooner stated, “The trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger. Consequently, it is the only institution that gives them any effective voice in the government or any guarantee against oppression.”
In the very first jury trial of the Supreme Court (State of Georgia vs Brailesford) the importance of the jury was well understood: (“… it is presumed that juries are the best judges of the facts; it is, on the other hand, presumed that the courts are the best judges of the law. But still, both objects are within the power of your decision. You have a right to take upon yourself to judge both, and to judge the law as well as the fact in controversy.”
In the 1972 US vs Doughtery case (473 F 2nd 1113, 1139) we were told that, “Jury Lawlessness is the greatest corrective of law in its actual administration. The will of the State at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”
And from Abraham Lincoln: “The people are the masters of both Congress and Courts, not to overthrow the Constitution, but to overthrow the men who pervert it.”
When you next have an opportunity to serve as a juror for one of your peers, do remember the original intent of having a jury by peers. You are the very palladium of free government. You are the valuable safeguard to liberty. I only wish I had been invited to hear the case. I would have been there, first and foremost, as a palladium of We the People, fully cognizant of the value of laws that protect the common good.
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