Current Shareware 1994 January/SHAR194.ISO/textfile/fija.zip/FIJAHIST.TXT

Internet Message Format | 1993-09-05 | 9KB

From: Travis Beard
To:   All
Subj: FIJA (historical review)
     NEW HOPE FOR FREEDOM: FULLY INFORMED JURORS   DON DOIG

     America's  Founders  were worried that the  government  they
created  might someday grow too powerful, and begin to pass  laws
which would violate the rights of the very people the  government
was   supposed   to  protect:  ordinary,   peaceful,   productive
Americans.  But they had an "ace in the hole" which they believed
would  suffice  to hold the government in check.   That  was  the
right to a trial by a jury of one's peers.

     Since  when, you might ask, can a jury protect  people  from
arbitrary  and  unjust  prosecutions,  or  from  bad  laws?   The
legislature  creates laws.  Aren't we supposed to obey them,  and
lobby our legislatures for any changes that need to be made?

     Traditionally,  Americans  have  had  more  substantial  and
direct  means by which to protect against governments  grown  too
ambitious,  and  by which to resist oppressive  laws.   America's
Founders realized that the temptations of power were too great to
leave  it  to  the  legislature, to the  executive,  and  to  the
judicial branches of government to define what the rights of  the
citizens of this nation were.  Ultimately, citizens at the  local
level, acting according to the dictates of individual  conscience
were  to  have the final say, the final check and  balance.   The
people would need veto power over bad laws.

     And  they provided just such a veto, a  centuries-old
tradition carried over from England to the colonies, which  holds
that jurors could judge whether a law was a good law, a law  that
did not violate the rights of free men and women.  If,  according
to  the  dictates of conscience, jurors did not think a  law  was
just, or if they thought the law had been misapplied, they  could
refuse to convict an otherwise "guilty" defendant. Even a  single
juror could prevent a conviction, by voting not guilty.

     And if the jury as a whole decided to acquit the  defendant,
that decision was and is final.  A verdict of innocent cannot  be
overturned,  nor can the judge harass the jurors for  voting  for
acquittal.   Jurors  cannot be punished for voting  according  to
conscience.

     These  principles date back to the time of the Magna  Carta.
In 1670, William Penn was arrested for preaching a Quaker sermon,
and  in  so  doing breaking the law of England,  which  made  the
Church  of  England  the only legal church.  The  jurors  in  his
trial,  led by Edward Bushell, refused to convict him,  and  were
themselves   held   without  food,  water,  tobacco   or   toilet
facilities.   Four were put in prison for nine weeks.  When  they
were  finally released by court order, the  decision  established
that jurors could no longer be punished for their verdicts.

    This case helped establish freedom of religion, and the right to
a  trial  by a jury of one's peers, a jury free  from  government
coercion.

     The  trial of John Peter Zenger, in the  American  colonies,
was  another  landmark  case.   Zenger  had  been  arrested   for
publishing  materials critical of the Royal Governor of New  York
colony  and his cronies, accusing them of corruption.  While  the
charges were true, under the law, truth was no defense.  Zenger's
attorney,  Andrew  Hamilton, argued to the jury  that  they  were
judges of the merits of the law, and should not convict Zenger of
violating  such  a  bad  law.   The  jury  agreed.   Zenger   was
acquitted, and this case helped establish the right to freedom of
speech.

     The  Founding Fathers were clear about where they  stood  on
the issue of the rights of jurors:

     "The right of the jury to decide questions of law was widely
recognized   in  the  colonies.   In  1771,  John  Adams   stated
unequivocally that a juror should ignore a judge's instruction on
the law if it violates fundamental principles:

     'It is not only...[the juror's] 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.'

     There  is  much evidence of the general acceptance  of  this
principle  in the period immediately after the  Constitution  was
adopted."  Note  (anon.)  The Changing Role of the  Jury  in  the
Nineteenth Century, Yale Law Journal, 74, 174, (1964).

     Thomas  Jefferson said in a letter to Thomas Paine in  1789:
"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."

     And yet, during the nineteenth century, judges chipped  away
at this fundamental right of free citizens, transferring more and
more power to themselves, contending that jury review of law  was
no  longer necessary, now that democratic elections had  replaced
Monarchy.   By  the  end of the century, the  Supreme  court  had
decided to leave it up to the judge to decide if the jury  should
be told of its right to judge law as well as fact.  Today, jurors
are  generally  told that they must accept the law as  the  judge
explains  it, and may not decide to acquit the defendant  because
their  consciences are bothered by what seems to them  an  unjust
law.  Judges falsely tell them that their only role is to  decide
if  the "facts" are sufficient to convict the defendant.  Defense
attorneys  are not allowed to encourage jurors to vote to  acquit
because  they believe the law is unjust or unconstitutional,  and
defendants  are  generally  not allowed  to  even  discuss  their
motives.

      In  plain  words, in what comes down to  a  power  struggle
between the people and the judicial system, the people have  been
losing.

       In  fact,  jurors  still, to this day, have the  right  to
veto,  or "nullify" bad laws. They are just not told this by  the
courts.   And judges and prosecutors exclude people from  serving
on  juries who indicate a willingness to nullify the  law.   This
violates the protections jurors were supposed to be able to  give
their  fellow  citizens against unjust prosecutions.  A  jury  is
properly a cross-section of the community as a whole.

     What can be done?  The Fully Informed Jury Amendment  (FIJA)
was  designed  to  return  to the  people  this  basic  and  very
important right.

     The  idea of the Fully Informed Jury Amendment is  to  amend
state  constitutions,  or  enact statutory  changes,  to  require
judges  to  inform jurors that if they think a law is  unjust  or
unconstitutional--or  just misapplied-- they need not convict  an
otherwise "guilty" defendant.

     FIJA does not give jurors the right to act as a legislature,
since their decisions affect only the case at hand and do not set
precedents for future cases.  Nor can jurors create new offenses.
If a jury convicts a defendant unjustly, the judge may set  aside
the  conviction, and in addition the defendant has the  right  of
appeal.

     People from all walks of life and from across the  political
spectrum are organizing to enact FIJA amendments.  FIJA activists
are  lobbying  state legislators to support FIJA  legislation  or
referendums.   FIJA  legislation  has  been  submitted   to   the
legislatures  of several states, and legislators are prepared  to
introduce  FIJA in several others.  Ballot initiatives are  being
pursued  elsewhere.  And in all areas of the country, people  are
spreading the word.

      The  judges and others within the government's courts  have
long  been  waging a campaign of disinformation, so  that  jurors
won't  even know what their rights are.  We think it's past  time
that  the people themselves begin to demand that their rights  as
jurors be respected.  It's not just jurors whose rights are being
denied.   Defendants,  too, have the right to a fair trial  by  a
jury  of their peers, and they have not been getting fair  trials
because  government judges have been systematically  misinforming
jurors.  In fact, this campaign to deny juror's rights  has  been
going  on for so long now that many attorneys (and probably  some
judges) are not even aware that these rights exist.

      We have the opportunity to take back control of this country
and  return  the ultimate safeguard of the rights of  the  people
back  where  it belongs, to the people.  Please join  us  in  the
campaign to pass the Fully Informed Jury Amendment.

     As  one participant in the debates over the ratification  of
the constitution put it:

     "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 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."   2
Elliot's Debates, 94, Bancroft, History of the Constitution, 267,
1788.