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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In United States News See other United States News Articles Title: Two Officers Shot in Ferguson After White House Declares Open Season on Cops Source: [None] URL Source: [None] Published: Mar 12, 2015 Author: sara noble Post Date: 2015-03-12 08:20:15 by tpaine Keywords: None Views: 32841 Comments: 162 www.independentsentinel.com www.independentsentinel.com Officer Cries In Pain On One Video Ferguson “protesters” gathered outside the Ferguson police station following the resignation of Chief Jackson. Shortly after midnight, someone shot two police officers. No one knows who fired, but it appeared the shots were fired directly at the officers. The DOJ released a scathing report accusing Ferguson police of racism knowing it would reignite the nearly-burned out furor in Ferguson. A 32-year-old officer from nearby Webster Groves was shot in the face and a 41- year-old officer from St. Louis County was shot in the shoulder, St. Louis County Police Chief Jon Belmar said at a news conference. Both were taken to a hospital, where Belmar said they were conscious. He said he did not have further details about their conditions but described their injuries as “serious.” They weren’t even Ferguson police officers. You can hear the officers screaming in pain on this video. There were about 60 to 70 protesters and their behavior prompted the police to send officers in riot gear. St. Louis County Police Chief Jon Belmar told reporters, “I’ve said many times we cannot sustain this without problems and that’s not a reflection of those expressing their first amendment rights. But this is a very dangerous environment for our officers to work in.” At least three shots were fired and the wounds were “very serious”, Belmar said. Some said the shots seemed to come from a house but there was no house nearby and others said they might have come from a small hill. Prior to the shooting, “protesters” were chanting to show they weren’t satisfied with the resignation of Chief Jackson. Others were angry and potentially dangerous. They smell blood in the water. One protester said it was mostly peaceful until the shots rang out. Mostly peaceful?!? If the participants were in the Tea Party, would it be described as mostly peaceful? The acting head of the Justice Department’s civil rights division released a statement saying the U.S. government remains committed to reaching a “court- enforceable agreement” to address Ferguson’s “unconstitutional practices,” regardless of who’s in charge of the city. What about the rights of the police who they are endangering with their race baiting? MSNBC’s Ed Schultz wants Ferguson police disarmed. The riots/protests were funded by George Soros among others and engineered by Barack Obama and Eric Holder. The video of the shooting via Matthew Keys: After the shooting, the leftists chanted this allegedly: after the shooting The chanting was utter nonsense. The only ones losing their freedom are the police and the normal people in Ferguson being subjected to these Soros-communist funded riots/protests which are based on a lie. They still have the hands up, don’t shoot posture. This was one of the “chants”: And another – “hands up, don’t shoot, stop this shit, we’re bullet proof”. Don’t expect any words of comfort from the White House or calls to families of the officers. One confused protester thinks the cops are “trigger happy”. CNN Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-121) not displayed.       .       .       . #122. To: redleghunter (#120) There was an established rule of law addressing war crimes. There were several Geneva accords which were violated. There was a law giver to the warriors to measure their actions/inactions against. And in the case of the Nuremberg trials, those who violated the LOAC and those who did nothing to stop the violations were punished. My impression, right or wrong, was that the convictions related at least in part to the famed "following orders is no defence" phrase, which implies that they should simply have known better from their own conscience. (Of course this applied only to German soldiers taking orders from the German military, not to American CIA agents torturing people, because that's somehow completely different, even though such agents were also just following orders). I think Japanese officers were also executed after the war by the US for crimes against humanity, even though Japan was not a party to the Geneva Convention accords. These German soldiers were basically convicted because they didn't refuse to follow orders, even though not doing so may well have gotten them executed. IOW, they were executed after the war because they chose not to risk being executed during the war. And thanks for the mind reading, or second guess. I did not mention anything about what you anticipated I would opine on. I'm still on moral metrics. Second guessing is not mind-reading, as with second guessing, you don't have to be right. :). But I hope it helped make my point clear, even though for you I guess it hasn't. Pinguinite  posted on  2015-03-18   16:23:26 ET  Reply   Trace   Private Reply   #123. To: Pinguinite (#122) My impression, right or wrong, was that the convictions related at least in part to the famed "following orders is no defence" phrase, which implies that they should simply have known better from their own conscience. Now we are getting somewhere:) "In the beginning God created the heaven and the earth." (Genesis 1:1) redleghunter  posted on  2015-03-18   16:53:02 ET  Reply   Trace   Private Reply   #124. To: GrandIsland, nolu chan (#116) I have no direct knowledge on federal asset forfiture. I'm sure the Feds do the same after a federal conviction. I'll assume they have more red tape than we had to seize property permanently... but I have nothing to base that assumption on. My reading indicates that in some states, PDs will use the federal forfeiture laws because their state's laws are not flexible enough for their booty grab. The federal forfeiture is claimed to be a much lower standard than in many states. I looked a little longer to find some summary of this state-by-state but maybe it's too complex a topic to fit in a neat table with columns and rows. Tooconservative  posted on  2015-03-18   17:14:21 ET  Reply   Trace   Private Reply   #125. To: TooConservative (#124) My reading indicates that in some states, PDs will use the federal forfeiture laws because their state's laws are not flexible enough for their booty grab. The federal forfeiture is claimed to be a much lower standard than in many states. I don't doubt it... but the original crime charge would probably have to be a federal crime charge instead of a state charge. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   17:44:42 ET  Reply   Trace   Private Reply   #126. To: GrandIsland, nolu chan (#125) I'm hoping nolu knows how to google the right phrase. Sometimes Google opens up like a treasure chest if you just have the magic phrase. Maybe nolu will play Ali Baba for us and know the right "Open Sesame" to find it. Tooconservative  posted on  2015-03-18   17:52:35 ET  Reply   Trace   Private Reply   #127. To: redleghunter, pinguinite, GrandIsland, Y'ALL (#123) Pinguinite (#122) --- My impression, right or wrong, was that the convictions related at least in part to the famed "following orders is no defence" phrase, which implies that they should simply have known better from their own conscience. Now we are getting somewhere:) --- redleghunter Indeed, we are getting somewhere, --- back to the original discussion that GrandIsland and I had. An American cop has no excuse (I'm just enforcing 'established law'), for zealously arresting non-violent suspects of our arguably unconstitutional drug, gun, and 'morality' wars.. tpaine  posted on  2015-03-18   17:53:09 ET  Reply   Trace   Private Reply   #128. To: TooConservative, GrandIsland, Biff Tannen, Pinguinite (#114) [TooConservative #114] Maybe nolu knows a source that could settle this matter of how local the issue of forfeiture really is. I would surmise that it is not substantially a local problem regulated by State law. There is an out for the willing State or Local authorities to join up with the Federal program for Equitable Sharing of forfeited assets. Technically, it is a federal asset forfeiture with State or Local participation, and the Feds give equitable sharing of the loot. That is nationwide. It can be viewed as the Feds enlisting the locals to do the work, the Feds will do the prosecution, and the Feds will decide, at their sole discretion, how much of the booty to kick back to the locals as an equitable share. The Feds present it as their rendering their assistance to States and Locals. https://www.law.cornell.edu/wex/forfeiture Forfeiture "They don't have to convict you. They don't even have to charge you with a crime. But they have your property." --Henry Hyde, as quoted in CNN Article Introduction Forfeiture, the government seizure of property connected to illegal activity, has been a major weapon in the Federal government's "war on drugs" since the mid-eighties. Two recent developments, however, have called attention to the darker side of this practice: a decision by New York City's Mayor, Rudolph Guiliani, to deploy forfeiture against drunk drivers, and a House-approved bill that would, if signed into law, drastically narrow the scope of the federal forfeiture statutes. Forfeiture is a potent deterent, as well as a revenue source on which law enforcement has grown increasingly dependent. However, it brings with it far fewer procedural safeguards than the criminal law. In the words of former President George Bush, "Asset forfeiture laws allow the government to take the ill-gotten gains of drug kingpins and use them to put more cops on the streets." New York City Police Commissioner Howard Safir invoked deterence when he said, "We believe that ... the threat of civil forfeiture and the possibility of losing one's car, have served to reduce the number of motorists who are willing to take the chance of being caught driving drunk." On the other hand, a civil liberties group has filed suit challenging the legality and constitutionality of the New York City program. Citing some of the same constitutional concerns, the House passed a Bill that would drastically curtail the federal operation of the law. Concerned about the the broad effect of federal forfeiture laws, Henry Hyde (R-Ill., House Judiciary Committee Chairman) and John Conyers (D-Mich., the senior Democrat on the Committee) teamed up to introduce the Civil Asset Forfeiture Reform Act in a rare display of bipartisan unity. The Representatives were concerned about the problem of police using seized property or funds to finance their own operations. As Bob Barr (R-Ga.) put it, "In many jurisdictions, it has become a monetary tail wagging the law enforcement dog." Testifying before the Judiciary Committee, Willie Jones of Nashville, TN, gave an example of this abuse. Engaged in the landscaping business, Mr. Jones planned to buy a shrubbery in Houston, TX. Nurseries prefer cash from out-of-town buyers, so Mr. Jones planned to go there with $9,000 in cash. Officers detained him at the airport: suspicious of the large amount of cash, they accused him of being involved in drug-related activities. They eventually let him go, but they kept the money, and refused to even give him a receipt for it. Because he did not have 10% of the money seized to put up as a bond, he could not afford to challenge the seizure in the usual way. Disturbed by this and other similar stories of excess, the House members voted to approve H.R. 1658 to curb this abuse. The Clinton administration said that the bill would have a negative impact on the war on drugs. The House soundly rejected an administration-favored alternative, however -- supporters of H.R. 1658 said the alternative bill would expand the federal power, not narrow it. Most forfeiture activity occurs under Federal law, and most of that is connected to the traffic in illegal drugs. The Department of Justice established the National Assets Seizure and Forfeiture Fund in 1985 and realized $27 million from drug-related forfeitures that year. By 1992 the total take had climbed to $875 million. Many states followed suit by establishing their own civil forfeiture programs. Cities and other municipal governments have cooperated in forfeiture actions under both Federal and state drug laws. They have used such laws on their own to deal with local concerns ranging from unsafe housing to prostitution, and now for the problem of drunk driving. The authority to seize property in this way is not inherent. Rather, it is established by statute. It is constrained by those authorizing laws and by the U.S. Constitution. The expansion of forfeiture activity has not gone on without Constitutional challenge. The U.S. Supreme Court has heard at least half a dozen forfeiture cases during the nineties, but its rulings have not done much to rein in the practice. This short survey of the law of forfeiture draws upon these Court decisions. Its introduction to the essential statutory provisions focuses on the Federal statutes. State and local provisions tend to be quite similar. Forfeiture takes two distinct forms -- criminal and civil. Nearly all contemporary forfeiture involves the civil variety. Criminal forfeiture operates as punishment for a crime. It, therefore, requires a conviction, following which the state takes the assets in question from the criminal. Civil forfeiture rests on the idea (a legal fiction) that the property itself, not the owner, has violated the law. Thus, the proceeding is directed against the res, or the thing involved in some illegal activity specified by statute. Unlike criminal forfeiture, in rem forfeiture does not require a conviction or even an official criminal charge against the owner. This is the source of its attractiveness to law enforcement, and its threat to those concerned about abuse or circumvention of Constitutional protections. https://www.congress.gov/bill/106th-congress/house-bill/1658 H.R.1658 - Civil Asset Forfeiture Reform Act of 2000, 106th Congress (1999-2000) Sponsor: Rep. Hyde, Henry J. [R-IL-6] (Introduced 05/04/1999) Committees: House - Judiciary | Senate - Judiciary Committee Reports: H. Rept. 106-192 Latest Action: 04/25/2000 Became Public Law No: 106-185. Major Recorded Votes: 06/24/1999 : Passed House Bill Text Summary: H.R.1658 — 106th Congress (1999-2000) Shown Here: Passed Senate amended (03/27/2000) Civil Asset Forfeiture Reform Act of 2000 - Amends the Federal criminal code (the code) to establish general rules relating to civil forfeiture proceedings. (Sec. 2) Sets forth notification requirements with respect to seized property and civil forfeiture proceedings, including: (1) a requirement that the notice the Government is required to send to interested parties in a nonjudicial civil forfeiture proceeding under a civil forfeiture statute be sent to achieve proper notice as soon as practicable and within 60 days after the date of the seizure; and (2) required conditions for extending the notification period. Sets forth procedures for filing claims for seized property. Directs the Government, within 90 days after a claim has been filed, to file a complaint for forfeiture consistent with specified requirements or return the property pending the filing of a complaint (allows a court to extend the period for good cause shown or upon agreement of the parties). Provides that if the Government does not file such a complaint, return the property, or, before the time for filing a complaint has expired, obtain a criminal indictment containing an allegation that the property is subject to forfeiture and take the steps necessary to preserve its right to maintain custody of the property, the Government shall promptly release the property and may not take any further action to effect the civil forfeiture of such property. Authorizes the Government, in lieu of or in addition to filing a civil forfeiture complaint, to include a forfeiture allegation in a criminal indictment. Specifies that if criminal forfeiture is the only forfeiture proceeding commenced by the Government, the Government's right to continued possession of the property shall be governed by the applicable criminal forfeiture statute. Bars dismissal of a complaint on the ground that the Government did not have adequate evidence at the time the complaint was filed to establish the forfeitability of the property. Allows any person claiming an interest in seized property, in any case in which the Government files a complaint for forfeiture, to file a claim asserting such person's interest, with an exception. Directs such person to file an answer to the Government's complaint within 20 days after the date of the filing of the claim. Authorizes the court, if a person with standing to contest the forfeiture of property is financially unable to obtain representation by counsel, to: (1) authorize counsel to represent that person with respect to the claim where the person is represented by counsel appointed in connection with a related criminal case; or (2) insure that the person is represented by a Legal Services Corporation (LSC) attorney, at the person's request, where the property subject to forfeiture is real property that is being used by the person as a primary resident. Places the burden of proof, in an action brought under any civil forfeiture statute for the civil forfeiture of any property, on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture. Authorizes the Government to use evidence gathered after the filing of a complaint for forfeiture to establish that property is subject to forfeiture. Directs the Government, if its theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in such commission, to establish that there was a substantial connection between the property and the offense. Declares that an innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. Places on the claimant the burden of proving that the claimant is an innocent owner by a preponderance of the evidence. [snip] http://thomas.loc.gov/cgi-bin/query/z?c113:H.R.+5212: Note: 2014 proposed legislation died in committee. H.R.5212 Latest Title: Civil Asset Forfeiture Reform Act of 2014 Sponsor: Rep Walberg, Tim [MI-7] (introduced 7/28/2014) Cosponsors (20) Latest Major Action: 9/26/2014 Referred to House subcommittee. Status: Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. ALL ACTIONS: 7/28/2014: Referred to the House Committee on the Judiciary. 9/26/2014: Referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. Some of the proposed provisions would have changed the burden proof to make it more difficult for the government to show the property is subject to forfeiture, and less difficult for the individual to sustain a claim of innocent ownership. Also, note at the end, "The Attorney General shall assure that any equitable sharing between the Department of Justice and a local or State law enforcement agency was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies.'." When the Executive Branch read that, they must have gotten the vapors. HR 5212 IH 113th CONGRESS 2d Session H. R. 5212 To amend title 18, United States Code, with respect to civil asset forfeiture, and for other purposes. IN THE HOUSE OF REPRESENTATIVES July 28, 2014 Mr. WALBERG introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, with respect to civil asset forfeiture, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Civil Asset Forfeiture Reform Act of 2014'. SEC. 2. REPRESENTATION BY ATTORNEY. Section 983(a)(1)(A)(i) of title 18, United States Code, is amended by adding at the end the following: `The Government shall include in any such notice that the person receiving the notice may be able to obtain free or reduced rate legal representation under subsection (b).'. SEC. 3. BURDEN OF PROOF. Section 983(c) of title 18, United States Code, is amended-- (1) in paragraph (1), by striking `by a preponderance of the evidence' and inserting `by clear and convincing evidence'; and (2) in paragraph (2), by striking `by a preponderance of the evidence' and inserting `by clear and convincing evidence'. SEC. 4. INNOCENT OWNER DEFENSE. (a) In General- Section 983(d) of title 18, United States Code, is amended so that paragraph (1) reads as follows: `(1) The innocent owner defense shall be available to a claimant. Where a prima facie case is made for such a defense, the Government has the burden of proving that the claimant knew or reasonably should have known that the property was involved in the illegal conduct giving rise to the forfeiture.'. (b) Knowledge by Owner of Criminal Activity- Section 983(d)(2)(B) of title 18, United States Code, is amended-- (1) in clause (i), by striking `a person may show that such person did all that reasonably could be expected may include demonstrating that such person to the extent permitted by law' and inserting `the Government may show that the property owner should have had knowledge of the criminal activity by demonstrating that the property owner did not'; (2) in clause (i)(I), by striking `gave' and inserting `give'; and (3) in clause (i)(II)-- (A) by striking `revoked or made' and inserting `revoke or make'; and (B) by striking `took' and inserting `take'. SEC. 5. PROPORTIONALITY. Section 983(g) of title 18, United States Code, is amended so that paragraph (2) reads as follows: `(2) In making this determination, the court shall consider such factors as the seriousness of the offense, the extent of the nexus of the property to the offense, the range of sentences available for the offense giving rise to forfeiture, the fair market value of the property, and the hardship to the property owner and dependents'. SEC. 6. INCREASED VISIBILITY. Section 524(c)(6)(i) of title 28, United States Code, is amended by inserting `from each type of forfeiture, and specifically identifying which funds were obtained from including criminal forfeitures and which were obtained from civil forfeitures,' after `deposits'. SEC. 7. EQUITABLE SHARING AGREEMENTS. Section 524(c) of title 28, United States Code, is amended by adding at the end the following: `(12) The Attorney General shall assure that any equitable sharing between the Department of Justice and a local or State law enforcement agency was not initiated for the purpose of circumventing any State law that prohibits civil forfeiture or limits use or disposition of property obtained via civil forfeiture by State or local agencies.'. END http://law.justia.com/codes/us/2012/title-18/part-i/chapter-46/section-983/ 18 U.S.C. § 1983(c) (c) Burden of Proof.—In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property— (1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture; (2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and (3) if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense. (d) Innocent Owner Defense.— (1) An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence. (2)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term “innocent owner” means an owner who— (i) did not know of the conduct giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property. https://www.ij.org/massachusetts-civil-forfeiture Massachusetts Civil Forfeiture United States v. 434 Main Street, Tewksbury, Mass. (The Motel Caswell) Federal & Local Law Enforcement Agencies Try to Take Family Motel from Innocent Owners Imagine you own a million-dollar piece of property free and clear, but then the federal government and local law enforcement agents announce that they are going to take it from you, not compensate you one dime, and then use the money they get from selling your land to pad their budgets—all this even though you have never so much as been accused of a crime, let alone convicted of one. That is the nightmare Russ Caswell and his family faced in Tewksbury, Mass., where the the federal government tried to take the family-operated motel they have owned for two generations. Seeking to circumvent state law and cash in on the profits, the Tewksbury Police Department teamed up with the United States Department of Justice to take and sell the Caswell’s property because a tiny fraction of people staying there during the past 14 years were arrested for drug crimes. Keep in mind, the Caswells themselves have worked closely with law enforcement officials to prevent and report crime on their property. And during those 14 years, the government pointed to a mere fifteen arrests—out of more than 200,000 rooms rented during that time by the Caswells. [...] - - - - - [Pinguinite #101] You don't need to be convicted or even charged to lose your property. More to the point, the individual is not charged, and cannot be convicted, in a civil asset forfeiture proceeding. Claiming jurisdiction over an object, rather than a person, the named defendant is the object. The individual is not even a party to the proceeding. United States of America v. $124,700 in U.S. Currency, 05-3295 (8th Cir. 2006) https://en.wikipedia.org/wiki/United_States_v._$124,700_in_U.S._Currency United States of America v. $124,700 in U.S. Currency, 05-3295 (8th Cir. 2006), was a decision of the United States Court of Appeals for the Eighth Circuit that was handed down on August 18, 2006. The form of the styling of this case — the defendant being an object, rather than a legal person — is because this is a jurisdiction in rem (power over objects) case, rather than the more familiar in personam (over persons) case. In current US legal practice, in rem is most widely used in the area of asset forfeiture, frequently in relation to controlled substances offenses. In rem forfeiture cases allow property (in this case, $124,700 in cash) to be directly sued by and forfeited to the government, without either just compensation or the possessor (and presumptive owner) being convicted of a crime. Pursuant to 21 U.S.C. § 881 and 19 U.S.C. § 1616a, seized property forfeited to the Federal government may be transferred "to any State or local law enforcement agency which participated directly in the seizure of forfeiture of the property." www.justice.gov/criminal/afmls/pubs/pdf/04-2009guide-equit.pdf U.S. Department of Justice Criminal Division Asset Forfeiture and Money Laundering Section Guide to Equitable Sharing for State and Local Law Enforcement Agencies April 2009 I. What Is the Department of Justice Asset Forfeiture Program? The Department of Justice Asset Forfeiture Program (the Program) is a nationwide law enforcement initiative that removes the tools of crime from criminal organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime. The most important objective of the Program is law enforcement. Equitable sharing further enhances this law enforcement objective by fostering cooperation among federal, state, and local law enforcement agencies. Federal law authorizes the Attorney General to share federally forfeited property with participating state and local law enforcement agencies.1 The exercise of this authority is discretionary and limited by statute. The Attorney General is not required to share property in any case. The Controlled Substances Act most fully states the intent of Congress in the sharing of forfeited property. Section 881(e)(3) of Title 21, United States Code, provides that: The Attorney General shall assure that any property transferred to a State or local law enforcement agency… (A) has a value that bears a reasonable relationship to the degree of direct participation of the State or local agency in the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law enforcement effort as a whole; and with respect to the violation of law on which the forfeiture is based; and (B) will serve to encourage further cooperation between the recipient State or local agency and Federal law enforcement agencies.2 A Guide to Equitable Sharing for State and Local Law Enforcement Agencies applies only to the sharing of assets that were seized by Department of Justice investigative agencies and federal agencies participating in the Department of Justice Asset Forfeiture Program and that were forfeited judicially or administratively to the United States by the United States Attorney’s Offices or Forfeiture Program participants. http://law.justia.com/codes/us/2012/title-21/chapter-13/subchapter-i/part-e/section-881/ Administrative and Enforcement Provisions - 21 U.S.C. § 881 (2012) §881. Forfeitures (a) Subject property The following shall be subject to forfeiture to the United States and no property right shall exist in them: (1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter. (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance or listed chemical in violation of this subchapter. (3) All property which is used, or intended for use, as a container for property described in paragraph (1), (2), or (9). (4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1), (2), or (9). (5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this subchapter. (6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance or listed chemical in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter. (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment. (8) All controlled substances which have been possessed in violation of this subchapter. (9) All listed chemicals, all drug manufacturing equipment, all tableting machines, all encapsulating machines, and all gelatin capsules, which have been imported, exported, manufactured, possessed, distributed, dispensed, acquired, or intended to be distributed, dispensed, acquired, imported, or exported, in violation of this subchapter or subchapter II of this chapter. (10) Any drug paraphernalia (as defined in section 863 of this title). (11) Any firearm (as defined in section 921 of title 18) used or intended to be used to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) and any proceeds traceable to such property. (b) Seizure procedures Any property subject to forfeiture to the United States under this section may be seized by the Attorney General in the manner set forth in section 981(b) of title 18. (c) Custody of Attorney General Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the Attorney General, subject only to the orders and decrees of the court or the official having jurisdiction thereof. Whenever property is seized under any of the provisions of this subchapter, the Attorney General may— (1) place the property under seal; (2) remove the property to a place designated by him; or (3) require that the General Services Administration take custody of the property and remove it, if practicable, to an appropriate location for disposition in accordance with law. (d) Other laws and proceedings applicable The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer. (e) Disposition of forfeited property (1) Whenever property is civilly or criminally forfeited under this subchapter the Attorney General may— (A) retain the property for official use or, in the manner provided with respect to transfers under section 1616a of title 19, transfer the property to any Federal agency or to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property; (B) except as provided in paragraph (4), sell, by public sale or any other commercially feasible means, any forfeited property which is not required to be destroyed by law and which is not harmful to the public; (C) require that the General Services Administration take custody of the property and dispose of it in accordance with law; (D) forward it to the Bureau of Narcotics and Dangerous Drugs for disposition (including delivery for medical or scientific use to any Federal or State agency under regulations of the Attorney General); or (E) transfer the forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer— (i) has been agreed to by the Secretary of State; (ii) is authorized in an international agreement between the United States and the foreign country; and (iii) is made to a country which, if applicable, has been certified under section 2291j(b) of title 22. (2)(A) The proceeds from any sale under subparagraph (B) of paragraph (1) and any moneys forfeited under this subchapter shall be used to pay— (i) all property expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court costs; and (ii) awards of up to $100,000 to any individual who provides original information which leads to the arrest and conviction of a person who kills or kidnaps a Federal drug law enforcement agent. Any award paid for information concerning the killing or kidnapping of a Federal drug law enforcement agent, as provided in clause (ii), shall be paid at the discretion of the Attorney General. [snip] http://www.gpo.gov/fdsys/pkg/USCODE-2010-title19/html/USCODE-2010-title19-chap4-subtitleIII-partV-sec1616a.htm 19 U.S.C. United States Code, 2010 Edition Title 19 - CUSTOMS DUTIES CHAPTER 4 - TARIFF ACT OF 1930 SUBTITLE III - ADMINISTRATIVE PROVISIONS Part V - Enforcement Provisions Sec. 1616a - Disposition of forfeited property From the U.S. Government Printing Office, www.gpo.gov §1616a. Disposition of forfeited property (a) State proceedings The Secretary of the Treasury may discontinue forfeiture proceedings under this chapter in favor of forfeiture under State law. If a complaint for forfeiture is filed under this chapter, the Attorney General may seek dismissal of the complaint in favor of forfeiture under State law. (b) Transfer of seized property; notice If forfeiture proceedings are discontinued or dismissed under this section— (1) the United States may transfer the seized property to the appropriate State or local official; and (2) notice of the discontinuance or dismissal shall be provided to all known interested parties. (c) Retention or transfer of forfeited property (1) The Secretary of the Treasury may apply property forfeited under this chapter in accordance with subparagraph (A) or (B), or both: (A) Retain any of the property for official use. (B) Transfer any of the property to— (i) any other Federal agency; (ii) any State or local law enforcement agency that participated directly or indirectly in the seizure or forfeiture of the property; or (iii) the Civil Air Patrol. (2) The Secretary may transfer any forfeited personal property or the proceeds of the sale of any forfeited personal or real property to any foreign country which participated directly or indirectly in the seizure or forfeiture of the property, if such a transfer— (A) has been agreed to by the Secretary of State; (B) is authorized in an international agreement between the United States and the foreign country; and (C) is made to a country which, if applicable, has been certified under section 2291j(b) of title 22. (3) Aircraft may be transferred to the Civil Air Patrol under paragraph (1)(B)(iii) in support of air search and rescue and other emergency services and, pursuant to a memorandum of understanding entered into with a Federal agency, illegal drug traffic surveillance. Jet-powered aircraft may not be transferred to the Civil Air Patrol under the authority of paragraph (1)(B)(iii). (d) Liability of United States after transfer The United States shall not be liable in any action relating to property transferred under this section if such action is based on an act or omission occurring after the transfer. nolu chan  posted on  2015-03-18   18:04:39 ET  Reply   Trace   Private Reply   #129. To: nolu chan (#128) If forfeiture proceedings are discontinued or dismissed under this section— (1) the United States may transfer the seized property to the appropriate State or local official; and So if the feds fail to seize property/money seized under their authority, they don't return it to the owner, they give it to the state or local D.A. and the owner has to keep fighting (and spending) to get it back. The whole thing sucks balls. I think the forfeiture laws are now more used against law-abiding citizens than against crooks like drug mules. Tooconservative  posted on  2015-03-18   18:34:58 ET  Reply   Trace   Private Reply   #130. To: Y'ALL (#127) libertysflame.com/cgi-bin/readart.cgi?ArtNum=38538 The New Nuremberg Defense tpaine  posted on  2015-03-18   19:03:22 ET  Reply   Trace   Private Reply   #131. To: tpaine (#127) arresting non-violent suspects Many criminals are "non violent". Most 5 and 6 time DWI offenders are swell guys and gals. Should we give them all judicial passes? One example... you want more? Why say such stupid things as an educated man? Your spin is the propaganda that removes your credibility. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   19:13:10 ET  Reply   Trace   Private Reply   #132. To: Pinguinite (#121) Juries will never hear any such argument that drug laws are unconstitutional because judges will not allow it as a defence. It is not allowed as a defense because it is contrary to law and constitutes no defense. There is a difference between arguing to a jury and a defense. The reason lower courts will not permit arguments against the constitutionality of drug laws be made by the defence to juries is not pertinent to my response in this discussion. No law may be argued to the jury. Giving the LAW is the domain of the Court. The jury is the trier of FACT. The law may not be argued to the jury as the jury is not empowered to decide what the law is. That has been an established part of United States common law since SCOTUS handed down its holding in Sparf and Hansen v. United States in 1895. Case Law is the Common Law of the United States. It is law. The United States uses the Common Law system of law. You must argue law to the Court. Arguing the law to a jury is forbidden as a matter of law. https://supreme.justia.com/cases/federal/us/156/51/case.html U.S. Supreme Court Sparf and Hansen v. United States, 156 U.S. 51 (1895) Syllabus at 51: In the courts of the United States, it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that, by a general verdict, a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case. Opinion of the Court at 64: The general question as to the duty of the jury to receive the law from the court is not concluded by any direct decision of this Court. But it has been often considered by other courts and by judges of high authority, and, where its determination has not been controlled by specific constitutional or statutory provisions expressly empowering the jury to determine both law and facts, the principle by which courts and juries are to be guided in the exercise of their respective functions has become firmly established. Opinion of the Court at 98: Mr. Justice Curtis well said, "to carry the clearest implication that in this and all other criminal cases, the jury may be directed by the judge, and that while the object of the statute was to declare that there was other matter of fact besides publication and the innuendoes to be decided by the jury, it was not intended to interfere with the proper province of the judge to decide all matters of law." http://memory.loc.gov/ammem/awhhtml/awlaw3/common_law.html Law Library of Congress Case Law (or Common Law) When your legal research involves case law (or common law), it is important to know something about the significance of precedents or the doctrine of stare decisis, which refers to “adhering to or abiding by” settled decisions. Simply put, lower courts are bound to follow decisions of higher courts in the same jurisdiction. For example, a federal district court in Maryland is required to follow the decisions of the Fourth Circuit Court of Appeals and the U.S. Supreme Court, but it is not bound by the decisions of other district courts or by the Maryland state courts. https://en.wikipedia.org/wiki/Common_law Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. nolu chan  posted on  2015-03-18   19:26:55 ET  Reply   Trace   Private Reply   #133. To: GrandIsland (#131) An American cop has no excuse (I'm just enforcing 'established law'), for zealously arresting non-violent suspects of our arguably unconstitutional drug, gun, and 'morality' wars.. Many criminals are "non violent". Most 5 and 6 time DWI offenders are swell guys and gals. Should we give them all judicial passes? Poor example, seeing that driving drunk is an inherently violent act, and commonly results in injuries to others. One example... you want more? Why say such stupid things as an educated man? Your spin is the propaganda that removes your credibility. Typically, you're using personal insult and a straw man argument, because you can't admit that you ignore your constitutional oath. tpaine  posted on  2015-03-18   19:28:12 ET  Reply   Trace   Private Reply   #134. To: TooConservative (#129) (Edited) So if the feds fail (sic?) to seize property/money seized under their authority, they don't return it to the owner, they give it to the state or local D.A. and the owner has to keep fighting (and spending) to get it back. It does suck. The proposed law of 2014 would have helped. The federal "equitable sharing" program encourages nationwide revenue enhancing abuse. This is when they do seize property. nolu chan  posted on  2015-03-18   19:31:43 ET  Reply   Trace   Private Reply   #135. To: nolu chan, Y'ALL (#132) (Edited) No law may be argued to the jury. Giving the LAW is the domain of the Court. The jury is the trier of FACT. And it is a FACT that the sixth amendment specifies that impartial juries shall be informed of the nature and cause of the accusations. --(and some states allow arguments on constitutionality) The constitutional nature of the law at issue is a valid point. A jury only allowed to hear the government's view of that law is only half informed. tpaine  posted on  2015-03-18   19:43:34 ET  Reply   Trace   Private Reply   #136. To: tpaine (#133) Poor example, seeing that driving drunk is an inherently violent act, and commonly results in injuries to others. So is selling and dealing cocaine, meth, heroin or opiates. It's dangerous in the same ways... but the offenders are real nice non violent people. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   19:45:41 ET  Reply   Trace   Private Reply   #137. To: GrandIsland (#136) Poor example, seeing that driving drunk is an inherently violent act, and commonly results in injuries to others. So is selling and dealing cocaine, meth, heroin or opiates. It's dangerous in the same ways... but the offenders are real nice non violent people. So arrest these violent dealers and sellers, and use your discretion (as per your oath) about arresting the non-violent. An American cop has no excuse (I'm just enforcing 'established law'), for zealously arresting non-violent suspects of our arguably unconstitutional drug, gun, and 'morality' wars.. tpaine  posted on  2015-03-18   19:55:46 ET  Reply   Trace   Private Reply   #138. To: nolu chan (#128) It can be viewed as the Feds enlisting the locals to do the work, It's common. Many departments don't have the personnel or knowledge to apply for seized property. It's a lot of work. It's a case on itself... we're you gotta prove the assets were obtained via illegal funds. I can see many departments charging fed, just so the Feds control the forfeiture... and be happy with a small piece of the proceeds. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   19:56:08 ET  Reply   Trace   Private Reply   #139. To: GrandIsland (#136) So is selling and dealing cocaine, meth, heroin or opiates. It's dangerous in the same ways... but the offenders are real nice non violent people. They aren't using guns or knives to rob liquor/convenience stores or for armed home invasions or for attempted murder of peace officers. So, yes, there is a difference and committing violence with intent is rightly more harshly punished. Tooconservative  posted on  2015-03-18   19:56:55 ET  Reply   Trace   Private Reply   #140. To: TooConservative (#139) They aren't using guns or knives to rob liquor/convenience stores or for armed home invasions or for attempted murder of peace officers. Many drug addicts are doing just that... nice non-violent people that will do anything to fund their addiction. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   20:09:23 ET  Reply   Trace   Private Reply   #141. To: GrandIsland (#140) Many drug addicts are doing just that... nice non-violent people that will do anything to fund their addiction. When caught, they get charged with their actual crimes, not the meds or illicit drugs they are on. Two-thirds of the country is hopped up on prescription or illegal drugs. Illegal drugs just get used more by low-income people. Tooconservative  posted on  2015-03-18   20:14:58 ET  Reply   Trace   Private Reply   #142. To: TooConservative (#141) Two-thirds of the country is hopped up on prescription or illegal drugs. Illegal drugs just get used more by low-income people. Oh, this I know all too well. The new epidemic is crushing up prescription opiates, and injecting them. Libtard NY passed a real cool law that allows drug addicts an unlimited supply of free needles. Doctors are handing out pain killers like candy. Then the addict will sell some of his prescription, and make a false report of burglary and claim his meds were stolen.... BOOM, new refil with the false police report. Big business.... your peers are setting an all time low. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   20:20:19 ET  Reply   Trace   Private Reply   #143. To: GrandIsland (#142) It is surprising how little coverage there is of major prescription drug abuse in America. As you mention, some of this trade in painkillers filters down to the illegal drug market. People have their personal drugging prefs but in the end they just wanna get high. Tooconservative  posted on  2015-03-18   20:31:08 ET  Reply   Trace   Private Reply   #144. To: TooConservative (#143) I made a point of interviewing addicts after arrest in regards to how they chose their poison. Kinda like a study. I was surprised to find out that most people that have direct injected all types of drugs, coke, meth, heroine and opiates, most said the high from opiates was the best high. Meth is a new epidemic because the supplies are all legal and it's not hard to make small amounts of very unpure meth (aka crank)... so people are cooking that shit in single bottle methods... but the real devil is OxyContin. I investigated a pad of 100 stolen blank prescriptions. They all turned up over 4 states with attempted purchases of pain killers... caught most of the "nice, non violent peaceful" perps. Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-18   20:40:08 ET  Reply   Trace   Private Reply   #145. To: nolu chan (#132) uries will never hear any such argument that drug laws are unconstitutional because judges will not allow it as a defence. It is not allowed as a defense because it is contrary to law and constitutes no defense. There is a difference between arguing to a jury and a defense. The reason lower courts will not permit arguments against the constitutionality of drug laws be made by the defence to juries is not pertinent to my response in this discussion. No law may be argued to the jury. Giving the LAW is the domain of the Court. The jury is the trier of FACT. The law may not be argued to the jury as the jury is not empowered to decide what the law is. A K A Stone- It seems after Lincolns civil war that you were not in favor of. Fruit was born. In the fact that we now have a supreme court telling us to do things that are in violation of the constitution. We are supposed to judge the law also. That is what I will do if I am on a jury and no one can stop me. Mr. Chan do you support juries being told they can't judge the law? Or do you agree with the below where John Jay the first Supreme Court Justice says that we are supposed to judge the law. How dare the jury infringe on the fourth branch of government or the people or you might even consider us the first branch of government. our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power. law2.umkc.edu/faculty/pro...zenger/nullification.html A K A Stone  posted on  2015-03-18   22:17:20 ET  Reply   Trace   Private Reply   #146. To: A K A Stone (#145) That is what I will do if I am on a jury and no one can stop me. Just don't advertise it or state it openly. Judges hate it. The Fully Informed Jury Association remains the leading online resource for jurors. Tooconservative  posted on  2015-03-18   22:29:27 ET  Reply   Trace   Private Reply   #147. To: GrandIsland (#144) (Edited) I investigated a pad of 100 stolen blank prescriptions. They all turned up over 4 states with attempted purchases of pain killers... caught most of the "nice, non violent peaceful" perps. Even so, these are not comparable to using a knife/gun for robbery or violence against another. Nor should they be. Good anecdotes though. Tooconservative  posted on  2015-03-18   22:30:38 ET  Reply   Trace   Private Reply   #148. To: tpaine (#135) And it is a FACT that the sixth amendment specifies that impartial juries shall be informed of the nature and cause of the accusations. And juries are informed of the nature and cause of the accusations. They are informed of the applicable law by the Court. The constitutionality of a law is argued to the Court which can make a decision on the question. And if you think the Court is wrong, you may object and take your legal argument to a higher court. nolu chan  posted on  2015-03-18   23:59:01 ET  Reply   Trace   Private Reply   #149. To: GrandIsland (#138) It's common. Many departments don't have the personnel or knowledge to apply for seized property. It's a lot of work. It's a case on itself... I can readily see where the state and local entities would like it. The Feds are in a better position to handle it. They can dedicate a whole group to specialize in asset forfeiture, and it is just harder to fight Uncle Sam. The state using the fed is somewhat analogous to a charity using a fund raising company. They give up a slice but it is a much bigger pie, with a lot less hassle. nolu chan  posted on  2015-03-19   0:18:34 ET  Reply   Trace   Private Reply   #150. To: nolu chan (#149) The state using the fed is somewhat analogous to a charity using a fund raising company. They give up a slice but it is a much bigger pie, with a lot less hassle. Exactly Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy GrandIsland  posted on  2015-03-19   0:29:29 ET  Reply   Trace   Private Reply   #151. To: nolu chan (#148) nolu chan, --- No law may be argued to the jury. Giving the LAW is the domain of the Court. The jury is the trier of FACT. And it is a FACT that the sixth amendment specifies that impartial juries shall be informed of the nature and cause of the accusations. --(and some states allow arguments on constitutionality) The constitutional nature of the law at issue is a valid point. A jury only allowed to hear the government's view of that law is only half informed. And juries are informed of the nature and cause of the accusations. They are informed of the applicable law by the Court. No, they are half informed of only the govts viewpoint. -- The courts do NOT inform the jurors of the loyal oppositions view on the constitutionality of the law at issue. The constitutionality of a law is argued to the Court which can make a decision on the question. And if you think the Court is wrong, you may object and take your legal argument to a higher court. Sure, there is always an appeal process, but in the meantime, a possibly innocent person is serving time because their right to a fair trial was denied. tpaine  posted on  2015-03-19   1:12:21 ET  Reply   Trace   Private Reply   #152. To: nolu chan (#132) No law may be argued to the jury. Giving the LAW is the domain of the Court. The jury is the trier of FACT. The law may not be argued to the jury as the jury is not empowered to decide what the law is. That has been an established part of United States common law since SCOTUS handed down its holding in Sparf and Hansen v. United States in 1895. The fact remains that, regardless of what courts have decided on the matter, juries DO have the de facto power to pass judgement on the law as well as the facts involved in any case whatsoever. They can do it simply by voting to acquit anyone charged of violating a law they consider unjust, and if they do, the court cannot void the judgement, and the defendant cannot be retried. Ergo, juries DO have the power to pass judgement on the law as well as the fact, and there is absolutely nothing a judge can do, or case law that can be invoked to stop, undo or change that. All judges can do is what they do do ... lie to the jury and tell them they do not have that power, and also prohibit the defence from telling the jury they don't have the power they really do have. Also, jury nullification need not be a case of them deciding a law is unconstitutional, though they may of course nullify for that reason. It may simply be because they don't believe the law in question, even if constitutional, is reasonable or beneficial in any way, shape or form. If you want some case law... William Penn, 1670. Pinguinite  posted on  2015-03-19   3:59:34 ET  Reply   Trace   Private Reply   #153. To: Pinguinite (#152) The fact remains that, regardless of what courts have decided on the matter, juries DO have the de facto power to pass judgement on the law as well as the facts involved in any case whatsoever. Yes, Justice Chase said so. nolu chan  posted on  2015-03-19   19:06:46 ET  Reply   Trace   Private Reply   #154. To: tpaine (#151) The constitutional nature of the law at issue is a valid point. A jury only allowed to hear the government's view of that law is only half informed. The jury does receive the government's view. The judiciary is the branch of the government empowered to interpret the law and provide the law to the jury. Sure, there is always an appeal process, but in the meantime, a possibly innocent person is serving time because their right to a fair trial was denied. You are entitled to your opinion, even if it is contrary to about two centuries of precedent to the contrary. You may not argue such opinion to the jury. nolu chan  posted on  2015-03-19   19:10:34 ET  Reply   Trace   Private Reply   #155. To: A K A Stone (#145) A K A Stone- It seems after Lincolns civil war that you were not in favor of. Fruit was born. I view it as a second revolution. The union as it was ceased to exist. For example, there were no greenbacks, the standing army numbered something like 15,000, and there was no Internal Revenue and unapportioned income tax. Note that the Internal Revenue is a continuous entity starting during the Civil War. The unconstitutional unapportioned income tax was ruled unconstitutional in the 1890's and resurrected with the 16th Amdt in 1913. In the fact that we now have a supreme court telling us to do things that are in violation of the constitution. What action has SCOTUS told to do that violates the constitution? On the topic of abortion, it did not order us to do anything. Everyone in the country could lawfully refuse to perform or receive and abortion. SCOTUS acts more to tell people to refrain from doing certain things. I am uncertain of what you are referring to. We are supposed to judge the law also. On a jury we are not supposed to determine what the applicable law is, nor whether it is constitutional. A jury can judge the law unjust when rendering its verdict. nolu chan  posted on  2015-03-19   19:11:05 ET  Reply   Trace   Private Reply   #156. To: A K A Stone (#145) Or do you agree with the below where John Jay the first Supreme Court Justice says that we are supposed to judge the law. How dare the jury infringe on the fourth branch of government or the people or you might even consider us the first branch of government. our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. A more complete quote being: http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power. The article notes, as have later court opinions, that only early in our history did judges inform jurors of the nullification “right” (sic - power). What is identified as a “charge” against Chase was one of three members of Article 1, a clearly defective Article of Impeachment against Chase which erroneously cites Amendment 8 which reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 8 ANNALS OF CONGRESS, Second Session, page 665 Article 1 of the Impeachment charges against Justice Samuel Chase Proceedings at the start of the trial on March 1, 1805 The Secretary then read the first article of im­peachment, as follows: Article 1. That, unmindful of the solemn duties of his, office, and contrary to the sacred obligation by which he stood bound to discharge them “faithfully and impartially, and without respect to persons,” the said Samuel Chase, on the trial of John Fries, charged with treason, before, the circuit court of the United States, held for the district of Pennsylvania, in the city of Philadelphia, during the months of April and May, one thousand eight hundred, whereat the said Samuel Chase presided, did, in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust, viz: 1. In delivering an opinion, in writing on the ques­tion of law, on the construction of which the defence of the accused materially depended, tending to preju­dice the minds of the jury against the case, of the said John Fries, the prisoner, before counsel had been heard in his defence: 2. In restricting the counsel for the said Fries from recurring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client: 3. In debarring the prisoner from his Constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to deter­mine his guilt, or innocence, and at the same time en­deavoring to wrest from the jury their indisputable right to hear argument, and determine upon the ques­tion of law, as well as the question of fact, involved in the verdict which they were required to give: In consequence of this irregular conduct of the said Samuel Chase, as dangerous to our liberties as it is novel to our laws and usages, the said John Fries was deprived of the right, secured to him by the eighth article amendatory of the Constitution, and was condemned to death without having been heard, by counsel, in his defence, to the disgrace of the charac­ter of the American bench, in manifest violation of law and justice, and in open contempt of the rights of juries, by which ultimately rest the liberty and safety of the American people. Justice Chase corrected them to the Sixth Amendment. At trial, a majority of the Senators voting cast their votes in favor of Chase and for acquittal. It should be noted that Chase was acquitted of all charges. Prior to this political trial, the administration had repealed the existing Judicial Act, thereby eliminating all Federal courts other than the Supreme Court mandated by the Constitution. While the administration could not remove the sitting Federalist appointees from the bench as they held appointments for life, by eliminating the courts, the Jefferson administration eliminated the bench from the Adams-appointed judges. Brailsford has been deprecated. https://en.wikipedia.org/wiki/Samuel_Chase Impeachment President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party's efforts to remove the Federalists from the bench. His allies in Congress had, shortly after his inauguration, repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments; Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying that it would "take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy[.]" Earlier in April 1800, Chase acting as a district judge, had made strong attacks upon Thomas Cooper who had been indicted under the Alien and Sedition Acts; Chase had taken the air of a prosecutor rather than a judge. Also in 1800, when a grand jury in New Castle, Delaware declined to indict a local printer, Chase refused to discharge them, saying he was aware of one specific printer that he wished them to indict for seditious behavior. Jefferson saw the attack as indubitable bad behavior and an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase, launching the process from the White House when he wrote to Congressman Joseph Hopper Nicholson of Maryland asking: "Ought the seditious and official attack [by Chase] on the principles of our Constitution . . .to go unpunished?" Virginia Congressman John Randolph of Roanoke took up the challenge and took charge of the impeachment. The House of Representatives served Chase with eight articles of impeachment in late 1804, one of which involved Chase's handling of the trial of John Fries. Two more focused on his conduct in the political libel trial of James Callender. One article covered Chase's conduct with the New Castle grand jury, charging that he "did descend from the dignity of a judge and stoop to the level of an informer by refusing to discharge the grand jury, although entreated by several of the said jury so to do." Three articles focused on procedural errors made during Chase's adjudication of various matters, and an eighth was directed at his “intemperate and inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly indecent” remarks while "charging" or authorizing a Baltimore grand jury. The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution. All the counts involved Chase's work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The heart of the allegations was that political bias had led Chase to treat defendants and their counsel in a blatantly unfair manner. Chase's defense lawyers called the prosecution a political effort by his Republican enemies. In answer to the articles of impeachment, Chase argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency. The Senate voted to acquit Chase of all charges on March 1, 1805. He is the only U.S. Supreme Court justice to have been impeached. The impeachment raised constitutional questions over the nature of the judiciary and was the end of a series of efforts to define the appropriate extent of judicial independence under the Constitution. It set the limits of the impeachment power, fixed the concept that the judiciary was prohibited from engaging in partisan politics, defined the role of the judge in a criminal jury trial, and clarified judicial independence. The construction was largely attitudinal as it modified political norms without codifying new legal doctrines. The acquittal of Chase — by lopsided margins on several counts — set an unofficial precedent that many historians say helped ensure the independence of the judiciary. As Chief Justice William Rehnquist noted in his book Grand Inquests, some senators declined to convict Chase despite their partisan hostility to him, apparently because they doubted that the mere quality of his judging was grounds for removal. All impeachments of federal judges since Chase have been based on allegations of legal or ethical misconduct, not on judicial performance. For their part, federal judges since that time have generally been much more cautious than Chase in trying to avoid the appearance of political partisanship. nolu chan  posted on  2015-03-19   19:16:05 ET  Reply   Trace   Private Reply   #157. To: A K A Stone (#145) (Edited) In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. Justice Chase Impeachment Trial Statement re impeachment Article 1 8 ANNALS OF CONGRESS, Second Session [101] HISTORY OF CONGRESS. Trial of Judge Chase. TRIAL OF SAMUEL CHASE. Monday, February 4, 1805. About a quarter before ten o’clock the Court was opened by proclamation, all the members of the Senate, thirty-four, attending. The Chamber of the Senate, which is very extensive, was soon filled with spectators, a large portion of whom consisted of ladies, who continued, with little intermission, to attend during the whole course of the trial. The oath prescribed was administered to Mr. Bayard, Mr. Cocke, Mr. Gaillard, and Mr. Stone, members of the Court, who were not present when it was before administered. Ordered, That the Secretary give notice to the House of Representatives that the Senate are in their public chamber, and are ready to proceed on the trial of Samuel Chase; and that seats are provided for the accommodation of the members. In a few minutes the Managers, viz: Messrs, J. Randolph, Rodney, Nicholson, Boyle, G. W. Campbell, Early, and Clark, accompanied by the House of Representatives in Committee of the Whole, entered and took their seats. Samuel Chase being called to make answer to the articles of impeachment, exhibited against him by the House of Representatives, appeared, attended by Messrs. Harper, Martin, and Hopkisson, his counsel; to whom seats were assigned. The President, after stating to Mr. Chase the indulgence of lime which had been allowed, inquired if he was prepared to give in his answer? Mr. Chase said, he had prepared it, as well as circumstances would permit; and submitted the following motion: “Samuel Chase moves for permission to read his answer, by himself and his counsel, at the bar of this honorable Court.” The President asked him if it was the answer on which he meant to rely? to which he replied in the affirmative. The motion being agreed to by a vote of the Senate, Mr. Chase commenced the reading of his answer, (in which he was assisted by Messrs. Harper, and Hopkinson,) as follows: This respondent, in his proper person, comes into the said Court, and protesting that there is no high crime or misdemeanor particularly alleged in the said articles of impeachment, to which he is, or can be bound by law to make answer; and saving to himself now, and at all times hereafter, all benefit of exception to the insufficiency of the said articles, and each of them, and to the defects therein appearing in point of law, or otherwise; and protesting also, that he ought not to be injured in any manner, by any words, or by any want of form in this his answer; he submits the following facts and observations by way of answer to the said articles. The first article relates to his supposed misconduct in the trial of John Fries, for treason, before the circuit court of the United States at Philadelphia, in April and May 1800; and alleges that he presided at that trial, and that “unmindful of the solemn duties of his office, and contrary to the [102] sacred obligation by which he stood bound to discharge them faithfully and impartially, and without respect to persons,” he did then, “in his judicial capacity, conduct himself in a manner highly arbitrary, oppressive, and unjust.” This general accusation, too vague in itself for reply, is supported by three specific charges of misconduct: 1st “In delivering an opinion, in writing, on the question of law, on the construction of which, the defence of the accused materially depended:” which opinion, it is alleged, tended to prejudice the minds of the jury against the case of the said John Fries, the prisoner, before counsel had been heard in his favor. 2d. “In restricting the counsel for the said John Fries, from recurring to such English authorities, as they believed apposite; or from citing certain statutes of the United States, which they deemed illustrative of the positions, upon which they intended to rest the defence of their client.” 3d. “In debarring the prisoner from his Constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give.” This first article then concludes, that in consequence of this irregular conduct of this respondent, ‘’ the said John Fries was deprived of the right secured to him by the eighth article amendatory of the Constitution, and was condemned to death, without having been heard by counsel, in his defence.” By the eighth article amendatory of the Constitution, this respondent supposes is meant the sixth amendment to the Constitution of the United States, which secures to the accused, in all criminal prosecutions, the right to have the assistance of counsel for his defence. In answer to these three charges, the respondent admits that the circuit court of the United States, for the district of Pennsylvania, was held at Philadelphia, in that district, in the months of April and May, in the year of our Lord, one thousand eight hundred, at which court John Fries, the person named in the said first article, was brought to trial on an indictment for treason against the United States; and that this respondent then held a commission as one of the associate justices of the Supreme Court of the United States, by virtue of which office he did, pursuant to the laws of the United States, preside at the above-mentioned trial, and was assisted therein by Richard Peters, Esq., then, and still district judge of the United States for the district of Pennsylvania; who, as directed by the laws of the United States, sat as assistant judge at the said trial. With respect to the opinion, which is alleged to have been delivered by this respondent, at the above-mentioned trial, he begs leave to lay before this honorable Court the true state of that [103] transaction, and to call its attention to some facts and considerations, by which his c6nduct on that subject will, he presumes, be fully justified. The Constitution of the United States, in the third section of the third article, declares that “treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” By two acts of Congress, the first passed on the third day of March, 1791, and the second on the eighth day of May, 1792, a duty was imposed on spirits distilled within the United States, and on stills; and various provisions were made for its collection. In the year 1794, an insurrection took place in four of the western counties of Pennsylvania, With a view of resisting, and preventing by force the execution of these two statutes; and a circuit court of the United States, held at Philadelphia, for the district of Pennsylvania, in the month of April, in the year 1795, by William Patterson, Esq., then one of the associate justices of the Supreme Court of the United Slates, and the above mentioned Richard Peters, then district judge of the United States, for the district of Pennsylvania, two persons, who had been concerned in the above-named insurrection, namely, Philip Vigol and John Mitchel, were indicted for treason, of levying war against the United States, by resisting and preventing by force the execution of the two last mentioned acts of Congress; and were, after a full and very solemn trial, convicted of the indictments and sentenced to death. They were afterwards pardoned by George Washington, then President of the United States. In the first of these trials, that of Vigol, the defence of the prisoner was conducted by very able counsel, one of whom, William Lewis, Esq., is the same person who appeared as counsel for John Fries, in the trial now under consideration. Neither that learned gentleman, nor his able colleague, than thought proper to raise the question of law, “whether resisting and preventing by armed force, the execution of a particular law of the United States, be a levying of war against the United States,” according to the true meaning of the Constitution? Although a decision of this question in the negative, must have acquitted the prisoner. But in the next trial, that of Mitchell, this question was asked on the part of the prisoner, and was very fully and ably discussed by his counsel; and it was solemnly determined by the court, both the judges concurring, “that to resist or prevent by armed force, the execution of a particular law of the United States, is a levying of war against the United States, and consequently is treason, within the true meaning of the Constitution.” The decision, according to the best established principles of our jurisprudence, became a precedent for all courts of equal or inferior jurisdiction; a precedent which, although not absolutely obligatory, ought to be viewed with very great respect, especially by the court in which it was made, and ought never to be departed from, but on the fullest and clearest conviction of its incorrectness. [104] On the 9th of July, an act of Congress was passed, providing for a valuation of lands and dwelling-houses, and an enumeration of slaves throughout the United States; and directing the appointment of commissioners and assessors for carrying it into execution: and on the 4th day of July, in the same year, a direct tax was laid by another act of Congress of that date, on the lands, dwelling-houses, and slaves, so to be valued and enumerated. In the months of February and March, A. D. 1799, an insurrection took place in the counties of Bucks and Northampton, in the State of Pennsylvania, for the purpose of resisting and preventing by force, the execution of the two last mentioned acts of Congress, and particularly that for the valuation of lands and dwelling-houses. John Fries, the person mentioned in the article of impeachment now under consideration, was apprehended and committed to prison, as one of the ringleaders of this insurrection; and at a circuit court of the United States, held at Philadelphia, in and for the district of Pennsylvania, in the month of April, A, D. 1799, he was brought to trial for this offence, on an indictment for treason, by levying war against the United States, before James Iredell, Esq., then one of the associate justices of the Supreme Court of the United States, who presided in the said court, according to law, and the above-mentioned Richard Peters, then district judge of the United States; for the district of Pennsylvania, who sat in the said circuit court as assistant judge. In this trial, which was conducted with great solemnity, and occupied nine days, the prisoner was assisted by William Lewis and Alexander James Dallas, Esqs., two very able and eminent counsellors; the former of whom, William Lewis, is the person who assisted, as above mentioned in conducting the defence “of Vigol, on a similar indictment. These gentlemen, finding that the facts alleged were fully and undeniably proved, by a very minute and elaborate examination of witnesses, thought proper to rest the case of the prisoner on the question of law which had been determined in the cases of Vigol and Mitchel, above-mentioned, and had then been acquiesced in, but which they thought proper again to raise. They contended, “that to resist by force of arms a particular law of the United States, does not amount to levying war against the United States, within the true meaning of the Constitution, and therefore is not treason, but a riot only.” This question they argued at great length and with all the force of their learning and genius; and after a full discussion at the bar, and the most mature deliberation by the court, the learned and excellent judge who then presided, and who was no less distinguished by his humanity and tenderness towards persons tried before him, than by his extensive knowledge and great talents as a lawyer, pronounced the opinion of himself and his colleague, “that to resist, or prevent by force, the execution of a particular law of the United States, does amount to levying war against them, within the true meaning of the Constitution, and does, [105] therefore, constitute the crime of treason:” thereby adding the weight of another and more solemn decision to the precedent which had been established in the above-mentioned cases of Vigol and Mitchel. Under this opinion of the court on the question of law, the jury, having no doubt as to the facts, found the said John Fries guilty of treason on the above-mentioned indictment. But a new trial was granted by the court, not by reason of any doubt as to the correctness of the decision on the question of law, but solely on the ground, as this respondent hath understood and believes, that one of the jurors of the petit jury, after he was summoned, but before he was sworn on the trial, had made some declaration unfavorable to the prisoner. The yellow fever having appeared in Philadelphia in the Summer of the year 1799, the above mentioned Richard Peters, then district judge of the United States for the district of Pennsylvania, did, according to law, appoint the next circuit court of that district, to be held at Norristown therein: Pursuant to which appointment, a circuit court was held at Norristown aforesaid, in and for the said district, on the 11th day of October, in the last mentioned year, before Bushrod Washington. Esq., then one of the associate justices of the Supreme Court of the United States, and the above mentioned Richard Peters; at which court no proceedings were had on the aforesaid indictment against John Fries, because, as this respondent hath been informed and believes, the commission of the marshal of the district had expired before he summoned the jurors to attend at the said court, and had not been renewed; by reason of which no legal panel of jurors could be formed. On the 11th day of April, 1800, and from that day until the 2d day of May in the same year, a circuit court of the United States was held at Philadelphia, in and for the district of Pennsylvania, before this respondent, then one of the associate justices of the Supreme Court of the United States, and the above mentioned Richard Peters, then district judge of the United Slates for the district of Pennsylvania. At this court the indictment on which the said John Fries had been convicted as above-mentioned, was quashed ex officio by William Rawle, Esq., then attorney of the United States for the district of Pennsylvania, and a new indictment was by him preferred against the said John Fries, for treason of levying war against the United States, by resisting and preventing by force in the manner above set forth, the execution of the above-mentioned acts of Congress, for the valuation of lands and dwelling-houses, and the enumeration of slaves, and for levying and collecting a direct tax. This indictment of which a true copy, marked No. 1, is herewith exhibited by this respondent, who prays that it may be taken as part of this his answer, being found by the grand jury on the 16th day of April, 1800, the said John Fries was on the same day arraigned thereon, and plead not guilty. William Lewis and Alexander James Dallas, Esqrs., the same [106] persons who had conducted his defence at his former trial, were again at his request assigned by the court as his counsel; and his trial was appointed to be had on Tuesday the 22d day of the last mentioned month of April. After this indictment was found by the grand jury, this respondent considered it with great care and deliberation, and finding from the three overt acts of treason which it charged, that the question of law arising upon it was the same question which had already been decided twice in the same court, on solemn argument and deliberation, and once in that very case, he considered the law as settled by those decisions, with the correctness of which, on full consideration, he was entirely satisfied; and by tbe authority of which he should have deemed himself bound, even had he regarded the question as doubtful in itself. They are moreover in perfect conformity with the uniform tenor of decisions in the courts of England and Great Britain, from the Revolution in 1688 to the present time, which, in his opinion, added greatly to their weight and authority. And surely he need not urge to this honorable Court, the correctness, the importance, and the absolute necessity of adhering to principles of law once established, and of considering the law as finally settled, after repeated and solemn decisions by courts of competent jurisdiction. A contrary principle would unsettle the basis of our whole system of jurisprudence, hitherto our safeguard and our boast; would reduce the law of the land, and subject the rights of the citizen to the arbitrary will, the passions, or the caprice, of the judge in each particular case, and would substitute the varying opinions of various men, instead of that fixed, permanent rule, in which the very essence of law consists. If this respondent erred in regarding this point as settled, by the repeated and solemn adjudications of his predecessors in the same court and in the same case; if he erred in supposing that a principle established by two solemn decisions was obligatory upon him, sitting in the same court where those decisions had been made; if he erred in believing that it would be the highest presumption in him to set up his opinion and judgment over that of his colleague, who had twice decided the same question, and of two of his predecessors, who justly rank among the ablest judges that have ever adorned a court; if in all this he erred, it is an error of which he cannot be ashamed, and which he trusts will not be deemed criminal in the eyes of this honorable Court, of his country, or of that posterity by which he, his accusers, and his judges, must one day be judged. Under the influence of these considerations this respondent drew up an opinion on the law, arising from the overt acts stated in the said indictment, which was conformable to the decisions before given as above-mentioned, and which he sent to his colleague the said Richard Peters for his consideration. That gentleman returned it to this respondent, with some amendments affecting the form only, but not in any manner touching the substance. [107] The opinion, thus agreed to, this respondent thought it proper to communicate to the prisoner’s counsel; several reasons concurred in favor of this communication. In the first place this respondent considered himself and the court as bound by the authority of the former decisions, especially the last of them, which was on the same case. He considered the law as settled, and had every reason to believe that his colleague viewed it in the same light. It was not suggested or understood that any new evidence was to be offered; and he knew that if any should be offered, which could vary the case, it would render wholly inapplicable both the opinion and the former decisions on which it was founded. And he could not and did not suppose that the prisoner’s counsel would be desirous of wasting very precious time, in addressing to the court an useless argument on a point which that court held itself precluded from deciding in their favor. He therefore conceived that it would be rendering the counsel a service, and a favor to apprize them beforehand of the view which the court had taken of the subject, so as to let them see in time the necessity of endeavoring to produce new testimony, which might vary the case, and take it out of the authority of former decisions. Secondly, there were more than one hundred civil causes then depending in the said court, as appears by the exhibit marked No. 1, which this respondent prays may be taken as part of this, his answer. Many of those causes had already been subjected to great delay, and it was the peculiar duty of this respondent, as presiding judge, to take care that as little time as possible should be unnecessarily consumed, and that every convenient and proper dispatch should be given to the business of the citizens. He did believe that an early communication of the court’s opinion might tend to the saving of time, and consequently to the dispatch of business. Thirdly, as the court held itself bound by the former decisions, and could not therefore alter its opinion in consequence of any argument; and as it was the duty of the court to charge the jury on the law in all cases submitted to their consideration, he knew that this opinion must not only be made known at some period or other of the trial, but must at the end of the trial be expressly delivered to the jury by him in a charge from the bench: and he could not suppose and cannot yet imagine, that an opinion, which was to be thus solemnly given in charge to the jury at the close of the trial, could make any additional impression on their minds from the circumstance of its being intimated to the counsel before the trial began, in the hearing of those who might be afterwards sworn on the jury. And lastly, it was then his opinion, and still is, that it is the duty of every court of this country, and was his duty on the trial now under consideration, to guard the jury against erroneous impressions respecting the laws of the land. He well knows that it is the right of juries in criminal cases to give a general verdict of acquittal, which cannot be set aside on account of its being [108] contrary to law, and that hence results the power of juries to decide on the law as well as on the facts in all criminal cases. This power he holds to be a sacred part of our legal privileges, which he never has attempted, and never will attempt to abridge or to obstruct. But he also knows, that in the exercise of this power, it is the duty of the jury to govern themselves by the laws of the land, over which they have no dispensing power; and their right to expect and receive from the court all the assistance which it can give for rightly understanding the law. To withhold this assistance in any manner whatever; to forbear to give it in that way which may be most effectual for preserving the jury from error and mistake, would be an abandonment or forgetfulness of duty, which no judge could justify to his conscience or to the laws. In this case, therefore, where the question of law arising on the indictment had been finally settled by authoritative decisions, it was the duty of the court, and especially of this respondent as presiding judge, early to apprize the counsel and the jury of these decisions, and their effect, so as to save the former from the danger of making an improper attempt to mislead the jury in a matter of law, and the jury from having their minds preoccupied by erroneous impressions. It was for these reasons that on the 22d day of April, 1800, when the said John Fries was brought into court, and placed in the prisoners’ box for trial, but before the petit jury were empanelled to try him, this respondent informed the above-mentioned William Lewis, one of his counsel, the aforesaid Alexander James Dallas not being then in court, “that the court had deliberately considered the indictment against John Fries for treason, and the three several overt acts of treason; stated therein: That the crime of treason was defined by the Constitution of the United States. That as the Federal Legislature had the power to make, alter, or repeal laws, so the judiciary only had the power, and it was their duty, to declare, expound and interpret the Constitution and laws of the United States, That it was the duty of the Court, in all criminal cases, to state to the petit jury their opinion of the law arising on the facts; but the petit jury, in all criminal cases, were to decide both the law and the facts, on a consideration of the whole case. That there must be some constructive exposition of the terms used in the Constitution, “levying war against the United States.” That the question, what acts amounted to levying war against the United States, or the Government thereof, was a question of law, and had been decided by Judges Patterson and Peters, in the cases of Vigol and Mitchel, and by Judges Iredell and Peters, in the case of John Fries, prisoner at the bar, in April 1799. That Judge Peters remained of the same opinion, which he had twice before delivered, and he, this respondent, on long and great consideration, concurred in the opinion of Judges Patterson, Iredell, and Peters. That to prevent unnecessary delay, and to save time on the trial of John Fries, and to prevent a delay of justice, in the great number of civil causes depending [109] for trial at that terra, the court had drawn up in writing, their opinion of the law, arising on the overt acts stated in the indictment against John Fries; and had directed David Caldwell, their clerk, to make out three copies of their opinion, one to be delivered to the attorney of the district, one to the counsel for the prisoner, and one to the petit jury, after they shall have been empanelled and heard the indictment read to them by the clerk, and after the district attorney should have stated to them the law on the overt acts alleged in the indictment, as it appeared to him.” After these observations, this respondent delivered one of the above mentioned copies to the aforesaid William Lewis, then attending as one of the prisoner’s counsel; who read part of it, and then laid it down on the table before him. Some observations were then made on the subject, by him and the above-mentioned Alexander James Dallas, who had then come into court; but this respondent doth not now recollect those observations, and cannot undertake to state them accurately. And this respondent further saith, that the paper marked exhibit No. 2, and herewith exhibited, which, he prays leave to make part of this his answer, is a true copy of the original opinion, drawn up by him and concurred in by the said Richard Peters, as above set forth, which original opinion is now in the possession of this respondent, ready to be produced to this honorable Court. He may have erred in forming this opinion, and in the time and manner of making it known to the counsel for the prisoner. If he erred in forming it, he erred in common with his colleague and with two of his predecessors; and he presumes to hope that an error which has never been deemed criminal in them, will not be imputed as a crime to him who was led into it by their example and their authority. If he erred in the time and manner of making known his opinion, he feels a just confidence, that when the reasons which he has alleged for his conduct, and by which it seemed to him to be fully justified, shall come to be carefully weighed, they will be sufficient to prove, if not that this conduct was perfectly regular and correct, yet that he might sincerely have considered it as right; and that in a case where so much doubt may exist, to have committed a mistake, is not to have committed a crime. And this respondent further answering insists, that the opinion thus delivered to the prisoner’s counsel, viz: that “any insurrection or rising of any body of people within the United States, for the purpose of resisting or preventing by force or violence, under any pretence whatever, the execution of any statute of the United States, for levying or collecting taxes, or for any other object of a general or national concern, is levying war against the United States, within the contemplation and true meaning of the Constitution of the United States,” is a legal and correct opinion, supported not only by the two previous decisions above-mentioned, but also by the plainest principles of law and reason, and by the uniform tenor of legal adjudications in England and Great Britain, from the Revolution in 1688 to this time. [110] It ever was, and now is his opinion, that the peace and safety of the National Federal Government must be endangered by any other construction of the terms “levying war against the United States,” used by the Federal Constitution; and be is confident that no judge of the Federal Government, no judge of a superior State court, nor any gentleman of established reputation for legal knowledge, would or could deliberately give a contrary opinion. If, however, this opinion were erroneous, this respondent would be far less censurable than his predecessors, by whose example he was led astray, and by whose authority he considered himself bound. Was it an error to consider himself bound by the authority of their previous decisions? If it were, he was led into the error by the uniform course of judicial proceedings, in this country and in England, and is supported in it, by one of the fundamental principles of our jurisprudence. Can such an error be a crime or misdemeanor? If, on the other hand, the opinion be in itself correct, as he believes and insists that it is, could the expression of a correct opinion on the law, wherever and however made, mislead the jury, infringe their rights, or give an improper bias to their judgments? Could truth excite improper prejudice? Could the jury be less prepared to hear the law discussed, and to decide on it correctly, because it was correctly stated to them by the court? And is not that a new kind of offence, in this country at least, which consists in telling the truth, and giving a correct exposition of the law? As to the second specific charge adduced in support of the first article of impeachment, which accuses this respondent, “of restricting the counsel for the said Fries, from recurring to such English authorities as they believed apposite, or from citing certain statutes of the United States, which they deemed illustrative of the positions upon which they intended to rest the defence of their client,” this respondent admits that he did, on the above-mentioned trial, express it as his opinion to the aforesaid counsel for the prisoners, that the decisions in England, in cases of indictments for treason at common law, against the person of the King, ought not to be read to the jury, on trials for treason under the Constitution and statutes of the United States; because such decisions could not inform, but might mislead and deceive the jury: that any decisions on cases of treason, in the courts of England, before the Revolution of 1688, ought to have very little influence in the courts of the United States; that he would permit decisions in the courts of England or of Great Britain, since the said Revolution, to be read to the court or jury, for the purpose of showing what acts have been considered by those courts, as a constructive levying of war against the King of that country, in his legal capacity, but not against his person; because levying war against his Government was of the same nature as levying war against the Government of the United States: but that such decisions, nevertheless, [111] were not to be considered as authorities binding on the courts and juries of this country, but merely in the light of opinions entitled to great respect, as having been delivered after full consideration, by men of great legal learning and ability. These are the opinions which he did, on that occasion, deliver to the counsel for the prisoner, and which he then thought, and still thinks, it was his duty to deliver. The counsellors admitted to practice in any court of justice are, in his opinion, and according to universal practice, to be considered as officers of such courts, and ministers of justice therein, and as such subject to the direction and control of the court, as to their conduct in its presence, and in conducting the defence of criminals on trial before it. As counsel, they owe to the person accused, diligence, fidelity, and secrecy, and to the court and jury, due and correct information, according to the best of their knowledge and ability, on every matter of law which they attempt to adduce in argument. The court, on the other hand, hath power, and is bound in duty, to decide and direct what evidence, whether by record or by precedents of the decisions in courts of justice, is proper to be admitted for the establishment of any matter of law or fact. Consequently, should counsel attempt to read to a jury, as a law still in force, a statute which had been repealed, or a decision which had been reversed, or the judgments of courts in countries whose laws have no connexion with ours, it would be the duty of the court to interpose, and prevent such an imposition from being practised on the jury. For these reasons, this respondent thinks that his conduct was correct, in expressing to the counsel for Fries, the opinions stated above. He is not bound to answer here for the corectness of those principles, though he thinks them incontestable; but merely for the correctness of his motives in delivering them. A contrary opinion would convert this honorable Court, from a Court of Impeachment into a Court of Appeals; and lead directly to the strange absurdity, that whenever the judgment of an inferior court should be reversed on appeal or writ of error, the judges of that court must be convicted of high crimes and misdemeanors, and turned out of office: that error in judgment is a punishable offence, and that crimes may be committed without any criminal intention. Against a doctrine so absurd and mischievous, so contrary to every notion of justice hitherto entertained, so utterly subversive of all that part of our system of jurisprudence, which has been wisely and humanely established for the protection of innocence, this respondent deems it his duty now, and on every fit occasion, to enter his protest and lift up his voice; and he trusts that in the discharge of this duty, infinitely more important to his country than to himself, he shall find approbation and support in the heart of every American, of every man throughout the world, who knows the blessings of civil liberty, or respects the principles of universal justice. It is only, then, for the correctness of his motives in delivering these opinions, that he can now be called to answer; and this correctness ought to [112] be presumed, unless the contrary appear by some direct proof, or some violent presumption, arising from his general conduct on the trial, or from the glaring impropriety of the opinion itself. For he admits that cases may be supposed, of an opiuion delivered by a judge, so palpably erroneous, unjust, and oppressive, as to preclude the possibility of its having proceeded from ignorance or mistake. Do the opinions now under consideration bear any of these marks? This honorable Court need not be informed that there has existed in England no such thing as treason at common law, since the year 1350, when the statute of the 25th Edward III, chap. 2, declaring what alone should in future be judged treason, was passed. Is it perfectly clear that decisions made before that statute, four hundred and fifty years ago, when Eugland, together with the rest of Europe, was still wrapped in the deepest gloom;of ignorance and barbarism—When the system of English jurisprudence was still in its infancy—when law, justice, and reason, were perpetually trampled under foot by feudal oppression and feudal anarchy—when, under an able and vigorous monarch, everything was adjudged to be treason which he thought fit to call so, and, under a weak one, nothing was considered as treason which turbulent, powerful, and rebellious nobles thought fit to perpetrate—is it perfectly clear that decisions, made at such a time, and under such circumstances, ought to be received by the courts of this country as authorities to govern their decisions, or lights to guide the understanding of juries? Is it perfectly clear that decisions made in England, on the subject of treason, before the Revolution of 1688, by which alone the balance of the English constitution was adjusted, and the English liberties were fixed on a firm basis; decisions made either during the furious civil wars in which two rival families contended for the Crown; when in the vicissitudes of war, death and confiscation, in the forms of law, continually walked in the train of the victors, and actions were treasonable or praiseworthy, according to the preponderance of the party by whose adherents they were perpetrated; during the reigns of three able and arbitrary monarchs who succeeded this dreadful conflict, and relaxed or invigorated the law of treason, according to their anger, their policy, or their caprice; or during those terrible struggles between the principles of liberty, not yet well defined or understood, on one hand, and arbitrary power, insinuating itself under the forms of the constitution, on the other; struggles which presented at some times the wildest anarchy, at others, the extremes of servile submission, and, after having brought one king to the scaffold, ended in the expulsion of another from his throne;—is it clear that decisions on the law of treason, made in times like those, ought not only to be received as authorities, in the courts of this country, but also to have great influence on their decisions? Is it clear that; decisions made in England, as to what acts will amount to levying war against the king, personally, and not against his government, are applicable to the Constitution and laws of this country? [113] Is it clear that such English decisions on the subject of treason as are applicable to our Constitution and laws, are to be received in our courts, not merely as the opinions of learned and able men, which may enlighten their judgment, but as authorities which ought to govern absolutely their decisions? Is all this so clear that a judge could not honestly and sincerely have thought the contrary? that he could not have expressed an opinion to the contrary without corrupt and improper motives? If it be not thus clear, then must it be admitted that this respondent, sincerely and honestly, and in the best of his judgment, considered these decisions as wholly inadmissible, or admissible only for the purposes and to the extent which he pointed out. And if he did not so consider them, was it not his duty to prevent them from being read to the jury, except under those restrictions, and for those purposes? Would his duty-permit him to sit silently, and see the jury imposed on and misled? To sit silently and hear a book read to them as containing the law, which he knew did not contain the law? Such silence would have rendered him a party to the deception, and would have justly subjected him to all the contumely which a conscientious and courageous discharge of his duty has so unmeritedly brought on his name. With respect to the statutes of the United States, which he is charged with having prevented the prisoner’s counsel from citing on the aforesaid trial, he denies that he prevented any act of Congress from being cited either to the court or jury on the said trial, or declared at any time that he would not permit the prisoner’s counsel to read to the jury or to the court any act of Congress whatever. Nor does he remember or believe that he expressed on the said trial any disapprobation of the conduct of the circuit court, before whom the said case was first tried, in permitting the act of Congress relating to crimes less than treason commonly called the Sedition Act, to be read to the jury. He admits indeed that he was then and still is of opinion that the said act of Congress was wholly irrelevant to the issue, in the trial of John Fries, and therefore ought not to have been read to the jury, or regarded by them. This opinion may be erroneous, but he trusts that the following reasons on which it was founded will be considered by this honorable court as sufficiently strong to render it possible, and even probable, that such an opinion might be sincerely held and honestly expressed: 1. That Congress, did not intend by the Sedition law to define the crime of treason by “levying war.” Treason and sedition are crimes very distinct in their nature, and subject to very different punishments—the former by death, and the latter by fine and imprisonment. 2. The Sedition law makes a combination or conspiracy, with intent to impede the operation of any law of the United States, or the advising or attempting to procure any insurrection or riot, a high misdemeanor, punishable by fine and imprisonment; but a combination or conspiracy with intent to prevent the execution of a law, or with intent to raise an insurrection for that purpose, or even with [114] intent to commit treason, is not treason by “levying war” against the United States, unless it be followed by an attempt to carry such combination or conspiracy into effect, by actual force or violence. 3. The Constitution of the United States is the fundamental and supreme law, and, having defined the crime of treason, Congress could not give any Legislative interpretation or exposition of that crime, or of the part of the Constitution by which it is defined. 4. The Judicial authority of the United States is alone vested with power to expound their Constitution and laws. And this respondent further answering saith, that after the above-mentioned proceedings had taken place in the said trial, it was postponed until the next day, (Wednesday, April 23, 1800,) when, at the meeting of the court, this respondent told both the above-mentioned counsel for the prisoner, that, “to prevent any misunderstanding of anything that had passed the day before, he would inform them, that, although the court retained the same opinion of the law, arising on the overt acts charged in the indictment against Fries, yet the counsel would be permitted to offer arguments to the court, for the purpose of showing them that they were mistaken in the law; and that the court, if satisfied that they had erred in opinion, would correct it; and also that the counsel would be permitted to argue before the petit jury that the court were mistaken in the law.” And this respondent added, that the court had given no opinion as to the facts in the case, about which both the counsel had declared that there would be no controversy. After some observations by the said William Lewis and Alexander James Dallas, they both declared to the court, “that they did not any longer consider themselves as the counsel for John Fries, the prisoner.” This respondent then asked the said John Fries, whether he wished the court to appoint other counsel for his defence? He refused to have other counsel assigned; in which he acted, as this respondent believes and charges, by the advice of the said William Lewis and Alexander James Dallas: whereupon, the court ordered the trial to be had on the next day, Thursday, the 24th of April, 1800. On that day the trial was proceeded in; and before the jurors were sworn, they were, by the direction of the court, severally asked on oath, whether they were in any way related to the prisoner, and whether they had ever formed or delivered any opinion as to his guilt or innocence, or that he ought to be punished? Three of them answering in the affirmative, were withdrawn from the panel. The said John Fries was then informed by the court, that he had a right to challenge thirty-five of the jury, without showing any cause of challenge against them, and as many more as he could show cause of challenge against. He did accordingly challenge peremptorily thirty-four of the jury, and the trial proceeded. In the evening, the Court adjourned till the next day, Friday, the 25th of April; when after the district attorney had stated the principal facts proved by the witnesses, and had applied the law to those [115] facts, this respondent, with the concurrence of his colleague, the said Richard Peters, delivered to the jury the charge contained and expressed in exhibit marked No. 3, and herewith filed, which he prays may be taken as part of this his answer. Immediately after the petit jury had delivered their verdict, this respondent informed the said Fries, from the bench, that if he, or any person for him, could show any legal ground, or sufficient cause to arrest the judgment, ample time would be allowed him for that purpose. But no cause being shown, sentence of death was passed on the said Fries, on Tuesday, the 2d day of May, 1800, the last day of the term; and he was afterwards pardoned by John Adams, then President of the United States. And this respondent further answering saith, that if the two instances of misconduct, first stated in support of the general charge, contained in the first article of impeachment, were true as alleged, yet the inference drawn from them, viz: “that the said Fries was thereby deprived of the benefit of counsel for his defence,” is not true. He insists that the said Fries was deprived of the benefit of counsel, not by any misconduct of this respondent, but by the conduct and advice of the above-mentioned William Lewis and Alexander James Dallas, who having been, with their own consent, assigned by the court as counsel for the prisoner, withdrew from his defence, and advised him to refuse other counsel when offered to him by the court, under pretence that the law had been prejudged, and their liberty of conducting the defence, according to their own judgment, improperly restricted by this respondent; but in reality because they knew the law and the facts to be against them, and the case to be desperate, and supposed that their withdrawing themselves under this pretence, might excite odium against the court; might give rise to an opinion that the prisoner had not been fairly tried; and in the event of a conviction, which from their knowledge of the law and the facts they knew to be almost certain, might aid the prisoner in an application to the President for a pardon. That such was the real motive of the said prisoner’s counsel, for depriving their client of legal assistance on his trial, this respondent is fully persuaded, and expects to make appear, not only from the circumstances of the case, but from their own frequent and public declarations. As little can this respondent be justly charged with having, by any conduct of his, endeavored to “wrest from the jury their indisputable right to hear argument, and determine upon the question of law as well as the question of fact involved in the verdict which they were required to give.” He denies that he did at any time declare that the aforesaid counsel should not at any time address the jury, or did in any manner hinder them from addressing the jury on the law as well on the facts arising in the case. It was expressly stated in the copy of his opinion delivered as above set forth to William Lewis, that the jury had a right to determine the law as well as the fact; and the said William Lewis and Alexander James [116] Dallas were expressly informed, before they declared their resolution to abandon the defence, that they were at liberty to argue the law to the jury. This respondent believes that the said William Lewis did not read the opinion delivered to him as aforesaid, except a very small part at the beginning of it, and of course, acted upon it without knowing its contents; and that the said Alexander James Dallas read no part of the said opinion until about a year ago, when he saw a very imperfect copy, made in court by a certain W. S. Biddle. And this respondent further answering, saith; that according to the Constitution of the United States, civil officers thereof, and no other persons, are subject to impeachment; and they only for treason, bribery, corruption, or other high crime or misdemeanor, consisting in some act done or omitted, in violation of some law forbidding or commanding it; on conviction of which act, they must be removed from office; and may, after conviction, be indicted and punished therefor, according to law. Hence, it clearly results, that no civil officer of the United States can be impeached, except for some offence for which he may be indicted at law: and that no evidence can be received on an impeachment, except such as on an indictment at law, for the same offence, would be admissible. That a judge cannot be indicted or punished according to law, for any act whatever, done by him in his judicial capacity, and in a matter of which he has jurisdiction, through error of judgment merely, without corrupt motives, however manifest his error may be, is a principle resting on the plainest maxims of reason and justice, supported by the highest legal authority, and sanctioned by the universal sense of mankind. He hath already endeavored to show, and he hopes with success, that all the opinions delivered by him in the course of the trials now under consideration were correct in themselves, and in the time and manner of expressing them; and that even admitting them to have been incorrect, there was such strong reason in their favor, as to remove from his conduct every suspicion of improper motives. If these opinions were incorrect, his mistake in adopting them, or in the time or manner of expressing them, cannot be imputed to him as an offence of any kind, much less as a high crime and misdemeanor, for which he ought to be removed from office; unless it can be shown by clear and legal evidence, that he acted from corrupt motives. Should it be considered that some impropriety is attached to his conduct, in the time and mode of expressing any of these opinions; still he apprehends, that a very wide difference exists between such impropriety, the casual effect of human infirmity, and a high crime and misde meanor for which he may be impeached, and must, on conviction, be removed from office. Finally, this respondent having thus laid before this honorable Court a true state of his case, so far as respects the first article of impeachment, declares, upon the strictest review of his conduct during the whole trial of John Fries for treason, that he was not on that occasion unmindful of [117] the solemn duties of his office as judge; that he faithfully and impartially, and according to the best of his ability and understanding, discharged those duties towards the said John Fries; and that he did not in any manner, during the said trial, conduct himself arbitrarily, unjustly, or oppressively, as he is accused by the honorable the House of Representatives. And the said Samuel Chase, for the plea to the said first article of impeachment, saith, that he is not guilty of any high crime or misdemeanor, as in and by the said first article is alleged; and this he prays may be inquired of by this honorable Court, in such manner as law and justice shall seem to them to require. nolu chan  posted on  2015-03-19   19:21:40 ET  Reply   Trace   Private Reply   #158. To: A K A Stone (#145) our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." A more complete quote, taken from Sparf and Hansen v. United States, 156 U.S. 51 (1895), from which I quoted previously at my #132: In Georgia v. Brailsford, 3 Dall. 1, 3 U. S. 4, a case in this Court tried by a special jury upon an amicable issue, Chief Justice Jay is reported to have said: "It may not be amiss here, gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take Page 156 U. S. 65 upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court, for as on the one hand it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of the law. But still both objects are lawfully within your power of decision." Bear in mind also, that was a civil case, not a criminal case. Continuing the quote on 156 U. S. 65, Of the correctness of this report, Mr. Justice Curtis in United States v. Morris, 1 Curtis 23, 58, expressed much doubt, for the reason that the Chief Justice is reported as saying that, in civil cases -- and that was a civil case -- the jury had the right to decide the law, and because also the different parts of the charge conflict with each other, the Chief Justice, according to the report, saying at the outset that it is the province of the jury to decide questions of fact, and of the court to decide questions of law, and in the succeeding sentence informing the jury that they had the right to take upon themselves the determination of both law and fact. If the Chief Justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact. "The whole case," Mr. Justice Curtis said, "was an anomaly. It purports to be a trial by jury in the Supreme Court of the United States of certain issues out of chancery, and the Chief Justice begins by telling the jury that the facts are all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be correctly reported, I can only say it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the Supreme Court for many years." We recognize, as appellants urge, 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. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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. US v Mary Moylan et al, 417 F2d 1002 (4th Cir 1969) The jury has the power to do as it damn well pleases. It may acquit for any reason and it need not explain anything. It has the power to find a conviction to be unjust, even though indicated by the facts and the law, and simply decline to convict and issue an acquittal. Nevertheless, Brailsford is very thoroughly deprecated and is not citable as precedent. Indeed, Justice Harlan opined that it may have been incorrectly reported. Brailsford is from 1794, it is the first case with a state as a party, and there was no verbatim taking of shorthand in those days. http://law.justia.com/cases/federal/appellate-courts/F2/417/1002/190492/ US v Mary Moylan et al, 417 F2d 1002 (4th Cir 1969) II Appellants' second contention is that the trial judge should have informed the jury, as requested, that it had the power to acquit even if appellants were clearly guilty of the charged offenses. They maintain that the judge should have told the jury this or permitted their counsel to argue it to the jury in the face of the judge's instruction on the law. Appellants reason that since the jury has "the power to bring in a verdict in the teeth of both law and facts,"[5] then the jury should be told that it has this power. Furthermore, the argument runs, the jury's power to acquit where the law may dictate otherwise is a fundamental necessity of a democratic system. Only in this way, it is said, can a man's actions be judged fairly by society speaking through the jury, or a law which is considered too harsh be mitigated. Historically, a fierce controversy has raged over the question of whether the trial judge was under a duty to instruct the jury that it may disregard the law as he has explained it.[6] The earliest reported case adhering to the distinction between law and fact in regard to the respective roles of judge and jury in criminal cases seems to be Plowden's report of Townsend's case where the reporter comments, "For the office of 12 men is no other than to inquire of Matters of Fact and not to adjudge what the Law is, for that is the office of the Court and not of the Jury * * *."[7] While Littleton had earlier recognized the power of the jury to "determine the crime or issue by their verdict"[8] upon the basis of both law and fact, it is Lord Coke's famous pronouncement which firmly established the law/fact dichotomy in English Jurisprudence: The most usual triall of matters of fact is by 12 such men; for ad quaestionem facti non respondent judices; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores.[9] In the early history of the American Colonies and for a time after the Revolution juries were nearly always recognized as having the power to judge both law and fact.[10] This is exemplified in the early Supreme Court case of Georgia v. Brailsford, 3 Dall. 1, 4, 1 L. Ed. 483, in which Chief Justice Jay declared: * * * for as, on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still, both objects are lawfully within your power of decision. In criminal cases juries remained the judges of both law and fact for approximately fifty years after the Revolution. However, the judges in America, just as in England after the Revolution of 1688, gradually asserted themselves increasingly through their instructions on the law. We recognize, as appellants urge, 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. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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. Concededly, this power of the jury is not always contrary to the interests of justice. For example, freedom of the press was immeasurably strengthened by the jury's acquittal of John Peter Zenger of seditious libel, a violation of which, under the law as it then existed and the facts, he was clearly guilty. In that case Andrew Hamilton was allowed to urge the jury, in the face of the judge's charge, "to see with their own eyes, to hear with their own ears, and to make use of their consciences and understanding in judging of the lives, liberties, or estates of their fellow subjects."[11] No less an authority than Dean Pound has expressed the opinion that "Jury lawlessness is the great corrective of law in its actual administration."[12] However, this is not to say that the jury should be encouraged in their "lawlessness," and by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed. The Supreme Court, in the landmark case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), affirmed the right and duty of the judge to instruct on the law, and since that case the issue has been settled for three-quarters of a century. Justice Harlan's scholarly opinion traced the history of the rights of juries in criminal cases. He distinguished Brailsford as a civil case and therefore not controlling in criminal trials. Justice Harlan further deprecated that decision, going to the extreme of questioning whether it was in fact reported properly, since he doubted that Chief Justice Jay could ever have held such an opinion even in a civil case. The Justice concluded finally that Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. * * * But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. * * * We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.[13] There was a powerful dissent by Justice Grey joined by Justice Shiras. As in the majority decision, Justice Grey historically traced the authorities and the classic arguments to support his conclusion that the jury should decide both the law and the facts.[14] The Harlan majority opinion, however, has carried the day. Since the Sparf case, the lower federal courts — even in the occasional cases in which they may have ventured to question its wisdom[15] — have adhered to the doctrine it affirmed.[16] Furthermore, among the states, only two still allow the jury to be told that they can disregard the law as given them by the court.[17] __________ [5] Horning v. District of Columbia, 254 U.S. 135, 138, 41 S. Ct. 53, 54, 65 L. Ed. 185 (1920) [6] The classic debate is found in the several opinions of the Justices in Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895)See also, e. g., Skidmore v. Baltimore & Ohio RR Co., 167 F.2d 54 (2d Cir. 1948); Morris v. United States, 156 F.2d 525 (9th Cir. 1946); Farley, Instructions to Juries — Their Role in the Judicial Process, 42 Yale L.J. 194 (1932); Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582 (1939); Thayer, The Jury and Its Development, 5 Harv. L. Rev. 249 (1892). [7] 1 Plowden 110a, 114a (K.B. 1554) cited in Farley,supra n. 6 at 198. Also see, e. g., Hobard 53 (K.B. 1615); Dyer 362a 15 (K.B. 1557); Hard. 16 (Ex. 1655); 2 Bulst. 314 (K.B. 1614). For cases cited to support juries as the judge of both law and fact see, e. g., Rex v. Dean of St. Asaph's, Conscience and Anarchy: The Prosecution of War Resistors, The Yale Rev., Vol. LVII (1968) at 484. [8] Littleton, Co. Litt. 368 [9] 1 Coke on Littleton (1st Am fr. 19th London ed. 1853) 155b cited in Sunderland, Verdicts, General and Special, 29 Yale L.J. 253 (1920) [10] Appendix II of Quincy Reports (Mass. 1761) 559 [11] Alexander, James, A Brief Narrative of the Case and Trial of John Peter Zenger (Harv.U.Pres 1963) ed. by Stanley Nider Katz at 93 [12] Pound, Law in Books and Law in Action, 44 Am.L.Rev. 12, 18 (1910)Also see, e. g., Sparf and Hansen v. United States, supra 156 U.S. n. 6 at 110, 15 S. Ct. 273 (Gray and Shiras, JJ., dissenting); United States v. Sisson, infra n. 15; Howe, supra n. 6. [13] Sparf and Hansen v. United States, supra n. 6 at 101-102, 15 S. Ct. at 293. [14] Id. at 110, 15 S. Ct. 273 [15] United States ex rel. McCann v. Adams, 126 F.2d 774, 775-776 (2nd Cir. 1942); United States v. Sisson, 294 F. Supp. 520, 524-525 (D. Mass. 1968) [16] See, e. g., Berra v. United States, 351 U.S. 131, 134, 76 S. Ct. 685, 100 L. Ed. 1013 (1956); Horning v. District of Columbia, supra n. 5, 254 U.S. at 138, 41 S. Ct. 53; Hepner v. United States, 213 U.S. 103, 29 S. Ct. 474, 53 L. Ed. 720 (1909); Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S. Ct. 580, 43 L. Ed. 873 (1898); Driscoll v. United States, 356 F.2d 324 (1st Cir. 1966); Skidmore v. Baltimore & O. R. Co., supra n. 6; Morris v. United States, supra n. 6, 156 F.2d at 525; Ex parte United States, 101 F.2d 870, 131 A.L.R. 176 (7th Cir. 1939). [17] Maryland and Indiana See, e. g., Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742 (4th Cir. 1967), where it was stated that "Indiana has substantially attenuated its provision by judicial modification, holding as early as 1889 that a trial court in a criminal case `is not required to neutralize the effect of its instructions by telling the jury that they are at liberty to disregard them, and to decide the law themselves.'" citing from Bridgewater v. State, 153 Ind. 560, 566, 55 N.E. 737, 739 (1889). nolu chan  posted on  2015-03-19   19:25:39 ET  Reply   Trace   Private Reply   #159. To: Pinguinite (#152) Also, jury nullification need not be a case of them deciding a law is unconstitutional, though they may of course nullify for that reason. It may simply be because they don't believe the law in question, even if constitutional, is reasonable or beneficial in any way, shape or form. The jury has the power to do as it pleases, for any reason or for no reason at all, and they can never need explain why they did whatever they did. They can determine that the defendant, by the law and the facts, committed the crime but a verdict of guilty would result in an injustice, and they can just decide to acquit. nolu chan  posted on  2015-03-19   19:31:37 ET  Reply   Trace   Private Reply   #160. To: nolu chan (#154) --- juries are informed of the nature and cause of the accusations. They are informed of the applicable law by the Court. No, they are half informed of only the govts viewpoint. -- The courts do NOT inform the jurors of the loyal oppositions view on the constitutionality of the law at issue. The jury does receive the government's view. The judiciary is the branch of the government empowered to interpret the law and provide the law to the jury. Yep, that supposed 'empowerment' is the issue here, as there is NO basis for denying info to a jury in the Constitution. The constitutionality of a law is argued to the Court which can make a decision on the question. And if you think the Court is wrong, you may object and take your legal argument to a higher court. Sure, there is always an appeal process, but in the meantime, a possibly innocent person is serving time because their right to a fair trial was denied. You are entitled to your opinion, even if it is contrary to about two centuries of precedent to the contrary. Just above, the 'precedent' was quoted as per 1895, from a proggresive era court. -- Why do you defend it? Why are you against a fully informed jury? You may not argue such opinion to the jury. That opinion (yours), is not supported by the words of the 6th Amendment. tpaine  posted on  2015-03-19   20:21:49 ET  Reply   Trace   Private Reply   #161. To: All (#160) A man in the Old West was being tried for stealing a horse. You need to remember that stealing a horse in the Old West was a very grave and serious offense. A person could be hanged if found guilty of such a deed. It so happened that a man whose horse had been stolen had always made it a point to get the best of any person with whom he had any dealings. He had never tried to do anything good for anyone other than himself. Consequently, the man whose horse had been stolen didn't have a single friend in the entire town. The case was tried and presented to the jury. The evidence against the accused man was pretty strong. After about thirty minutes of deliberation, the jury returned to the court chambers. "Gentlemen of the jury, have you reached a verdict?" the judge asked. The chairman of the jury stood up. "Yes we have, your honor," he replied. "What is your verdict?" inquired the judge. There were a few moments of silence and then the chairman spoke. "We find the defendant not guilty if he will return the horse." After the judge had silenced the laughter in the courtroom, he admonished the jury. "I cannot accept that verdict. You will have to retire until you reach another verdict," said the judge. The jury went back into their room to deliberate toward another verdict. No member of the jury had any particular liking for the man whose horse had been stolen. At one time or another, he had gotten the best of each of them. About an hour passed before the jury could reach another verdict. They re-entered the courtroom. They took their place in the jury box and the courtroom grew silent. "Gentlemen of the jury," began the judge, "have you reached a verdict?" The chairman of the jury stood up. "Yes we have, your honor," he replied. "What is your verdict?" asked the judge. The courtroom was totally silent. You could have heard a pin drop. Everyone eagerly awaited the verdict. The chairman read the decision reached by the twelve good men, tried and true. "We find the defendant not guilty, and he can keep the horse!". Pinguinite  posted on  2015-03-20   1:29:48 ET  Reply   Trace   Private Reply   #162. To: nolu chan (#155) On a jury we are not supposed to determine what the applicable law is, nor whether it is constitutional. A jury can judge the law unjust when rendering its verdict. A jury is sometimes presented with multiple charges and can choose which one to convict the accused of breaking. First-degree vs second-degree murder, second-degree vs. manslaughter, various flavors of manslaughter. I always thought this was a cheat, giving the prosecution multiple chances at a defendant. Tooconservative  posted on  2015-03-20   4:09:07 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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