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Three Cheers for Trial by Jury


Amid the national debate over whether George Zimmerman should have been acquitted in the murder of Trayvon Martin, we should keep in mind one critically important aspect to the case: the fact that a jury of ordinary citizens made the decision and the fact that their decision was final.

Since the right of trial by jury is so engrained in American life, it’s easy to take it for granted. That would be a mistake.

While the Zimmerman trial was at the state level, the right of trial by jury is guaranteed in federal criminal prosecutions by the Sixth Amendment to the U.S. Constitution.

Why would our American ancestors have insisted on the passage of an express guarantee of jury trials in federal criminal cases?

The reason is this: They were convinced that in the absence of such an express provision, U.S. officials would deny people the right of trial by jury in federal criminal prosecutions. Our ancestors believed that in order to more easily convict and punish people, federal officials would inevitably rely on judges and tribunals to adjudge whether people were guilty or not.

Our ancestors were right. Look at the federal government’s so-called judicial system that it set up in Cuba after the 9/11 attacks. The Pentagon had carte blanche to do whatever it wanted. In fact, in the early days of Gitmo, the Pentagon took the position that this was going to be a Constitution-free zone, one that would be totally independent of the Constitution and federal-court jurisdiction.

So, what type of “judicial” system did the military set up in Cuba when it considered itself totally independent of the Constitution and the federal courts? Did it model its system on the principles enunciated in the Bill of Rights?

On the contrary, it did the exact opposite. It did what our American ancestors were convinced that federal officials would do in the absence of a Bill of Rights.

The feds didn’t set up a system based on trial by jury in Cuba. They set up a military-tribunal system, one quite similar, in fact, to the one used in terrorism cases by Fidel Castro on his side of Cuba. The Pentagon’s military-tribunal system was designed to easily secure convictions and also to keep much of the proceedings secret from the public (contrary to another provision in the Sixth Amendment requiring that federal criminal trials be open to the public).

The federal “judicial” system established at Gitmo is a testament to the wisdom and foresight of our ancestors. If it hadn’t been for them and for the Bill of Rights they insisted upon, there is no doubt that America’s judicial system today would be based on the same “judicial” principles found at Guantanamo Bay, Cuba.

In the absence of the Bill of Rights, there would be no jury trials in America today in federal criminal cases. The guilt or innocence of people charged with federal crimes would be determined by judges or tribunals, just as it is in Havana and Guantanamo Bay, China, Russia, and most other places around the world.

Once the jury returned its verdict of acquittal in the Zimmerman case, that meant that Zimmerman was able to immediately walk out of that courtroom a free man. Under our system of justice, the verdict of a jury is final. There is nothing that the judge in the Zimmerman case could have done about it. He couldn’t overturn the jury’s verdict of acquittal. He couldn’t order the jury to return to deliberate and to come up with a different verdict. Once the jury returned with its verdict of acquittal, the judge was powerless to do anything but accept the jury’s verdict and free George Zimmerman.

Unfortunately, that principle, however, is no longer applicable to federal cases involving terrorism. The Pentagon says that it now wields omnipotent power over the federal court system in terrorism cases. That is, even though a federal court jury acquits a person of the federal crime of terrorism, the person might not be able to walk out of the courtroom in freedom. It now all depends on the military. If the Pentagon demands to take the person into custody as a “terrorist,” federal judges are expected to defer to the Pentagon’s authority, notwithstanding that a jury has just acquitted the defendant of terrorism charges.

How did the military gain this supremacy over the federal judiciary in terrorism cases? Well, one thing is for sure: It wasn’t done through a constitutional amendment. Instead it was done by decree after 9/11. The Pentagon simply announced that this was to be the new policy for the United States, and the federal courts meekly submitted and deferred to the omnipotent power of the military in American life.

Fortunately, so far the military’s nullification of the Sixth Amendment has only been partial, with its application limited to federal criminal cases involving terrorism. It has not yet extended its nullification power to the war on drugs and other federal crimes. But who knows what the future holds? Once principles are abandoned, it is difficult to predict how far the abandonment will go.

As Americans debate the jury verdict in the George Zimmerman case, they would be wise to reflect deeply only on the principles underlying the Bill of Rights and, equally important, on why our American ancestors insisted on enacting it. Otherwise, our nation will continue going down the same road to tyranny that other nations have traveled.


This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.