But if you listen to Thomas Wells Jr.'s public statements--and if you have some personal experience with the real ailments of our justice system (as I, unfortunately, do)--you might see the new ABA head as a grandstander who isn't interested in making substantive change.
Our impression at Legal Schnauzer is that Wells, like many of his professional colleagues, is more about protecting the interests of lawyers and less about doing what's best for citizens--or our struggling republic.
This post is not meant as an across-the-board condemnation of lawyers. Heck, we spend much of our time in SchnauzerWorld standing up for lawyers--Don Siegelman, Paul Minor, Wes Teel, John Whitfield--who have been the victims of wrongful prosecutions. Two of the biggest heroes in SchnauzerWorld--Scott Horton and Jill Simpson--are lawyers. In fact, I think it's safe to say that we never will get to the bottom of the Bush Justice Department scandal without the smarts, courage, and toughness of noble and honest lawyers.
But there is a flip side to all of this. Siegelman & Co. were prosecuted mostly by dishonest lawyers. And the Bush DOJ was turned into a sewer mostly by dishonest lawyers.
On a personal note, my wife and I have seen our lives turned upside down by unscrupulous lawyers and judges.
So let's consider what H. Thomas "Tommy" Wells is saying as he takes over at the ABA. Wells, by the way, is a founding partner at the Birmingham firm of Maynard Cooper & Gale. He is the third Birmingham resident to head the ABA; the others were Henry Upson Sims (1929-30) and N. Lee Cooper (1996-97).
What issues is Wells pushing?
* He wants to promote diversity in the legal profession. No problem there. I'm sure that's a legitimate issue and needs to be addressed.
* He wants to make sure that everyone has access to fair representation, especially the indigent. That sounds good, but my impression is that legal services already exist for the poor and indigent. And the wealthy probably don't have a problem finding representation. But what about the middle class? Does anyone know how quickly a middle-class family can be wiped out when they have to pay a lawyer $400 an hour? I've yet to hear Wells or any other leader in the legal community raise this issue.* He says he wants to reduce partisanship in judicial elections and promote the rule of law in our courts. These are both noble goals. But then Wells undercuts his argument by saying . . .
* He wants to preserve judicial independence and the legal profession's independence.
We already have an independent judiciary and a self-regulating legal profession--and both concepts have been colossal failures.
The truth, which Wells evidently does not want to face up to, is this: As long as judges essentially answer to no one and lawyers police themselves, we will continue to have a corrupt justice system.
Why was Don Siegelman wrongly prosecuted and sent to federal prison for nine months (pending appeal)? Why are Paul Minor, Wes Teel, and John Whitfield currently in federal prison while their appeals are heard?
There is no one answer to those questions. But here are two huge factors:
* Federal judges Mark Fuller (in Alabama) and Henry Wingate (in Mississippi) have lifetime appointments, and no one really oversees what they are doing. Oh, appellate courts can review what they did and perhaps overrule them. But do Fuller and Wingate fear any personal consequences for violating their oaths to uphold the law? Not really. Who's going to punish them for intentionally making unlawful rulings? No one.
* Federal prosecutors Leura Canary (in Alabama) and Dunn Lampton (in Mississippi) had no fear of personal consequences for handling cases where they had clear conflicts. Who's going to hold them accountable? Alberto Gonzalez? Michael Mukasey? Don't make me laugh.
And let's consider another problem that Wells apparently doesn't want to deal with: If you can pay the filing fee, you can sue anybody for anything--no matter how ridiculous--in the U.S. of A.
There is no standard you have to reach--no level of quality or legitimacy your case must attain--in order to file a lawsuit.
If you can find a lawyer who will file it, you're on. If you can figure out how to do it yourself, you're on. And you or your attorney are unlikely to face any consequences if your case happens to be totally bogus. The other party might get your bogus case dismissed fairly quickly. But they probably will have to hire an attorney and shell out at least $2,000 or $3,000 to defend it. You, meanwhile can walk away with the satisfaction of knowing you've caused someone a headache.
Even bogus cases, however, are not always dismissed when they should be, by law. I know that firsthand. Consider the following scenario:
You and I are acquaintances, and we pass each other at a party. I say hello, but you don't see me and pass without speaking. I decide my feelings are irreparably bruised, so I call an attorney friend who also happens to be my gambling buddy. "Hey," my attorney friend says, "let's sue that SOB for causing you emotional distress. We'll wring some cash out of his insurance company and use it to go on a trip to Vegas. And hey, I play golf all the time with one of the judges, and we can make sure he gets the case. He'll drag the case out so long that your unfriendly SOB will be begging us to take his cash. We might have to cut the judge in on the action, but it'll be worth it for a free trip to Vegas."
This all sounds good to me, so I sue you for hurting my feelings at the party--intentional infliction of emotional distress, my attorney calls it.
My fictional scenario might sound ridiculous. But trust me, it has more legal merit than the actual lawsuit that was filed against me. And I suspect my little fictional scenario--or scenarios very much like it--take place in our great country all the time. How do we all pay for this? Take a close look at your homeowner's insurance bill next time it comes in the mail.
What to do about this kind of corruption and waste? How do we truly repair our broken justice system?
Well, I'm not going to pretend that I'm qualified to answer such questions. But hey, this is my blog--and if you can't spout off on your own blog, where can you spout off? So here is our Legal Schnauzer Rx for what ails America's legal profession.
My general suggestion? Get regular citizens, non-lawyers, heavily involved in the process.
Lawyers have proven that they can't regulate themselves, so let's stop pretending that they can. Most bar associations scare lawyers about as much as Barney Fife scares the criminals of Mayberry. And most judicial inquiry boards scare judges about as much as Otis the Town Drunk scares the criminals of Mayberry.
We need citizen boards with the power to disbar, impeach, fine, spank, apply wedgies, and recommend indictments for wayward lawyers and judges. Obviously these boards will need to be trained by honest lawyers (perhaps law professors?). And they will need lawyers available for advisory purposes. But citizens need to be the ones who determine if lawyers and judges are following the law. And citizens need to be given the teeth to bite bad lawyers in the britches--until it hurts.
I nominate Jill Simpson and Scott Horton to implement the Schnauzer plan across the nation. (Assuming they agree with me, of course; but I know they are smart people, so surely they will agree with me.)
Here's the plan:
* Every county/jurisdiction in the country needs a citizen board that reviews lawsuits to determine if they have enough merit to move forward into the courts. If they do not, the lawyer/citizen who brings them is fined. A lawyer who brings too many of these is suspended;
* For lawsuits that do move forward, citizen boards will review the actions of judges and lawyers to make sure the law and procedure are being followed. These boards will have the authority to heap a serious hurtin' on wayward members of the legal profession;
* Similar boards need to be in place for criminal cases;
* Statewide boards will oversee appellate courts. Don't assume that the higher up you go in the justice system, the more likely it is that judges will be honest. Some of the biggest crooks of all sit on appellate courts. And in many states, they have this nasty little tool, a no-opinion affirmance, that allows them to sweep trial-court wrongdoing under the proverbial rug. All rules that allow no-opinion affirmances should be overturned;
* I'm sure I'm leaving out some good ideas, and I welcome input from readers. But here is the big kahuna of all possible remedies for our justice system--the one that sends many lawyers, and all judges, into spasms of fear. The remedy? Doing away with judicial immunity. Most Americans probably don't know this, but no matter how badly a judge cheats you in court, you cannot sue him for his judicial actions. This is because of the doctrine of judicial immunity. Folks like ABA President Tommy Wells will tell you that this doctrine is essential to maintaining an independent judiciary. Legal Schnauzers like me will tell you this doctrine is a license to cheat. And way too many judges take advantage of this license. A California-based organization called Jail 4 Judges is pushing a Judicial Accountability Initiative Law (J.A.I.L), which would take judicial immunity and show it the door--and I'm about 85 percent sure the JAILers are right. J.A.I.L is the brainchild of a fellow named Ron Branson, and he might be the most hated man in America among all judges and many lawyers. That means I think Ron Branson is a pretty good guy. We will discuss judicial immunity--a concept that has an intriguing history--and J.A.I.L. in an upcoming post. Like I say, I'm not sure J.A.I.L. is the best way to go. But Branson impresses me as a serious guy who has given serious thought to a serious problem. His voice needs to be heard, and his ideas should be on the table.
As for the ABA, I find it ironic that its new president is from Alabama. Perhaps the worst miscarriage of justice in a criminal case over the past few years is the Don Siegelman case. Where did it take place? Alabama. Perhaps the worst miscarriage of justice in a civil case over the past few years was the ExxonMobil ruling that overturned most of a $3.6 billion verdict against the oil giant and its record profits. Where did it take place? Alabama.
I wonder if many members of the ABA seriously think a lawyer from Alabama, particularly one from a mainline Birmingham firm, is likely to lead the legal profession into an Age of Enlightenment.
I doubt it.
Dear Roger: You have truly inspired me on this issue and I'm going to cite you in my next post. Your plan has already been implemented by Hugo Chavez in the Bolivarian Republic of Venezuela. He calls the citizen's boards "communal council's." They police the judges, lawyers and cops and have armed local militias ready to give teeth to their rulings.
ReplyDeleteP.S. the radio program is coming but it's more technical than I thought. I'll keep you posted
no one claims the current system is without its shortcomings, but you're suggestion is not only far from reasonable, it's unconstitutional (especially as to the federal courts). inherent in the fed constitution, and expressly a part of many state constitutions, is the doctrine of separation of powers. your proposal would render the judiciary nothing more than a secondary legislature, able to act only subject to the will of the people. how will this further the counter-marjoritarian goals you (assumedly) seek?
ReplyDeleteat least your proposed a solution; state court judges, particularly the election thereof, has its problems. this, however, is far from a solution.
http://www.democracydefined.org/
ReplyDeleteThe Home Page of The Democracy Defined Campaign
for RESTORATION and UNIVERSAL ADOPTION of
CONSTITUTIONAL COMMON LAW TRIAL BY JURY.
The Democracy Defined Campaign Philosophy is endorsed by academics, attorneys,
doctors (of jurisprudence, medicine, homeopathy, philosophy, etc.) and judges (U.S. & U.K.).
(Standard English Spelling)
Dear Roger Shuler,
For your interest, the following responds to your article "Legal Schnauzer."
On the Anti-Constitutional Aspects and Intrinsic Failure of Competence of
the "Judicial Accountability Initiative Law" (JAIL).
In order to show how the constitutional, legal and moral criteria of common law are in conflict with the thesis of the JAIL, let us first consider some facts about Trial by Jury:
Trial by Jury Was Constitutionally Emplaced for the Purposes of:
A.) not only ascertaining guilt or innocence of the accused and where necessary for apportioning retribution, but also
B.) of transcendent importance, as a barrier to protect the vast mass of innocent citizenry from the crimes of arbitrary government, i.e. unjust laws, tyranny; and from the prejudices and incompetence of fallible justices (judges). Trial by Jury enables the people to judge authoritatively what their liberties and laws are (as explained herein), so that the people retain all the liberties which they wish to enjoy.
Naturally, people have the moral responsibility, the right and the duty to resist and suppress injustice wherever it occurs, and by whomsoever it is perpetrated, governments notwithstanding. Through Trial by Jury, the Constitution requires the People at all times to retain the Supreme Power to annul injustices and bad laws made by fallible politicians.
This Power is uniquely embodied in the Citizen-Juror’s Duty in Trial by Jury: to judge the justice of every act of law enforcement, and to render the Not Guilty Verdict whenever conviction or punishment of the accused would be unfair, according to the juror’s conscience.
Consider U.S. Chief Justice Harlan F. Stone on the Juror’s Duty, as follows:
"If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural God-given unalienable or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law."
"That juror must vote Not Guilty regardless of the pressures or abuses that may be heaped on him by any or all members of the jury with whom he may in good conscience disagree. He is voting on the justice of the law according to his own conscience and convictions and not someone else’s. The law itself is on trial quite as much as the case which is to be decided."
U.S. Chief Justice Harlan F. Stone, 1941-1946.
(Emphases added.)
Authentic Trial by Jury denies the judge the authority
by which injustices by government can be inflicted.
The Juror's Duties form the constitutional barrier preventive of injustice by judges.
Today, judges' infractions of common law Trial by Jury mislead people into thinking that the process which they see taking place in courtrooms across the land, which is actually a mistrial, is a "trial by jury." JAIL entrenches that disinformation. That it is very far from the Constitutional Trial by Jury is shown by comparing the modern masquerade with the obligations, functions and duties of Jurors by which Trial by Jury is defined, and which are nowadays denied by the illegal interventions of politicians and judiciary.
(See below: the Juror's Duties and the correct rôle of judges in Trial by Jury.)
In this regard, the government is worse than merely neglectful: it misinforms the public en masse in schools and law schools about the law, history, and the Constitutional Trial by Jury Justice System. The malindoctrination severely disables many people's mentality and adversely affects Branson. His resultant ideas are not only misconstrued but (if curtailment of injustice is truly his aim) his proposals are also self-defeating.
THIS CASE RULING EXEMPLIFIES CONSTITUTIONAL TRIAL BY JURY AT WORK:
"If the jury feels the law is unjust, we recognise the undisputed power of the jury to acquit even if its verdict is contrary to the law as given by the judge, and contrary to the evidence."
"If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
United States v. Moylan; U.S. Fourth Circuit Court of Appeals, 1969.
Neither in the United States, Britain, Eire, Australia, Canada, New Zealand, nor in all of Europe have legislatures ever been invested by the People with authority to remove the universal Right of the accused to the Trial by Jury of peers for any charge or offence whatever, however serious or trivial, nor to impair the powers, to change the oaths, or abridge the jurisdiction of jurors.
Today, U.S. v Moylan is not exemplified by the modus operandi of courts. The Constitutional rule of law Democracy has been overturned by politicians and judiciary.
RESTORATION... The Democracy Defined Campaign.
Restoration of the constitutional common law governing Trial by Jury implements the citizens’ inherent, inalienable, eternal rights to liberty and justice, as follows:
Firstly, to the right to a (genuine) Trial by Jury in defence; and in Common Law Trial by Jury, the jury operates on the presumption of innocence and is called upon to review the evidence presented by the plaintiff, which the accused may refute.
Defence likewise may present exonerative evidence and, furthermore, instigate a Counter Plaint or charge, presenting the evidence for the jury’s consideration as to whether aspects of the law render its enforcement invalid or unjust; that the prosecution is malicious or frivolous, which wastes the jurors’ (the court’s) time and constitutes a crime, per se.
So, the defence may be simultaneously suing the prosecution for damages, and instigating a criminal trial of the plaintiff. The jury is well-placed to try (judge) the causes concurrently. By this means, the Constitutional Common Law Trial by Jury Justice System discourages or pre-empts malicious private or government prosecutions; and moreover, genuine Trial by Jury swiftly leads to the elimination of inequitable (unjust), bad, arbitrary or unwanted legislation and regulations.
Secondly, the ordinary citizen’s right to place the evidence in a cost-free arraignment of wrongdoer/s (regardless of the ‘importance’ or position of the accused) in front of fellow citizen-jurors in a Trial by Jury. No one is above the common law of the land. No one is ‘immune’, judges, executive and legislators notwithstanding.
When the fact of all the people having equal and ultimate control over the enforcement of laws in the Trial by Jury is a firmly established social reality, it makes the passing of tyrannical legislation by national assemblies a fruitless exercise predestined to failure. Tyranny is nipped in the bud.
The immediate result of Restoration of the Constitutional Common Law Trial by Jury Justice System would be the curtailment of politicians’ and their beholden servitors, the judges’, undue powers, and the thorough reversal of their pernicious acts by which World Civilisation is currently being discreetly dismantled to establish the few select bank-owners’ supreme dictatorship.
With Trial by Jury holding sway, laws count for naught unless they be just. Thus, the People are served, not ruled, by governments. Such government then cannot but embody truly democratic ideals and civilised aspirations. This type of government attracts, and is comprised of, people representing the citizens’ interests; and oppressing none; and no tyrant can attain power. Such is democracy.
At the behest of juries of ordinary citizens, the state is constrained into enforcing only just principles and democratic attitudes which accord with the People’s judgement in Trials by Jury, such as those reflecting common law values: fraternity, liberty, egalitarianism, progress and justice.
By the diligent upholding of this Constitution, all tyranny is pre-empted. Not only are bureaucratic and fiscal injustices eliminated, but tyrants, great and petty, are emasculated. This enforceable democratic control by the People was constitutionally emplaced to extend equally over the historic and current ‘religious’ tyrannies, as to secular, which are suffered under man’s inhumanity to man.
Thus, Constitutional Democracies founded on the Common Law Trial by Jury respond to, but cannot initiate, aggression, including wars so-defined. If Trial by Jury had remained operating throughout the European nations, whence it originated, the Hohenzollern and Hitler tyrannies would have been truncated, and the Holocaust and both World Wars averted.
Let Every Teenager and Adult throughout Society Know
the Correct Common Law Rôle of the Judiciary.
According to the People's Constitutional Common Law of the Land,
the Judge Is Merely a Convenor.
According to common law Trial by Jury inserted into the Constitutions of Western and other Peoples, the 'judge' is a local person elected to convene trials: a convenor. In accord with common law, government-appointed 'justices' (judges) may not convene trials in which the government is also an interested party. Randomly selected Jurors are the sovereign arbitrators in all causes, civil, criminal and fiscal.
The functions for the convenor (or 'judge') are simple. Convenors are elected or randomly selected frequently for temporary service from amongst the local people. The judge has no judicial power to decide the outcome of a trial. Self-evidently, if the judge were to undertake such a rôle, the process would be something other than Trial by Jury. Certainly, if asked by the Jurors, the convenor may put forward his views on the law for what they are worth, but these are not binding on the Jury.
The Judiciary According to Constitutional Common Law.
It is an irrevocable principle of the traditional pan-European, American, British, Australian, New Zealand, and Canadian People's Common Law governing jurisprudence, of the U.S. Constitution (Article III, Section 2, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury"), and of Magna Carta, Article 39, that Trial of all crimes shall be by Jury [i.e. the pan-European Constitution]; and of Article 53 of John's Great Charter and Article 17 of Henry's Great Charter [the English and British Constitution], that...
...at Trial by Jury no judge or other officer appointed by government shall preside in lawsuits in which government is also an interested party. In such cases, without the observance of this prohibition there can be neither Trial by Jury, nor legal trial of any type.
The reasons for this are simple and pure: Regarding convening officers ('judges') at trials: impartiality and integrity cannot be obtained (nor realistically even expected) from people who enforce the laws who are selected by those who also make and maintain the laws. At the common "law of the land," all officers who convene jury trials, whether in civil or criminal cases, are chosen (elected) by the people. All convenors (justices; judges) are subject to common law and are answerable to the common law tribunals of the people (i.e. Trial by Jury), not protected by élite privilege nor impeachable by government and legislature. At the common "law of the land," all officers who hold jury trials, whether in civil or criminal cases, are chosen (elected) by and answerable to the people (not impeachable by government and legislature).
See Book 4 of Blackstone's Analysis of the Laws of England, p. 413; and Introduction to Gilbert's History of the Common Pleas, p. 2, note, & p. 4; etc.
Trial by Jury is so-named, for in democratic societies the trial of a citizen is by fellow citizens who comprise the Jury. Trial is not 'trial-by-government' which could never be fair where government is also one of the contesting parties. Judges themselves comprise a branch of government, and, they are in the pay of government. Police, prison service and above all, prosecutors and judges are employed to enforce governments' laws. Such personnel should never be asked, nor relied on, to decide impartially whether laws are just, for they must fulfil their task or face the fury of the government, their employer. For these reasons, government and judiciary are incompetent to require the conviction or punishment of any person for any offence whatever.
Q. When Is a Judge Not a Judge ?
A. When "the Judge" Is Not a Member of the Jury.
Until the Latin-derived word 'juror' was adopted, jurors were actually called the judges, in recognition of their rôle. "...the judges, for so the jury were called..." See p. 55 of Crabbe's History of the English Law, etc. In Trial by Jury, the Foreman or woman of the jury is the principal presiding officer.
Jury Service Is the Right and Duty of All Citizens.
In Common Law Trial by Jury, all adult citizens qualify for jury service (save convicts and lunatics). Common law requires Jurors to be indiscriminately chosen by lot or chance, so as to represent all views in society and protect minorities.
See Essay EIS#9: Jury Selection under Common Law; & Illegal 'Jury-Packing' by Government.
The Citizen-Juror's Duties in Constitutional Common Law Trial by Jury.
Note that the Judicial Functions Are Those of Jurors, Not 'Judges'.
The Juror has the following duties in Trial by Jury:
~to swear to convict the guilty and acquit the innocent;
~to judge:
~the law, and, according to the juror’s conscience, nullify tyrannical or bad law;
~the facts;
~on the admissibility of evidence;
~on the nature of the offence;
~the moral intent of the accused, whether innocent or of malicious intent: to find guilt, the accused's act requires to have been performed with malice aforethought (mens rea); and, where guilt is unanimously found, to take account of any mitigating circumstances and
~decide the fitting sentence.
Wherever Trial by Jury takes place, it is DEFINITIVE of Trial by Jury that, in finding their Verdict, the jurors perform the above duties. For jurors not to do the above, or for someone other than the jurors to make any such decisions, is another process: call it 'trial-by-someone-else' if you will, or 'trial-by-the-judge' — but this travesty cannot be defined as Trial BY JURY.
In Constitutional Common Law Trial by Jury:
~the jury has the power to call witnesses, advisers and appoint amicus curiæ;
~the correct common law rôle of convenors of courts ('judges') is as a convenor and for arranging security; advisory, inasmuch as this may be requested by the jury, of which advice jurors may take only what is by them adjudged appropriate; and for the arranging of re-trials and appeals if necessitated by circumstances (see Gilbert's History of the Common Pleas, pp. 57 & 70; and Vol. 1 of Palgrave's Rise and Progress of the English Commonwealth, p. 277; etc.)
~those misnamed 'justices' or 'judges' are convenors, wholly subsidiary to and at the command of the jury and its Foreman or woman;
~contempt charges laid on persons by juries or judges have to be tried as for any crime, that is, by jury;
~all evidence can be presented, and requires to be considered for its admissibility by the jurors — especially if it reveals partiality, injustice, an unfounded nature, or venality in the law.
Under the common law Trial by Jury of Western and other countries' Constitutions, legally, statutes of government can be enforced only according to the unanimous judgement (cf. sentence) of jurors.
The Illegality of the Status Quo.
Anyone acquainted with the process of law in the United States, Britain, Australia and elsewhere today, will see how far removed the practices of courts are from the ideals and legally binding stipulations of those nations' Constitutions. Today, every single one of the Juror's Duties definitive of Trial by Jury (including judging on the facts of the case) is illegally forbidden, interfered with and/or obstructed by the judges.
Labyrinthine deceits of modern usurpation inhabit the politicians' statute book, which bears no resemblance and pays no respect to universal common laws of truth, justice, liberty, and equality before the law. Common law is inserted into the Constitution to protect the people from government abuse of power. Common law legally binds government and controls the government's modus operandi. As distinct from despotism and barbarism, this common law is the basis of civilisation and legitimate government, sine qua non.
The Juror's Duty Is Simple.
It should be remembered that the Juror's duty is uncomplicated: 'guilt' of a crime can only be pronounced where the accused's act was a deliberate, premeditated one of malice aforethought.
Similar judgements are the daily fact of life in commonplace human interactions. We make such appraisals frequently... "Is this person behaving in a way that is dishonest or malign?" "Is that person telling the truth?" "Why are they doing that?" "Are these people genuine?" (In the case of one person injuring another innocently or accidentally, the civil law suit and the Trial by Jury award appropriate compensation for damages.)
Common Law Trials by Jury Do Not Drag On.
With the Jury deciding on the admissibility of the evidence, and supervising the process, the common law Trial by Jury brings justice which is fair, swift and sure. Prosecution counsel must marshal the evidence to present an undelayed, forthright, straightforward comprehensible case; not the protracted parasitic lucrative charade which the legal profession wallow in today. Jurors involved in Jury Duty are properly respected and compensated.
Crime Is Diminished.
Brutish intrusions by the state into innocent citizens' lives are subject to just retribution. Vexatious regulations are obliterated; life, liberty, property and rights are held in the hands of the people themselves (not subject to arbitrary government intervention).
Crime and litigation in the society run by ultimate rule of the people deciding the law as Jurors are significantly diminished (viz. the Hellenic Constitution of government by Trial by Jury, which was denominated demos-kratein: democratia, i.e. democracy). The mass of partisan, inequitable and venal legislation (extant today), is duly nullified, unenforceable and generally expunged. Hence, the number of prosecutions is greatly reduced.
Laws Require To Be Just.
The inscribed governmental statute laws require to be just and simple if they are to be met with unanimous approbation from juries. It is always for the plaintiff to make his cause clear. If explication of a law is ever necessary, this requires to be performed equally by defence and prosecution counsel, not by the convenors. Juries decide on the validity and justice of laws.
Common law, being exclusively the product of the sense of fairness, natural law and justice of the ordinary people, is known almost intuitively to people everywhere. With a modicum of thought, people realise that justice makes its case plain to sane adults in all times and places.
See sections on conscience in: the Essay EIS#10 "We the People and the Matter of Words," &
Justice William Jones, Jones on Bailments; &
THE UNIVERSAL SENSE OF FAIRNESS: "DO-AS-YOU-WOULD-BE-DONE-BY;" Essay EIS#6.
MANKIND’S MODEL JUSTICE SYSTEM.
All people are subject to and bound by the law of the land, including executive, legislature, and the judiciary. The Constitutional Common Law Trial by Jury Justice System intentionally takes a person out of the government’s hands (i.e. from judges, prosecutors, police and prison service) and places the accused under the protection of his or her equals and the people’s Common Law of the land alone: Trial by Jury allows no man or woman to be punished unless the indiscriminately chosen equals of the accused (i.e. the jurors) consent to it.
Common law derives from people’s sense of natural law and justice (fairness); the precept universally understood as "do unto others as you would they do unto you."
Realistically, the only way to prevent injustice by judges entails the utter and complete removal of the powers by which those acts can be perpetrated -- and this is what is indeed achieved by "judicium parium suorum": the judgement of pares that is the unique tribunal known as the Trial by Jury. This is what our Western Constitutions emplace.
Note. Pares or peers; Latin-derived term for social-equals.
Let us bear in mind that all hope for a just rule of law evaporates whenever judges are allowed to perform in any way other than that which is ordained by the people's common law.
According to common law and constitution, the ultimate judicial power and decisions are never to be vested in the hands of one person: the 'judge'. The Constitutional Trial by Jury intentionally removes from judges the power to do injustices in the first place.
By moral obligation and under pain of penalisation, according to national and international laws, citizens, politicians, state employees and jurors are bound to judge the justice of the laws and all acts of enforcement; cf. the Nuremberg Precedent.
'JAIL': Its Counterproductive Activities.
Apparently, Branson does not grasp that Trial by Jury is the proven means by which despotic government measures are curtailed. Instead, Branson prays at the feet of judges... that is to say, he imprudently pays the judiciary an unmerited deference. He concedes to judges the very duties and constitutional power which are those of the Juror, which indeed define the Trial as being BY JURY. These are the powers which enable the Jurors to fulfil their duty to protect the citizen from injustice. Without these powers to protect the citzen, the judiciary can tyrannise at will. Whether from ignorance or malevolence, by failing to campaign for that aspect of the Constitutional Trial by Jury Justice System which denies the judiciary the power to inflict injustices, Branson abets the present-day illegal modus operandi of judges.
JAIL's technically incorrect concession of inappropriate and unconstitutional powers to judges implies and encourages the use of those powers... Against the common law and Constitution, Branson's 'message' prolongs the problem of judicial injustices by allowing judges to retain the unlawful powers which they use today to terrorise the population, ruin lives and careers, dispossess citizens of their property, incarcerate innocent people (i.e. of no mens rea) in their hundreds of thousands, and tear families asunder.
Instead of recognising and promoting the Constitution's Trial by Jury barrier to prevent such atrocities from happening in the first place, Branson proposes the setting up of "special grand juries," ostensibly to try to repair the damage after the event -- but prevention is better than cure! -- and Trial by Jury is prevention.
Although J.A.I.L. claims to aim to "prevent" acts of judicial malfeasance, it can do no such thing. If Branson were truly hoping to achieve an improved justice system, he would realise that it cannot be attained by the method which he proposes (i.e. the 'judicial accountability initiative law'). At best, in theory, in some cases perhaps special juries may effect a measure of repair to the damage after it has already been done; but they cannot "prevent" it.
Furthermore, as with civil security forces (police) and judges, wherever these "special juries" are established for a period of time and the identities of the participants are publicly known, they become targets for contamination, bribery, intimidation and subject to human fallibility and corruption (as the present-day judiciary is). These negative factors are completely avoided by restoring the Constitutional Common Law Trial by Jury; randomly selected juries; universal adult eligibility (save the sick, aged, convicts or the insane), etc.
Note that common law (requiring restoration) governing the random selection of Jurors (to represent all views in society and protect minorities) prevents their identity from being known to the contesting parties until after the Jurors enter the jury-box; and then segregates Jurors from all public contact, contamination and tampering. This proffers the constitutional and secure system. Like so much else, this part of common law governing Trial by Jury is today flouted by court maladministration, voir dire and judges; but such contraventions of great consequence are simply disregarded by Branson's JAIL.
JAIL offers no improvement to the Illegality of the Status Quo. Again, at best, JAIL offers merely the bandage on a wound from which the afflicted citizen would have been protected in the first place by the Trial by Jury.
Branson's idea is a witless failure to understand how the Constitution's Trial by Jury operates to prevent all injustices by judges. The JAIL proposals for 'reform' are devoid of sense (unless their adherents deviously want to perpetuate the tyranny by governments' judges) because JAIL would actually allow judges the unconstitutional courtroom power by which they nowadays intervene and deny the supreme judicial functions of the Juror.
Branson miseducates people by obfuscating the paramount power of jurisprudence which is bestowed on citizens by the Constitution. Authentic common law Trial by Jury renders the Branson 'initiative' redundant. With Trial by Jury in correct operation, no new 'judicial accountability initiative law' is necessary -- and certainly not this one.
Branson should desist from his inept deleterious campaign. On reviewing his website proposals of judicial 'reform', people see that anyway, these ideas are merely the ludicrous expression of a misguided imagination, the product of ignorance, vanity, or sheer delusion.
Branson imagines the following to be his vital 'reforms' but the "special grand jury" investigations would founder, for the irony is that, apart from item 4, the judiciary would claim most emphatically that they already function in this manner... As for item 4, they would claim this to be unnecessary as the litigant can go to appeal...
Address all facts presented by the complaining party according to the evidence shown on the record.
Consider opposing facts and evidence as against, and relating to, that of the complaining or moving party (not just arbitrarily superseding plaintiff's facts and evidence).
Apply the appropriate law to the facts determined to be relevant and material to the case according to the evidence of record (considering all evidence of both sides without partiality or bias).
Submit written findings of fact and conclusions of law in all actions and proceedings -- including a written explanation for motion dispositions -- legally to support the judicial decision reached.
Bring the case to a lawful conclusion in a timely fashion as specified by law.
Note that these proposals would in fact only reinforce the present unconstitutional and illegal system operating today. They do nothing at all to improve the Justice System, let alone provide the barrier to tyranny which is achieved by the true Trial by Jury in which 'judges' functions are strictly limited.
What is required is not further statute law and investigations and enquiries ex post facto [after the act has taken place], but reversion to the people's common law system by which these injustices wreaked by judges are precluded.
In any case, under the common law justice system every citizen has recourse to lay a plaint with prima facie evidence before a discreet citizens' grand jury for the rectification of wrongs derived from any source; and to progress thence to petit Trial by Jury. There is nothing "new" in grand juries.
The JAIL 'juries', however, are susceptible and vulnerable, for, unlike the proper common law grand juries which are convened ad hoc once only, for one issue, the JAIL 'jury' is a publicly established board which becomes a target for compromise as described above.
Under the common law Trial by Jury, judges are prevented from perpetrating their injustices, because the judges are convenors, and their rôle is not judicial. In a dismal contrast, Branson's idea fatally elevates judges into the wrong position, utterly destroying the people's Trial by Jury. This breaches the Constitution and actually promotes the activities of crime, corruption and oppression which he purports to be against.
It is the Constitutional Common Law Trial by Jury which strips judges of the judicial decisions. Branson should be repeatedly taught and told his proposals are counterproductive. JAIL must be cast aside and overridden: let the common law be known to all.
The superior, just system is the traditional, proven Constitutional Common Law Trial by Jury; Juries Grand and Petit; and the Citizen's rightful access to free due process of law for all causes, civil, criminal and fiscal.
Some Conclusions:
1. The common law, of which Trial by Jury is the central tenet and sole justice system, is the secular source and protection of rights, property, and liberty. Self-evidently, reversion to common law is itself the only means by which these compassionate beneficent attributes of (our) culture can be restored.
2. We discern this 'JAIL' campaign to be against the public good, principally (but not only) because, while proposing his "judicial accountability initiative law" (i.e. JAIL), Branson explicitly misinforms people about the rôle of judges in society, derogating the effectiveness, and demoting the primacy, of the Constitutional Common Law Trial by Jury Justice System.
3. It is pernicious when organisations (which are apparently independent of the state) claiming to be campaigning on behalf of the people's right to proper justice, lead people seriously astray about the Constitutional Common Law Trial by Jury; and intensify the ignorance of willing dupes, encouraging them to put their hopes, energy and resources into a counterfeit 'campaign'.
4. Truthful education by those who provide it generally inoculates recipients from becoming mentally subjugated by the state-organised disinformation ('brainwashing'). Anthropologist Margaret Mead observed about such activism:
"Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does."
However, although small groups of decent people can do much for the good of all, Margaret Mead would no doubt agree that a small group of miscreants can equally "change the world" for ill and do great harm... which relates to the "JAIL" ...
5. Although JAIL is deeply flawed and for this reason likely to disappear, it unfortunately cannot be entirely ignored at this stage for two reasons.
A. Considerable energy is invested by Branson into spreading his brand of disinformation. He miseducates everyone who is susceptible to his specious deceptions.
Hearty campaigners keen to fight judicial injustice but who are in ignorance of the common law, are led astray to expend their talents on JAIL's counterproductive 'mission'. Having exhausted their enthusiasm and wasted their time and money on a redundant idea, well-intentioned people become a spent force as campaigners, and submit in quiet acquiescence to the Illegality of the Status Quo.
In contrast to Branson's debilitating notions, knowledge of the common law governing these matters empowers and stimulates people. When citizens acquire knowledge of their law and history; their individual judicial responsibility and sovereignty as juror to judge the law and every act of enforcement over the instructions of courts (judges); and an understanding of how our forebears arranged society in this way for the benefit of All the People (not for the sole benefit of the government-corporate-financial complex), then people are inspired to become active and dutiful in protection of each other, their inherent rights, and the supreme law that is their irrevocable Constitution.
B. If he was forgivably in ignorance before, Branson is no longer. He has received polite approaches from people who have shown him the flaws in his ideas and suggested to him privately that he could remain a campaigner but change course and adopt the facts, logic, history and reasoned arguments provided by the common law constitutional justice system: Trial by Jury. That would indeed be a worthy cause in which to put his energy. Yet, he does not reply to such e-mails and ignores advocation of the common law.
Whereas previously he could claim to have been merely in ignorance, he is now in deliberate opposition. His ongoing promulgation of misinformation has evolved into the category of malevolent propaganda. By stubbornly failing to acknowledge the law, and the constitutionally-provided solution to the massive injustices inflicted by the judiciary, Branson has become part of the problem which he would have us believe he and his followers campaign against. He and his supporters are working for the tyrants, not against them.
With best wishes,
Yours sincerely,
Kenn.
Kenn d'Oudney is author of the following books and essays:
THE CONSTITUTION TREATISE: Why the d'Estaing Constitution Is the Antithesis of Democracy ISBN 9781902848747, see website for endorsements by U.S. & U.K. cognoscenti;
TRIAL BY JURY: Its History, True Purpose and Modern Relevance ISBN 9781902848723, with edited section authored by U.S. lawyer Lysander Spooner;
THE REPORT, Cannabis: the Facts, Human Rights and the Law ISBN 9781902848204, co-authored by Joanna d'Oudney; Foreword by a Nobel laureate Official Adviser to the U.S. government; endorsed by a Professor of Physiology Fellow of the Royal Society, academics, doctors and judges (U.S. & U.K.);
GLOBAL WARMING: The Solution ISBN 9781902848068, endorsed by official Adviser to U.K. government on Environment; academics and doctors of a variety of disciplines;
WE THE PEOPLE AND THE MATTER OF WORDS; freely downloadable, indispensable information for the creation and sustainment of legitimate government and society;
MAGNA CARTA, THE GREAT CHARTER CONSTITUTION; freely downloadable information about the true pan-European and pan-Occidental Constitution.
Kenn, Joanna and Astra d'Oudney. CEOs/Directors.
http://www.democracydefined.org/
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