Trial by Jury by Jacob G. Hornberger

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....

Trial by jury is one of the essential prerequisites of a free society. As our American ancestors understood so well, it is one of the ultimate safeguards against tyranny and oppression. The famous English legal commentator William Blackstone described trial by jury as the “palladium of our civil rights.”

Why were our ancestors so insistent on enumerating trial by jury among the constitutional guarantees in the federal criminal-justice process? Why weren’t they satisfied with judges’ deciding the guilt or innocence of an accused, as is done in most other countries? Why did they want ordinary citizens to make this determination rather than experienced judges?

There is, of course, the issue of judicial corruption. Lawyers don’t like to admit it but oftentimes judges are corrupt, not only in the sense that they’re formally on the take but simply in their biases toward prosecutors. This is especially true with respect to judges who have assumed the bench after long careers as prosecutors; such judges often partner themselves with the prosecution, either implicitly or explicitly, and issue whatever rulings they can to ensure a conviction.

Jury tampering to secure a particular result is much more difficult to accomplish, especially since the composition of the jury is unknown until the time of trial. The short-term nature of jury service obviously makes it much more difficult for one side or the other to establish a corrupt relationship with one of the jurors.

Another problem with judges is that over time they become like other government bureaucrats – so encrusted with a mindset of laws, rules, and regulations that they are unable to distinguish law from justice. Steeping themselves every day in the law books, regulatory manuals, briefs, memoranda, oral arguments, and court opinions, what becomes foremost in the mind of most judges is simply, Did the accused break the law?

On the other hand, a jury composed of ordinary people from all walks of life is more likely to ask a deeper and much more profound question when faced with whether to permit the government to punish a defendant: Is the crime which he is accused of committing just, and, if not, should the jury acquit him even though it is clear he committed the crime?

There is one important aspect to remember in all this: In every criminal trial, the verdict of the jury is final. That is, no matter how the jury rules, there is nothing either the judge or the prosecutor can do to change or modify the verdict. If the verdict is “not guilty,” the accused walks out of the courtroom at that moment as a free man. Under the prohibition against double jeopardy, the government is precluded from bringing the same charges against him.

A good example of this phenomenon, which has come to be known by the term “jury nullification,” once occurred during the 1960s in my hometown of Laredo, Texas. The feds were prosecuting a man for possession of marijuana with intent to distribute. The man took the witness stand and confessed to the crime, explaining tearfully that he had needed the money because of financial difficulties suffered by his family.

The presiding judge had a reputation for doling out maximum sentences for drug offenses.

The jury, feeling sorry for the man, voted to acquit him. When the jurors returned to the courtroom and announced their verdict, everyone, including the defendant, his attorney, the prosecutor, and the federal judge, was shocked at hearing the words “Not guilty.”

The judge screamed at the jurors, telling them that they were the dumbest people who had ever served on a jury in his courtroom and advised them that their names would be permanently stricken from the federal jury rolls in Laredo.

Nevertheless, the federal judge told the defendant that he was discharged from custody. He walked out of the courtroom as a free man. That is what is meant by the jury’s verdict being final.

Why would our ancestors consider the jury to be one of the last bastions against tyranny and oppression? Because jurors might well decide not to convict their fellow citizens of unjust crimes, while prosecutors and judges would be fixated simply on enforcing and interpreting the laws that Congress enacts.

Blind support of laws

Let’s assume, for example, that Congress enacts a law that states, “Any American of Muslim descent who is caught in possession of a gun shall be guilty of a felony, punishable by a term of 20 years in the penitentiary.”

Would federal law-enforcement officers enforce such a law? Would U.S. attorneys prosecute violators? Would federal judges impose punishments on people convicted of such laws? Might the Supreme Court uphold the constitutionality of such laws under the president’s “wartime” powers as part of the “war on terrorism”?

The answer is “Yes” to all those questions. After all, consider the members of Congress, the FBI, and the U.S. armed forces. How many of them have publicly questioned the Pentagon’s incarceration of American citizens who are labeled “terrorists” or “unlawful combatants” in the “war on terrorism” or the Pentagon’s denial of habeas corpus, right to counsel, and due process to such detainees?

How many of them have questioned the legality of invading and waging a war of aggression against Iraq, a sovereign and independent country that had not attacked the United States?

How many of them have condemned the Pentagon’s continual whitewash and cover-up of the torture, rape, sex abuse, and murder scandal at Abu Ghraib prison?

How many have questioned the Pentagon’s indefinite detention of Iraqis, the unreasonable searches of their homes and businesses and seizures of their property, gun-control measures, curfews, and censorship under the U.S. occupation of Iraq?

Indeed, how many have publicly opposed the sham, kangaroo proceedings that the Pentagon has instituted for the Guantanamo detainees who have been accused of terrorism?

How many have opposed the fact that the judges in those proceedings are also the “jury,” that the main judge is a military officer with close ties to the Pentagon, that other judges on the panel have had virtually no legal experience, and that the government will be permitted to rely on hearsay evidence to secure a conviction?

The fact is that most U.S. soldiers and, for that matter, most U.S. law-enforcement personnel follow orders dutifully and do not question them. There is little doubt, especially if there were another terrorist attack on American soil, given the fear it would generate, that U.S. officials would enforce our hypothetical gun-control law against Muslims.

What would happen, however, if a person were brought to trial for committing such an offense? The jury, being the final determiner of the guilt or innocence of the accused, might well conclude that the law is so manifestly unjust that it decided to acquit the accused. If they did that, that person would walk out of the courtroom a free man even if the evidence established his guilt beyond a reasonable doubt.

One of the big problems in the modern-day federal criminal-justice system is that, unlike 19th-century judges, modern federal judges do not inform the jury of their actual power. Instead, they attempt to convert jurors into potential instruments of tyranny by telling them that they have the power to judge only the facts of a case but not the law under which a person is being tried.

So in our gun-control hypothetical, the judge would tell the jury that its only job is to determine whether or not the accused committed the offense. He would also carefully explain to the jury that whether the law is just or not is no concern of theirs.

An educated and informed jury can reject what the judge tells it because, again, the jury’s verdict is final and there is nothing the judge can do about it. In our hypothetical, if the jurors returned with a verdict of “not guilty” because they believed that a gun-control law against Muslim Americans was unjust, the judge would be powerless to do anything about it. He would have to release both the defendant and the jury.

Some might argue, “But such a power would lead to anarchy!” On the contrary, the power has always existed under American jurisprudence and yet there has never been anarchy in the United States. Moreover, unlike a legal opinion issued by an appellate court, a jury verdict in a particular case provides no precedent whatsoever for other prosecutions brought under that law. Instead, it simply serves as a message to the government from the citizens in that particular case that they believe that the law is unjust.

The great 19th-century lawyer Lysander Spooner provided one of the best summaries ever of the role of the jury in his masterful work “An Essay on the Trial by Jury”:

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 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 the 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.