** Court Overthrows Our Constitutional Republic
- J.A.I.L. News Journal
Los Angeles, California May 12, 2001For a beautiful navy blue T-shirt with "J.A.I.L." on the back and www.jail4judges.org large and visible over the pocket, imprinted in a bright yellow-gold lettering, send your check payable to J.A.I.L. for $11.95 plus $4 S&H. (Discounts on volume quantities.) Wear them to your next courthouse function and watch the reaction.
California High Court"Overthrows" Our Constitutional Republic
HIGH COURT REJECTS 'JURY NULLIFICATION'
By Peter Blumberg
Daily Journal Staff WriterMay 08, 2001SAN FRANCISCO - For the first time, the California Supreme Court on Monday affirmed the duty of trial judges to replace jurors who refuse to apply the law in criminal cases.
In the case of a juror who told a trial judge he could not in good conscience vote to convict an 18-year-old of committing statutory rape with his 16-year-old girlfriend, the high court unanimously ruled that the juror violated his oath to uphold the law and was properly removed from deliberations. People v. Williams, S066106Although it has long been recognized that a jury effectively has the ability to disregard, or nullify, the law, Monday's opinion marked the first time the Supreme Court has directly confronted whether trial judges may remove jurors who disclose during deliberations that they will not apply the law as instructed by the court."Jury nullification is contrary to our notion of justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law," Chief Justice Ronald George wrote. "A nullifying jury is essentially a lawless jury."
But in a companion case also decided Monday, the justices warned trial judges not to be too quick to replace a juror who disagrees with his peers on the evidence, even if the other jurors complain that he's not participating in deliberations.In People v. Cleveland, S078537, the court unanimously agreed the trial judge in a robbery case should not have removed a juror who was the lone holdout for acquittal without stronger evidence of his refusal to deliberate. Monday's decision overturned the defendant's conviction.Taken together, the two rulings made clear that jurors cannot be removed simply for disagreeing over the evidence but that they must be removed when they are unwilling to follow the law. Lawyers said they were not surprised by the outcome in Williams because judges have long denounced jury nullification, which was imported into American jurisprudence from English law as a means of protesting unjust laws.Today, debate over jury nullification occasionally crops up in the context of jurors refusing to impose a life sentence under the 1994 "three strikes" law on a defendant found guilty of a minor third felony offense.Prosecutors say Monday's opinion should end any debate over the legality of nullification. "We view it as an appropriate, unequivocal statement by the court
that the rule of law will prevail, that jurors must take the law as given by the trial judge even if they disagree with it," said Deputy Attorney General Karl Mayer.California law has consistently condemned any instruction inviting jurors to reject a guilty verdict if applying the law would lead to an unjust result. In 1998, the Judicial Council adopted a jury instruction that requires jurors to notify a trial judge if any jury member expresses an intention to disregard the law.
Mayer acknowledged that Monday's opinion won't stop individual jurors from reaching conclusions based on their own notion of right and wrong, but it does put lawyers and judges on notice that open defiance of the law will not be tolerated."The jurors take an oath before they consider a case," he said. "If they engage in nullification, the are effectively violating the oath." Emeryville jury consultant Howard Varinsky, who specializes in high-profile criminal cases, said he would never expect an appellate court to approve of jurors disregarding the law. He said good defense attorneys know not even to use the term "jury nullification."
"When we're trying to get a jury to nullify, we do it by appealing to their sense of fairness and their sense of right and wrong," he said. "We never address it literally."One academic expert lamented Monday's ruling, saying that jury nullification is misunderstood as a threat to the power of judges when really it should be embraced as "a mercy plea" that comes into play in only a tiny fraction of cases that involve moral judgments. "What point does the jury serve if the judge tells them what to decide?" said Alan Scheflin, a professor at Santa Clara University School of Law. "All the court did today is say that people should lie to the court, because the fervent jury nullification proponents are going to keep lying. I don't advocate this, but it's as true as night turns to day, as long as they are instructed by the literature to keep their thoughts to themselves."In Williams, 18-year-old Arasheik Williams was charged with violently raping and beating his 16-year-old girlfriend. His trial lasted more than two weeks.
During closing arguments, the defense attorney made a subtle pitch for nullification in reference to the additional charge of unlawful sex with a minor, telling jurors they may decide to "afford a higher justice by refusing to enforce harsh laws."A few hours into deliberations, the jury foreman sent a note to the judge saying that one juror was refusing to follow the judge's instructions. Questioned by Santa Clara County Superior Court Judge Paul Teilh, juror David Kelly said, "I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason." "So you're not willing then to follow your oath?" Teilh asked. "That is correct," Kelly said. The judge then replaced Kelly with an alternate, and the jury convicted Williams.In an unpublished opinion, the San Jose-based 6th District Court of Appeal upheld the conviction. The Supreme Court on Monday agreed the trial judge had good cause to dismiss Kelly from the jury, rejecting the defendant's argument that Kelly was exercising his right to engage in jury nullification. George wrote that just because jurors have the raw power to disregard the law doesn't mean that courts should in any way condone it. "The circumstance that, as a practical matter, the jury in a criminal case may have the ability to disregard the court's instructions in the defendant's favor without recourse by the prosecution does not diminish the trial court's authority to discharge a juror who, the court learns, is unable or unwilling to follow the court's instructions," he wrote.In a concurring opinion, Justice Joyce L. Kennard cautioned trial judges not to compromise the secrecy of jury deliberations by asking overly intrusive questions in an effort to determine whether a juror is refusing to follow the court's instructions on the law.In Cleveland, the other case decided Monday, Los Angeles County Superior Court Judge Richard Romero halted deliberations when he got a note from the jury saying that Juror No. 1 "does not show a willingness to apply the law."The judge questioned each of the 12 jurors privately. The holdout juror insisted he had simply made up his mind to acquit and didn't want to hear details of the case. Romero concluded that Juror No. 1 was "not functionally deliberating" because he would not respond to questions from other jurors about specific facts and details.The Los Angeles-based 2nd District Court of Appeal reversed, ruling that the trial judge prematurely dismissed the holdout juror without showing beyond a doubt that he was failing to deliberate. The Supreme Court agreed. "It is possible that Juror No. 1 employed faulty logic and reached an 'incorrect' result, but it cannot properly be said that he refused to deliberate," George wrote. "Juror No. 1 participated in deliberations, attempting to explain, however inarticulately, the basis for his conclusion that the evidence was insufficient to prove an attempted robbery, and he listened, even if less than sympathetically,
to the contrary views of his fellow jurors."Cleveland's appellate attorney, James B. Bostwick Jr. of Pomona, said the court has provided solid guidance on how trial judges should handle holdout jurors.
"I've had four or five of these cases in just the last two years," he said. "One juror complains about another and then it gets in front of the trial judge and as soon as there's a hint of a holdout, the prosecutor says, 'We ought to get rid of this guy because he's committing misconduct.' I think it's something that needs to be checked and that's why the Supreme Court took this case."The deputy attorney general representing the prosecution in Cleveland was not available for comment.We have on our website an excellent article about J.A.I.L. dated August 13, 1999, written by Peter Blumberg (author of the above article).<Click Here> http://www.jail4judges.org/index/daily.htm(See comments of J.A.I.L. after the below references)
Quotes of prominent statesmen:"I consider trial by jury as the only anchor yet imagined by man by which government can be held to the principles of its constitution." Thomas Jefferson"The jury has a right to judge both the law as well as the fact in controversy." First U.S. Supreme Court Chief Justice, John Jay (1789)."The jury has the right to determine both the law and the facts." U.S. Supreme Court Justice Samuel Chase (1796), and signer of the Declaration of Independence."The people are the masters of both Congress and Courts, not to overthrow the Constitution, but to overthrow the men who pervert it!" President Abraham Lincoln."The jury has the power to bring a verdict in the teeth of both law and facts." U.S. Supreme Court Justice Oliver Wendell Holmes, Horning v. District of Columbia, (1920) 254 U.S. 138."The law itself is on trial quite as much as the cause which is to be decided." Twelfth U.S. Supreme Court Chief Justice, Harlan F. Stone (1941).Essay on Trial by Jury (book):"Government is established for the protection of the weak against the strong. This is the principle, if not the sole motive, for the establishment of an all legitimate government. It is only the weaker party that lose their liberties, when a government becomes oppressive. The stronger party, in all governments, are free by virtue of their superior strength. They never oppress themselves. Legislation is the work of this stronger party; and if, in addition to the sole power of legislation, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are the subject of an absolute government. Unless the weaker party have a veto, they have no power whatever in the government... ." Lysander SpoonerUnited States v. Dougherty:"There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670) discharged the jurors who had acquitted William Penn of unlawful assembly.... The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in the prosecutions under the fugitive slave law.... Even the notable Dean Pound commented in 1910 on positive aspects of 'such jury lawlessness' [n.32 C.R. Pound, Law in Books and Law in Action, 44 Am.L.Rev. 12, 18 (1910): 'Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of the majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.'].... We are aware of a number and variety of expressions at that time from respected sources-- John Adams; Alexander Hamilton; prominent judges-- that jurors had a duty to find a verdict according to their own conscience though in opposition to the direction of the court.... The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. [n.48 See Judge Rifkind's comments in Follow-Up/The Jury, Center Magazine, 64-65 (July 1970).].... The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says." United States v. Dougherty (D.C. Cir.1972) 473 F.2d 1113, 1130, 1132, 1135. (The court uses such terms as "jury revolt" and "the historic role of the jury as a bulwark against official tyranny." See id.1131)United States v. Moylan:"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justify the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the court must abide by that decision." United States v. Moylan (4th Cir.1969) 417 F2d 1002, 1006.Declaration of Independence (excerpts):"...governments are instituted among men, deriving their just powers from the consent of the governed .... But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security."* * *We highly recommend the pamphlet "True or False" by the Fully Informed Jury Association (FIJA) P.O. Box 59, Helmville MT 59843, 1-800-Tel-Jury, or (406) 793-5550. In California, contact JAILer Peymon Mottahedeh, Freedom Law School (714) 838-2896.Here is a good reason for the immediate passage of J.A.I.L. and an uprising public revolt and a call for the removal from the bench of all seven justices of the California Supreme Court. This decision in the Williams case above is null and void, and any affirmance of a void decision is equally void, and may be ignored. An obvious Constitutional concern that this case pretends to shatter is the First Amendment right of any juror to protest any law placed on the books. Such right is fundamental to the founding precepts of our country. It also assails the "consent of the governed," clause, and the principle of a "government of the People. Let's start that revolt with J.A.I.L. -Ron Branson.J.A.I.L. is an acronym for Judicial Accountability Initiative Law
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