BALLOT ISSUE WOULD ALLOW DEFENDANT TO CHALLENGE MERIT OF LAW

Politics: The Ceaseless Argument Over Who Gets To Do What To Whom, For
How Long, And Against What Degree Of Dissent.

"There's no way to rule innocent men. The only power any government has is
the power to crack down on criminals. Well, when there aren't enough
criminals to go around, one makes them. One declares so many things to be a
crime that it becomes impossible to live without breaking laws." --Ayn Rand

The most important issue on any ballot anywhere will appear on the November,
2002, general election ballot in South Dakota. Referenced by the Secretary
of State as "Proposed Constitutional Amendment A", its proponents refer to
it as the "Common Sense Justice Amendment", and say it will "restore common
sense to the courtroom". I agree with them that it is a good start in that
direction.

Amendment A is opposed by the Unified Judicial System, the lobbying arm of
the judges and prosecutors in South Dakota. The South Dakota State Bar and
the South Dakota Trial Lawyers Association also oppose it, as do all the law
enforcement organizations in the state. Those fact may be enough in
themselves for most voters to decide that it's a good plan.

Here's what frightens them. Article VI, Section 7, of South Dakota's
constitution (Sec. 7 is the "Bill of Rights") currently reads like this:

"In all criminal prosecutions the accused shall have the right to defend in
person and by counsel; to demand the nature and the cause of the accusation
against him; to have a copy thereof; to meet the witnesses against him face
to face; to have compulsory process served for obtaining witnesses in his
behalf; and to a speedy and public trial by an impartial jury of the county
and district in which the offense is alleged to have been committed. "

The Common Sense Justice folks want to add fifteen words, so Sec. 7 will
read like this:

"In all criminal prosecutions the accused shall have the right to defend in
person and by counsel; to demand the nature and the cause of the accusation
against him; to have a copy thereof; to meet the witnesses against him face
to face; to have compulsory process served for obtaining witnesses in his
behalf; to a speedy and public trial by an impartial jury of the county and
district in which the offense is alleged to have been committed; and to
argue the merits, validity, and applicability of the law, including the
sentencing laws."

Amendment A's proponents obtained the signatures of 33,000 South Dakota
voters -- a number equivalent to one-tenth of those who voted in the 2000
election -- to put "A" on the ballot. They did so by posing the questions:
"Would you like to help improve the criminal justice system in South
Dakota?" "Do you think there are too many laws in South Dakota?" "How do we
get rid of bad laws?"

Descending into fits of absurdity, paid lobbyists for the Unified Judicial
System, SD Trial Lawyers, and the SD Bar, said, "If this amendment passes,
defendants will argue just about anything in the world, like, 'Don't convict
me, I'm Norwegian.', or 'Irish people have a god-given right to drive
drunk.'" (Tom Barnett, Attorney General Mark Barnett's brother)

Robby Freiberg, paid lobbyist for SD Trial Lawyers Assn., weighed in with,
"If this passes, no minority defendant will ever again get a fair trial in
South Dakota." Attorney General Barnett and Mike Buenger (paid lobbyist for
the Unified Judicial System) echoed Freiberg. They had the bald-facedness to
say this in a state with a seven per cent Indian population, but which has a
45 per cent Indian prisoner representation.

While running for office, Pennington County Prosecutor Glenn Brenner told
me, "There are thousands and thousands and thousands of laws in South
Dakota. Many of them are bad laws. Nobody can be aware of them all.
Certainly no one can understand them all." He has since denied saying it,
even calling and threatening to sue if I continued quoting him. When I
asked, "With which of those statement do you now disagree?", he hung up on
me.

Why do those fifteen words frighten the lawmakers, the enforcers, and their
lackeys so much? Simply this: If common people, the ones who get called to
juries and asked to judge their fellow common people in courtrooms, are
given information about the merits, validity and applicability of the law
itself, or about the horrible punishments which will be meted out to those
they convict, then there are whole classes of laws prosecutors will begin
have trouble obtaining convictions on.

Crimes which create victims will not be among them.

Say a guy holds up a MiniMart, kidnaps and rapes a clerk, and defends
himself in court by saying, "I come from a long line of robber/rapists. We
attain spiritual enlightenment by causing other people harm." Will a jury
acquit based on Tom Barnett's reasoning that juries will be swayed by the
"I'm Irish/Norwegian" argument? Seems unlikely.

On the other hand, say someone gets stopped at a "safety check" within 1000
feet of a school (cops often set up such blockades at such places
intentionally), and during the search of the interior of the vehicle for
"safety violations", 2.1 ounces of cannabis are found, separated into four
half-ounce bags. Say they also find a perfectly legal firearm in the
vehicle, too. The charges will be felony possession and felony intent to
distribute, with doubled penalties because of the 1000-foot rule. Included
will be a charge for possession of a firearm while in commission of a
felony.

Somebody innocent of any intent to do harm, and who has committed no harm,
is suddenly looking at upwards of ten years in prison and tens of thousands
of dollars in fines, along with forfeiture of his vehicle. In this
situation, most folks will cut a plea bargain with the prosecutor, which may
range (depending on how much juice the accused has in the community, and how
good a lawyer he can afford) from dropping of all but a misdemeanor
possession charge ($300 fine or so) to pleading guilty to everything in
return for probation or a reduced sentence.

Under current courtroom procedure, most judges will not allow the accused to
enter evidence either that he uses marijuana for a medical condition or that
marijuana is a rather benign substance, which poses no threat to the general
welfare. Most judges will not allow an accused to argue that the 1000-foot
rule is being invoked arbitrarily based on the placement of the stop. No
judge will allow an accused to tell the jury that he faces ten years and a
$20,000 fine. Attempting to argue any of these points to a jury risks a
contempt citation and summary punishment (jail) for contempt.

The judge will tell the jury that the law is the law, and if the jury finds
that the material facts alleged by the prosecution are indeed facts, then
the jury must convict. The jury may not take into account its possible
independent knowledge of possible punishment, nor may it consider the fact
that the accused committed no conceivable harm, nor did he create a victim.
Most jurors, having already been picked for their lack of knowledge of
history, current events, or the law, and wanting to be good citizens, will
not question the judge's assertions. Trial by government has just been
conducted again, thinly disguised as trial by jury.

In most prosecutions, the facts are fairly-well established by the evidence
and circumstances of the arrest. This has nearly always been so. However,
trial by jury was instituted by the Magna Charta not to ensure reasonable
convictions of guilty people by their peers, but to ensure that the laws
under which people were prosecuted were reasonable and just.

The seminal case which seated this premise in law was that of William Penn,
charged in London in 1670 with "preaching an illegal religion" (Quakerism).
Penn admitted preaching Quakerism, but argued that a law barring same was
unconscionable. The jury agreed, even suffering two weeks of imprisonment
without food in order to maintain its principled stance. A superior court
finally freed them, saying that a jury's decision was sacred.

The lackeys of all authoritarians have since done whatever they can to
subvert simple moral and legal truths. The erosion of the jury's
responsibility to judge not only the facts of a case, but the law itself,
has led us to the current reality that people are sent to prison by the
trainloads for acts which no reasonable person could call a crime, because
those acts create no victims.

The proponents of Amendment A suggest that the criminal justice system can
be improved by its adherence to a fundamental moral right -- the right to
argue the merits, validity and applicability of the law itself, including
the reasonableness of any proposed punishment for its violation. I concur.
History supports us.

"The jury has an unreviewable and irreversible power to acquit in disregard
of the instructions on the law given by the trial judge. The pages of
history shine upon instances of the jury's exercise of its prerogative to
disregard instructions of the judge; for example, acquittals under the
Fugitive Slave Law." -- U.S. v. Dougherty, 473 F.2d 1113,1130

See more about Proposed Constitutional Amendment A at
http://www.justiceunlimited.org/.

Bob Newland's journey is published at http://www.nakedgov.com/.