Recently, Daily Post editor Bill Hudson wrote about the legalization of marijuana by the voters in several states in the recent election. He noted marijuana is still illegal under federal law.
Shortly after recreational marijuana became legal in Colorado, I watched a news broadcast in which the United States Attorney for the District of Colorado was asked if he still intended to prosecute marijuana offenses, since weed was still illegal under federal law. He was quoted as saying he didn’t see any point in it, since he doubted he could “ever get a jury to convict.” That was an astute recognition of a little known aspect of the law, which may become more relevant than ever.
Federal crimes are prosecuted in United States District Courts (DC). The nearest DC to Pagosa is in Durango. If you are a registered voter, or have a driver’s license, you could be summoned for federal jury duty in Durango. I’m going to apprise you of the power that jurors have (what the US Attorney was referring to) which you won’t be told about.
There are four parts to this treatise. Part One will provide historical context. Part Two will explain the structure of the criminal justice system, and the citizen’s role in it. Part Three will explain how it works in practice. Finally, Part Four will illustrate why it is now more important than ever.
First, the history.
Before William Penn founded Pennsylvania as a haven of religious freedom for Quakers, he was a religious leader of that sect in England at a time when any religion other than the Anglican Church was not tolerated. Penn was prosecuted for being politically incorrect in 1670.
The following recitation of the trial of William Penn is excerpted from my own column that was published in the Orlando (Florida) Sentinel on March 8, 2002.
“In 1670, William Penn, a leader in the Quaker movement in England [and founder of Pennsylvania] was put on trial for ‘unlawful preaching’. Penn never denied he violated the law, but declared he acted according to his conscience. His guilt wasn’t really disputed; nevertheless, the jury voted to acquit. The Judge told the jury the verdict was unacceptable, and ordered them to deliberate further. They again acquitted Penn.
“When the jurors continued to refuse to convict Penn, the Judge had them locked in the jury room without food, water, or heat, where they were to remain until they voted to convict. The jury refused. The stalemate continued for several days until word of what was occurring became public, whereupon a group of citizens descended upon the court to liberate the jury and preserve the sanctity of the jury system. Penn was acquitted.”
Why was the Judge being such a hard ass? In 17th century England, religion was a contentious subject. The protestant Church of England, founded a century earlier by Henry VIII so he could divorce his wife and marry his side-chick, was the official state religion. Quakers rejected the ceremonies and some of the basic doctrinal tenets of the Church. As a result they were persecuted by the government.
Penn was a leading, and vocal, Quaker. He had been warned a number of times to quite preaching against the Church. When he continued, the government decided to make an example of him. His was a politically motivated prosecution, with a potential life sentence.
Judges at that time were representatives of the monarch, and owed their continued tenure to the good graces of the monarch. They were not an ‘independent judiciary’ as under our federal system. Penn’s judge was just another government officer intent on seeing the will of the government accomplished. Overseeing the trial, and conviction, of Penn was his duty, and from his perspective,the obstinate jurors were not performing their’s.
But they were. The Penn jury, and citizens who rescued them, where exercising their power by re-affirming the fundamental right to a jury trial that was enshrined in Magna Carta.
I recently wrote about the economic rights protected by Magna Carta, but only mentioned in passing its more well-known assurance of a right to trial by jury.
What the securing of economic rights, and the outcome of William Penn’s trial share is the “London mob”, as the English monarchs would refer to the citizens when they stood up for their rights. The Barons required the “mob’s” assistance to coerce King John to sign Magna Carta, and the “mob” overruled the Judge who tried to coerce Penn’s jury to convict him.
Both of those historical episodes were well known to the citizens of England when, in the Glorious Revolution of 1689, King James II was forced to abdicate and flee England one step ahead of the “mob”. James II was the second son of King Charles I, and succeeded to the throne when Charles II, the eldest son, died without an heir.
Charles I had been beheaded in 1649, for denying what even King John had enough sense to grudgingly admit — that citizens have rights which supersede the authority of the monarch. James II apparently learned nothing from his father’s beheading and instead adopted dad’s concept of absolute authority under the doctrine of the “divine right of Kings”.
After James II hauled ass for Europe in 1689 to avoid his dad’s fate, that same year the English enacted their “Bill of Rights” which every subsequent monarch must swear to respect. Among those rights was reaffirmation of the right to trial by jury guaranteed in Magna Carta.
One of the Englishmen recognized as a prime influence on the content of that Bill of Rights was John Locke who, though a practicing physician, is best known as a political philosopher and author. His magnum opus was Two Treatises on Government.
The ‘Second’ treatise is considered by many scholars to be the single most influential writing to our own founding fathers. Thomas Jefferson even plagiarized from it in the Declaration of Independence. The line in the Declaration, “when a long train of abuses and usurpations pursuing invariably the same object” is taken nearly verbatim from the ‘Second’ treatise. Our own Bill of Rights, closely tracks the English one.
So there is no debate that the right to a jury trial enshrined in our Bill of Rights is a direct descendant of the English right. It adopts the principle of a “jury pardon” exercised by William Penn’s jury.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.