Bob Black – FIJA
The Anarchist Library
Subtitle: Monkeywrenching the Legal System
Notes: Mike Hoy of Loompanics suggested the subject of this article, which was published in a Loompanics catalog supplement. A revised, greatly enlarged “academic” version has been accepted for publication by a law journal.
Source: Retrieved on Sept. 13, 2022 from: http://www.spunk.org/texts/writers/black/sp001673.html
You are a juror. These are the facts:
A young man is permanently paralysed from the neck down in a motorcycle accident. He is in unspeakable agony which will continue for the rest of his life. He begs his younger brother to kill him. The brother does, as he later explains, out of love. The charge: first-degree murder. What is your verdict?
An unemployed black teenager, raised in a fatherless welfare family, robs a liquor store. When the white proprietor draws a gun, the startled youth shoots and kills him. The prosecutor asks for the death penalty. The charge: first-degree (felony) murder. In this Southern state, the jury determines guilt or innocence, but the judge sets the penalty. You know that it is more than twice as likely that a black who has murdered a white will be sentenced to death than if his victim were black. What is your verdict?
A wife has suffered years of violence at the hands of her husband, a foreign-born physician. One morning, after beating her, he threatened her with a gun and ordered her out of the house. When he put the gun down, she picked it up, shouting that “I am not going to leave you, I mean it,” and shot him to death. The charge: second-degree murder. The defense: self-defense. What is your verdict?
A cocaine addict becomes a dealer in order to support his habit. During a traffic stop, police discover 1.5 pounds of cocaine. The charge: possession (not possession with intent to sell) of more than 650 grams of cocaine. In this state — and in this state alone — the penalty for this offense, even a first offense, is mandatory life imprisonment without possibility of parole. What is your verdict?
A college student publicly announces his refusal to register with the Selective Service System. A libertarian, he believes conscription is a violation of natural law and his natural right of self-ownership of his person. As a male between the ages of 18 and 26 he is, nonetheless, required to register. The charge: nonregistration (a felony). What is your verdict?
If in every one of these cases your verdict is “guilty,” you were — legally — absolutely right. And you are everything the law requires of a good juror: a good soldier who is “only obeying orders,” as the Nuremberg defendants used to say. In a jury trial, the orders are known as “instructions.” The judge informs the jurors what he considers the applicable law to be, and tells them to apply this judge-chosen (and often judge-made) “law” to the “facts.” Not all the facts, though — just the ones the judge allows the jury to “find” — facts filtered through the world’s most complex rules of evidence by (guess who?) the judge. No juror, for example, ever gets to ask a witness a question she considers “relevant” and “material.” Nor may she make use of any facts about the case (even if they are relevant) learned out of court. Indeed, had it been known she possessed any such information, she would not have been allowed to be a juror at all. Even some information the jurors did acquire in court they will be, again, “instructed” to ignore if it was something the judge thinks the witness should not have said.
Thus, trial by jury as the judges envision it today is a black box set-up. The judge-given law is the box. The judge-filtered facts are put into the box. The verdict (and, in about 13 states, also the sentence) comes out of the box. But if this is all there is to the jury’s role, trial by jury is obviously a costly, inefficient anachronism; no wonder the rest of the world has largely done away with it. The judge might as well “find” the facts himself, as indeed he does in the “bench trials” which comprise about one-third of all criminal trials.
Trial by jury would have gone the way of trial by ordeal or trial by battle except for one thing: the United States Constitution. In no less than three places the Constitution guarantees the right of trial by jury in certain civil and criminal cases. Clearly the Founding Fathers envisioned a wider role for the jury than the judges now allow — and the historical record reveals exactly what juries then did and what they were supposed to do.
From the colonial era until well into the nineteenth century, American juries were judges of “law” as well as judges of “fact.” This meant two things. First, juries didn’t have to take the judge’s word for it as to what the law was. This made good sense at the time. Most judges were not even lawyers; most lawyers for that matter were self-taught and less than learned in the law; and the sources of the law weren’t readily available (publication of judicial “opinions” was barely beginning).
Second, and more important, a jury had the right to “nullify” the law — to return a verdict in favor of a defendant even if, on the facts and given the applicable law, he was guilty of a crime or liable for damages in a civil suit. If the jury thought the applicable law was bad law, or ought not to be applied in the particular circumstances of the case, it nullified the law in the case at hand by finding for the defendant. Jurors could, and sometimes did, vote their consciences. Probably not very often. Most jurors don’t, and never did, have any principled objections to laws against murder, rape, robbery, reckless driving and so forth. Most crimes are not, for instance, by any stretch of the imagination “victimless.” And most jurors are not anarchists. But in a legal system otherwise completely dominated by officials and professionals, the jury — a temporary body of citizen-amateurs — still has the power to thwart the state. Here and only here “the people,” not their “representatives” or “public servants,” wield power directly.