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Constitutional education, history, commentary, reform, compliance, and interpretation.

2012/02/13

Abuses for which one can't get a jury trial

The jury is often recommended as the principal correction on government abuse, and it is urged to educate the public on how to serve on a jury, but if we examine a wide range of kinds of cases, we can find many for which the target of abuse can't get a jury. Here are a few, and recipients may be able to add to it:


  1. Abuse of rights by a government official such as a cop
    1. File criminal complaint under 18 USC 241, 242
      1. Prosecutor refuses to prosecute, or takes to grand jury with recommendation they no-bill it; or
      2. Judge rules there is no question of fact, therefore no right to a jury; or
      3. Prosecutor takes case to trial, but neither he nor defendant request a jury, because the judge is a former prosecutor who likes cops; or
      4. Judge directs jury to acquit: or
      5. Judge removes jurors from panel until he gets jury he wants
      6. Case dismissed
      7. Remedy: Private criminal prosecution, which will require electing official to provide for that by law
    2. File civil petition under 42 USC 1983, or under Bivens precedent or other theory of law
      1. Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
      2. Never get to apply for a jury
      3. Appeal it, but no jury available on appeal
      4. Appeal dismissed
      5. Remedy: Elect different judge or judge-appointing official, or elect officials who will pass reform laws
  2. Individual sues official or government for damages or for contract payment
    1. Government claims official or sovereign immunity, or
    2. Government waives sovereign immunity and consents to be sued
    3. Individual wins judgment
    4. Can only collect by applying to admin for payment from fund appropriated for purpose
    5. Admin ignores judgment and refuses payment
    6. Individual seeks writ of mandamus, which is ignored; or
    7. Mandamus issued, and admin agent ignores it
    8. Appeals denied until all admin remedies are exhausted
    9. Individual runs out of money to pursue claim, and no legal fees available to interest lawyer on contingency
    10. Remedy: Elect officials who will adopt constitutional amendment
  3. Individual files writ of habeas corpus, or other writ
    1. Judge refuses to act on writ; or
    2. Respondant refuses to respond; and
    3. Judge takes no action against respondant
    4. Appeal denied because no issue of law on which appeal can be made
    5. Remedy: Elect officials who will adopt constitutional amendment
  4. Judge sanctions lawyer large amount of money for making arguments he doesn't like, pays money to opposing counsel
    1. No right to a jury
    2. Remedy: Elect officials who will pass law providing for a right to a jury
  5. Administrative proceeding (such as tax court) rules wrongly against individual
    1. Wronged individual takes it to Art. III court
    2. Art. III court "defers" to finding of admin agency, putting burden of proof on individual
    3. Judge summarily finds for admin agency with no opportunity for jury
    4. Individual appeals, but no jury available on appeal
    5. Remedy: Elect officials who will adopt constitutional amendment
  6. Family court awards custody to one spouse, levies child support on other
    1. No right to a jury on custody issue
    2. Judge orders noncustodial spouse to jail for nonpayment of child support as "civil contempt", or garnishes his wages in state that allows that
    3. No right to a jury on civil contempt
    4. Remedy: Elect officials who will adopt constitutional amendment
  7. Probate court unjustly settles estate
    1. Divides estate among cronies, lawyers, court-appointed administrators
    2. No right to a jury on probate
    3. Remedy: Elect officials who will adopt constitutional amendment
  8. Bankruptcy court unjustly settles assets of bankrupt
    1. Divides assets among cronies, lawyers, court-appointed administrators
    2. No right to a jury on bankruptcy
    3. Remedy: Elect officials who will adopt constitutional amendment
  9. One party unjustly gets injunction, or is denied injunction
    1. No right to a jury on injunctions, except in a few states like Texas
    2. Remedy: Elect officials who will adopt constitutional amendment
  10. Individual prosecuted civilly for unauthorized practice of law
    1. No right to a jury on UPL
    2. Remedy: Elect officials who will adopt constitutional amendment
  11. Individual ruled incompetent, consigned to nursing home or asylum
    1. No right to a jury on competency hearings
    2. Remedy: Elect officials who will adopt constitutional amendment
  12. Property taken by eminent domain
    1. No right to a jury on eminent domain
    2. Remedy: Elect officials who will adopt constitutional amendment
  13. Non-judicial foreclosure
    1. No right to a jury on non-judicial foreclosure
    2. Remedy: Elect officials who will adopt constitutional amendment
  14. Asset forfeiture in rem
    1. No right to a jury on asset forfeiture in rem
    2. Remedy: Elect officials who will adopt constitutional amendment
  15. Fines for code or zoning violation or for creating a nuisance
    1. No right to a jury on such cases
    2. Remedy: Elect officials who will adopt constitutional amendment
  16. Ineligible official assumes office, or exceeds his authority
    1. No right to a jury on such cases
    2. Remedy: Elect officials who will adopt constitutional amendment or statute to provide for quo warranto, perhaps decided by jury
  17. President enters into executive agreement with foreign executive on trade that puts someone out of business
    1. Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
    2. Never get to apply for a jury
    3. Remedy: Elect different judge-appointing official, or elect officials who will pass reform laws or impeach president
  18. President goes to war without congressional declaration of war or letters of marque and reprisal
    1. Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
    2. Never get to apply for a jury
    3. Remedy: Elect different judge-appointing official, or elect officials who will pass reform laws or impeach president
  19. Supreme Court or other appeals court makes wrong decision
    1. No right to a jury on appeals
    2. Remedy: Elect officials who will appoint different judges, or adopt constitutional amendment or statute to provide for reform
  20. Legislature passes, and executive officials enforce, unconstitutional statutes based only on wrong court precedents
    1. No right to a jury on constitutionality of legislation, or than the application of it to criminal cases
    2. Remedy: Elect different legislators, or officials who will appoint different judges, or who will adopt constitutional amendment or statute to provide for reform
Basically, the main opportunity for jury intervention is in contract, tort, and criminal cases, but many abuses do not involve such issues.

For almost all of these, the only remedy is elections and constitutional amendments.

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