Wayne Fincher/Trial by Jury

[Hogeye]

Another letter to the editor, published in the NWA Times last Sunday. It mentions some topics discussed here.


Dear Editor,

In a totalitarian judicial system, the government judges its own case. Sure, this goes against all juridical principle, but what the heck. Also, juries should not be allowed to judge the justice of the government's laws, but be restricted to questions of fact. Finally, any high court ruling that enlarges the government's power should be held sacrosanct and beyond dispute. Don't even let defense lawyers bring up such things.

The Times editorial writer apparently doesn't mind the totalitarian nature of the US injustice system. The wise rulers' court has already decided, despite common sense and any objective reading, that the commerce clause in the US Constitution allows the government to restrict any in-state product or item it pleases. The high courts said so, and it's a done deal according to the editorial. People should not judge otherwise, nor should jurors, nor should states. Also, the right of self-defense, having been quashed by high court, should not be cited. The rulers, in their "wisdom" and interest in ramping up power, have decreed that only officially approved gangs may arm themselves. They elevate, against standard English usage, a tangential "nominative absolute" to override the main point of the second amendment: "the right of the People to keep and bear arms shall not be infringed."

Lysander Spooner once wrote (in "Trial by Jury") that a jury trial should be a trial by the people, by "the country," and not trial by the government. He saw first-hand how juries could nullify unjust laws, such as the Fugitive Slave Act. Back then, juries routinely freed people who helped slaves escape, or helped transport them north in the underground railroad. Today, any potential juror who opposed slavery would be dismissed "with cause" - the jury would be dumbed down and fixed with only pro-government fact-finders. The high court's Dred Scott case would be declared unquestionable by jurors. Spooner suggested that twelve random people should be selected as jurors, with no "voir dire" weeding out process, and that jurors should definitely judge not only facts, but the law itself. Had Wayne Fincher enjoyed such a jury, he would likely be free today. (To learn more about jury nullification, go to www.fija.org.)

Hogeye Bill

[Dardedar]

DAR
Fincher got his jury, and he was found guilty on two counts. It's pretty straight forward. Either it is illegal to own fully automatic weapons (without special permits) or it is not illegal. It is illegal. He's done. Next!

I am sure a person can squeeze off two or three rounds per second with a semi-automatic, why do these boys (and I do mean boys) have to have (illegal) fully automatic weapons? Small penis?

From a right-wing gun site:

***
Fincher found guilty: Trial by jury in name only

by Loretta Weston

Meet the Washington County Militia: A bunch of law-abiding guys who get together to discuss law, history, contemporary events and how to best help serve and protect their community in times of need. "The Gentle Giant" Wayne Fincher is at center.

The Lt. Commander of the Washington County Militia, Hollis Wayne Fincher, was pronounced guilty of owning illegal weapons January 12, 2007, by a jury of nine women and five men at the U.S. District Court in Fayetteville, Arkansas, presided over by Judge Jimm Larry Hendren.

Sixty-year-old Fincher was arrested Nov. 20, 2006, at his home on Black Oak Road near Fayetteville. The early morning raid involved federal agents from the BATF and the FBI and assisted by Washington County Sheriff's Office, Fayetteville Police Department, Springdale Police Department, Arkansas State Police, Arkansas State Bomb Squad and the Madison County Sheriff's Department.

the rest

[Hogeye]

It's pretty straight forward. Either it is illegal to own fully automatic weapons (without special permits) or it is not illegal. It is illegal. He's done. Next!

Obviously, you entirely missed the point. Should the State judge its own case, i.e. unileterally interpret its contract ("constitution") with the people? Or should the terms of a contract be decided by the parties involved? If you think that the people should submit to the government's rulings on the Con forever and ever amen, then I guess you'd be satisfied with the rulers say so, done deal, next! Some of us think people are free, and able to use their own brains and judgement. The problem with the trial was that the jury was undermined and emasculated.

Upon cross examination, it became clear to observers that the federal prosecutors were determined that no mention of "constitution", "2nd Amendment", "militia" or "liberty" were to reach the jury's ears. AFV had learned that the prosecution had submitted a motion to the court prior to the trial to ban any constitutional arguments.

Something tells me that you'd be taking the opposite position if the judgement had denied the right to abortion or own foreign-made electric vehicles.

[Doug]

Obviously, you entirely missed the point. Should the State judge its own case, i.e. unileterally interpret its contract ("constitution") with the people? Or should the terms of a contract be decided by the parties involved? If you think that the people should submit to the government's rulings on the Con forever and ever amen, then I guess you'd be satisfied with the rulers say so, done deal, next! Some of us think people are free, and able to use their own brains and judgement. The problem with the trial was that the jury was undermined and emasculated.

The State IS one of the parties involved. And we have juries so that people who are impartial can get involved in the proceedings.

The people ARE the government. If we don't like how the State (whoever that is) interprets the Constitution, we can elect people who will pass a law changing that.

[Dardedar]

If you think that the people should submit to the government's rulings on the Con forever and ever amen, then I guess you'd be satisfied with the rulers say so, done deal, next!

DAR
No, not forever, just until it is amended or precident is overthrown by new decisions. Who gets to decide? High school graduates from Bangalore of course!

Some of us think people are free, and able to use their own brains and judgement.

DAR
No, some people's brains don't work well and their judgment should not be trusted on the matter of determing the supreme law of the land. This is why the constitution specifically requires a careful screening process to weed out the unqualified and foolish. If a person has not been nominated by the president and approved by the senate then they don't get to sit on the supreme court and decide how the Consititution is to be intrepreted. Others are certainly free to use their brains and give their opinion but no one should take their musings too seriously since it won't matter.

The problem with the trial was that the jury was undermined and emasculated.

Upon cross examination, it became clear to observers that the federal prosecutors were determined that no mention of "constitution", "2nd Amendment", "militia" or "liberty" were to reach the jury's ears. AFV had learned that the prosecution had submitted a motion to the court prior to the trial to ban any constitutional arguments.

Something tells me that you'd be taking the opposite position if the judgement had denied the right to abortion or own foreign-made electric vehicles.

DAR
Nope, you are quite wrong. Since these constitutional questions regarding the governments right to regulate arms were settled at the highest level almost 100 years ago, I see no need whatsoever to allow ancient constitutional arguments to muddy up the situation at this little local level on a rather straight forward matter:

a) Either it is illegal to own fully automatic weapons (without special permits) or it is not illegal.

b) It is illegal.

That's the only question the jury needed to consider.

If the supreme court had ruled 100 years ago that the government had the right to restrict ownership of foreign-made electric vehicles I would see no need for it to come up in a little local trial addressing a clear violation of law. I would work for changing the law.

D.

ps I think "the people" should be able to stock pile all of the single shot powder rifles they want BTW.

[Barbara Fitzpatrick]

I'm with Molly Ivins - not anti-gun, pro-knife. I'm not a very good runner, but I'd at least have half a chance to get away from somebody with a knife. As to gun ownership, I want licenses - just like drivers' licenses - as evidence that the person wishing to buy & theoretically use a gun knows the laws and has passed a practicum on using said gun. That "well-regulated" militia was a TRAINED militia.

[Hogeye]

We have juries so that people who are impartial can get involved in the proceedings.

Right. So when the judge forbids that jury to evaluate (or even hear) the constitutional issues involved, it undermines the whole idea of trial by jury.

The people ARE the government.

LOL! The statist version of "the Lord is my shepherd." I can't believe a freethinker would write something so braindead. Here's Murray Rothbard:

The State is almost universally considered an institution of social service. Some theorists venerate the State as the apotheosis of society; others regard it as an amiable, though often inefficient, organization for achieving social ends; but almost all regard it as a necessary means for achieving the goals of mankind, a means to be ranged against the "private sector" and often winning in this competition of resources. With the rise of democracy, the identification of the State with society has been redoubled, until it is common to hear sentiments expressed which violate virtually every tenet of reason and common sense such as, "we are the government." The useful collective term "we" has enabled an ideological camouflage to be thrown over the reality of political life. If "we are the government," then anything a government does to an individual is not only just and untyrannical but also "voluntary" on the part of the individual concerned. If the government has incurred a huge public debt which must be paid by taxing one group for the benefit of another, this reality of burden is obscured by saying that "we owe it to ourselves"; if the government conscripts a man, or throws him into jail for dissident opinion, then he is "doing it to himself" and, therefore, nothing untoward has occurred. Under this reasoning, any Jews murdered by the Nazi government were not murdered; instead, they must have "committed suicide," since they were the government (which was democratically chosen), and, therefore, anything the government did to them was voluntary on their part. One would not think it necessary to belabor this point, and yet the overwhelming bulk of the people hold this fallacy to a greater or lesser degree. - The Anatomy of the State

Both Doug and Darrel deny that juries - the people - should judge the Con. Only the govt itself should do that! And you wonder why tyranny prevails!

If a person has not been nominated by the president and approved by the senate then they don't get to sit on the supreme court and decide how the Consititution is to be intrepreted.

Very convenient for the rulers, to be able to choose the guys who interpret what power they get! As one would predict, their guys increase power over time. Why don't you want the other parties to the "contract" to have any say? Is it a valid contract when only one of the parties may interpret it?

Barbara, militias are irrelevant to a right of self-defense.

[Dardedar]

Both Doug and Darrel deny that juries - the people - should judge the Con.

DAR
The people have judged the constitution, through their representatives. This gun issue is well settled so no need to fart around with these tired redneck 2nd amendment arguments in this little podunk, slamdunk case regarding whether a fellow broke the law by owning fully automatic weapons (he did). Next!

D.

[Doug]

Both Doug and Darrel deny that juries - the people - should judge the Con. Only the govt itself should do that! And you wonder why tyranny prevails!

DOUG
It would be pretty idiotic to just get a dozen people off the street and ask them to decide Constitutional issues, I would say.

Of course, you would say, Hogeye, that people should just hunker down with their own firearms and hope for the best.

[Barbara Fitzpatrick]

Militias are very relevant to the "right to bear arms". Gun ownership does not equal self defense. Army sabers (even kitchen knives) work nicely. So do hammers and pepper spray. Self defense comes in many shapes and sizes, most of which are "weapons of opportunity" and don't depend on you having it loaded, out, and pointed at your assailent when he attacks.

[Hogeye]

The people have judged the constitution, through their representatives.

Yes, just as Americans have approved the mass murders in Iraq, and Jews approved their own slaughter under Hitler. LOL! As a freethinker, I believe people should judge and decide for themselves; the verdict of some self-proclaimed "representatives" does not override man's mind. You need to jettison your statist mysticism, Darrel.

It would be pretty idiotic to just get a dozen people off the street and ask them to decide Constitutional issues, I would say.

And yet trial by jury worked very well historically, and freed those arrested for aiding fugitive slaves and such. Jury nullification has a long and distinguished history. Cf: www.fija.org We know that the alternative, the govt stacking juries, works terribly, and in the US has resulted in the world's highest incarceration rate.

Gun ownership does not equal self defense.

Right - but gun ownership is an important part, just as newspaper publishing is an important part of free speech. Restricting gun ownership violates freedom just as restricting newspaper publishing does.

[Doug]

Militias are very relevant to the "right to bear arms". Gun ownership does not equal self defense. Army sabers (even kitchen knives) work nicely. So do hammers and pepper spray. Self defense comes in many shapes and sizes, most of which are "weapons of opportunity" and don't depend on you having it loaded, out, and pointed at your assailent when he attacks.

Hey, just get a large dog. The dog will love you too, unlike a gun, which will never love you.

And a dog can deter a burglar even when you are not home, unlike a gun.

And I don't recall a dog ever going off and killing the neighbor when being cleaned, unlike a gun.

A dog will warn you of approaching strangers, unlike a gun.

[Hogeye]

If you want to talk about practice rather than rights, then those are valid considerations. Just as, in practice, the internet may be more useful than broadcast media or newspapers. But if we're talking about rights, then of course it is bad to restrict TV and newspapers, or firearms. Freedom of communication or defense allows all non-aggressive practices. It's not freedom of communication if TV watchers could outlaw web users; it's not freedom of defense if dog-lovers could outlaw gun owners.

Of course, utilitarians are apt to deny the whole concept of rights. To such folks, their subjective take on "the common good" trumps such considerations as human rights.

[Dardedar]

...the verdict of some self-proclaimed "representatives" does not override man's mind.

DAR
Incorrect. They are not self-proclaimed representatives but rather the duly appointed representatives of the people. Regarding your "mind", think what you want, it matters not one bit, but if you are in possession of fully automatic weapons without the proper permits you are in violation of the law and may, and should, meet the same fate as Fincher. There are limits to freedom. The laws regarding the constitutionality of the governments ability to regulate gun ownership are well established and were considered "settled law" long before you were born. If you don't like this, write your member of congress.

D.

[Savonarola]

If I may be a bit frank: I see a lot of irony when the accusation that the people's say is being subjugated by elected/appointed/approved officials is coming from a person who chooses not to vote.

[LaWood]

"if a person has not been nominated by the president and approved by the senate then they don't get to sit on the supreme court and decide how the Consititution is to be intrepreted. Others are certainly free to use their brains and give their opinion but no one should take their musings too seriously since it won't matter." Dar-

The selection process gets pretty involved. First, a judicial candidate gets thoroughly investigated by the FBI. Then, at the President's discretion, the Bar Association does a review of the candidate's qualifications and history . After that nominees are moved on for consideration.

Hogeye I suspect you are confusing the likely position of a libertarian with that of a freethinker. There is a difference.

Hogeye does raise an important issue of constitutionality being removed from consideration in the proceedings. If allowed the case would get very complicated as a host of issues would need to be resolved. Some have been resolved. Judicial discretion has long been a practice and is neither denied or upheld nor is it defined in the Constitution. Perhaps Mr. Fincher's attorney will challenge such discretion. If he is even allowed to do so it will have far-reaching consequences. But some appeals are won on the basis of judicial discretion being wrongly used or applied.

As for freethinkers I should think they would first realize that when one person's right(s) is dimished so is yours.

Initially our Constitution did not provide for democratically elected Senators. Senators were to be chosen by each state legislature (U.S. Const. Art 1, sec II). Presidents chosen by the same method as today, the Electoral College. Hence correcting judicial matters or directions is not always done via the will of "the people." It is a very slow process since judges are appointed for life.

One of our history buffs will need to inform when and if a Federal judge has been removed from office. I can't remember one. Our constitution is pretty narrow on allowed reasons for removal.
_

[Dardedar]

Gun ownership does not equal self defense. Army sabers (even kitchen knives) work nicely. So do hammers and pepper spray.

DAR
Knives are regulated too. I am pretty sure switchblade knives are illegal. Probably lots of others too (Doug may know).
Also, I just learned you can have up to five dildos in Texas, but not six. Lots of things are regulated in this country, the puritans are careful to keep us protected.

[Doug]

Also, I just learned you can have up to five dildos in Texas, but not six.

DOUG
I believe when this was debated in Texas, one legislator proclaimed that "Five should be enough for any man! Or woman!" ; )

[Barbara Fitzpatrick]

Knives are regulated as far as carrying them around, not in your home. A friend of mine used to keep her father's army saber mounted on the wall for easy grabbing (but up higher than her kids could reach when they were too young to be taught what a weapon is). On the street, pepper spray works as well as a knife, without the blood (so messy - hard to get blood stains out of your clothes).

[Dardedar]

Knives are regulated as far as carrying them around, not in your home.

DAR
I thought I would check. In twenty states possession is outright illegal. In five other states they allow an exception if you are a collector. The remaining states are legal. So basically half yes, half no. For the state by state and regarding the right to carry, see:

Switchblade laws

D.