[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Sign-in] [Mail] [Setup] [Help]
Status: Not Logged In; Sign In
|
Dead Constitution See other Dead Constitution Articles Title: [LWAN]: It Means Exactly What it Seems to Say My favorite judicial issue is Jury Nullification. That's when ordinary people like you and me, while seated on a jury, decide to find an accused not guilty even in the face of overwhelming evidence against him, doing so out of a conscientious opinion that the law which was broken is immoral and should not be enforced. So I was pleased to have the opportunity to dialog recently with a candidate for Circuit Court Judge on the issue. While no one would appreciate jury nullification in the case of unwarranted assault or cold blooded murder of innocents (which barring a stacked jury in a racially charged society is an unrealistic scenario) there are often cases of morally innocent being charged with violating draconian laws. Historic examples are the Fugitive Slave Act (imposed penalties on those aiding escaped slaves anywhere in the union) and alcoholic prohibition violators of the 1920's. One modern example (my strong opinion) is the laws prohibiting use of medicinal marijuana. Though demonized by many (perhaps in part because the preferred method of administration is by means of inhaled smoke which invokes ghosts of evil tobacco) many seriously ailing patients find it to be a unique source of meaningful relief from their pain and restoring a normal and healthy appetite for food, in addition to suppressing nauseous side effects of perscribed heavy duty pharmaceuticals. Unfortunately, even though courts generally recognize the de facto (unstopable) power of juries to acquit on any grounds they desire, it's become established precedent in relatively recent years that juries are not to be informed that they have such ability, even to the point of denying defense teams right to inform the jury directly. In fact, most judges even inform juries of the exact opposite, that they are only to render a verdict based solely on the evidence and witness testimony, and to disregard any reservations they may have on the morality of the violated law. They declare questions about the legitimacy of the law are for the judge alone to decide. Marylanders are fortunate that Maryland's Constitution incorporates Jury Nullification directly into it's Declaration of Rights, Article 23 which reads in relevant part: (The second portion of this amendment I won't cover except to say that it means a judge may strike down a jury's conviction and declare an accused not guilty if he alone thinks the evidence is insufficient. But he must accept a jury's verdict if it is an acquittal -- a doctrine which is thankfully not disputed by today's courts). "Judges of Law" means just that. Juries may judge a law as good or bad, and if bad may reach a not guilty verdict on that basis alone. It was just a few days before leaving Maryland for Ecuador when I attended a Libertarian Party meeting in Baltimore County. Present were several candidates seeking the party's nomination. One was David Titman, and attorney seeking election to circuit court judge in Howard County (web site http://davidtitman.com). An associate of mine beat me to the punch questioning Mr. Titman, a career attorney, on if he would respect Article 23 and permit juries to judge the law in his courtroom. To his credit, he did say that jury's should be treated as intelligent people able to sort through whatever arguments the prosecution and defense wanted to field, but he stopped short of responding to hypothetical examples. His answer was not exactly satisfactory to me, so Mr. Titman graciously took my email address and responded with some research he conducted on the matter. He sent me an excerpt from the 1980 court case Stevenson v. State, 289 Md 167 with the below note: ---- let me know your thoughts. ---- The full citation is long winded with tons of court citations, so I've made that a footnote. But two references cut to the chase: ---- [...] For example, in Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 (1977), we pointed out that Article 23 "does not confer upon [it] . . . untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case." Id. at 479, 365 A.2d at 553. ---- Judges nowadays use past court cases as guides in rendering opinions, which is what all the interspersed numbers are referring to. Certainly using past cases to glean some wisdom in how to decide present cases is fine. However, the current judicial system has gravely erred in treating tidbits of past opinions as law itself, even when it contradicts the highest law of the land which is the Constitution, which outranks the authority all 3 branches of government combined. So upon being presented with the US Supreme Court decision above which assaulted my favorite judicial subject of jury nullification, I knew I had to do some digging and find out why that court reached this decision that jury nullification didn't exist in Maryland. My bet was that checking the cases cited as authorities would show they were pulled out of context, or the cited cases cited other cases that were pulled out of context. Unfortunately, there were only a couple of Supreme court citations in the case Titman sent me. One was Brady vs Maryland 373 U.S. at 89-90. The others are lower court cases that are difficult to locate even on the web. (So called case-law is so vast you won't find most cases anywhere on the net). But the US Supreme Court addresses the matter of Article 23 directly in the Brady case which can be found here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=373&invol=83 (You may visit the above by clicking this shortcut: http://tinyurl.com/rlewo) Here, Supreme Court Justice Douglas, has this to say about Article 23 in Maryland's Declaration of Rights: The excerpted opinion given above presents the following footnote in support: I expected these to be court cases, but with titles "Maryland's Antique Constitutional Thorn" and "Juries as Judges of the Law: Should the Practice be Continued", I gather they are much closer to essays. Whatever they are, the United States Supreme Court found them authoritative enough to declare that Article 23 "does not mean precisely what it seems to say" as a matter of law. Not only is it appalling that the Supreme Court would cite an editorial by some lowlife to redefine the plain meaning of a Constitution, but the phase "Should the Practice be Continued" should be a dead giveaway that Article 23 at one time, meant *precisely* what it seems to say! I would like to obtain a copy of these reports or essays but I have not been able to locate them on the web. But I wasn't finished yet. I wasn't satisfied in dispelling the Supreme Courts basis for its claim. I wanted to dig into the origins of the Amendment to find out what the authors had in mind when they wrote it. If it meant something other that what it seems to say, it should be obvious from their debates. Enter www.mdarchives.state.md.us. The earliest mention of juries as judges of law as well as of fact I was able to locate was from the Constitutional Convention of 1850. This citation is at: http://www.mdarchives.state.md.us/megafile/msa/speccol/ sc2900/sc2908/000001/000101/html/am101d--193.html (Click http://tinyurl.com/rgz8h) Some conversation followed, after which the amendment was again read. Mr. SPENCER moved to amend said amendment, by adding the following: "And to have all questions of law, arising in the course of his trial, explained by the court before his defence shall be stated by his counsel." Mr. BRENT, of Baltimore city, accepted this amendment as a modification of his own. Mr. BRENT rose to say, in justification of his amendment, that there was a difference of opinion on the Bench in reference to this matter. Some of the judges now carry out the spirit of this proposition; but there are others, who doubt the right of the jury to be judges of the law. Such was the rule in the Courts of the District of Columbia. It wag not ill the old bill of [r]ights; and many gentleman thought it would be a great improvement. He had, therefore, submitted the amendment (Neil's Note: Some typos exist on the source site. I believe this is due to the content being optically scanned from a paper book). Apparently doubts about the provision continue to this day despite the Amendment. What follows was discussion between Mr. Brent (my hero) and a Mr. Chambers opposed to the amendment. The discussions give a window into the past of how courts operated at the time, and what impact they thought the Amendment would have. Mr. Brent's Amendment here was actually voted down, but was reintroduced later on during the convention: http://www.mdarchives.state.md.us/megafile/msa/speccol/ sc2900/sc2908/000001/000101/html/am101de--767.html (Click here: http://tinyurl.com/e5jrl) Mr. SPENCER said that he had understood that there had recently been a decision that the jury were bound by the opinion of the judge, in matter of law. He was in favor of the amendment, and wished this provision to accompany it. Mr. BRENT of Baltimore city, said that he had offered just such an amendment, and it had been voted down. But Mr. Spencer's amendment was approved, and jury nullification subsequently became Constitutional law in Maryland in 1850 which, ironically, was the same year the US Congress enacted the Fugitive Slave Act. Much more debate on the subject is covered which I won't copy here, and the subject was revisited in at least one subsequent convention which interested readers may peruse from the archive site. The Amendment underwent several word changes changes since that time, and didn't find it's way to Article 23 until 1949 as the Constitution was reformatted and organized. All changes were approved by popular vote of Marylanders. It's a pity that modern day judicial activists, including those on the Supreme Court, are so willing to redefine laws and Constitutional mandates. Motivations vary, perhaps. Some or even most might think they are doing the world a favor in imposing such changes, but as Gandalf the Grey explained in refusing to take the One Ring in Tolkein's "Lord of the Rings" (my more favored literary allusions for the modern world), they use this power in an attempt to do good, but in so doing, bring about much evil, blind with delusion as to the harm they bring and having long lost sight to that which they swore an oath to follow. We would all do far better if they left the rewriting to the Constitutional delegates and voters. My last exchange with Mr. Titman did not include the comments from the Constitutional Convention, but from my exchanges, it seems as a career attorney he's been exposed to the current system too long to be able to return to some basic dignity to the judiciary. No, the Supreme Court did not "reconcile the discrepancy" between standard instructions and the Constitution as Titman suggested. They instead simply rewrote the Constitution as their whim fancied. Titman sees and works with the system, broken as it is today. At the Libertarian Party meeting, he promised to throw out any case brought before him that violated the Constitution. My take: I'll believe it when I see it. I'd love to be proven wrong. Neil McIver The full citation sent to me, from Stevenson v. State, 289 Md 167 ***As this lengthy attribution indicates, and our later decisions confirm, the jury was not granted, by Article 23, the power to decide all matters that may be correctly included under the generic label -- "law." Rather, its authority is limited to deciding "the law of the crime," Wheeler v. The State, 42 Md. 563, 570 (1875), or "the definition of the crime," as well as "the legal effect of the evidence before [the jury]." Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889). And this Court has consistently interpreted this constitutional provision as restraining the jury's law deciding power to this limited, albeit important, area.*** Thus, we have held that it is not within the province of the jury to decide whether a statute has been repealed, Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929), whether it has operative effect, Slymer v. State, 62 Md. 237, 241 (1884), or if it is unconstitutional, Hitchcock v. State, supra, 213 Md. at 283-84, 131 A.2d at 718-19; Franklin v. State, supra. Moreover, we have decided that juries are not permitted to hear or act upon preliminary questions such as the court's jurisdiction. Kelly v. State, 151 Md. 87, 98-99, 133 [44] A. 899, 903 (1926). See also Hitchcock v. State, supra; Dennis, Maryland's Antique Constitutional Thorn, 92 U. Pa. L. Rev. 34, 39 (1943). In addition to these restrictions, it has been long recognized that questions of admissibility of evidence and competency of witnesses are for the court alone to determine and were not transferred to the jury for decision by Article 23. E.g., Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979); Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365; Vogel v. State, 163 Md. 267, 272, 162 A. 705, 708 (1932); Bell, alias Kimball v. State, 57 Md. 108, 120 (1881); Wheeler v. State, supra, 42 Md. at 570. See Brady v. Maryland, supra, 373 U.S. at 89-90. In fact, viewed affirmatively, the past decisions of this Court make it quite evident that the jury's role in judging the law under Article 23 is confined "to resolv[ing] conflicting interpretations of the law [of the crime] and to decid[ing] whether th[at] law should be applied in dubious factual situations," and nothing more. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976) (emphasis in original); see Hamilton v. State, 265 Md. 256, 288 A.2d 885, cert. denied, 409 U.S. 1006 (1972); Schanker v. State, 208 Md. 15, 21, 116 A.2d 363, 367 (1955). Even this area of the jury's exclusive domain, however, has limitations. For example, in Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 (1977), we pointed out that Article 23 "does not confer upon [it] . . . untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case." Id. at 479, 365 A.2d at 553. Moreover, since "it is the duty of a jury to decide a case according to the established rules of law, . . . if it should misapply the law to the prejudice of the accused, and the trial court has the power to set aside the verdict and grant a new trial." Giles v. State, supra, 229 Md. at 384, 183 A.2d at 365; accord, Beard v. State, supra. [45] Implicit in the decisions of this Court limiting the jury's judicial role to the "law of the crime" is a recognition that all other legal issues are for the judge alone to decide. Because of this division of the law-judging function between judge [46] and jury, it is incumbent upon a trial judge to carefully delineate for the jury the following dichotomy: (i) that the jury, under Article 23, is the final arbiter of disputes as to the substantive "law of the crime," as well as the "legal effect of the evidence," and that any comments by the judge concerning these matters are advisory only; and (ii) that, by virtue of this same constitutional provision, all other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury's pale, and that the judge's comments on these matters are binding upon that body. In other words, the jury should not be informed that all of the court's instructions are merely advisory; rather only that portion of the charge addressed to the former areas of "law" may be regarded as non-binding by it, and it is only these aspects of the "law" which counsel may dispute in their respective arguments to the jury.*fn5 On the other hand, the jury should be informed that the judge's charge with regard to any other legal matter is binding and may not be disregarded by it. An explicit example of this may be seen from an examination of this Court's recent opinion in Lewis v. State, supra, where we held that, although both a judge and the jury may be called upon to determine the voluntariness of a confession, instructions to the jury with respect to the type of consideration to be given by that body to such a confession are binding on it since admissibility of evidence is not "law" which the jury may decide.
Post Comment Private Reply Ignore Thread
|
||
|
[Home]
[Headlines]
[Latest Articles]
[Latest Comments]
[Post]
[Sign-in]
[Mail]
[Setup]
[Help]
|
||