Note: This is the text of an email message broadcast to recipients
everywhere. It introduces them to some of the key issues concerning juries.
You are summoned for jury duty
Relax. Jury summons aren't being issued by email yet. But it is likely
that some day you will receive a summons to serve on a jury. The first
reaction of many people is to seek a way to avoid jury duty. Don't. Our
way of life depends on good people doing that duty.
But during the questioning of jurors, don't admit that you received this
message. It contains information that the legal establishment doesn't want
you to know, information that you need to do your duty as a citizen to
uphold the Constitution.
When this nation was founded, the jury system was made a part of our
system of government. This was done for one main reason: because the
Founders did not trust judges, prosecutors, investigators, and other
officials to administer justice. The jury is the ultimate safeguard of our
constitutional rights, and never before in our history have those rights
been in greater danger.
There are two kinds of juries: trial and grand. In a jury trial, the
jury is the real judge. The "judge" who presides over the trial
is really the president of the court. His proper job is only to control
There are two kinds of trial: criminal and civil. In a civil trial, the
jury decides based on a preponderance of evidence, and a unanimous vote is
not required. In a criminal trial, the jury has the duty to acquit the
accused unless the prosecution proves guilt beyond a reasonable doubt, and
it takes the vote of all twelve jurors to convict. Once acquitted, the
accused may not be retried for the same offense.
A grand jury does not decide guilt. It investigates the facts in a case
and recommends a course of action. The most common issue put to a grand
jury is to decide if there is sufficient evidence in a case to prosecute
the accused. The finding that there is sufficient evidence is called an
indictment, and there is a constitutional requirement that persons accused
of serious crimes must be indicted by a grand jury before they may be
prosecuted in a trial. This is to protect innocent persons from being
prosecuted by corrupt, abusive, incompetent, or overzealous prosecutors.
However, a grand jury can investigate any issue. They have the power to
decide what issues to investigate, the power to subpoena witnesses to
testify before them, and to make any finding or recommendation that they
think their investigation merits. Such a finding and recommendation is
called a presentment.
But most grand juries today don't do their duty the way the Founders
intended they should. They too often serve as rubber stamps for
prosecutors, who often joke that they can "indict a ham sandwich".
Judges and prosecutors prevent private citizens from bringing cases before
the grand jury directly, which is the way the system is supposed to work,
and used to work when this country was founded. Prosecutors will remain
with the grand jury throughout their proceedings, although the grand jury
is supposed to work without anyone else present, unless they request it.
Grand jurors are sworn to secrecy to prevent public knowledge of their
proceedings, but this duty is to the other members of the grand jury, not
to the court. The original system was for grand juries to decide what to
disclose, how, and when. If the grand jury tries to investigate the judge,
the prosecutor, or law enforcement officials themselves, they will often
be dismissed, even though the grand jury, once convened, is supposed to be
able to remain in session regardless of what the judge may do, until it
completes its work.
The constitutional duty of the grand jury is not just to decide on the
cases brought to it by the prosecutors. It is also to investigate cases
that the prosecutors don't want them to consider, cases of official and
high-level corruption, abuse, incompetence, and misconduct. Later in this
message some advice will be given on how you as a member of a grand jury
can get your fellow grand jurors to break out of this improper control and
do your real duty.
But let us turn back to jury trials, particular criminal trials, and
especially trials in federal courts.
In a typical criminal trial, the judge will demand that you promise to "follow
the instructions" he gives you, and he will tell you to consider "only
the facts" in the case, and leave consideration of the "law"
to him. The problem is, in our system of law, the "law" in a
case is also a kind of fact. Judges don't make the law by their decisions.
They only "find" what the law is, based on the original
understanding of the lawgivers. One of those laws, the Constitution for
the United States, and, in a state trial, the constitution of the state,
is the supreme law, which is superior to any statute or other official act
that may conflict with it. Deciding whether a statute or other official
act is consistent with either or both constitutions is not a question only
for a judge to decide. It is also a question for anyone who is involved in
the legal system, especially the jury. If the case against the accused is
based on a statute or other official act that is not authorized by the
applicable constitution, then it is unconstitutional, and you as the jury
have the duty to acquit, no matter how heinous the offense or how evil the
accused might be. Being a bad person is not a crime. The accused must have
violated a specific statute that was in effect at the time and place the
offense was committed, and that statute must be based on powers to make
that act a crime delegated to the constitution.
But the judicial system today doesn't want jurors to consult the
constitution to determine the constitutionality of the case. Try to bring
a copy of the applicable constitution with you, and the judge is likely to
take it away from you, and threaten you with contempt of court if you try
to do it again. You have to ask yourself why he would do that. If he is
complying with the constitution, then why should he care whether you
consider it as well? It is meant to be understood and enforced by ordinary
people. It doesn't require a priesthood of lawyers and judges to tell you
what it does and doesn't mean.
Varieties of Unconstitutionality
There are several ways in which statutes or other official acts may be
(1) It may be contrary to a right guaranteed under the Constitution.
(2) It may not be based on one of the powers delegated to the
government under the Constitution.
(3) It may violate the provisions for the structures and procedures of
government, such as the delegation of legislative or judicial powers to
an executive agency in violation of the separation of powers principle
of the Constitution.
(4) It may neglect to perform some duty imposed under the
(5) It may involve the operation of government outside its
(6) It may not be applied in the way it was intended by those who
wrote and adopted the original act.
(7) It may be vague or incomprehensible to the people who must obey or
(8) It may have been intended to be applied selectively, or have come
to be applied selectively, in violation of the equal protection
provision of the Constitution that all laws must be applied uniformly.
(9) Proper notice of the law or act may not have been given in a way
that would allow people subject to it to become aware of it.
(10) The aggregate of laws or regulations may become so burdensome
that it becomes unreasonable for everyone subject to it to be
sufficiently familiar with it to comply with all of it.
(11) It may have never been properly adopted, or due process may not
have been practiced.
(12) Information needed to make a proper determination may have been
withheld or distorted in a way that is intended to mislead or which has
that effect through negligence.
The judge typically also won't let you have copies of the statutes the
accused is charged with violating. Or books on the case law concerning
those statutes. He also won't let you have the legal pleadings of the
lawyers, the ones that may argue that the court does not have jurisdiction
in the case, or that the statute is unconstitutional, or that the
constitutional rights of the accused have been violated by the way the
case was investigated or prosecuted, or argument in which the defense
attempts to present evidence of government wrongdoing or that other
persons may have committed the offense.
You have to ask yourself why the judge would not permit the jury to have
this information, and whether you can really judge the guilt of the
accused without it.
This is not the way things have always been. When this nation was
founded, juries got all this information. They could even ask their own
questions of the witnesses, or call other witnesses. The present system is
Judges have a lot of power over lawyers, and not just in the courtroom.
They now forbid defense lawyers to inform juries that they have the right
and the duty to decide the law as well as the facts in a case, and
threaten them with jail for contempt or with disbarment if they try, so
that they could no longer practice law. They can also prevent
court-appointed lawyers from being assigned cases, which can be important
to their income. Never forget who pays for court-appointed lawyers, and
then ask whose interests they are really serving when they represent a
You have to ask yourself what kind of judicial system is it that forbids
lawyers from informing juries of their rights and duties, even while
admitting that they have those rights and duties. Does it make sense that
juries will do their duty better if they don't know what it is?
Judges and prosecutors have been trying to control juries ever since the
jury system was established, and they have gotten pretty good at it. The
schools today don't teach people how to counter this kind of manipulation,
although they once did, in the early days of this nation. Now we have to
teach one another the best way we can.
This kind of manipulation arose out of an 1895 U.S. Supreme Court case,
Sparf v. U.S. The accused appealed on the grounds that his lawyer
failed to inform the jury of their duty to decide the law as well as the
facts in the case. The ruling was that it was not a reversible error to
fail to so inform them. It was considered common knowledge. But ever since
then, by the "logic" judges are fond of, they have taken that
decision as a license to forbid lawyers from informing juries of their
duties. You don't have to be an expert in real logic to figure out that
The most serious violations of the U.S. Constitution today are being
committed by federal judges and prosecutors. Most people are not aware of
how bad it has become. They see an accused being prosecuted in a federal
court and think everything is okay. After all, if the guy did it, what
difference does it make whether he is tried in federal court or in state
court? Let the federal government spend the money. Well, it makes a lot of
The key to understanding this problem is the question of jurisdiction.
Jurisdiction is territorial. The U.S. Constitution is fairly clear on
this. It delegates to the U.S. Congress fairly broad powers, including
powers to adopt criminal laws and prosecute people for violating them,
over what we can call "federal territory": parcels of land which
are ceded to the jurisdiction of the U.S. Congress by an act of the state
legislature. This includes the District of Columbia, certain enclaves for
things like military facilities and federal buildings, coastal waters,
U.S.-flag vessels at sea, and the grounds of U.S. embassies abroad. It
used to include all the territory that hadn't been admitted as states yet,
but there isn't much of that left.
However, except for those ceded parcels, very few powers were delegated
to the national Congress to adopt or prosecute criminal statutes for
offenses committed on state territory. Originally, the national government
had criminal jurisdiction on state territory for only four classes of
offense: counterfeiting, treason, piracy and felonies on the high seas,
and offenses against the laws of nations. Offenses against the laws of
nations meant things like war crimes, attacks on embassies and
ambassadors, plundering of shipwrecks, and attacks against foreign nations
without the authority of a declaration of war or other authorizations
called "letters of marque and reprisal".
After the Fourteenth Amendment was adopted, authority was delegated to
the national Congress to adopt criminal statutes for a fifth subject:
against deprivations of civil rights by government agents.
Except for pirates, the only authority the national Congress has to
adopt criminal statutes for offenses committed outside the territory of
the United States is for offenses committed by military personnel and
militia personnel when in federal service. It has no such authority over
U.S. private citizens.
It is also an ancient principle of law, which we inherited and made part
of the Constitution, that an offense occurs where the offender was when he
did it, not where the effects of his action take place. If a Canadian
fires a gun from Canadian soil and kills an American standing on U.S.
soil, it is Canada or one of its provinces, not the United States, or the
state where the victim died, which has jurisdiction over the offender. It
shouldn't be difficult to see why this principle has to be followed, and
what a legal mess would result if it were not.
So, you might ask, how could the federal government be prosecuting all
these crimes it does in federal court, on federal charges? Surely if that
were unconstitutional, their lawyers would raise the issue that the
statutes were unconstitutional and the cases would be dismissed, right?
Well, once in a while a judge will comply with the Constitution and do
that, but most of the time, even if the lawyer challenges the
constitutionality of the statute, the judge rules against him. In a few
rare cases, the case might be overturned on appeal, but not very often.
What has happened in this country is that a political faction, which
dominates both of the two main parties, has gained control over all three
branches of government, the legislative, executive, and judicial, and is
adopting and enforcing whatever statutes they want, without regard for
whether they are constitutional. Once in a while they will try to pretend
there is constitutional authority for such statutes. The most common way
they do that is to cite the "commerce clause" granting authority
to Congress to "regulate" "commerce among the states",
and arguing that everything that "affects" commerce is included
in "commerce" and that criminal penalties are "necessary
and proper" powers under that clause. This is contrary to the
expressed intent of the Founders, for whom the power to "regulate"
did not include the power to "prohibit" and it did not include
the power to prosecute criminally, only civilly, that is, to impose fines
and loss of privileges.
In most cases, this Establishment will just win a case against a weak
defendant, then cite that bad precedent as authority for doing more of the
same against other people. Law schools don't even teach the original
intent of the Founders of the Constitution anymore. They just teach the
precedents, many of which are bad, and built on other bad precedents.
That is the way governments accumulate power. And a lot of that is
popular with people who don't know any better. They want the government to
"do something" and don't always think about how if they let the
government exercise powers that haven't been delegated to them, sooner or
later we will lose our rights and freedoms.
You may have heard about "jury nullification". You may have
heard it discussed in the context of blacks refusing to convict blacks and
whites refusing to convict whites, but that is not jury nullification, and
it is wrong. Jury nullification is voting to acquit because the court
lacks jurisdiction, or the statute is unconstitutional, or is misapplied
in that case, or because of misconduct by the judge, prosecutor, or
police, or the rights of the accused have been violated. In other words,
it is doing what a judge is supposed to do, but which too few of them do.
Remember, in a jury trial, it is the jury who is the real judge, both of
the law and the facts.
After all, if we have juries because judges can't be trusted, then why
should we be able to trust them to be the only ones who rule on the law?
We can't, and you shouldn't. They will impress you with their learning and
bearing, but don't be fooled. The government employs the best actors money
can buy, and many of them are quite good at it. Persecutors and police
even have a name for what they often present: "testilying". Many
state trials and most federal criminal trials today are unconstitutional,
and you can't trust what any of them say or do.
You need to take special care in political cases. Watch out for
prosecutions of whistleblowers, investigators, political reformers and
dissidents, or cases in which the law enforcement agency involved may be
under heavy pressure to get a conviction. Political activists do get set
up and framed, and ambitious prosecutors are not above convicting persons
they know to be innocent for their own reasons. That is not to say that
political activists don't sometimes commit crimes, and when they do they
should pay the price, but sometimes it is a way to silence them. Learn to
watch for clues to the real agenda of the prosecution.
If you find yourself on a grand jury, your first job is to break free
from the control of the prosecutor. Invite the other members to meet with
you at a good all-night restaurant in the area that has private meeting
rooms. Then start informing them of their duty to investigate wrongdoing
that the prosecutors might not want investigated, and take cases directly
from the public. In most communities there are activists who are aware of
what is going on, and who have a lead on cases that need to be considered.
Track them down and ask them to present their cases or to testify. When
you get the support of the majority of the grand jury, start demanding
that the prosecutors leave the room, and to ask your own questions. If he
refuses, threaten to indict him for prosecutorial misconduct, tampering
with the grand jury, and obstruction of justice. If the judge gives you
trouble, you may have to threaten him the same way, but in his case it
would be for judicial rather than prosecutorial misconduct. Go to a law
library and read everything they have on grand juries. If you are asked to
bring an indictment against someone, ask questions about the strength of
the evidence, and if you have any suspicions, subpoena the accused to get
his side of the story.
If you find yourself on a trial jury in a criminal case, especially in a
federal court, you need to research the Constitution and the laws
applicable to the case. You will be instructed not to do that, but do it
anyway. Your duty to the Constitution overrides any promise you make to
the judge. If the judge and the prosecutors are lying to you, that may
make it necessary to deceive them and to violate the instructions of the
court in the cause of justice and constitutional compliance. It is sad
that it has come to that, but it has. If the jury is not sequestered, that
is, if it is allowed to go home in the evening, then visit a law library
or legal resources on the Internet. Don't go to the local law libraries
where someone might see and recognize you. You may need to go some
distance away to avoid detection. Study the Constitution for the United
States. You should even try to memorize it. That may be the only way you
can get it into the jury room. Compare the charges against the statutes.
Sometimes they don't match. The accused may be charged with "crimes"
that aren't. You won't get to read the legal briefs filed in the case, but
you may be able to find legal briefs filed in similar cases that can give
you some idea of the legal issues in the case.
There are ways you can introduce questions that need to be asked, and
may not be asked by either side in a case. You will need to pass them to
the judge, and he may not ask them, but how he handles them can provide a
clue to what is going on. For example, in a federal criminal case, you
might ask for evidence that the accused was standing on federal territory
when he committed the offense. If not in the District of Columbia, they
need to come up with the record of an act of the state legislature ceding
jurisdiction. A general cession of anything the federal government might
purchase won't do. It has to be a specific parcel. There should also be a
deed. If the prosecution can't prove where the offender was when he
committed the act, then they don't have proof beyond a reasonable doubt.
And don't worry that acquitting an offender in federal court will let
him get off. If it is state court that should be trying the case, the
state can still do that, and they are the ones that should.
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