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

Text File | 1990-08-29 | 9KB | 284 lines

                   ANSWERING THE HARD QUESTIONS

                            by Larry Dodge





     While  on my road trip, in meetings, talk shows,  and  media
interviews,  the  same  or similar questions came  up  again  and
again,  which  obliged  me  to  come  up  with  a  repertoire  of
satisfying  answers.  These I want to share with you,  since  you
may need to answer similar questions during the campaigns  ahead,
though I make no claim that mine are the best or only answers.







Won't FIJA lead to anarchy, with juries judging the law?



     FIJA  is actually an antidote to the anarchy  we've  already
got, where there are too many laws for people to obey, and  we're
experiencing  soaring  crime  rates and  overcrowded  prisons  as
direct  results.   When  juries consistently  refuse  to  convict
people of breaking a certain law, the incentive is for  lawmakers
to  change or erase it, lest they lose the next  election.   When
the  lawbooks  are  cleansed  of  unpopular  laws,  the  rate  of
obedience  to  the  remaining laws will be  high,  thus  reducing
anarchy.



     Likewise,  whenever jurors feel compelled to apologize to  a
defendant  for convicting him (which is quite  often,  nowadays),
and then later find out they had the authority to vote  according
to  conscience, but weren't told about it, their own respect  for
the law and our legal system can only diminish.  In other  words,
failure to inform juries of their rights breeds anarchy.



     Four states (Indiana, Oregon, Maryland, and Georgia) already
have general provisions in their constitutions acknowledging that
juries  may  judge  law, and 26 states have  the  same  provision
included in their sections on freedom of speech and libel.  To my
knowledge, no chaos has resulted because of these provisions.







Couldn't  the jury convict someone of a worse crime than the  one
he is charged with?



     No.  Juries do not and would not have the power to  escalate
charges against a defendant.  Their power may only be exerted  in
the direction of mercy, never of vengeance.  Nor can juries "make
law"  by which to convict a defendant.  That remains the  job  of
the  legislature.  They may, however, reduce charges  against  an
accused person, provided the lower charge is  a less serious form
of  the same crime he was originally charged with. The  decisions
of  juries  do not and would not establish precedent  for  future
cases.









What  if  the jury is prejudiced in favor of the  defendant,  and
lets him go even though he's clearly guilty?



     This is the "corrupt jury" problem, and happens periodically
with or without jury instruction in the right to judge law.   Any
jury  so poorly selected that all its members are  determined  to
acquit a guilty person is likely to do just that, no matter  what
it's  told  or not told.  For this to happen  virtually  requires
that both the prosecutor and judge be corrupt, as well, taking no
steps to see that at least some of the jurors are not prejudiced.
In  short,  if the defendant faces fourteen people, all  of  whom
favor letting him go free regardless of the evidence, he will  go
free.



     Even  under these circumstances, if jurors  were  instructed
that each of them could vote according to his own conscience,  as
FIJA  provides, there is at least a possibility that one or  more
jurors  would not go along with the rest, thus hanging  the  jury
with  one or more guilty votes.  Chances for justice  might  then
improve,  via  another  trial, perhaps a change of  venue,  or  a
different judge, and certainly another jury.



     Further, victims of crimes who do not find satisfaction in a
criminal trial verdict have, with fair success, been able to  sue
perpetrators  for damages. In other instances, crime victims  who
were unhappy with verdicts handed down in state courts have  been
able to have defendants tried in federal courts on other charges,
often for violating their civil rights.







Do juries have the right, or just the power, to judge the law?"



     They  have  both.  They have the power, because  in  a  jury
system, no one can tell the jury what verdict it must reach,  nor
restrict  what  goes on in jury-room  deliberations,  nor  punish
jurors for the verdict they bring in, nor demand to know why they
reached that verdict.



     They  have  the  right,  because  the  jury  is  necessarily
responsible for the fate of the accused individual--and for every
responsibility  there  is a corresponding right.  In  this  case,
that  is the right to consider everything necessary for  them  to
bring in a just verdict.  That includes evidence, testimony, law,
conscience, circumstances--whatever.



     Additionally,  any restrictions placed upon the  rights  and
powers the jury may exercise in fulfilling its responsibility  to
the defendant are violations of his right to a fair trial.










Wouldn't  our courts be flooded with jury trials if FIJA were  to
become law?"



     It's  possible that trials involving some of the  worst  and
most  frequently  broken laws would increase,  until  prosecutors
began  choosing  not  to attempt convictions on  them  any  more,
police  began  letting up on enforcement, and  legislators  began
reading the writing on the jury-room walls.  But the peak  should
soon  pass.  And appeals to higher courts should diminish,  since
more people would feel they'd received justice at their  original
trials.



     Ultimately, though, one must ask what's more important, fast
service  at  the courthouse, or justice for  the  individual  and
real-world feedback to the lawmakers?







     Wouldn't there be a lot of variation from place to place  in
jury verdicts, according to community standards?



     Perhaps,  at least with respect to some sorts  of  offenses.
Abortion, drugs, pornography, gun ownership, etc. might find more
acceptance in some communities than others.  We think it's  wrong
to  try to force a diverse society into a homogeneous  mold,  and
force  every  person  or every community to  conform  to  someone
else's  notions  of  how to behave.   Nevertheless,  the  overall
thrust   and  effect  of  FIJA  will  be  to  promote   tolerance
everywhere.   It  will be difficult for majorities  to  deny  the
rights of minorities, since minorities (and we're all minorities)
can defend themselves with jury veto power.



     American  society  has  disintegrated into  a  multitude  of
hostile  camps,  each  trying to control  the  others,  and  each
fearful of restrictive and oppressive laws passed by the  others.
And  there's  a  vulture  out  there,  feeding  on  the  carnage.
Otherwise  known as the government, this vulture feeds  on  fear,
distrust and intolerance, growing ever larger and more  powerful,
at the expense of the liberty and the rights of all of us.   FIJA
is the magic bullet that may save the day.





     What happens if the jury nullifies a good law?



     This  is  not  generally a problem.  We  have  centuries  of
experience with jury veto power, and generally laws that  protect
people  against  invasions of their property or  threats  against
their safety, are supported by the community as a whole, and are
enforced  by  jurors.  Maryland and Indiana report  good  success
with nullification instructions.





     It is elitist to accuse the ordinary people of this  country
of  not  being  able to  govern  themselves.   Political  science
studies   demonstrate   that  rarely  do  people   exhibit   such
conscientious   concern,  such  caution  and   such   responsible
behavior, as when they sit on a jury.







What  would become of the practice of basing verdicts upon  legal
precedents?



     The  role of case law, or precedent, would remain useful  as
advice  for  all parties to a trial, but its use as a  basis  for
verdicts in current jury trials would end.  A major objective  in
fully  informing juries of their rights and powers is to  provide
ever-evolving   feedback  to  our  lawmakers,  so  that   regular
adjustments can be made in the rules that we live by.



     The idea is to match our laws to our standards of right  and
wrong on an ongoing basis, so that gaps no longer develop between
them.   This  kind of consistency cannot be had  when  "precedent
requires" that the same verdict be found for a modern case as was
found  in similar cases in the past.   When gaps  between  what's
moral  and what's legal get too large, we risk "anarchy"  on  the
one hand, totalitarian intervention on the other.





Would  FIJA  violate  our fourteenth  amendment  right  to  equal
protection under the law?"











     Larry  Dodge  is the National Field Representative  for  the
Fully Informed Jury Amendment, P.O. Box 59, Helmville, MT, 59843.