The enumeration in the Constitution of certain rights
shall not be construed to deny or disparage
others retained by the people.
U.S. Constitution, Ninth Amendment
Enumeration: List of rights
Certain: Fixed, settled
Rights: That which a person has a just claim to
Shall: Mandatory, must be done
Construed: Interpreted
Deny: To refuse to accept the existence, truth or validity thereof
Disparage: To lower in rank, reputation, depreciate, tamper
Others: The rights not listed in the Constitution as opposed to the certain rights that are listed. These other rights are the inalienable rights that include, but are not limited to: The right to be presumed innocent until proven guilty; The right to protect oneself, property and family; The right of inheritance and bequeathal, to be treated equally before the law … self-evident truths such as “life, liberty and the pursuit of happiness.”
Retained: To keep in possession, to hold secure or intact
People: Human beings — the citizens of the United States of America
Preface
There are two issues, Duty and Power, that have come to light in the recent case (1) (2) against former Minneapolis Police Department officers Tou Thao and J Alexander Kueng (George Floyd matter) (3). The first is basic to policing, per se. The second topic concerns the judicial system.
History
A police force is not a democracy; sworn officers do not have the right to vote on how to proceed during any official detail involving the public. Law enforcement is a quasi-military organization inasmuch as there is a hard chain of command — as opposed to a soft chain found in civil or other public institutes. MPD patrol officers Thao and Kueng witnessed their sergeant (Derek Chauvin) wrestle a violent, resisting arrestee (George Floyd) to the ground and further observed the sergeant place his knee on Floyd’s neck until Floyd died.
As a result of these actions/inactions, Chauvin was tried and convicted of a crime (see Part I of this series for a different view) and the subordinate officers were also tried and convicted in court. The prosecution alleged that Thao and/or Kueng violated Floyd’s Constitutional rights and should have intervened if they had knowledge (unsubstantiated evidence) that the on-scene, ranking officer was using the ambiguous term: unreasonable force.
The judicial system that fostered the convictions of Thao and Kueng is based on (mis)interpretations and direct and indirect denials and disparages of our Constitution.
DUTY
The question here concerns what, if anything, a police officer is required (has a duty or legal obligation) to do when faced with the question of whether or not to take action against (interfere with) the acts of a superior officer during a lawful arrest. The implied Constitutional reference is to the Fifth and Fourteenth Amendments, neither of which requires a law enforcement officer or anyone to intervene for the benefit of another. The word unreasonable, or any such language, also does not appear in these Amendments, of which the relevant portions read (with annotation):
“…no person…shall be deprived of life without due process of law; …” Only MPD Sgt. Chauvin was denying George Floyd the right to life.
“… nor deny to any person within its jurisdiction the equal protection of the laws.” States could not make and enforce laws that treated persons (even if they were not U.S. citizens) differently. If officers Thao and/or Kueng had intervened in similar situations or were acting in contravention to department rules specifically requiring intervention against a superior officer, that would constitute depravation.
Suppose a private in the military overhears his commanding officer ordering an attack that the private believes to be unreasonable. Should the private shoot the commanding officer if the commanding officer fails to heed the private’s warning? How about if a Secret Service agent believes his commanding officer (POTUS) is about to issue unreasonable orders to send troops …
The relevant portions of the statute for which Thao and Kueng are charged (emphasis added):
18 U.S.C.A. § 242. Deprivation of rights under color of law.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, … the deprivation of any rights, … secured or protected by the Constitution or laws of the United States, …on account of such person being an alien, or by reason of his color, or race … shall be fined under this title, or imprisoned… (4)
Nowhere in the indictment, charge to the jury or trial evidence, does the prosecution allege that Thao or Kueng used any racial slur or in any way exhibited or spoke any words referencing the race, color or alien status of Floyd. Therefore, this statute ONLY applies if the defendant was depriving another due to that person’s race, color or alien status. America is not a commonwealth; we are a statutory nation insofar as it can only be a crime if there is a specific law to which someone can be held accountable and that law incorporates a punishment provision. Citizens cannot be convicted of violating a Constitutional article or amendment unless that section spells out an articulated punishment (civil accountability is held to a different standard).
In the charge to the jury at the conclusion of this criminal trial of ex-Minneapolis law enforcement officers, Tou Thao and J Alexander Kueng, the judge told the jury: (5)
“…defendant[s] violated Mr. Floyd’s right to be free from a police officer’s use of unreasonable force…” If the force became unreasonable it only did so upon Floyd’s death.
“…that the defendant had the opportunity … [to intervene]“ If a subordinate officer intervenes with a lawful arrest by the senior officer, this junior officer will surely face disciplinary action including termination.
“…and [had] means to intervene …” If the senior officer does not heed this warning, the prosecution alleged the junior officer’s duty is to use his/her power to intervene, i.e., physically assault his superior. Such physical force will surely cause termination and felony charges of assaulting a police officer to be filed against the subordinate officer.
“…to stop the unreasonable force;” There is no statute, law or Constitutional mandate for a police officer to interfere with a superior officer’s course of action. It is clear that the subject patrol officers were not indicted for a violation of a statute that makes it a crime to fail to take action (intervene) UNLESS race, color or alien status is alleged.
Summary
Though a law enforcement officer takes an oath to protect lives and property, the point at which another’s life or property is in jeopardy is not only subjective, but relevant to the consequences the officer faces. Were the officers wrong not to intervene? Probably. Would they have been wrong if they had intervened? Probably. Either way, they will suffer irreparable harm — a violation of their Constitutional rights. Unless race, color or alien status is a criterion, failing to intervene is not a crime, whereas assaulting a police officer is a felony.
Solution
While the higher courts review the convictions of Thao and Kueng, our federal legislators might be encouraged to push for a federal statute with wording to the effect: It shall be in violation of Federal Law for a prosecuting attorney to charge any person with a crime for which all of the elements of the crime are not present. One convicted under this statute shall be fined $____ or imprisoned not more than _______ years, or both.
POWER
The following Instructions (charge) to the Jury is taken directly from the federal case (6) against the ex-MPD LEOs, Thao and Kueng, who were charged with violating 18 U.S.C.A. § 242 Deprivation of rights under color of law (7). In effectively all criminal jury trials, the presiding judge will read the below (or words to that effect) to “charge the jury.” (8)
“It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.”
Here, the trial judge ordered the jurors to accept his definition, meaning and application of the law and regardless of what the jurors believe to be in concert to the Constitution, they must follow his directives. This is a direct infringement of the defendant’s rights under the Sixth Amendment to the Constitution, which states:
“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury….”
An impartial jury means one made up of open-minded and unbiased citizens — not corrupted by undue influence, bias or prejudice from any source. When a judge orders a jury to follow his/her instructions about how to define and apply the law as he or she explains it to them, that jury is no longer impartial (9). A jury that has been subjected to this usurpation of power is no longer unprejudiced. It has been influenced to the judge’s uncontested bias, uncontested because judicial rules forbid the defendant’s attorney to address the jury after these instructions have been issued.
This charge to the jury is not open to cross or direct examination — the judge’s word is final, conclusive and absolute. This is no different than the judge, for all intents and purposes, telling a jury how vote by requiring them to accept his or her interpretation and meaning of the law. A government employee using his or her powerful position to “instruct” or “tamper with” a jury has construed, denied and disparaged other rights — a clear violation of the Ninth Amendment of the U.S. Constitution (10).
There are two basic reasons judges insist on being the only definer of the law:
1) Because they believe common jurors are just that — regular people that are not sophisticated enough to understand the law unless a judge explains it to them;
2) Judges do not want to surrender their self-granted power of having the final say.
Officially, judges preside in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level — not to pass judgment. Judgments are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well. When a jury evaluates the law, it means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal. Jurors do not have the license to judge a law to their private standard or opinions, whereas allowing one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.
However, what the judicial branch does is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so. This is made clear by rules of the American Bar Association (ABA) which governs all American trials (11). However — and this is a significant however — the court cannot prevent the defendant from giving his or her interpretation of the law he or she is charged under — but not as a witness under direct examination, only acting as his or her own attorney. Acting as one’s own attorney (pro se), one can say almost anything to a jury (12).
Thus, a defendant’s ability to present his or her demeanor and often even a kind of summation is possible without exposure to impeachment or cross-examination. This may be a great tactical move, but only if the defendant is well poised, knowledgeable and a good speaker. The quirk of forbidding attorneys to argue the law before the jury, but permit pro se (amateur) testimony, seems to have escaped the logic of the judicial system. Does not telling a jury they have this right a denial of others rights noted in the Ninth Amendment? Ditto, the defendant’s right to know of his or her pro se rights?
Forcing a defendant to become his or her own lawyer just for the sake of arguing the law’s constitutionality is a clear violation of the Sixth Amendment right to counsel which includes this demand:
“…to have the assistance of counsel for his defense.”
In other words, it is well established in case law that the accused is entitled to representation at ALL levels of trial including pre-trial, interrogation and post-trial sentencing. Therefore, it seems illogical that the courts continue to support the self-empowering ABA which clearly forbids one’s legal representation at a most critical stage of a trial — the “instructions/charge” to the jury.
Our rule of law, the Constitution, was written by laymen for laymen and nowhere in its articles or amendments is the judicial branch empowered to instruct a jury what they must do or not do. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge.
Rep. Henry Hyde’s opening statement in the Clinton impeachment investigation, 18 Dec 1998, has been recognized as the standard for the definition of the Rule of Law — the U.S. Constitution.
“The rule of law is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable to avoid political collapse … The phrase ‘rule of law’ is no pious aspiration from a civics textbook … The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties,” (13)
In all criminal proceedings, witnesses who are going to testify before a jury must swear or affirm, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees, even though they have sworn an oath to their office and the Constitution. However, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, judges do testify in the form of their “instructions” or “charges” to the jury. It is during this ‘testimony’ — this propagation of their own power — that the judge will NOT tell the whole truth, that being a jury’s right and power to decide the constitutionality of a law or the defendant’s right to address the jury on the subject of the law, thus crippling one leg of the stool.
Summary
We are not a nation of laws; we are a nation of Constitutions. A community’s mood swings — including that of judges — has had negative impacts on law enforcement officers; only the Constitution and ALL of its Amendments stands to preserve the rights, integrity and honor of the rule of law.
Many precedent-setting rulings, dating from the decade of this country’s inception to as late as 1972, have confirmed that Jury Prerogative (sometimes called Jury Nullification) is a bono fide right and power of a jury: Jury Prerogative is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution (14).
“The jury has a right to judge both the law as well as the facts in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court (1789).
The jury does and always has had, in the words of Justice Holmes, “the power to bring in a verdict in the teeth of both law and facts” (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).
“The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, Chief Justice U. S. Supreme Court (1941).
“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….” (U.S. vs. Dougherty, 1972) (15).
Solution:
Police academies might begin teaching the court room tactic of pro se — how to inform your jury of its rights to judge the law should the question of a law’s constitutionality become an issue during a trial in which you are charged. Perhaps, if Thao and Kueng had utilized this strategy …
Notes:
(1) U.S. District Court U.S. District of Minnesota (DMN) CRIMINAL DOCKET FOR CASE #: 0:21-cr-00108-PAM-TNL All Defendants https://www.morelaw.com/verdicts/case.asp?n=0:21-cr-00108-PAM-TNL&s=MN&d=161390
(2) Main stream media report of the case: https://www.cbsnews.com/news/george-floyd-trial-verdict-reached-federal-civil-rights-trial/
(3) A veteran Minneapolis LEO held his knee on a combative arrestee for an extended time causing the arrestee’s death. https://en.wikipedia.org/wiki/Killing_of_George_Floyd. The officer, might have been a victim of Accumulated Stress Disorder, a condition addressed in a previous article of this publication.
(4) U.S. Code 18/242 https://www.law.cornell.edu/uscode/text/18/242
(5) Instructions to the Jury, CASE 0:21-cr-00108 https://www.chuckkleinauthor.com/Page.aspx/393/Jury-Instructions.html
(6) Ibid U.S. District Court
(7) Ibid U.S. Code
(8) Ibid Instructions to the Jury,
(9) U.S. Constitution, Amendment VI: “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….” https://www.chuckkleinauthor.com/Page.aspx/380/america-s-framework-for-freedom.html#12
(10) See lead-in to this treatise and Amendment #9 https://www.chuckkleinauthor.com/Page.aspx/380/america-s-framework-for-freedom.html#12
(11) The American Bar Association, Instructions to the Jury. “The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that [sic] jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge.” https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/juryinstruct/
(12) There is no law, statute or case law forbidding jurors to ignore a judge’s instructions to come to their own conclusions as to the interpretations of a law, statute or constitutional wording.
(13) Henry Hyde’s Rule of Law https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/hydetext121898.htm
(14) Jury Prerogative https://www.chuckkleinauthor.com/Page.aspx/283/judicial-secrets.html
(15) United States v. Dougherty – 154 U.S. App. D.C. 76, 473 F.2d 1113 (1972)
https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-dougherty
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