Jury questionnaire will attempt to weed out informed jurors in Nxivm trial – by lying to them

Prospective jurors in the case against Keith Raniere, Clare Bronfman and Kathy Russell were asked to fill out a jurors’ questionnaire – calculated to weed out biased jurors.

Slipped in there was question #80, which was meant to weed out intelligent jurors.

The goal, it seems, is that any juror who knows what a jury is meant for, is meant to be weeded out. Here is the question:

“80. Under the law, the facts are for the jury to determine and the law is for the Judge to
determine. You are required to accept the law as the Judge explains it to you even if you do not like the law or disagree with it, and you must determine the facts according to those instructions.

“Would you have any difficulty following the Judge’s instructions?
Yes _______ No _______

Of course, this question contains a blatant lie. The jury is not required to accept the law as the judge explains it.  I will give you proof in eight words: “A jury cannot be punished for its verdict.”

If you can’t be punished for murder, you can murder. If you can’t be punished for stealing, you are not required not to steal. You can steal to your heart’s content.

And if a jury cannot be punished for not following the judge’s explanation of the law, then they are not required to follow his explanation of the law.

That’s the truth; it’s an historical truth, a prized truth, and I am disappointed that the prosecution inserted this question; that they chose to lie to prospective jurors.

The truth is, if the jury finds the facts prove a defendant broke the law, as the judge explains it, they can still acquit him and they can’t be punished.

Not that I want a jury to find Keith Raniere “not guilty.” But I prefer that jurors be told the truth and informed of their rights.

If I were a juror on this case, I might agree with the law, but I would know it was mine to judge. It’s not for the judge to require me to follow the law. It’s for him to explain the law and for me to judge whether I agree the law is good and that it is being applied in this case the way I believe the law should be applied.

Of course, if I answered #80, and explained I knew question #80 was a lie, most likely I would never be permitted to sit on the jury.  The prosecution would ask that I be barred “for cause” or use one of its peremptory challenges to keep me off.

But it doesn’t change a thing. Whether they are lied to or not, jurors can vote as they like and can’t be punished.  For some reason, in America, both the prosecution and the judiciary do not want informed jurors. I suppose it keeps more power in the hands of the government.

But our founding fathers saw it differently. They believed the opposite of the lie contained in #80.  The jury’s highest role is to keep government in check – and jurors are not required to follow the judge’s explanation of the law.

Clare Bronfman, Keith Raniere and Kathy Russell (if it goes to trial) will get a trial “per pais,” a trial by the people, by the country, a jury – as opposed to trial by government – where the judge decides innocence or guilt.

This means that 12 jurors – supposed to represent a cross-section of the nation – who must be unanimous in their decision  – and not the judge – has final say on whether defendants are acquitted.

No matter how guilty the judge might think a defendant is, if the jury acquits, he can do nothing.  Their verdict is final and jurors cannot be punished even if they do not follow the law as the judge explains it.

In this sense, jurors have more authority than the judge, though most of them don’t know it and the government – both judge and prosecution – don’t want them to know.

I always thought it fascinating that Thomas Jefferson said, if he had to choose between giving people the right to vote or the right to be tried by a jury, he would pick the jury and eliminate voting.

Why?  Because, anyone can make laws, but only a jury can approve a law – by convicting people.  There has never been a case in American history where jurors did not have the power to vote their conscience. They may not know it, but that doesn’t mean they don’t have the power.  Jurors cannot be punished for their verdict even if they don’t follow the judge’s direction on the law.

If Clare, Keith or Kathy for that matter – even if she broke laws based on the facts – if they find a jury to sympathize  – to believe – for instance, that Kathy was a dupe and, though she broke the law, she should not go to prison, they can vote to acquit her.

Even if only one juror decides Kathy – or any defendant in any case – has been unfairly charged – victimized by an overzealous prosecutor, that it is, for example, if they think that Keith is the true criminal and Kathy was a victim – even if she indisputably broke the law – she might get off. It’s up to the jury, not the judge.

I don’t want readers to think I sympathize with the defendants. I am simply stating facts and I don’t like the government lying to jurors, telling them they cannot judge the law, as well as the facts.  They can judge everything and for whatever reasons they choose, they can acquit. They don’t have to explain their verdict.

They need only have a verdict: Guilty, not guilty or hung.

A hung jury is when 12 jurors cannot agree unanimously. If there is even one holdout, there cannot be a conviction or an acquittal. The trial is over.  In the event of a hung jury, it’s up to the prosecution to decide whether to retry the case with a new jury.

In Raniere’s case, in the event of a hung jury, it’s likely the prosecution would retry him, but I doubt the jury will hang in his case.

For Bronfman, and much more so for Kathy, a hung jury on some charges is not outside the realm of possibilities.

Lately, judges have taken to putting undue pressure on jurors who are hung  – telling them to go back and deliberate until they reach unanimity.  If jurors knew their rights, they would tell the judge their verdict is final and not be coerced to spend one minute more in a jury room when they decided they were, according to their conscience, deadlocked.

This coercive practice of ordering jurors back to deliberate often works against justice since sometimes jurors want to go home, and a holdout juror might shift his verdict against his conscience just to get out and go home.  Maybe a juror even thinks she might be punished if she doesn’t agree with the others since the judge ordered that they try to reach a unanimous decision.

So why am I writing this?  Because I am interested in the rights of people more than convicting Raniere, Bronfman or Russell.  I hate to see jurors lied to.  I want an informed jury to convict Raniere and Bronfman. I am not sure where I stand on Kathy Russell. I haven’t heard the evidence and seen the applicability of the law in her case.

In order to better make my point that jurors are not required to follow the judge’s explanation of the law and they can determine both the law and the facts, and that question #80 is an insult to all free people, I will cite some examples of juries which chose not to follow the law as the judge explained it and what happened because of it.

Jury ended the power of the king
When King John signed Magna Carta, trial by jury was established in England.  With the imposition of the jury, the king had to seek permission, through 12 citizens unanimous in their verdict, before he could take anyone’s freedom away.

It was understood that the reason for the jury was to reign in government – to protect the people from the king’s oppression – not simply to try to figure out if somebody broke the king’s law.

Jury brought Freedom of Religion

In the 17^th century, the British government did not approve of the Quaker religion and made laws against public assembly. In 1670, Quakers William Penn and William Mead were prosecuted for preaching Quakerism and at an illegal public gathering.

At trial, Judge Samuel Starling instructed the jury to return a guilty verdict since the evidence showed Penn and Mead broke the law. There were plenty of witnesses.

Four jurors, led by Edward Bushell, refused to return a guilty verdict. The judge ordered the jury locked up until they returned an acceptable verdict.

The jurors refused to return a guilty verdict. The judge ended the trial and ordered the jurors imprisoned until they paid a fine. Bushnell refused to pay and was jailed.

He was released after his habeas corpus petition prompted the Court of Common Pleas to rule that a judge cannot punish jurors for their verdicts.

The jury – or at least one brave juror – nullified a bad law and by it established freedom of religion.

Jury ended witch trials 

The Salem witch trials began in 1692.  After a year-long, nearly 100 percent conviction rate and the execution of 33 witches, juries decided the court of Oyer and Terminer had gone too far.  Jurors took it upon themselves to nullify the witchcraft law with 52 consecutive hung juries or acquittals.

With hung juries, the Salem government could not execute witches and many witches survived in direct contravention to government’s desires.  Unable to get convictions, prosecutors ceased bringing witches to trial.  Juries made it impossible to put to death people the government knew to be witches in Salem.

As Clarence Darrow said, “That is the only way we got rid of punishing old women, of hanging old women in New England — because, in spite of all the courts, the juries would no longer convict them for a crime that never existed.”

Freedom of speech won by jury
In 1734, John Peter Zenger’s newspaper criticized the Royal Governor of New York. It was against the law to criticize the government in Colonial America, as it still is in many countries that do not have jury trials.

Zenger was charged with seditious libel.

At his trial, Zenger’s lawyer, Andrew Hamilton, admitted Zenger broke the law (it was obvious for it was published in his newspaper) but Hamilton asked the jury to acquit because the law was wrong and, after all, Zenger published the truth.

Chief Justice James Delaney disagreed. “The truth is no defense,” he ruled. The jurors, he said, were required to follow the law as he explained it.

Hamilton disagreed. He urged the jury “to make use of their own consciousness and understandings in judging of the lives, liberties or estates of their fellow subjects,” declaring jurors “have the right, beyond all dispute, to determine both the law and the fact” and added, if jurors cannot nullify laws, then “juries (are) useless, to say no worse…. The next step would make the people slaves.”

The jury acquitted Zenger. Transcripts of the trial were widely published and the verdict encouraged more literature critical of England by such as Franklin, Jefferson, Paine, and others.   If Zenger’s jurors had felt they were required to follow the judge’s directions, the people of America might still enjoy British rule.

Jury trial in the Bill of Rights
Given the jury’s role in Zenger’s and other Colonial trials, the framers of the Constitution envisioned that juries would continue this role when they guaranteed jury trials in the Sixth Amendment.

Benjamin Franklin said that the right of juries to not follow the judge’s direction on the law (jury nullification) is “better than law, it ought to be law, and will always be law wherever justice prevails.”

Thomas Jefferson wrote, “Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them.”

Alexander Hamilton said of the framers of the constitution, “If they agree on nothing else, (they) concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists of this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”

Nullified fugitive slave act
The fugitive slave law of 1850 was enacted to assist slave owners from the South who were threatening to secede from the Union since their slaves were running away and the North was not doing enough to stop it.

A federal law provided for stiff punishment for “criminals” who helped slaves escape.

In Syracuse, New York, 24 “criminals” were indicted for helping a slave escape from jail. A federal judge in Buffalo called the defendants “disturbers of society.”

But jurors nullified the fugitive slave law.  Four trials ended in three acquittals and compelled the government to drop the charges.

A crowd broke into a Boston courtroom and grabbed a slave named Shadrach Minkins and turned him loose. The judge called the defendants’ actions “beyond the scope of human reason.”

President Millard Fillmore demanded prosecution. A grand jury indicted three people. Daniel Webster led the prosecution.

Again, the jury refused to follow the judge’s instructions on the law.  After one acquittal and several hung juries, the government dropped all charges, realizing they could never get 12 men to agree to punish someone for helping a slave escape in Boston – even though it was against the law.

Because of the jury, a network of “criminals” called abolitionists organized, knowing northern juries would not convict them.  Things got worse.  More slaves escaped. No one was punished for helping them.  Tensions rose. The Southern States decided to secede. The Civil War followed, then the Emancipation Proclamation.

If northern juries had followed the Fugitive Slave Law as the judge directed, African Americans might still be human property in accordance with federal law.

Set Wild Bill Hickok free
Wild Bill Hickok and Davis Tutt engaged in a one-on-one pistol duel on July 1865 in Springfield, Missouri. Tutt was killed.  Hickok was charged with manslaughter since mutual combat was against the law.

Witnesses claimed both men fired, but Tutt was the first to display aggression. It was a question of honor. Had Hickok not fought, he would have been branded a coward.

Judge Sempronius Boyd instructed the jury that conviction was its only option under written law. Then he famously instructed the jury that they could nullify the law by applying the unwritten law of the “fair fight” and acquit. The jury acquitted Hickok.

Helped end prohibition
The US Constitution was amended to prohibit the sale of alcohol because a majority wished to impose their moral beliefs on the minority of citizens. The jury protected citizens from the tyranny of the majority.

During Prohibition, juries nullified alcohol control laws about 60 percent of the time. The fact that most juries would not convict on alcohol control laws made the use of alcohol widespread throughout Prohibition. Jury resistance contributed to the adoption of the Twenty-first amendment repealing Prohibition.

During prohibition, the jury made prohibition a toothless amendment and it was repealed in 13 years forcing an end to the federal criminalization of victimless alcohol offenses.

Defendants demanding jury trials resulted in courts so clogged with cases that many weren’t tried for more than a year. Prosecutors offered extremely lenient plea bargains, (and not on par with offers made in victimless drug prohibition cases today) to persuade defendants to forego jury trials. Those who insisted on trials frequently won “Not Guilty” verdicts or had hung juries.

In short, the government could not enforce a constitutional amendment because repeatedly juries did not approve. If jurors had agreed with question #80 on the juror questionnaire, we might today have an alcohol free nation.

Union rights

In the late 19th century, vigorous prosecution on “conspiracy” charges against “criminals” who called themselves “union workers” who went on strike was thwarted by repeated jury acquittals and this emboldened unions to organize, assemble, and go on strike – for they knew they would not be punished by a jury.

* * *

Today, people have lost sight of their role as jurors. This is evidenced by the outrageous #80 in the jury questionnaire. “You are required to accept the law as the Judge explains it to you even if you do not like the law or disagree with it.”

Nonsense.

As it was said by Lysander Spooner, “The jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law; of the true exposition of the law; of the justice of the law; and of the admissibility and weight of all the evidence offered; otherwise the government will have everything its own way; the jury will be mere puppets in the hands of the government; and the trial will be, in reality, a trial by the government, and not a ‘trial by the country.’ By such trials the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a ‘palladium of liberty,’ or as any protection to the people against the oppression and tyranny of the government.”

One would think that since the jury brought us so many of our cherished freedoms, the government would be first to want the true role and purpose of the jury known to every juror.

You would think that deceptive question #80 — “Under the law, the facts are for the jury to determine and the law is for the Judge to determine….  and you must determine the facts according to those instructions,” would be a blatant insult to our shared sense of liberty – something that would never appear on a questionnaire before an American jury.

I am, by the way, not the first person to believe that a jury does not have to follow the law as the judge explains it. Here are a few quotes from others who agree with me.

Trial by jury is the principal bulwark of our liberties.
William Blackstone (1768)

Representative government and trial by jury are the heart and lungs of liberty.
John Adams (1774)

The jury system is the handmaid of freedom. It catches and takes on the spirit of liberty, and grows and expands with the progress of constitutional government. Rome, Sparta, and Carthage fell because they did not know it, let not England and America fall because they threw it away.
Charles S. May (1875)

Trial by jury is the best appendage of freedom. I hope we shall never be induced to part with that excellent mode of trial. Guard with jealous attention the public liberty. Suspect
everyone who approaches that jewel.
Patrick Henry (1788)

It is through trial by jury that the people share in government, a consideration which ought to make our legislators very cautious how they take away this mode of trial by new trifling and vexatious enactments.
Lord John Russell (1823)

The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendant and plaintiff alike a safeguard from arbitrary perversion of the law.
Winston Churchill (1956)

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
Thomas Jefferson (1789)

It’s not only ….(the juror’s) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.
John Adams (1771)

The jury has a right to judge both the law as well as the fact in controversy.
John Jay (1794) (First Chief Justice, U. S. Supreme Court)

The jury has the right to determine both the law and the facts.
Samuel Chase 1804 (Justice, U. S. Supreme Court and signer of the Declaration of Independence)

The jury has the power to bring a verdict in the teeth of both the law and the facts.
Oliver Wendell Holmes (1920)

A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.
Justice Byron White (Duncan v. Louisiana, 391 US 145, 155 (1968)

The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.”
Justice Byron White (Taylor v. Louisiana, 419 US 522, 530 (1975)

The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”
U.S. v. Dougherty, 473 F.2d. 1113, 1139 (1972)

If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty, — For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.
Theophilus Parsons

Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is…the safety valve that must exist if this society is to be able to accommodate its own internal stresses and strains…[I]f the community is to sit in the jury box, its decision cannot be legally limited to a conscience-less application of fact to law.
William Kunstler (1988)

Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.
Lord Denman (1884)

For more than six hundred years – that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Lysander Spooner (An Essay on the Trial by Jury, 1852, p. 11)

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.
Constitution of Maryland (Article XXIII)

Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case.”
Instructions to jurors in criminal cases in Maryland

In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts.
Indiana Constitution (Article 1, Section 19, Upheld in Holiday v. State 257N.E.579, 1970) 

But juries are not bound by what seems inescapable logic to judges.
Justice Robert H. Jackson

In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government’s position. Judicial and prosecutorial misconduct still occur, and Congress is not yet an infallible body incapable of making tyrannical laws.
Judge Wiseman (U.S. v. Datcher 830 F.Supp. 411, 413, M.D. Tennessee, 1993)

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At the end of the day, Raniere will be convicted by either an informed jury or one that is misled as to their true rights. I would prefer he be convicted by an informed jury.