A NOVEL CONCEPT
So Practical That It Will Likely Never Happen
June 28, 1999
I content would like to beg your indulgence for a few minutes, while I explain a novel concept for our courts. I present it, not so much because it might ever become law, but rather, because I hope to stimulate your thoughts in a new direction. It is a concept so practical, logical and legal that lawyers, our lawmakers (mostly lawyers) and judges (mostly lawyers, too) will likely make certain that it will never happen. However, if nothing else, by the time you finish reading this, you may have a significantly different view of our courts.
What I am about to propose here may sound absurd when you first read it. However, if you will hear me out, you may find yourself scratching your head and wondering if it just might work. The few people to whom I presented it, before writing this article, have all come back to me and asked me to go over parts of it again. That tells me that it is not totally absurd, anyway. It is an idea that has been percolating in my head for several years now and I think that I have finally worked most of the bugs out of it. If you think that it is a great idea, tell your friends and send them to this web site and let me know. Likewise, if you think that it is crazy, I would like to hear your criticisms, as well. It's all about thinking.
Again, I think that I have covered all of the points that you might take issue with, but some of those points are not covered until near the end of this thesis. So, please read all the way through before you pass judgment. The following is what I refer to as:
The Case For Civilian Judges
by John W. Gaver
"Ignorance of The Law is No Excuse."
How many times have we heard that statement? If you make an honest mistake in your business and violate some obscure law that only some high priced lawyer can understand, that's what the prosecutor will tell the court when you're tried. "Ignorance of the law is no excuse." Regardless of how complicated the lawyers writing the laws have made those laws, we are expected to know and understand them. But to make natters worse, during some court cases, both sides bring in several consulting lawyers, who specialize in some particular aspect of the law, which tells us that even average lawyers don't understand all the aspects of the laws in the case. So the question then becomes:
If the average lawyer can't understand the laws, why then are we ordinary people expected to understand and obey laws that most lawyers don't adequately understand?
The answer to that question is simple. The laws are written by lawyers - lawyers who, I should point out, may have to go back to being lawyers again if they lose the next election. Therefore, they write the laws in such a way as to make certain that there will be plenty of work for lawyers. Lawyers will take a law that can be expressed, in its entirety, in one sentence, by most ordinary citizens and turn it into a multi-volume tome, filled with incomprehensible legal jargon. That insures lots of work for lawyers. But, if the law might affect the lawyers, you can add another volume, just for the loopholes.
Yet, I cannot fault the lawyers. They are protecting their own interests, just the same as most people would. By making laws overly complicated, the lawyer lawmakers also insure that only lawyers can find the loopholes that the lawyers themselves use at will. So, not only are they insuring work for lawyers, but they are insuring that they have loopholes that are so difficult to find that only other lawyers can find them. If the laws were written in plain English and kept short and to the point, there would be no place to hide the loopholes and we would not need as many lawyers, since more people would understand the law, which would result in fewer people breaking the laws they didn't understand.
A conflict of interests
If you have any doubt that the lawyer lawmakers are intentionally doing this, I ask you to look all throughout the laws of the land. The law is riddled with clauses that will prevent persons from participating in certain actions if there is a "Conflict of Interests." Yet the greatest Conflict of Interests goes unchecked. THE LAWYERS MAKE THE LAWS! To use an old saying, "That is like asking the fox to guard the henhouse."
The lawyers have an inherent Conflict of Interests. Maybe some of them might have a little Don Quixote in them and put the interests of the country first. But it's basic human nature to make certain that all of your bases are covered, any time that you might be affected. And most people (lawyers included) will succumb to human nature. Personally, I would not like to be placed in such a position. Although I believe that I would be one of the few who would put the country first, I realize that the temptation to fudge a little bit in my own favor would be tremendous. For the same reasons, we cannot expect these lawyer lawmakers who have put us in this position to just graciously give up all that power.
Is there an answer?
Yes. There is an answer. But it requires a basic change in mindset. (This is where it gets tricky, so bear with me.) We have been indoctrinated since our youth to believe that only lawyers understand enough about the law to write laws. Even most non-lawyer lawmakers have lawyers on their staff to help them structure the bills that they author. They too, have been sold a bill of goods. Remember,
"Ignorance of the Law is No Excuse."
Common sense tells us that if it requires a lawyer to write a law, it will require a lawyer to understand that law. Yet ordinary people like you and I are expected to understand and obey laws that only lawyers can understand. That's just WRONG!
I would like to have someone explain to me why it should require a lawyer to write a law that is meant to apply to and be understood by normal citizens. Common sense tells us that, if indeed "Ignorance Of The Law Is No Excuse", then any law that cannot be understood, in its entirety, by all of the people that it applies to (mentally handicapped persons excepted), is neither a good, nor fair law.
To accept that such a law is good or fair is to accept that "Ignorance of the law IS an excuse." That too, would be wrong. Then all criminals would feign ignorance of the law in order to get off. Therein lies the reason that ignorance of the law CANNOT be allowed to be an excuse. It follows then, that if lawyers have a vested interest in making the laws overly complicated and ordinary citizens are expected to know and understand the law, then
Lawyers should NOT be writing Laws.
This is where many people take issue with me. They've been sold a bill of goods by the legal profession. They tell me that law itself is complicated and that the reason that lawyers must write the laws is so they can make certain that the law cannot be misapplied to an innocent person.
It is NOT the job of the lawmakers to make certain that the law is not misapplied.
That is the job of the court.
It is the exclusive purview of the judge and jury to insure that the law is not misapplied. In most venues, a judge may, if he believes that a case has no merit, throw the case out. But there is another even greater safeguard. Our legal system is based in English Common Law. As such, a jury of one's peers must decide, not only if the law was broken by the defendant, but also, if the law should even apply in this case.
That's not what the lawyers would have you believe.
To demonstrate just how out of control our legal system has become with lawyers writing the laws, I ask you to consider the following. If you have ever set on a jury, you are familiar with the process of voir dire. I ask you to think back. During voir dire, did the Judge or one of the lawyers ask if there was anyone present who believed that there might be some remote circumstance where the law in question might not apply? That question was asked for the sole purpose of weeding out anyone who might think that the law could be wrong in some case. Eliminating prospective jurors on those grounds is illegal, as I will show in the next few paragraphs.
But, it gets even worse. Once you were seated as a juror, and the case was concluded, you were directed, by the judge (who is usually a lawyer himself), before the jury deliberates, how you MUST rule. That directive usually includes some statement like, "If you find that the defendant committed (thus and so) act, you MUST find the defendant guilty, as charged." That directive is not exactly correct.
That directive would have the jury believe that the law is inflexible and further, that it is the exclusive purview of the judge to determine if the law should apply in this case. That could not be further from the truth. In our legal system, the jury has, not only the right, but the obligation to nullify a law if they believe that the law is being misapplied or has no Constitutional merit. When have you heard a lawyer tell you that? I mention Jury Nullification only to prove my point and, for that purpose, include a short primer on the subject.
Jury Nullification is one of the basic principals of our legal system.
Jury nullification dates back to 1670 England and was very predominant in early US history, yet lawyer lawmakers now try to hide it. (Again, this is not my major point. I explain it here, only as proof positive of how the lawyers have twisted the law to their own favor.) Consider these statements by some of our greatest Founding Fathers:
- John Jay, first Chief Justice of the US Supreme Court - Georgia v. Brailsford, 1794:
"The jury has a right to judge both the law as well as the fact in controversy."
- America's second President, John Adams, 1771:
"It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
- President Thomas Jefferson to Thomas Paine, 1789:
"I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."
These are men who helped write the Constitution of the United States of America. Thomas Jefferson clearly indicates that the jury was intended as a safety valve, "by which a government can be held to the principles of its constitution." John Jay leaves no doubt that the jury was meant to have the ultimate power to judge "both the law as well as the fact in controversy." And John Adams makes it clear that the jury's duty to vote their conscience is paramount, even if it is "in direct opposition to the direction of the court."
So, how did this change come about? It all stems from an 1895 decision by the Supreme Court that held that failure of the judge to remind the jurors of their powers to judge the law was not a basis for mistrial or appeal. That was the green light for trial judges (mostly lawyers) to go mum on the topic, and they did. And, when confronted with it, they babble some nonsense about anarchy in the court room.
What it all translates to is that they realize that it means a loss of control for the lawyers and judges and that scares them. If you don't believe me, the next time you find yourself on a jury panel, just ask the judge, during voir dire, what "jury nullification" means. I can almost guarantee you three things: 1) both prosecution and defense lawyers, as well as the judge, will go ballistic, 2) you will not get an answer and 3) you will be disqualified as a juror. I am personally aware of an entire panel of 36 prospective jurors being dismissed because one panelist asked, in front of the whole panel, what jury nullification was.
But, I digress. If you want to find out more about jury nullification, please visit the Fully Informed Jury Association (FIJA) web site at http://nowscape.com/fija/fija_us.htm. I only bring up jury nullification to point out that it is lawyers, afraid of losing power, who are doing everything they can to hide the fact that, it is the jury, not the lawmakers, who must determine if the law is valid and not being misapplied.
So, what is the Answer?
We need Qualified Non-Lawyers on the Bench.
Now, this is where I really need your patience. I know that I am bucking the system here. But, it really does make sense, if you will follow my logic for a few minutes more.
Since it's not practical to ask lawmakers to, in effect, vote themselves out of office, the ideal solution, though still difficult to achieve, would be what I refer to as Civilian Judge legislation. Such legislation would prohibit any person with a law degree, more than one year of college law or more than two years of college business law, from serving as a judge or in any other position that serves the same function.
Those lawyer judges holding seats at the time of the legislation would be exempted for as long as they are incumbents for that seat only. This would allow incumbent lawyer judges to continue to hold office as long as they can get reelected or their appointments continue. This provision would make the change to Citizen Judges gradual, since some incumbents could remain on the bench for more than 20 years. And, the Supreme Court would change even slower. Yes. The Supreme Court would have to change too. In fact, it would be the most important of all, if you think about it.
Some of the new Citizen Judges would throw out a case now and then because the law is incomprehensible. But, since the change to Citizen Judges would be slow, it would allow ample time for lawmakers to realize that many laws are too complicated and will have to be rewritten. Although this does not achieve the greater goal of preventing lawyers from writing the laws, it does, however, require them to write easy to understand laws.
Now, to Debunk the Opposing Arguments
Let's take the biggest argument first. The lawyers will argue that judges need to be lawyers in order to know how to rule on points of law. That is NOT true. Now this is a very important point to remember about judges. To emphasize it even more, I put a box around it. If you remember nothing else from this thesis,
>>> REMEMBER THIS! <<<
It is the responsibility of the judge to rule on points of law, based upon the arguments presented by the lawyers for the plaintiff and the defense (whose responsibility it is, to enlighten the court on those points of law) and the written law that those arguments refer to.
It is NOT the responsibility of judges to KNOW the law, only to INTERPRET the points of law that are presented to the court, by the opposing attorneys.
It is the exclusive responsibility of the lawyers in each case to present to the court, including the judge, not only the evidence, but the pertinent laws and arguments, explaining why those laws should or should not apply. Then, if an educated and informed Civilian Judge cannot understand a law as it is presented by the lawyers, he will likely throw the case out of court, as having no merit, since it would not be reasonable to expect that the defendant could understand the law either.
Now that could present problems if it isn't handled right. But, remember what I said in the beginning. I've been working on this concept for a long time and I feel certain that I have a solution. So, please read on.
The next argument that I hear is that Civilian Judges will start throwing out murder and rape cases because the law is too complicated. This will NOT happen. To begin with, the significant portions of the laws for murder, rape and other violent crimes are written fairly straight forward and not likely to be misunderstood. Furthermore, I cannot imagine any Civilian Judge throwing out a murder case because the law for murder was unclear. Over time we may see some of those laws rewritten, just to be on the safe side. In fact, if anything, there will probably be fewer problems in that area than there are now.
There are still those who say that there will still be a few important cases thrown out before the laws can be changed. This is probably true. But, that's already happening in our present court system. In fact, with lawyer judges in charge, more than just a few important cases are currently being thrown out on technicalities. It happens so often that cases being thrown out on technicalities are seldom even considered news any more. And those technicalities are the result of overly complicated laws. It follows that if you take the lawyers out of the equation, there will be far fewer important cases thrown out for any reason. Think about it.
Then there are those who say that it will take too much time to change 200 years of laws.
To begin with, most of the laws that will need to be changed have been written in the last 25 to 30 years. Also, the laws that will need to be rewritten are extremely complicated and took months to work all of the loopholes into. The new versions would have to be short and to the point, leaving no room for loopholes. As such, it would only take a few minutes to write the new simplified law and a few hours to debate and vote on the law.
Furthermore, many of the laws written years ago are now obsolete and have just not been removed from the books. When it becomes necessary to start making changes to the laws, the most critical laws will be able to be rewritten in a matter of weeks (long before it becomes a problem). Remember, the growing number of Civilian Judges would force the lawmakers, over a period of time, to pass simplified laws. The beauty of grandfathering currently seated lawyer judges is that our lawmakers will have the time to make the necessary changes.
My favorite opposing argument, usually presented by lawyers, is that Civilian Judges will not understand what evidence should be admitted into evidence (and what evidence withheld from the jury). To that, I say, "HOORAY!"
This is another area where the lawyers have twisted the law to their own favor. They believe that only lawyer judges are capable of determining if evidence is relevant. What unmitigated arrogance! What utter conceit! This, alone, should show everyone the level of contempt that the lawyers have for the law and the people who make up the jury.
Our founding fathers intended the jury to be a safety valve, to prevent the government from getting out of control. But, now we see that the lawyers have short circuited the jury. In fact, to insure their complete power, they hide from the jury the fact that the jury can nullify the law as it applies to the case in question. By controlling what the jury is allowed to see and hear and by telling the jury how they must vote, they have quite effectively usurped the power of the jury. So, it turns out that this opposing argument is really another argument in favor of Civilian Judges.
Before completing this section, I would like to present one of my favorite arguments in favor of Civilian Judges. The complete IRS code that currently would fill one and a half semi trailers, would have to be rewritten in simple terms. Think about that…
Thank you for your patience. That covers most of the significant arguments. I won't go into detail on the many lesser arguments here, since this has already run longer than planned and you now have the logical ammunition to reason out the rest, anyway. As I said in the beginning, "It's all about stimulating you to think beyond the spin." The question now becomes,
Can this concept be implemented?
The chances that the Civilian Judge concept can be implemented are remote at best. It would require us to, effectively, flank the lawmakers at the ballot box.
Furthermore, since it would be impractical to assume that the lawyer lawmakers will ever pass legislation that would prevent lawyers from ever enacting legislation again, we cannot attack the problem directly at its roots - the Congress and state legislatures. We must therefore attack the problem where it becomes visible - in the court room. There are many people who are qualified to sit on a court bench as a judge, who have NO JURISPRUDENCE BACKGROUND. But, because of that lack of experience in the law, and the misconceptions discussed about above, they are seldom elected or appointed to positions on the bench. This is something that we CAN change.
We need Qualified Non-Lawyers to run for Court Seats!
We need YOU to VOTE for Them!
Most voters do not realize that some of the most important votes they cast are for Judge and Justice of the Peace positions. A few people cannot easily affect a Congressional race, but a few people CAN significantly affect races for positions on the bench, since so few people pay attention to them.
Let's just assume that within the next year there are only 1000 new Civilian Judges elected or appointed and that the number of Civilian Judges doubles each year (1000, 2000,4000). That's a very slow start on a national scale. In the beginning, only a small percentage of those Civilian Judges will have the courage to throw out cases on the basis of incomprehensible laws and those will likely not be serious cases. But, those few cases will alert the lawyer lawmakers to the fact that their incomprehensible laws will not stand up much longer. As more Civilian Judges are seated, this need to restructure the laws will increase. Eventually, this will result in drastically changed laws, in favor of the people.
Can this proposal succeed?... Yes.
Will it succeed?... It's up to us.
The problem is that we are fighting a well entrenched and well organized establishment of lawyers who will throw up every legal (and as we have seen, illegal) road block they can, to stop this. In Texas, for example, the lawyer lawmakers passed a law stating that in order to be a judge in Texas, you must be a member of the state Bar Association (which is a sly way of saying that a judge must be a lawyer). If we are lucky enough to get established before they take notice, all of these changes will begin to make the national media and we will be able to use that news to gather converts and push for legislation and/or an amendment prohibiting lawyers from serving as lawmakers. Obviously, for continuity, such legislation would have to exempt incumbents.
If we don't do something, nothing will change.
By that I mean that the changes that brought us to this point will continue. We may wake up one morning to find that the courts have determined that our Constitutional Right to vote for the candidate of our choice really meant the lawyer of our choice... Ok... So that is a little far out. But the point is that it's headed that direction and if we don't take this threat seriously, things will only continue to get worse. The lawyer lawmakers and the lawyer judges have already twisted the law far from its original intent. So, now it's time for you to decide.
YOU be the JUDGE!
(Hey! That's a pretty good idea!)
The lawyers already tell us that we, as members of the jury, are not capable of judging a case on ALL of the FACTS, so a judge must filter what facts we are allowed to see and hear. The lawyers hide from the jury the fact that the jury has the right and, indeed, the obligation to nullify the law as it applies to the case in question, if they believe that it is being misapplied or has no merit. The lawyers try their best to eliminate from the jury any person who might vote contrary to the written law, as is the jury's right. And the lawyer judges blatantly instruct the jury that they must vote a certain way, regardless of their conscience. The lawyers have completely usurped the power of our Constitutional safety valve, THE JURY.
How far do you think the lawyers will go?
It's up to us. There are several things that we, as ordinary citizens, can do. If, after reading this thesis, you believe that it has some merit,
- Tell your friends about the Civilian Judge alternative and give them this URL
- If you have a web page, place a link to this page on yours.
- The next time you have the opportunity to vote for a judge, look at the candidate's background. Then, if one of them is not a lawyer, but is otherwise qualified, by whatever your own definition may be, he/she is the one that you should vote for.
- Get out and support that candidate. One person can make a significant difference in races for judge or Justice of the Peace.
- Whenever possible, vote for qualified non-lawyer congressional candidates. That may be more difficult, since most congressmen have no primary challengers (lawyers or otherwise). But you should consider that option, when available.
- Watch for state or federal legislation that pertains to court procedures of any kind and get involved.
- Find out more about the Fully Informed Jury Association (FIJA) by visiting their web site at http://nowscape.com/fija/fija_us.htm.
- If you have any ideas on improving this concept or moving it forward, please use our Feedback Form to let us know your ideas.
- Discuss this concept on our BLOG.
It's not too late.
It's critical that we succeed.
WE are the Ultimate Jury!
WE are the VOTERS!
WE can take back our courts!
Thank you for your patience. Regardless of your conclusions, I hope that I have at least stimulated your mind.
- John W. Gaver
Copyright 1999 John Gaver
All rights reserved
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