November 1999

Letters

I read with much pleasure the President's Corner in the October Bar News. Thank you President Eymann! Your column should be a must read for every lawyer in the state. I agree it's time we started responding to degrading comments and insults about lawyers, lest our silence be taken as an admission. Some of the most decent, honorable and dedicated people I know are lawyers. Point that out the next time you're thrown a lawyer joke in public.

I guess we know how Dick feels about things.

In August [Bar News, "The Duty of the Judiciary to Ensure Access to Justice"], Leonard Schroeter wrote an article claiming that access to justice is a "fundamental right" and that judges should protect that right. I do not want a lack of response to be viewed as acquiescence by judges.

Mr. Schroeter attacks anyone who does not agree with him as being ignorant, prejudiced, or placing policy over the constitution. I know that freedom of speech and the right to trial by jury are fundamental rights, but I have never before been told that a government-provided attorney in a civil case is a right every American citizen has. I would also discourage name-calling in place of argument, especially where even Supreme Court Justices have disagreed with each other on the subject.

A few years ago, I served on the Washington State Bar Association's Access to Justice (ATJ) Committee. The main (if not only) solution advocated by other committee members and the group as a whole was that more lawyers were needed to represent civil litigants at no cost, and the money to pay for them should come from the taxpayers. I disagree with that idea, as well as similar sentiment in favor of mandatory pro bono work for every private attorney. [see correction]

I worry that we have forgotten that the judicial system was meant to resolve disputes and uphold our constitutional rights. Anyone truly interested in helping low-income citizens or those overwhelmed by the daunting enormity of the government would do considerably more good by working to change the system, rather than merely further facilitating its use. If relatively simple matters could be handled by the parties themselves, or by a limited practice officer under the guidance of an attorney, civil litigants would get faster, less expensive resolutions to their cases.

Mr. Schroeter suggests in his title that judges have a duty to "ensure access to justice." He makes no constructive comments or suggestions regarding how we are supposed to do that except to ignore history and legal precedent. Other solutions come to mind, such as eliminating filing fees altogether, or increasing the information distributed to the public and service organizations, and making the civil justice system easier to use and understand. Practical solution, not idealistic rhetoric, is what is needed here.

A more effective justice system should be the goal of the Bar Association, rather than seeking to compound the already spiraling problems of over-taxation, and increasing the burden of a court system that is already overwhelmed and underfunded. For example, Mr. Schroeter's focus may be on people considered low income, but the middle-income litigant is often equally unable to produce thousands of dollars from his budget to pay attorney fees. Would he not have the same need, and therefore the same "right," to a government-financed attorney as the low-income person who is entitled to one on demand? Instead of continuing down that road, I suggest we work to simplify the system. Already, the Board of Judicial Administration has a committee working on simplification and communication with the people who use the courts.

I hope further discussion on this issue will seek practical, realistic solutions, rather than merely trying to bestow nobility and honor on those favoring one side of the argument while declaring opponents to be "ignorant" and having "spiteful" reasoning. We can work together to promote individual liberty and I for one pledge to do so.

I would like to submit the following correction to Daniel Warner's article, "Gun Control 101" [Bar News, September 1999]. No comment on the remainder of the article is intended, but the misstatement that "there are no militias today" requires correction. This is not accurate under the laws of this state, and I believe also of a number of other states. The Washington State Constitution empowers the legislature to provide by law for the organization and discipline of the militia in such a manner as it shall deem expedient. WA. Const., Article X, Section 2.

The legislature has done so in Title 38 of the Revised Code of Washington, entitled "Militia and Military Affairs." Section 38.04.010 contains a definition of militia: "The word 'militia' shall mean the military forces provided for in the Constitution and laws of the state of Washington." Section 38.04.030 elaborates on this concept.

"The militia of the state of Washington shall consist of all able bodied citizens of the United States and all other able bodied persons who have declared their intention to become citizens of the United States, residing within this state, who shall be more than eighteen years of age, and shall include all persons who are members of the national guard and the state guard, and said militia shall be divided into two classes, the organized militia and the unorganized militia."

As an examination of this and related provisions in Title 38 will reveal, the State of Washington possesses a militia, which consists of all adult citizens. The National Guard is the portion which is organized and subject to federalization under certain circumstances. There also exists an organized component of the militia, not subject to federalization, known as the State Guard. The State Guard is defined as: "…that part of the military forces of the state that is organized, equipped and recognized under the provisions of the State Defense Forces Act of the United States (32 U.S.C. Sec. 109, as amended)." R.C.W. 38.04.010.

The militia is under the civil authority of the Governor as its commander-in-chief. R.C.W. 38.08.020. State law requires that the enlisted strength of the organized militia shall never be less than 2,000. Thus, if the National Guard were to be called into federal service, the State Guard would be required to take its place, drawing upon the unorganized militia for the required numbers. R.C.W. 38.04.040.

The militia functions as part of the executive branch of government under the recognized civil authority. "The governor shall have power to call forth the militia to execute the laws of the state to suppress insurrections and repel invasions." WA. Const., Article X, Section 2. The militia is subject to the discipline of a chain of command and a State Code of Military Justice. R.C.W. Chapter 38.38. We all presume, or at least hope, that the section regarding the repelling of invasions is archaic. However, the civil authorities do have the legal authority to use the militia to deal with events which may require military-type responses, even when the National Guard is not available, due to federal service.

It should also be noted that those organizations inaccurately referred to as "militias" in the popular media, are actually, under law, unauthorized, and under certain circumstances illegal paramilitary groups, not entitled to the honorable title of militia. See R.C.W. 38.40.120.

The militia is the traditional way that the people participate in the protection of the body politic. Its origin is in the distrust of standing armies, the concept that the individual states are sovereignties, possessed of certain inherent powers, including the military power. But there is also a strong tradition in our democracy that this function belongs with the people.

In the organization of the government of the United States and its constituent states, the people retain the right to participate at the fundamental basic levels of each branch of government, as voters, jurors and militia soldiers. The decline in the exercise of these rights does not negate them. It is a basic aspect of the concept of the citizen in a free state, that those powers which are associated with the state remain fundamentally in the hands of the people. We may elect and appoint and delegate these powers to specialists and experts, but this does not extinguish the basic nature of the power.

The decline in people voting, and the way many people endeavor to avoid jury duty, are symptoms of the same malady which leads few of our citizens to recognize that they are the militia. But the fact that most people don't know it, does not mean that it is not true. There is most assuredly a militia and we are all a part of it.

I am not the first member of Congress to see the inside of a prison, but I am the only one who has done time as a prison psychologist before coming to Capitol Hill. As a staff psychologist at Southern Ohio Correctional Facility in Lucasville, Ohio, I learned first hand what a study by the Department of Justice has recently revealed — that jails are becoming America's new mental asylums.

According to the DOJ, nearly 300,000 persons with serious mental illness are warehoused in our nation's jails and prisons — more than the total number of mentally ill persons housed in mental institutions. Not only are the seriously mentally ill not receiving adequate treatment, but law enforcement and correctional officers are being misused as makeshift mental health providers. This is a national scandal that is creating chaos in communities from coast to coast.

King County is unique in that it is a community that is doing something about this crisis. The King County Mental Health Court is the product of a pioneering effort by criminal justice and mental health workers to create an alternative to incarceration for individuals who are in desperate need of mental health services. King County's Mental Health Court is not only reconfiguring the landscape of criminal justice and mental health delivery systems in its local community, it is also contributing to the federal mental health court model now being developed.

I applaud King County Mental Health Court's first judge, Presiding Judge Jim Cayce, for his leadership at home and on Capitol Hill. With his help, I have recently proposed a piece of legislation that would provide competitive grants to counties that want to create their own Mental Health Court. As a member of Congress, and a psychologist, I believe that it is time for a national effort to keep the mentally ill out of jails and prisons, to bridge the gap where so many seriously mentally ill individuals fall — between the criminal justice and mental health systems.

As one of the tyrannical "hyper-sensitive few" who helped to draft proposed RPC 8.4(g) and (h), I would like to respond to the arguments in Ronald E. Doty, Jr.'s letter in the October 1999 Bar News [p. 9] against adoption of the proposed amendments.

Mr. Doty's discussion omits that the acts prohibited in the proposed amendments apply only to acts committed by a lawyer in the course of representing a client. This omission unfortunately leads to confusion between what is generally acceptable First Amendment conduct, and conduct that is acceptable in the courtroom or deposition conference room. Under the First Amendment, you may call another person a liar and a cheat. But if you direct these epithets at opposing counsel while you are acting as an attorney, you should expect to be sanctioned by the court or disciplined. Unless the charge is demonstrably true, such name-calling is irrelevant to the proceedings before the court, and harms the administration of justice. If the First Amendment is not violated by prohibiting a lawyer from saying — in the course of acting as a lawyer — demeaning, irrelevant epithets about another's character, how is it violated by prohibiting that same lawyer from saying — in the course of acting as a lawyer — demeaning, irrelevant epithets about another's race, sex, ethnicity, sexual orientation, etc.?

The proposed rules promote courtroom dignity, not groupthink. The proposals do not prohibit a lawyer from referring to another's race, sex, sexual orientation, etc. if needed to advance a material, factual or legal argument. The proposals do not limit a lawyer's right to accept, decline or withdraw from representation of a client based upon the client's race, sex, sexual orientation, etc. And the proposals do not prohibit a lawyer from saying bigoted epithets or exhibiting a discriminatory bias, so long as these actions are not done in the course of representing a client.

The First Amendment is not threatened by adoption of these proposed rules. To date, the parade of horribles predicted by Mr. Doty has not occurred among lawyers practicing in the Western District of Washington, even though General Rule 9 – Prohibition of Bias has been on the books since September 30, 1994. GR 9 is substantively similar to proposed RPC 8.4(h).

William Redkey's rejection of jury nullification in favor of the rule of law [Bar News, September 1999, p. 9] misses the point of my original letter. Jury nullification is the rule of law.

Jury nullification is explicitly authorized in 24 state constitutions and is implied in 40 state constitutions by the words "All political power is inherent in the people," or words to similar effect. When the founders wrote the jury trial right into the U.S. Constitution in more places and with more words than any other right, the word "jury" meant 12 citizens who decide a case, and judge both law and fact. In Washington state, Appellate Division Two has recognized the " jury's pardon or veto power." State v. Primrose, 32 Wash. App. 1, 4 (1982). Accord State v. Meggy-esy, 90 Wash. App. 693, 700 (Division One, 1998) (recognizing the jury's power to reject the law when rendering general verdicts).

Jury nullification is an essential part of our constitutional system of checks and balances: the House and Senate can refuse to pass legislation; the President or Governor has veto power; judges have the power of judicial review; prosecutors have vast powers of prosecutor laws (see RCW 9.94A.440); and the jury has the veto power of jury nullification.

Why is it, when all of these elites —politicians, governors, judges and prosecutors — have and exercise their nullification powers, no one in the establishment complains? But when the average, decent, taxpaying citizen gets some power on the jury to nullify bad laws, or bad applications of the law, suddenly it is called "anarchy." A little more respect for the Declaration of Independence ("All men [and women] are created equal") and for our Washington State Constitution, Article 1, Section 1 ("All political power is inherent in the people") is in order.

If the jury has convicted innocent defendants "because of their religion, skin color or ethnicity" as Mr. Redkey alleges, it is the prosecutor, not the jury, who must bear the blame. The prosecutor brings the charges in the first place, argues for conviction and then recommends prison or death for the innocent defendant. If the prosecutor violates his role as an administrator of justice, the innocent defendant's blood is on the prosecutor's hands, not the jury's. Why didn't the prosecutor move to dismiss?

Further, during voir dire, prosecutors routinely attempt to seat stacked, conviction-prone juries. The Constitution mandates that the jury be impartial to the person being tried. If juries are chosen from a fair cross-section of the community, racist verdicts rarely occur. Randomly selected juries almost always contain one or more jurors unswayed by race, who refuse to base their verdict on prejudice. Don't scapegoat the jury.

And, it is not just "a few isolated cases" wherein the jury has nullified bad laws and altered the history of our nation for the better. Many of our most cherished rights in the Bill of Rights were given to us first by a nullifying jury. Juries, refusing to convict under repressive laws, established the principles of the First Amendment, freedom of speech and freedom of religion, with the trials of John Peter Zenger and William Penn. The foundation for the Fourth Amendment was created by juries incensed at the King's officers invading homes without warrants, and the juries refused to convict citizens because of this. Theses acquittals predate the exclusionary rule of Boyd v. U.S., 116 U.S. 616 (1186) by well over a century. Decades before the Bill of Rights was enacted, the jury laid down the decree in the Fifth Amendment that a person cannot be compelled to be a witness against himself and that property cannot be taken without due process of law.

Juries abolished slavery in the North with a long series of cases beginning in 1765 in Massachusetts. Hundreds of juries refused to convict in Fugitive Slave Act cases. Hundreds of juries refused to convict during Prohibition and defeated Prohibition. Juries refused to convict under the anti-labor laws of the 1890s and forced judges to resort to their injunction powers in order to prosecute labor unions.

The exclusionary rule, alluded to by my opponent as a reason to keep juries ignorant, is scant protection for Fourth Amendment rights today. It has almost hemorrhaged to death with the many judicial and legislative exceptions carved into it. A better protection for Fourth Amendment rights is, and has always been, fully informed juries who hear how the illegal evidence was obtained and what the conduct of the police was like, and who know about their power to judge the government as well as the defendant. Also needed are special prosecutors whose primary duty is to prosecute the police for their crimes in violating the Fourth Amendment, such as burglary, trespass, kidnapping, theft and armed robbery.

In other dark times in our history, the independent jury has been a shining light of freedom. Now, with millions of laws and billions of dollars at its disposal, our government has become more oppressive than King George could ever dream. We have one million people in prison, more per capita than any other western nation, largely because of the insane war on drugs. A young black male today stands a better chance of doing time in prison than spending time in college. We need jury nullification now more than ever.

Jury nullification is the rule of law. It is the most important check in our system of checks and balances. Without it, law degenerates into being merely the will of some, the politically powerful, forced upon others.

I have read an article in Bar News [July 1999, p. 12], as reprinted in the FIJA Activist [Winter/Spring 1999]. The article was written by Tom Stahl of Ellensburg, and referenced jury nullification.

In the town of Stoughton, Massachusetts, in October 1774, the representatives of the local towns in a county congress assembled and nullified the authority of King George III, as promulgated in the "Suffolk Resolves." These resolves were adopted and enacted by the First Continental Congress, and still have standing in law under Art. VI, CL.1, U.S. Constitution.

Did these free men have the right to nullify the law of King George III? If not, are these resolves, as well as every other enactment of the Second Continental Congress unlawful? If the actions of the Patriots and Militiamen were unlawful then, are such actions moot now, because we are an illegitimate nation in toto?

Do you see the problem if Americans have never had the "right" to nullify?Don Schwarz
Stoughton, MA

Readers are invited to submit letters of reasonable length to the editor. They should be typed on letterhead, signed and, if possible, also provided on disk in any conventional format. Letters may also be sent via e-mail to comm@wsba.org. Due date is the 10th of the month for the second issue following. The editor reserves the right to select excerpts for publication or edit them as may be appropriate. Signatures in excess of three names will be printed only in exceptional circumstances, at the sole discretion of the editor.

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