LORD DENMAN, (in C.J. O’Connel v. R. ,1884): “Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.”
The problem FIJA (the “Fully Informed Jury Association”) brings up is monstrous—before empanelling any jury, at voir dire, Judges at all levels, state and federal, question potential members of the jury about their individual and abject willingness to accept the law as he (or she) gives it to them. Jury Tampering? No, it’s MUCH worse than that—the jury in 90% of all criminal trials is a fiction, merely the tool of the prosecutor (much like the judge himself). I did not follow the Casey Anthony case at all, but it is reassuring that not all juries convict. The OJ case was pure reverse racism (“affirmative action” as it’s sometimes called), so in a sense “jury nullification worked” to express the will of (some segment) of the Population. It was a travesty of justice, but sometimes “Type 2” Errors (false negatives rather than false positives) are healthy to remind us what really matters in society. In the Civil Trial, and later, by his own stupid folly, OJ eventually “got his”—too late and “justice delayed is justice denies”—but the whole world, including his children, knows he did it.
When I was a judicial law clerk for the Honorable Kenneth L. Ryskamp in the Southern District of Florida, I heard the words “not guilty” uttered only once in any criminal case during my entire tenure working for the United States District Court, and that utterance occurrence in a case where Judge Ryskamp directed the verdict where the U.S. Attorney had charged “mail fraud” without ever introducing a single scrap of evidence that anything like the “mail” was ever used. In other words, “Not Guilty” by reason of prosecutorial incompetence to a nearly unbelievable level. But Juries NEVER found anyone “Not Guilty”.
Still, Jury nullification is only part of the task: to restore the power of the jury would be a major first step towards restoring genuine freedom in America—but to abolish the power of judges to approve plea bargains, and stipulate that, even upon a confession in open court, no person should ever be deprived of life, liberty, or property except by a jury of his or her peers—now THAT would be a really major step forward. Juries, not judges, should decide all matters in a court under the guidance of a truly impartial and unbiased judge, who can serve as a third counselor to the two sides in any litigation, civil or criminal, an objective expert in the law rather than an ally of the prosecution (in criminal cases) or of the corporate defendant (if any) in civil cases—which is the biased and prejudiced system we have now.
The evidence I have accumulated in the past two-three years has convinced me that the majority of the United States District Judges in the Central District of California, just for example, will twist any case, bend any outcome to make sure that Mortgage Finance Companies, Banks, and “Mortgage Services” (i.e. Foreclosure mills) win every case. The evidence is most blatant and striking that Judge Howard Matz manipulates outcomes routinely, but the recent behavior of Judge Philip S. Gutierrez is equally egregious—just less explicitly articulated (and more a matter of circumstantial evidence concerning the Judge’s conduct on the bench in making lightening-like decisions contrary to the rule of law, compared with Judge Matz’ express pronouncements).