Thursday, March 27, 2008

A Holmesian Juror

"I'm the wrinkle, and I was ejected from a deliberating federal jury on March 13. ... I was thrown out because I refused to take a second oath of jury service that would have required that I suspend my common sense, and even suspend my belief in an objective reality. This second oath would literally have bound me to find the defendant guilty if the judge had instructed me that 'the law says all Italians are guilty.' ... All jurors in federal courts, ... take 'an oath to decide the case "upon the law and the evidence." The handbook then describes: 'The law is what the judge declares the law to be.' I found out later that--even if judges don't take the Constitution literally--they take this last part literally. The actual oath I took as a juror was to decide the case 'according to the facts and the law as the judge presents.' ... The defendant, Bobby Luisi, was a Boston capo in the Mafia who had sold a total of three kilos of cocaine to an FBI agent in 1999. ... The transactions took place within Boston city limits, and the prosecution made no attempts to produce any evidence that anything had ever crossed a state line. ... Judge [William] Young ... told us explicitly: 'You don't have to check your common sense at the door' of the jury room and said we could make 'rational inferences' and draw 'logical conclusions.' ... The other jurors were good people but weren't familiar with the details of the Constitution and under the sway of the philosophy of: 'The law is what the judge declares the law to be.' ... Here's [the question I posed the judge]: 'If 2/3 of the Congress decided in 1918 that they needed to amend the constitution to ban mere possession of a substance (in that case, ... alcohol), where is the constitutional authorization today for the federal prohibition of mere possession of cocaine today?' The judge didn't take to the question well. He said that I got the history wrong. (I didn't). He said that the juror 'had exceeded his authority' in questioning the constitutionality of a law, and reasserted that federal cocaine possession bans were constitutional. He did not cite any constitutional provision in his reply to the question. In effect, he said it's constitutional 'because I say so.' ... Soon we were back in the courtroom--again--and for the first and only time in the case the judge was livid. He said that in 30 years of service on the court he had never heard of such a case or question being on the jury. He said he'd confer with his peers (other judges) on the options, but did say that the jury was properly constituted and the juror, The Wrinkle, was a properly constituted juror. ... Judge Young said something along the likes of 'When you set aside the law and the Constitution for your own preferences, you undercut our whole system of government.' Ummm ... yeah I thought. You would be, if you set aside the Constitution. But what if you uphold the clear and unequivocal language of the Constitution? The judge continued his rant declaring that by reading the U.S. Constitution, 'You are exercising judgement that is beyond your competency.' ... He also said they by judging the law--as he related it to me. ... 'You are taking authority that was not given to you.' ... My view is that the law, as presented by the judge, included the U.S. Constitution. ... It would be illogical to conclude a judge's other instructions supercede the clear and unequivocal language of the U.S. Constitution. ... We don't need to interpret simple declarative English sentences of the Constitution. We can simply read them. ... I explained, 'If Congress felt they didn't have the power to ban a drug--alcohol--in 1918 without amending the Constitution, how is it that the Congress has the power to do exactly the same thing now without a constitutional amendment?' ... The judge was more interested in past court precedents than the actual language of the Constitution. ... Now I know what to say to the next judge who tries to put me on a jury: 'I'm not a qualified juror because I have memorized the U.S. Constitution, read English and believe in an objective reality", Thomas Eddiem (TE) at, 17 March 2008.

Right on TE! I used to be amazed at the arrogance of judges and lawyers who think they have some special competence to read simple words and act as if they are dealing with quantum mechanics, a subject accessible to few. Who are they kidding? I have read plenty of absurd legal decisions. As Finley Peter Dunne, writing as Mr. Dooley in 1896 said, "Even the Supreme Court follows the election returns". What is the consitutional warrant for the Harrison Act?

Oliver Wendell Holmes once wrote, "A jury can bring in a verdict in the eyes and the teeth of the law". That's one of the reasons we have juries, they should be beyond the control of the government. Does anyone remember 1735's John Peter Zenger case? What did the founding fathers learn from it?


Francine McKenna said...

Or you can try this when asked to serve on a drug case jury:

"Jury nullification is a way to fix drug war fiasco

If you are called to serve on a jury and the judge, or bailiff, or whoever, catches you with a copy of this column, quickly stuff it in your mouth, chew it and swallow it. Stomach acid will dissolve the paper and they'll never be able to prove a thing. Take similar action if caught with page 50 of the March 17 Time magazine.",0,634603.column

Independent Accountant said...

Thanks Fran.