SAM SMITH, 1999 – The October issue was late because your editor was tied up in a six-hour voir dire for a double-robbery case. In the end, I maintained my perfect record of having never sat through a full trial. As a Coast Guard officer I was bounced from two courts martial and I have been dismissed from three jury panels. In the one case in which I was seated, a White House protest case, the first two witnesses — US Park Police officers — identified the defense counsel as the perp. The trial was over in 20 minutes.
In the most recent case, the judge’s impressive if tedious effort to obtain a fair jury resulted in a long series of bench conferences as citizens told of their connections to crime and law enforcement. For my part I mentioned my USCG background, three house burglaries, one office break-in, one stolen car, being detained at Washington National Airport as a suspected terrorist due to a defective computer-screening machine, and the fact that one of my brother’s in-laws had been killed in a drug store robbery.
Then I explained to Judge Michael Rankin that, while I doubted it was relevant in this case, I had been advised that I should reveal my long public advocacy of the right of juries to judge both the law and the facts. I noted that this view had upset some judges. Judge Rankin said it didn’t bother him although he had recently debated the subject with Paul Butler, a black lawyer-scholar who has promoted nullification as a form of civil rights protest. I told the judge that I didn’t think Butler’s arguments were effective because they were based on ethnicity rather than history, which offered a much stronger case. I then began a brief spiel the subject citing Learned Hand, Oliver Wendell Holmes and Thomas Jefferson. While previous US Attorneys had expressed hostility towards my views, this one merely asked whether there were any legal principles that I would uphold. I asked for an example and Judge Rankin said, well, you would support the presumption of innocence wouldn’t you? I said, of course, and then — brazenly rapping my hand on the judge’s bench to punctuate the point — said my concern was that the jury remain our last defense against tyranny, the final legislature deciding the law as it pertained to the case under consideration. To my amazement, Judge Rankin said, well, you’ll get no argument from me. The judge and both attorneys agreed that the case under consideration did not raise such issues and that was the end of the matter. I was, of course, later dismissed on a peremptory challenge.
The incident reminded me of another pleasant surprise I recently stumbled upon in a DC courthouse. Twenty citizens, including myself, are suing the President, Senate, House, and federal control board for the lack of DC self-government. The day before our hearing before a special three-judge panel in US District Court (in the very courtroom of Watergate, Iran-Contra, and Monica fame)someone called the US Marshals and warned that our group might be planning some disruption. Sure enough, when I entered the courthouse with co-plaintiff and black minister Graylan Hagler, there was an excess of surly cops lined up outside. Inside, a US Marshal approached and asked if he could help us. Rev. Hagler asked for directions to the cafeteria which the Marshal gave and then he looked at Hagler and said, “I’ve been to your church, Reverend. In fact, one of my men is on your board of trustees. Let’s go and bless him.” So the marshal and the reverend left me to find the cafeteria by myself and to recall again something that is easy for activists to forget: not all your friends are out of power.