"The trial by jury," then, is a "trial by the country" -- that is, by the people -- as distinguished from a trial by the government.
It was anciently called "Trial per pais" -- that is, "trial by the country." And now, in every criminal trial, the jury are told that the accused "has, for trial, put himself upon the country; which country you (the jury) are."
The object of this trial "by the country," or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or "the country," judge of and determine their own liberties against the government; instead of the government's judging of and determining its own powers over the people.
-- Lysander Spooner, An Essay on the Trial by Jury, 1852. Page 6 (italics in original).
No one has a right to use physical violence against the person of another. This basic truth forms the foundation of what is sometimes called "natural law," but which could also be called "universal law" or even "natural universal law."
That no one has a right to use physical violence against the person of another should be self-evident. It should need no supporting arguments in order to establish. The self-evidential nature of the right to freedom from violence against one's person is declared in the stirring opening sentence of the second paragraph of the Declaration of Independence of 1776:
We hold these Truths to be self-evident: that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed [. . .].
The truth that no one has a right to use physical violence against the body of another is discussed in numerous previous posts, such as this one entitled "Why violence is wrong, even in a holographic universe," and this one entitled "Does writing something on a piece of paper make it a 'law'?"
Natural law, however, does recognize that there is always a right to use force in order to stop physical violence against one's self or against another. In fact, this is the only legitimate use of force, and because life is precious we actually have a duty to stop harm being done to another. If we need help, we have a right and a duty to call others to help us to stop such harm. The Declaration itself confirms the above view when it says that governments are instituted in order to secure (that is to say, to protect) the inherent, self-evident right to life.
The way that governments protect life is through police forces who are authorized to use force to stop violence, and through jury trials in which juries of men and women rule on violations.
But what about the danger that the government itself is the one using violence? That situation is called tyranny. The importance of the jury as a bastion against government tyranny is little appreciated or understood. It is absolutely critical. It is perhaps the greatest guardian that the people have against government tyranny.
Lysander Spooner recognized this fact, and expressed it in his Essay on the Trial by Jury, published in 1852 and cited above. If the men and women of the world have overlooked or forgotten the importance of their right to serve on juries, the events in Ferguson, Missouri should have reminded everyone.
As explained below, I believe the evidence shows that at least four of the members of the jury made a terrible mistake in the grand jury decision they rendered this past Monday.
There are a large number of people who believe that the shooting of Mike Brown by a member of the police was a crime, and not an act of self-defense. A prosecuting attorney was selected by the county to act as a representative of the people to bring before a grand jury of twelve men and women, who also represent the people, the evidence that a crime might have been committed. Regardless of the fact that it can be argued that the prosecuting team did not necessarily act out their role in complete good faith, the undeniable fact remains that no matter how biased that prosecuting team may have been, the power to send this thing to court rested in the hands of a jury.
This jury was composed of twelve men and women who could have sent it to a criminal trial, and no one could tell them how to rule: no attorney, no law enforcement officer, no senator or member of congress, no governor, no president, no judge. They had the power to rule one way or the other, based on the evidence they heard, on the question of whether a criminal trial was called for.
Under Missouri law in this situation, if nine or more of the twelve men and women on the jury said a criminal trial was called for, the case would have gone to court for a criminal trial. While there may indeed be much to criticize about the way the evidence was presented to them by the prosecuting team, who (as the prosecution) were supposed to be presenting the evidence showing that a criminal trial was appropriate in this case, ultimately the responsibility to make the decision rested with the men and women of the grand jury -- and no prosecuting attorney or member of the government should have been able to stop them from ruling on the evidence that they did hear in any way that they saw fit.
Think about that, the next time you are called for a jury: it may be the most important thing you do that day, or even that month. Maybe not all of the members of this Ferguson jury were able to see the clear evidence that should have sent this case to a trial, but if just a few of them could see it (or even just one of them), and explain it clearly enough to enable the others to see it also, the course of history could have been very different than the situation we have now.
Those who do not think that this case should have gone to trial are generally taking the position that use of force is absolutely legitimate in cases of self-defense: that is, in stopping violence against one's person. I agree with that premise: force is authorized in self-defense, and even deadly force.
But deadly force is not justified over, for example, an insult. Deadly force is not justified over, for example, a desire to "save face" in front of a community. Deadly force is not justified if you get angry or frustrated. If there is probable cause to believe that deadly force was used in this case for a reason like that, instead of strictly in self-defense, then the case should go to trial.
Note well: One need not be convinced beyond a reasonable doubt that the cop in this case used deadly force for one of those reasons such as to avenge an insult or out of sheer anger (rather than strictly in self-defense) in order to believe it should go to trial. One only need believe that there is probable cause to believe that the killing could have been motivated by anger, or by desire for revenge, or even by racial animus on the part of the shooter, to send it to trial.
Note also that one need not take the position that all cops are bad or anything like that in order to believe that a specific policeman might have stepped over the line in this case. You can believe very deeply that law enforcement is a very difficult job and a necessary job, and that most of those doing it are there for honest and good reasons and are honest and good people who want to stop violence and protect other people from harm: but believing all of that does not mean you have to close your eyes to the possibility that an abuse of power could take place. Believing all of that does not require you to take the extreme position that every single member of law enforcement is always right no matter what they do.
And, in this case, despite the arguably very biased conduct of the prosecuting team, enough evidence was presented for reasonable men and women to conclude that there is probable cause to believe more may have been at work here than self-defense:
The way that governments protect life is through police forces who are authorized to use force to stop violence, and through jury trials in which juries of men and women rule on violations.
But what about the danger that the government itself is the one using violence? That situation is called tyranny. The importance of the jury as a bastion against government tyranny is little appreciated or understood. It is absolutely critical. It is perhaps the greatest guardian that the people have against government tyranny.
Lysander Spooner recognized this fact, and expressed it in his Essay on the Trial by Jury, published in 1852 and cited above. If the men and women of the world have overlooked or forgotten the importance of their right to serve on juries, the events in Ferguson, Missouri should have reminded everyone.
As explained below, I believe the evidence shows that at least four of the members of the jury made a terrible mistake in the grand jury decision they rendered this past Monday.
There are a large number of people who believe that the shooting of Mike Brown by a member of the police was a crime, and not an act of self-defense. A prosecuting attorney was selected by the county to act as a representative of the people to bring before a grand jury of twelve men and women, who also represent the people, the evidence that a crime might have been committed. Regardless of the fact that it can be argued that the prosecuting team did not necessarily act out their role in complete good faith, the undeniable fact remains that no matter how biased that prosecuting team may have been, the power to send this thing to court rested in the hands of a jury.
This jury was composed of twelve men and women who could have sent it to a criminal trial, and no one could tell them how to rule: no attorney, no law enforcement officer, no senator or member of congress, no governor, no president, no judge. They had the power to rule one way or the other, based on the evidence they heard, on the question of whether a criminal trial was called for.
Under Missouri law in this situation, if nine or more of the twelve men and women on the jury said a criminal trial was called for, the case would have gone to court for a criminal trial. While there may indeed be much to criticize about the way the evidence was presented to them by the prosecuting team, who (as the prosecution) were supposed to be presenting the evidence showing that a criminal trial was appropriate in this case, ultimately the responsibility to make the decision rested with the men and women of the grand jury -- and no prosecuting attorney or member of the government should have been able to stop them from ruling on the evidence that they did hear in any way that they saw fit.
Think about that, the next time you are called for a jury: it may be the most important thing you do that day, or even that month. Maybe not all of the members of this Ferguson jury were able to see the clear evidence that should have sent this case to a trial, but if just a few of them could see it (or even just one of them), and explain it clearly enough to enable the others to see it also, the course of history could have been very different than the situation we have now.
Those who do not think that this case should have gone to trial are generally taking the position that use of force is absolutely legitimate in cases of self-defense: that is, in stopping violence against one's person. I agree with that premise: force is authorized in self-defense, and even deadly force.
But deadly force is not justified over, for example, an insult. Deadly force is not justified over, for example, a desire to "save face" in front of a community. Deadly force is not justified if you get angry or frustrated. If there is probable cause to believe that deadly force was used in this case for a reason like that, instead of strictly in self-defense, then the case should go to trial.
Note well: One need not be convinced beyond a reasonable doubt that the cop in this case used deadly force for one of those reasons such as to avenge an insult or out of sheer anger (rather than strictly in self-defense) in order to believe it should go to trial. One only need believe that there is probable cause to believe that the killing could have been motivated by anger, or by desire for revenge, or even by racial animus on the part of the shooter, to send it to trial.
Note also that one need not take the position that all cops are bad or anything like that in order to believe that a specific policeman might have stepped over the line in this case. You can believe very deeply that law enforcement is a very difficult job and a necessary job, and that most of those doing it are there for honest and good reasons and are honest and good people who want to stop violence and protect other people from harm: but believing all of that does not mean you have to close your eyes to the possibility that an abuse of power could take place. Believing all of that does not require you to take the extreme position that every single member of law enforcement is always right no matter what they do.
And, in this case, despite the arguably very biased conduct of the prosecuting team, enough evidence was presented for reasonable men and women to conclude that there is probable cause to believe more may have been at work here than self-defense:
- Darren Wilson claimed he had to use his gun because he could not reach his mace (and because he was wearing contact lenses at the time, and if he got the mace in his eyes while wearing contacts he would have been incapacitated), or his "ASP" (an extendable baton for striking), and that he was in fear for his life while being hit inside his squad car (a Chevy Tahoe). So his gun was his only option for saving his life, he says. But this leaves out one huge non-lethal option for saving his own life: his Chevy Tahoe, which was still running at the time and throughout the incident (he and others testified that he did not reach back in to turn off the vehicle until after the entire episode was over and Mike Brown lay dead). He could have simply put the vehicle in drive in order to break free, and then he could have called for backup (since he testified that he felt unable to control the suspect by himself) without killing the suspect. He could also have rolled up the window.
- Some might argue at this point that Wilson testified that Brown grabbed Wilson's gun, and that in such a situation driving away or rolling up the window would not be practical. But Wilson also stated that Brown did not grab the gun out of its holster. In other words, Wilson had already pulled it when Brown grabbed it. Why did Wilson not drive forward and/or roll up the window in order to break free, rather than drawing his gun (which was, according to his testimony, then immediately controlled by Brown)?
- Even granting that the first shot or shots were necessary, this does not explain the decision to then get out and pursue Brown once Brown had been shot the first time and broken away. At that point, Wilson could have waited until backup arrived to make the arrest: he was no longer in a situation in which he was afraid for his life (although after he got out, he testified that he was charged and then was in fear of his life again, resulting in the remaining shots which finally killed Mike Brown). If he truly felt so unable to control Brown on his own, why did he then follow him instead of waiting?
- There is also conflicting testimony from Dorian Johnson regarding whether Brown ever grabbed Wilson's gun, or whether Brown was even punching Wilson the way Wilson said. Johnson's testimony definitely tends to introduce probable cause that Wilson may have gotten out of the car to go shoot Brown in anger and not in self defense (read the entire statement from Johnson: the jurors heard this, and it would seem to be enough in and of itself to suggest that the case should go to trial). Perhaps Johnson's testimony in and of itself is not sufficient to constitute probable cause (although I believe it would be). However, there is enough additional evidence in the testimony to establish probable cause to believe that Wilson might be lying in some of the details of his story.
- Most powerful is the testimony of Wilson's sergeant, who has been a policeman since 1976. In Wilson's testimony, Wilson said that he knew Brown had just stolen from the market during this incident (he says this quite clearly on pages 209, 231, 240 and 253-254 of the transcript embedded above). However, Wilson's sergeant states bluntly on page 58 that Wilson told him that Wilson did not know about the robbery in the market at the time of the incident:
- That discrepancy throws a great deal of suspicion onto Wilson's testimony. In addition to the discrepancies between the testimony given by Wilson and that given by Dorian Johnson, it should be enough to convince a juror that there is probable cause to send this to a trial. It establishes fairly convincingly that Wilson is lying in at least one important detail of his testimony. The explanation that Wilson somehow just slipped up in his testimony is not at all likely, if you read his descriptions during his testimony on pages 209, 231, 240, and 253-254: there, Wilson gives testimony in which he clearly portrays his awareness of the robbery of the market as an important part of the story:
- There is one other item that the jury should have seen in the evidence that was presented (although one could argue that any one of the above arguments already presented should have been enough for a jury to send this case to trial). That is the case of the previous incident in which it was alleged that Darren Wilson beat up a black man who said something to Wilson that Wilson did not like. This evidence is presented on pages 184 - 185:
- Of course, the above incident is described as having been completely resolved and all accusations against Wilson and the two other policemen were determined to have been "unfounded." The initial accusation was that an African-American male "used racial slurs" against Wilson, who then (along with two other cops) beat up the black man so badly he had bleeding on the brain. But the incident was resolved as having actually involved the black man "breaking in" to Wilson's car, and then running away and hitting his face when he was tackled by "one of" the policemen (who were off-duty at the time). Now, this incident may indeed have happened as described in the second version and not the first, but note the startling similarities to the incident with Mike Brown in some of the details included in this incident: there is disrespectful language by a black male directed to Wilson, followed by allegations of excessive force, and the final story is that the black male was breaking into Wilson's car. In addition to all the evidence already seen, this introduces the distinct possibility that Wilson may have a problem with controlling his response to perceived disrespect from black men. It is certainly not conclusive evidence of that, but it introduces the possibility, and it is a possibility not inconsistent with the description of the incident presented in the grand jury investigation (especially the description as given by Dorian Johnson, one of the two black males confronted by Wilson in this fatal incident).
- During Wilson's testimony, one of the members of the grand jury apparently exercised his or her right to ask Wilson questions about whether he had ever used force and injured a member of the "predominantly African-American neighborhoods" where Wilson had always been assigned, possibly with this very incident (which had been recounted prior to Wilson coming in to give his account) in mind:
- The denial by Wilson when asked directly about times that he has used force in the past appears to contradict the fact that someone was obviously injured to some extent in the incident just described. It serves to add another level of doubt regarding Wilson's testimony.
The evidence above was all presented to the members of the jury in the grand jury investigation. Even just one or two of them should have been enough to argue that there is sufficient evidence to introduce probable cause to conclude a criminal trial could be necessary. If there is the possibility that a member of the police force shot and killed a member of the public out of some kind of animus, or simply out of rage, then that needs to go to trial.
Again, it should be stated very clearly: one can support the mission of those whose job it is to stop violence (such as law enforcement), and still believe that the people have a duty to send to trial when there is evidence that a crime was committed by a member of law enforcement. To argue otherwise is to place members of the government or of law enforcement above the law, and to do so is to invite tyranny.
It should also be noted that one need not "convict" the officer in question in one's mind in order to argue that it should go to trial: it is only necessary to see that there is clearly enough evidence to give probable cause to believe that a crime might have been committed. The officer should of course be considered innocent until proven guilty, and the burden of proof is on the prosecution in such a case. The officer should and will have access to defense attorneys to help him (or her) tell his (or her) side of the story.
Lysander Spooner wrote that the jury of men and women from the people was an essential guard against "every species of oppression by the government." It is probably safe to say that very few people today understand how absolutely essential the jury is as a safeguard against tyranny.
In fact, in many ways the right to serve on a jury is as important -- sometimes even more important -- as the right to vote (both, of course, are important checks on the government's power). If people feel that their votes do not count, then they should consider how important their vote is when they are selected to serve on a jury. And, on a jury, not only does their vote count, but during deliberation they have the opportunity to present their arguments to the rest of the jury, to point out things that others may not have noticed.
In light of that, every man and woman should pay great attention to the importance of analysis as a general skill that is essential in daily life, and pay attention to it before they get onto a jury, so that when and if they are selected to serve on a jury they can analyze the evidence upon which enormous decisions may hinge.
The Ferguson grand jury decision should serve as a huge wake-up call to the importance of the jury composed of the people, and of the importance of good analysis.
