Saturday, December 30, 2006

Why Don't the Feds Want This Document Discussed at Fincher Trial?

I have yet to comment on the upcoming trial of Fayetteville man Hollis Wayne Fincher on federal charges of possessing three "illegal" machine guns. Fincher is a "lieutenant commander" in the self-styled "Washington County Militia".

I tend to roll my eyes when I hear about self-appointed militia units. I'd like to have a real, regulated, state guard established, as is allowed now under both state and federal law. This would have a lot of positive effects, not the least of which would be 1) having someone around to fill in for our National Guard when they are sent all over the world, and 2) make it clear that these self-styled militias are superfluous at best.

In spite of that, I was shocked to read about the heavy-handed police-state tactics of the federal prosecutor in the case, Assistant U.S. Attorney Wendy Johnson. Johnson filed a motion to attempt to prevent Fincher and his attorney from making constitutional arguments at the trial! Ron Wood reported in the Morning News that the motion would, "preclude Fincher and his attorney, Oscar Stilley, from arguing matters of law to the jury as a defense. The government believes Fincher wants to argue the gun charges are unconstitutional and that the prosecution must prove an "interstate nexus" for the firearms".

If the constitution is anything more than a scrap of paper, then every citizen should have the right to make constitutional arguments at their trial, whether to the judge, to the jury or to both. The feds are making the case that, "it is the court's role to decide matters of law and to instruct the jury. The jury's role is to then determine and apply the facts to the law as instructed by the court. The jury has no role in deciding legal issues, according to the motion."

How convenient. The feds can destroy major cornerstones in the protections of the Constitution and the right to trial by jury with one handy motion. Now some of you may be thinking that it is dangerous to grant juries the power of "jury nullification" of laws. Perhaps it is, but if you will look closley you will notice that this is not even the real issue here, though the feds are painting it that way. Jury nullification is where the jury on its own decides that the law is an unjust law or should not be applied in a given situation. And a lot of times that is wrong- such as when jury members of one race won't convict one of their own of crimes against a member of another race. But "jury nullification" is not what is at issue here.

(continued- CLICK SATURDAY below and scroll down for rest of article, or if sent straight here just scroll down)

11 Comments:

Blogger Mark Moore (Moderator) said...

The feds claim that juries should not decide "legal issues" is absurd on it's face. Juries decide every day if someone's actions met the legal requirements for a crime. They also wade through a number of laws to determine which law was broken, if any.

What Fincher's team plans to argue here is that since the machine guns were homemade and stayed in-state, the feds can't use the "interstate commerce" clause to make possession of them illegal. The Constitution says "the right of the people to keep and bear arms shall not be infringed". The feds have used another constitutional provision, the federal right to regulate interstate commerce, to make possession of machine guns illegal. That is, except for certain ones manufactured before 1986 and registered with the Dept. of the Treasury (the use of the Treasury Department to register them underlines that the feds are relying on thier right to regulate interstate commerce as their authority for the ban).

In making such an argument, the defedents would not be asking the jury to ignore the law, rather, they would only be asking them to weigh the provisions of the greater law- the constitution- against the federal law. In no way would the jury be thumbing their nose at the law. They would simply be applying the higher law to the case and saying that in a situation where no interstate commerce occurs, the 2nd amendment gives power to regulate arms possession to the states and to the people.

In so doing, the jury would not even be ruling that the federal law was "unconstitutional", simply that it was not broken in this situation where no interstate commerce occured. In other words, they would just be doing what juries do every day.

So the jury would not be deciding on the constitutionality of the law in this case, but I think a jury has every right to do so. Beware when Federal Procescutors say that only Federal judges should be allowed to determine the limits of Federal Power.

Such thinking was anathema to the Founders who believed in a system of checks and balances, and that Constitutional rights were for the protection of all citizens from their goverment.

The odds are slim that they would approve of the idea that only officials of the federal goverment had the power to consider if the constitution limited the federal government. That's crazy.

12:38 PM, December 30, 2006  
Blogger Mark White said...

Mark, here's what you're missing: it has been the established law for decades if not centuries that juries decide only facts, and only a judge can decide what the law is. This is not some new theory that this US Attorney has dreamed up, but only reapplication of a long-standing principle of the common law. "Jury Nullification" is precisely what Stilley is up to -- he wants the jury to show its disapproval of the law by acquitting the guy.

Stilley can make his constitutional arguments to the judge, and if he loses, he can appeal, all the way to the Supreme Court if he wants. It's the job of the judge, not the jury, to decide that question.

1:05 PM, December 30, 2006  
Blogger Mark Moore (Moderator) said...

First of all, thank you for using your real name. I certainly tire of debating people who don't have the intestinal fortitude to put their name on the bombs they toss my way.

I understand that this is how the system has worked, at least for decades, but that does not mean that it is working well. And it does not mean that it is what the Founders originally intended.

When it comes to applying the Constitution to lower law, the more groups that are able to use the Constitution to protect people from government encroachment of civil liberties the better. Courts should be able to decide a law is unconstitutional and refuse to enforce it. Legislatures should be able to make that decision and repeal such laws. Executive branch leaders should be able to make a determination that a law is unconstitutional and refuse to enforce it. And, as a last line of defense for liberty when all branches of government have gone mad, juries should be able to evaluate a defendent's claim that a law violates the constitution and refuse to convict on it.

Nevertheless, even if Stilley takes this approach, they are still not "judging the law", only applying the facts to it, just as they would in any other case. The Constitution is law.

Even if the jury determines Fincher is innocent because the Constitution limits application of the law to INTERSTATE commerce, they are not NULLIFYING the law. They are merely applying the facts to the law and seeing if there is a violation. The law still applies to the entire sphere in which it applies- interstate commerce.

And I notice that you have nothing to say about the absurdity of only federal officials determining what the limits of federal government power are. Is it your position that if the federal government made a law banning the press from criticising government officials that juries would be forced to convict reporters who printed a story about a corrupt congressman?

Suppose a President was able to get the judges he wanted, then dissolved Congress and declared martial law. Is it your position that the ensuing round-up of political enemies for being politial enemies was "legal"? Are juries obligated to convict people because the "facts" are that Fred Smith did indeed spit on the ground within 20 yards of a poster of The President?

3:01 PM, December 30, 2006  
Blogger Mark White said...

Like I said, contrary to your earlier assertion, jury nullification is precisely the issue here. The problem with jury nullification is that it shreds the rule of law -- the idea that government should act in accordance with published, known laws rather than the arbitrary whims of one or more individuals.

The rule of law is strengthened when questions of law are answered solely by judges, whose own decisions are subject to appellate review by higher judges, and all of their decisions are guided by decisions in prior cases. The rule of law is weakened when questions of law can be decided by any random group of twelve citizens, because the inevitable result is a multitude of different, conflicting, arbitrary opinions. The Founders intentionally designed our government to rely on the rule of law, which is why they made the federal government the final authority on its own laws.

In an extreme case -- the hypotheticals you pose, for instance -- jury nullification might be a moral necessity. But this ain't it.

5:27 PM, December 30, 2006  
Blogger Mark Moore (Moderator) said...

"Like I said, contrary to your earlier assertion, jury nullification is precisely the issue here. The problem with jury nullification is that it shreds the rule of law -- the idea that government should act in accordance with published, known laws rather than the arbitrary whims of one or more individuals."

Mark W my assertion was backed up by facts and reason. I explained exactly why they would not be nullifying the law. You are just telling me I am wrong without even attempting to address my arguments. I don't want this to deteriorate into an "uh huh, uhn-gh" type of thing. If you can address my reasons why this would NOT be simple jury nullification then please do so. If not, I will take it you concede the point. Once we figure out whether or not this IS an example of nullification, then we can talk a little more about whether the Founders wanted jury nullification or not.

You say the "rule of law" means that government should "act in accordance with published, known laws". OK fine, but the Constitution IS published, known laws. By not allowing defendents to bring constitutional law into court, the very laws that protect our rights are nullified by federal agents. It would be like arresting a postman for trespassing and ignoring all federal law that made what he was doing on someone's property legal. Suppose the judge just rules that the jury can't consider what federal regulations say about postmen, the jury is ONLY allowed to consider what state laws say about trespassing and local ordinances say about delivering unrequested solicitations. Is that justice, or insanity? There is no "rule of law" if higher law cannot be considered when applying the facts to the laws.

Citizens applying the Constitution to verdicts is hardly a violation of the "rule of law". Each case is supposed to be made relative to the facts of that particular case anyway, and the exact facts will not be the same in the next case. The worst that could happen with what I am suggesting is that people who the government thinks are guilty but who a jury of their peers thinks are innocent could get off. Is that so bad?

What could (and likely is) happen with your way is that the federal government can sytematically violate the constitutional rights of its citizens with impugnity so long as it can get the judges in its employ to sign off on it. The innocent could be imprisoned and their lives ruined! So whose worst-case-scenario is worst?

There is more than one way to undermine the rule of law. An abuse of the rule of law by a jury is limited to the verdict in that one jury. But if the courts set a precedent that excludes constitutional protections from consideration then the rule of law is undermined in a more systematic way. It is better than a guilty man go free on occasion than that many innocent men be unjustly punished and denied their rights.

Thank you for answering my question about the hypotheticals. By your answer it is clear that there are some situations where you feel that it is best that the jury consider ALL law in rendering a verdict. You say that the Fincher trial is not such a situation. But if you accept the prinicpal that it (and I still don't call it jury nullification in this instance) is acceptable in some situations then why be so dead set against the people who are using it in this case? You agree with them in principle that at some point their is a moral imperative and we must draw a line in the sand, but differ only in exactly where that line ought be drawn.

8:26 PM, December 30, 2006  
Blogger Mark Moore (Moderator) said...

"The rule of Law" can only mean that the written law prevails over the will of men, even powerful men. It comes from the concept of "Lex Rex" which means "the Law is King" and is in direct opposition to "Rex Lex" which would mean that "The (will of the) King is Law". So "the rule of law" stands juxtaposed to "the rule of men".

But under your scenario, where judges alone have the sole power to determine "questions of law", the law has no existence outside of the opinion of judges. The law means whatever the judges say it means. Other people, such as juries, are not even allowed to consider what the written law says unless the judge permits them too. This dangerous doctrine puts the law under lock and key, which the judicial class lets in and out only as it sees fit.

For the law to rule (rule of law), the law must have an existence outside the purview of one man, or even a select group. It must be accessable for all to consider when rendering verdicts in courts of justice. What does it matter if the law is written down, if men are not allowed to consider what is written, but only the opinion of a man, when rendering a verdict? Is this not the very "rule of man" which nullifies the "rule of (written)law"?

If juries are to rule on matters of fact then they should be able to rule on matters of law, for what the law says is simply one of the facts to be considered. Juries may ask the judge for his opinion on matters of law as they deliberate, but "what the judge says about this law" is simply one more fact they must take into account.

9:30 AM, December 31, 2006  
Blogger rob_star said...

If we truly lived in a free society, jury nullification would be much more common than it is right now. Hopefully, with the impending deaths of so many conservative oppressors, jury nullification will not be needed for consensual "crimes" but in the mean time it is all we have.

9:57 AM, December 31, 2006  
Anonymous Anonymous said...

So let me get this straight. YOU think that we have a conservative Supreme Court??? You ARE an idiot!!!!! Although we have 4 justices on the Court right now who can actually read and interpret the Constitution correctly (the conservative ones), the other 5 are still very much liberal. And now that the neo-fascists got elected in November, the hopes of getting a Supreme Court who will actually interpret the Constitution instead of make up new laws like it has done before, are gone. But that should make other neo-fascists like you, Rob, happy, right?

4:25 PM, December 31, 2006  
Anonymous Anonymous said...

This Wendy Johnson character is obviously a liberal. No other sane person would want to throw out the Constitution in a court case. Only liberals, who don't like the way the Constitution is written and want to re-write it via judicial fiat, do this sort of thing.

4:26 PM, December 31, 2006  
Blogger Mark White said...

This is my last post on this issue. I only posted in the beginning to defend the US Attorney from your accusation of "heavy-handed police-state tactics" by pointing out that the argument raised by the US Attorney has been black-letter law for centuries.

I'll respond to a couple of points:

First, the question of whether this is jury nullification. There appears to be no serious dispute that the Defenant's conduct violated the plain language of federal law. Stilly says that the federal law and the Constitution conflict with one another -- and that is a question of law, a question that in the American system has always been answered by judges, not juries.

Wikipedia has a good article on jury nullification, which it defines as a jury rendering a verdict in contradiction to the law. Stilley wants the jury to render a verdict in contradiction to the law, because he says the law is unconstitutional. That's jury nullification.

The Wikipedia article is here:
http://en.wikipedia.org/wiki/Jury_nullification

There is also a stub article about questions of law here:
http://en.wikipedia.org/wiki/Question_of_law

> What could (and likely is) happen with your way is that
> the federal government can sytematically violate the
> constitutional rights of its citizens with impugnity so
> long as it can get the judges in its employ to sign off
> on it.

And with jury nullification, the federal government can sytematically violate the constitutional rights of its citizens with impugnity so long as it can get twelve random jurors in its employ to sign off on it. Any system of government will collapse when the law is ignored or rationalized out of existence. The question is, which system will most often produce the most just result?

> But under your scenario, where judges alone have the
> sole power to determine "questions of law", the law has
> no existence outside of the opinion of judges.

The law has no existence outside of the opinion of the interpreting authority, whomever that may be -- judge or jury. Language is inherently imprecise; no matter how detailed a law may be, someone can always come up with a creative interpretation to change the meaning of the language. This is a danger no matter who is doing the interpreting, whether judges or juries. But juries decide only a single case and then cease to exist, meaning there can be no consistent precedent upon which to rely, and meaning also that many decisions will be arbitrary or driven by emotion. When judges decide, there is a better chance of consistency and uniformity in interpretation and application, because the same people are making the decisions in each case. They don't always make the right decisions, but on balance lex rex is best served by having judges decide the law rather than juries.

And going back to my central point, this is not my "scenario," as you put it -- this has been the law of the land for our country's entire history, because we got it from the common law developed by the British. If you don't like it, that's fine -- but don't act as if it is some strange new doctrine developed by shadowy conspirators in the federal bureaucracy.

> What does it matter if the law is written down, if men
> are not allowed to consider what is written, but only
> the opinion of a man, when rendering a verdict? Is this
> not the very "rule of man" which nullifies the "rule of
> (written)law"?

No -- the "rule of law" doesn't exclude human participation, because that's impossible. The rule of law means we are subject to published, easily ascertainable rules, rather than the arbitrary whims of an individual. If juries have the power to decide both law and fact, then I cannot reasonably predict whether or not I will be held accountable by a jury for any particular conduct. You don't have to pay much attention to know how fickle juries can be, and to know that if you put any particular question to a dozen different juries, you might end up with a dozen different answers. That arbitrariness and confusion is precisely what the rule of law seeks to overcome.

To apply this to the present example: if juries were allowed to decide both fact and law, we could only guess whether Fincher would ever be found guilty, even if he admitted to every fact alleged against him, because his guilt would be determined by a random group of twelve people, people who could very well be swayed by emotion, guilt, or hysteria from either side. Fincher himself would have no reasonable way of knowing whether his conduct was illegal or not. But since judges decide questions of law, Fincher has every reason to know whether or not his conduct is illegal -- that is what the rule of law seeks to bring about, and that is why our legal system is structered the way it is.

8:19 PM, December 31, 2006  
Blogger Mark Moore (Moderator) said...

"This is my last post on this issue. I only posted in the beginning to defend the US Attorney from your accusation of "heavy-handed police-state tactics" by pointing out that the argument raised by the US Attorney has been black-letter law for centuries.

I will thank you for giving me the last word then. I stand by my claim that it is heavy-handed and symptomatic of a police-state to try and block defendants from using constitutional defenses at trials. It is completely unacceptable in a nation that purports to be a free society. Back when the population had more confidence in the ability of judges to apply the constitution correctly this would be a non-issue. The judges could be counted on to allow the Constitutional defense about every time. These days, when they ignore blatantly unconstitutional provisions of laws like the so-called "campaign finance reform" and the atrocity of the "Kelo" decision, we cannot be so sure. Not only do they ignore rights that are plainly present, but they are even quicker to invent rights that are not stated!

I am prepared to show, from your own link (http://en.wikipedia.org/wiki/Jury_nullification) even, that our present mess has NOT been black-letter law for centuries, but a state of affairs that has slowly crept in to undermine our liberties and set up a doctrine of judicial supremacy that is not contained in the text of the Constitution nor held by the Founders.

First, the question of whether this is jury nullification. There appears to be no serious dispute that the Defendant's conduct violated the plain language of federal law. Stilly says that the federal law and the Constitution conflict with one another -- and that is a question of law, a question that in the American system has always been answered by judges, not juries.

Your assertion that the in the American system ONLY judges can decides questions of law and that this is the way it has always been is flat out wrong. What’s more, I don’t have to go very far to show you that. I am going to provide quotes from the link YOU GAVE to show you that shortly. Further, the actions of the Fincher team don't even rise to the definition of jury nullification given in the FIRST SENTENCE of the link YOU PROVIDED on jury nullification. To whit:"Jury nullification occurs where a jury, apparently ignoring the letter of the law AND the instructions by the court, and taking into account all of the evidence presented, renders a verdict in contradiction to the law."

So there are two elements here, ignoring the letter of the law AND ignoring instructions by the court. In this case neither element has been met, but the use of the word "AND" indicates that BOTH elements must be met for it to meet the definition of jury nullification FROM YOUR OWN LINK. Just think of the case I could make from my links! But that is unnecessary. The links which you have provided are enough for me to make my case.

Since the constitution is law, the jury would not be IGNORING the letter of the law, but APPLYING it. They would simply be determining where a higher statute limits the application of a lower statute. In such a scenario the law is still valid where it applies. Fincher could not travel to other states with his guns. He could not sell them out of state. If a jury decided the whole law had to go, that WOULD be jury nullification, but since they are only being asked to interpret the reach of the law in light of the constitution’s limitations, it is not strictly jury nullification. The jury would not be maintaining that the law was inherently unjust, they would just be determining the limits of its application.

You seem to feel that if a jury makes a determination on a question of law, it is automatically jury nullification. I guess we could quibble about that forever, but my position, which I can support from your own links, is that even if it is, juries were supposed to have the power for that kind of “nullification” in our system.

The second element of nullification, ignoring a judge’s instructions, has not YET been met, but once again by the words of the definition from your own source TWO elements must be for it to be jury nullification. The judge has not (yet?) told the Fincher team that they cannot make a constitutional defense before the jury. If he does so, I wonder where he gets off doing that? I cannot lay my finger on the article of the constitution or even of federal law which gives any judge the right to exclude a defendant from making a constitutional defense. It is a usurpation that they have appropriated for themselves.

Your argument that "this is the way we have always done it" is not only false, as quotes from your own link will show, but could also be used to defend any lasting injustice.

The fact that what is occurring here is NOT strictly jury nullification, but only an assertion that defendants should have an absolute right to make constitutional defenses to juries, nullifies your claim that the systematic abuses of "jury nullification" would be greater than the potential abuses of a federal court that would systematically forbid constitutional defenses against unconstitutional laws.

You claim: "with jury nullification, the federal government can systematically violate the constitutional rights of its citizens with impunity so long as it can get twelve random jurors in its employ to sign off on it. Any system of government will collapse when the law is ignored or rationalized out of existence. The question is, which system will most often produce the most just result?

What I am suggesting will most often produce the most just result, and it is NOT jury nullification. But even if it were, under my way the state must find twelve ordinary citizens to agree to suppress the rights of their fellow citizens (with the defense attorney having a right to screen out such low-lifes). Under your way the state must only find a judge under its own employ to violate citizen's rights. And you make my point when you talk about "the law being ignored". The constitution is law. You can't make the case that giving defendants the absolute right to make constitutional defenses to juries is a threat to anyone's civil liberties.

They don't always make the right decisions, but on balance lex rex is best served by having judges decide the law rather than juries.

And going back to my central point, this is not my "scenario," as you put it -- this has been the law of the land for our country's entire history, because we got it from the common law developed by the British. If you don't like it, that's fine -- but don't act as if it is some strange new doctrine developed by shadowy conspirators in the federal bureaucracy.


Maybe you should read your own links. Here is what your own link to the Wiki article says about the roots of "jury nullification". I especially want you to look at the part where the jury makes decisions on questions of law rather than questions of fact...
**********************************

"By the late 17th century, the court's ability to punish juries was removed in Bushnell's case involving a juror on the case against William Penn.

In 1670, William Penn was arrested for illegally preaching a Quaker sermon. Despite the fact that the judge demanded a guilty verdict and that preaching the sermon was illegal, the jury in that case acquitted Penn and was subsequently imprisoned, fined, and kept for three days without food or water as a result. Four jurors refused to pay the fine, and one, Edward Bushnell, obtained a writ of habeas corpus. Chief Justice Vaughn, sitting on the highest court in England, discharged the writ, released them, and called the power to punish a jury "absurd".

In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury and six other Anglican bishops of seditious libel.

Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and in 1765, juries awarded £4,000 and £300 to John Wilkes and John Entwick, respectively, in separate suits for trespass against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.

In Scotland Jury Nullification had a profound effect bringing in (or as others believed reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the facts proved the defendant had killed the Earl. However if the jury brought in a "proven" verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts and brought in the verdict of "not guilty" which remains in Scotland to this day.
*********************

Did you get that? Their "ancient right" to judge "the whole case and not just the facts". How did we get here from there? It was not due to anything our Founders did, for here is what the first Chief Justice of the Supreme Court, John Jay, had to say about juries and questions of both fact AND law. Once again this is FROM YOUR OWN LINK....

"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".- Chief Justice John Jay

John Jay’s position is that juries can determine questions of law as well as questions of fact. So I am saying the exact same thing that Chief Justice John Jay said. I agree with him, you don't. And somehow you mysteriously claim that the way it is now is "the way it has been for centuries" despite clear evidence to the contrary. The way we are doing it now is a threat to our freedom. John Adams went further than I or John Jay when he said of jurors, "It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."


I also liked the way the finest mind on our present Supreme Court, Antonin Scalia put it, "Although the Supreme Court has not directly confronted the issue recently, dicta in several opinions by Justice Antonin Scalia seems to imply a strong belief in the importance of the jury, in which the potential for nullification might be thought implicit; juries, Scalia has argued, are "the spinal column of American democracy," Neder v. United States, "function as circuitbreaker[s] in the State’s machinery of justice,".

That is right. Juries are a "circuit breaker" on the state's machinery of justice.

You claim under my scenario a person would never know whether they were innocent or guilty- but I say under your scenario a person would never know whether they could argue the protections of the constitution. They would never know if the constitution could protect them against even the most outrageous and oppressive laws. They would have to assume they were always "guilty". That is a high price to pay for "stability", knowing that the state could always put its boot on your neck even if what you were doing is clearly protected by the constitution. Fincher would know that he was "guilty" no matter what the constitution says. We would all know that we would be "guilty" of whatever the big man of the day said was a "crime". That may be stability, but it is not freedom.

The law has no existence outside of the opinion of the interpreting authority, whomever that may be -- judge or jury. Language is inherently imprecise; no matter how detailed a law may be, someone can always come up with a creative interpretation to change the meaning of the language.

Aha! So I am correct that you believe the law is only what the judge says it means. That is judicial tyranny. If judges were obligated to use the INTENT of the creators of the law as the guide, rather than "how far can I stretch the language to work a new meaning into it" then the imprecision of language is very much narrowed. Still, your contention that the law "has no existence outside of the opinion of the interpretation authority" would make it an absolute imperative that no one authority have sole power of interpretation.

5:36 PM, January 01, 2007  

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