In America, we all have the right to "trial by jury". Not by a judge, nor by a panel or tribunal of legal experts, but by a jury. Why?
Quite possibly, an expert tribunal could do a better job (than a bunch of 12 amateurs) in accurately determining guilt or innocence. I personally think that one could rather often do a better job at determining an appropriate sum for damages, in civil suits! So what is a jury FOR?
Answer: it's there to overturn the law, whenever it sees fit.
Every lawyer and politician who reads that will scream and holler, but it's thetruth anyway. It has been the truth for 800 years.
The nobles of England depended upon King John for their lucrative land holdingsso they didn't want to terminate his monarchy, the day they got him over a barrel in Runnymede in 1215; they just wanted to limit his power. And they did so by having him sign the Magna Carta, or Great Charter; a kind of English Constitution. It did terminate his absolute monarchical powers.
From then on, he could still write as many decrees as he wished, but now those laws would be enforcible only if a jury agreed, in each and every case. If the jury sitting on a specific case thought the law was unjust or inappropriate, it threw out the case. For that case, the jury had (and still has!) absolute power to overturn, negate and nullify the Law.
And that is, was, and always has been the primary purpose in having a jury. It means that any law the government writes is always subject to the permission ofa representative group from The People; by ancient tradition, twelve.
The Power of Twelve
The folk who first came up with 12, as a good number for a unanimous-verdict jury, were either extraordinarily smart or extraordinarily lucky. It's an ideal number for the purpose (ie, severely to limit the power of government, so protecting the freedom of minorities from majority tyranny.)
To get a law written (however savage) in a democracy, how many need to support it? - just 51%! But to enforce that Law, through a jury of 12, it's necessary to have FAR more than 51%. That's the genius of a 12-person jury.
Suppose there were a Law on the books that enslaves Blacks, who made up 10% of the members of a society. Suppose too that all Whites (a 90% majority!) supported that wicked Law. Provided only that Blacks were represented on jurieslike everyone else, would such a Law be enforcible? - let's check.
The probability that any one juror would vote to convict an escaping slave (say) would be 90%, or 0.90. The probability that any two would do so would be 0.90 multiplied by 0.90, or 0.90 to the power 2; and so on.
And the probability that twelve such jurors would do so would be 0.90 to the power 12. Go check your calculator: 0.90*12 is 0.282!!
That's right: even when 90% of the population favored the law, there would be only a 28.2% probabilty of enforcing it! Nearly 3 prosecutions out of 4 would fail! - and so, of course, the Law would die, it would never be enforced.
So we didn't need a Civil War, with its consequent vast increase in the power of government. All we needed was that Blacks could sit on 12-person juries, in the Antebellum South. If they had, there could never have been any slavery.
And today, if juries do NOT have 12 persons drawn randomly from the community, or who are NOT aware that they have this supreme power to ignore the lawyers and throw out any law they do not like, what we too have is a form of slavery.
In practice, no ambitious prosecuting attorney is going to initiate a case unless he thinks he has an excellent chance of winning. Will he gamble his career on an assessed chance of only 50%? - hardly. He'll want to estimate thatit's 75%, at least. Agreed?
Now, grab this: for there to be a 75% probability of a 12-person jury votingto convict a lawbreaker, that law must have an astounding 97.6% level of support in the community!!
That's the Power of Twelve.
The Two Things Needed
This immensely powerful limit on government authority, which unanimous-verdict juries properly have, is effective only when:
(a) the 12 persons are drawn at random, with roughly the same opinions about particular laws as are held by the whole community, and
(b) they KNOW that they have the power to nullify any law they do not like.
Unfortunately, lawyers and politicians have succeeded in violating both of those conditions. That is why you and I have lost half our lives; why we all ofus need to take them back. Why I need to run for Governor.
What happens in practice today is that (a) prosecutors do their utmost to exclude from the jury anyone who might disagree with the law under which the accused person is being prosecuted, and (b) judges deliberately lie to the jurors and tell them they do NOT have the power to nullify Law! - that they must, instead, accept as Law whatever the Judge says is Law!!
This is almost incredible, but I've seen and heard it happen. It constitutes an extreme form of jury tampering by the government! When the government's interests are at stake, the Judge is NOT impartial at all; he or she is wickedly biased, againstthe accused and in favor of his own employer, the government.
And this is not new; it's happened repeatedly, right down the ages.
Item: William Penn, who later founded Pennsylvania, was put on trial in London in 1670 for preaching as a Quaker in the street, contrary to Law. One ofhis jurors was Edward Bushell, later called the intellectual forefather of America because he understood the importance of protecting minorities from the majority. He also knew that juries can overturn the Law and ignore the Judge.
Judge Starling was no more impartial in that case than modern American judges are in tax and other cases. He told the jury "go to the jury room and agree quickly to bring in guilty so that we may be done with this tiresome matter."
But he had not counted on Edward Bushell. The jury, at Bushell's prompting, refused to bring in a guilty verdict, despite being refused food, drink, sleep or even a chamber pot in the jury room. In consequence, both his country and ours have enjoyed religious freedom, more or less, ever since.
Item: Peter Zenger was tried in Colonial New York City in 1735 for repeatedly libelling the Governor, Sir William Cosby, in the journal he printed(though did not edit.) The credit for his acquittal often goes to his attorney Andrew Hamilton, but it also goes to his jury - which was (then as now) selected by the powerful plaintiff so as to be likely to favor his case.
Depsite that piece of typical, governmental jury tampering, the jury - led by its foreman, Thomas Hunt - nullified the Law (which then clearly forbade such libel) and declared Zenger "not guilty". In consequence, as confirmed half a century later in the First Amendment, we have enjoyed freedom of the Press.
Item: That disastrous crime-stimulating law called Prohibition came to an ignominious end in 1933 not because a wise Congress recognized it had made an error, but because it was found repeatedly impossible to get convictions.In case after case, clearly-guilty rum-runners were acquitted by juries that, quite rightly, recognized the Law as an Ass and overturned it.
In consequence, ever since we have been somewhat free to decide what liquids totake into our own bodies. And next time you hoist a jar, remember: you and I have "jury nullification" to thank for it. Cheers!
What I Will Do
If elected Governor, I will see to it that those two essential features of every jury (that jurors be randomly selected, and fully informed of their power) always apply.
How? - quite easily: I'll automatically pardon anyone convicted by any jury NOT so selected or informed.
The Governor has no power to intervene in a case prior to conviction, but afterwards all that would be needed would be for the defendant or his attorney to come forward with a transcript and show me that jury selection was biased (that would appear in the record of the "voir dire" process) and/or that the Judge had failed clearly to remind jurors that they could, if they wished, ignore his instructions and nullify the Law in question.
I would then issue the pardon, and the convicted criminal would go free.
The effect, unfortunately, might well be that a wholly guilty, vicious killer would again walk the streets of New Hampshire. Since however that result could easily have been avoided if the Judge had followed the Law in acordance with these very clear promises I am making here and now, the blame would be his absolutely. And I would go on freeing convicts, however dangerous, until the judiciary got the message and obeyed the Law and submitted their Courts to the absolute power of juries. Because, in America, we have the right to trials by jury.
I wonder how many would go free, before they did so? - not more than one, I hope, at most. But if they wanted to prolong the test of will, ask my friends: they would find me real stubborn.
What You Should Do
Anyone can be called for jury duty - it might be your turn tomorrow. If so, there's no need for you to wait for the Election; go ahead and do your proper duty, as explained above. Ignore the Judge, vote by your conscience only.
Perhaps the case you sit on will be straightforward: the accused clearly broke the Law and in your judgment, the Law in question is fair and just. Fine: vote for a guilty verdict.
But if he clearly broke a law you do NOT agree with, go ahead and nullify it!
For example, while you may not like what drugs can do, suppose you feel that treating the drug problem as a legal matter instead of a medical one is wrong. And suppose the case before you falls under the anti-drug laws. Do you feel thepusher, or his customers, will benefit from a stay in prison? - if not, vote toacquit. You need give no reason, and nobody will have the right to question your judgment.
Or suppose it's a tax case. Did the accused hurt anyone, by refusing to pay some of his own money over to the government? - of course he didn't. So again, vote to acquit, regardless of what the Law says.
And so, with any case that has no identified, complaining victim. If there's no victim, there's no crime and the Law should never have been written.So, do your duty and exercise your 800-year-old right: overturn it!
There's one other thing, and it comes first. Today, there is (quite wrongly) a jury-selection process, in which each side gets to reject any juror it doesn't like. By spending wads of money on consultants, and by closely examining you and your views with a questionnaire, the government uses that to exclude anyonelikely to thwart its will. Like you, I hope.
So, alas, you have to tell a "white lie". If you're asked, "Will you accept thelaw as the Judge directs?" you have to answer "Yes" even though the truth is (Ihope!) "No way!" If you don't tell that white lie, you'll never get on the juryin the first place, and then a harmless person may get her life ruined.
Do this, will you? And tell all your friends and family to do so too, starting today? - even if I'm never elected Governor?
For Further Reading
For the books named here, check your local bookstore or library, or order from Laissez-Faire Books or Amazon.com.
"We the Jury" by Gordon Lehmann
"Trial by Jury" by Lysander Spooner
My newspaper article "Juries and Their Numbers"
Fully Informed Jury Association Home Page.
Back to "JUSTICE"
Back to "MONEY"
Back to "What's In This For You"
Back to Home Page
