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Hello Freedomphiles!  Well, call me Kunta Kinte because last Monday I was a slave.  I did my “civic duty,” which means the State decided they needed my services and then forced me against my will to provide them (at $12 a day – hardly the market rate).  Yes, that’s right, I had jury duty yesterday – I was one angry man. 

 

I got up that morning, experiencing mixed feelings about the tedious ordeal ahead of me.  On the one hand, I didn’t like being forced into indentured servitude like some common serf, but on the other hand, this would be a great opportunity to stick it to The Man.  I figured, if I could weasel my way onto a jury, maybe I could strike a blow for liberty.  If it were a crime without a victim, like a gun registration violation, tax evasion (that one deserves a medal), prostitution, or drug possession, I’d just refuse to convict.  I would be the one angry man – Henry Fonda with a punk rock sneer – holding out until I hung the jury.

 

Oh, it was a marvelous, seditious little plan.  I felt like a revolutionary, like Nathan Hale or Joe Strummer.  I saw myself standing fiercely, in the proud tradition of Sid Vicious, giving the one finger salute to tyranny, and in my own passive aggressive way, declaring with my actions, “I know not what course others may take, but as for me, give me liberty or give me death!”

 

As it turns out, it really isn’t that seditious at all.  It is called Jury Nullification, and has been a constitutionally approved practice since the founding.  Thomas Jefferson once wrote, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

 

This anchor is what kept our legislatures honest for so long.  When John Adams signed the Alien and Sedition Acts into law – legislation that made it illegal to speak out against the government – right-minded juries used his own words and their protected power against him: "It is not only [the juror's] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."   Juries also refused to enforce the Fugitive Slave Act, in many cases making the arrests pointless. 

 

So I was ready to go.  I got dressed, put my hair up in spikes, put on my coolest punk about town outfit and Doc Martens, topping it all off with my fat wallet chain and studded leather bracelet.  I slung my backpack, covered with patches (OPIV, The Ramones, The Clash, The Dead Kennedy’s) over my shoulder and went to the city courthouse, just daring them to pick me and eat hot justice!

 

They herded us through the metal detectors first-thing, where I immediately started rethinking all the steel in and on my body.  After that noise, we went upstairs into a waiting area that thankfully included a smoking lounge.  I bought a can of Mountain Dew and settled in for a long wait.

 

There was a nice lady – a city worker – at my table reading The Celestine Prophesy, which is a new-age book that goes to great metaphysical lengths to say be nice to people and be open to opportunity.  She was nice to me, and open to the opportunity to speak with me about various topics.

 

I told her my theory of Jury Duty as slavery, and she didn’t much like that.  She started talking about picking cotton, being beaten and in chains, so I amended my description to say that being on Jury Duty is like being a House Negro – you still have no choice, but if you do what you’re told, they’ll pretty-much be nice to you.  Try and refuse, though, and Massa will come down on you.

 

She didn’t much like that either.  I don’t know if it was because she was black, or because she didn’t understand that I was speaking in principle instead of practice, but I thought it might be best to drop it.

 

Since we were already on the subject, more or less, we talked about the plight of the American black.  I went on and on about how minimum wage laws, zoning regulations, and licensing legislation was keeping many motivated people from being able to strike out into the world and make a better life for themselves and their families.  I talked about how the inflated black market prices of drug prohibition has made the criminal life a lot more attractive to someone who’s only other choice is fry cook at McDowell’s.

 

I talked about great Libertarian activists and writers like Frederick Douglass, Lysander Spooner, and Zora Neale Hurston.

 

We found ourselves approaching the same page and she started to see things my way when the intercom broke in with my juror number, and I had to go.  I went back downstairs, where we were taken down yet more stairs to the basement.  Then we got on the elevator and went up to the sixth floor (who said government was inefficient?), where we waited outside the courtroom of Nannette somebody-or-other.

 

When we were finally ushered in, the attorneys asked a lot of questions, a process called voir dire.  Apparently this was a personal injury case from something that happened at a Wehrenberg theater back in 1994, so I wouldn’t be able to strike a blow for liberty.  Still, I thought it might be fun to sit in on the jury and keep them from setting any records. 

 

The questions the attorneys asked seemed to be to determine whether we were stupid and ill informed enough to sit in judgment of our fellow man.  They asked if anyone thought that just because someone got hurt on a corporation’s property, the corporation should be held responsible.

 

I was trying to keep quiet – I really was.  I wanted them to think I was one of the great ignorant masses, but something got in the way.  Was it my ego?  Perhaps my righteous indignation that always leads me into trouble?  At any rate, I raised my hand at that one.

 

“Yes, Mr…Davis?”

 

“Yeah, what do you mean by that question?”

 

“I mean, do you think that because it is a corporation, are they especially liable for injuries on their property?” 

 

“Oh, okay, thanks.”

 

“What do you think?”

 

I was sunk.  There was no doe-eyed innocence on this one.  I’d been directly asked, so I had to answer because my vanity would not allow me to play dumb.  “Well, no, I think they are responsible as property owners for injuries people get on their property, but only if it was caused by the corporation’s actions of lack of action, and only if the injured party took reasonable precautions to avoid an accident.”

 

“Okay.  Thank you.  Does anyone disagree with what Mister Davis just said?”  No one raised their hand, and, while they all apparently agreed with me, I said it – I had just shown I was too smart for the jury.  It was over.

 

I sat down to watch the rest of the game, even though I had clearly already fouled out.  Things got interesting, amusing, and disgusting from there.

 

When the plaintiff’s attorney asked if anyone in the room had ever been the plaintiff in a personal injury lawsuit, seven people out of thirty raised their hands.  That’s almost twenty-five percent!  I was appalled.  Then he asked if anyone had family members who had been the plaintiff in a personal injury lawsuit, and three additional hands went up, while the seven other hands still waved in the air. 

 

The next inquiry was to who had been the defendant in a personal injury lawsuit, and only one hand went up – some rich, white guy who was retired from Proctor and Gamble. 

 

I looked around this room, at these few – these precious few, we band of brothers – and I was embarrassed by humanity.  I think it is true what they say about all the frivolous lawsuits destroying America and the bottom-feeding trial attorneys capitalizing on its decay.  At the same time, I don’t think the solution is to limit damages. 

 

Oh, but it got better.  Then the judge asked a question that really got my ire up: “Is there anyone here who could not follow my instructions and apply the law as I tell them?”

 

Yes!!

 

I wanted to scream out, make a great speech, quoting the history of jury nullification, explaining the proper constitutional role of the jury and the reason that jury deliberations are private and final.  But no, I thought, there is still a chance that you can destroy this Death Star from the inside.  Hold your tongue, man, and you can make your point where it really counts – in the jury room.  Henry Fonda, remember?

 

So, I held my tongue on that one, as you should all do if you are ever forced into this temporary slavery, because making a point in the selection phase will accomplish nothing.

 

The court system routinely tries to circumvent this nullification right by explaining wrongly to juries that they must make their decision based upon what instructions the judge gives them.  In the case of a guilty verdict, this is probably the case, as the accused can appeal an unjust verdict, and no one – not even a jury – has the right to punish someone retroactively for something they later determine should be against the law.

 

Juries, you see, must still work within the framework of current law.  They cannot create new laws any more than a judge can.  What they can do, however, is nullify an unjust law that is currently on the books.

 

For instance, in August of 1993, a Washington DC jury refused to convict two men of the heinous crime of giving each other a blowjob, even though the evidence offered clearly showed the two men were guilty.  Mostly, I think this was a law of jealousy that heterosexual men placed on gay men out of anger at the fact that gay men never have to beg their spouses for a hummer.  But instead of finding kinky girlfriends, they decided to bring the jackboot of government coercion onto the heads of people doing nothing worse than giving the magical gift oral sodomy.

 

When American citizens are fully aware of this right they have, you’d be surprised at how easily we could reign in this tyrannical juggernaut.  In Vin Suprynowicz's book Send In the Waco Killers, he demonstrates this principle quite well:

 

"As opposition to a law passes 5 percent, the government's chances of finding a 'good' jury fall below 50 percent. When opposition rises to 10 percent, the government's position falls below 29 percent. When opponents of a law constitute 20 percent of the people, the government has a dismal 7 percent chance or less of finding a jury willing to convict."

 

So, you see, if someone gets busted for growing pot in a closet in their basement, and you don’t want to convict them, you don’t have to.  All it takes is one person to hang a jury.  All it takes is one angry man to make a change.  If we get one angry man on every jury, or even a percentage of juries, prosecutors, who guard their conviction rate like it’s the One Ring or something, will become more and more wary to take on cases they might lose.  In turn, the police will be less and less likely to waste their time arresting people who will never see the inside of a courtroom, and even better, will begin spending more time trying to catch thieves, murderers, and rapists.

 

A good example of this – and of how much the courts fear this – is a recent case in California.  In 1996, California voters approved Proposition 215 – also known as the California Compassionate Use Act – which made it legal for state certified growers to grow and distribute marijuana to terminally ill patients with a prescription.  The city of Oakland deputized a man named Ed Rosenthal as an “officer of the city” and asked him to grow the Wildwood Weed for patients who hadn’t the time, space, money, or energy to grow it for themselves.

 

In February 2002, Mr. Rosenthal was arrested in San Francisco for selling the dope to the Harm Reduction Center in that city.  In San Francisco, not surprisingly, the Compassionate Use Act passed with a 78% approval rate.  This led to, as Clay Conrad, author of the enlightening book Jury Nullification: The Evolution of a Doctrine, said, a situation where “it took a total of 80 jurors to find 12 willing to convict Rosenthal. Most of those summoned for jury duty said they would not be willing to brand someone a felon for growing or distributing medical marijuana.” 

 

So, you have a situation where the government is sifting through people, trying desperately to find twelve people in that 22% of voters who opposed the law, eventually disqualifying 85% of the potential jurors just because they would probably exercise their right to nullify unfair laws.  Clearly, this court shuffled and reshuffled, palming the right cards at the right time, stacking the deck inexorably against him. 

 

As if that weren’t enough, the court further prohibited his defense attorney from telling the truth about what happened.  He was not allowed to mention that he was working for the city; he was not allowed to mention Proposition 215.  This had the effect of creating, as Conrad said, an image of Rosenthal “not as a conscientious caregiver, but as a large-scale drug dealer.”

 

With all said and done, the court now faces sentencing Rosenthal to 40 years without parole, which, for this 58 year old farmer, is a life sentence, and for his twelve-year-old daughter, a lonely rest of her life.  Astoundingly, Richard Meyer of the DEA said, "We feel the people of California have spoken.”  No, Mister Meyer, the people of California spoke when they passed the Compassionate Use Act.  The government spoke when they railroaded and coerced twelve people into convicting an innocent man of doing his State sanctioned job.

 

At least half of the jurors – and it only takes one – later said they would have voted not guilty if they had known all the facts.  Some were so distraught over the incident, they held a press conference on February 4, 2003 to publicly criticize the court and apologize to Rosenthal.  One juror said, "It's the most horrible mistake I've ever made in my entire life,” while the foreman, Charles Sackett, said, "I think jury nullification is going to be part of the answer…in future cases."

 

Indeed. 

 

But Mister Rosenthal is still going to rot in prison.  His first appeal was denied on Friday, May 16, 2003.

 

This kind of thing happens by design, and it’s clear because of the instructions that U.S. District Judge Charles Breyer gave the attorneys, because he interrupted a witness for just mentioning that he’d met the defendant “in the context of Proposition 215.”  The judge took over the questioning from there to make sure that the jury didn’t have the information they would need to make a reasoned decision.  The judge, summarily and intentionally, created a situation where no other verdict than guilty was possible.  At best, this is judicial misconduct, and at worst, it is tyranny.

 

And it’s rampant.

 

That’s why, as a matter of course, the judge asked us whether we would be able to apply the law as she explained it, regardless of our opinion of it – the subtle tyranny of judicial hubris.

 

And that is also the exact reason I kept my damn mouth shut.  Chances were, even if I got onto that jury, in a case like that, I would have never had the chance to nullify anything, but I wanted to be there just in case.

 

As it turns out, I never got onto a jury that day.  They brought us in, read off the names of the people who did make it – coincidentally the stupidest people in the room, and sent the rest of us out of the room to collect our vouchers.  As we milled around the bailiff, having our juror numbers read in no particular order (not even separated from the numbers of the picked jurors), I looked at those of us left – my kindred, mostly educated souls – and saw the executive, a guy who owned his own business for years, the graduate student, and the computer science professor, among others.  I thought back to who was left inside – the city worker, a couple of retired people, and a lot of people who had previously been awarded amounts as plaintiffs in personal injury lawsuits. 

 

Is this what our justice system has become?  On the one hand, do we really have a criminal court that cares not one bit about what the people actually want to be protected from, only trying again and again to show the little states who’s boss?  Is the civil court system merely a revolving door of under-evolved slack jaws, strolling in, giving away people’s money, and waiting for their turn at the trough?  Is justice not merely blind, but deaf, dumb, belligerent and retarded as well?

 

I’m afraid so.   

But how do we fix it?  I think the first step would be to remind people of the proper role of a jury in America.  The proper role, as the Supreme Court reminded us, is to head off “oppression by the government,” not become de facto enforcers of that very oppression.   

Because of the nature of this sacred duty, we need to stop looking at the most ill informed, mouth-breathing morons as the ideal of a juror.  We need to stop conscripting jurors, and instead pull them from a list of volunteers, and pay them better for it.  We need to abandon this stupid notion that they cannot know anything beforehand about the case – that just leads high profile cases to be judged by the lowest quality of people.  Heaven forbid you end up in a show trial, with judges and attorneys fighting for film rights, jurors selling their stories to Hard Copy (again!), and no one worried so much about you as whether their best side is on film.

 

We also need to remind jurors of their place in this world constantly – to educate people that this government is our servant – not our parents or our master – and therefore, we must be ever vigilant to encroachment of our liberties, and sometimes even stand up and say “No more!” when one of our brothers have committed no crime other than upsetting the sensibilities of those that would oppress us.

 

Until next time, make every day a good one!

 

      -         Rick

 

Editor’s Note: As of Thursday, June 05, 2003, Ed Rosenthal was sentenced to one day in prison.  Score one for the good guys, but the precedent has not been challenged.

 

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