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June 2001Edition 22

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America's Judicial System - Born out of Oppression

It was, of course, the East India Company's forcing of cheap, government-subsidized tea on the colonists that prompted the Boston Tea Party, a prelude to the American Revolution. Early in our history, our Founding Fathers rejected the corporate form as another of the king's tools for enslavement, casting it out with the remaining trappings of tyranny in favor of the simple rights of man.

The English King, as a constituent part of the supreme legislative power, once had the absolute prerogative of rejecting any measure passed by the two Houses of Parliament; the royal assent was an integral and indispensable part of the legislative process, which, in theory at least, could not be overcome by any further legislative action by the two Houses of Parliament other than that of reaching an accommodation with the King. I Blackstone, Commentaries on the Laws of England, ch. II, p. 177; ch. VII, p. 253 (1765). Although this practice had effectively been abandoned in England long before the close of the American colonial period, absolute executive vetoes were still exercised by some royal governors within the American colonies. See Commonwealth ex rel. Attorney General v. Barnett, 199 Pa. 161, 48 A. 976 (1901). This use of the absolute executive veto created such discontent among the colonists that the absolute executive veto was listed first among the enumerated grievances in the Declaration of Independence: "He has refused his assent to laws the most wholesome and necessary for the public good."

Thus was born the United States Constitution and the Bill of Rights.

Juries Find Their Central Role in Courts Fading

By WILLIAM GLABERSON

The role of the American jury, the central vehicle for citizen participation in the legal system, is being sharply limited by new laws, court rulings and a legal culture that is moving away from trials as a method of resolving disputes.

At the heart of the trend, some experts say, are fundamental questions about whether jurors who return huge awards and sometimes clear people who seem to be guilty are up to the task that has been assigned to them for centuries.

"We as a society have to decide: Do we want to have our justice system essentially run by experts -- lawyers and judges -- or do we want to retain a role for the jury?" said Valerie P. Hans, an expert on juries who is a professor at the University of Delaware.

Increased plea bargaining, tort-reform laws limiting jury awards, and Supreme Court rulings giving judges new power to screen the evidence presented to jurors are among many forces marginalizing the role of the jury, some lawyers and judges argue.

Court statistics show, for example, that jury trials are a rapidly shrinking part of federal court caseloads , with only 4.3 percent of federal criminal charges now ending in jury verdicts, down from 10.4 percent in 1988. The number of federal civil cases resolved by juries has also dropped, to 1.5 percent from 5.4 percent in 1962.

And those awards that civil juries do make are being overturned with greater frequency. Federal appeals courts are reversing certain types of civil jury awards twice as often as they did a few years ago.

Meanwhile, the explosive growth of private arbitration as an alternative to the courts for consumer, workplace and business disputes is channeling tens of thousands of cases away from jury trials annually.

This trend is likely to continue. Because George W. Bush made what proponents call "reform" of the civil justice system a priority when he was governor of Texas, some legal experts predict that his new administration will accelerate efforts to limit jury power.

Although jury trials in modern times have long accounted for a small part of the legal caseload, judges and other experts on the courts say the diminishing role of the jury in state and federal courts reflects rapidly changing attitudes about how much power jurors ought to have. The judicial system's commitment to the jury as an institution, they argue, is being tested as never before.

"Why have a jury at all?" one former juror, Michael McCarthy asked bitterly in an interview.

Mr. McCarthy said he and his fellow jurors were outraged in December when a Houston judge told them that Texas' tort-reform law would require a reduction of more than $100 million in an award they had given the family of a pipe-fitter killed in an industrial accident at a Phillips Petroleum plastics plant in 1999.

The worker, Juan Martinez Jr., died when highly volatile chemicals exploded in a 500-degree fireball. The jury concluded that the accident had resulted from lax safety measures at the complex, which had experienced three explosions over 12 years, including one that killed 23 workers and injured 132 others in 1989.

Not everyone is critical of the trend limiting the role of juries. Some legal scholars, judges and business lawyers say that reining in juries is a necessity in an overloaded legal system. Others argue that juries must be controlled to limit excesses, and curb prejudices like hostility to big corporations.

"Not every legal rule that constrains a jury's discretion is an attack on the jury system," said David F. Levi, a federal district judge in Sacramento. "It may be a limit on raw power, but that may be what we need to have a fair system."

Among appeals judges, the growing skepticism of juries is reflected by their increasing willingness to overturn verdicts. In an analysis prepared for this article, Kevin M. Clermont and Theodore Eisenberg, law professors at Cornell University, found that federal appeals courts reversed civil jury awards in injury and contract cases less than 20 percent of the time in 1987. Over the next decade, reversals rose to nearly 40 percent.

For those jurors who do decide cases, the experience can be mystifying. It can also be embittering.

Last spring, Tyrone N. Neal, a retired government printing worker, served on a case in which a young man had lost a leg because, he claimed, of improper care in a Maryland hospital. The jury Mr. Neal was on awarded the man $5.4 million.

When he learned during an interview that a judge had reduced the award to $515,000, Mr. Neal was disturbed.

"It's like a slap in the face," he said. " 'We get your opinion and then we just go decide it our way.'"

Mr. McCarthy, the Houston juror, said his panel had concluded that only a big verdict would protect workers by showing the managers at Phillips Petroleum that there was a large cost associated with the repeated worker deaths. The award was $117 million, including $110 million in punitive damages, which Phillips' lawyers argued was excessive. They also said the complex was making strenuous efforts to improve safety for its workers.

The judge told the jurors it would almost certainly be cut to $11 million under Texas laws that sharply limit punitive damages.

"I felt betrayed," Mr. McCarthy said. "You think you've done a good service to the community and then you find out all your work has come to nothing."

Because the jury occupies a near mythical spot as the centerpiece of the justice system, its denigration has been discouraged by lawyers and judges in the past. Americans imported the vehicle from English common law, and it has long allowed for the expression of community values in the legal system.

But in recent year, events like the jury acquittal of O. J. Simpson on murder charges in 1995 have helped broaden the debate over the proper role of the jury.

In many states, advocates of tort reform have turned their cause into a populist political rallying cry, with billboards and radio advertising attacking "runaway juries." Some judges have spoken publicly about their skepticism of the jury system.

Last spring, John E. Babiarz Jr., a Superior Court judge in Delaware who headed a state jury study, made a speech proposing that the use of civil juries be sharply curtailed.

"It is simply impossible," Judge Babiarz said, "to achieve fairness
when each case is decided by a different group of 12 people who are called to serve on a civil jury perhaps only once in their lives."

In a new survey of 594 federal trial judges nationally, 27.4 percent said juries should decide fewer types of cases. The survey, conducted by The Dallas Morning News and the Southern Methodist University School of Law, is to be published this spring in the school's law review.

Some scholars argue that appeals judges are now substituting their own opinions for those of jurors.

In an age-discrimination case last spring, the Supreme Court reinstated a jury verdict in favor of a man who said he had been dismissed from his job after being told he was "too damn old." A federal appeals court had overturned the verdict. The Supreme Court, in turn, overruled the appeals court, saying it had "impermissibly substituted its judgment concerning the weight of the evidence for the jury's."

But the Supreme Court itself has done as much as any court in the country to accelerate the trend. In two major rulings in 1993 and 1999, the justices directed trial judges to screen technical and scientific testimony before it gets to jurors.

The limits on juries are being instituted not only by courts but also by Congress and state legislatures. In a series of articles last spring, The Dallas Morning News found that, often through legislation, 41 states imposed some limits on the types of cases juries could hear. Included are rules banning jury trials dealing with issues like consumer fraud and suits over adverse reactions to vaccines.

Some judges say jury trials are a shrinking part of the legal system because lawyers distrust them. They ask for jury trials less often and, in turn, lose their ability to argue before ordinary people.

"You have a bar that is increasingly lacking in jury skills, and they distrust juries so they stay away from them," said Judge Patrick E. Higgenbotham of the United States Court of Appeals for the Fifth Circuit, which hears cases from Louisiana, Mississippi and Texas.

In the Maryland hospital case, two of the jurors said in interviews, the jury spent considerable time trying to find an amount that would compensate Gilford V. Tyler Jr., the man who had lost his leg as a result, the jury found, of the hospital's negligence. A spokeswoman for the hospital, Prince George's Hospital Center, said Mr. Tyler had appropriate care.

The judge, Thomas P. Smith of Circuit Court in Prince George's County, agreed that the jury's verdict had been fairer than the reduction to the $515,000 the hospital's lawyers demanded.

"The thought that the injuries sustained by plaintiff are in any way compensated by $515,000," the judge said in a hearing, was "abhorrent."

But in January he ruled that Maryland law required him to reduce the jury award to the lower amount. Mr. Tyler's lawyers are appealing to Maryland's highest court, claiming the law is unconstitutional.

In the meantime, the jurors who heard Mr. Tyler's case are wondering whether the legal system values the work they did.

"In one sense," said Elizabeth Pearson, a retired postal worker who was on the jury, "it does seem like a waste of time."

The Declaration of Independence

In U.S. history, is a document proclaiming the independence of the 13 British colonies in America, adopted by the Continental Congress on July 4, 1776. The declaration embodied concepts from the Magna Carta and recounted the grievances of the colonies against the British crown. The declaration declared the colonies to be free and independent states. The proclamation of independence marked the culmination of a political process that had begun as a protest against oppressive restrictions imposed by the mother country on colonial trade, manufacturing, and political liberty and had developed into a revolutionary struggle resulting in the establishment of a new nation.

After the U.S. was established, the statement of grievances in the declaration ceased to have any but historic significance. The political philosophy enunciated in the declaration, however, had a continuing influence on political developments in America and Europe for many years. It served as a source of authority for the Bill of Rights of the U.S. Constitution. Its influence is manifest in the Declaration of the Rights of Man and of the Citizen, adopted by the National Assembly of France in 1789, during the French Revolution. In the 19th century, various peoples of Europe and of Latin America fighting for freedom incorporated in their programs the principles formulated in the Declaration of Independence.

The procedure by which the Declaration of Independence came into being was as follows: On June 7, 1776, Richard Henry Lee, in the name of the Virginia delegates to the Continental Congress, moved that "these united colonies are and of right ought to be free and independent States, that they are absolved from all allegiance to the British crown, and that all political connection between them and the State of Great Britain is and ought to be totally dissolved." This motion was seconded by John Adams of Massachusetts, but action thereon was deferred until July 1, and in Congress July 4, 1776.

Pursuit of Happiness

The meaning of "equally free and independent" is unclear and ambiguous, so say the courts of America. The "pursuit of happiness" is one of the "unalienable rights" of people enumerated in the Declaration of Independence, along with "life" and "liberty." "The right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give them their highest enjoyment." Butchers' Co. v. Crescent City Co., 111 U.S. 746, 757, (1884.)

Because the right is not set forth in the U. S. Constitution, it is not enforceable by the courts. However, the right to the pursuit of happiness is often raised in arguments against government regulations, because its mention in the Declaration of Independence gives it a degree of forcefulness. Barron's Law Dictionary, 2nd Ed, pg.378.

Although the phrase "pursuit of happiness" is not set forth in the U. S. Constitution, it is set forth in several state Constitutions. The state Constitutions, in their Declaration of Rights, provide that "all men are created equally free and independent; they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness."

For most people, marriage would be considered "in the pursuit of happiness." The United States Supreme Court, in recognizing that marriage is a fundamental right, stated that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness." Loving v. Virginia, 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967). See also Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978). The Supreme Court held that state regulations that interfere with the fundamental right to marry will be subject to strict scrutiny and will be upheld only if they are "supported by sufficiently important state interests and [are] closely tailored to effectuate only those interests." Zablocki, 434 U.S. at 388.

Other learned judges present the question, What does "pursuit of happiness" have to do with equal protection of the laws? "That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."

The learned judges attempt to explain away most of the Constitution with the following definitions and questions.

Nothing in the above pertains to equality, so say the judges. Is it possible that the phrase alone clearly and unambiguously provides for equal protection of the law? "All men are equally free and independent." What does "free" encompass? What does "independent" encompass?

"Free" is defined in Black's Law Dictionary 663 (6th ed. 1990) as: "Not subject to legal constraint of another.

"Unconstrained; having power to follow the dictates of own will. Not subject to the dominion of another. Not compelled to involuntary servitude; used in this sense as opposed to 'slave.'

"Not bound to service for a fixed term of years; in distinction to being bound as an apprentice. Enjoying full civic rights. Available to all citizens alike without charge; as a free school.

"Not despotic; assuring liberty; defending individual rights against encroachment by any person or class; instituted by a free people; said of governments, institutions, etc.

"Certain, and also consistent with an honorable degree in life; as free services, in the feudal law.

"Confined to the person possessing, instead of being shared with others; as a free fishery.

"Not engaged in a war as belligerent or ally; neutral, as in the maxim: 'Free ships make free goods.'"

In the American Heritage Dictionary of the English Language 524 (1969), the adjective "free" is defined as:

1. At liberty; not bound or constrained.
2. Discharged from arrest or detention.
3. Not under obligation or necessity.
4.a. Politically independent. Said of a country or nation. b. Governed by consent and possessing civil liberties: a free society. c. Immune to arbitrary interference by government or others: a free press. (Emphasis in original.)

In Black's Law Dictionary 770, "independent" is defined as:
"Not dependent; not subject to control, restriction, modification, or limitation from a given outside source."

The adjective "independent" is defined in the American Heritage Dictionary, 668, among other ways that are clearly irrelevant to the cases before us, as:
1. Politically autonomous; self-governing.
2. Free from the influence, guidance, or control of another or others; self-reliant.

Therefore, "equally free and independent" can mean, among other things, equally not subject to the legal constraint of another and equally self-governing; equally at liberty and not subject to control, restriction, or limitation from a given outside source; equally governed by consent and possessing civil liberties and free from the influence, guidance, or control of another.

Consequently, the meaning of "equally free and independent" is unclear and ambiguous, and this phrase is not clarified or made less ambiguous by the phrases that follow it: "that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness."

The courts inability or unwillingness to define "equally free and independent" is an atrocity. The courts leave little to wonder how the American Bar Association, whose members are the judges and lawyers of the courts, came to the realization that the "Constitution is nothing more than an interesting bunch of suggestions."

If any part of the Constitution is unclear and ambiguous, it is because the courts have made a concerted effort to explain it away.

Lawyers gradually take over Government

How did lawyers develop their strangle-hold over almost every aspect of making, administering and carrying out our laws? Non-English speaking immigrants, rapid urbanization, new technology, greedy lawyers and business concentration all contributed to eliminate non-lawyer competition.

Consumer reform during the presidencies of Theodore Roosevelt and Woodrow Wilson laid the foundation for later reforms that have resulted in all sorts of negative results each relating to traditional professional groups such as lawyers and doctors. These "professionals" used the consumer reform movement to sell the nation on the rationale of "professional responsibility" and to justify organizing themselves into publicly-sanctioned monopolies. For example, when it came to training new lawyers, the legal profession now emphasized formal schooling over the traditional apprenticeship method, and pushed required written examinations as an alternative to being admitted to practice on the recommendation of a practitioner or judge.

All of these changes quickly worked to the pecuniary benefit of American lawyers. It was particularly remarkable how quickly lawyers were able to use the new educational and certification requirements to eliminate non-lawyer competition. Legal consumers who were cheated or overcharged by the professional incompetence of individual lawyers, were then, as now, provided with little meaningful recourse.

American Bar Associations adopted a militant campaign to rid the nation of the last vestiges of the self-help law movement that had survived from the nineteenth century. Non-lawyers were prosecuted in ever increasing numbers. Much of the reason for this increase in enforcement was the passage of new unauthorized practice statutes with tougher penalties. New legislation was orchestrated by the newly-organized local and state bar unauthorized practice committees, all of which claimed their activities were designed not to feather the nest of the legal profession but to protect the public from unqualified and incompetent law practitioners. No evidence exists that the public ever asked for, or needs, this "protection."

Campaign Finance Run Amuck

U. S. Attorney General Janet Reno came under strong Republican fire for her continued refusal to seek the appointment of an independent counsel in the campaign finance hearings. Senators raised questions whether the Justice Department's review of Democratic fund-raising has been intentionally incomplete that it could miss the existence of democratic fund raising video tapes.

Sen. Pete Domenici (R-N.M.) questioned Reno's truthfulness and suggested she be fired. "The attorney general is so inconsistent with her statements that I share with you a concern that the president of the United States ought to relieve her of her responsibility," Domenici said.

Sen. Robert Torricelli (D-N.J.) shot back that Republicans were obstructing justice through their threats of impeachment. "The criticism [Reno] has received, the threats that have been made against her and the position she holds, are the political equivalent of an obstruction of justice," Torricelli said. "In an ironic sort of way, members of the majority have made it almost impossible for the attorney general to actually name an independent counsel. She's been threatened with impeachment, hearings, she should be immediately replaced. If the woman names an independent counsel, it's going to appear she was intimidated. And if she doesn't, she's defending the president."

Justice Department spokesman Bert Brandenburg, responding to criticism of Reno and the calls for her ouster, said, "It's political rabies. Fortunately when it comes to applying the law, cooler heads will prevail. This is why the law must be interpreted by professionals, not politicians. Political bullying will never work on this attorney general."

Editor's note: Lawyers control Congress and most State Legislatures and protect the world's largest monopoly.

Against this background and continuous rhetoric, it isn't hard for the legal profession to convince most people that "A PERSON WHO REPRESENTS HIMSELF HAS A FOOL FOR A CLIENT.

However, a man who is represented by a fool, is a fool ...

Lawyers say that a man who represents himself has a fool for a client and a fool for a lawyer.

However, if you hire a fool for a lawyer, you have a fool for a lawyer. And most lawyers are fools and all you're doing is paying some idiot a lot of money to destroy your life.

When you are standing in the midst of the lions den
-- Do not count the lions - Count on God.

Lawyers as Presidents

Clinton and Absolute Power

When Al Gore tried to win the 2000 presidential election in the courts, it was an unprecedented act in American history.

But such legal maneuvering was not unprecedented for the Clinton-Gore administration. One of its first acts was to fire every single U.S. attorney, an unmistakable signal that the Justice Department would serve Bill Clinton at the expense of justice.

Bill Clinton and Al Gore consistently saw the courts as a means to achieve political ends. With Janet Reno as attorney general, they gave the United States the most politicized Justice Department we have ever endured. Instead of objectively pursuing justice, America's federal lawyers became tools to give the president and the vice president of the United States absolute power:

POWER to put themselves above the law


POWER to foil investigations by the FBI and the Justice Department


POWER to make brute force option number one at Waco

POWER to ignore the Senate's role in confirming presidential appointments


POWER to financially shake down legal industries like tobacco

POWER to ruin the lives of the "little people" who loyally served the White House but didn't fit into the Clintons' plans

POWER to subordinate national security to political fund-raising and foreign cash

With Janet Reno providing legal cover, the Clinton-Gore administration was able to do all this, and more, with impunity.

In David Limbaugh's stunning new book, Absolute Power, you will see just how this happened. It is a comprehensive indictment of the Clinton-Reno Justice Department, detailing how federal law was politicized and precedents were set for a legal war against the rule of law and the traditional civil liberties of the United States.

Absolute Power is a testament to what must never be allowed to happen again, and an unsettling reminder of how the most corrupt administration in history has never been called to account--until now, by David Limbaugh.

David Limbaugh is a lawyer, nationally syndicated columnist with Creators Syndicate, and political commentator. The brother of radio talk-show host Rush Limbaugh, he lives in Cape Girardeau, Missouri, with his wife and children.

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