Posts tagged ‘history’

Liberty or Laws – Justice or Despotism

Liberty or Laws?

Justice or Despotism?

Gary Hunt
Outpost of Freedom
July 10, 2017

When the colonies severed their allegiance to England, in 1776, through the adoption of the Constitution in 1789, they had to have some form of law upon which to deal with matters, both criminal and civil.  To do so, they adopted the Common Law of England, as it existed on July 4, 1776.  This, then, became the foundation of laws upon which both the federal government and state governments began the process of developing their judicial systems.

What is important to understand is that the laws that they adopted were concerned with Justice.  For example, though Webster’s 1828 dictionary has no definition of “judicial”, an adjective, it does have one for that body that is responsible for that function of government, the Judiciary:

JUDI’CIARY, n.  That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.  An independent judiciary is the firmest bulwark of freedom.

Through our history, there have been legal scholars who stand well above the current lot, in that their concern for justice was paramount in their considerations, and the subject of much of their scholarly writings.

Perhaps the best known of these legal scholars was Sir William Blackstone (1723-1780), and his seminal “Blackstone’s Commentaries.  From Book 1 of those Commentaries, we find some familiar phraseology:

“[A] subordinate right of every Englishman is that of applying to the courts of justice for redress of injuriesSince the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.”

“And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property.”

Of course, personal security is best defined as “life”, as without it, we have nothing.  And, Blackstone used the common term, “property”, as did most of the declarations of independence that predate Jefferson’s more poetic version.

What else did Sir Blackstone tells us about justice that was of extreme importance then, and should be equally so, now.  When he discusses Felony Guilt, he states his understanding and then refers to another scholar, Sir Matthew Hale (1609-1676), from Book 4:

“Presumptive Evidence of Felony.  All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.  Sir Matthew Hale lays down two rules: (1) Never to convict a man for stealing the goods of a person unknown, merely because he will not account how he came by them; unless an actual felony be proved of such goods.  (2) Never to convict any person of murder or manslaughter, till at least the body be found dead.”

This subject can easily be set aside by the government simply stating that “times have changed”, since Blackstone wrote the Commentaries in the 1760s.  However, that discounts the fact that justice cannot change, only the misapplication of justice can change.  That latter is quite simply defined as injustice.

The Constitution provided two means by which the constitutionality of a law could be challenged.  The first, found in Article I, § 9, clause 2:

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Memorial Day 2017

Memorial Day 2017

Gary Hunt
Outpost of Freedom
May 29, 2017 (Memorial Day)

 

Memorial Day began as a day of honoring and remembering those soldiers that died in the Civil War.  It was practiced beginning in the South in 1866 and the North in 1868.  It was a day in which the graves of those soldiers were decorated with flowers, in honor of their sacrifice, and was called Decoration Day.

Recognition as Memorial Day began as early as 1872, though it wasn’t commonly used until after World War II.  In 1967, it was officially changed to Memorial Day by the government.

It now honors all dead American Soldiers, Sailors, Marines, and Airmen, who died in service to their country, including those who fought for the South.

So, what is a holiday; what does it mean?  Well, we can look at the Ten Commandments and get an idea of just what led our Judeo-Christian values to recognize a special day.  The Fourth Commandment says, “Thou shalt keep the Sabbath Day holy.”  That means that the designated day is above all other consideration, on the day so designated.

Whether you hold Saturday or Sunday as the Sabbath is a choice that each of us makes.  However, we commonly recognize the last Monday in May to be Memorial Day, and on that day we recognize of the sacrifice of those soldiers; it is to be held above all other considerations.

There is little doubt that those in power have moved our country away from the Constitution that created that government.  They have moved the government away from the very reason for those who served, and those who gave their lives for what was intended — and what we fought for.

There are two soldiers that I have particular memories of.  First is William “Billy” Prescott.  We went through nearly our entire schooling together.  Bill was quiet and intelligent, and perhaps the least likely to consider to be a soldier.  I found out about Billy’s death, Killed in Action, on my first and only visit to the Wall in Washington, D. C. One-hundred and twenty-six of us, the “Prodigy Vets”, went to see the Wall, most for the first time, in 1992.  Walking down, along the wall, to the apex, then back up the other side, was probably the most emotional event in my life.  The magnitude of waste of those lives was beyond my comprehension.  Considering that the Vietnam War was nothing that we should have been involved in, rather a consequence of our government gone astray from the principles upon which this country was founded.  However, we were naive, and simply did our Country’s bidding.

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Freedom of the Press #9 – “Prior Restraint”

Freedom of the Press #9
“Prior Restraint”

Gary Hunt

Outpost of Freedom
February 22, 2017  – George Washington’s Birthday

In the previous article, though suggested in the government’s Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause, of February 7, 2017, it really didn’t get to the heart of “Prior Restraint”.  So, let’s get to the heart of that matter.

Let’s start with the law that explains the potential severity of publication of certain information, in a case similar to what the government and Judge Anna J. Brown are attempting to construct against me.  Section 793 (e) of the Espionage Act was cited as the authority by which the government attempted to impose “Prior Restraint” on the New York Times for publishing what was known as the “Pentagon Papers”.  The Papers had been leaked to the press by a government employee who had signed a non-disclosure agreement (not just based upon a Protective Order), which precluded that employee from divulging any information protected by Section, 793 (e):

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.
… Shall be fined under this title or imprisoned not more than ten years, or both.

There, in a rather large nutshell, is the extent of the government’s authority to impose upon a party limitations in communicating certain information, and/or retaining and/or not delivering it to the government.  However, as we shall see, even that did not have the effect implied in the wording of the Act.

To understand the legal limitations of government’s authority, we need to look at New York Times Co. v. United States 403 U.S. 713 (1971).  The case taken up by the Supreme Court included a similar action brought against the Washington Post.  The cases were joined and the Supreme Court granted certiorari, in which the United States sought to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.”  Prior to the Supreme Court decision, the District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia, and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden of proof.

The Second Circuit Court of Appeals overruled the District Court in the New York Times case, putting a stay on publication on June 25, 1971.  The Supreme Court then ordered that the stay be vacated.

Now, before we go on, this is not about the source that provided the information to the newspapers.  It is solely about the right of the press to publish what it had obtained, regardless of the source.  With that in mind, we must take the reader back to a statement in the Supplement Memorandum (linked above), which states:

The government is not seeking the testimony of third-party Gary Hunt to identify the source or sources of the protected discovery information. The government intends to investigate that on its own. The government is merely seeking the removal of protected discovery material that this Court has ordered protected. Nothing about Gary Hunt’s blogging[sic] activities is implicated by the Motion to Show Cause. Third-party Gary Hunt is continuing to disseminate protected discovery material in the face of three Court Orders. No privilege is implicated.

This demonstrates the similarity of the parties in New York Times Co. and the current situation.  In neither case is the source of the information sought, though there can be little doubt that in both cases, the government was investigating the source.

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Burns Chronicles No 54 – To Jury, or, Not To Jury

Burns Chronicles No 54
To Jury, or, Not To Jury

Gary Hunt
Outpost of Freedom
January 23, 2017

Though I have posted the Preamble to the Bill of Rights a number of times, people still ask if there really is a Preamble to the Bill of Rights.  A preamble sets forth the purpose of the document, as the Preamble to the Constitution sets forth its purpose.  It is not a part of the document, rather an explanation as to why the document was created.  When Congress approved, and sent the Bill of Rights to the States, as required by Article V of the Constitution, the first paragraph explained why the Joint Resolution was passed.  It states, “declaratory and restrictive clauses should be added” for the purpose of “extending the ground of public confidence in the Government.”  To wit:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

So, now, we must determine if, in fact, it has extended “the ground of public confidence in the Government“, in light of the current situation.  Our query must be directed to the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

We must also look to the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

So, between these two Amendments, we find that every judicial concept in the Constitution, with the exception of the House and Senate’s disciplinary procedures regarding their own members, requires a jury to make the determination of guilt or innocence.

The matter at hand is the additional charges brought against the lower level defendants in the occupation of the Malheur National Wildlife Refuge.  Since the government did not get a conviction of the leaders of said occupation, they have stooped to a new low, perhaps just being poor losers.  They have brought a Misdemeanor Information, for Trespass and other crimes, against the second group of defendants.  These charges were not a part of the Superseding Indictment.

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Liberty or Laws? – Natural Rights versus Civil Rights

Liberty or Laws?
Natural Rights versus Civil Rights

Gary Hunt

Outpost of Freedom
January 22, 2017

We must understand the difference between Natural Rights, those inherent in the people, and Civil Rights, those given to the People.  If we fail to do so, we participate in our own demise.

The concept of rule by those chosen by God, as claimed by the royalty of the past, where the royalty of Europe claimed to be descendants from God, and ruled by virtue of that sovereign nature.  When the United States of America declared their Independence from that concept, to the philosophical concept of the right of man to rule himself evolved, they moved into a Great Experiment.  Though this political philosophy had existed for hundreds of years, our Founders were the first to put this new form of government into practice.

Natural Rights are based on the concept that every man has a right to the fundamental necessities of life; those being Life, Liberty, and Property.  Thomas Jefferson, in writing the Declaration of Independence, chose to be poetic, substituting “pursuit of Happiness” for Property, though the many declarations that preceded the eventual Declaration of Independence were based upon Property, as defined by Locke and other early political philosophers.  Happiness is a consequence of possessing Life, Liberty, and Property.  It is not a tangible right, rather, a derivative, of those Natural Rights.  Jefferson, as Locke, had recognized that the purpose of government was to secure those rights.  It was no longer the rights of the king, From July 4, 1776 on, those rights became, truly, the Rights of the People.

The Constitution began the process of securing those rights, though few are mentioned in that Document.  Let’s look at those so secured:

  • “Authors and Inventors [have] the exclusive Right to their respective Writings and Discoveries.”  {I:8:8}
  • An Accused has the right to the “Trial of all Crimes…  [which] shall be by Jury”.  {III:2:3}
  • Finally, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”  {I:9:2}

Now, some might question whether the third, Habeas Corpus, is a right.  The word “Privilege”, as used in the Constitution, is a right that can, under certain circumstances, by revoked.  Those circumstances are clearly stated, being “Cases of Rebellion or Invasion”, and no other.

Many of the Founders felt that it was insufficient not to protect those Rights, further.  Two states, North Carolina and Massachusetts, did not ratify the Constitution until after the Bill of Rights was submitted to the States for ratification.  Massachusetts would not ratify the Constitution until after the Bill of Rights was ratified.

In fact, the protection of those Natural Rights was so important that it was presented to the States for ratification complete with a Preamble, indicating the reason why the proposed amendments were being presented to the States:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

So, let’s look at the Rights secured by that document intended to “prevent misconstruction or abuse of its powers“:

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Freedom of the Press #4 – The Order

Freedom of the Press #4
The Order

Gary Hunt
Outpost of Freedom
January 12, 2017

I got a call from FBI Special Agent Matthew Catalano, earlier today, January 11, 2017.  He told me that he had an Order to serve.  We made the same arrangements to meet at the restaurant in Los Molinos.  The restaurant only serves breakfast and lunch, so it was closed, but I figured that this wouldn’t take very long.

I arrived at about 4:15 pm, and he said that he had to serve me.  He handed me the Order, I looked at it and said, “I refuse this service, it is for the District of Oregon, and I am not within that jurisdiction.”  I held the paperwork out toward him, but he did not take it, so, I said, “I will keep this, but I want you to tell Judge Anna Brown that I refuse service, as I am not subject to the Oregon District’s jurisdiction.”  He agreed to convey the message, and then he proceeded to read certain portions of the Order to me.  When he was finished, I reminded him that I wanted Brown to receive my message, and he assured me that he would pass it on.  I feel certain that he will.  After all, that is his job.  We shook hands, and we departed.

Though I had already received two copies of the Order from other sources, I hadn’t read it.  The news traveled so rapidly that my phone was in near constant use.  However, between calls, I read portions of the Order.  As I did so, a smile crept across my face.  Now, you may wonder why I would smile after receiving the Order, but my first thought was that Judge Brown had not had an opportunity to read my article, that had gone out just a few hours before.  The Order had been docketed, and I received copies just minutes after posting my article.  Judge Brown had not had the opportunity to read my response to the Memorandum that had refuted most, if not all, of what she was provided by the US Attorney in the form of the Memorandum to prepare the Order.

Quite frankly, when Brown filed the Minute Order (See Freedom of the Press Update – A Grateful Thank You), there were two possibilities.  First, that she really was holding the government’s feet to the fire, seeking real legal justification for issuing an Order.  The other, that she simply wanted the government to give her the paperwork she needed, in the form of a Memorandum, to provide justification to issue such an Order.  I decided to act on the former.  I had said many things about Anna Brown in the past, few of them complimentary, but if she had turned to the right side, she was deserving of the benefit of the doubt.  Her actions, in the past, had been nigh onto dictatorial, and had no foundation in law or justice.

So, let’s look at her Order, and I will comment, as we go.  It is dated January 11, 2017.

This matter comes before the Court on the government’s Motion (#1680) to Enforce Protective Order in which the government seeks to enjoin a third party, Gary Hunt, from further dissemination of discovery materials that are protected by the Court’s Protective Order (#342) issued March 24, 2016.

Through the Affidavits (#1681, #1690) of FBI Special Agent Ronnie Walker, the government asserts Hunt published excerpts from protected discovery materials on his website beginning on November 15, 2016, and continuing through the present. In particular, the government contends the postings on Hunt’s website identify some of the confidential human sources (CHSs) that the government used during the occupation of the Malheur National Wildlife Refuge. This information is not only protected by the Protective Order (#342), but the Court also found in its Order (#1453) issued October 18, 2016, that the government had provided to Defendants all information regarding CHSs that was relevant and helpful to the defense and, in particular, that the government was not obligated to disclose to Defendants the identities of the CHSs. Thus, the information in Hunt’s postings should not be publicly available.

Well, that is cute.  Have I not said, from the beginning, that I was not subject to the Protective Order?  Now, she says that the “information is protected by the Protective Order.”  That means that those subject to the Protective Order have an obligation to protect the information.  She is right in line with my thinking.  But, that will change a little later.

Then, she finds that “the government had provided to Defendants all information regarding CHSs that was relevant and helpful to the defense.”  That information was relayed to the defense on October 18, about ten days before the jury returned the not guilty verdict.  She also stated, “that the government was not obligated to disclose to Defendants the identities of the CHSs.”

So, let’s get real.  The government gave out redacted copies of the 1023 forms.  The defense could not call any witnesses who had been informants.  Obviously the information the government, and Judge Anna Brown, were willing to allow the defense to have was totally insufficient for them to prepare their defenses, especially with regard to possible exculpatory testimony those informants might have provided.  The Judge, well let’s just go with Brown, from this point on, disregarded the fact that two of the government’s informants testified.  Terri Linnell came forward voluntarily, against the wishes of the Prosecution, and testified for the defense. A diligent effort by the defense teams in tracking down Fabio Monoggio, another informant, whose testimony also was beneficial to the defense.  Both gave testimony, which may well have turned the tide on the jury’s verdict.  This testimony would have been denied the defense under the enforcement of the Protective Order and the subsequent statement on October 18.

This is absolutely contrary to the right protected by the Sixth Amendment to the Constitution, which says that the accused has the right, “to be confronted by the witnesses against him“.  Now, some have claimed that informants, unless they testify, are not witness.  However, that is not what the Protective Order (March 24, 2016) says.  That Protective Order clearly states what the prohibitions are, to wit:

IT IS FURTHER ORDERED that this Protective Order applies only to:

(1) Statements by witnesses and defendants to government officials;

(2) Sealed documents; and

(3) Evidence received from searches of electronic media.

Now, there are only two human objects in the Protective Order.  It applies to “witnesses” and “defendants”.  Well, I am not exposing defendants, so if the informants are not witnesses, then I am not in violation of the Protective Order.  Ergo, the informants are witnesses, so saith Brown.

Therefore, Brown has denied the constitutionally protected right of the defendants to confront those witnesses.

The record reflects FBI Special Agent Matthew Catalano met Hunt, who resides in Los Molinos, California, on January 5, 2017, and personally served him with a cease-and-desist letter from the government that demanded Hunt remove all discovery materials from his website. Special Agent Catalano also provided Hunt with a copy of this Court’s Protective Order (#342). According to SA Walker, Hunt stated he did not intend to comply with the cease- and-desist letter and did not believe that the Protective Order applied to him. It appears Hunt has not removed the protected discovery materials from his website.

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A Thought on Leadership

A Thought on Leadership

Gary Hunt
Outpost of Freedom
December 27, 2016

Preface

This article was written back in the nineties. The subject came to light as I watched many fledgling organizations fall apart as a result of conflicts between an aggressive leader, usually charismatic, and generally a type “A” personality. It is not to suggest that such a person cannot be a good leader, though those features should be subordinate to a more rational approach to the decision of who will best serve in that capacity. Following are my thoughts on the subject of leadership.

————————–

One of the most important tools utilized by those who have sought to take our freedoms and our country from us is the control of public education. By these means they have been able to remove aspects of our history which would have enabled us to both perceive and deal with the problems of today, long before now.

We have a group of leaders in the Patriot Community, many who have proclaimed their position by methods of public relations which are founded on promulgation of sensationalism. Perhaps their positions are merited, yet if we look at history; we will find that these are not the means by which leaders were selected two hundred years ago.

Jefferson, Adams, Washington, Henry and the rest of those who gave us the nation we seek to restore were well established in their respective communities, and recognized by their efforts to be men of sincerity. Their efforts extended, in most cases, over many years of guidance to their neighbors. The respect that was earned by these efforts, and their willingness to represent the will of the people propelled them into the delegations which formulated the course that the colonies would pursue.

Would it be possible for the government to anticipate the desire of the Patriot Community to return to Constitutional government and infiltrate agents into the community to say what patriots want to hear? Would they then attempt to acquire a position of leadership? By what we know, the One World Government people have achieved this very goal in our Congress, Courts and even in the Presidency. Are we foolish enough to allow the same to happen to us?

The War of 1812 was declared by the Americans. The President sent to the Congress a Declaration of War which gave six reasons for which he requested the Congress to agree that a state of war existed. The Declaration was approved by the House on June 4, 1812 and the Senate on June 18. Of the six causes for war, probably the most significant is the fifth, which reads:

“Fifthly. Employing secret agents within the United States, with a view to subvert our government, and dismember our union. “

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Liberty or Laws – Who Are the Enemy? – The Government?

Liberty or Laws?

Who Are the Enemy?

The Government?

wrinkled-declaration

Gary Hunt
Outpost of Freedom
November 8, 2016

But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.

Declaration of Independence – July 4, 1776

 

This revised version of Sons of Liberty #14, first published on August 22, 1995, is focused on two of the forms of dissolution of government that John Locke wrote of in his Second Treatise of Government, Chapter 19. Those forms, the second and third, are the ones that are quite demonstrable in the current presidential election, and are the most subversive form of dissolution.

Governments can be dissolved by a number of means. What used to be the most common was forceful encroachment by a conquering army. The effect was dissolution of the government and subsequent dissolution of the society, for every nation is composed of both government and society. Generally, under these circumstances, society was disrupted and scattered to the winds. This form of dissolution has not existed for quite some time.

Another is when an enemy dissolves government, and replaces that government with a government of their own choosing. The result, in this instance, is dissolution of government by non-violent means, and subsequent dissolution of the society, which is replaced, through a slow transitional process, by a society unlike the one that was the source of the original government.

We must not assume, in this circumstance, that the dissolution of government will, necessarily, take a forceful effort. The likelihood, in modern times, is that the dissolution of government, and subsequent dissolution of society will go unnoticed until history is revised and the transition is lost from existence, without a notice of its demise. Unless, of course, the efforts to dissolve the government and society is recognized in sufficient time to cast out the encroachers and restore both the society and the government.

If the form of government within a nation has any form of representative capacity, the means by which dissolution may occur will take one of three forms. First, the executive may begin to arbitrarily impose his will on the elected representatives and the people. Slowly the rule of law deviates from its original intent, and the dissolution process slowly occurs.

Second, by delivery of the people to the influence of a foreign power. Eventually, the legislative body finds themselves subjected to a set of rules not of their making, but to which they must adhere. Again, results in the demise of the government, as was originally intended, and the society as it becomes subject to that foreign power.

Third, when the trust bestowed upon the Legislature is betrayed, by whatever means, these same results of dissolution will occur. That trust, generally in the form of a constitution, forms a set of rules by which the government is empowered with the belief that it will abide by such contract. Faith is necessary because there is a need to pass power to government so that it can conduct its business. When that power is directed in violation of the trust, ultimately it will be used to dissolve the society. The question here is, is the government dissolved as well?

Governments, by the nature of its legislative authority, are created by, and subject to, the will of the people. They are creatures of the will of the people, and their purpose for existence is only to administer the rights of the people, to the extent delegated, for the preservation of property and the protection of the rights of the people.

There is no other purpose for government whose authority is of the people,
than the preservation and protection of the People’s rights and property.

. Continue reading ‘Liberty or Laws – Who Are the Enemy? – The Government?’ »

Burns Chronicles No 35 – From the Law Giver: “the law as I give it to you!”

Burns Chronicles No 35
From the Law Giver: “the law as I give it to you!”

jury-05

Gary Hunt
Outpost of Freedom
October 25, 2016

Having obtained a copy of the Jury Instructions, as given to the jury in the U. S. v. Ammon Bundy, et al, by Judge Anna Brown.  I had sought them, as I was curious as to whether the instructions, at least, conform to the laws.  In Camp Lone Star #31 – The Case of Kevin KC Massey – Challenging the Interpretation vs. the Wording of a Statute, an example of what is referred to as “Pattern Jury Instructions”, and how the wording of the instructions is contrary to the wording of the Statute.  So, let’s delve into Anna Brown’s mental state and cognitive abilities in advising the jury on the “letter of the law”.  (A PDF format of the Jury Instructions.  References will be to {page} number.)

What is the Law?

Regarding the obligation of the jury, with regard to their deliberations, on {4}, she says:

“Upon your return to the jury room, it is your duty to weigh and to evaluate all of the evidence calmly and dispassionately and, in that process, to decide what the facts are.  To the facts as you find them, you must apply the law as I give it to you, whether you agree with the law or not, which is just as you promised to do in the Oath that you took at the beginning of the case.”

John Peter Zenger was tried in a New York court, in 1735.  He had violated the written law on sedition by an article he had printed.  Though in violation of the working of the law, the jury acquitted him, and in so doing, vacated the law.

Later, when the Constitution was written, the jury’s action in that trial provided an understanding that the People were the final arbiters of the laws enacted by Congress, as the colonists did with regard to Crown written laws.

Now, I do not intend to discuss FIJA (Fully Informed Jury Association), though I would suggest that you would find them a source for what was intended to be the role of a jury in our justice system.  I am going to provide an historical context as to what “jury” meant in the age of the Founders, and what one State did to assure that the original intent would be adhered to.

Maryland ratified their Constitution on November 11, 1776.  From that Documents Declaration of Rights, we find:

III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances

XVII. That every freeman, for any injury done him in his person or property, ought to have remedy, by the course of the law of the land, and ought to have justice and right freely without sale, fully without any denial, and speedily without delay, according to the law of the land.

XIX. That, in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the indictment or charge in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses, for and against him, on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

Now, those are the only references to juries, and I will suggest that it was understood by everyone, in all of the colonies, that the jury could judge both facts and law.  To support this, we also find that the People are the ultimate authority under that Constitution.

I. That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.

II. That the people of this State ought to have the sole and exclusive right of regulating the internal government and police thereof.

But, I wouldn’t want you to take my word for it, so let’s look at their 1867 Constitution.  This was ratified after the chaos and turmoil created by the Civil War.  Apparently, concerns over the acceptance of the past understanding of both the jury process and the authority of the People, we find these changes in the new Constitution, ratified on September 18, 1867.  Again, from the Declaration of Rights:

Article 1.  That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government in such manner as they may deem expedient.

So, they have the right (not the Legislature) to alter or reform.  However, it does not say how that would be accomplished.

So, since the power resides with the People, they have provided, and reinstituted, a means by which those laws enacted by the legislature can be judged by the people.

Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

For a final affirmation of what was intended, and readily understood, back in 1852, we have an “Essay on Trial by Jury“, by Lysander Spooner.  We find Spooner’s explanation of the right to judge the laws in Chapter I, Section I (page 4 of the PDF.):

“FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”

He goes into a greater explanation, though I believe that this is sufficient for our purposes.  Unfortunately, today, the Rules being used by the Court allow the Judge to deny that which is in the Constitution, by the intent of the Founders, and clearly what was understood to be the right of the jury, without question.

However, as we see by the instructions, the Rules and the words of Judge Anna Brown obviously circumvent the intent of the Constitution.  And, isn’t that what this trial is about?

Later, on {4}, she says:

“Because you must base your verdicts only on the evidence and on the Court’s instructions, it remains essential that you not be exposed to any information about the case or to the issues it involves beyond what has been received here in open court in your presence and the presence of the parties.”

She reaffirms that her “instructions” must be obeyed, and, by the way, don’t think very hard.  I’ll do that for you”.

Government’s Use of Informants

. Continue reading ‘Burns Chronicles No 35 – From the Law Giver: “the law as I give it to you!”’ »

Burns Chronicles No 34 – “shall enjoy the right… to have compulsory process for obtaining witnesses in his favor”

Burns Chronicles No 34
“shall enjoy the right… to have
compulsory process for obtaining witnesses in his favor

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Gary Hunt
Outpost of Freedom
October 17, 2016

As I watch these events unfold, I often compare them to the Constitution, as it is written — so that any man could understand it. But, when I try to fit the puzzle pieces into that image of what our Founding Fathers envisioned for us, they just don’t seem to fit.

The had decades of experience of the British government, whether Parliament or the Ministers, slowly encroaching upon their historical rights. So, when it came time to leave the Articles of Confederation behind, and to form a new limited government under the Constitution, they reflected on those encroachments, and both within the Constitution and the Bill of Rights, provided such limitations as they saw fit. Their purpose was to exclude any governmental authority that could subordinate those rights.

In this instance, the amendment that we should concern ourselves with is the Sixth. It reads:

In all criminal prosecutions, the accused [not defendant] shall enjoy the right… to have compulsory process for obtaining witnesses in his favor.

Putting that aside for a moment, we need to consider a couple of phrases that are probably well recognized, with regard to legal proceedings. First is “preponderance of evidence“, which is most often associated with civil actions, where there is not a crime, rather, a determination of which side is most likely to be correct in their claims.

Next is “beyond a reasonable doubt“. Now, this is only applicable to criminal cases and requires that the jury is unanimous in their determination of the guilt of the accused party. However, this doesn’t mean that when a criminal trial has “facts” that are in question, that the preponderance method shouldn’t be applied.

Let’s look at it this way. Suppose Witness “A” says that the Accused did something, and then Witness “B” says that they did not. Both are supposed to be relying on their personal knowledge, though there is always the question of the interpretation of an observation. Now, with both “A” and “B” providing conflicting “facts”, which shall the jury accept as proof?  Suppose, however, that there were a number of other observers to those facts. Let’s say that we have Witnesses “C”, “D”, “E”, “F”, & “G”. Wouldn’t their testimony provide the jury the means to more readily make a determination as to what appears to be the correct “fact”?

. Continue reading ‘Burns Chronicles No 34 – “shall enjoy the right… to have compulsory process for obtaining witnesses in his favor”’ »