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Posted 1:00 AM Eastern

by Jim Kouri
September 18, 2006
© 2006

�The trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State, where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.� - US Constitution Article III, Section 2, Paragraph 3

One of the most important constitutional rights is the right to a fair and open trial. The Sixth Amendment guarantee is apparently a personal right of the defendant, which he may in some circumstances waive in conjunction with the prosecution and the court, but it is the defendant's decision.

Because this right is so fundamental in the United States, the US Supreme Court in the past has had little occasion to deal with the right. It is a right so fundamental that it is protected against state deprivation by the due process clause, but it is not so absolute that reasonable regulation designed to forestall prejudice from publicity and disorderly trials is foreclosed.

Yet there are those working within our nation's legal system who wish to change the process by which civil liberties are protected for someone accused of a criminal offense or faced with civil litigation. The most serious but little known trend is the reduction in use of the jury trial.

A respected jurist, Hugh Bownes, recently wrote, "There are several good arguments for [eliminating juries]. [In] doing so, it saves time, saves money and a judge is better equipped by training and experience to cope with the nuances and complications of complex issues. Any judge will attest to that. Yet to understand whether trial by jury should be eliminated in complex civil cases, we first have to look at what the purpose of a civil trial is and the function of the jury in it."

While Bownes advocates elimination of juries in civil cases, it is this tinkering with our judicial process that should disturb all clear-thinking Americans. It is but another first step in the march to creating an imperial judiciary. What may appear expedient in a civil trial may seduce the lawyers in black robes to advocate non-jury trials for criminal cases in the very near future.

If Americans accept as the law that which a judge states, then they have accepted the exercise of absolute authority of a government employee and have surrendered a power and right that once was the citizen�s safeguard of liberty.

For instance, in the State of Oregon, the Oregon Judicial Department's Future of the Courts Committee is quoted as saying in their �Justice 2020 The New Oregon Trail,� "The state courts have worked to reduce inappropriate uses of jury trials."

Of course, the Oregon Judicial Department qualifies this statement by saying they are committed to preserving the defendant's right to a trial by a jury of his/her peers, but they are also committed to "reducing the public's reliance on jury trials to resolve disputes" by the year 2020.

�To some Americans, this may seem reasonable. It may sound reasonable until one considers human nature and the potential for corruption of the court process if removed from the hands of citizens and placed into the hands of black-robed attorneys and so-called justice practitioners,� says one attorney who spoke on condition of anonymity.

�Quite simply, it is far more difficult to bribe, blackmail or coerce 12 members of a jury than it is to bribe, blackmail or coerce one judge. And the jury process to a certain extent prevents the political back-scratching so common in the two other branches of government,� he said.

Also, in most jurisdictions, judgeships are political entities relying on the same political foibles that exist in electing mayors, governors, senators and other federal, state and local officials. Defendants should not have to worry that the man who sits in judgment over them is a "conservative" or "liberal" or "libertarian." To be sure, jury members have political biases, but they are not professional politicians with their own agendas.

In Oregon, the Justice Department encourages the use of what it calls Alternative Dispute Resolution. Most disturbing is the fact that the Oregon Bar Association endorses the acceleration in the use of ADR. In fact, one goal is the integration of ADR methods and techniques in criminal cases. They also advocate the elimination of what they call "outmoded, redundant or unnecessary court functions."

Now, it's obvious they aren't looking to eliminate the judges, defense attorneys or prosecutors. The courts will still require bailiffs, protection officers, court reporters and administrators. So who do you suspect they seek to eliminate? Could it be the jury?

In the case of Oregon, the state government is in the process of "educating" the public in the need for "multi-door justice systems," which includes alternatives to jury trials. The strategy appears to be: denigrate juries as being ineffective and obsolete, while at the same time trumpet the praises of a system that relies on the judgment and conduct of "justice professionals."

The elimination of jury trials will not be accomplished in one felled-swoop. In several states it's being accomplished piecemeal. Arizona has just joined a small but growing list of states that have taken away the right to jury trial in DUI cases, even though DUI charges may lead to incarceration and other penalties.

Legal scholar Lawrence Taylor sees this as a frightening trend. "First, it puts the fate of DUI defendants in the hands of politically elected judges. Given the PR power of groups like MADD, you can bet that will mean the further erosion of the rights of suspected DUI-DWI suspects. Second, it saves the criminal justice system a ton of money, which means virtually every jurisdiction in the state will likely scrap jury trials for drunk driving cases."

However, Jim Kouri, a vice president with the 14,000-member National Association of Chiefs of Police sees things in a different light.

"With all the violence occurring due to courtroom injustices, such as "deadbeat dad" cases or domestic violence, there is fear among judges that they are in physical danger. If they can conduct a closed session with only court employees in the courtroom and the suspect in his jail cell participating in his trial by judge, the danger to the judge is reduced," said Kouri, a 30-year law enforcement and security veteran.

In direct violation of the US Constitution, the US Supreme Court recently ruled that you don't have to be given a jury trial if you face less than six months in prison. And if you have a dispute with the IRS, EPA or any of a dozen other regulatory agencies, your case will usually be heard by an administrative law judge employed by the same agency you are disputing. Judges routinely deny the traditional right of jurors to judge the law, as well as the facts of a case, and vote their conscience.

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Thomas Jefferson considered the jury trial "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.''

If Americans allow those in power to bypass trial by jury, that concept -- in fact, all of our Bill of Rights -- will be in danger of extinction.


1. Future of the Courts Committee
2. Arizona Removes Juries from DUI Cases
3. Doing Away with Juries

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Thomas Jefferson considered the jury trial "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.''