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What's Wrong with Juries

December 1, 2003

Martha Stewart goes on trial in January for allegedly lying about committing the imaginary crime of outsider trading. All that stands between her and oblivion is a jury of twelve citizens drawn from the liberal-Democratic Southern District of New York. This is an opportune time to review the role of juries in protecting us from tyranny.

For hundreds of years, people have tried various means to limit state power. Not only do these means generally fail but, as Murray Rothbard explained, most of the limitations get turned around and used to justify bigger government:

While throughout Western history, intellectuals have formulated theories designed to check and limit State power, each State has been able to use its own intellectuals to turn those ideas around into further legitimations of its own advance of power. For a New Liberty, rev. ed, p. 64.

Into that category, Rothbard puts the divine right of kings, democracy, and written constitutions. Yet another means of limiting state power was the jury. The power to decide most court cases would be taken out of the hands of government judges and put into the hands of the community, represented by a group of randomly selected citizens.

Obviously, this strategy has not halted the rise of big government. No doubt juries to some extent restrain state power and do achieve justice in particular cases. They have not, however, been able to stop the state from growing to its present height. Juries regularly convict citizens of various victimless crimes such as drug possession, gun possession, money possession (tax evasion) and free trade (smuggling).

Why have juries largely failed in their intended function?  There are some obvious and some less obvious reasons. First, juries have been stripped of their rightful, historical power to judge the law as well as the fact. For example, juries with the power to nullify unjust laws routinely acquitted those charged with violating the Fugitive Slave Law. A jury that must follow the law as explained by the judge, would have been forced to convict the liberators.

Second, juries are now packed with people who make a living from government work or depend on the government for much or all of their income. Expect no sympathy from such jurors in your tax evasion trial. You're what's for dinner.

Third, ninety percent of jurors went to government schools and heard all that propaganda for seventeen years!  Passive submission to a governmental authority figure is imprinted on their brains.

As for the grand juries, it is true that they would indict a ham sandwich. They are a complete joke, totally controlled by the prosecutors whose power they are supposed to curb. In New York, defense lawyers can go into the grand jury room with their clients, but can't say a word to the decision makers. Years ago my father, William J. Ostrowski, then a state judge, got into a battle with the District Attorney about who was to supervise the grand jury.

Although the law specified that the grand jury was a "part of the court," [NY Criminal Procedure Law 190.05] its actual proceedings were held behind locked doors inside the District Attorney's office. When my father announced that the grand jury, according to law, would now meet in court, all hell broke loose and the judicial higher-ups sided with the prosecutors. Thus, the prosecutors have always had a free rein in spite of the law. Since most judges, unlike my father, are former prosecutors, they are not about to change things. They go along to get along.

There is still another reason why juries do not function the way the founders intended. Jurors are drafted. If they don't show up, they can be arrested and held in contempt. Libertarians have frequently objected to compulsory jury duty as a violation of the rights of the jurors. Compulsory jury duty, however, has other ill effects.

Juries are supposed to check the power of the government and government judges. Yet, the jurors themselves are hauled into court by those same judges and remain under their continual and coercive control throughout the trial. They are met at the courthouse door by a squadron of court officers who proceed to subject them to a humiliating search. (When did Americans stop caring about their government treating them like common criminals?) The entire experience of jurors is one of subjugation to the very court they are supposed to counterbalance. Every detail of the trial is controlled by the judge. The jurors must sit in silence and awe from their always lower perch off to the side, a scenario reminiscent of the public school classroom.

When the judge tells them, near the end of their temporary incarceration, that they must follow his instructions on the law, they can only think to themselves, "Why not?  We've had to follow all your other asinine orders for two weeks!"  Stockholm Syndrome sets in. They begin to identify with their kidnappers.

Servile juries generally convict those charged with violating the numerous imaginary crime laws, the enforcement of which underlays the welfare/warfare state. Instead of restraining state power; they often endorse it. Can we now add juries to the list of mechanisms to limit the power of the state that have been perverted into rationalizations for ever increasing tyranny?

Martha Stewart. Good luck in January. You will need it.


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