Burns Chronicles No 54
To Jury, or, Not To Jury
by Gary Hunt
Though I have posted the Preamble to the Bill of Rights a number of times, people still ask if there really is a Preamble to the Bill of Rights. A preamble sets forth the purpose of the document, as the Preamble to the Constitution sets forth its purpose. It is not a part of the document, rather an explanation as to why the document was created. When Congress approved, and sent the Bill of Rights to the States, as required by Article V of the Constitution, the first paragraph explained why the Joint Resolution was passed. It states, “declaratory and restrictive clauses should be added” for the purpose of “extending the ground of public confidence in the Government.” To wit:
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
So, now, we must determine if, in fact, it has extended “the ground of public confidence in the Government“, in light of the current situation. Our query must be directed to the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.
We must also look to the Seventh Amendment:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
So, between these two Amendments, we find that every judicial concept in the Constitution, with the exception of the House and Senate’s disciplinary procedures regarding their own members, requires a jury to make the determination of guilt or innocence.
The matter at hand is the additional charges brought against the lower level defendants in the occupation of the Malheur National Wildlife Refuge. Since the government did not get a conviction of the leaders of said occupation, they have stooped to a new low, perhaps just being poor losers. They have brought a Misdemeanor Information, for Trespass and other crimes, against the second group of defendants. These charges were not a part of the Superseding Indictment.
Now, with regard to “public confidence“, we need to look no further than what Judge Anna Brown has provided for in her “Order Following January 20, 2017, Status Hearing“. The pertinent text is as follows:
TRIAL BY JURY ON MISDEMEANOR COUNTS
The Court concludes each of the misdemeanor counts in the Misdemeanor Information (#1628) are Class B misdemeanors and, therefore, are petty offenses on which Defendants do not have a right to a trial by jury as to those counts. Pending further order, the Court will conduct the trial on the Class B misdemeanor counts at the same time as the trial on the felony counts in the Superseding Indictment (#282), that is set to begin February 14, 2017.
The Court, nonetheless, will consider the parties arguments regarding whether the Court has the authority to provide Defendants with a jury trial on those counts and, if so, whether it should do so. Accordingly, the Court directs the parties to file no later than Noon, January 25, 2017, a single, joint status report that sets out (1) the parties’ arguments as to the Court’s authority to provide Defendants with a trial by jury on Class B misdemeanor counts; (2) if so, parties’ arguments regarding whether the Court should exercise its discretion to provide Defendants with a trial by jury on the Class B misdemeanor counts; and (3) the parties’ recommendations as to trial procedure in the event that the Court determines it will conduct a bench trial as to the Class B misdemeanor counts.
From past history, all that Judge Brown is looking for is the Prosecution to come up with some words that she can include in here Order to “proclaim” that the Constitution is null and void, and that the criminal charges of trespass are not really criminal, and that those who Framed the Constitution didn’t really mean “criminal” when they said “criminal prosecutions“.
Is it at all possible that she honestly believes that the misdemeanor charges are, somehow, civil? That strains credulity, at best. But, if the charges are civil, then the defendants still have a right to a jury.
Since the Judge seems to think that it is not “criminal”, since they are Class B Misdemeanors, let’s see what the Prosecutor thinks. At the end of “Misdemeanor Information” (linked above), we find:
Upon conviction of the offenses set forth in Counts 1 through 7 of this Information, defendants JASON PATRICK, DUANE LEO EHMER, DYLAN ANDERSON, SEAN ANDERSON, SANDRA LYNN ANDERSON, DARRYL WILLIAM THORN, and JAKE RYAN shall forfeit to the United States pursuant to Title 18, United States Code, Section 924(d) and Title 28, United States Code, Section 2461(c) any firearms and ammunition involved in or used in the willful commission of the offense.
All pursuant to Title 18, United States Code, Section 924( d) as incorporated by Title 28, United States Code, Section 2461 ( c ).
The U. S. Code is broken into “Titles”. You will note that they want firearms to be “forfeit to the United States pursuant to Title 18, United States Code“. It continues on to say, “All pursuant to Title 18, United States Code, Section 924(d)“. Well, heck, according to the law books, Title 18 is titled “Crimes and Criminal Procedures“. So, they are going to make them forfeit any firearms, by using Criminal Statutes, but the crime that they did not commit is not criminal. Darn, that is enough to boggle the mind.
NOTE: Even before I got this far in writing this article, I had visions of Alice in Wonderland. And, yes, it did include the Queen of Hearts, acting as Judge Brown, and saying “Off with their heads.”!
Now, the Information does cite the “Code of Federal Regulations” (C.F.R.) as the authority, or, well, the “law” that has been violated. But, the C.F.R. is often only of rules promulgated by administrative agencies, and not laws. Congress enabled rule-making, though they have no constitutional authority to delegate that authority, as the Constitution describes them as holding, “All legislative Powers“. However, they have also created a Fourth Branch of Government, which is explained in greater detail, in “Administrative Agencies – The Fourth Branch of Government“. Perhaps, since they are rules promulgated by administrative agencies, they really are not criminal. However, if that were the case, we can clearly see that the government that was created by the Constitution no longer abides by the Constitution.
This warrants a final thought, from a North Carolina Supreme Court decision, given prior to the culmination of the Constitutional Convention:
“But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”
Bayard v. Singleton [1 N.C. 42] 1787