oped: This is a long article but well worth the read !
by: Elias Alias
In a small but powerful booklet (1)
which was copyrighted in 1996, former Washington State Supreme Court
Justice William Goodloe gives an accounting of the origin and
establishment of our present-day jury powers. I would like to share with
you some passages from his essay entitled:
“Jury Nullification: Empowering The Jury As The Fourth Branch Of Government”~
Quoting former Washington State Supreme Court Justice William Goodloe:
Of all the great trials in history tried
at Old Bailey in London only one is commemorated by a plaque. Located
near Courtroom Number Five it reads:
“Near this site William Penn and
William Mead were tried in 1670 for preaching to an unlawful assembly in
Gracechurch Street. This tablet commemorates the courage and endurance
of the Jury. Thomas Vere, Edward Bushell and ten others, who refused to
give a verdict against them although they were locked up without food
for two nights and were fined for their final verdict of Not Guilty. The
case of these jurymen was reviewed on a writ of Habeas Corpus and Chief
Justice Vaughan delivered the opinion of the court which established
the Right of Juries to give their Verdict according to their
conviction.”
The case commemorated is Bushell’s Case, 6
Howell’s State Trials 999 (1670). This case is a good beginning for
tracing the roots of a legal doctrine known as jury nullification.
The year was 1670 and the case Bushell
sat on was that of William Penn and William Mead, both Quakers, who were
on trial for preaching an unlawful religion to an unlawful assembly in
violation of the Conventicle Act. This was an elaborate act which made
the Church of England the only legal church. The facts clearly showed
that the defendants had violated the Act by preaching a Quaker sermon.
And yet the jury acquitted them against the judge’s instruction. The
Conventicle Act was nullified by the jury’s not guilty verdict and the
infuriated judge fined the jurors and jailed them until such time as
their fines should be paid.
Edward Bushell and three others refused
to pay the fines. As a consequence they were imprisoned for nine weeks
and Bushell filed a writ of habeas corpus. He and the other recalcitrant
jurors prevailed in the Court of Common Pleas, and the practice of
punishing juries for verdicts unacceptable to the courts was abolished.
Thus was re-established the right of jury nullification, an ancient
right expressed in Magna Carta and dating from Greek and Roman times.
And the jury’s nullification verdict in the case, the trial of William
Penn, established freedom of religion, freedom of speech, and the right
to peacefully assemble. These rights became part of the English Bill of
Rights, and later, part of the First Amendment to the United States
Constitution. The man whom the courageous jurors had saved, William
Penn, later founded Pennsylvania and the city of Philadelphia in which
the Declaration of Independence and the United States Constitution were
written.
Definition
According to the doctrine of jury
nullification, jurors have the inherent right to set aside the
instructions of the judge and to reach a verdict of acquittal based upon
their own consciences. As abolitionist lawyer Lysander Spooner
explained the doctrine in Trial By Jury in 1852, page one:
“For more than six hundred years –
that is, since Magna Carta, in 1215 – there has been no clearer
principle of English or American constitutional law, than that, in
criminal cases, it is not only the right and duty of juries to judge
what are the facts, what is the law, and what was the moral intent of
the accused; but that it is also their right, and their primary and
paramount duty, to judge of the justice of the law; and to hold all laws
invalid, that are, in their opinion, unjust or oppressive, and all
persons guiltless in violating, or resisting the execution of, such
laws.”
History Of Jury Nullification
News of the rule in Bushell’s Case traveled across the seas and had a profound impact in the New World.
In 1735 in the colony of New York, John
Peter Zenger, publisher of the New York Weekly Journal, was tried for
seditious libel for printing articles exposing the corruption of the
royal governor. This is perhaps the most important trial in American
history because the jury in this case established the rights of freedom
of speech and of the press in America by nullifying the seditious libel
law which made it a crime to criticize public officials regardless of
whether the criticism was true. The Zenger case has been cited by
newspapers and history books across the land as the ‘great case’ which
laid the foundation for freedom of the press in the First Amendment to
the United States Constitution. Although this case is often referred to,
the substance or hinge upon which the case turned, jury nullification,
is less well known.
Andrew Hamilton, Zenger’s attorney,
argued jury nullification directly to the jury and gave his opinion of
the law to the jury in direct opposition to the instruction of the trial
judge. The Zenger case, and the jury’s nullification of the law in that
case, established freedom of the press and was within living memory of
some of the Founding Fathers and within common knowledge of all of them.
After Zenger, American colonial common
law gave the major role in law to the jury. For example, judges in Rhode
Island held office “not for the purpose of deciding causes, for the
jury decided all questions of law and fact; but merely to preserve
order, and see that the parties had a fair chance with the jury.”
Similar practices were followed in other New England colonies. See
Eaton, The Development of the Judicial System in Rhode Island, 14 Yale
Law Journal 148, 153 (1905) as quoted in Howe, Juries As Judges Of
Criminal Law, 52 Harvard Law Review 582, 591 (1939).
~
I think we all shall agree that some
things are amiss in today’s courtrooms, where daily across this nation
the vast majority of criminal trial judges admonish respective juries
that “if the evidence shows that the defendant violated the law, you must convict”. That is simply not true, and when a judge tells that to a jury he is lying – the jury does not
have to convict, despite an obvious infraction of the law by the
defendant, because as we now see clearly, the jury has a duty to judge the law as well as to judge the facts presented against the defendant. I shall furnish an hypothetical example.
Let us imagine for a moment that I were to stand on the
courthouse steps and smoke a marijuana cigarette and subsequently get
myself arrested for violating government’s laws prohibiting the
possession of marijuana. In today’s repressive governmental environment I
would of course be promptly arrested and charged. Then I would appear
before a judge during arraignment, whereupon I would indeed truthfully
admit that I certainly was smoking marijuana at the time of my arrest,
and that I was doing so as a personal protest against this government’s
insane War on Drugs. The charge against me would stand and I would be
given a court date, for which I would demand my right to a trial by jury.
At the beginning of my trial by jury the predictable
instructions by the judge to the jury would most likely declare that if
proceedings proved that I had broken or violated the law then the jury
therefore, in light of offered evidence, sworn testimony, and my own
confession, “must convict”, and that I must face the court’s
appropriate sentence according to scheduled penalties for said crime.
That is the customary way it is done in America’s countless courtrooms today. “If the evidence shows beyond a reasonable doubt that the defendant violated the law, you must convict” is the usual and general instruction to the jury by the judge.
But the truth is that the jury has every right to decide
that in this particular case, in this particular courtroom, regardless
of the facts brought against me and my own confession, the law itself,
under scrutiny of each juror’s conscience, may be nullified and rendered
inapplicable in that courtroom, in my case. The jury is quite free to,
and empowered by law to, weigh other concerns, such as these two
important facts which the court’s instructions to the jury usually omit:
1) there is no victim in my “crime”; and, 2) the law itself denies me
the full and constitutionally-protected right of self-ownership.
A jury of my peers, who of course would be aware
individual sovereigns, could, if that jury was so inspired by its
collective conscience, excuse my marijuana-smoking on the grounds that
as an American citizen I am expected to own my body as any self-owner
would, and that the anti-marijuana law itself deprived me of ownership
over my own body by seeking to dictate what I may and may not put into
my body. In such a case the jury simply would nullify the law right
there in the courtroom in open defiance of the instructions of the
court, and set me free.
That is an hypothetical example of the power inherent in
America’s twelve-person jury system, and it is one of the last
strongholds against tyranny-by-government that still remains for us
today. In another example which is not hypothetical but instead is a
matter of historic record, and which parallels my given hypothetical
example, American history shows that the role of juries played a major
part in forcing government to repeal and abolish the Prohibition laws of
the 1920s and 1930s.
Juries all across America began to refuse to convict,
and the law-enforcement community was left with the quandary in which it
became pointless to arrest the rural moon-shiner. That jury-activism,
repeated again and again in countless courtroom trials across America,
finally carried the will of the people to its resounding triumph over
the oppressive and un-Constitutional laws of Prohibition. It can happen
again today, which is exactly why Americans have been deliberately kept
in the dark about their rights and powers as jurors.
In keeping the knowledge of a jury’s lawful powers away
from public awareness, the government sponsored public schools have
played a large role. Also contributing to the general ignorance of the
average American on this matter has been the main-stream media and the
press – but as we’ve already seen herein, the public school system, the
media, and the press have long been in the control of the tax-exempt
foundations which dominate them. Evil men who would seek to govern
Americans outside the legitimate parameters of constitutional government
cannot easily do so as long as the public remains aware of the powers
of the fully informed jury.
But
of course evil men still do try to control the lives of Americans.
Through the twenty-four decades of American history the Judicial Branch
of government has worn more and more corrupt. Today’s American speaks
freely of “legislating from the Bench”, especially in the wake of the
recent Kelo ruling. Americans are growing increasingly wary of the
Judicial branch, just as they are of the Executive and the Legislative
branches. Now we know that our due recourse awaits the re-awakening of
the twelve-person jury of our good neighbors and peers, and we know that
we indeed possess a Fourth Branch of government after all.
I shall return momentarily for
some more from former Justice Goodloe’s booklet, but first let us take a
look at some rather acute consciousness which has arisen in answer to
the countless abuses of the superior common law by the Judicial branch
in the United States of America.
Those who hold “Judge Jobs”Above, we’ve seen that history and our nation’s own founding legal documents exist to secure our rights, including our rights to freedom of religion, freedom of speech, and the freedom to peacefully assemble. Without those rights the United States, I declare, would not have become the great nation our families have come to enjoy. Such basic unalienable rights are rights which cannot be granted or given by any earthly government, but are inherent rights which were so valued by this nation’s founders as to be preserved forever in the first Amendment of the United States of America Constitution.
In other words, this Federal government was created in part to protect rights which predate governments, to protect rights which are present in each soul at birth and are inherent in the individual citizen. The government was not invented to give us those rights. No state or government, being man-made creations, may legitimately hold ultimate authority over the individual human soul and each soul’s inherent, unalienable rights. This nation’s founders in consensus agreed that those rights are borne to each new person by virtue of his passage through the bone gates of birth. Our lawful government was created to recognize and protect our rights, and it is sheer folly and ignorance which would have any American citizen believe that the government gives him his rights. The most powerful document in human history, the American Declaration of Independence, conveys cognizance of that fact, and the Bill of Rights in our own Constitution guarantees it, and by that eternal principle America has thrived.
Shall I repeat it? The U.S. Constitution clearly states its duty to recognize and protect those rights. It does not state that it created those rights, because the men who created the government knew full well that our rights are inherent in the individual, that those rights existed before any government, and that our particular government was created to protect those rights for the individual. Any reading of the U.S. Constitution which would deny that is a reading done in mis-interpretation, in ignorance, or in malice.
Because this point of law is so alien to the programming and conditioning of recent generations of American citizens I repeat and expound yet once again: While it adds a formal legitimacy to our rights, a legal recognition of our rights, and acknowledges that those rights are pre-existing and inherent in the individual, the U.S. Constitution does not propose to “grant” or “give” us our rights. Instead, it simply declares its duty, its obligation, and its responsibility to recognize and protect those rights. This is very important for every American to distinguish today, for the statism which presently is usurping our liberties and freedoms hinges much upon the average American’s ignorance of that fine point. Shall I say it again? Government does not give us “rights” – government was created to recognize and protect our pre-existing inalienable rights.
That said, we now note that American courts almost unanimously use the tactic of instructing the jury to convict if the evidence shows the defendant violated a law. So we must ask why our once-representative court system permits such transgression of the common law.
I must ask: could it be that the “authority” of government is seeking of its own volition and momentum to deepen its grip over the American citizen by such blatant falsehood now issuing from the mouths of judges? Has our court system become corrupt? How wide-spread is that corruption? Does that corruption rise to the top tier of the Judicial branch itself? To look at what is behind my questions here, let us turn now to some writings from the American Jury Institute and the Fully Informed Jury Association, whose national headquarters are located at Helena, Montana: (2)
To the Justices of the Supreme Court of the United States of America:
The questions herein are within the jurisdiction of the US Supreme Court.
The American Jury Institute, and citizens acting on the knowledge conveyed by the American Jury Institute and also with knowledge conveyed by the Fully Informed Jury Association,
seek to obey the law. Because there is no known human ability to obey
an unknown law, we must be informed of the law to obey the law.
Law which is held secret upon citizen
request that it be revealed, if it exists, is thereupon rendered null
and void, without the effect or enforceability of law, by law and the
highest reasoning of law.
Persons holding the duty to reveal the
law upon request, must reveal it as it is written, and certify it as
prevailing above inferior laws, under penalty of law.
Accumulated ambiguities and
contradictions saturate law and its administration in this nation, in
flagrant violation of the prevailing common law, to a current extent
that is repugnant to the rule of written law, and threatens its future.
The judicial industry of lawyers and judges who have seized exclusive
ownership of the law, and rendered it unknowable to fully literate
citizens, at stifling cost to society, indicts the Judicial branch.
Those contradictions are repugnant to the rule of written law, and functionally nullify its effect.
The questions which follow are asked with
the greatest respect for the common law, and the institutions and
persons wisely administering it, as written, for the freedom and
prosperity that the common law secures for future generations.
You are the only prevailing
authority for the answers to these questions as these questions seek to
resolve the entrenched ambiguities and contradictions created on related
record by lower court judges.
If no persons hold the tax-paid duty to
publicly reveal the written law, immediately upon public request, and
certify it as prevailing, under penalty of law, then this nation is not
and cannot be under the rule of law.
The Questions
Question 1: Do each of the instructions
that a court judge might state to the jurors conform to the prevailing
law uncontradicted by any higher law? Note: If your answer to question
number 1 is “yes”, please fully reveal the common law identifying each
of those instructions.
Question 2: May a court judge lawfully
instruct jurors, and thus create demands upon jurors, with any
substitute rendered in place of the highest uncontradicted law itself
which is related to the instruction?
Question 3: Does a court judge hold the
authority to state his personal opinion or advice, with power of office
and implication of authority in law, as instructions that create demands
or the implication of demands upon jurors?
Question 4: May a juror lawfully refuse
to answer any questions relating to the reason for the juror’s decision
regarding a court case?
Question 5: May a court
judge lawfully require, force or intimidate a juror into revealing the
reason for the juror’s decision in regard to a court case?
Question 6: Can a juror
lawfully refuse to answer any questions of judges or lawyers, other than
his name, address and any direct association with the accused, as a
right, and, in so refusing, continue and retain the unprejudiced right
to serve on a jury?
Question 7: In the absence of evidence of
external influence, and when the decision of a juror is purely within
his or her conscience, and in innocent contradiction of a judge’s
instructions which are imposed under implication of a demand of law, is
it possible for a court judge to ascertain the reason for a juror’s
conclusions if the juror refuses to answer any questions asked by the
judge or other government officers?
Question 8: If there is no possible way
to ascertain the reason a juror made his or her decision with respect to
a verdict rendered in a case, from questioning the juror, if that juror
refuses to reveal that reason, are not instructions to the jury, which
would limit any such reasons, merely intimidation, and a statement of
the intellectual inability of a court judge?
Question 9: Does a juror hold the lawful
authority to make a decision of guilt or innocence, based on the
conscience of the juror, in direct contradiction to a court judge’s
instructions to the jurors?
Question 10: If your answer is no, to
question number 9 above, by what authority in what uncontradicted
prevailing common law, revealed and certified as such, is that answer
supported?
Question 11: Is it possible
for court judges, including Supreme Court justices, to make an error, or
to intentionally seek to damage a person, in identifying or applying a
law?
Question 12: Is it possible for a court
judge to make an error, or to intentionally seek to damage a person, in
identifying or applying a law within the instructions to a jury, or in
an oath required of jurors?
Question 13: Does a defendant and counsel
for a defendant, or respondent, in court hold the lawful authority to
inform the jurors that the judge could make an error in the instructions
to the jury?
Question 14: Do all court judges know all of the laws?
Question 15: Have all court judges always applied the correct laws?
Question 16: Have any decisions of any
judges been overturned by higher court judges, to thus prove that some
judges make mistakes in applying the law?
(End excerpted questions from the list of
questions for the Supreme Court of the United States of America by the
Fully Informed Jury Association.)
~
There are more than sixty questions in
the writing project which FIJA shared with me, and each of those
questions inspires new thought and new questions when contemplated, but
for the sake of brevity I have omitted all but the above. Just the few
questions listed above indicate that a valid inquiry would benefit the
American system of justice and serve to preserve and protect the liberty
of the individual American citizen. FIJA assures the judges that: “We seek to obey the prevailing law, and thus request that we be informed of said law so that we may know it to obey it.”
In reading the above broadside by the Fully Informed Jury Association
we note, among other very interesting things, that the legal position
of the twelve-person jury, in relation to its duty before the court, is defined
without stating a definition but instead by simply asking questions.
For that we may thank Ms Iloilo M. Jones of AJI/FIJA and friends. We see
that the twelve-person jury’s legal power to operate within the
jurisdiction of a court of law is not limited to a judge’s instructions
or other limitations such as “Color of Law” and/or “Rules of the Court”.
We see that the twelve persons who constitute a jury are not “officers
of the court”.Therefore we see that any judge who tells the jury that “if the facts and evidence show that the defendant violated the law, you must convict” is simply lying to the members of the jury, and of course that judge is himself committing a violation of law by giving that instruction to the jury. The lovely, liberating, justice-bearing truth is that the jury can judge the law in that judge’s courtroom as well as judging the facts of the case before it.
Our forefathers, this nation’s founding fathers, duly considered this bastion of liberty in creating the United States of America. It is our tradition and it is our Right. Any government employee who would tell any citizen differently is either intentionally lying or is ignorant of the law.
A twelve-person jury holds a unique power which is brought to the American courtroom on behalf of We
The People. By that unique power the entire system of American justice may finally be purged of any corruption which may have been inserted through the personality or preferences or personal perceptions of an individual judge, or through the inferior, contradicted laws which may have been left on any jurisdiction’s law books for whatever reason. By judging of the law as well as of the facts of the case before the jury, the twelve citizens are exercising the supreme power of We The People. It is the people’s check upon the balances of power as arrayed in the nature and structure of American government. It is a vital part of what made America the greatest nation on earth and the stronghold of personal liberty and freedom.
The jury is one of the most important features of our heritage. But now let us look at this from another perspective. As we have been looking into my premise which states that America is under siege from within, we have noticed that the entire public school system has been turned into a massive mind-control device designed to mold and regulate citizen behavior (note: is the power of jury-nullification taught in today’s government-funded schools?); that the entire monetary system has been usurped and placed in the hands of a few elite international bankers and is now being used as a weapon against American social and cultural institutions and traditions; that our entire system of law enforcement has been assaulted to the point that the CIA has become the world’s largest producer, transporter, and marketer of opium and cocaine; that the Supreme Court and lesser court systems operating under the Supreme Court’s ultimate jurisdiction have usurped righteousness at its core by legislating from the bench; that the government’s capacity, whether legal under superior law or not, to issue license has been corrupted into a huge national database of “citizen-consumer” control; that what used to be the people’s U.S. Congress has rolled over obediently to every whim of the Executive; that Christianity itself has been placed under direct siege; that American politics has been subverted into a cesspool of “inter-dependence” within a symptom called international globalism; that in general the defensive (and therefore morally-just) purpose of the U.S. military has been hijacked and reassigned the role of an international police force tasked with protecting American and multi-national corporate trade lanes all around the planet; and numerous other offensive grievances have been laid upon the back of the American middle-class citizen.
Now we are confronted with a phenomenon which might cause Perry Mason to turn in his grave. The individual American’s last line of defense against such usurpations is itself under siege. The twelve-person fully-informed jury is itself under attack by the Judicial branch, from within. That attack is implemented under an invisible flag which among other handles we may call the “good old boys network”. When a man holding a judge job can sit dressed in black above a jury and tell that jury that the facts, and the facts alone, must determine the jury’s concluding verdict, he is lying and he is committing a crime and he is attacking our judicial system. To illustrate that point more clearly, let’s return briefly to former Justice Goodloe’s writings.
~ Begin quoted passages from Justice Goodloe, in the section entitled “The Navigation Acts and the Declaration of Independence”: Continue reading: https://www.oathkeepers.org/the-first-branch/
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