Correction: Despite repeated attempts to educate them, some news conglomerates continue to refer to AU as a "parental rights organization." AU involves itself in any issue dealing with due process and the rights of sovereign citizens, to include bearing arms, involuntary commitment, parental/family rights, property confiscation, taxation without representation, thought crimes, and trial by jury in open courts.

Summary: The Deseret News editorial board recently minimized your right to be tried by a jury of your peers (in an open court of public record). This dim view of due process appears to be shared by some Utah officials.  AU would like to set the record straight: Just why did early American leaders commit their fortunes and lives to safeguard jury trials?

The Deseret News editorial board recently denounced your right to be tried by a jury of your peers (in an open court of public record). From their editorial:

A jury of one’s peers disperses power in several ways that work in the favor of fairness and justice. Without this dispersion, the warning of Madison is realized, as is generally the case in Utah courts today:

"Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." — James Madison, essay in the National Gazette, March 27, 1792 (see The Founders’ Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 185)

The first president of the United States, John Adams, had this to say of the courts similar to those employed in Utah today:

The first principle of legitimate government is dispersed power and authority. In contrast a tyranny consolidates power and authority to deny liberty and justice.  The American Heritage College Dictionary (third edition) provides the following among its definitions of "tyranny":

"1. A government in which a single ruler is vested with absolute power. 2. The office, authority, or jurisdiction of an absolute ruler."

In the case of Utah parents whose rights are circumvented, the judge is one man or woman, financially compensated by the government and given sole authority to either terminate the family or allow it to continue. Because of human nature, vesting this near absolute power in one individual is destined to produce harmful results. As Madison put it:

"All men having power ought to be distrusted to a certain degree." — James Madison, speech at the Constitutional Convention, July 11, 1787 (see The Founders’ Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 184)

"An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others." — James Madison, Federalist No. 58, February 20, 1788 (see The Founders’ Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 198)

With the exception of a few Utah courts that are currently participating in a "pilot program," these proceedings are conducted in secret. The public is not allowed to watch and the court record cannot afterward be obtained and examined by it.

Without public access, it is extremely difficult to obtain the information needed to hold these judges accountable. As James Madison put it:

"The right of freely examining public characters and measures, and of free communication among the people thereon... has ever been justly deemed the only effectual guardian of every other right." — James Madison, Virginia Resolutions, December 21, 1798 (see The Founders’ Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 187)

Were public access expanded, citizens would still have only the occasional retention elections to remove these judges. In these elections, "50 percent + 1 vote" is required to remove these judges. Imagine the number of people a judge must likely injure or destroy in order to be removed.

In addition, the judge has no competition on the ballot. If by some miracle he is removed, the citizens have no direct say as to his replacement. The governor and senate again hold this political machinery in their hands. The judges, therefore, have ample opportunity and minimal risk in abusing defendants.

Were judges elected and all courts opened to public scrutiny, due process would demand that this awesome power be dispersed from one individual to several citizens. These citizens can bring additional insight and perspective to the table, and can provide a natural check on one another.

"I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." — Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820 (see The Founders’ Almanac, by Matthew Spalding, The Heritage Foundation, 2002, p. 180)

It should be noted that juries were composed traditionally of twelve members, and all twelve had to unanimously consent for a guilty verdict to be of force.  In recent times, this too has come under attack, and efforts have been made to reduce the jury body to six or four members.

The financial cost argument is not justifiable against the preservation of a system that has, over centuries, proved to be superior.  In addition, taxpayers and the innocent would likely be rewarded by a significant reduction in frivolous cases.  The unanimous consent of a twelve-member jury should be demanded at all times in order to convict a sovereign citizen.

Unlike Utah judges, who are selected by the governor, appointed by the senate, and receive their livelihood from the state, juries are selected at veritable random from among eligible citizens. Jury members should not be beholden to the state for their livelihoods, and are not re-elected to serve with pay on additional juries. This independence allows them the opportunity to see more objectively and to weigh additional factors and information into their judgments.

In "American’s Appeal to an Impartial World," published in 1775, passionate preacher Moses Mather discussed the right of trial by jury, and its codification in the Magna Carta:

The second president of the United States, John Adams, had this to say in 1771 regarding the duty of juries:

Many American founders were outspoken on the necessity of jury trials:

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." — Thomas Jefferson, letter to Thomas Paine, 1789

The Declaration of Independence, in which Jefferson played a principal role, outlines the reasons for which the American colonies were justified in breaking away from England. It levels the following accusation against King George:

"For depriving us in many cases of the benefits of Trial by Jury."

Note: This deprivation is reminiscent of the enactment of the Magna Carta, which, as Moses Mather indicated above, included the right to trial by jury. Note the penalty affixed to violating it: "…The English, animated with the spirit of freedom, to their immortal honor, anciently claimed these privileges, as their unalienable rights; and anxious to preserve and transmit them unimpaired to posterity; caused them to be reduced to writing, and in the most solemn manner to be recognized, ratified and confirmed, first by King John, then by his son Henry the IIId. In the 3d and 37th years of his reign, at Wesminster-Hall, where Magna Charta was read in the presence of the nobility and bishops, with lighted candles in their hands; the king, all the while laying his hand on his breast, at last, solemnly swearing faithfully and inviolably to observe all things therein contained, as he was a man, a christian, a soldier and a king; then the bishops extinguished the candles and threw them on the ground, and every one said, thus let him be extinguished and stink in hell, who violates this charter." — Moses Mather, America’s Appeal to the Impartial World, 1775 (see Political Sermons of the American Founding Era, 1730-1805, vol. 1, p. 447) Read the Magna Carta for yourself at our Citizen Library.

Throughout America’s history, juries have served to provide a check on our liberties. This safeguard has been touted by American courts as recently as 1972:

"[The jury has an] unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge... The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law." — U.S. v. Dougherty, D.C. Circuit Court of Appeals, 1972, 473 F.2d at 1130 and 1132.

Nevertheless, the majority opinion held that jurors need not be told this. Dissenting Chief Judge David L. Bazelon thought that they ought to be so told, and wrote:

"Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine." — Chief Judge David L. Bazelon, Dissent in U.S v. Dougherty, 473 F.2d 1113, 1142 (D.C. Cir. 1972).

In 1670, two Quakers, William Penn, often referred to as the father of religious freedom in America, and William Mead were arrested for holding a private religious service. The Quaker faith was not "authorized" by the Crown, and therefore violated the "Convectible Act." This was potentially a capital offense, falling under the definition of "sedition."

At trial, the court grew angry at Penn’s demand that a specific indictment be made, and at Mead’s refusal to testify and provide incriminating evidence against himself. The two were sent outside of the view of the jury and witnesses and were not allowed to face their accusers. Penn made the following statement to the court:

"…Is this justice or true Judgment? Must I therefore be taken away be cause I plead for the Fundamental Laws of England? However, this I leave upon your Consciences, who are of the Jury (and my sole Judges) that if these Ancient Fundamental Laws, which relate to Liberty and Property, and (are not limited to particular Persuasions in Matters of Religion) must not be indispensibly maintained and observed. Who can say he hath Right to the Coat upon his Back? Certainly our Liberties are openly to be invaded, our Wives to be ravished, our Children slaved, our Families ruined, and our Estates led away in Triumph, by every sturdy Beggar and malicious Informer, as their Trophies, but our (pretended) Forfeits for Conscience sake. The Lord of Heaven and Earth will be Judge between us in this Matter."

Upon conclusion of the trial, the court instructed the jury to find the two men guilty. The jury returned a not guilty verdict on all charges save one: They found Penn guilty of "speaking on Gracechurch Street," a meaningless charge which carried no criminal penalty (and because they did not find Mead guilty as well, it thoroughly destroyed the charge that the two were engaged in conspiracy).

The judge grew angry and berated and threatened the jury, particularly the jury leader, Edward Bushell:

"Gentlemen, you shall not be dismist till we have a Verdict, that the Court will accept; and you shall be lock'd up, without Meat, Drnik, Fire, and Tobacco; you shall not think thus to abuse the Court; we will have a Verdict, by the help of God, or you shall starve for it."

As soldiers pushed the jurors to the jury room, Penn shouted:

"You are English-men, mind your Privilege, give not away your Right."

The jurors replied:

"Nor will we ever do it."

The jury was imprisoned for two days without food, drink, or restrooms. They were again brought before the court and rendered the same verdict. The judge fined each juror forty marks and sent them to the Newgate Prison until they paid off their fines.

Eight of the twelve jurors bowed to the will of the court. Four remained steadfast, and endured nine weeks of prison, which included severe deprivation of food and water, barely being able to stand, and being soaked in their own urine and smeared with their own feces. They withstood their ordeal and were eventually released by an unprecedented response by the High Court of Common Pleas to Bushell’s writ of habeus corpus (i.e. "bring up the body").

Bushell, who owned an international shipping enterprise, has been quoted as stating:

Penn and Mead were not free, however. The court imprisoned them for several weeks for obeying the order of the bailiff to put their hats on while in the courtroom. Penn made the important observation that no Englishman can be so much as fined without a jury trial:

"I ask, if it be according to the Fundamental Laws of England, that any English-Man should be Fined or Amerced, but by the Judgment of his Peers or Jury; since it expressly contradicts the fourteenth and twenty-ninth Chap. of the great Charter of England, which say, No Free-man ought to be amerced, but by the Oath of good and Lawful Men of the Vicinage."

Penn was likely moved by this and other distasteful court experiences to fight vigorously for religious and other freedoms in the colony he later founded: Pennsylvania (or "Penn’s Woods").

The Deseret News and Sen. Dan Eastman claim that due process is already provided to accused parents. This is akin to the third world dictator who claims that all defendants get due process by the mere fact that they appear before Soviet-style courts and get to share a few censored words before the pre-determined sentence is pronounced.

Consider the family who had their three children seized by DCFS on January 1, 2004. The child escaped the home and was out roaming at night in his diaper. DCFS director Richard Anderson defended the seizure to the media:

Is this family deserving of termination? Do the children need to go to another home for their own safety? Without due process in the form of jury trials, we, the citizenry, are deprived the right to determine the fate of our neighbors. Our neighbors are being deprived the right to be judged by us. And the children we claim to protect and safeguard are being bounced around in secret courts without any lifeline. With no check on judicial favoritism, this includes children whose parents are guilty of severe abuse, but suffer no consequence because they are community leaders or wealthy.

A jury can take more factors into consideration than the judge who hides behind soul-less statutes or "precedence." Is the family very young, old, poor, disabled, or is one spouse being battered? If the parents are indeed guilty of violating the law, jurors can weigh their circumstances, the law, and thereby determine if they are malicious, hopelessly indifferent, simply ignorant, or in need of counseling or some other form of temporary assistance.

Without a jury, we the citizenry will never hear the family’s side of the story or know much more than what bureaucrats tell us in the pages of newspapers controlled by people who would gladly deprive the innocent of their due process rights. In the words of D.C. Circuit Court Judge Bazelon:

"It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature… The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values." — D.C. Circuit Court Judge D. Bazelon, "The Adversary Process—Who Needs It?" 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted.

The media, including the Deseret News, have shown little inclination to avoid airing dirty laundry on virtually any topic or subject, and give officials like Richard Anderson plenty of space to dominate the debate.  Yet, according to the Deseret News editorial board:

"Do parents whose children have been taken into state custody after reports of child abuse or neglect really want their troubled lives trotted out in public?"

If parents are guilty of severe abuse or neglect, then, yes, they should be open to scrutiny.  If they are innocent, they will likely not enjoy the ordeal, but they will be thankful the court was open and their peers were there to protect their rights.

America achieved greatness because it was built upon the foundation that people must be presumed innocent until they are proven guilty through due process, which includes a trial by a jury of the defendant’s peers. And until this essential right is restored, all accused parents must be presumed innocent — no matter how they look, talk, walk, or dress (or how convincing are the quotes of self-serving state bureaucrats in local newspapers).

Sir William Blackstone, author of Commentaries on the Laws of England and who was instrumental in molding much of the legal thought and intent of our nation (he is still cited in modern legal references such as Black’s Law Dictionary), emphasized the crucial duty all citizens have to jealously and vigilantly safeguard the right of jury trial:

"[Trial by jury]… is, says Dr. Blackstone, the most transcendant privilege which ‘any subject can enjoy or wish for, that he cannot be affected in his property, his liberty or person, but by the unanimous consent of twelve of his neighbors and equals: And when a celebrated French writer concludes, that because Rome, Sparta, and Carthage, lost their liberties, therefore England must in time lose theirs, he should have recollected, that Rome, Sparta, and Carthage were strangers to trial by jury; and that it is a duty which every man owes to his country, his friends, his posterity and himself, to maintain, to the utmost of his power, this valuable constitution in all its parts, to restore it to its antient dignity, if at all impaired, or deviated from its first institutions, &c. and above all, to guard with the most jealous circumspection, against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time, imperceptably undermine this best preservative of English liberties." — as quoted by Moses Mather in America’s Appeal to the Impartial World, 1775 (see Political Sermons of the American Founding Era, 1730-1805, vol. 1, p. 444-449)

Officials who allow state agencies to terminate the rights of families without due process deserve exposure and appropriate consequences for their misconduct. They must not be allowed to evade responsibility through diversionary excuses such as financial costs of a jury, trust in bureaucrats, statutes, and the nature of man, or reliance upon the modern, unjust judicial notion of "precedence." They should be tried for severe abuse and neglect of their office and oaths. They justify Blackstone’s solemn caution:

"The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon the sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern." — Sir William Blackstone’s Commentaries on the Laws of England (Oxford, 1765-1769) Book IV, Ch. 27, Para. V.