The following is the official court transcript of my one-on-one face-off as a juror with a federal judge over the limits — or lack thereof, in his view — of the commerce clause of the United States Constitution. I have added some commentary in brackets and italics to explain more fully what was going on in the courtroom, but the transcript is otherwise unchanged.
Here’s a quick background on the case: I was drafted into federal jury service a year ago and plunked into a mafia drug trial where the defendant was accused of "possession" of cocaine. The government made no attempt to prove anything had crossed a state line, and all the evidence indicated that he had no plans to distribute the drugs across a state line. Once we got into the jury room all hell broke loose, and the jurors prevailed upon me to ask the judge a question about constitutional issues. So I did, and wrote down the following question: "If 2/3 of the Congress decided in 1918 that they needed to amend the constitution in order to ban mere possession of a substance (in that case, prohibition of alcohol), where is the constitutional authorization today for the federal prohibition of mere possession of cocaine today?" The judge said I didn’t know what I was talking about, and we ended up having a 15-minute, one-on-one chat in his robing chambers the next day after I persisted in pressing the Constitutional issue. The judge dismissed me from the jury and later wrote a lengthy court memorandum attacking me as a "rogue" and accusing me of being "evasive." He also failed to mention in that memorandum that he tried to get me to swear a second oath of jury service to ignore the Constitution. Below is the verbatim transcript of that voir dire.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Criminal No. 99-10218-WGY
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TRIAL TRANSCRIPT
UNITED STATES OF AMERICA v. ROBERT C. LUISI, JR.
(Volume 10)
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BEFORE: The Honorable William G. Young, District Judge, and a Jury
APPEARANCES: ERNEST S. DiNISCO and NATASHIA TIDWELL, Assistant United States Attorneys, 1 Courthouse 16 Way, Suite 9200, Boston, Massachusetts 02210, on behalf of the Government
JOHN H. LaCHANCE, ESQ., 463 Worcester Road, Suite 203, Framingham, Massachusetts 01701, on behalf of the Defendant
1 Courthouse Way Boston, Massachusetts
March 13, 2008
(Whereupon Juror Eddlem entered the lobby.)
INQUIRY BY THE COURT OF THE JUROR
Q Please sit down. And could you state your name, sir?
A My name is Thomas R. Eddlem.
Q All right, Mr. Eddlem, on your oath as a juror, without regard now to the evidence, I’m not asking about that, with respect to any outcome of the case, I’m asking just about the law, can you conscientiously apply the law the way the Court has charged you in this case?
A Yes.
[This is the first of two questions Judge Young said in open court earlier that he would ask of the jurors in voir dire. So I had time to think of my answers. The other, to which I would also have answered "yes" was — to the best of my memory — along the lines of this: If the jury had to be reconstituted with an alternate, would you be able to start deliberations over?]
Q If it were —
A I can clarify.
Q If you wish. But just about the law. I don’t want to hear anything about the evidence.
A I understand. I’m the juror who asked the first question. I’m the juror who is the subject of the discussion. I disagree with the tone and the substance of the second question.
THE CLERK: Do you want me to go get the question?
Q Why don’t you explain — why don’t you explain that. So long as you can follow the law the way I’ve instructed you, your views about the evidence in the case are entirely your views and —
MR. LaCHANCE: Yes.
THE COURT: Yes.
Q The second question was: If a juror denies on constitutional grounds the validity of the trial, charges, and jurisdiction thus preempting consideration of the facts in question, is he an ineligible juror? Are we, are we, given these objections, a legally constituted jury? You disagree with the way that’s framed?
A I disagree with it, yes. It is inaccurate to characterize my views as saying that the Court has no jurisdiction, that there is no validity in the, in the case.
Q Well, let me — and I’m just talking about the law because —
A I understand. I understand.
Q — I can’t talk at all about the evidence. When I tell you that the statutes that congress has passed with respect to the controlled substances, when I tell you those laws that the congress has passed are valid and constitutional laws, do you accept that?
A I accept that as an instruction of yours, yes. And that is, I accept that that is an accurate description of the statutes.
Q And you believe you fairly and impartially can apply those laws to the evidence as you believe it may be in this case?
A Yes. Ah — yes.
Q Well, since — this is your question?
A Yes, it is indeed.
Q The first one?
A Yes.
Q I don’t know as I understood that question. What does this question mean? I tried to answer it, but I’m not so sure I understood it.
[I have a hard time believing the judge was as dim-witted as he claimed to be there. I didn’t believe he failed to understand the question then, and I don’t believe it now. Other than the fact that I was one year off about ratification of the 18th Amendment in the question, it was a straightforward English language sentence, written in clear and declarative language. As you’ll see further down, he really doesn’t care about the meaning of words. But there was a process to this voir dire, and I thought I’d get the background in with my reply.]
A Well, my question was simply this. When I took my oath, I remember it specifically, it’s similar to what we took in the jury — what was in the jury handbook, slightly different language. We swore an oath to follow the facts and the law as described by you. We held up our hands and you described them. And your very first act as judge was to follow, in this case was to engage in a prolonged instruction — excuse me, discussion of the constitution itself, outlining it, Article I, Article II, and Article III. That I took as part of your instructions. And I took that as part of my oath.
[Above, I am referring to the judge’s opening statement on the first day of the case, made before even the attorneys got their opening statements. The judge talked for about 40 minutes on the Constitution, and more than one juror groaned to me that it was too long. As it turned out, maybe he should have talked longer about the Constitution.]
Q And all of that is accurate so far as I know. But this business about the repeal of prohibition. I didn’t understand how that — how do you think that bears on — I’m just asking about the law.
A Right.
Q How does that bear on the law in this case?
A My question was —
Q In your mind.
A — since the case had begun with a discussion of the constitution, delegated powers to congress in Article I, the setup of the Presidency in Article II, establishment of the judiciary in Article III, my question was where, if, as you, as every schoolboy knows, the highest law in the land is the United States Constitution, and if congress had to go to amend the constitution in, actually it was ratified in 1919, the 18th Amendment, in order to have the power to ban not interstate commerce but mere possession, where is that in the constitution.
Q Well, understand we had passed a constitutional amendment that outlawed alcohol, that was directed to alcohol beverages. Then in the 21st Amendment we repealed that. Now, to change the constitution is a very complex — it’s not just congress that can do that. You need the states to do that.
[Note that here the judge is unwittingly making my point for me. If Congress can declare anything contraband that it wants under the commerce clause, then why did they go to all that trouble to amend the Constitution back in 1919? Maybe he is as dim-witted as he claimed to be. ]
A Yes, you do.
Q So, that was, one, to get the prohibition amendment passed involved the states and the like, and then to get it repealed likewise involved the states. The constitution has never been interpreted that either the 18th or the 21st Amendment has a bearing on the right of congress to pass laws with respect to contraband substances. Those laws are all constitutional and the laws, whether they apply or how they apply in this case, I don’t make any comment on, but those laws are constitutional and valid, and you accept that?
[ There are two points to be clarified here. First, note the logical error in his statement about drugs being "contraband." Clearly he’s not saying that alcohol wasn’t declared contraband under the 18th Amendment. More importantly, here the judge begins his love affair with the word "interpret." Interpret is judge-speak for "ignoring the plain wording of English sentences." ]
A I accept that they are enacted by congress. But my question was if congress needed approval then to ban mere possession, and as you pointed out in your first introduction to the jury, that congress is empowered by Article I, in a list of about 17 specific empowerments, I’m unaware, and it was never made clear to me, where that is authorized in the constitution.
[Just to clarify: I would have voted to convict in any drug case if the statutes passed by Congress fit the words of the Constitution. Although I don’t care for the drug war because those waging it have made it highly inconvenient to get Claritin D for my allergies (and for other more serious reasons), I am not convinced that when God was doling out the "inalienable rights" that selling bricks of cocaine was among them. If the case had involved transport across state lines, or conspiracy to do so, I would have voted as a juror to convict.]
Q It’s authorized in the commerce clause. They have the right to regulate commerce. And one of the ways that they regulate commerce is they have the right to enact federal statutes banning contraband substances. Just like they have the right to enact statutes regulating price and wage controls, if they did. It all comes from the commerce clause in the constitution. And I am concerned about this because we all have our separate roles to play and I honor the role of the jury that the jury plays, but it’s the congress that passes the laws. And their laws, if constitutional, those are valid laws. So when you say you acknowledge what I’m saying, I get the sense that you think that you can decide whether the law is, the law now, I have nothing to say about the evidence, but whether the law is valid. Is that right?
A No, I don’t decide. I disagree with that. I am familiar with the philosophy known as a fully informed juror, but I disagree with it. What I’m saying is that the interstate commerce clause, congress shall have the right to regulate trade with all foreign nations and Indian tribes in and among the several states, that those words have specific meaning; that words have meaning. That’s what I’m saying.
Q Well, that’s been interpreted to extend to enacting laws with respect to contraband, including contraband drugs. And you accept that when I tell you that; is that correct?
[Again, he’s loving that word "interpreted." Why? Because to explain the actual meaning of the words in the commerce clause of the Constitution, which I summarized just before that, all that would have required is to pull out a dictionary and prove one of us wrong. He didn’t do that, because we both knew that no English language dictionary — either past or present — uses "within" or "inside of" as a meaning for the word "among." No honest and literate person can read that clause and conclude that it includes regulation of commerce inside of the states. But if judges can "interpret," then what the dictionary said, what the founding fathers said, and what Congress did back when they enacted prohibition … doesn’t matter. All that matters are the words of judges.]
A I can only accept the words that have been given to me, and I can only accept the fact that it is written as it is written.
Q So the fact that I interpret it as a judge and I say to you that the law is valid, it is constitutional, it does govern the conduct of all of us, including the government and Mr. Luisi here, you don’t accept that? I mean, when I tell you that you don’t accept that. You can read the laws and then make up your mind yourself is the way I get it.
A I do not agree with someone making up the laws of themselves. What I’m saying is simply that words have specific meaning. Regulate commerce among the several states. Among is a word that we use. As a former newspaper editor I know —
Q So you think congress has gone too far here?
A Well, for the purpose of this case it’s irrelevant. But you can —
Q Well, no, I —
A What I’m saying is —
Q — meant here, has gone too far here in passing the laws that outline possession of cocaine and conspiracy to possess cocaine. Is that right?
A In this case.
[The real question becomes: What is "too far"? Note that it’s a relative term. He’s not talking about being away from the wording of the Constitution, or he would have picked up a dictionary. The Constitution that he swore an oath to support is irrelevant to him, as he explains. All that matters is how other courts have "interpreted." If you sway from what other judges have said, you’ve gone "too far," even if you are going in the direction of the wording of the U.S. Constitution. Note that he goes on to define specifically what "too far" means. "Too far" on the commerce clause can only have meaning if other judges, such as in the Lopez gun case, say so.]
Q Yes, in this case. You say yes. They’ve gone too far. I understand. And that would be — there is a case called Lopez where the Supreme Court said that, congress passed a law saying that possession of a gun within a certain amount of, within a certain area of, a certain distance from a school, the Supreme Court of the United States said, well, that was unconstitutional, congress did go too far, because it wasn’t in interstate commerce, a simple possession of a gun. You think this is somewhat analogous to that. You think they’ve gone too far here?
A No, my statement — you’ve used the word interpret a few times.
Q Yes.
A And, you know, interpret is a word I associate with reading a foreign language. The constitution as far as — you know, it’s written in English. As an educator, I know it’s written to the eleventh grade vocabulary level. And among the several states is a reference to, is basically the plural between. It’s more than two. And I know that if a plane crashes between North America and Europe that it did not crash in Denver. I know that there’s a specific meaning to those words.
[This reply is one of the most carefully worded replies I had given during the voir dire. I really wanted to shout sarcastically to him that "I don’t need an interpreter for the Constitution, your honor. It’s not written in Greek or Sanskrit, it’s written in English!" But I bit my tongue and worded it as gently as I could, largely because I wanted to avoid a contempt of court charge. Regarding the Constitution being written to the 11th grade level: The school for which I work subscribes to a number of databases that are organized a number of ways, including by an algorithm that measures reading difficulty through writing characteristics such as length of sentences and words. I checked to see the difficulty of the Constitution one day and found that it was written to the 11th grade level of difficulty.]
Q So, I’m — thank you. I’m just trying to understand what you believe, about law now, not about the evidence here.
A I understand what you are saying.
Q Because I have interpreted this language and I’ve interpreted it in the terms of this specific case and I’ve interpreted it to the jury generally and now I’ve interpreted it to you specifically, and I at least believe that’s the judge’s function here. I just want to be clear. You think notwithstanding the fact that I’ve done that and explained it to you, you think you can interpret it yourself and reach whatever conclusions you reach. Is that correct?
[I wonder … has he really cared so little about the meaning of the words in the Constitution for so long that he really can’t understand that there are still people with the integrity not to bend to the "rule of men" and adhere to the law as written? This judge sees no law other than what other men (higher judges) tell him is law, so it’s natural he would assume that anyone who disagreed with him would be doing the same kind of usurpation of law. He’s assuming I’m doing the same as he is, i.e., taking whatever view I please, regardless of the law.]
A No.
Q It’s not correct?
A What I believe is that you presented first to us the constitution.
Q Yes.
A And that it is an English text that needs no interpretation because it is written it our native tongue and that the words are plain.
Q I don’t mean to spar with you. You think that it is open to interpretation by all of our citizens because the word is plain and therefore for a judge to interpret it is redundant. Is that fair?
[Note the clear implication here: the judge is saying that the American people are incapable of understanding their basic system of government, the U.S. Constitution. His statement is no different than saying the American people are incapable of self-government. When judges say such things from the bench, can freedom survive long?
Judge Young’s view of the power of judges to make juries ignore the clear wording of the Constitution was made clear in his memorandum on my dismissal. In that lengthy memorandum, he unequivocally declared that the jury acted properly in following the judge’s instructions to ignore the First Amendment in the Callendar trial under the Alien and Sedition Acts. James Callender was a newspaper editor who had criticized President Adams in print, and the Alien and Sedition Acts had — in a clear and flagrant violation of the First Amendment guarantee of freedom of the press — criminalized criticism of the president. Why shouldn’t the jury have considered the First Amendment? Because the judge had told them not to, of course, said Young.]
A No, I wouldn’t use the word redundant. You must give direction to a jury.
[I said here that the judge must give direction to the jury, because the judge is the expert on the statutes passed by Congress. I almost added that "we do need an interpreter for the statutes, because no one would accuse the statutes that Congress passes of being written in English." But this was not an occasion for sarcastic humor. Of course, the "direction" he’s about to give me is to ignore the plain wording of the Constitution. ]
Q And can you follow that direction?
A I can follow the direction that you have given me thus far, which includes your instructions on the first day.
Q Yes. All right. Why don’t you — could we ask him to step down the hall, and I need to talk with the lawyers. I thank you, sir, it’s very helpful. Thank you.
A Which way?
THE CLERK: This way here.
(Whereupon Juror Eddlem left the lobby.)
THE COURT: Yes. Well, what do you think?
MR. LaCHANCE: I would ask, given all the back and forth, I would ask you to ask him a question that I have here that —
THE COURT: Would you share it?
MR. LaCHANCE: Oh, absolutely.
THE COURT: Are you able to set aside your own interpretation and apply the law given to you by me to the facts as you find them? Yes.
MR. LaCHANCE: Because, I’m not sure exactly, exactly where he is, you know, in terms of what he believes. But it’s — I mean, it’s similar to a question that you would ask a juror with respect to the facts notwithstanding the fact that he’s a member of the Mafia, can you set that aside —
THE COURT: Yes. Yes.
MR. LaCHANCE: — and follow what I tell you.
THE COURT: I like your question and I will ask it. He — I tried to get at that. Government?
MS. TIDWELL: Your Honor, I think that, you know, he keeps, he goes back to the law as you applied it throughout. So he goes back to the constitution at every, you know, even though the law as instructed when you charged the jury about this case didn’t deal directly with the constitution, he’s going back to the first day and he’s saying the constitution, the plain words of the constitution mean this, I know what they mean and, you know, you have your interpretation of the law in this case, but my view of the constitution is my view of the constitution. And my concern, your Honor, is that on the very, during the initial voir dire in this case you talked about the, that the case concerned drug laws and all of this stuff and he never raised a hand, none of this ever came about. So, for now for him to, for it to come out now, I think it goes directly to his answers on the first day, or lack thereof, and it’s, we’re into misconduct.
[Ms. Tidwell is referring to a part of the case that I remember well. I remember the judge asking those of us who were potential jurors if we had "any feelings about the drug laws" which would prevent us from rendering a verdict "based upon the law." If we did, the judge asked us to speak up. I remember thinking at the time that speaking up would give me a 50—50 chance of getting off the jury, as I didn’t know at that time if the case involved transport of drugs across state lines. In hindsight, it would certainly have gotten me off. But the judge had asked if we had any objections to any drug "laws," and so long as they were laws I could indeed vote as a juror to convict. And I did think about speaking up, as I didn’t want to get seated on a jury. But then I had the following thought: "If I were the one on trial, would I want jurors who knew and understood the Constitution be automatically prohibited from serving on that jury?" Obviously, my answer to my own question was "no," and I did not speak up. I should also add that I had a lot of feedback to two earlier columns on my jury service (here and here) written for LewRockwell.com, including some criticisms from advocates of a fully informed jury. Those who advocate that view, who say jurors can "nullify" a law by voting not guilty, would be committing misconduct (and make themselves liars) at this point if they didn’t speak up and went through with the trial to vote "not guilty." But I had no objection to voting to convict even on bad laws, largely because the rigid enforcement of bad laws is the best advocacy for their repeal. The key question in this case was not nullification of law, something I oppose, but vindication of the highest law in the land.]
THE COURT: You know, let me interrupt only to say I’m going to have him back in here, I’m going to ask Mr. LaChance’s question, but I’m not having him keep stepping out and back because then I’m catechizing him.
(Whereupon the Court and the Clerk conferred.)
THE COURT: The clerk suggests substituting reading for the word interpretation because he may not believe in interpretation. Are you okay with that?
MR. LaCHANCE: Absolutely.
THE COURT: Set aside your own reading of the law and apply the reading of the law given to you by me. Yes. All right. Let’s have him back in.
(Whereupon Juror Eddlem re-entered the lobby.)
FURTHER INQUIRY BY THE COURT OF THE JUROR
Q Please sit down. The lawyers and I agree that I should put one other question to you, and it’s this. Are you able, on your oath as a juror, are you able to set aside your own reading of the law and apply the law given to you by me to the facts as you find them to be?
[My recollection was that the oath included the following bolded segment: “Would you be able to set aside your own reading of the Constitution, the judge’s past instructions and judge the facts based solely upon the judge’s explanation of the law?” Even though those words weren’t in the oath, that was nevertheless the clear intent of this second oath of jury service that had been put to me. I had made it clear during the voir dire that I was still following his past instructions on the Constitution, and that was what this new oath was aimed at erasing.]
A I never saw that I applied my own reading. The words mean what they mean.
Q All right.
A So, I’m not sure if I can give you a yes or no on that.
Q All right. Thank you. And would you step out once more. We’re not going to keep doing this, but I did want to ask you that question. Thank you, sir.
(Whereupon Juror Eddlem left the lobby.)
THE COURT: I, I think he’s engaged in juror nullification and I think it is within my power to dismiss him. But before I take that route, I’ll hear the government.
MS. TIDWELL: Your Honor, we would not object to that. We think that there’s substantial basis in the law for that view under both the law in the Third Circuit and of this circuit, strong language in the —
THE COURT: I’ve read it. All right, that’s your position.
MS. TIDWELL: I do believe that —
THE COURT: You don’t object —
MS. TIDWELL: We don’t object.
THE COURT: — and you would support it, I suppose, if I did it. Mr. LaChance, what do you think?
MR. LaCHANCE: I would object to dismissing him at this point. Your comment about the juror, engaging in juror nullification, he specifically referred to, that he knew about, and I can’t remember the exact words he used, but when he used those words that referred essentially, I think it’s —
THE COURT: Yes. I am aware of the fully informed juror, yes —
MR. LaCHANCE: Right.
THE COURT: — I think were the words he used.
MR. LaCHANCE: That’s exactly right, your Honor. And the fully informed juror project, or whatever it is, is essentially a study of juror nullification and he specifically said he was not engaged in that. I mean, he says I’m aware of that, you know, I’m aware of that. It’s like as if he said, I’m aware of jury nullification and, you know, that’s not what I’m doing. So, he’s denied, you know, he’s denied being engaged in jury nullification and, you know, on several occasions he’s given, you know, sort of equivocal answers, and I’m not sure that we’re actually going to get, you know, to the bottom of this. On the other hand, he’s not — the note and everything else that he’s talked about has referred to simple possession. And that’s not what this case is about anyway. And I think he made reference to the fact that sort of the case is different from, you know, from what was said in the note and he didn’t agree with the way the second note was, was characterized, that he does think that they are a duly constituted jury, and he basically says that he’s, he’s participating to his extent as a juror in the jury deliberation process.
THE COURT: All right.
MS. TIDWELL: We would, of course, disagree with that characterization.
THE COURT: I understand. I understand. All right. It’s my responsibility. I don’t accept his characterizations. He is going to be discharged. Let’s bring him back in. I will discharge him. And then —
THE CLERK: Are you going to continue the voir dire?
THE COURT: Absolutely. Absolutely. But we have to get —
(Whereupon Juror Eddlem re-entered the lobby.)
FURTHER INQUIRY BY THE COURT OF THE JUROR
Q Sir, I have exercised my responsibility and I’m going to excuse you from further service. And I thank you for your service. I do not in any way quarrel with your right to draw the conclusions that you have drawn. But it is my responsibility and I exercise it. Ms. Smith will see that you get your coat. Naturally, you’ll be paid for all your service, and I thank you very much.
A Thank you, your Honor.
(Whereupon Juror Eddlem left the lobby.)
THE COURT: And we’ll bring the next juror in. Now, just, just so we’re clear, I said I don’t accept his characterization, I do adhere to my view that he’s engaged in jury nullification and he clearly does not, my view, accept the interpretation of the commerce clause the way I and authoritative courts have interpreted it. But we’ll go right on.
END OF TRANSCRIPT
