Arkansas’s Christmas Gift: Violating its own Constitution

Back in September we republished a press release by Arkansas chess master, and libertarian extraordinaire, Bill Orton. Bill had been fined for possession of a tobacco pipe which allegedly contained weed. In his initial hearing he demanded a jury trial, submitting the paperwork that he was told was necessary. He then awaited information about a court date, having successfully demanded, both verbally and in writing, the trial by jury which the Arkansas Constitution asserts he has an “inviolate” right to.

Specifically, Article 2 Section 7 of the Constitution of the State of Arkansas reads as follows:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

Regarding waivers, the court rules offer the following specifics:

(a) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the clerk a demand therefor in writing at any time after the commencement of the action and not later than 20 days prior to the trial date. Such demand may be indorsed upon a pleading of the party.
(b) Same: Specification of Issues. In his demand, a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand, or such lesser time as the court may order, may file a demand for trial by jury of any other or all of the issues of fact in the action.
(c) Waiver. The failure of a party to file a demand as required by this rule and as required by Rule 5(c) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

Instead of a court date, however, the government’s response, months later, was the following message:

Letter from Daniel Wright to Bill Orton
From a review of the records of the Washington County Circuit Clerk it appears you did not perfect the appeal of your convictions in the Johnson Department of the District Court. … You must therefore make arrangements for payment of your fines and costs with the Office of the Court Clerk no later than 12-31-2017. … Failure to made satisfactory arrangements by 12-31-17 will result in the issuance of a Warrant for your arrest.

In a post on his Project Nullify Pot Laws facebook page, Bill Orton makes the following comments:

Finally something happened. I’ve been waiting for a notice about my jury trial – the date and time. Instead, I received a Christmas threat from Daniel Wright, City Prosecutor – a letter saying:

“From a review of the records of the Washington County Circuit Clerk it appears you did not perfect the appeal of your convictions in the Johnson Department of the District Court.

You must therefore make arrangements for payment of your fines and costs with the Office of the Court Clerk no later than 12-31-2017. … Failure to made satisfactory arrangements by 12-31-17 will result in the issuance of a Warrant for your arrest.”

It looks like they are putting up another hurdle before I get the jury trial supposedly “guaranteed” by the Arkansas Constitution.

Daniel Wright says that I was supposed to file an appeal at county court, and I had filed only a Notice of Appeal, believing that was sufficient. (With both the judge and prosecutor leading me to believe it was.) According to Wright, I’m screwed, and won’t get a jury trial.

How convenient for Wright, and inconvenient for ordinary people, that the government distinguishes between filing a “Notice of Appeal” and filing an “appeal,” and that it is so easy to trick us commoners into imagining that by demanding a trial by jury, publicly and in writing, we have indeed invoked our right to a trial by jury, when really, in the eyes of those in power, we have somehow, apparently, waived our right to a trial by jury.

If the government can do things like this, what use does the constitution serve? If this is the protection it offers us, then I submit that we are defenseless.

I posted about this on facebook, but I want to restate here what I said there, in the hopes that more people will see it. I think we need as many people to hear about this as possible, particularly people living in the Ozarks, where this is occurring.

* * * * *

For those who don’t know, a friend of mine was fined several months ago for alleged possession of marijuana and marijuana paraphernalia. The Arkansas Constitution asserts that he has a right to a jury trial, (for anything, even something as petty as this.) Despite this fact, defendants are required to have an initial hearing without a jury, and to make an appeal in order to get a jury trial. My friend did this, and yet it now turns out that the State intends to refuse to give him a jury trial anyway.

This is here, locally, Northwest Arkansas. This is what the government is. They are not serving or protecting my friend, or even following their own rules, they are threatening to kidnap him and lock him up, and / or confiscate his property, even though he has harmed no one. He has not harmed me, he has not harmed you. The government has explicitly threatened to harm him. If you or I acted as the State is acting now, our communities would be outraged and condemn our actions. It is only the State that gets away with this kind of aggression on a regular basis and still remains legitimate in the eyes of the general populace.

I post this because I want to lift the veil, to persuade you to look at the government as a group of human beings just like you and I. You can not use the excuse that they are just enforcing the law, because they are violating the Arkansas constitution. You can not use the excuse that they are keeping you safe. That an organization exists with the power to kidnap you and lock you up when you have harmed no one, and that you live in a society that will not protect you from this organization, nor even condemn your kidnappers for their actions, means that you are not safe.

Be at peace during your Christmas celebrations, but remember that the world is not ok, and that we need to work together to change things for the better.

UPDATE 22nd December 2017:

I asked Bill Orton the following on Facebook:

I don’t understand what Wright is saying here. This webpage describes the appeal process, and it makes no distinction between an “appeal” and a “notice of appeal.”

Quote: “How taken. An appeal shall be taken by filing a notice of appeal with the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement shall be satisfied when the notice of appeal is filed with either the circuit clerk or the county clerk. Failure of the appellant or cross-appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross-appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross-appeal.”

Can you post exactly what Wright said, or perhaps send it to me in a pm if you don’t want to post it all publicly?

Bill responded:

Wright told me that Arkansas Law gives me 30 days to file an appeal. I read that rule 3 you linked and some other stuff, and had no idea that filing an appeal was different from filing a notice of appeal. When the 30 days passed, I lost all right to appeal. I called a very good lawyer, a specialist who “could pull a rabbit out of the hat if anyone could” according to a fellow lawyer, and he told me that it was hopeless to fight it at this point. So I went and paid the fine this morning.

I thought I had done due diligence, but in retrospect I should have hired a lawyer for the appeal (except I thought it was a done deal.) So I fucked up. This entrepreneurial anti-state venture failed. (It happens when playing the State’s game.)

I am a little disappointed that social media (this facebook page) kind of failed, in that in all the discussions no one brought up the extra loops I needed to jump through. Probably the lawyers thought that “everyone” knows about appeals, and the non-lawyers like us were clueless and believed the directions on the web.

I am disappointed that this project failed as well, and I feel like I may be more angry about this whole affair than Bill himself. Perhaps Bill has learned in his long life to expect this sort of thing from the State, while I have yet to grok just how broken the system is.

Or, perhaps it is more accurate to say that this sort of misdirection is by design, and an indication not of a broken system but of a malevolent system. I guess it is hard for me to accept that, even when it is made so clear.

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