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SCHOLAR ISLAND |
Juries
"A jury consists of twelve persons chosen to decide who has the better lawyer."
Robert Frost
"...a group of 12 people who, having lied to the judge about their hearing, health and business engagements, have failed to fool him."
H.L. Mencken
"When you go to court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty."
Norm Crosby
"Most Americans do not realize that trial by jury is a relative rarity, not only throughout the world but even in this country."
Karl Menninger M.D.
The Crime of Punishment
"If one proceeds by the light of reason, there seem to be a formidable weight of argument against the jury system."
Glenville Williams
"If a juror feels that the statute involved in any criminal case being tried is unfair, or that it infringes upon the defendants natural God-given inalienable, or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all-for no one is bound to obey an unjust law.
The juror must vote ‘not guilty’ regardless of the pressures or abuses that may be heaped on him by any or all members of the jury with whom he may, in good conscience, disagree. He is voting on the justice of the law according to his own conscience and convictions and not someone else’s. The law, itself, is on trial, quite as much as the case which is to be decided."
Supreme Court Justice Harlan F. Stone
"The man who wants a jury has a bad case."
Oliver Wendell Holmes
"The jury system was the most ingenious and infallible agency for defeating justice that human wisdom could contrive."
Mark Twain
"We have a jury system that is superior to any in the world, and its efficacy is only marred by the difficulty of finding twelve men everyday who don’t know anything and can’t read."
Mark Twain
"The only jury that can be impaneled is one that knows nothing, never heard of anybody, and has no opinions on any subject."
Florence King
"The right of retaliation….properly understood…..is the only principle which…..can definitely guide a public tribunal as to both the quality and quantity of a just punishment."
Plato
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st Chief Justice U.S. Supreme Court 1789
"The jury has the right to determine both the law and the facts."
Samuel Chase U.S. Supreme Court Justice 1796
"The jury has the power to bring a verdict in the teeth of both law and fact."
Oliver Wendell Holmes U.S. Supreme Court
Justice
"The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instruction of the judge."
U.S. vs. Dougherty 473F 2nd 1113,1139 (1972)
"All laws which are repugnant to the Constitution are null and void."
Marbury vs. Madison 5 US (2 Cranch) 137,174,176
(1803)
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona 384 US 436p 4911
"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."
Norton vs. Shelby County 118 US 425 p 442
"The general rule is than an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it."
16 Am Jur 2d, Sec 177 late 2d, Sec 256
"The jury has an unreviewable and unreversible power….to acquit in disregard of the instruction on the law given by trial judge….
U.S. vs. Dougherty, 473f 2nd 1113, 1139 (1972)
"You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
State of Georgia vs. Brailsford, et al, 3 Dall.1
"The system rigidly excludes honest men and women….A minister, intelligent, esteemed, and greatly respected; a merchant of high character and known probity; a mining superintendent of intelligence and unblemished reputation; a quartz-mill owner of excellent standing, were all questioned in the same way, and all set aside. Each said the public talk and the newspaper reports had not so biased his mind but that sworn testimony would enable him to render a verdict without prejudice and in accordance with the facts. But of course such men could not be trusted with the case. Ignoramuses alone could mete out unsullied justice."
Mark Twain 1871
"Older women. Lots of them….With grandchildren. Stable families. No screwing around. No divorces. Kids who got married young. Miami Beach-in-the-winter types. Snowbirds. Italians, Irish, Jews, Greeks, maybe even some WASPs. No black women. No young women, regardless of race. And absolutely no well-educated or well-read people. Not dunces, just not geniuses. And boring lives. No excitement. Their most adventurous trip should be a Princess cruise. No bungee jumpers, or hang gliders. They drive Chevys or Buicks, no BMWs. Boring. Boring. That’s our jury. That’s who we want."
From a novel by Alan Dershowitz
From a transcript of a training videotape made for Philadelphia’s prosecutors by Jack McMahon while he was an assistant district attorney…made in 1987
Case law says the object of jury selection is to get a competent, fair, and impartial jury. Well, that’s ridiculous. You’re there to win. The only way you’re going to do your best is to get jurors who are unfair and more likely to convict than anybody else in that room. If you go in there, any one of you, and think you are going to be some noble civil libertarian, you’ll lose. You’ll be out of office.
In my experience, you look at how people are dressed. If you take middle-class people who are well-dressed, you’re going to do well. Another thing I’ve learned; most people bring a book to court. Look at this book. If a juror is reading Karl Marx, you don’t want that person. You don’t want smart people, because smart people will analyze the hell out of your case. They hold you and the courts up to higher standards. They take those words "reasonable doubt" and they actually try to think about them. You don’t want these people. You don’t want people who are going to think it out.
Let’s face it, the blacks from low-income areas are less likely to convict. There’s a resentment toward law enforcement. There’s a resentment toward authority. You don’t want those people on your jury. It may appear as if you’re being racist, but you’re just being realistic.
In selecting blacks, you don’t want real educated ones. This goes across the board. All races. If you’re going to take blacks, you want older black men and women, particularly men. Older black men are very good. Guys seventy, seventy-five years old are from a different era; they have a different respect for the law. Older black women, on the other hand-when you have a black defendant who is a young boy and they can identify, a motherly type of thing-are a little different. The men don’t have that same kind of maternal instinct.
Blacks from the South are excellent. Ask where they are from. If they say, I’ve lived in Philadelphia five years, if they are from South Carolina and places like that, I tell you, I don’t think you can ever lose with a jury of blacks from South Carolina. They are Dynamite. They just have a different philosophy down there………….
(from a training tape for the city of Philadelphia’s prosecutors made by an assistant district attorney. Jack McMahon)
Trial By a Jury of our PEERS
By Elizabeth Cady Stanton
….(W)e demand in criminal cases that most sacred of all rights, trial by a jury of our own peers. The establishment of trial by jury is of so early a date that its beginning is lost in antiquity; but the right of trial by a jury of one’s own peers is a great progressive step of advanced civilization. No rank of men have ever been satisfied with being tried with being tried by jurors higher or lower in the civil or political scale than themselves; for jealousy on the one hand, and contempt on the other, has ever effectually blinded the eyes of justice. Hence, all along the pages of history, we find the king, the noble, the peasant, the cardinal, the priest, the layman, each in turn protesting against the authority of the tribunal before which they were summoned to appear. Charles the First refused to recognize the competency of the tribunal which condemned him: for how, said he, can subjects judge a king? The stern descendants of our Pilgrim Fathers retried by her liege lord, who has dubbed himself law-maker , judge, juror, and sheriff too?-whose power, though sanctioned by Church and State, has no foundation in justice and equity, and is a bold assumption our inalienable rights. In England a Parliament-lord could challenge a jury where a knight was not empanelled; an alien could demand a jury composed of half his own countrymen; or, in some special cases, juries were even constituted entirely of women. Having seen that man fails to do justice to woman in her best estate, to the virtuous, the noble, the true of our sex, should we trust to his tender mercies the weak, the ignorant, the morally insane? It is not to be denied that the interests of man and woman in the present undeveloped state of the race, and under the existing social arrangements, are and must be antagonistic. The nobleman cannot make just laws for the peasant; the slaveholder for the slave; neither can man make and execute just laws for woman, because in each case. The one in power fails to apply the immutable principles of right to any grade but his own.
Shall an erring woman be dragged before a bar of grim-visaged judges, lawyers, and jurors, there to be grossly unquestioned in public on subjects which women scarce breathe in secret to one another? Shall the most sacred relations of life be called up and rudely scanned by men who, by their own admission, are so coarse that women could not meet them even at the polls without contamination? And yet she shall find no woman’s face or voice to pity and defend? Shall the frenzied mother, who, to save herself and child from exposure and disgrace, ended the life that had but just begun, be dragged before a tribunal to answer for her crime? How can man enter into the feelings of that mother? How can he judge of the agonies of soul that impelled her to such an outrage of maternal instincts? How can he weigh the mountain of sorrow that crushed that mother’s heart when she wildly tossed her helpless babe into the cold waters of the midnight sea? Where is he who by false vows thus blasted this trusting woman? Had that helpless child no claims on his protection? Ah, he is freely abroad in the dignity of manhood, in the pulpit, on the bench, in the professor’s chair. The imprisonment of his victim and the death of his child, detract not a tithe from his standing and complacency. His peers made the law, and shall law-makers lay nets for those of their own rank? Shall laws which come from the logical brain of man take cognizance of violence done to the moral and affect ional nature which predominates, as is said in woman?"
Elizabeth Cady Stanton
From AN ESSAY ON THE TRIAL BY JURY
By Lysander Spooner (first published in 1852)
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.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty"-a barrier against tyranny and oppression of the government-they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
But for their right to judge of the law, and even of the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it cannot only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.
(Trial by jury) was anciently called "trial per pais"-that is, "trial by the country"….
It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, of selection of them, on the part of the government, the jury will be a fair epitome of "the country" at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government (if the government have any opponents), will be represented there, as well as its friends….
It is fairly presumable that such a tribunal will agree to no conviction except as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, "a trial by the country." In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense.
And as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws….except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people (or, what is the same thing, over the accused person, who represents the rights of the people) except as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, "the country", or the people, judge of and determine their own liberties against the government, instead of the government’s judging of and determining its own powers over the people.
But all this "trial by the country" would be no trial at all "by the country", but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial……
….if the government may dictate to the jury what laws they are to enforce, it is no longer a "trial by the country", but a trial by the government; because the jury then try the accused, not by any standard of their own-not by their own judgments of their rightful liberties-but by a standard dictated to them by the government….In short, if the jury have no right to judge the justice of the law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law…..
The question, then, between trial by jury, as thus described, and trial by government, is simply a question between liberty and despotism. The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves….If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit , to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties (as against the government), except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.
The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people…and that to allow a jury, representing the people, to invalidate the acts of government, would therefore be arraying the people against themselves.
….in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws.
Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of these separate tribunals, before its authority can be established by the punishment, of those who transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving jury a veto upon the laws, than there is in giving a veto to each of these other tribunals….
Neither is it of any avail to say, that if the government abuse its power, and enact unjust and oppressive laws, the government may be changed by …the exercise of the right of suffrage….It can be exercised only periodically….Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants. The second will be exposed to the same temptations as the first, and will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the whole, more honest than those that preceded them?….
…..If it be said that the first body were chosen for motives of injustice, that fact proves that here is a portion of society who desire to establish injustice; and if they were powerful enough or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful or artful enough to procure the election of the same or similar instruments to compose the second….
The trial by jury, then, gives to any and every individual the liberty, at any time, to disregard or resist any law whatever of the government, if he be willing to submit to the decision of a jury. The questions; whether the law be intrinsically just and obligatory? And whether his conduct, in disregarding or resisting it, were right in itself? And any law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at random from the people , and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it
The trial by jury authorizes all this, or it is a sham and a hoax, utterly worthless for protecting the people against oppression. If it do not authorize and individual to resist the first and least act of tyranny, on the part of the government, it does not authorize him to resist the last and the greatest. If it do not authorize individuals to nip tyranny in the bud, it does not authorize them to cut it down when its branches are filled with the ripe fruits of plunder and oppression….
The principal objection, that will be made to the doctrine of this essay, is, that under it, a jury would paralyze the power of the majority, and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people.
The answer to this objection , is, that the limitation which would be thus imposed upon the legislative power….is the crowning merit of the trial by jury…..
There is no particle of truth in the notion that the majority have a right to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter….And no more tyrannical principle was ever avowed, than that the will of the majority ought to have the force of law, without regard to its justice; or, what is the same thing, that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right….
(With trial by jury,) all legislation would be nullified, except the legislation of that general nature which impartially protected the rights, and sub served the interests, of all. The only legislation that could be sustained, would probably be such as tended directly to the maintenance of justice and liberty….
In short, government in practice would be brought to the necessity of a strict adherence to natural law, and natural justice, instead of being, as it is now, a great battle, in which avarice and ambition are constantly fighting for advantages and obtaining advantages over the natural rights of mankind.
Lysander Spooner (published 1852)
Book: "Stack and Sway: The New Science of Jury Consulting" by Neil J & Dorit F. Kressel
See article "Moral Credibility as Crime Control" THE ATLANTIC MONTHLY Mar 1995
Contact the Fully Informed Jury Association ph: 406-793-5550
FIJA , P.O. Box 59, Helmsville, MT 59843