Thursday, August 7, 2008
Nullification: Last Exit Before Insurrection
The "People's Court" begins its work: Also called the "Blood Tribunal," the National Socialist court didn't permit jurors to interfere in the imposition of "justice."
From Singapore comes the unwelcome news that Gopalan Nair, a blogger who has dual citizenship in the U.S. and Singapore, is on trial for insulting a judge.
This is an unalloyed outrage.
Singapore is an authoritarian city-state notorious for its archaic methods of corporal punishment and its eccentric laws governing "public order." (For instance: Its government enforces both gun control and gum control.) Singapore's reputation for casual acts of despotism that it found itself paired with Iran in -- of all things -- a song by Australia's Little River Band. It's no species of surprise to me to learn that a government of that sort would punish people for criticizing judges.
My outrage is prompted by Nair's priorities. Why would anybody with U.S. citizenship bother to criticize Singaporean judges, when so many American specimens of that disreputable profession are much worthier of abuse?
Oh, so that's Fred Garvin's day job: Federal Bench-defiler William G. Young.
Among that legion of chair-polluting gavel-fondlers, U.S. District Judge William G. Young merits particular attention on account of his recently issued legal Memorandum in the case of United States of America v. Robert C. Luisi.
Luisi, a former capo in the Boston branch of the Mob, was accused of possessing three kilos of cocaine with intent to distribute. The charges arose from a 1999 FBI sting operation involving a federal snitch named Ron Previte. By the time of Luisi's trial earlier this year, the Mafia thug had been in prison for several years owing to a murder conviction.
The trial was nothing more than an exercise in resume-padding for the career-fixated US Attorney in Boston, Michael Sullivan. Of course, it meant stealing the irreplaceable time of those dragooned into jury service, who included my close friend and long-time colleague Tom Eddlem.
An exceptionally astute and principled man, Tom realized right away that the Luisi case, as he later recalled, "related more to career control than crime control." But he was willing to carry out his callings as what the Presiding Judge -- the above-mentioned William Young -- specifically called a "constitutional officer."
And therein lies the problem. Like anyone blessed with the ability to read and understand basic English, and acquainted with the text of the U.S. Constitution, Tom could see that the case against Luisi was entirely spurious, since it didn't involve any kind of activity crossing a state line.
The FBI-abetted drug deal took place entirely within Boston city limits. There was no nexus to "interstate commerce." Even if one agrees (as Tom does, and I do not) that any government should criminalize the sale and consumption of cocaine, the federal government simply had no proper constitutional jurisdiction over this drug deal.
Is this the face of a "Rogue"? Tom Eddlem, the man who knew the Constitution too well to serve on a federal jury.
When Tom pointed out that fact during jury deliberations, a fellow juror informed the judge that a supposedly rogue juror who refused to rule on the facts of the case was threatening a deadlock. This resulted in a special voir dire in which Young upbraided Tom (or tried to, in any case) for trying to exercise judgment "beyond your competency," a charge that would have been more compelling had it been issued by someone displaying minimal competence in the proper use of English.
He also accused Tom of seeking to take "authority that was not given to you" by assuming that his role as a "constitutional officer" (as Young described each juror as he swore them in) involved applying the strict language of the Constitution during deliberations.
Eventually Tom was invited, in effect, to take a second, specially composed oath affirming that he would "set aside [his] own reading of the Constitution, the Judge's past instructions, and judge the facts solely upon the Judge's explanation of the law...." He quite properly declined to be party to this act of jury-tampering under color of supposed authority, and was dismissed.
Now, little Billy Young, in an act of childish spitefulness, has traduced Tom in his judicial Memorandum. In the service of an arrogant and dishonest view of the constitutional assignment of judicial authority, Young's little missive misrepresents Tom's views, lies about his conduct as a juror, treats him to petty, gratuitous insults, and eloquently testifies that its author is unsuited by disposition for the position he occupies.
Much of the Memorandum consists of reheated leftovers from a speech delivered by Young to an audience of fellow robe-wearing miscreants in June, 2007. The epigram of that address was Jefferson's observation, "I consider trial by jury the greatest anchor ever yet devised by humankind for holding a government to the principles of its constitution." Much of it continues in this vein, praising the jury as one of "five classes of constitutional offices," empowered to "check and temper [the] judge...."
Good enough for government "work": FBI snitch "Big Ron" Previte, a key player in the spurious federal drug prosecution of convicted murderer Robert Luisi.
Unlike the other constitutional offices, which exercise delegated power in a fashion restricted by law, the jury represents "direct democracy, the people themselves ruling directly," Young exulted.
As he would write in his 2008 Memorandum, Young referred to the 1817 case of "The William," which arose from a challenge to Jefferson's Embargo Act, to underscore what he considers to be the proper relationship between judge and jury. In that case, a jury ratified the supposed authority of the trial judge to "say what the law is," thereby giving "constitutional interpretation to first-line judges."
Question: Can juries give to judges a power they don't possess?
Question the Second: If judges were dependent on juries for that grant of power, as Young claims, doesn't this demonstrate that judges are inferior to juries in this respect?
As Young pointed out, juries are, in a constitutional sense, independent and co-equal to other permanent constitutional institutions: Congress, the Presidency, and the Supreme Court. All federal courts inferior to the Supreme Court, by way of contrast, have a contingent existence, since they can be created or dissolved by Congress, which has no similar authority over juries. This leads us to --
Question the Third: By what supposed right does a Federal District Judge, whose court was created in 1985 and can be dissolved at any time, accuse a juror -- a constitutional officer exercising power that is not contingent on congressional approval-- of trying to exercise "authority not given to you" when said juror seeks to apply the black-letter text of the Constitution?
What Tom did by taking seriously his duties as a constitutional officer, Young snivels in his Memorandum, was "a form of juror misconduct that could be classified as nullification."
"Jury nullification," for those who understand the origins of our Constitution and care about individual liberty, is the untrammeled exercise of the plenary authority of a jury to rule on both the facts of a case, and the justice of the law being enforced. Not only is ruling on both the facts and the justice of a given law an appropriate function of the jury, it is the only appropriate function. As Young himself pointed out, the jury is an exercise in direct democracy, and as such can take under advisement the recommendation of the skirt-wearing poser who holds a little hammer, but need not be governed by it.
Young seems to believe that jury nullification is running riot throughout our country. If only it were. He blames jury nullification for the supposed fact that "many cases never reach trial because the lawyers do not feel comfortable presenting their case to twelve of their fellow citizens." In fact, many cases don't go to trial, particularly at the federal level, because of the widespread and growing use of what should be called prosecutorial extortion: The extraction of plea-bargains through the threatened imposition of grotesquely inflated prison terms.
According to Young, jury nullification threatens the very existence of the jury system by adding "fuel to the flames of anti-jury sentiment" -- a public sentiment not easily detected by those of us who, unlike Young, aren't trying to defend an indefensible position. Yes, juries are widely despised by prosecutors, who covet the power to consign people to prison without the impediment of a jury. But that's a different problem from the one Young purports to see.
When juries exercise their power to set aside the application of unjust laws, Young whines, this is "misconduct." When judges set aside laws to impose their own views of abstract justice, on the other hand, they are practicing "instrumentalism" -- a conceit that the black-letter law is not binding on the dress-wearing oracles who infest the bench. As one legal analyst points out, instrumentalism means, in principle, that "judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking."
Which is to say that Young embraces judicial nullification with the same fervor he displays in denouncing jury nullification. Judicial nullification, Young asserts, is indispensable to the role judges play in "ordering society." Absent that power, he insists, "the judiciary never could have become a vibrant countermajoritarian force ... [and create] a nationwide system that makes binding constitutional adjudication as close as the nearest federal courthouse."
Without jury nullification, there is no counter-elitist force that can interpose on behalf of innocent individuals victimized by institutionalized injustice. It's clear that Young appreciates this fact, given the unfiltered rancor he displays in writing about the fully-informed jury movement.
"Nullifiers do not openly disobey the law in order to change it," writes Young of those jurors who dare exercise their powers appropriately. "They conspire behind closed doors and cast the law aside at their caprice."
Once again, he is describing the conduct of judges, particularly those in exalted federal appeals courts whose binding constitutional errors stand to be loosed by diligent, informed citizens acting as constitutional jurors.
Mercs, Narcs, and Thugs -- oh my! A scuzzy federal narco-thug confiscates medical marijuana legally grown and distributed to pain sufferers in California. A principled uprising in the jury box may be our final peaceful means of defending the public against people of this ilk.
This could mean sparing a property owner from being imprisoned for his violations of a manifestly unconstitutional federal policy, or a pharmacist from being sent to prison for dispensing medical marijuana to pain-wracked cancer patients in a perfectly legal fashion. Or, as in the case Tom Eddlem had the misfortune to hear, it could mean calling bulls**t on a make-work, garbage-time drug prosecution that fattens the resume of a self-promoting federal prosecutor while wasting the infinitely more valuable time of private citizens trying to make an honest living.
(Interestingly, Tom's views about such drug prosecutions -- if not the constitutional reasoning behind them -- are quite similar to those of Young's colleague, US District Judge Mark L. Wolf, who richly deserves to be pilloried for other reasons.)
Juries are too prone to adhere to what Young calls the proper "division of labor" -- permitting the trial judge to define the "law" and the body of admissible facts, then tugging at their forelocks, and doing his bidding. This is why, even when cases go to trial, injustice is the too frequent result.
It's clear, from the tone of outraged self-righteousness that permeates his sophomoric little screed, that Billy Young seems to think Tom Eddlem was a representative of, or even leader in, a widespread jury nullification movement. This isn't true, of course. But such a movement is desperately needed, and badly overdue.
Absent a rebellion on behalf of justice in the jury box, our remaining alternatives will be submission to despotism or undisguised insurrection.
On sale now!
Dum spiro, pugno!