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Is It Evident That The Judge Has Too Much Discretion?

Is It Evident That The Judge Has Too Much Discretion?


Is It Evident That The Judge Has Too Much Discretion?

“Therefore, the jury have the power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience? … [I]s a juror to give his verdict generally, according to [the judge’s] direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  JOHN ADAMS

by Loren Edward Pearce

Recently, the federal prosecutors, key members of the federal team (judge, prosecutors, enforcers), filed motions to suppress and quash most of the defense arguments in the federal case against the Bundy et al defendants.

Government’s Motion In Limine To Preclude…

Of course, the federal team gets a third bite of the apple, another chance to get it right, in what they failed to do in the first 2 trials against protesters in the 2014 Bunkerville event in which Bundy cattle and water infrastructure were destroyed or harmed by the BLM agents.

From lessons learned in the first two trials that ended in hung juries (with a strong vote for acquittal by the majority of jurors), the federal team has anticipated what the defense arguments will be and what evidence they will attempt to admit.  The recently filed motions are intended to nip it in the bud, to shorten the trial in favor of the government, basically leaving the defense, well, defenseless.


In this writer’s opinion, the key language used in the prosecutor’s filing was that the judge had the discretion to decide what evidence is relevant and admissible.

Over the last one hundred years, legal scholars, have pushed for “reform” to the legal matter of how to handle evidence in a trial, by giving more authority to the person presiding at the trial, the judge, to rule on evidence.

One Hundred Years of Evidence Law Reform

When we hear the word “reform” we should grab the Bill of Rights and run for cover.  When the so called legal experts want to reform something, it usually means that they want to reform, or change, what our founders and framers originally gave us.

We saw what happened to the right to a presumption of innocence when congress, at the urging of the legal experts, gave us the Bail Reform Act.  Prior to reforming the right to bail, it was a constitutional right to be granted bail unless there was a capital offense and even when accused of something like murder, there needed to be compelling probable cause that the accused may have actually committed the murder.  But, anything that was not a capital offense, meant a presumption of innocence and the right to bail.

Prior to reforming bail law, judges did not have the discretion to deny bail:

“But in the United States the accused has a constitutional right to bail in all ‘except in capital cases.’ . . . Under the [B]ill of [R]ights, bail before conviction is a matter of right (and not of discretion) for all offenses, except those that are capital . . . .”) Street v. State, 43 Miss. 1 (1870)

Had the right to bail not been “reformed” and greater discretion given to one human being, a judge, the Bundys and other political prisoners would not have spent over 600 days in pretrial prison, without ever having been tried by a jury of peers.


The legal scholars, who claim to know better than the founders, have argued that the judge needs to have more discretion to make decisions about the admissibility of evidence.  But, the more discretion given to that one human being, a judge, means less power, authority and discretion for the jury and to the appellate court.

Without going into all the history and reasons for juries, suffice it to say that the founders of the American republic, had been badly burned by the concept of one person, or a few people, having a lot of power at the expense of the individual or the masses of individuals who did not occupy positions of political power.

The founders described in the Declaration of Independence all the injustices that were heaped on the people by the King and his elite group of supporters because the power had been concentrated in one person.  The founders knew the mischief that could result from one person having “broad discretion” to make decisions that affected their welfare, property and their pursuit of happiness.

Juries were an integral part of removing the power of a few elite, the oligarchy, and spreading it to a group of peers.  However, judges and the professional legal class did not see the average person, the peer, as having the intelligence, sophistication, knowledge or aptitude for making correct decisions.  Consequently, strong currents have moved in opposition to what the founders gave us.  The professional legal class wants to remove power and authority from juries, and give it back to one person, a federal judge.

One of the reformers, Thayer, a strong proponent of shifting the power away from juries and giving more say so, discretion, to the judge, had this to say about juries:

“I think that it would be juster and more exact to say that our law of evidence is a piece of illogical, but by no means irrational, patchwork; not at all to be admired, nor easily to be found intelligible, except as a product of the jury system,… where ordinary, untrained citizens are acting as judges of fact.” THAYER, PRELIMINARY TREATISE

In the two previous bites of the apple, the earlier trials, those who attended those trials, witnessed first hand the consequences of these “reforms” as Judge Gloria Navarro used her discretion to deny, dozens of times, the defense’s attempts to introduce evidence and testimony favorable to the defense and denied the jury the right to sift and sort through the evidence as they saw fit.  Often, Navarro would treat the jurors as if they were children, concerned that they would be confused by defense evidence or decide for the jury that something was not “helpful”.


Three reformers, Thayer, Wigmore and Morgan, gave us the Federal Rules of Evidence which were supposed to “guide” the judge in how to handle evidence.  The problem is, the rules of evidence are still vague and ambiguous enough to allow the judge to use her discretion. The appellate courts generally uphold the judge’s discretion, even if it appears to violate the rules of evidence.

“Reversal is justified not when the appellate court disagrees with an outcome, but only when the trial court “abuses” its discretion. Such abuse can occur if the court did not apply the requisite guidelines to its decision making, did not give these guidelines their received meaning, or reached a result plainly against the logic and effect of the facts of the case.”  California Law Review pg 41

The above scholarly article goes on to say it is very difficult for the appellate court to substitute its judgment for that of the lower court judge and determine if the lower court “abused” its discretion.  Therefore, it rarely does so.

This, then, explains the seeming arrogance of Navarro and her prosecutors, given that reformers worked so hard to give the lower court judges near absolute discretion in deciding what evidence is relevant and what evidence can be admitted.


Although all the reformers wanted to give more discretion to the judge, Wigmore was the most outspoken about that discretion must be very controlled and limited and he wrote scathing rebuttals to the Thayer and Morgan supporters who wanted near absolute power given to the judge.  Wigmore wrote:

“…it is recalled that there are upwards of 5000 court-of-record trial judges, and that perhaps 20% of them come newly to the Bench every 6 years or so, is it not probable that in those proposed large areas of “discretion” the Law of Evidence will suffer, not a re-form, but a relapse into that primal condition of chaos, described in Genesis 1:2, when the Earth “was without form and void”?”

From the treatise on the Model Code

Wigmore’s fear is manifested in Navarro, who, unlike most appointees to Federal Chief Justice positions, did not come with vast amounts of experience as a judge.  She came with no experience as a judge.  She has been learning the rules as she plays the game, and her tutors have been the federal prosecutors, among others.  However, experience is no guarantee that the judge will be righteous and fair.  Vast experience can lead to vast abuses.


Thayer and Morgan won the battle to get the most discretion for judges and their win is reflected in today’s Federal Rules of Evidence.  The Supreme Court weighed in by supporting this increased discretion, at the expense of safeguards in Jury and appellate court discretion:

“We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.’”   509 U.S. 579 (1993).

Like Thayer, the Supreme Court gave a vote of confidence to judges to have “broad discretion” without any evidence that they can be trusted with such discretion and not use their discretion to promote the agendas of other federal team members.  In the case of Navarro, who owes a debt of gratitude to Harry Reid, how can we be sure that she is not abusing her discretion to further Reid’s interests?


Like individual judges, juries and the jury process are not perfect.  There are many examples of juries coming up with ridiculous verdicts, outrageous jury awards and other examples of bad decision making.

However, the founders knew that the greater evil is in entrusting the weighty decisions that will forever affect the lives of the defendants in the hands of one person, a judge, who may be tempted to use such vast powers for corrupt purposes.  In federal courts, these weighty decisions are made more dangerous due to the extremely severe penalties that are attached to federal laws, penalties far more severe than what states impose for similar crimes.

A jury, as imperfect as it may be, has built in checks and balances as the 12 jurors must challenge and question each other on their analysis of the evidence.  Therefore, the role of the judge should be to make the job of the jury to consider all the facts as easy as possible.

The job of the judge is to give the benefit of the doubt of competence to the jury and not  worry about confusing them or misleading them.   As John Adams said in the opening quote:

“It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.

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 if the watchman sees the sword coming and does not blow the trumpet, and the people are not warned, and the sword comes and takes any person from among them, he is taken away in his iniquity; but his blood I will require at the watchman’s hand.


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