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Thoughts on the Trial by Jury

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Trevor Watkins

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Nov 9, 2024, 9:01:45 AM11/9/24
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Marco den Ouden, the famous Jolly Libertarian, is a favourite author and blogger of mine. Here he reflects on trial by jury, a subject close to my heart and the 4th clause of the Individualist Manifesto.
I could not find his repost policy on his website, so this is posted here without his specific permission. For more fascinating insights into libertarianism/individualism, visit https://jollylibertarian.blogspot.com/

Recently there has been a furor over the trials and acquittals of two men charged with the murders of two Aboriginal people in Canada. In Saskatchewan, a jury acquitted the man accused of murdering 22 year old Colten Boushie. In Manitoba, the accused was acquitted of murdering 15 year old Tina Fontaine, a troubled young teenager.


Indeed, the jury acquittal of O.J. Simpson for murder in California in 1995 raised a furor south of the border. These and other acquittals of alleged murderers who the public "knew" were guilty have cast the jury system into disrepute.

The trial by jury has long been part of English common law, and by extension, Canadian common law. It was enshrined in the Charter of Rights and Freedoms when it was introduced in 1982. It's in Section 11 which deals with legal rights in criminal and penal matters.
  • 11. Any person charged with an offence has the right ... (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
But the implementation of such rights involves certain common law traditions, including the right of both the defense and the prosecution in a case to peremptory challenges in a jury trial.

In an article in the National Post on these two trials, Daniel Quan notes that the jury in the trial of Gerald Stanley, accused of killing Boushie, was all white. The defense lawyer had used peremptory challenges to exclude indigenous jurors.

Chris Murphy, a lawyer for the Boushie family observed that "Eric Meechance, a friend of Boushie, was asked to identify a firearm in a crime scene photo. But the photo that was presented to him also showed Boushie’s dead body. Meechance became emotional and he would not look at the photo."

The absence of indigenous jurors could have led to the belief that Meechance was stonewalling whereas an indigenous juror may have been able to explain that looking at the photo of the dead man involved a "cultural taboo".

Murphy suggests ending the practice of allowing peremptory challenges. Just impanel the first twelve people from the jury pool who promise to be objective and impartial. Indeed, Quan notes that this has been looked at since 1991 when Senator Murray Sinclair headed up an inquiry into Aboriginal justice in Manitoba.

But while finding these cases troubling, Justice Minister Jody Wilson-Raybould, herself an Aboriginal, notes that peremptory challenges are part of our common law tradition and cannot be changed lightly.

The purpose of the peremptory challenge, of course, is to eliminate potential jurors who may have a bias, which is indeed a laudable goal. But can it be abused?

The hit television series Bull starring Michael Weatherly is all about jury manipulation. Jason Bull is not a lawyer. He is a psychologist and a trial consultant. His company, Trial Analysis Corporation (TAC), uses high tech gadgetry and psychological profiling to help defense attorneys (and occasionally the prosecution) to profile the jury pool and pick the "right" people to achieve the outcomes wanted by their clients.

During the actual trial, TAC hires and impanels its own "clone" jury, people who closely match the psychological profiles of the real jury. These people are monitored to see how they respond to evidence and how it is presented. By constantly monitoring this panel's reactions, they get a handle on where the case is headed and whether they need to change strategy.

While Bull is portrayed as an ethical man who uses his talents to help the innocent or convict the guilty as he sees it, the whole premise of the show is that juries can be manipulated. A less ethical man could do real damage to the ideals of justice. Guilt or innocence are irrelevant. All that matters is the psychological makeup of the jurors and how they can be manipulated.

Lest you think this is just science fiction, the show is based on the early career of pop psychologist Dr. Phil McGraw. He and his partner Gary Dobbs founded Courtroom Sciences Inc. (CSI) which, according to Wikipedia, "became a profitable enterprise advising Fortune 500 companies and injured plaintiffs in achieving settlements."

His most notable client was Oprah Winfrey who hired his company to help her when she was sued for libel by some Texas cattle interests for damaging their business by talking about mad cow disease. CSI helped her win the case and she soon started having McGraw on her show. The Oprah connection started him on a new career path as a pop psychologist and he is now the 15th highest paid celebrity in the world pulling in over $70 million a year.

In any event, such jury manipulation needs to be curbed if we are to have a fair and impartial justice system. How to change the laws regarding jury selection is something I won't go into for now. It will require a lot of thought and consideration.

But the jury system remains an important and vital part of our legal system. How important? Abolitionist and anarchist iconoclast Lysander Spooner, author of No Treason: The Constitution of No Authority, thought enough of it to pen an Essay on the Trial by Jury.

In the late 1970s, local libertarian Walter Boytinck challenged both the income tax and the census in court. The first part of his battle was to petition for the right to a trial by jury, which he lost. But Walter's case led me to review Spooner's book. The following is from The Libertarian, a newsletter published by The Libertarian Foundation.
Trial By Jury: Bulwark Against Tyranny
The right of an accused to be tried by a jury of his peers has long been regarded as a fundamental protection of liberty. Churchill said we must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which find their expression in the Magna Carta, the Bill of Rights, the habeas corpus, the trial by jury, the English common law and the American Declaration of Independence. The famous jurist, Sir William Blackstone, called the trial by jury "the glory of English Law" and a "palladium of liberty".

Spooner on Trial by Jury

But what does the concept of trial by jury mean and why is it of such importance? Perhaps the best philosophical exposition of the subject is by Lysander Spooner, the 19th century American iconoclast, in the Essay on the Trial by Jury (1852). "The trial by jury," he says, "is a 'trial by the country', that is, by the people - as distinguished from a trial by the government".

He continues, "the object of this trial 'by the country', or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or 'the country', judge of and determine their own liberties against the government; instead of the government's judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?"

Juries, Spooner argues, not only must judge of the facts of the case. but also of the justice of the law. It as "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."

Moreover. conviction can only arise out of the unanimous consent of all twelve jurors. This guarantees that only such laws as "substantially the whole country" would agree to, will be enforced. This is the greatest protection of minority rights that a constitution can offer.

The key concept that the trial by jury embodies is, in the words of the late J.A. O'Halloran of the B.C. Court of Appeal, that "inherent rights remains in the People and not in the King or Parliament or both combined".

While Spooner spends a good portion of the Essay discussing the legal niceties of the Magna Carta and arguing that the trial by jury was a right historically recognized by that venerable document, he recognized that a long history does not necessarily prove the validity of a long-held ideal. He spends further chapters considering objections.

Perhaps the strongest objection is that the trial by jury could paralyze the power of the majority. Spooner argues that this is its crowning merit. "The will, or the pretended will, of the majority, is the last lurking place of tyranny at the present day. Obviously there is nothing in the nature of majorities that insures justice at their hands They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practicing the same tyranny as minorities, if they think it will be for their interest to do so".

Trial by Jury Undermined 

Recognizing the fact that juries are beholden to no one, the Canadian government passed a statute during the Depression 30's permitting jury acquittals to be reversed on appeal. Says Dr. Edgar Friedenberg of Dalhousie University, the government apparently anticipated "that juries would recklessly acquit some of the more revolutionary of the unemployed whom the Crown would have liked to keep locked up anyway, no doubt with sincere confidence that if they hadn't been guilty they wouldn't have been accused". (Deference to Authority: The Case of Canada 1980) That statute was never invoked until the 70's when Dr. Henry Morgentaler had his jury acquittal on abortion charges overturned by the Quebec Court of Appeal. The Supreme Court of Canada upheld the appellate court decision.

Under pressure from John Diefenbaker. the federal government has since passed a Bill forbidding appellate courts from substituting a conviction for jury acquittal. But the trial by jury still stands on shaky ground in Canada.

In 1976 a draft copy of a confidential memo by a senior justice department official was made public. It suggested that the right of an accused to be tried by jury be eliminated in cases of theft, breaking and entering, and and in some narcotic offences. The then Justice Minister, Ron Basford, spoke of a need to reduce trial delays, arguing that "an accused is not well served if it takes months or years for him to prove his innocence". This from the Justice Minister in a country where an accused is presumed to be innocent and the burden is on the state to prove guilt.

Summary Conviction Violates Liberty

Trial by jury is not a right in Canada in all cases. There are two kinds of offenses, indictable offenses and those subject to summary conviction (judge without jury).

Indictable offenses include robbery, murder and other violent crimes. Summary offenses include "crimes" against the state such as failing to file a census form or tax return or failing to comply with some bureaucratic regulatory agency. But surely it is precisely in cases of victimless, non-violent crimes, of crimes against the government, where the importance of the right to trial by jury is paramount.

While judges try to be impartial, nevertheless, judges are charged solely with deciding questions of fact and interpreting the law. They do not judge of whether a law is just or unjust. Only a jury can do this.

The government makes the laws but it is for the people, not the government, to decide whether those laws are worthy of upholding.

It should be the accused's option to decide to have a trial by judge alone. That option should rest solely with the accused, not with the government. California and Alaska already guarantee a jury trial to anyone charged with a public offense. Canada can only gain by following suit.

Conclusion

At a time when Canada is talking of a new constitution, it is important that the issue of trial by jury gets thoroughly discussed and the right to trial by jury as described in Magna Carta 1215 be firmly entrenched in any such constitution.

The trial by jury is one of the most solid bulwarks against tyranny we have. We would do well to heed the words of the Retired Chief Justice of the Alberta Supreme Court, S. Bruce Smith. Commenting on the justice department memo leak and Ron Basford's statement, he said, ''The right to trial by jury is a centuries old right which must be maintained. It would be a tragedy if the right to trial by jury in criminal cases was seriously abridged. The consequences would be disastrous to our basic constitution and pillars of freedom and would result in a partial elimination of the philosophy of fairness in the administration of criminal law".

Indeed, the right to trial by jury ought not just to be maintained in criminal law, but should be extended to anyone and everyone charged with any offense in Canada. Only then will Canada truly merit the title, "the true north strong and free"!

Postscript: After that article was published and in the next few years leading up to the repatriation of Canada's constitution and the declaration of the Charter of Rights and Freedoms, the government had consultations with the people. If you ever wonder what one person can do to effect change, please note that Vancouver lawyer and libertarian Walter Boytinck entered into a correspondence with then Justice Minister (and future Prime Minister) Jean Chretien urging that the right to trial by jury be included in the Charter. Several letters were exchanged and the upshot was Section 11 (f) specifically guaranteeing trial by jury in any case where the penalty could be five years or more. Chretien concluded with a letter of thanks to Walter for his passionate defense of the right to trial by jury and confirming that this right would be included.

The importance of the right of a jury to determine not only the facts of the case but the justice of the law, something known as jury nullification, is championed by the Fully Informed Jury Association.

Stephen vJ

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Nov 11, 2024, 11:01:12 PM11/11/24
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Some very strong and interesting points... and of course the Canadian references are of particular interest to me. Thanks a lot for sharing this Trevor - it is clearly well thought through and carefully edited, which must have taken many hours. I have two short comments, but I want to point out that the brevity of my response is not reflective of the value of this piece - I think it is something to publish and reference back to in future.

My two comments;

1. I like the concept of choice (the accused can waive the right to a jury) and multiple solutions (some cases are too small or straight-forward to justify the expense of a jury). Canada is by no means perfect and I am regularly shocked by the ability of police here and to the south to destroy the lives of innocent people by wrongful and long term arrest - something South Africa summarily ended almost immediately after Mandela was released... but I do like the practicality of not having a jury in every case, considering the burden it puts on the jurors and the tax payer. One of my biggest concerns with juries is the parallels it has to military conscription and how it is achieved through compulsion.

2. Juries may be closer to freedom than decrees by the king, but it is so in the same way as democracy is closer to freedom than a monarchy - they still assume the existence of government and oppression, just with the throttle in the hands of more people. I would much prefer other kinds of trial not dependent on the existence of government, like trial by HR or trial by HOA or trial by private arbitration service. I currently have a dispute with my neighbour and I can (and probably will soon) phone the town's "Bylaw" line and have them send out a Peace Officer to come chat to the guy, but I wish this was a private service.

In short, I think I'm coming around to the idea of a jury having a place in the world, but I would not consider that the one and only solution available to us. I would consider it a tool in the toolkit of defenses against government (along with democracy, a constitution, a bill of rights, legal process) rather than a feature of Libertarianism, which does not need any of those tools. You don't need a constitution if there is no State to apply it to.

Stephen.

On Nov 9, 2024, at 07:01, Trevor Watkins <bas...@gmail.com> wrote:


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vlie...@btinternet.com

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Nov 11, 2024, 11:01:12 PM11/11/24
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How does trial by jury work in practice? 

Having been brought up in South Africa (during the Apartheid era), I could see that trial by jury would there have been beset my many problems. First of all, there would have been the language problem - South Africa had two official languages - English and Afrikaans and unless there was simultaneous translation, jurors would be expected to understand both languages which was not always the case. The next would have been the choice of language be used in the jury room. South Africa had the added problem of race relations. I won't enlarge on that, otherwise my posting would go on forever.

 

I have been on one jury in the United Kingdom. We were asked if any of us knew the defendant, the judge or any of the lawyers (barristers and advising solicitors) in the case. No-one did so the original twelve that were selected remained on the panel. During the proceedings, I looked at my fellow jurors to see who would make the best foreman and came to the conclusion that there were only two of us who were really suitable, one of whom was me. When it came to choosing a foreman, the other guy proposed me, the remaining 10 were in agreement so I accepted.

 

The case was one of attempted rape - the defendant, who had got drunk at a party the previous evening after a cricket match, was walking back home when he passed a home for the mentally handicapped. He had frequently visited the home as part of his job as a refuse lorry driver. He entered the grounds, caught sight of one of the female residents whose mental age was described by one witness as being that of a two-year old and by another as being that of a six-year old. He then broke into the building via an open window and was disturbed by the sub-warden as he was about to mount her. While the sub-warden was raising the alarm, the defendant disappeared through a window and was arrested a few hours later.

 

He faced three charges - breaking and entering the building with intention of rape, attempted rape and attempted sexual intercourse with a mentally deficient person. It is a matter of public record that after deliberating for ten minutes, the jury returned unanimous guilty verdicts on the second and third charges. However, after two and a half hours deliberation on the first charge, the judge told the jury that he would accept a majority verdict and the defendant was found guilty on a 11-1 vote. In my view, the evidence present by the Crown as regards the first charge was very weak.

 

Years after the trial, when reflecting what happened, I realised that any competent barrister could have driven a horse and carriage through the prosecution’s case on the first charge, but the defence barrister chosen not to do so. Instead he reserved all his energies to plead for a light sentence - the defendant was previously of good character, his mother had died three weeks previously etc, etc. He knew that his client was going to prison and the most serious charge was the second, so being found guilty or otherwise on the first would not affect the sentence. However if he annoyed the judge by challenging the first, his client might well have got eight years (or more) rather than the seven to which he was sentenced. (He was sentenced to two years for each of the first and third charge, all three sentences to run concurrently).

 

Yes, juries certainly have a role to play provided that they are truly the defendant's peers. In the discussions in the jury waiting room before we were called to the case, one of the other jurors remarked that if we were going to get a fraud case, I would probably have been the only person who understood the evidence. Had this been the case, this would clearly have been a situation where the jurors would not have been the defendant's peers.

--

Trevor Watkins

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Nov 12, 2024, 3:58:00 AM11/12/24
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I explain my concept of an Individualist Movement jury here. It addresses some of the usual jury objections as follows
  1. Jury bias. A randomly chosen jury from a specific area may well exhibit bias eg a jury chosen from residents of a squatter camp, or an expensive high end suburb. This is addressed by having the litigants each choose half the jury, presumably people who might share their point of view. To avoid the likely deadlock, the jury foreperson who has a casting vote is randomly selected. Jury decisions are made by a simple majority vote plus one. (I have just added the "plus one" as a mechanism to ensure that at least one juror must renounce loyalty to the litigant who chose him). 
    It is through discussions like this that the design and wording of rules is slowly improved.

  2. Jury competence. One can expect opposing litigants to select jurors with some competence in the matter at hand.

  3. Language. The South African legal system, to its credit, has been conducting proceedings in all 11 official languages for 30 years.

Trevor Watkins .. cSASI
bas...@gmail.com - 083 44 11 721 - www.individualist.one



Trevor Watkins

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Nov 12, 2024, 5:04:55 AM11/12/24
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In red below

Trevor Watkins .. cSASI
bas...@gmail.com - 083 44 11 721 - www.individualist.one


On Tue, 12 Nov 2024 at 06:01, Stephen vJ <sjaar...@gmail.com> wrote:
Some very strong and interesting points... and of course the Canadian references are of particular interest to me. Thanks a lot for sharing this Trevor - it is clearly well thought through and carefully edited, which must have taken many hours. I have two short comments, but I want to point out that the brevity of my response is not reflective of the value of this piece - I think it is something to publish and reference back to in future.

My two comments;

1. I like the concept of choice (the accused can waive the right to a jury) and multiple solutions (some cases are too small or straight-forward to justify the expense of a jury). Canada is by no means perfect and I am regularly shocked by the ability of police here and to the south to destroy the lives of innocent people by wrongful and long term arrest - something South Africa summarily ended almost immediately after Mandela was released... but I do like the practicality of not having a jury in every case, considering the burden it puts on the jurors and the tax payer. One of my biggest concerns with juries is the parallels it has to military conscription and how it is achieved through compulsion. My proposed jury system does not use compulsion. Each litigant selects 6 (or some equal number) jury members, probably friends, family or colleagues, and they have the option to decline.

2. Juries may be closer to freedom than decrees by the king, but it is so in the same way as democracy is closer to freedom than a monarchy - they still assume the existence of government and oppression, just with the throttle in the hands of more people. No state compulsion involved or required. Just a shared desire to litigate an issue cheaply and fairly. I would much prefer other kinds of trial not dependent on the existence of government, like trial by HR or trial by HOA or trial by private arbitration service. I currently have a dispute with my neighbour and I can (and probably will soon) phone the town's "Bylaw" line and have them send out a Peace Officer to come chat to the guy, but I wish this was a private service.This will almost certainly result in the officer being redirected to you.

In short, I think I'm coming around to the idea of a jury having a place in the world, but I would not consider that the one and only solution available to us. I would consider it a tool in the toolkit of defenses against government (along with democracy, a constitution, a bill of rights, legal process) rather than a feature of Libertarianism, which does not need any of those tools. You don't need a constitution if there is no State to apply it to. But you will always have fellow citizens with whom you have disputes.

vlie...@btinternet.com

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Nov 12, 2024, 12:30:56 PM11/12/24
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In the UK, any individual has a one in three chance of being summonsed to do jury service once in their lifetime.  When I did jury service, it appeared to me that the area from which jurors were summoned was the northern third of Hampshire (by area) which has a population of about half a million. Between 40 and 50 people were summonsed and as far as I could see, three courts were in session.  It also appeared that those summonsed were chosen at random from the voter’s roll. Certain people were prohibited from sitting - basically anybody connected with the justice system (police, lawyers, judges etc) and anybody with a serious criminal record. Fifteen potential jurors were then summonsed to appear in the relevant court. The clerk of the court had the names on those fifteen on cards which she was openly shuffling and then she would draw a name. Twelve names were drawn, and they were the chosen jury unless there was an objection to any one of them (eg they knew the accused, one of the barristers, solicitors, judge etc). In order to secure a conviction, ten jurors out of twelve had to agree on a "guilty" verdict. If a juror dropped out due to illness etc (unlike the US, there were no "reserve jurors"), then ten out of eleven had to agree on a verdict.

 

In order to test the reliability of this system, we need to apply some statistics. A lot of work has been done of quality control using statistics and those statistics can be applied to the way in which the jury works. In the real world, some jurors will be unreliable - even if the defendant is blatantly guilty, they will vote "not Guilty" and equally, if for some reason they do not like the defendant (often the wrong colour skin, wrong accent etc), they will vote "guilty", even if he is not guilty. Sometimes it might happen that two such people will be on the same jury which effectively means that the remainder will have to be unanimous.

 

The origin of trial by jury in England was trial by one's peers. AS recently as the last century, this meant that if a member of the House of Lords was on trial, the jurors had to be chosen from the House of Lords. In the UK, things have now changed so that they go to great lengths to ensure a random selection from the population. This now works the opposite way - in specialised cases the jurors might not understand the underlying concepts: for example, in fraud cases many jurors might not really understand the concepts of what constitutes fraud and what does not. In the case where I was a juror, the basic concepts that had to be understood was giving of consent to engage in having sex and the reason why a person who had a serious mental disability could not give consent. There was no need for the court to explain those concepts to the jury.

 

Going to Trevor's proposal that each party choose half the jurors is in my view a recipe for deadlock. The closest that I have heard to that was in my law course (I never completed by BCom at UNISA), I learned that during medieval times, when a dispute arose between traders in the Hanseatic League towns, a court was summonsed with six local traders and six visiting traders as the jury who were urged to get a verdict before the tide changed.    

Stephen vJ

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Nov 12, 2024, 2:11:40 PM11/12/24
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And the compulsion problem ?

Stephen.

On Nov 12, 2024, at 01:58, Trevor Watkins <bas...@gmail.com> wrote:



Stephen vJ

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Nov 12, 2024, 2:21:38 PM11/12/24
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Oops. My mail did not download completely for some reason, please disregard my last question.

Selecting from friends seems to me like simply escalation the dispute to a group with sides i.e. the jury is likely to be split along family lines and the result could be mobs disputing rather than two individuals. I appreciate taking out the compulsion, but that's not the way I would do it - I feel like the jury should not be invested and that a majority is not the same as agreement.

Sure, the officer might be directed back to me or he might not, but this is a step up from brawling in the street and a huge step up from mobilizing the entire legal system over a minor issue. Legal action should always be the 2nd last resort, violence being the last resort. Legal process is hugely wasteful and in most cases unnecessary. People have forgotten how to just talk about it.

Stephen.

On Nov 12, 2024, at 03:04, Trevor Watkins <bas...@gmail.com> wrote:



Stephen vJ

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Nov 12, 2024, 2:27:12 PM11/12/24
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I agree... except I think we're putting a huge emphasis here on one very little step in a much bigger process... by the time it gets to a jury, many other steps should have been passed and those, in my opinion, are far more important and significant. Identifying the source of the trouble, being probably the most important. I also think SA is one of the very few places who got things closer to correct wrt arresting and holding people.

Stephen.

On Nov 12, 2024, at 10:31, vlietstra via Individualist Movement <indivi...@googlegroups.com> wrote:



Stephan Botes

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Nov 13, 2024, 3:11:20 AM11/13/24
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No one knows about or mentions the eleant in the room. An excerpt from my book Guilty Unless Proven Innocent - the Vendetta


"Be seated and come to order. Bring the jury in," Cooper ordered the bailiff.


Two lone white faces, both young, one male and one female, among a sea of black females and one Hispanic male struck Stephan as peculiar, seeing the jury assembled like this for the first time, seated in rows in a cordoned-off section to the left of

 the prosecution's tables. In the state of Georgia, females are 50.8% of the population and whites 65.8% according to the U.S. Census Bureau in 2006. This jury was 75% female and only 16.66% white. A rich white male from South Africa was

 being judged by a predominantly poor, black and female jury and a black judge. What's wrong with this picture?

What Stephan did not know at the time and what Steel and Griffin would never tell him was that the jury he was looking at was not a jury as contemplated by the Sixth Amendment to the Constitution for the united States—no, it's correct, united

 States as written in the Constitution—that guarantees the accused a trial by jury. A constitutional jury would be a common-law jury of his peers, his equals, of the same social and legal standing, who could judge the facts and the law, and if the law

is oppressive, could refuse to apply the law—the citizens' protection against overreaching or abusive government. The jury that Stephan was looking at had been sworn to apply the law as Cooper dictated and could only decide the facts, and was by

 no means a jury of Stephan's peers, equals and of the same social and legal standing.

The impartial jury guarantee of the Sixth Amendment is a restatement of the language of the English Magna Charta (19th chapter) that calls for a man's equals, that is, of men of his own condition, as Lord Coke described in his commentaries. "A jury is

 a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as he holds," the Supreme Court

 recognized in Strauder v. West Virginia 100 U.S. 303 (1879).

In what way were members of this jury Stephan's peers and equals, having the same legal status in society?

  1. Stephan was a permanent resident, called a resident alien, an affluent, white South African male. The jury consisted of mostly relatively poor black females who were all United States citizens.

  2. Stephan owned and ran several international companies with hundreds of employees. No juror had ever owned or run a company or managed more than a few people.

  3. Jurors qualified for Government jobs, could vote, could run for public office and become president of the United States; Stephan could not.

  4. Stephan if convicted, even for minor offenses such as passing a bad check or a traffic offense such as driving under the minor influence, would lose all Social Security benefits and be deported; jurors not.

  5. Stephan could be criminally prosecuted and deported for failing to report a change of address; jurors not.

  6. Unlike jurors, if convicted, Stephan would be ineligible to get a year off his sentence by taking certain classes; would be ineligible for camp or minimum-security level confinement; could not get a job in UNICOR, the government-sponsored prison

              industry; jurors could.
        7.  Stephan could be detained by Immigration for six months or longer even after completion of his sentence; jurors not.
        8,  Stephan in order to acquire U.S. citizenship would have had to waive his constitutional rights not to be required to act as a witness against himself and be compelled to divulge all kinds of private and personal matters; jurors not.

In fact, one would be hard-pressed to find in what way the jurors were Stephan's peers and equals and of the same social and legal standing.

The Supreme Court recognized in Taylor v. Louisiana 419 U.S. 522 (1975) that the jury has to be selected from a representative cross-section of the community. In Duran v. Missouri 439 U.S. 357 (1979), it held that representation of the population not reflected in the composition of the jury violates the requirement of the Sixth Amendment. Recognizing that "common sense and common experience confirm that conscious and unconscious prejudices persist in our society that influence juries" and "racial animus will affect the verdict," Justice Clarence Thomas in Georgia v. McCollum 505 U.S. 42 (1992) found that "the integrity of the courts is jeopardized where prosecutor's discrimination invites cynicism respecting the jury's neutrality and undermines public confidence" in the verdict. Stephan's jury being 83.33% non-white and 75% female in a district where males and females are virtually evenly matched and is 66.8% white "is a disparity unlikely to have been produced by happenstance," the Supreme Court recognized in Miller-El v. Dretke, 545 U.S. 231 (2005). The Eleventh Circuit Court of Appeals, in which the District Court in which Stephan was tried falls, recognized, "If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must (emphasis mine) conclude that racial or other class-related factors entered the selection process,'' in Bryant v. Wainwright 686 F.2d 1373 (11th Cir. 1982). The Government would argue, and some inferior courts would agree, that unless the defendant can show that the Government has systematically been doing it in a long line of cases over a prolonged period of time, the defendant can't assert a claim that his jury was rigged; the judges quite willing to ignore the absurdity that an accused's constitutional right is only violated if he can prove that the Government has done it to many others and that he just happens to be the last one in a long line. The Government and those inferior courts require an accused to prove continuity, that the Government has been shuffling the cards and stacking the decks behind the scenes all along, "imposing a crippling burden on the accused to discover that which the Government has every incentive and power to conceal," and ignore the Supreme Court holding in Williams v. State of Georgia 349 U.S. 375 (1955), that an accused is "not required to make a searching investigation out of court to determine whether jurors who are summoned are disqualified … [N]ot only is no such duty placed by the law upon the accused and his counsel, but the contrary practice is to be encouraged for obvious reasons.'' The Government would argue that exclusion from a jury is a violation of the juror's right to sit on the jury and disqualification or discrimination could only be asserted by the excluded juror, choosing to ignore that it is the right of the accused that is guaranteed by the Sixth Amendment, not the excluded juror's, according to the Supreme Court in Virginia v. Reeves 100 U.S. 313 (1880) and Ex Parte Commonwealth of Virginia 100 U.S. 339 (1879). It is not the accused's duty to vet the Government and judge's jury selection process to ensure an impartial jury of his peers and equals, of the same legal status and a statistical representation of the community; it is the Government and the judge's. The Supreme Court in Martin v. Texas 200 U.S. 316 (1906) placed the burden on the prosecution to prove that that particular jury was a statistical representation of the community. In Neal v. Delaware 103 U .S. 310 (1880), the Supreme Court held that exclusion or jurors because of race—in Stephan's case whites—violates the defendant's right to an impartial jury under the Constitution.

No defense attorney practicing in federal court will inform the client, the accused, of the issues and law cited above.


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Stephan Botes
071-026-5955
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Never live for the sake of another, nor require any to live for the sake of
yours. Never grant the unearned, nor demand the unearned.




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