The courtroom belongs to the people.
Criminal prosecutions are still nominally brought not for offending the bureaucracy, but on behalf of the public order--"the people versus" whoever stands in the dock.
In cases which are at all complex, a panel of common citizens is generally assembled into a "grand jury" to determine whether the government's case seems likely to hold water.
In fact, in capital cases, no indictment by a mere judge, or even by a panel of government lawyers, is allowed--no prosecution of a civilian may proceed without the seal of approval of such a citizen grand jury.
Although common practice these days is for a prosecuting attorney to set the agenda for a grand jury's inquiries, such panels have wider power than even their members generally understand, and may use compulsory process to follow a trail of wrongdoing wherever it leads--even into the camp of government agencies. The common prejudice against mere "commoners" thus employing the investigative powers of the legal system in search of justice is revealed by the common labeling of such diligent bodies as "runaway" grand juries.
Why, even after the government has acquired its indictment, it has no right to try a defendant in secret. The accused is guaranteed by the Sixth Amendment a speedy "public" trial.
Nor may a criminal defendant be convicted by any government-salaried judge, unless he waives his right to a jury trial. The judge may be an esteemed member of the bar, assigned to guarantee that cases are presented in an orderly and equitable way, but his or her role is simply that of an umpire. Defendants can be deprived of their life, liberty or property only if an "impartial jury" of their fellow citizens decides unanimously that, according to the law, their common sense, and their conscience, that is what the defendant deserves.
At every stage, our courtrooms belong to the people, who wield there all significant power. Judges and prosecutors are mere servants of the people, hired to keep things orderly.
Yet despite this, many a judge apparently lets his black robes--and the physical elevation of the bench--go to his head, and pretends to powers he has never been assigned.
Such "runaway judges" routinely participate in stacking juries--tossing out any prospective juror who will admit to a sensible skepticism about bad laws, or any juror who refuses to swear in advance an improper oath to "apply the law as I give it to you." (The only proper oath, of course, binds a juror only to obey his own conscience and understanding. That's why would John Adams, later to become the second president, advised in 1771: "It is not only the juror's right, but his duty ... to find the verdict according to his own best understanding, judgment, and conscience, even though in direct opposition to the direction of the court.")
Then, such judges have the nerve to pretend to rule on what arguments may be "permitted" the defense, frequently even threatening to jail defense attorneys should they question the prosecution's political motives, or even attempt to argue that the law in question is, itself, unconstitutional!
On May 12, after a Las Vegas citizen jury unanimously acquitted former hotel executives Edward and Fred Doumani of all charges in a complex, 19-year-old bankruptcy fraud case stemming from the 1979 sale of the Tropicana Hotel to Ramada, Senior U.S. District Court Judge Justin Quackenbush of Spokane, Wash. (brought in to preside over the Las Vegas trial) presented another example of such arrogance.
Judge Quackenbush told the courtroom that he planned to talk to members of the jury about whether they should discuss their deliberations.
"I have a strong feeling that what goes on in that jury room should stay in that jury room," the judge said in front of the jury panel.
Subsequently, members of the six-man, six-woman jury declined to comment on their verdicts as they left the courtroom.
One juror said he was declining to answer questions, because he was afraid he would get in trouble. "We were instructed not to," he said.
Judge Quackenbush later denied that he ever ordered jurors to remain silent. "That's a decision for them to make," he said.
Well, of course he would say that. It would violate the First Amendment for him to issue any such order or instruction--and possibly the Sixth, as well. For if no one can interview willing jurors after a trial--or even learn who they were (as has been the case in several recent high-profile prosecutions)--how are we to know these so-called "juries" aren't merely trumped-up panels of government stooges?
The judge may have a "strong feeling" that jurors should not subsequently discuss their deliberations, just as he may have a "strong feeling" that strawberry sundaes should be banned from our ice cream parlors, and only chocolate sundaes henceforth allowed. Either of these "strong feelings" has the same weight in law.
The judge cannot have been ignorant of the likelihood that jurors might mistake his off-hand expression of personal opinion for a statement of law. By so speaking from the bench, while wearing his robes (and instead of telling jurors the plain truth--that they are free to speak as they please), it would appear he fully intended to intimidate the jurors into silence.
These judges would love to turn our courts into their own, private estates, where they wield all power and admit mere commoners as seldom as possible, and only upon a promise that they will bow low, speak in soft tones, and follow orders.
That may be the legal system in other nations, but not here.
If he can't limit himself to stating the law as it exists, when it comes to expressing his stupid personal opinions from the bench, the Honorable Senior U.S. District Court Judge Justin Quackenbush should shut up.
Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com.
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