The original intent of a jury was to keep government tyranny in check. In today’s legal system, jurors are rarely told that they have this power. Jason Hartman interviews legal scholar and civil liberties activist, Roger Roots, on the responsibilities of juries and the Constitutional purpose of juries. For more details, listen at: www.HolisticSurvival.com/podcast/. Roger explains cases of unfair advantage by the U.S. Justice Department, where jurors are often directed and instructed by judges as to what convictions they may bring against a person, without being given the opportunity to review the laws. The full function of the jury is to be a final check and balance on the government legal system. Roger also discusses violations of First Amendment rights, corrupt laws, political involvement in corporations and markets, and how the violations against our First Amendment rights squelches the voice of the people who try to expose corruption. Roger talks about his work with the Fully Informed Jury Association, where he has pushed for legislation in favor of juries being fully informed of their rights and duties and the overturning of various small laws that prevent our legal system from working as our Founding Fathers intended.
Dr. Roger Roots is a nationally recognized criminologist, legal scholar and civil liberties activist. He is active in libertarian politics, and in the promotion of a freer, fairer and more just world. He is the author of more than two dozen noteworthy scholarly articles, and some of his research has been relied on by federal courts. He is an advocate for the rights of the disenfranchised, the downtrodden and the politically estranged. In recent years, Roots has focused his work and advocacy on three areas: the fully informed jury movement, the reestablishment of Fourth Amendment protections and the establishment of a fair and equal court system for all participants. Roots has published an important article on the lopsided procedural rules of the federal court system, “Unfair Rules of Procedure: Why Does the Government Get More Time?” which appeared in The American Journal of Trial Advocacy in 2010. He has applied for two major research grants to continue and pursue this research, and he hopes to secure research funding to pursue this research in the near future. In 2011, Roots initiated a formal request to U.S. Chief Justice John Roberts, chair of the United States Judicial Conference, in the hopes that certain unfair advantages for the U.S. Justice Department can be removed from the Federal Rules of court procedure. This work is ongoing. Roots has argued that various filing requirement disparities in the Federal Rules of Civil, Appellate and Supreme Court Procedure give an unfair advantage to the U.S. Justice Department in civil and criminal litigation, and that this advantage is compounded over time. This advantage places the poor and minorities in an especially disadvantaged position. Roots has presented academic papers on the topic before the Law and Society Association national conference and the annual meeting of the American Society of Criminology.
During the 2011 Montana legislative session, Roots coauthored legislation that became House Bill 332, introduced by Representative Bob Wagner, to require Montana judges to fully inform juries of their absolute right to acquit and to determine the law in jury trials. The legislation did not get out of the House Judiciary Committee, but Roots has redrafted a proposed bill for the 2013 Legislative Session. Roots has also coauthored and sponsored a proposed constitutional amendment in Montana requiring juries in criminal trials be instructed regarding their power to review the law. On May 26, 2011, the Montana Secretary of State approved the proposed constitutional amendment (CI-107) for circulation as a ballot initiative. Dr. Roots is a member of the Board of Advisers of the Fully Informed Jury Association (www.FIJA.org), America’s oldest and largest educational organization solely dedicated to informing jurors and potential jurors of their lawful heritage, purpose and powers. Roots was a featured speaker at the 2008 Libertarian Party National Convention in Denver, Colorado regarding fully informed juries. He has been interviewed by The Orlando Sentinel and other publications regarding the rights and powers of juries. In February, 2011, he addressed a packed crowd at the New York City Junto Meeting at the Great Society Library in Manhattan, along with Professor Julian Heicklen, America’s foremost street advocate for fully informed juries. In recent years, Roots has studied the origins of search-and-seizure protections and has launched a long-term research project into the original intent behind the U.S. Constitution’s Fourth Amendment. In 2009, Roots published a major article on the subject, “The Originalist Case For the Fourth Amendment Exclusionary Rule,” Gonzaga Law Review, Vol. 45, pp. 1-66. The article has been the topic of academic discussions on the Volokh Conspiracy and other venues. Roots is currently engaged in research into the provenance of certain Founding-Era British books and pamphlets held in American rare book libraries. In 2010, Roots was awarded a research grant from the New York Institute of Technology to continue this research. This research focuses on the question of whether any of America’s Constitutional Framers owned or had access to these pamphlets prior to the drafting and ratification of the Fourth Amendment. (The larger research question is whether pre-Framing discussions of (what became) the Fourth Amendment exclusionary rule in British pamphlets were read or discussed by America’s Founding Fathers.
Dr. Roger Roots has also taught criminal justice and sociology classes at the college level, a pursuit he greatly enjoys. He especially enjoys teaching legal history and constitutional criminal procedure. Although he began his adult life as a high school dropout and an ex-convict, he now holds a Bachelors degree in Sociology from Montana State University—Billings, a Masters degree in Criminal Justice Science from Roger Williams University in Bristol, Rhode Island, a law degree from Roger Williams University, and a Ph.D. in Sociology from the University of Nevada, Las Vegas (UNLV). Roots was an honor student throughout higher education, and kept a Deans Scholarship in all three years of law school. On two occasions, he entered and won national legal writing competitions. His mentor at UNLV was the great Las Vegas gambling researcher Frederick Preston, who founded the doctoral program in Sociology at UNLV. His outside dissertation advisor was none other than Hans-Hermann Hoppe, the great libertarian economist and author of the landmark book, Democracy: The God That Failed who inherited the Murray Rothbard professorship at UNLV. As an attorney Roger Roots has worked on a variety of civil and criminal cases. He is the only lawyer in the history of the U.S. 8th Circuit to ever overturn a conviction on venue grounds. United States v. Stanko, 528 F.3d 581, 584 (8th Cir. 2008). Here is the winning brief. Roots has also worked on litigation concerning America’s lost legacy of grand jury oversight, a topic he has studied and written about on numerous occasions. Roots’ legal scholarship has been cited in the Harvard Law Review and the Yale Law Journal and been relied on by courts across the United States. (See, e.g., Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003); United States v. Marcucci, 299 F.3d 1156, 1162 (9th Cir. 2002); United States v. Holmstrom, 246 F.Supp.2d 1101, 1110 (E.D.Wash. 2003)). Roots is an infrequent blogger for some of America’s premier libertarian websites, including Lewrockwell.com and Nolanchart.com. He was a featured speaker at the 2002 Nevada State Libertarian Party Convention and at the 2008 National Libertarian Party Convention in Denver, Colorado. He has also spoken before the Austrian Scholars Convention of the Ludwig Von Mises Institute in Auburn, Alabama. Dr. Roots is a founding member of the Wall of Tolerance, co-founded by Rosa Parks, whose courageous stand against authoritarian government in 1955 showed millions of others how to resist government by simply saying no.
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Start of Interview with Dr. Roger Roots
Jason Hartman: It’s my pleasure to welcome Dr. Roger Roots to the show. He is a very interesting person who is active in the civil liberties movement and he is a legal scholar. He’s a nationally recognized criminologist, active in Libertarian politics as well, and a promoter of a freer, fairer and more just world. He has a couple of different organizations he’s involved in. One is entitled The Fully Informed Jury Association and it’s just a pleasure to have him here because when we talk about all of the threats we face in Today’s world, folks, really one of the biggest threats we have is dealing with the legal system and dealing with the government. That is probably one of our most realistic and likely threats. So, we’re going to examine that in this interview today with Roger. Welcome, Roger. How are you?
Roger Roots: I’m good. Thank you for having me.
Jason Hartman: Well, it’s my pleasure. And you’re coming to us today from Montana, right?
Roger Roots: Yeah, I’m in Billings, Montana right now. My headquarters is sort of Livingston, Montana, right by Yellowstone National Park.
Jason Hartman: Well, fantastic. Beautiful place, I’ve been there myself. So, tell us a little bit about what it is you do. And I guess you have a couple of organizations, right?
Roger Roots: Yeah, I’m active right now in the Fully Informed Jury Association. And that is an organization – it’s about around 20 years ago – it was founded by a couple of Montanans 20 years ago, maybe more than 20 years ago now. And the purpose of the organization, sort of an educational non-profit think tank, the purpose of the organization is to just educate jurors about their proper purpose and their role that they are supposed to be playing in the justice system. And a lot of people ask why do jurors need to be educated? Well, it doesn’t take any education to be a juror and they’re partially right of course. But the truth is that the modern criminal justice system and maybe the justice system more broadly…
Jason Hartman: So even the civil justice system too, yeah.
Roger Roots: Yeah, has slowly over time has been painting the jury into a smaller and weaker and more narrower corner. And the main way they do that, and especially if there are any listeners who have been on a jury, you know this. The judge, at the end of every criminal trial, the judge will usually instruct the jury in most jurisdictions that they can only judge the facts. In other words, they’re not allowed to judge the law. The judge will tell the jurors you can only consider the facts, you’re not allowed to consider the constitutionality of the laws that are being applied. You’re not allowed to consider the fairness of the prosecution. You’re not allowed to consider whether or not the prosecution is abusing the defendant and being selective or vindictive. You’re just there to determine the facts. Many jurors will tell you that this is what they’re told and this is absolutely not true from a historical and a constitutional perspective. It’s absolutely not true.
Historically, under the original intent of the constitution and all of the common law going back centuries, the jury is supposed to act as a check on government. It is supposed to be a protector. That’s why the founding fathers of the constitution were so adamant about putting trial by jury in the constitution. We don’t need jurors just to be fact finders. We could have panels or committees, judges could do that. The true purpose and original design of the jury is that the jury act as a check on government, and that is the jury can veto tyrannical laws and veto government abuses. That’s the original intent of the jury.
Jason Hartman: That’s interesting that you say that, Roger, because that’s the original intent of the founding fathers and the constitution is to limit the power of government and preserve the power of the individual over oppressive government. So, it’s interesting it trickles right down to the jury situation as well. And so the juries have been painted more and more into this corner. Now, are there some seminal laws, maybe 2 or 3 of them that have really painted the jury more into the corner since back in the late 1700s?
Roger Roots: Well, here’s what has happened. There have been a series of little changes over time. But each one of course has added up. There have been a series of real close cases before the US Supreme Courts and split decisions and some judges go one way, some judges go the other way. In the year 1895, there was a fairly important US Supreme Court Decision called Sparf V. United States. It’s one of those 100 paged opinions with many difference concurrences, descent and this kind of thing. I believe it was a 4 to 3 to 2 split or something like that with some judges just saying we concur with part of it but not the other point, a very complicated ruling. But the Sparf decision, at least the part that was the willing plurality said that jurors can be deceived, that judges can tell them that in a murder case they’re not allowed to bring back a manslaughter verdict. Murder has several degrees. There’s first degree, second degree, and then there’s manslaughter. And there can be voluntary manslaughter and involuntary manslaughter. And it often happens that these things are really at issue in a murder case. And sometimes one side or the other, the prosecutor or the defendant – by the way, it can vary sometimes – will seek to have the jury instructed you can come back with a manslaughter verdict, you can come back with a second degree murder verdict or whatever, it’s up to the jury. Traditionally, it is up to the jury by constitutional design. Even in a first degree murder case, the jury has the power, and it always has, to come back with a manslaughter verdict.
After the Sparf decision, the Sparf decision allowed judges to sort of conceal from the jury the fact that they have this power. And, by the way, this case has sort of extended from the Sparf decision and it gets a little bit complicated, but by and large jurors are never told that they have the power to act as a check on government. They’re told that they are just fact finders. And, again, that is completely in opposition to the original purpose of a trial by jury.
Jason Hartman: Very important point. After the original OJ verdict back in the 90s, a lot of people are upset about that one. Seemingly, most people in their right mind think OJ did it I think. That’s an anectdotal statement of course. That’s what I hear, I don’t know.
Roger Roots: Well, you’re talking to someone who’s a little skeptical.
Jason Hartman: Fair enough. Some people I guess think his friend or his kid did it. I don’t know, whatever. But we don’t need to necessarily go into that unless you want to of course. But there was a lot of talk after that verdict that the jury just was clueless, it was a bunch of losers and a bunch of people that worked on the post office, nothing against postal workers necessarily. The point, Roger, just I got from it was that the only people showing up on juries the majority of the time are bureaucrats and people who can get the time off easily, it’s not going to cost them. If an entrepreneur who has their own business who’s ambitious, who’s making a difference in the world kind of thing, they’re just gonna find a way to get out of it and not be on the jury because they just don’t have time to do it.
So there was a lot of talk then about the professional jurors, how maybe we should pay jurors and hire them to be there. There are several statements in there I’d like you to respond to. It’s kind of a big compound question there.
Roger Roots: Well, of course, I disagree with that idea. I’ve heard that argument many times. I disagree with the idea that we need professional or government jurors.
Jason Hartman: That’s the whole point is that we shouldn’t have the government doing it, right?
Roger Roots: Exactly. They’re supposed to be lay people, lay as in common people which are there to act as a check on government and as a protector of the citizenry.
You mentioned the OJ trial. Funny, I’m one of the few people – I’ve argued this with probably hundreds of people over the years – but I think the jurors’ verdict in that criminal trial was absolutely correct, even if it is true that OJ committed the murder. Even if that is true, if you look closely at that trial, evidence at that trial show that the police were fabricating evidence. There was a lot of evidence where they had a bloody glove that they placed in one place and then somebody moved a bloody glove to another location and it came out at trial that I believe at one point they gathered a specimen of OJ’s blood, a blood sample, to test for DNA or this kind of thing. And the testimony came out that the detectives returned to the crime scene after they drew blood from OJ Simpson and therefore they had the opportunity to drop blood at the crime scene. There was all kinds of improprieties with regard to the police treatment of the evidence.
And if you’re sitting on the jury and you see evidence that the police are committing these kinds of improprieties, if you see evidence is being fabricated, that the police are lying about one thing or the other, the appropriate thing for you to do as a juror is to say “Not guilty” because you can’t believe anything that’s being said. And it is an absolute fact in that OJ Simpson criminal trial that the police committed numerous improprieties with regard to the investigation and the evidence and the security of the scene, all kinds of improprieties. So, I actually think the jury came to an absolutely appropriate verdict in that case and that case, to me, represents the very highest ideals of what a jury is supposed to do, even if, again, even if OJ was “guilty” of the crime.
Jason Hartman: That’s an important distinction, then. I agree with you. I remember the trial a little bit and the police screwed up a whole bunch of things and there were a bunch of malicious motivations on their part potentially as well as just carelessness and negligence. Even considering that, though, do you have an opinion as to whether or not he was guilty?
Roger Roots: Well, it’s funny. I don’t know – now it seems like he probably was implicated somehow. I have actually attended a lecture put on by Wen Ho Lee who of course was the main criminalist for the defense. I believe he’s at the University of Connecticut right now or maybe he’s moved on to another institution, but basically he’s a forensic scientist who was a defense expert. He has put on lectures in the years after that verdict in which he has basically shown very, very well that there were at least 2 perpetrators in that murder. Now, again, maybe OJ might have been one of those, but it’s pretty clear that there were blood droplets that was dropped on the body of Nicole Brown Simpson from above maybe sometime after she was actually dead, these kinds of things.
Jason Hartman: Lot of questions there.
Roger Roots: A lot of questions.
Jason Hartman: Alright, good. Tell us more about the Informed Juries and your other group about procedures. And I want to ask you about that recent case that is I guess pretty significant in the legal world and then to all of us by extension, the Citizens United case as well. So, take whichever one first you like.
Roger Roots: Well, I’ll take the Citizens United case which you just brought up. This is an area of the law that is rapidly changing and there’s a lot of contention over this. Two years ago, the United States Supreme Court issued this decision called Citizens United versus Federal Election Commission and the case involved a video that some corporation wanted to show right before the democratic primaries in 2008 and the video was called Hillary: The Movie, something like that. It was a very anti-Hillary Clinton video. And the corporation that was politically funded wanted to show this video on Cable TV across the country right before the democratic primary. Obviously, let’s just say the intent was to hurt Hillary and to help maybe Barack Obama at that time – it’s not clear.
But, in any case, the Federal Election Commission stepped in and said no, no, no, this is violation of campaign spending laws and you’re not allowed to spend money…They stepped into a first amendment question. Remember, this is freedom of speech or freedom of press, but the election officials came in and said, no, you can’t show that video prior to 30 days or it might have been 60 days before the primary. Well, unfortunately, that was censorship and they didn’t get to show the video. They had to appeal up to the US Supreme Court. The US Supreme Court came down about a year later with a very good ruling in my opinion which is that is censorship, it violates the first amendment. And it was about a 5 to 4 split ruling which is quite common for cases before the US Supreme Court these days. Usually there are 4 conservatives on the Supreme Court and 4 Liberals on the Supreme Court. Then there’s the swing voter and that is Justice Kennedy who would be the winning justice, he swings things one way or the other in a lot of cases. Very important Justice, by the way, Anthony Kennedy, interesting. But, in any case, the ruling came down, Citizens United, and you see the America – I guess you might call them the anti-corporate people out there, sometimes you might call them left-wingers, liberals – I don’t actually call them liberals because I don’t think they’re liberals. They are government supremacists. The anti-business element, we’ll just call them that.
Jason Hartman: That’s interesting that you say that – government supremacist as opposed to corporate supremacist. That’s a very interesting phraseology, I like that.
Roger Roots: Yeah. I’m a liberal, I consider myself a liberal.
Jason Hartman: But also you’re a libertarian at the same time, right?
Roger Roots: Exactly. A lot of these words don’t have any real meaning when you really think about what’s the definition. Even conservative, the conservative can be used in so many different ways that it becomes devoid of all meaning. But, in any case, let’s just say the crowd that is around us that hates the corporations, we know who they are, they are up in arms about the Citizens United ruling and, listen, I’ve seen online petition, they’re actually on MoveOn.org and a lot of the democratic – you might call them liberals – the progressive community is out trying to petition for a constitutional amendment to overturn the Citizens United decision and these kinds of things. And so it’s very interesting. The Montana Supreme Court right where I am, a lot of people think of Montana as a very conservative Republican state, right winged state – it’s really not true if you live here. Montana has an awful lot of history of mining unions and things, very strong democratic party here in Montana.
Jason Hartman: All those celebrities come up there and own a bunch of land up there, too, so they tend to be on the liberal side, right?
Roger Roots: Oh, yeah. Well, we have two US Senators, Senator Max Baucus and Senator Jon Tester, both democrats. So, a lot of people think Montana’s a right-wing state. It’s absolutely not true. We have a very strong liberal democrat element here. The state Supreme Court is very liberal and they came out with a decision about a week ago, Western Tradition Partnership decision where they purported more or less to overturn the US Supreme Court in Montana. They basically held that in Montana corporations don’t have any free speech rights. Anyway, this is going to be contentious from here on out – and there may be other states that come in overturning one aspect for another. But basically there’s an element that is arguing that corporations are not persons or that corporations don’t have first amendment rights, rights to freedom of press or speech.
Now, keep in mind there are many important first amendment decisions by the US Supreme Court over the years that have involved for profit corporations. New York Times v. Sullivan, one of the most famous person and cases of the Supreme Court involved the New York Times, a for profit corporation. Hustler Magazine v. Jerry Falwell, many people are familiar with that case. The New York Times had a case called New York Times v. United States where they fought and won the right to publish the Pentagon papers back in probably the early 70s. Just a few examples, but we wouldn’t have a first amendment if it weren’t for those great decisions that applied to corporations. And yet today the progressive community is up in arms about the notion that corporations are persons legally. Keep in mind we know corporations are artificial entities, but they are legal persons for some limited legal purposes that they can buy and sell in their own name. They can file lawsuits, they can sue and be sued. So they are persons. Any lawyer will tell you that’s not in any remote sense some kind of outrage. Nothing new about that concept, it’s going back hundreds of years. And I don’t know exactly what your take is on it.
Jason Hartman: So Citizen United, just to make sure I understand as a layman, because I only heard about this case a couple of weeks ago, the corporation was not allowed to release the film, it was censored, and one side said you can censor it because it’s not a person, it’s not an individual, it’s a corporation and they tried to bifurcate the rights of the corporation versus an individual, is that it?
Roger Roots: Pretty much. Now, there’s an angle that has always been a clash of ideas in first amendment law about political funding. So, the US Supreme court held, in about 1976, in a very landmark case that I now forget the name of, the US Supreme court has held in several cases that money is speech. And it makes sense when you really think about it because if you own a printing press, let’s say if you’re a billionaire, can you be stopped from publishing a billion dollars’ worth of flyers reporting Newt Gingrich? I would say absolutely not. The first amendment forbids such censorship even if you’re a billionaire. But there is a very powerful community in our country that argues the opposite. They say this is campaign spending, it’s not freedom of the press. But, to me, I agree with you and Supreme Court that money is speech and it translates into speech. And you know that in radio. In all media, money is speech. Let’s face it. It really translates into speech. So, if you’re regulating campaign finance spending, you really are regulating speech. Now, McCain Feingold law that is currently in place more or less…By the way, Citizen United sort of invalidated parts of the McCain Feingold Act but a lot of it’s still in place, it really restricts people from spending more than I guess $2000 on a candidate in the primary and in the general and there’s so many different regulations that, in my opinion, violate the freedom of speech and press. And I’ve just been dealing with this in the last week or so with people telling me no, no, no, corporations don’t have the right to spend millions of dollars on some video or some ad campaign for a candidate or a political position. My argument is the remedy for corrupt corporations is more speech. In other words, if you think that Exxon is funding a candidate or a political position and they’re spending millions of dollars on it, the remedy is to form your own think tank, your own nonprofit corporation, your own political action committee and try to out fund.
Ideas are out in the atmosphere and the best ideas win in the end in my opinion.
Jason Hartman: Let me take a brief pause. We’ll be back in just a minute.
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Jason Hartman: Well, okay, so on that one I agree with you that more speech is a good thing, but the problem is the corporations have such a head start because they’re already organized. They’re already organized, they have huge scale. And when I’m talking about the corporations, I’m talking about the big ones. I’m talking about the corporatocracy, Wall Street, those types. And believe me, I’m a capitalist to the end. Like when you look at this Occupy Wall Street movement, I really side with those protesters largely because I don’t think Wall Street represents capitalism at all. I think it represents cronyism and fascism.
Roger Roots: Absolutely. I agree with you.
Jason Hartman: The problem is the corporations have such a head start. And I think what needs to happen is we need to get the money out of politics. I think we might disagree there, but I just thought I would throw in my 2 cents for what it’s worth.
Roger Roots: I often argue to people that in fact the corporation business model is a business model for the little guy and a lot of people don’t realize that. But the corporate business model allows a guy with just a few hundred bucks who cannot buy a business and cannot invest in his own business that allows him to invest and buy shares of a business and invest in shares of a business. So, really, the corporate business model is a model for the little guy. A lot of people don’t think that but it’s true.
And, by the way, it’s hundreds of years old. There have been corporate business models, the Viking ships that used to go around – we’re talking 2000 years ago – they were purchased and built and they were set sail using a collection of people who invested a little bit of money to invest in an expedition. And the Venetians probably had corporate business models. There’s nothing new about this.
Jason Hartman: Well, the reason that came about, from my understanding, is that people just wouldn’t take the incredibly high risk of exploring the planet if they had to be personally liable. They wanted to be able to go and raise funds for a journey like one that Columbus would go on and didn’t want to be personally liable if the thing didn’t work out. And that’s reasonable. I agree with you there. And I agree with you it does allow the little guy to have access to big business. The only problem where it kind of falls apart in practice is you got the people at the top and the Wall Street people and the board of directors and the CEOs skimming all the money off the top. That’s the problem. It’s not like an equal thing. One of the things I talk about is I like Lou Dobbs book, War on the Middle Class because chapter 2 he talks about it. And I don’t know if you’ve read the book but in War on the Middle Class, Lou Dobbs cites all of these CEOs and the money they took out of the companies when the shareholders return was negative.
And one example, he talks about Larry Ellison, president and CEO of Oracle – we all know Oracle, the big software company – from 2000 to 2002, and forgive me if I get the numbers ever so slightly wrong, what’s a couple million here or there, but in 2 years Larry Ellison, his personal take out of the company was like $716 million dollars, almost $1 billion in 2 short years. And at the same time shareholder return was -61%.
Listen, I have several corporations myself. I’m a total capitalist. Conceptually, I agree with the idea, I love the idea. But in practice, with accounting firms and lawyers and big business, they’ve just found a way to malign the system.
Roger Roots: No doubt about that. The question is what’s the remedy? And a true libertarian says the remedy is the market itself. The free market will hold some of the resolve, all those things, because any corporation that has that high end expenses and is paying its CEOs that amount isn’t going to be competitive in the market – let’s just face it. Ultimately, everything sort of settles out.
Jason Hartman: Yeah, you’re right because we’re seeing a move away from Wall Street now and I think Wall Street is scared to death about it. People now are wanting to invest in more direct assets like income property and owning real estate. You hear all the commercials for gold and silver. People want to control. They want to be direct investors. The don’t want to give their money to some mutual fund manager and then you’ve got so many layers in there. You’ve got the board of directors, the CEOs. So, yeah, I think the market is settling that ultimately. You’re right.
Roger Roots: In the future, it wouldn’t surprise me if we don’t see these huge salaries that we have seen in recent years of this type of CEO just because I don’t think the shareholders are going to tolerate it in the future as much. Who knows?
Jason Hartman: Word is getting out and I think it is moving in that direction, so I’m glad to see it. And we need to have a lot of protection, freedom of speech so people can go out and complain like crazy against these corporations. It’s kind of a nice movement in a way. I know it’s dangerous, it’s certainly not perfect. But all these consumer complaint website where people can air their grievances and have some redress against- the abuses of big companies.
Roger Roots: And companies fear that stuff almost more than they fear government inquiries.
Jason Hartman: Yeah. Well, with government inquiries, they just look at that a lot of times as a cost to doing business. They just figure we’ll let the government fine us X amount per year and that’s just in our budget. It’s really scary that it’s that way.
Roger Roots: Yeah, but no company can survive long if there’s a website, internet movement, to expose something. Bank of America about a month ago had to back away from…
Jason Hartman: The fees, the ATM fees. And then Verizon wanted to add $2 a month on every bill and they backed away. It’s awesome, thank God for the first amendment. There’s a reason it’s first, huh Roger?
Roger Roots: Ain’t that the truth.
Jason Hartman: It’s the most important one. Well, tell us a little bit more about what you do or these issues with procedure maybe in court cases where juries are needed and can’t really protect the system and protect defendants or litigants in civil matters as well.
Roger Roots: Well, just in the last year I lost a project called the fair procedure initiative and basically our goal is to make some changes over time in the rules of procedure that are applied in the court practices in federal and state. A lot of people don’t realize that the federal rules of procedure – there are federal rules of criminal procedure, federal rules of civil procedure, federal rules of pellet procedure and what not, they are riddled with little rules that, for example, allow the government to have more time to respond to filings and pleadings than the private sector.
Right now I’m working on a proposed amendment to federal rules of a pellet procedure to change the amount of time that a federal criminal defendant has to file a notice of appeal after he’s convicted. Right now he has 14 days to file a notice of appeal in federal court. The government has 30 days to file a notice of appeal. Now, keep in mind that double jeopardy clause and things apply so that the government cannot appeal most acquittals unless they are on an issue of law for example just because of the deputy clause. One, it’s another indication that the jury was intended to have the power to stop a criminal accusation, no matter how much the government and the judges assume that there was guilt. The jury was given the power to act as the final say on such thing. And any time they acquit, there can never be a retrial. It would violate the double jeopardy clause of the 5th amendment. But the government can appeal certain legal questions from a criminal judgment and they wouldn’t appeal convictions but often the government ends up filing a notice of appeal on legal issues, evidentiary issues for example, rulings of the judge. But right now they have 30 days, the defendant only has 14 days. So, the Fair Procedure Initiative, which I’ve launched, that submitted a proposal to change it so that both guys get 30 days to file a notice of appeal. And we’re going to be working on some other things like this in the future.
Jason Hartman: What recourse does one have if they’re being burned by the system? Any suggestions, whether they be criminal or civil law, there are corrupt judges out there. There are opposing councils that do unethical things, prosecutors, DAs, civil cases as well, any suggestions to help people assert their rights and protect themselves?
Roger Roots: Well, I’m often asked what lawyer do you recommend? Now, keep in mind libertarian lawyers like me are hard to find. I don’t know what it is about the modern legal profession that it sort of breached government supremacist lawyers, and that idea, the idea that government is the central planner for all of our lives, is the central micromanager of our lives, that idea is embedded in the law these days and it’s embedded in the legal profession of both the bar and the bench. People often ask me what can I do? What law firm do you recommend? Listen, I tell people all the time you almost have to be your own lawyer. And that’s pretty consistent with the founding generation.
It was often remarked by many commentators in the 1770s all the way through to the 1850s that America, the original republic, was very highly literate and highly educated with regard to legal issues. The average American in 1823 was practically a lawyer himself. Americans were very well educated about a legal practice. And often they appeared in court on their own. They didn’t either need lawyers or use lawyers. And we’ve really lost track of that idea.
Jason Hartman: I want to comment on that just for a moment if I may. I’ve had some cases where I’ve represented myself as they say pro se, and let me tell you the judges hate that. They want you to participate in the “club”, the good old boys club and make their job easy and let them railroad you into unfair situations, unfair settlements. And oddly enough, and I know you’re an attorney and I hate to say this but I’ve heard it happen so many times and it’s happened to me. First you get victimized by whatever happened to you like someone steals your business or something and you have to go to court over it and then the second time is you’re victimized by your own lawyer. It’s ridiculous.
Roger Roots: It’s true in so many cases, absolutely true. And it’s true that the judges treat you as a second class citizen if you’re not represented by an attorney. And it’s true, no doubt about it. And I can tell you, case after case I’ve observed where a guy has a great legal argument but the judges just sort of toss it in the trash. And I agree, that’s a major problem.
Jason Hartman: That’s great to hear, though, that America was really set up that way for people to be their own attorney and not have to be held hostage by the system, by the government or by the attorney system, the good old boys club there. But any advice you have for pro se litigants, regardless of what side they’re on, on how to assert their rites or get a fair shake?
Roger Roots: Well, it’s funny. I’ll say this. It often happens that a pro se litigant can raise an issue, certainly much more inexpensively obviously, but if you have an argument to be made, research it and file it in writing. Make sure that there’s a record that it was made, that the argument was made. I’ve seen cases, for example, the criminal defendant who is knowledgeable – a lot of them are ex-convicts who’ve been through the system so many times that they actually by then have some knowledge, you see that they’re very knowledgeable, and they get charged with some offense. Sometimes it’s one of these 3rd strike kind of things, a possession of a firearm by a felon kind of stuff where it’s just the prior status that makes them second class citizens or what not. But by then, often some of them are older age and a little bit more aware of how to defend themselves. But, in any case, they were going to court initially, unlike lawyers, and they would say, hey, I motion to change jurisdiction, motion for dismissal, I move for speed trial, I demand speed trial. You know how few lawyers demand speedy trial?
Jason Hartman: They want more time to run the clock and build a claim more, right?
Roger Roots: It almost never happens by a lawyer. Lawyers almost never demand a speedy trial. So if a pro se litigant gets in there and says I demand a speedy trial, it often happens that judges just rule against everything. They deny, deny, deny, deny. But the pro se litigant will have preserved those issues for appeal later on much better in my opinion than a lot of lawyers do.
Jason Hartman: That’s a very interesting point. Two comments on that if I may. And just hold that thought for a minute. I know you were going to say something but number 1 is that so many times the lawyer’s goals are in conflict with the client’s goals. The lawyers have to build a career and they have to appear in front of this judge again – quite likely they’ll appear in front of this judge again – and so they’re trying to act out of their own motivations to stay on good terms with the judge. And I find lawyers won’t do things because of that pressure that might be good for the client. They’re just going to have this client one time maybe, but the judge, they have to preserve their reputation with the judgment side of the equation, with the judiciary. And they won’t do things right because of that necessarily. And then I’ve got one more comment or question, too, but what do you think of that? True?
Roger Roots: Absolutely true. And, by the way, it often happens that in a location there are only a handful of judges. Often, there are judges in a particular jurisdiction sometimes, and so let’s say in a community of 20 practicing trial lawyers for example and there are 2 judges in the local county courthouse that are working on most of the cases, so it creates a dynamic just as you say the lawyers will do anything to please themselves with these judges who are just one or two individuals who have the power to affect their standing in the community and their careers over the next decade, let’s say. And so the lawyers in the community very rarely will do anything that you just openly tick off the judicial powers that be in a particular local setting. And in the federal courts it’s the same way. I mean, there are some states where there really are just a few district judges who might be presiding over a very large area, the state of Idaho, the state of Wyoming, the state of Montana, just a few federal judges really. And so the worst thing you can do as a lawyer is get a reputation that you’re some kind of a radical or something.
Jason Hartman: But this country was built on radicals, it was founded by radicals, people that were considered radical in their day and that’s what’s great about it. So, that’s a very good point. For example, when a judge does improper things in their trial, it’s very unlikely that your lawyer is going to file a writ against that judge to try and get in a pellet court to say no, a judge can’t do this, it’s not right. But a pro se litigate, they don’t care. They don’t have to have a reputation with this judge. They’ll do what’s right for their case.
Roger Roots: That’s right.
Jason Hartman: That’s a very good point. One lesson that I found out that’s kind of a hard lesson, and this scares the heck out of me, these judges, they don’t read the pleadings. They don’t read the motions. It blows my mind that you can go through the whole justice system and the judges just don’t read stuff. You may file a motion that is 3 pages or 300 pages and the damned judge won’t read it. It’s amazing.
Roger Roots: There’s often spoken truism that if you don’t make your point on page 1 or page 2, it’ll never be addressed. And it’s true, it gets worse as you go up higher in the judicial system, especially, for example, the US Supreme Court level. Almost every US Supreme Court case will be accompanied by all of these what they call friend of the court briefs, the Amicus briefs that are written by, for example, the ACLU, the chamber of commerce, different organizations will file a friend of the court brief. There might be 30 briefs on each side, on all sides, supporting one side or the other.
If you were to lay these in a stack for just one case before the US Supreme Court, the judge if they actually were going to read all these briefs would have to read a pile of papers that might be a foot or 2 feet thick. Let’s be frank, let’s just be honest, they don’t do it. They can’t. They really cannot do it, they can’t physically do it. So let’s just be honest, they don’t. They farm it out to their clerks. Their clerks try to help and they do it the best they can. And keep in mind, judges famously have 6 months of vacation out of every year. Of course, I might be exaggerating given it might vary from jurisdiction to jurisdiction. Most judges take the summers off. They’re often in Hawaii or someplace. I might be exaggerating a little bit, but certainly they got a lot of time off, and you’re absolutely right they have too much to read.
When I was in law school, I was told by the dean of the law school pretty much you have to commit yourself to reading 100 pages of material a day every day that you’re in law school. And it’s sort of true. You ask anybody who goes to law school. They are pretty much assigned 100 pages a day to read. None of them can do it. And it goes worse as you go up. The US Supreme Court justices, there’s no way they can physically do all the reading.
Jason Hartman: Yeah, that’s true. So, any suggestions you have? The judge won’t read the filings, if your own lawyer is victimizing you to preserve their own standing in the community or standing with that judge? I tell you, the best thing you can do is just stay away from it.
Roger Roots: Absolutely. In fact, most business attorneys, they make their living making sure their clients never spend a day in court. That is the true. Every day in course is a day lost and probably thousands and thousands and thousands of dollars lost. So, the key if you’re in business it to avoid being in court for any reason at all cost. It’s just so expensive and it’s so time delaying.
I just tell people all the time, if you’re in business, whatever you do, stay out of court. And unfortunately that means you have to settle a lot of time and you have to spend money here and there, but stay out of court for God’s sakes. Even if you win, you lose.
Jason Hartman: I know, it’s amazing. The old saying is the only one that wins are the lawyers, right?
Roger Roots: Pretty much.
Jason Hartman: You can’t always avoid it, but try to just stay away from it if you can. Good point. Well, hey, give out your websites, Roger, and tell people where they can learn more and how they might be able to contribute to what you’re doing as well because it’s a good cause.
Roger Roots: Well, the Fully Informed Jury Association website is www.fija.org. And they’ve got a website. They also have a 1-800 number if you’re interested in the jury issue at all, 1-800-TEL-JURY. I have a personal website, RogerRoots.com and I have some of my articles that you can link to there and read up on some of the things that I’ve written. And it’s fun studying the law, especially the development of constitutional law and I really love reading legal history to figure out how we got here and going back to yesteryear and seeing how did we end up in the place we are? Fascinating. I’ve written quite a number of new articles that are interesting from that perspective. And that’s, again, RogerRoots.com. If you’re interested in any of these things, you can visit either of those. Fija.org is a great website.
Jason Hartman: Fantastic. Well, Dr. Roger Roots, thanks so much for joining us today and informing people about what’s going on in the system and how they can hopefully protect themselves from it and not become victimized or at least become as little victimized as possible – that’s what I would say. Thanks so much for joining us today, appreciate it.
Roger Roots: Thank you.
Narrator: Thank you for joining us today for the Holistic Survival show, protecting the people, places and profits you care about in uncertain times. Be sure to listen to our Creating Wealth show which focuses on exploiting the financial and wealth creation opportunities in today’s economy. Learn more at www.JasonHartman.com or search “Jason Hartman” on iTunes. This show is produced by The Hartman Media Company, offering very general guidelines and information. Opinions of guests are their own and none of the content should be considered individual advice. If you require personalized advice, please consult an appropriate professional. Information deemed reliable, but not guaranteed. (Image: Flickr | **RCB**)
Transcribed by Ralph
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