THE VIPER JURY

Special to the Libertarian Enterprise
(Issue 31, July 1, 1997)

"I'm sorry, yer honor. We tried, but we caint all agree on th' verdict. Eight o' us figure he broke the law, an' that's that -- but the other four keep votin' to acquit."

"I see. Well, are you satisfied that each juror is voting his conscience and fully intending to do the right thing?"

"Yeah ... I mean, yes, yer honor. Them what's holdin' out says the law is just plain wrong -- that a man caint be proppity, so's ya caint make nobody turn in them runaway slaves. I dunno...."

"Very well, Mr. Foreman. You've done your duty. Tell the jury we'll reconvene in a half hour and release the defendant."

Scenes like this preceded some of the most important legal reforms in American history. The power of a juror to judge the law as well as the facts of a case went effectively unchallenged, far into our second century as a nation. That doctrine, commonly called "jury nullification" today, was explicitly acknowledged by jurists, beginning prominently with the first Chief Justice of the Supreme Court, John Jay. It was treasured by political theorists as our best guarantee that the American people would never come to be governed by a body of bad law.

Things have changed.

"I'm sorry, your honor. We've tried, but we just can't agree on a verdict."

"Mr. Foreman, you were all instructed to reach a unanimous verdict -- guilty or not guilty. Now go back and tell your fellow jurors to find one way or the other. I don't care how long it takes."

"Um ... your honor, I really don't believe there's going to be any movement here. A third of the jury seems determined to acquit, out of a sincere belief that the law is wrong -- some say unconstitutional."

"Well, let me explain to you why they are about to change their minds. You each swore an oath to judge the facts of the case, and to follow the law as I gave it to you. There are serious penalties for violating that oath. Now, since I didn't even mention the Constitution, let alone declare the law under which the defendant is charged to be unconstitutional, there will be no more talk of unconstitutionality. You must accept the law as I have explained it without question, and base your verdict on that. Any juror who obstructs justice by allowing some amateur prejudice about the law to interfere with his or her duty in this matter will answer to me. Is that clear?"

Something like this, in general terms, is what happened on June 23, 1997, in the trial of Chuck Knight, a member of the so-called "Viper Militia." I don't know whether the issue of constitutionality was ever raised by the jury, though the defense was specifically denied the opportunity to raise such arguments in court, and the judge admonished the jury to disregard any literature "purporting to be about juries" (pamphlets by the Fully Informed Jury Association) that may have come into their possession.

I don't know whether the judge ever threatened the jury as illustrated above, though their speedy verdict upon reconvening would be consistent with that scenario. We do know that a Colorado juror, Laura Kriho, was recently prosecuted and convicted for exactly the sort of "obstruction of justice" mentioned here.

When the jurors in the Knight case emerged from the courthouse to face a gaggle of reporters and cameramen, some were crying.

"We just didn't want to do it," Chuck Waun explained in a quavery voice. "We fought it. We don't like the broadness, the scope of the law."

"It was very hard," said Bill Rogers. "Chuck seemed like a good man. It was hard."

The jurors had been torn. "Well, because you didn't want to find the guy guilty," Waun continued. "But, when you do your duty under the law ... he broke the law."

John O'Keefe's synopsis bespeaks both the conflict and the confusion pervading the situation: "They all felt that maybe he wasn't guilty, but the law states he's guilty."

Guilty, yet not guilty?

The jury apparently didn't think Chuck Knight deserved their condemnation, or even harsh words. But he might get five years come September 8. Why? Because they felt they had no choice but to uphold a law they felt was wrong. How sad.

We have now witnessed a new procedure for American citizens to defend their constitutional rights when charged under an unconstitutional law:

First, you go to prison.

That's right. If the judge doesn't subscribe to the plain English interpretation of the Bill of Rights that your defense relies upon, he will rule all constitutional arguments out of order -- and probably threaten the defense attorney with contempt penalties for even hinting that they exist.

The jury hears testimony to the effect that you engaged in behaviors that are proscribed by the legislation in question. The judge instructs them to find you guilty under the law if they agree you committed the acts alleged. He also disabuses them of any notion they have about voting their consciences with respect to the law.

Unless some juror undertakes a personal risk by going against the judge's instructions -- a risk even if he or she wisely refuses to explain the holdout, insisting only, "I'm incontrovertibly convinced that the accused is innocent. That's all I have to say." -- you're off to prison.

Ah, but your rights haven't been violated -- just inconvenienced. You'll get your chance to appeal ... if you can afford it, and if you survive imprisonment during the appeal process.

Is this a great country, or what?

You might wonder what theory of jurisprudence is operating here. After much thought, I think I can help.

It all comes down to professionalism. Surely the best way to administer justice is to make sure that all the decisions are made by qualified legal professionals. It just wouldn't do to have ordinary laymen -- on juries, for example -- deciding questions of constitutionality, even for single cases.

And let's face it: the Founders were a bunch of amateurs. Many of them were self-educated, without a degree to their names. They couldn't have appreciated the needs of Modern America, for which the literal wording of the Constitution is simply inadequate. Worst of all, the mechanism they provided for change (constitutional amendment) is so unwieldy. Much better for highly tr