I watched a prosecutor lose his mind at the notion of jurors using their conscience. Obama just made him US Attorney http://t.co/vI7TWK5DJV— Tim DeChristopher (@dechristopher) September 1, 2015
Obama just made the lead prosecutor in my trial, the one who freaked out at the possibility of empowered citizens interfering with his marching orders from fossil fuel corporations, the new US Attorney for Utah. I commented on this yesterday on Facebook and people wanted to hear the full story. Here it is.
The most important, and for me, most enlightening, point in my entire legal case happened during the jury selection process. About halfway through the process, a juror mentioned that he had received a pamphlet from the Fully Informed Jurors Association before entering the courthouse. The judge asked the rest of the jury pool how many of them had received a similar pamphlet. About three quarters of the 70 potential jurors raised their hands.
These pamphlets said nothing about my case, but they did talk about jurors’ rights to use their consciences when making their decisions. It discussed why we have juries, which is to protect our fellow citizens from the government. It quoted the nation’s founders about juries being arbiters of fact and of the law. The evolution of our legal system has led to the minimization of the role of citizens and the concentration of power into the hands of judges and prosecutors, but the inherent, though unknown, power of juries is still intact.
The lead prosecutor immediately requested a meeting in the judge’s chambers. As soon as we entered the room, the prosecutor erupted into panicked and desperate outrage. He demanded that the judge declare a mistrial and get a whole new jury pool. He said that I should either be prosecuted or held in contempt for jury tampering. With his hands shaking and his face red, he was nearly spitting when he read from the pamphlet and said, “This…this notion of voting your conscience is out in space!”
Until this point, the prosecutor had been calm and confident through the two years of pretrial hearings and delays. After all, it was a pretty easy case. I had committed an open and public act of civil disobedience, which I discussed openly with the investigating officers and in dozens of interviews and public speeches. Judge Dee Benson, a rightwing ideologue who spent most of his career working for Sen. Orrin Hatch, had already restricted my defense from talking about my motivations for taking action. We were not allowed to talk about climate change or any of the laws the government didn’t follow in holding the auction. It was a slam dunk for the prosecutor, but he was suddenly struck with fear by the fact that jurors had been reminded that they had rights to disagree with the government, responsibilities for their fellow citizens, and their own moral compasses. He was an assistant US Attorney, with the full power of the United States government behind him, but he was terrified of citizens holding on to their consciences.
Rather than declare a mistrial and publicly admit the government’s fear of empowered citizens, the judge pulled each potential juror into his chambers one at a time. With me and my legal team on one side, the prosecution on the other and the judge at the head of the table, each bewildered juror took a seat. The judge would say, “Now you need to disregard everything on that pamphlet. You need to understand that it’s not your job to decide what’s right and wrong. Your job is to listen to what I say the law is, and to enforce it even if you think it’s morally wrong. Can you do that? Can you follow my instructions even if you think it’s morally wrong?”
Unless they said “Yes” they could not be on the jury. I watched one juror after another say, “Yes, your honor, I’ll do what you tell me to do even if I think it’s morally wrong.” I could tell that they meant it. Almost none of them had been on a jury before (since jury trials have been severely minimized in our current system of mass incarceration.) They walked into a massive, imposing courthouse through two separate security screenings (an extra one had been set up for my courtroom.) Then the judge had come down from his high perch, in his robes of authority, to speak to them in patriarchal tones about how it wasn’t their job to decide what’s right or wrong. Moral agency can be kind of a hassle in a complex world, and this figure of authority had just absolved them of the burden.
That’s when I knew I was going to be convicted. It’s also when I first deeply understood how something like genocide or a holocaust could happen, how a whole citizenry could give away their moral agency and follow orders that they know to be morally wrong.
The prosecutor relaxed and dropped his call for a mistrial. He accepted that the jury pool had been sufficiently relieved of the notion that they could use their consciences. He went back to confidently carrying out the instructions of the oil and gas lobbyists who sat behind him throughout the trial.
Yesterday, President Obama used his executive authority to make that prosecutor, John Huber, the one who freaked out at the possibility of empowered citizens interfering with his marching orders from fossil fuel corporations, the new US Attorney for Utah. As Huber explained to the Deseret News, his guiding philosophy, ever since he got embarrassed on the football field in college, is to be the hammer instead of the nail. As most of the country is starting to wake up to the problems of mass incarceration, promoting a guy who sees everyone as nails that need hammering is certainly going in the wrong direction. But this isn’t about Obama helping to entrench a right-wing corporate power structure. Six and a half years into his presidency, Obama giving unilateral favors to conservatives who are still going to hate him is so commonplace that it wouldn’t be worth my time to write a blog post about that.
This is about our government’s fear of an engaged and empowered citizenry. I doubt John Huber is unique among prosecutors in being terrified by the thought of jurors using their conscience when exercising their civic duties. For the last month, the Denver DA’s office has been waging a battle against jury education activists. Even two of my own attorneys, who volunteered their services because they supported my cause and my right to dissent, disagree with me about the role of juries. They are genuinely opposed to mass incarceration, but they still fear the masses having too big a role in our legal system. Every conversation I’ve had about this comes down to whether or not we have faith in “We the People.” Like in every other branch of government, those in power are terrified of democracy.
What terrifies me more than the unpredictability of the masses is the thought of a citizenry that has lost touch with its moral agency, especially as we head into a future of climate chaos with ample opportunities for desperate authorities to scapegoat and criminalize certain classes of people. As in most times of hardship and desperation, those in power will likely encourage us to turn against one another. If we accept that it’s not our job as citizens to decide what’s right or wrong, any atrocity is possible.
But as I was reminded by the panicked reaction of a red-faced now-US Attorney John Huber, there is no power structure that can defeat citizens who stand in solidarity, hold on to their consciences, and trust in their shared moral agency.