Aggressively Defending My Clients Since 1990


On Behalf of | Jan 15, 2018 | Firm News

I thought a well-respected trial judge in Milwaukee County was going to burn me at the stake as a heretic.  In the best judge-like tone possible, the judge asked me if I of course would agree that a criminal jury trial was about finding the truth.

I answered by saying, “No I would not agree that was the purpose of a trial.”

Seeing that I was about to have a lightning bolt strike me, I asked if I could explain my answer.  The trial court graciously said, “Please do….”

I went on to explain the unique position the American jury has in the scheme of government.  Unlike the English the Star Chamber which spread terrorism by summoning juries before it for verdicts disagreeable to the government and imprisoned them, American courts have generally has no right to question a jury’s verdict.  As the U.S. Supreme Court described it, “the Star Chamber has, for centuries, symbolized disregard of basic individual rights.”  Faretta v. California, 422 U.S. 806, 821–22 (1975).  The Star Chamber never used a jury and were often used to prosecute cases like prosecute forgery, fraud, perjury, riot, slander, and what we now call disorderly conduct.  Intended to be a streamlined alternative to the common-law courts, it “became a byword for unfair judicial proceedings.”  THE COLUMBIA ENCYCLOPEDIA 2704 (Paul Lagasse ed., 6th ed. 2000)

The abuses of the Star Chamber were well known to our Founding Fathers.  The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution.  Pennsylvania v. Muniz, 496 U.S. 582, 595–98 (1990).  As Thomas Jefferson famously said, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” –Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.  John Adams colorfully said, “”Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”(1774).  For this reason, William Blackstone observed that trial jury is the “palladium of our civil rights.”  The diminution of the importance begins silently, by undercutting the right of a jury from its historical underpinnings.  “Illegitimate and unconstitutional practices get their footing … by silent approaches and slight deviations from legal modes of procedure … It is [our] duty … to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon …”  Boyd v. United States, 116 U.S. 616, 635 (1886).  The right to a jury trial is so important that right to a jury trial in criminal cases is within the 14th Amendment and so is applicable to the states.

So, I would respectfully submit that the principle of trial by jury is not to search for the truth as was done in the Star Chamber.  The Declaration of Independence objected to the King making “Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries” and to his “depriving us in many cases, of the benefits of Trial by Jury.”  This means that guarantees of jury trial reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government and prevent arbitrary use of power by the government.  Duncan v. Louisiana, 391 U.S. 145, 154-55 (1968).  As James Madison said on June 8, 1789 the jury’s veto power protects minorities from “the body of the people, operating by the majority against the minority.”

Legislatures will always confirm the constitutionality of their own acts. And the oaths sworn to uphold the Constitution by judges and public servants have historically been only as good as the power to enforce such oaths.    The power to enforce the oaths of public officials is done by a jury.  “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge … [a jury trial] is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants.”  Id. at 156-58.