01/21/13 – James Ostrowski – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
Our next guest is Jim Ostrowski.
He writes for LewRockwell.com.
He's a lawyer from Buffalo, New York.
Right, Jim?
That's correct.
How are you doing, Scott?
Welcome back to the show.
It's great to talk to you again.
It's always great to be on.
Okay, so I'm really glad you sent this tweet out this morning because I thought it was really cool.
You said anybody who's for the Second Amendment better be in favor of the Sixth, too.
And I thought, ha, I wonder how many people even know what the Sixth one is at all.
And then, lo and behold, it was a link to this great study that you did for the Mises Institute back in 2001 about jury nullification.
The title is The Rise and Fall of Jury Nullification.
So go ahead, take us through it here.
Well, look, they're cracking down on the Second Amendment, the right to bear arms, and they're mainly doing it by creating new criminal statutes, which obviously will end up with people being indicted and prosecuted, and if they so choose, going through a jury trial.
So I think it's important for people to study up on what the right to trial by jury means, because there's also been a war against the right to trial by jury, which is actually an older and so far more successful war than the war against the right to bear arms.
The original concept of the right to trial by jury was based on the understanding at that time, and as stated by all the leading scholars of the time, including John Adams and Thomas Jefferson and Alexander Hamilton, that a jury in a criminal case could judge the law as well as the facts.
Over time, as I explain in the article, it's called The Rise and Fall of Jury Nullification.
You can find it very quickly online.
Over time, that right of juries was eroded not by constitutional amendment but by judicial decision, and I was just refreshing myself with the article this morning.
The decisions that overrode the Sixth Amendment right to have a jury override the law don't even really talk about the Constitution at all.
They just talk about it as a matter of judicial policy or common law.
But it's my view, and I think it's pretty obvious, that the whole point of the right to trial by jury is to check the power of the government.
If the government can then basically order juries to reach a certain result or threaten them with a perjury charge or contempt charge if they don't, the right to trial by jury has been eviscerated and has no meaning anymore.
So I think that people who are concerned with the right to bear arms have to take a very close look at the Sixth Amendment because they may be jurors, they may be sitting in front of a juror, and people need to educate themselves about these things because they have not been taught the truth about it, certainly in government school.
I wrote a whole book about that.
And judges, unfortunately, have not correctly stated the actual meaning of the Sixth Amendment as it was ratified.
All right, so first of all, I guess I'm kind of surprised to find out that you had that much consensus between Jefferson and Adams and Hamilton on this issue.
Even Hamilton was good on this.
And we're talking about the right of the jury to decide not just whether this person did what he's accused of but whether that, in fact, violates the law sort of no matter what the law itself says or no matter what the judge's interpretation of the law is.
Is that basically right?
Right.
Now, initially back in England there were some famous cases where, you know, one publisher was charged with criminally libeling the king, and the judge said, look, we know he's guilty, and you just have to find him guilty.
And the jury said no, and one of the jurors was charged with contempt of court or whatever crime.
And in a famous case, he was acquitted of the charge, and the court said that no, juries have the right to look at the overall justice of the situation.
They can't be told what to do, and it's up to them to determine both the facts and in a proper case the law, particularly in a case where the law is being applied improperly or the law itself was unjust, such as making it a crime to criticize the king.
And this was carried over into the colonies in famous cases that established that jurors, in fact, do have the right to judge the law and the facts in a criminal case.
All right.
Now, one of the things that you said there was about how this attack on the right of a jury trial really precedes even the right on the attack or the attack on the right to keep and bear arms.
I'm sorry.
But part of the consequence of that, I think, is that, well, if it's a long time ago, especially back when pictures were black and white and that kind of thing, then it's settled.
They must have decided that this wasn't working, and that's why they got rid of it, for a good reason.
Well, no.
Let's step back a little bit and put this in a little bit of context.
The founders were very smart men.
They had studied history.
They'd studied all the different forms of government that had existed.
They had seen government often lapse into tyranny and, in fact, more often than not lapse into tyranny.
And they just didn't want to make that mistake all over again of creating sort of an absolute government without real checks and balances.
And I'm not referring to inside the government.
So when you look at it, what they were basically concerned in the language of modern political science is the government had a monopoly.
The government did not have a complete monopoly on power or a monopoly on the use of force.
So they created right in the Constitution two ways to break up that monopoly in power.
And interestingly enough, one of the ways is the right to bear arms, and the other significant means of checking state power is the right of a jury to override an unjust law.
Both of these constitutional provisions are similar in that they redistribute some of the governmental power away from the government institution itself, and they give it to the people.
So naturally, governments who are always seeking, as LeRock likes to say, they want all the power as fast as they can get it.
They have had an incentive to erode both of these rights and, in fact, have eroded and are in the process of eroding both of these rights.
And it's very critical to understand that without these two bulwarks against tyranny, we are in serious trouble, and that would lead us to the last bulwark against tyranny, which is what Jefferson stated in the Declaration of Independence and is known as the right of revolution.
So all three of these rights, the right of revolution, in other words, the right to alter or abolish the government, the right to bear arms, and the right to trial by a jury that could override the law, these are all examples of the Founders' understanding that you cannot give the government complete power to do whatever it wants.
There has to be power outside.
The free speech and free assembly count there too, right?
That's right, except for the fact that, you know, my Jim Ostrowski's article saying that the New York gun law is unconstitutional doesn't really change anything.
But a jury acquitting someone of violating that, that actually changes things.
These are the teeth in the Bill of Rights.
Yeah, you know, in the old expression of the Second Amendment, it's what guarantees that you have a First Amendment right.
But, you know, I take your point.
But it's important to understand that the basic theory of our government is the Republican theory.
It's based on Cato's letters and the Levellers and Lockean theory that the political power arises from the people, and that in our system the people decided to keep a couple of things and not give it to the state.
One, the right to alter or abolish the government.
Two, the right to bear arms, which of course is implied in the first right.
You can't abolish the government without some recourse to arms if the government doesn't want to be abolished.
And history is very short on examples of governments that wanted to be abolished.
But also the right to convict somebody and allow them to be penalized under the law, thrown in jail.
These are three rights that the people never gave up.
They kept them.
And so they all have to be understood together, because each of them is mutually reinforcing of the other right.
All right, so now the way it works these days is a judge will tell a jury that if you decide that the prosecution is right, that X took place, then you must decide that this person is guilty of that thing, and you don't have any other wiggle room.
So the loophole in that is a juror can just refuse, right?
But then if they do refuse, they can get in trouble or not?
Oh, sure, sure.
The government has, over the last several decades, been at war with the right to trial by jury, and they have charged people with perjury.
They have charged people with contempt.
They have even gone into the jury room itself, the sanctity of the jury room, and, you know, charged people with improper deliberation.
So, look, there's no easy answer to this.
I can't tell people, you know, hey, it's real easy to be a courageous juror.
You may get into legal trouble.
And I certainly, as a member of the bar, I'm not urging anybody to do anything illegal.
My only role is an educational role.
I'm simply stating as a fact that the Sixth Amendment, when ratified, included the right of jury nullification.
It no longer, under the current case law, jurors no longer have that right, not because the Constitution was amended, but because judges decided to judicially repeal the Constitution, to use a phrase that was used by a judge in my case against New York for illegal corporate subsidies.
Judicial, so this isn't my term exclusively.
When judges change the Constitution, that's called judicial repeal, and you can apply any adjective on that that you please.
Obviously, you're not supposed to do that.
Well, can you report to me whether people get in trouble for this very often?
I saw one case where the lady had used the term jury nullification in the jury room, and then the foreman, you know, tattletaled on her to the judge, and she got in trouble, that kind of thing.
But if one was to say, you know, I'm just not clear whose pocket the cocaine was in, is that the kind of thing that people go to jail for?
Well, no, I don't think so.
Look, you have to apply the law to the facts.
That's something that only can be done inside the mind of a human being.
It's not done by a computer.
There's no hard drive to look at.
I'm not going to give people advice as to how to get around a judicial ruling, because, again, they'll come at me, and then the movement will have lost the voice.
I'm just educating people about what the history of this is, and certainly if you go in there and say, oh, I don't believe in jury nullification, and then you confess to the jury, you know, I just lied to the judge, and so on, you know, you may get into some serious trouble.
Yeah.
Well, you know, I know somebody once, I used the cocaine in the pocket example, because I know somebody who served on a jury, as they call it, serving, and the facts of the case were, well, there was some cocaine, and all these people were in the room, and so the prosecution was saying, hey, under the law, everybody goes to prison over this, and yet it was made pretty clear at the trial that, in fact, some of these people didn't really have anything to do with this cocaine at all.
They just happened to be in the room, but not even for very long, and they didn't even know that it was going to be there kind of thing.
Apparently these facts were pretty well established, and yet we had to vote to convict them anyway, because that's what the judge said, and this person was, you know, very regretful of this.
It just didn't really seem fair, but I guess that's the law.
Well, the problem, I've written about this in some of my articles and some of my books.
I talked about the Martha Stewart jury, where, you know, I was talking to people about her case, and I said, you know, one of the problems with, I think I actually wrote an article before the verdict was breached.
I correct it by memory.
And I said, you know, one of the problems with juries is there's so many government employees on them, and they have a different view of the world than people who don't work for the government.
Well, lo and behold, the gentleman comes out after convicting Martha Stewart, and he turns out to be an employee of the Social Security.
So it turned out to be a little bit of a profit on that.
So the other problem with juries, and I pointed out in my book about government schools, is that people who have been through 12 years of public school are used to taking orders from a government authority figure with a bigger, higher desk up in the front of the room.
And I drew the parallel between that situation, and now you're in court, and there's a government authority figure in the front of the room in a higher position with a bigger desk than you.
And, you know, we have trained a number of generations to be sort of passive in the face of orders from a government employee.
So I don't know if that situation can be turned around.
I can only hope that through educating people about the history of the right to trial by jury that maybe it can be.
And, look, even as a lawyer, I'm allowed to argue for changes in the law.
At some point I might argue in front of a judge, you know, these cases need to be changed, and you need to respect the original right of trial by jury.
So there's always the possibility of changing the minds of some judges on this issue as well, and that's one of the reasons I wrote the article.
It's written in a modern, legal, analytical style, not using any arcane or archaic arguments.
I'm simply laying out the facts and the policy behind it and explaining how the New York State Court of Appeals and the U.S. Supreme Court explain the errors in their reasoning.when they reach this conclusion.
And, by the way, how long ago was that?
When did they really abolish half of the right of the jury here?
It was in the 19th century.
One of the cases was in the 1850s, and the other case was around the 1890s.
It was a considerable period of time after the Constitution was ratified around 1789 or thereabouts.
Now, was the law before the Constitution already pretty solid on this, or was it mixed up?
No, it was pretty solid after the cases that arose in England and pre-colonial America.
The law was relatively settled, and I cite the authorities in my article, including Jefferson, John Adams.
John Jay was also on board with this view that juries had that discretion, and Andrew Hamilton really was not a huge fan of individual liberty and other issues, but he was one of the most accomplished lawyers of his time.
He said that the jury is entrusted with the power of deciding both law and fact, and I'm quoting from his work with Andrew Hamilton.
All right, now, can you give us some examples?
I guess I sort of assume everybody agrees with me on the horrible nature of the drug war, but maybe not.
Maybe you can give us some better examples of someone who is technically in violation of the law, just like the prosecutor says, but they didn't really commit a crime in a way that they ought to be punished, and yet the prosecutor would be trying to anyway.
You know, something people can relate to.
Well, you know, under the Rockefeller drug laws up here and under some of the federal laws, drug dealers can get just extraordinarily long sentences.
There was a judge.
I wrote an article about Judge Olson, who is now deceased, but he was a federal judge, and he refused to sentence someone to some ridiculous thing like 150 years, and he got actually reversed by the Second Circuit, and he just held his ground.
He said, I'm not sentencing somebody to 150 years.
That's insane.
So there are these draconian sentences for basically the possession of a chemical, the possession of private property, something that was not illegal for most of the history of America, and all of a sudden you can go to jail for 100, 150 years.
So there are these examples, and in such a case, the prosecutor has to convince 12 jurors that the defendant was guilty of all the elements of the crime, and one of the elements of almost every crime, and really it should be the element of every single crime, is mens rea, or a guilty mind.
So unless 12 people agree that those elements have been proven beyond a reasonable doubt, that person should not be convicted.
I'm not aware of any.
I've never been in a jury room.
There's not a lot of regulations or laws concerning what happens in a jury room, but I'm not aware of any obligation to explain one's verdict.
How would anybody enforce that obligation?
Explain it to whose satisfaction?
Explain it to what level of mathematical precision or logical reasoning?
It's very customary for people to explain their position and reason things out.
They usually do.
But I'm not aware of any statute or case law, certainly no constitutional principle that says that unless you can explain your verdict to the satisfaction of the other 11 people, you can't vote the way you want, because that would lead you to sort of a circular, infinite regress where you'd never reach a verdict because none of the people could really satisfy the other 11 as to why they're doing what they do, except in the super obvious case where there's no question of guilt.
All right.
Now it seems like what they always do, many have argued that they drove this computer genius to suicide last week, Aaron Schwartz, with this process, and that is they just charge you with so many crimes that you better just cry uncle and plea bargain to whatever they say.
And I wonder whether back in the days the judges ever ruled that you can't do that.
You charge them with fraud or you charge them with stabbing somebody or you charge them with whatever it is, but you don't sit here and charge them with 10,000 crimes so they can't possibly defend themselves.
Well, that is a modern trend to charge people with 60 crimes.
Did that used to be banned?
Pardon me?
Did that used to be banned?
I mean, do judges ever say no, you can't do that?
It's not that it used to be banned.
It's that in our modern sort of progressivism leading to soon-to-be totalitarianism, where virtually everything you do in your life is illegal now, there's just more things that are illegal.
And there's more things that are illegal that people don't even know are against the law.
And there's an extensive discussion in my article about Bly Sanders Spooner and his criticism of the principle that ignorance of the law is no excuse.
And he, of course, being the contrarian that he was, took the side that, well, of course ignorance of the law is an excuse, unless what you did is so intrinsically evil that you can't really say, well, I didn't know this was wrong.
So there's just more things that are illegal now.
There's just more things that are illegal, even though they're not intrinsically wrong.
And yes, the prosecutors can throw the book at you, and then you're in a situation where the jury might give you a break and acquit you of half of the stuff, not knowing that they can still throw you in jail for...
Right, yeah, that's what happens.
They compromise.
The ones who want to let you go compromise with the ones who don't.
I'm sorry, we've got to go.
We're all out of time.
Thank you so much.
It's Jim Ostrowski.
He's a lawyer in Buffalo.
Really appreciate it.
Check out his website, JimOstrowski.com, and his archive at LewRockwell.com.
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