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An 'unreviewable and irreversible power ... to acquit'

By Vin Suprynowicz
web posted September 2, 2002

I was called for jury duty again July 29. Judge John McGroarty of the 16th Department was attempting to seat a jury for the murder trial of one Daniel R. Jones, who allegedly stabbed his younger brother Steven to death a year ago in a condominium near Owens Avenue and Lamb Boulevard.

Well, to be more accurate, one Daniel R. Jones had certainly stabbed his brother to death a year ago in a condominium near Owens Avenue and Lamb Boulevard -- a jury was now needed to determine whether his act was premeditated; whether it was justified; whether it was an "accident" -- in short, whether this homicide constituted a "murder," in the legal sense, at all.

Twelve prospective jurors were seated in the jury box -- I was one of a stockpile of 30 "extras" held in reserve to replace any of those fortunate 12 who should be dismissed, either for cause or via the peremptory challenges allowed the attorneys both of the state and of the defense.

My fellow jurors-to-be seemed a decent enough lot, but honesty requires me to report that the spectacle of the "voir dire" questioning led and encouraged by Judge McGroarty was pretty pathetic. The defense asked the 12 men and women in the box, "Just because someone has expressed remorse for something doesn't mean they've admitted that they caused it, right?"

Twelve jurors looked confused.

"For example: Just because I say I'm sorry my brother was in a car accident doesn't mean I've admitted I cause the accident, does it?" clarified defense attorney Jennifer Bolton, eliciting agreement by confusing "sorrow" -- which one can indeed feel for events out of one's control -- with "remorse," which actually does designate regret for something one did or failed to do.

Then it was the prosecution's turn. "Is it ever justified to use deadly force against someone who is not, himself, armed with a deadly weapon?" asked Assistant D.A. Marc DiGiacomo.

One after another, 11 jurors agreed that can never be justified. Finally the 12th juror, a woman of middle age obviously more thoughtful and assertive than the rest, replied, "I can imagine a circumstance where a small woman, for instance, is about to be raped. She would have the right to pull out a gun or a knife and say, 'Stop or I'll kill you'; that would be justified."

Like kindergartners hearing an answer they liked better, the other 11 now virtually waved their hands in the air, asking if they could change their responses, too. Here we see another unintended consequence, I believe, of our having become a disarmed nation. Young boys first being taught to shoot the rifle used to receive their first instruction in the appropriate use of deadly force from their grandfathers at the age of 10: Yes, if someone is about to kill or seriously harm your mother or your sister, you should shoot them. No, you cannot shoot someone because you're angry that he stole your bicycle.

Yet in America today, apparently 11 citizens out of 12 can reach their 40s or 50s (the average age of my fellow jury panelists last week) without having ever seriously contemplated the circumstances under which the use of deadly force is justified. (Mind you, women are every bit as capable as men of learning these lessons, at the same time they learn the use of the gun. Those women who have thought long and hard on when they would be justified in using their own knives or firearms to take a life are certainly qualified to sit on a murder jury. Those who have not, probably should not.)

"No one here would want to legalize any drugs?" asked prosecutor DiGiacomo. Only one juror in 12 raised his hand -- in a state which has overwhelmingly voted to legalize medical marijuana, and where two of the most addictive drugs known to man -- alcohol and tobacco -- have been legal for decades.

Immediately regressing to the behavior of schoolchildren picking on a kid who's given the "wrong answer," many of my remaining 40 companions laughed out loud at this poor fellow's obvious faux pas.

But in the most insulting part of the proceedings, Judge McGroarty asked every prospective juror to enter the box "And will you promise to obey any instructions in the law I may give you, even should you disagree with one or more of them?" Every nodding little lamb (I never made it into the jury box for questioning, being the 24th alternate) agreed to thus betray their most sacred duty as a juror. One correct answer, for the record, would be to respectfully instruct our servant and employee, the tax-salaried judge:

"The honorable court may wish to review the words of Founding Father and second president John Adams, a quite notable attorney of his time, who said in 1771: 'It is not only (the juror's) right, but his duty ... to find the verdict according to his own best understanding, judgment, and conscience, even though in direct opposition to the direction of the court' (1771 2 Life and Works of John Adams, 253-255 -- C.F. Adams ed. 1856.)

Any juror modestly well educated in his duty would then add: "And if by some mischance the honorable court should somehow retain the misguided impression that this doctrine does not still prevail at law, I respectfully further advise and instruct him to consult U.S. vs. Moylan, 4th Circuit Court of Appeals 1969, in which that court - far more elevated than this one -- held '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. ... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified 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.' " (417 F.2d 1002, 1006)

Whereupon, the next juror to be asked the same insolent question would patiently refer the ignorant trial judge to the ruling of the D.C. Circuit Court of Appeals in the 1972 case U.S. vs. Dougherty, in which that higher court ruled that all juries have an "unreviewable and irreversible power ... to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon 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 prosecutions under the fugitive slave law." (473 F.2d 1113, 1130)

Whereupon the third juror, should this nonsense continue, could add the words of U.S. Supreme Court Justice Samuel Chase, giving his charge to the jury in the treason trial of John Freis (9 F. Cas. at 930): "It is the duty of the court in this case, and in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide on the present, and in all criminal cases, both the law and the facts, on their consideration of the whole case."

Since enforcement of the murder statutes are hardly a matter of current political debate, Judge McGroarty's question was completely unnecessary for this panel, of course. Rather, the reason it's vital for jurors to understand this power inherent in any system of citizen juries is because more than one American in 12 already opposes all gun and drug laws.

Convictions for any such invented "crime" will thus immediately become impossible as soon as all citizens have been apprised of their full and proper jury powers, and refuse to cooperate any longer in this kind of intrusive "voir dire" -- a French term for stacking juries so as to contain only those citizens who have sworn in advance not to consider whether the underlying statute is constitutional. Think how that would clear out the current backlog of the courts, allowing cases involving real crimes -- like murder -- to be dealt with far more promptly.

In the end, all 40 of us were dismissed -- someone forfeited or withdrew the bail bond, apparently, and the defendant had to be re-arrested and taken into custody when he left the courthouse that afternoon. This was witnessed by some of the prospective jurors, and some appeals court somewhere has previously reversed a murder conviction because the jurors had seen the defendant in handcuffs. (As though any jury of adults couldn't figure out that a murder defendant had probably been arrested and handcuffed at some point in the proceedings.)

So, after wasting a full day of the court's time, and that of the prospective jurors, and of the attorneys (who I expect will not refund their fees), the honorable court was stuck starting all over again the next day.

Where again, I'm sure, Judge McGroarty inappropriately demanded that each prospective juror do what he himself would never consent to do (commit himself in advance to how he will judge the law or its application in a specific case), asking: "And will you promise to obey any instructions in the law I may give you, even should you disagree with one or more of them?"

Vin Suprynowicz is assistant editorial page editor of the daily Las Vegas Review-Journal and author of the books "Send in the Waco Killers" and "The Ballad of Carl Drega." For information on his books or his monthly newsletter, dial 775-348-8591; write 561 Keystone Ave., Suite 684, Reno, NV 89503; or visit Web site http://www.privacyalertonline.com.

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