By Sam Smith
The fully informed jury movement has
been in the news and the subject of badly misinformed journalism. The
following article, which appeared in the Progressive Review in 1990,
explains this important issue:
William Penn may have thought he had settled
the matter. Arrested in 1670 for preaching Quakerism, Penn was brought
to trial. Despite Penn's admitting the charge, four of the 12 jurors
voted to acquit. The judge sent the four to jail "without meat,
drink, fire and tobacco" for failing to find Penn guilty. On
appeal, however, the jurors' action was upheld and the right of juries
to judge both the law and the facts -- to nullify the law if it chose --
became part of British constitutional law.
It ultimately became part of American
constitutional law as well, but you'd never know it listening to jury
instructions today almost anywhere in the country. With only a few
exceptions, juries are explicitly or implicitly told to worry only about
the facts and let the judge decide the law. The right of jury
nullification has become one of the legal system's best kept secrets.
Now a remarkable coalition has sprung up to
challenge this secrecy as undemocratic, unconstitutional and dangerous.
Though organized by libertarian activists, the Fully Informed Jury
Amendment movement includes liberals and conservatives, Greens, drug
decriminalization advocates, gun owner groups, peace activists, both
sides of the abortion controversy, helmet and seatbelt activists,
alternative medicine practitioners, taxpayer rights groups,
environmentalists, criminal trial lawyers and law professors.
Organized by Larry Dodge and Don Doig, both of
Helmville, Montana (population: 26; elevation 4300'), FIJA seeks to
require that juries be informed of their nullification rights. Informed
jury amendments have been filed as an initiative in seven states and
legislation has been introduced in the Alaska state legislature.
Merely raising the issue of nullification can
make prosecutors nervous, for it takes only one person aware of the
right in order to hang a jury. In Washington, DC, where the concept was
discussed in connection with the Marion Barry trial, a local television
station reported that the US Attorney was worried that a jury might
nullify the law in that case. The joke in DC was that Barry was
campaigning, but only for one vote, that of a single juror. The specific
charges against Barry revolved around his use of drugs and a growing
number of people are coming to accept the argument that drug use or
addiction should not be a criminal offense. Further many DC residents
were concerned about the prosecution's heavy-handed pursuit of the
mayor. Despite the refusal of courts to inform juries of their right to
nullify, American juries have periodically exercised it anyway. In
recent years, some peace protesters have been acquitted despite strong
evidence that they violated the law. In the 19th century northern juries
would refuse to convict under the fugitive slave laws. And in 1735
journalist Peter Zenger, accused of seditious libel, was acquitted by a
jury that ignored the court's instructions on the law.
Those who have endorsed the right of a jury to
judge both the law and the facts include Chief Justice John Jay, Samuel
Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes.
According to the Yale Law Journal in 1964, during the first third of the
19th century judges did inform juries of the right, forcing lawyers to
argue "the law -- its interpretation and validity -- to the
jury." By the latter part of the century, however, judges and state
law were increasingly moving against nullification. In 1895 the US
Supreme Court upheld the principle but ruled that juries were not to be
informed of it by defense attorneys, nor were judges required to tell
them about it. Stephen Barkan, writing in Social Problems (October
1983), noted that the attacks on nullification stemmed in part from
juries acquitting strike organizers and other labor activists. And in
1892 the American Bar Review warned that jurors had "developed
agrarian tendencies of an alarming character." Thomas Jefferson, as
usual, put it well when he said: "If a juror accepts as the law
that which the judge states then that juror has accepted the exercise of
absolute authority of a government employee and has surrendered a power
and right that once was the citizen's safeguard of liberty, -- for the
saddest epitaph which can be carved in the memory of a vanished liberty
is that it was lost because its possessors failed to stretch forth a
saving hand while yet there was time."
Today, the constitutions of only two states --
Maryland and Indiana -- clearly declare the nullification right,
although two others -- Georgia and Oregon -- refer to it obliquely. The
informed jury movement would like all states to require that judges
instruct juries on their power to serve, in effect, as the final
legislature of the land.
This is not an arcane demand nor is it an
anarchistic one. No one is arguing the right of juries to convict in an
arbitrary fashion nor to declare a law unconstitutional, merely the
right described by George Bernard Shaw, "to deliver an accused
person from both the police and the letter of the law."
As the diverse nature of the movement suggests,
many groups in this country feel the government has overstepped its
power in some way and that there must be protection for the natural
rights of American citizens. They are defending not only the right to
protest or carry a gun or not wear seatbelts but challenging the right
of the government to decide such matters without the mediating effect of
a jury's judgement of fairness in a particular case.
For many liberals and progressives, who tend to
be confident of the beneficent nature of government power, such a
challenge may be a bit uncomfortable -- understandable in a case
involving a peace protest, less appreciated if invoked by a member of
the National Rifle Association. The libertarians argue that the two are
of one cloth. As government intrusion in individual matters has
increased, the libertarian view has gained influence, helping to tilt
normal left-right divisions on their side. Libertarians, for example,
have been key to the growing opposition to the barbaric Reagan-Bush war
on drugs, providing some of the best analysis and advocacy available on
the issue.
Libertarians are again in the lead on the
nullification issue. Many progressives may be uneasy about the thought
of a western jury nullifying a case involving a gun control or seatbelt
law, but this unease reminds one of little discussed principles that
were once considered central to being an American -- not the least of
which was freedom from some government official telling you how to live
your life. As the design of the modern centralized welfare state frays
and becomes increasingly authoritarian, reacquaintance with some of our
individualistic roots has much to recommend it.
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NULLIFYING NULLIFICATION
It was nice to see the Washington Post finally
giving some attention to jury nullification, even if after four
months of research and interviews with more than 100 jurors,
judges, defense lawyers and prosecutors, it still couldn't get the
story right.
For example reporter Joan Biskupic stated,
"Anyone accused of a crime in this country is entitled to a
jury trial." The Constitution may say so but, in fact, this
is simply not the case -- and becoming less so as politicians
fiddle with legal definitions and sentencing standards in order
specifically to reduce the number of persons entitled to a trial.
Biskupic also wrote: "The American custom
is that jurors decide the facts of the case (whether the person
did what he is accused of) and leave it to judges to interpret the
law. There is no room, in other words, for jurors to say whether
they think the law is a good one, though there have been a few
celebrated exceptions -- notably the 18th-century acquittal of
John Peter Zenger of seditious libel and the 19th-century
acquittals for prosecution under the fugitive slave law."
This is a rewriting of history, one of the
privileges of a reporter who works for a paper free to do so
thanks to the rights of jurors upheld in the Zenger case. -- TPR
2/99
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In fact, it is unlikely that a jury considering
a gun control case would excuse the leader of an underground Nazi
movement or a gang of bank robbers. It 1is far more likely that it would
acquit the respectable rancher who simply believes that gun control
represents further destruction of his paradigm of individual liberty. If
so, what have we lost?
The history of jury nullification suggests
there is little to fear. In those states where the concept is respected
to some degree it has had minimal effect on the overall functioning of
the law. Nullification has, on the other hand, played a little noted but
significant role in the advance of religious and press freedom, the
abolition of slavery and the building of a labor movement. Even in the
face of hostility by contemporary courts, it has cropped up in political
protest trials of the past few decades. And it might have surfaced more
frequently absent that hostility. As one of the jurors said following
the conviction of the Berrigan brothers in 1980:
We convicted them on
three things, and we really didn't want to convict them on anything.
But we had to, because of the way the judge said the only thing that
you can use is what you get under the law... I would have loved to
hold up a flag to show them we approved of what they were doing. It
was very difficult for us to bring in that conviction.
The nullification principle involves the power
to say no to the excesses of government, and thus serves as a final
defense against tyranny. As Thomas Jefferson put it to Tom Paine in a
1789 letter, "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." To get in touch with the fully informed jury
movement write: Fully
Informed Jury Association, Box 59, Helmville
MT 5984, 406-793-5550
"If a juror feels that the statute
involved in any criminal offence is unfair, or that it infringes upon
the defendant's natural god-given unalienable or constitutional rights,
then it is his duty to affirm that the offending statute is really no
law at all and that the violation of it is no crime at all, for no one
is bound to obey an unjust law." -- Chief Justice Harlan F. Stone
Jurors'
Handbook
A Citizens Guide to Jury Duty
Fully
Informed Jury Assocation
--------------------------------------------------------------------------------
Did you know that you qualify for another,
much more powerful vote than the one which you cast on election day?
This opportunity comes when you are selected for jury duty, a position
of honor for over 700 years.
The principle of a Common Law Jury or Trial
by the Country was first established on June 15, 1215 at Runnymede,
England when King John signed the Magna Carta, or Great Charter of our
Liberties. It created the basis for our Constitutional, system of
Justice.
JURY POWER in the system of checks
and balances:
In a Constitutional system of justice, such as ours, there is a judicial
body with more power than Congress, the President, or even the Supreme
Court. Yes, the trial jury protected under our Constitution has more
power than all these government officials. This is because it has the
final veto power over all "acts of the legislature" that may
come to be called "laws".
In fact, the power of jury nullification
predates our Constitution. In November of 1734, a printer named John
Peter Zenger was arrested for seditious libel against his Majesty's
government. At that time, a law of the Colony of New York forbid any
publication without prior government approval. Freedom of the press was
not enjoyed by the early colonialists! Zenger, however, defied this
censorship and published articles strongly critical of New York colonial
rule.
When brought to trial in August of 1735,
Zenger admitted publishing the offending articles, but argued that the
truth of the facts stated justified their publication. The judge
instructed the jury that truth is not justification for libel. Rather,
truth makes the libel more vicious, for public unrest is more likely to
follow true, rather than false claims of bad governance. And since the
defendant had admitted to the "fact" of publication, only a
question of "law" remained.
Then, as now, the judge said the
"issue of law" was for the court to determine, and he
instructed the jury to find the defendant guilty. It took only ten
minutes for the jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.
That is the power of the jury at work; the
power to decide the issues of law under which the defendant is charged,
as well as the facts. In our system of checks and balances, the jury is
our final check, the people's last safegard against unjust law and
tyranny.
A Jury's Rights, Powers, and
Duties:
But does the jury's power to veto bad laws
exist under our Constitution?
It certainly does! At the time the
Constitution was written, the definition of the term "jury"
referred to a group of citizens empowered to judge both the law and the
evidence in the case before it. Then, in the February term of 1794, the
Supreme Court conducted a jury trial in the case of the State of Georgia
vs. Brailsford (3 Dall 1). The instructions to the jury in the first
jury trial before the Supreme Court of the United States illustrate the
true power of the jury. Chief Justice John Jay said: "It is
presumed, that juries are the best judges of facts; it is, on the other
hand, presumed that courts are the best judges of law. But still both
objects are within your power of decision." (emphasis added)
"...you have a right to take it upon yourselves to judge of both,
and to determine the law as well as the fact in controversy".
So you see, in an American courtroom there
are in a sense twelve judges in attendance, not just one. And they are
there with the power to review the "law" as well as the
"facts"! Actually, the "judge" is there to conduct
the proceedings in an orderly fashion and maintain the safety of all
parties involved.
As recently as 1972, the U.S. Court of
Appeals for the District of Columbia said that the jury has an "
unreviewable and irreversible power... to acquit in disregard of the
instructions on the law given by the trial judge.... (US vs Dougherty,
473 F 2d 1113, 1139 (1972))
Or as this same truth was stated in a
earlier decision by the United States Court of Appeals for the District
of Maryland: "We recognize, as appellants urge, the undisputed
power of the jury to acquit, even if its verdict is contrary to the law
as given by the judge, and contrary to the evidence. This is a power
that must exist as long as we adhere to the general verdict in criminal
cases, for the courts cannot search the minds of the jurors to find the
basis upon which they judge. If the jury feels that the law under which
the defendant is accused, is unjust, or that exigent circumstances
justified the actions of the accused, or for any reason which appeals to
their logic of passion, the jury has the power to acquit, and the courts
must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006
(1969)).
YOU, as a juror armed with the knowledge of
the purpose of a jury trial, and the knowledge of what your Rights,
powers, and duties really are, can with your single vote of not guilty
nullify or invalidate any law involved in that case. Because a jury's
guilty decision must be unanimous, it takes only one vote to effectively
nullify a bad "act of the legislature". Your one vote can
"hang" a jury; and although it won't be an acquittal, at least
the defendant will not be convicted of violating an unjust or
unconstitutional law.
The government cannot deprive anyone of
"Liberty", without your consent!
If you feel the statute involved in any
criminal case being tried before you is unfair, or that it infringes
upon the defendant's God-given inalienable or Constitutional rights, you
can affirm that the offending statute is really no law at all and that
the violation of it is no crime; for no man is bound to obey an unjust
command. In other words, if the defendant has disobeyed some man-made
criminal statute, and the statute is unjust, the defendant has in
substance, committed no crime. Jurors, having ruled then on the justice
of the law involved and finding it opposed in whole or in part to their
own natural concept of what is basically right, are bound to hold for
the acquittal of said defendant.
It is your responsibility to insist that
your vote of not guilty be respected by all other members of the jury.
For you are not there as a fool, merely to agree with the majority, but
as a qualified judge in your right to see that justice is done.
Regardless of the pressures or abuse that may be applied to you by any
or all members of the jury with whom you may in good conscience
disagree, you can await the reading of the verdict secure in the
knowledge you have voted your conscience and convictions, not those of
someone else.
So you see, as a juror, you are one of a
panel of twelve judges with the responsibility of protecting all
innocent Americans from unjust laws.
Jurors Must Know Their Rights:
You must know your rights!
Because, once selected for jury duty, nobody will inform you of your
power to judge both law and fact. In fact, the judge's instructions to
the jury may be to the contrary. Another quote from US vs Dougherty
(cited earlier): "The fact that there is widespread existence of
the jury's prerogative, and approval of its existence as a necessary
counter to case-hardened judges and arbitrary prosecutors, does not
establish as an imperative that the jury must be informed by the judge
of that power".
Look at that quote again. the court ruled
jurors have the right to decide the law, but they don't have to be told
about it. It may sound hypocritical, but the Dougherty decision conforms
to an 1895 Supreme Court decision that held the same thing. In Sparf vs
US (156 US 51), the court ruled that although juries have the right to
ignore a judge's instructions on the law, they don't have to be made
aware of the right to do so.
Is this Supreme Court ruling as unfair as
it appears on the surface? It may be, but the logic behind such a
decision is plain enough.
In our Constitutional Republic (note I
didn't say democracy) the people have granted certain limited powers to
government, preserving and retaining their God-given inalienable rights.
So, if it is indeed the juror's right to decide the law, then the
citizens should know what their rights are. They need not be told by the
courts. After all, the Constitution makes us the masters of the public
servants. Should a servant have to tell a master what his rights are? Of
course not, it's our responsibility to know what our rights are!
The idea that juries are to judge only the
"facts" is absurd and contrary to historical fact and law. Are
juries present only as mere pawns to rubber stamp tyrannical acts of the
government? We The People wrote the supreme law of the land, the
Constitution, to "secure the blessings of liberty to ourselves and
our posterity." Who better to decide the fairness of the laws, or
whether the laws conform to the Constitution?
Our Defense - Jury Power:
Sometime in the future, you
may be called upon to sit in judgment of a sincere individual being
prosecuted (persecuted?) for trying to exercise his or her Rights, or
trying to defend the Constitution. If so, remember that in 1804, Samuel
Chase, Supreme Court Justice and signer of the Declaration of
Independence said: "The jury has the Right to judge both the law
and the facts". And also keep in mind that "either we all hang
together, or we most assuredly will all hang separately".
You now understand how the average citizen
can help keep in check the power of government and bring to a halt the
enforcement of tyrannical laws. Unfortunately, very few people know or
understand this power which they as Americans possess to nullify
oppressive acts of the legislature.
America, the Constitution and your
individual rights are under attack! Will you defend them? READ THE
CONSTITUTION, KNOW YOUR RIGHTS! Remember, if you don't know what your
Rights are, you haven't got any!
NEWS ITEMS
APRIL 2001
DC DEATH JURY BEING
RIGGED
AMENDMENT VI, US
CONSTITUTION: In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the state
and district wherein the crime shall have been committed . . .
BILL
MILLER WASHINGTON POST:
More than 350 potential jurors have been excused from serving on the
District's first death penalty trial in nearly 30 years, including about
175 who said they were so opposed to capital punishment that they could
never render a death sentence. Lawyers have spent five weeks in jury
selection for the murder trial of Tommy Edelin and five other alleged
members of a District drug gang, struggling to find people who can both
withstand a lengthy trial and possibly condemn a man to die . . . People
have expressed a wide range of views, with about half opposing the death
penalty in any instance . . . Although D.C. law has no provision for
capital punishment, federal law gives prosecutors the right to pursue it
in certain cases. Since Congress passed a revised federal death penalty
law in 1987, no capital case has made it to trial in the District. The
last capital case took place in 1972 under a federal law that was deemed
unconstitutional. The last execution in the District was in 1957.
SEPTEMBER 2000
NORMAN TRANSCRIPT: [An
Oklahoma] juror who believes in the legalization of marijuana brought a
Cleveland County jury's deliberations to a halt Thursday in a case in
which a 49-year-old Norman man was accused of possessing marijuana with
intent to distribute. District Judge William Hetherington declared a
mistrial in the case against Clayton Milo Fox after jurors reported to
him they were "hopelessly deadlocked" at a vote of 11-1
because of one juror's opinion "on principle" that the law
should be changed. "No amount of time will change that
opinion," the jury foreman wrote in a note to the judge after the
six men and six women had been deliberating about four hours. "We
are hung up at a vote of 11-1."
. . . Hetherington
refused to identify publicly which juror was the holdout, although he
did meet privately with the jurors for awhile before letting them go
home. "I sympathize with the juror's beliefs," defense
attorney Fred Shaeffer said. "Apparently, this juror just refused
to accept the fact that possession of marijuana is a crime, and there
are millions of people in the US who share that belief." Shaeffer
said that he found it sad "that an accused can't get a jury trial
of his peers, with people who can express their opinion that marijuana
should not be against the law, without it ending in a mistrial." NORMAN
TRANSCRIPT
COLORADO
SPRINGS INDEPENDENT:
Accused of tainting a pool of potential [jurors], Colorado Springs
landlord and state Senate candidate Douglas Bruce was dismissed from
jury duty after he distributed a stack of leaflets claiming that jurists
need only follow their conscience -- and not the law -- when deciding a
case . . . The leaflets were prepared by a group called the Fully
Informed Jury Association, whose literature claims juries have
"final veto power over all acts of the legislature that may come to
be called laws." . . . District Judge Thomas L. Kennedy said the
jury pool was dismissed after a defense lawyer in a first-degree sexual
assault trial complained. When Kennedy learned that Bruce was
distributing the pamphlets, he asked him to cease. However, he said,
Bruce had already handed them out to the entire jury pool. "It
wasn't confrontational at all," Kennedy said. "[Bruce] has a
free speech right to hand out the leaflets, whether we tell him he can
or can't do that. I just asked him not to hand out the leaflets, but it
was already over." The judge then advised the attorneys for both
sides of the disruption, and, after the defense lawyer objected, the
entire panel was dismissed, causing a two-week delay in the sexual
assault trial, and a ripple effect among other scheduled trials, Kennedy
said. 7/00
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