Note: U.S. District Court Judge William G. Young labeled me a "rogue" juror in a 43-page court memorandum issued July 25th. I’ve corrected them on my blog.
During jury service earlier this year I sat in a judge’s robing chambers and was asked to take an oath that I expect no juror in American history was ever asked to take before or since:
"Would you be able to set aside your own reading of the Constitution, the judge’s past instructions, and judge the facts based solely upon the judge’s explanation of the law?"
The judge, U.S. District Court Judge William G. Young took 43-pages in a court memorandum last month to call me a "rogue" for not taking this unusual oath.
I’m not always the quickest on my feet, but on the drive home from the courthouse that day I thought a clever reply would have been: "Other than the actual words that are written in the Constitution, what words would you have me substitute when I think of the Constitution?" I wouldn’t have given him such a smart-alec reply even if I had thought of it at the time, though, as I was worried about a contempt of court charge. I stayed polite.
Judge Young’s oath had two parts: 1. Disregard the wording of the Constitution and 2. Follow only the instructions of the judge.
It was an oath to pledge to act as if we are not a government of laws, but instead act as if we are a government of men, respectively. If I had taken the oath, the judge could have said "the law says all Italians are guilty" and I would have been bound to declare the defendant guilty because the defendant was of Italian heritage.
I didn’t take the oath, and was immediately dismissed from jury service.
The scene in the judge’s robing chambers that day reminded me of a passage in Lewis Carroll’s Through the Looking Glass, where Alice is talking with Humpty Dumpty, the latter having just taken words out of context. In other words, Humpty Dumpty was lying:
"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means just what I chose it to mean — neither more nor less."
"The question is," said Alice, " whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be the master — that’s all."
Judge Young’s court presumed a world without an objective reality, just like Humpty Dumpty’s worldview. There’s only my view and his view, and the only question is "which is to be the master." It’s the kind of worldview that C.S. Lewis described as "Men Without Chests." In this world, there can never be such a thing as the law. The law is a third thing, objective and distinct from both his opinion and my opinion. When there’s only his opinion and my opinion in a court, there’s no law, and only politics.
I was dismissed from jury service exclusively for political reasons.
The whole robing room incident started because of a preposition: "among."
The case I was on was a Mafia drug trial, U.S. v. Luisi, and Boston Mafia Capo Robert Luisi had been charged with "possession" of cocaine. I asked the judge how the commerce clause of the Constitution ("Congress shall have the power … to regulate commerce … among the several states") could apply to the Luisi case, as the prosecution in the case did not even attempt to document Luisi had transported drugs over a state line (or, for that matter, conspired to do so). In fact, every fact of evidence presented in the case that related to the drugs took place within Boston city limits. This was not "interstate commerce." It was not even "intra-state commerce." It was "intra-city" commerce. Such were the facts of the case.
I would not have hesitated to have convicted Luisi in a state court of possession charges, nor in federal court of trafficking charges with sufficient evidence. Even if no drugs had actually been transported across a state line, but there was evidence of a conspiracy to do so, I would have voted to convict Luisi.
These were just ifs, however.
Luisi was charged of mere "possession" under the U.S. Constitution’s commerce clause. The limitations of the commerce clause on the ability of the federal government to ban mere possession of drugs is firmly established in history, as the 19th amendment (which Congress felt obliged to pass in order to empower prohibition) gives powerful testimony. Madison’s notes on the constitutional convention of 1787 gives even more powerful evidence.
But my primary reason for objecting was not the history, but rather the meaning of the word "among." I had to memorize prepositions back in 7th grade, and "among" was one of them. I know the definition, and a review of various dictionaries after the court case confirmed that "among" is not a synonym for "within."
Young did not take the trouble to correct me on my understanding of the word "among." He did not consult any "third thing" to prove a fact, such as a dictionary or historical record. There’s no need in a Humpty Dumpty world. It’s only his view and my view, and the only question was who was to be the master.
Young did not take the straight-out liberal view that the commerce clause was a "do whatever you want clause," though in his Humpty Dumpty worldview of words it wasn’t much different. It means what he wants it to mean, nothing more and nothing less. He asked me if I thought courts had sometimes "gone too far" in being liberal with the commerce clause, citing the Lopez gun case. Young is a Republican appointee, and therefore supports the Second Amendment at least in part. Thus, using the commerce clause to ban guns is "going too far."
How far was "too far," he never said. Nor did he have to. "Too far" was further than he wanted, or perhaps further than higher courts wanted. The actual wording of the Constitution has no effect on the limitation of the clause, as far as Young ever established in the court record.
Again, it’s only a question of who’s the master.
The ironic thing about the Luisi case is that Young actually did a better than average job of explaining the law in the case, right up until the jury started to deliberate. After that, he made entirely political — as opposed to legal — arguments and engaged in persistent jury tampering from the bench. As a result, the defendant did not receive a fair trial in this case.
Judge Young’s memorandum does say a few helpful things about the proper role of judges. He appropriately quoted Marbury v. Madison, noting that it was the "the province and duty of the judicial department to say what the law is." Where he goes wrong is when he starts saying things like jurors are "not free to determine any constitutional questions about the law." Just because it’s the judges’ responsibility to say what the law is, it does not follow that no one else can say what it is. Admittedly, only judges and lawyers have the training to read the complex statutes coming out of Congress. These statutes need an "interpreter," to use one of Young’s favorite words, because much of what Congress puts out looks like a foreign language.
But the Constitution needs no such “interpretation.” If there’s doubt, we have both dictionaries and historical documents to consult to clear up any doubt. The Constitution was written in simple, declarative English language sentences by farmers. It was written in our name, “we the people.” Not only does Young’s view belie the first three words of the preamble of the Constitution, “We the people…”, but his philosophy essentially charges every social studies and civics teacher across the country with conspiring to make their students ineligible for jury service.
Juries cannot judge the law, Young says, even though he makes all jurors who enter his courtroom swear an oath to judge the u201Cfacts and the law.u201D Just how wacky Young is on this measure was revealed in his memorandum where he took pains to explain that the jury didn’t have the power to consider the First Amendment in the Callender trial under the Alien and Sedition Acts. James Callender was a newspaper editor who criticized President Adams in print, and the Alien and Sedition Acts had — in a clear violation of the First Amendment guarantee of freedom of the press — criminalized criticism of the President. Why couldn’t the jury consider the First Amendment? Because the judge had told them not to, of course. The opinion of the judge is all that matters to Young, not the clear and unequivocal wording of the U.S. Constitution.
During the trial, Young stated repeatedly that jurors can’t judge law but can only judge facts. But that doesn’t make any sense. Jurors are charged with rendering a verdict of either "guilty" or "not guilty." How can a fact be "guilty"? How can a person be "not guilty" of a fact? Isn’t it more accurate to say that a person can only be guilty of law-breaking? "Guilty" and "not guilty" are moral terms; they imply a right and a wrong. "Facts" are neither moral nor immoral. Facts are either true or false, but true or false does not imply a moral principle. Juries must judge the law as well as the fact, which is why the federal oath of jury service requires them to judge both with guidance from a judge. This was true even in Young’s courtroom up until he made me swear a second oath.
Young usurps any meaningful function from juries. In fact, Young’s memo depicts juries as nothing more than props designed to give some pretended legitimacy to courts. In his words: "Juries have established district courts’ authority to u2018say what the law is.’" Indeed, if judges can legitimately instruct juries to enforce congressional bans against newspapers criticizing public officials, as Young clearly said they can, then juries are nothing more than stage props for pretended legitimacy.
I agree with Judge Young that it is not healthy to have juries “nullifying” laws. I agree completely with his words that "no citizen is above the law, and none is free to make his own law." Jurors are required to uphold all law, even laws they don’t like. I would stress that Young’s dictum applies even if the citizen is wearing a black robe and sits at the head of a court.
I am against the type of "rogues" Judge Young describes in his memorandum, the kind of people who ignore their oaths to judge the "facts and the law," throwing the law to the wind to substitute their own political agenda. But as a whole, the handful of "rogues" across the nation are far less dangerous to the rule of law than Humpty Dumpty judges.