Chaos and Beyond

The Best of Trajectories 

Jury Nullification: Freedom’s Last Chance

An old idea has resurfaced that may have major potential to slow or even reverse the terrifying erosion of the Bill of Rights under the Reagan-Bush team and their right-wing Supreme Court. I refer to the revival of the ancient Saxon doctrine of
Jury Nullification which has now become a projected Constitutional amendment under consideration in 22 states. Since Mr. Justice Brennan, the last plumb-line defender of civil liberties, has retired, and the Supreme Court seems fated to move even further toward the authoritarian right-wing, only Jury Nullification can preserve what still remains in this perishing Republic of Anglo-American libertarianism.

Jury Nullification rests upon an old Common Law principle (which Lysander Spooner in his scholarly “Essay on Trial by Jury” [1852] proved to underlie the Jury clause of Magna Carta) — viz, that the only way to prevent the government from imposing unjust or nefarious laws is to grant juries the right to negate such laws. This right, as Spooner demonstrated, explains the tradition that a jury should consist of twelve citizens selected at random and thereby representing (as far as scientifically possible) the full range of common sense and common morality of the population in general (including the recalcitrants and cranks among us, upon whom liberty has always depended in bad times.)

In a once popular formulation, the doctrine of Jury Nullification holds that “a jury may judge the law as well as the facts in the case.” Since Magna Carta this has been repeatedly upheld by courts in both England and America, only occasionally denied by lower, and currently remains the law of both countries, although judges have no legal obligations to inform juries that they possess this right.

In fact, in one infamous decision, in the 1890s, the U.S. Supreme Court upheld the right of Jury Nullification but simultaneously ruled that the judge not only doesn’t have to tell the jury they have this right but can prevent the defense attorney from telling them. In other words, American juries have the right to nullify the law, but the judge, if so inclined, can do everything in her or his power to prevent them from knowing it.

In only one state out of the 50 — Maryland — does the State Constitution oblige the judge to inform the jury that they have the right to acquit where the facts prove the defendant technically guilty but the sensibility of the jury holds that he or she did no real wrong. In the other 49 states, the right exists nebulously, like a ghost, haunting old parchments; judges do not talk about it, and juries, not knowing that they hold in their hands the final checkmate against tyranny, do not exercise the authority they possess.

As Lord Denman wrote (in O’Connel vs. Rex, 1884): “Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must 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.” Outside Maryland, every jury in America is still tampered with and falsely instructed in this manner.

The Fully Informed Jury Amendment can change all this, since it would require judges to inform juries of their right to judge the law as well as the facts and to refuse to enforce any law they find repugnant, tyrannical, nefarious, or just plain idiotic.

Under the current government, we can expect abortion to become illegal again, and some women will die in back alleys the way they did before Roe v. Wade. But an informed jury can nullify any anti-abortion law by refusing to convict doctors or patients or the counselors who send the patients to the doctors. They can nullify the law “in the teeth of the facts” of the case; and even one informed juror can hang the jury and cause a mistrial.

Similarly, the present idiotic “war” on drugs will continue indefinitely, at a cost of billions, with further erosion of the Constitution, and with no tangible good results credible to anyone with more than half an inch of forehead. But an informed juror can again cause a mistrial. Certainly, the anti-pot law, the silliest of our drug laws, could not survive, in a nation with at least 70 million pot-heads, if juries knew they had the right of nullification.

In the landmark William Penn case in England in the 1670’s, the State proved beyond doubt that Penn “was guilty”; i.e. he did consciously and deliberately violate the law by preaching in a public street a religion not that of the Anglican Church. The jury refused to convict, finding religious persecutions repugnant. The judge, in a fury, confined them to the Tower of London until they would agree to convict. After those twelve ordinary unheroic Englishmen had served enough time in the Tower, public opinion forced the judge to reverse himself and admit the jury had the right to decide the law as well as the facts. And that, children, is how religious liberty came to birth in the modern world after 200 years of bloody religious wars: 12 simple men who felt sick and tired of religious bigotry and refused to enforce an intolerant law.

Similarly, in the John Peter Zenger case (New York, 1734), the State proved conclusively that Zenger violated the law by printing anti-government articles in his newspaper, the New York Weekly Journal. The jury simply refused to convict him and nullified the law. That was the beginning of freedom of the press in this country, even before the Revolution and the First Amendment.

As in Penn’s and Zenger’s day, Anglo-American juries today still have the right to cry “Halt!” to any government that tramples upon human liberty; and even if the FIJ Amendment does not pass all 50 states in the near future, the very fact that it exists and is receiving publicity means that some jurors at least will know their rights when they enter the jury box.

For further information, visit the FIJA Website or call 1-800-TEL-JURY for introductory information.

The Future of the Future

There was a Fundamentalist Futurist back in the 1890’s who demonstrated that New York City would be abandoned as unfit for habitation by the 1930s. His argument was based on projection forward of population trends, and he correctly estimated that population would grow from 4 million to over 7 million in 40 years. (He didn’t guess it would reach over 12 million by now.) It was then obvious, he said, that the amount of horses necessary to provide transportation for that many people would result in a public health hazard of incredible dimensions: there would be horse manure up to the third floor windows everywhere in Manhattan. This illustrates the most frequent fallacy found in Future projections: the “elementalistic fallacy” named by Alfred Korzybski. The elementalistic fallacy as Korzybski noted, seems to be built into our very language. We can talk about Joe Smith in isolation from his (or any) environment; we can therefore think about Mr. Smith in such fictitious isolation; and in such “elementalistic fallacy” we will always draw wrong conclusions, because Mr. Smith cannot exist without some environment. (He will explode in a vacuum, and without a social world his mind will similarly explode — or implode — or at least mutate shockingly, as isolation experiments have shown. )

Projecting population forward without projecting other factors forward has produced numerous elementalistic fallacies similar to thinking of Joe Smith without an environment. Malthus, for instance, “proved” that population will always increase faster than resources, but this was disproven by technological history, and we now understand that “resources” only exist when identified by analysis and each new discovery in pure science shows us new resources everywhere.

One example: the Newtonian system allowed us to tap 0.001 per cent of the energy in a glass of water; 19th Century thermodynamics showed us how to tap 0.01 per cent of that energy; we can now tap 1.0 per cent. Nobody knows how much we’ll be able to tap in 50 years.

Elementalistic fallacies abound in Future projections (including my own). We are only gradually and gropingly learning to think “non-elementalistically” (in Korzybski’s phrase) or “synergetically” as Bucky Fuller liked to say. I have found one quick way to avoid the more obvious elementalistic and Fundamentalistic errors, which is this:

Whenever I project one trend forward, I then re-analyze the situation, projecting at minimum five other trends forward also.

For instance, lifespan and population have both been increasing in the past 200 years. Projecting these trends forward elementalistically (in isolation) has led to some notable Doomsday scenarios in which humanity overcrowds itself to death. An entirely different picture emerges, however, if one projects these trends synergetically along with five other trends, such as:

The effect of industrialism on population. As documented by Fuller (Critical Path) a nation’s population only rises rapidly in the transition from feudalism to industrialism, then levels off when industrialism is well established in a country.

The emergence of Feminism and self-choice among women, beginning with the 18th century radicalism of Mary Wollstonecraft and now including Women’s Liberation movements in all parts of the world — even dawningly in Islamic nations.

The movement of communication technology into space, with clear trends indicating that “industrial” (or more likely, post-industrial) technology will follow, with workers and then families and then schools and grocers and museums, etc. moving into space colonies.

The continued improvement in birth control technology and the fading line between contraception and abortion. There is already a heated debate, for instance, about whether certain devices — e.g. the IUD — “are” or “are not” abortifacients.

The neuroscience revolution (or H.E.A.D. Revolution — Hedonic Engineering And Development) with its increasing promise that humans in the near future will achieve more freedom from mechanical conditioned reflexes (both “physical” and “mental”) than ever before.

Whenever I try to project all five of these trends even 40 years into the future, I find the “overcrowding” problem seems less likely than New York being buried in horse manure. To get a feel for synergetic thinking, try your own projection, “guestimating” what the next decade will bring in each of these fields, and the decade after that, and so on, to 2029.

Sex, Satanism, and Sodomized Dogs in Southern California

The Manhattan Beach Satanism/porno/child abuse case has at last come to a climax, ora at least a temporary anticlimax. After all the hysteria and hoopla about devil worship, a sodomized dog, other tortured animals, a “kiddie porn” industry in the schools, and assorted rites of Voodoo and Black Magic; after the closure of schools and the repeated vandalization of a church; after the ruin of dozens of careers and severe damage to hundreds of lives; the final tallies, as far as we can determine, run about as follows:

Number of Manhattan Beach schools accused by rumor of having Satanic teachers during the original 1983 panic: 9

Number of churches similarly accused: 1

Total number of institutions accused: (9+1) =10

Additional charges circulated: “An AWOL Marine sodomized the dog of one of the molested children!”

“Teachers at the nine schools belonged to a child pornography ring!”

“Teachers also belonged to a Satanic cult!”

“The cult existed not only in Manhattan Beach and nearby towns but throughout the United States!”

“Animal mutilations and bloody sacrifices occurred in all local schools and at one local Protestant church, St. Cross Episcopal in Hermosa Beach!”

“Hundreds of children had suffered molestation or had unwillingly participated in Satanic rituals!”

“Heavy Metal Rock caused it all; if you play certain records backwards, you can hear voices saying Satan is my Master!!!”

Additional interesting information: Number of teachers accused of child molestation and/or Satanic rituals: no exact figure can be found now, but somewhere in the neighborhood of one hundred.

Mental status of original complaining witness: Previously judged paranoid schizophrenic by psychiatrists; at the time she made the charges, receiving Welfare on grounds of continued paranoid schizophrenia.

Number of Manhattan Beach institutions at which the District Attorney finally decided enough evidence existed to indict suspects: one out of the nine schools (the McMartin Pre-School), or 11.1% Including the church, one out of the 10 institutions, or 10%

Fate of the 8 schools at which prosecutors found insufficient evidence to indict: Due to public hostility, all 8 closed down and never re-opened.

Fate of the McMartin school: Sold to pay legal expenses of defendants.

Disposition of the alleged “Satanic” St. Cross Episcopal Church: No evidence to indict found by D.A.; however, under harassment and death threats, the pastor closed the church and moved to another part of the country.

Evidence of Satanic rituals considered by the D.A. strong enough to bring into court: None (0.0%)

Evidence of a “child pornography ring” strong enough to bring into court: None (0.0%)