Call for jurors

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Trevor Watkins

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Feb 25, 2021, 3:03:39 AMFeb 25
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Hi

One of the most fundamental concepts of the Individualist Proposition is the idea of trial by a jury of your peers.But would such a concept work in practice? I am keen to find out.

John Doe is a security guard working for a private corporation in Baghdad, Iraq. On 23rd January he was sitting at a cafe drinking coffee on the outskirts of a busy local market. He idly observed a person wearing a full burka enter the market. A sudden gust of wind lifted the burka momentarily, revealing what looked like a belt attached with wires and straps to the midsection of the person .  John feared that this person might be a suicide bomber, and that hundreds might be hurt or killed if he was right and did not act.  He drew his gun  and shot the person in the burka in the head, killing the person instantly.  
This jury must decide the guilt or innocence of John, and the sentence if guilty.

The trial will be held online on Google Meet at meet.google.com/eki-kcdr-guu on Tuesday 2nd of March 2021 starting at 7pm. A minimum of 6 and a maximum of 12 jurors are required. Reply here to volunteer. 

The members of the jury will have absolute discretion to set their own rules of procedure and legal system, election of foreman, and appointment of judge. Of course this may be agreed in advance on this thread, if possible.  Trevor Watkins will play the role of the accused, John Doe.

Step outside your comfort zone. Help to test the practicality of an important Individualist principle. Discover whether intelligent individuals can cooperate to provide a viable legal system without state interference.

Regards
Trevor Watkins

Gavin Weiman

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Feb 25, 2021, 7:39:59 AMFeb 25
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Hi,

1) It may well be a fundamental idea that one be tried by a ‘jury of one’s peers.” 

The question is who is your ‘peer’ 

Usually a citizen with with all his or her civil rights intact. 

Jury trials were abolished in South Africa during the Apartheid era because jurors were identified from the voters roll and its did not seem much like a jury on ones peers when a ‘black’ man stood to be tried by a 12 white farmers.

If one did this in South Africa today - even though all South Africans now have the vote the notion of peers may look a little odd since our population is heterogeneous and still seems fraught with prejudice and or preconceptions.

2) Also, even though the notion of jury trials is quite fundamental, the notion that the jurors can decide the law and the procedure in their absolute discretion is NOT, in fact quite the opposite is true and such a notion has never existed in all the history of jury trials. Jurors decide the facts only and not the law (which the judge applies) and the procedure is guided but the law (judge who guides the procedure). In this regard the holy idea is ‘equality before the law’ and the right of 'due process.’

A jury with he right to decide law and procedure in its absolute discretion is basics a lawless mob.

Obviously if an unjust law existed a jury of fair minded people could make a ‘factual finding’ of innocence that circumvented the unjust ‘law’ and this might be difficult to to prove. This is why jury trials are usually exclude for many statutory or public law type of offences.

I’m cannot participate in the discussion of Jon Doe’s guilt or innocence as a juror, I’m a trained lawyer.

If there was a jury trial it would be the judges duty to explain the law relating to self defence to the jurors and the main issues of fact to the jury and instruct the jury how to act. Eg The judge would instruct the jury that if they believed John Doe’s evidence beyond a reasonable doubt that he believe a deadly attack on his life and those near him had commences or was immanent and that killing the assailant was the only reasonable action in the factual circumstances, then the jury must find John Doe not guilty. etc.. [Your example is a little short on other facts so the alternative arguments on the facts are difficult to consider, so to me this would be a very boring exercise]


Regards
Gavin


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Trevor Watkins

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Feb 26, 2021, 10:15:57 AMFeb 26
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Hi Gavin.
Thank you as ever for your thoughtful reply. It is sad that this longer form medium of discussion seems to have given way to sound bites and repostings on Whatsapp.
Comments in red below.
Trevor Watkins
bas...@gmail.com - 083 44 11 721 - www.individualist.co.za
PO Box 3302, Jeffreys Bay, 6330


On Thu, 25 Feb 2021 at 14:40, 'Gavin Weiman' via LibertarianSA <li...@googlegroups.com> wrote:
Hi,

1) It may well be a fundamental idea that one be tried by a ‘jury of one’s peers.” 

The question is who is your ‘peer’ 

Usually a citizen with with all his or her civil rights intact. 

Jury trials were abolished in South Africa during the Apartheid era because jurors were identified from the voters roll and its did not seem much like a jury on ones peers when a ‘black’ man stood to be tried by a 12 white farmers.

If one did this in South Africa today - even though all South Africans now have the vote the notion of peers may look a little odd since our population is heterogeneous and still seems fraught with prejudice and or preconceptions.
A classic case of throwing the baby out with the bathwater, to abandon a good system like jury trials because you have a bad system like apartheid.  In thinking about how "better" governance systems might work I find it useful to narrow the focus. Don't start by trying to imagine a system for a deeply troubled country of 60 million people, Rather picture a small community (say 1000 people) of liberal minded people living in a breakaway commune in the Northern Cape. What might work for them?  In this case, your peers are anyone over 18 in your community..  

2) Also, even though the notion of jury trials is quite fundamental, the notion that the jurors can decide the law and the procedure in their absolute discretion is NOT, in fact quite the opposite is true and such a notion has never existed in all the history of jury trials.
In his book "Justice without the state"  Bruce Benson describes numerous historic legal systems which arose by mutual consent within the local community, and several that continue to this day (the African system of Lekgotlas, and Xeer law in Somalia). It is quite feasible that people living in an isolated small community free from current enforcement might choose to make up their own court procedures and rules. Of course the would be guided by historic legal concepts, but not tied to them.
Anyway, that is what I am asking potential jurors in this case to do. I doubt it will be boring.
Jurors decide the facts only and not the law (which the judge applies) and the procedure is guided but the law (judge who guides the procedure). In this regard the holy idea is ‘equality before the law’ and the right of 'due process.’

A jury with he right to decide law and procedure in its absolute discretion is basics a lawless mob. Or a lawgiving group.

Obviously if an unjust law existed a jury of fair minded people could make a ‘factual finding’ of innocence that circumvented the unjust ‘law’ and this might be difficult to to prove. This is why jury trials are usually exclude for many statutory or public law type of offences. Precisely.

I’m cannot participate in the discussion of Jon Doe’s guilt or innocence as a juror, I’m a trained lawyer. Unfortunately I am not sure this can be cured :-)

If there was a jury trial it would be the judges duty to explain the law relating to self defence to the jurors and the main issues of fact to the jury and instruct the jury how to act. Eg The judge would instruct the jury that if they believed John Doe’s evidence beyond a reasonable doubt that he believe a deadly attack on his life and those near him had commences or was immanent and that killing the assailant was the only reasonable action in the factual circumstances, then the jury must find John Doe not guilty. etc.. [Your example is a little short on other facts so the alternative arguments on the facts are difficult to consider, so to me this would be a very boring exercise] My example is deliberately short on facts not relevant to the guilt or innocence of John Doe. 

This is an exercise to identify the challenges and problems with a trial by jury. It seems that the first insurmountable obstacle is to find  enough libertarians willing to participate.

Regards
Gavin


On 25 Feb 2021, at 10:03, Trevor Watkins <bas...@gmail.com> wrote:

Hi

One of the most fundamental concepts of the Individualist Proposition is the idea of trial by a jury of your peers.But would such a concept work in practice? I am keen to find out.

John Doe is a security guard working for a private corporation in Baghdad, Iraq. On 23rd January he was sitting at a cafe drinking coffee on the outskirts of a busy local market. He idly observed a person wearing a full burka enter the market. A sudden gust of wind lifted the burka momentarily, revealing what looked like a belt attached with wires and straps to the midsection of the person .  John feared that this person might be a suicide bomber, and that hundreds might be hurt or killed if he was right and did not act.  He drew his gun  and shot the person in the burka in the head, killing the person instantly.  
This jury must decide the guilt or innocence of John, and the sentence if guilty.

The trial will be held online on Google Meet at meet.google.com/eki-kcdr-guu on Tuesday 2nd of March 2021 starting at 7pm. A minimum of 6 and a maximum of 12 jurors are required. Reply here to volunteer. 

The members of the jury will have absolute discretion to set their own rules of procedure and legal system, election of foreman, and appointment of judge. Of course this may be agreed in advance on this thread, if possible.  Trevor Watkins will play the role of the accused, John Doe.

Step outside your comfort zone. Help to test the practicality of an important Individualist principle. Discover whether intelligent individuals can cooperate to provide a viable legal system without state interference.

Regards
Trevor Watkins

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Erik Peers

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Feb 26, 2021, 11:52:05 AMFeb 26
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The first problem is a jury of one's peers. (Or Peers if they will have me). Most of us are peerless. Seriously.
"I was on the beach during lockdown because it is the safest place from a virus." How can the average man in the street possible understand that?

Leon Louw (gmail)

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Feb 26, 2021, 1:49:19 PMFeb 26
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Good discussion.

Since my discovery of and conversion to libertarianism in the early 1970s, the libertarian jury meme bothered me. I could never find a rational explanation. My conclusion after lots of reading and discussion/debate is that it's essentially a feeling. That doesn't trivialise it. After all a preference for liberty is "merely" a feeling, an impulse, a predilection ....

Having studied law when the matter was still a lively debate in SA, I concurred with :liberal" jurists that trial by experts (judicial officers) is preferable

Being mindful of risks either way -- or other options such as "lay" magistrates in the UK, and "elders" in sundry "traditional" systems -- all options need rigid checks and balances against bias and abuse.

In the study of "international law" -- I did a year -- one of the most interesting things is how many variations there are. Our somewhat crude discourse is -- like most analysis -- binary. It presumes jury vs non-jury. But that's far short of the real issues: what should juries decide, how should they be constituted, should they be sequestered, how should magistrates be mandated, who should they be, and so on -- many many scenarios.

My general preference is anti-jury ..... in most contexts. In narrowly defined contexts juries seem like a good idea to me.



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Trevor Watkins

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Feb 27, 2021, 9:43:22 AMFeb 27
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Hi Leon. Thanks for your reply. 
As you probably know, I am a libertarian secessionist. Most of my thinking relates to how a small community (a few hundred to a few thousand) would organise itself, what rules would be adopted, what institutions established.  I do not really concern myself with reforming the current systems which I regard as hopelessly broken and beyond piecemeal repair.  So, view this enquiry about jury systems as taking place in a small, libertarian-minded community with little tolerance for traditional systems. This is as much an enquiry about whether libertarians can accomplish anything mildly complex, as it is about particular jury or legal systems.

Further comments in red below.
Trevor Watkins
bas...@gmail.com - 083 44 11 721 - www.individualist.co.za
PO Box 3302, Jeffreys Bay, 6330

On Fri, 26 Feb 2021 at 20:49, Leon Louw (gmail) <leon...@gmail.com> wrote:
Good discussion.

Since my discovery of and conversion to libertarianism in the early 1970s, the libertarian jury meme bothered me. I could never find a rational explanation. My conclusion after lots of reading and discussion/debate is that it's essentially a feeling. That doesn't trivialise it. After all a preference for liberty is "merely" a feeling, an impulse, a predilection ....

Having studied law when the matter was still a lively debate in SA, I concurred with :liberal" jurists that trial by experts (judicial officers) is preferable because, as recent events will bear witness, "experts" are so unlikely to make mistakes or favour their own interests.

Being mindful of risks either way -- or other options such as "lay" magistrates in the UK, and "elders" in sundry "traditional" systems -- all options need rigid checks and balances against bias and abuse. The principal check and balance on jury systems is a reliance on the sense and fairness of your fellow citizens. That is why I think there must be a critical minimum size for juries. 12 seems like a good number tested by time.

In the study of "international law" -- I did a year -- one of the most interesting things is how many variations there are. Our somewhat crude discourse is -- like most analysis -- binary. It presumes jury vs non-jury. But that's far short of the real issues: what should juries decide, how should they be constituted, should they be sequestered, how should magistrates be mandated, who should they be, and so on -- many many scenarios. Those are precisely the issues our jury discussion must address.

Leon Louw (gmail)

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Feb 27, 2021, 3:59:58 PMFeb 27
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Regardless of the size of the community, even in a small office as we are finding, how you adjudicate is a complex question.

I'm no historian, nor a sociologist nor anthropologist, but think that the most common approach in small communities has traditionally been recourse to respected "elders". In little libertarias, I'd recommend that in preference to juries.

There's a splendid psychology video somewhere -- saw it a few years ago -- look for it -- where they faked a mugging then got witnesses on a panel in a court to recount on oath what they saw, The group of 10 or so included 2 actors. When someone said the woman's coat was red (which it was) one of the plants said no, and the other agreed emphatically that it was grey. And so on.

By the end of it everyone was swearing on auth that what they saw was quite different from what they actually saw. People are too gullible and false consciousnesses too normal for me to want juries. Juries too easily manifest the "madness of crowds".

Bear in mind that there are multiple "jury systems". What juries are asked to do varies profoundly. Do they decide what the law is? Or do they decide what's just? Or who's telling the truth? Or what the judgement should be? Or which witnesses to call? Or which criteria to use (probability or certainty)? Or, or, or  ..... ?

When libertarians say they want a "jury system" do they know what they mean? My impression is almost universally, no. It's become a vacuous shiboleth.

Leon Louw (gmail)

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Feb 27, 2021, 6:40:51 PMFeb 27
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"Those are precisely the issues our jury discussion must address"

Do you really want a discussion, or is your mind made up? That's my impression.

It is not of great interest to me, so I'll watch.

Whether there are juries and how they should function are, in any event, not libertarian questions.

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