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MISINFORMED JURIES by Pastor Bob Hallstrom If you were to make a list of your least favorite places to be, I would imagine the dentist's office, and the line at the Motor Vehicles Bureau would head the list -- and rating right up there with them would be the courtroom -- any courtroom, at any time for any reason. The obvious exceptions to this are the judge, lawyers, and other legal professionals who make their living in the courtroom. But for most people, the courtroom is ominous and foreboding, and no matter what the circumstances, most people always feel uncomfortable there, and distinctly out of place. Have you ever wondered why that is? I suspect that, in part, it has to do with our general attitude about the law and legal proceedings. Americans have been subjected to such a deluge of intrusive busybody legislation in recent years, invading every facet of their lives, that they have grown fearful and cynical. They see the law not as a friend that protects, but as a foe poised to pounce -- a continual threat to their peace and tranquility. Most of us wonder if there is anything we can do anymore that doesn't violate at least two or three laws. Another reason the courtroom repels us is because the average citizen feels so utterly powerless in that place. It is the epitome of irony that the very institution most designed to preserve the rights of the individual has become a system where the individual feels alienated and shut out. lt is no longer our judicial system, it is theirs (that is, the government's). It is run by the professionals, for the professionals, and we just go along for the ride. Actually, in most cases we are taken for a ride. Nowhere is this more evident than in the systematic weakening of the jury system and with it, the fundamental right to be tried by one's peers. As we moved into an age of "imperial courts" and advocacy judges, it became increasingly more necessary for our judicial system to see to it that juries not "get in the way" of the social agenda and governmental prerogatives. At least that's the way I see it. To accomplish this, the courts have defined the role of the jury in the narrowest of terms, where jurors function as little more than official scorekeepers who add up the points at the end of the match. Have you ever served on a jury, or watched a jury trial firsthand? The instructions that the judge gives the jurors just prior to their deliberation are always extremely revealing. Essentially, they are told that they are to function as machines -- not as rational individuals, capable of making sound moral judgments -- and that their only purpose is to: 1) accept, without question, the judge's explanation of the law; 2) determine the facts in the case; and 3) apply the facts to establish guilt or innocence. These instructions turn jurors into robots, and that means the verdicts will be all too predictable. The question is this: Is our goal uniformity of verdicts or is our goal justice? In the first case, all we need to ask is whether the person violated the law. In the second case, we need to establish if the person was morally guilty of a punishable crime. In pursuing the higher goal of justice, jurors must examine not only the "facts," but also the defendant's motives, and the justness of the law as applied -- or not applied -- in the particular case. Moreover, the good conscience of each jury member is an essential ingredient in arriving at a just verdict. If jurors are not allowed to apply righteousness and moral conscience to the case, then there is really no reason to have a human jury -- a computer could suffice just as well as a dozen servile, mechanical jurors. Does this mean that in some cases juries might find defendants technically "guilty" of violating a law but enter a verdict of not guilty to the commission of a crime? Absolutely! And the truth is, juries in America not only have the authority but they also have the responsibility to enter such verdicts when conscience and circumstance dictate it. Sad to say, this fundamental principle is not taught in our public schools and law colleges anymore, but it is deeply rooted in the history and foundational writings of our nation. It was even written into a number of our state constitutions. Listen to the words of President John Adams: "It is not only his (the juror's) right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court." And Alexander Hamilton: Jurors should acquit even against the judge's instruction "if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong." Actually, the authority of juries to, in specific cases, veto or "nullify" unjust law is a principle with roots going as far back as the Magna Carta in 1215. What it is saying, in essence, is that people, not government, are sovereign and that through the jury, the citizenry has an ultimate check on bad law and oppressive government. By refusing to convict their fellow citizens, a free people can render tyrannical law unenforceable and eventually require the legislative branch to make sweeping changes. As Thomas Jefferson wrote: "I consider trial by jury as the only anchor ever yet imagined by man by which the government can be held to the principles of its constitution." American history offers many examples where widespread jury nullification (refusal to convict) established justice and ultimately, purged bad law. Space doesn't permit much discussion of this, but cases that immediately come to mind include the colonists' refusal to enforce forfeitures under the English Navigation Acts, northern states' juries' veto of the Fugitive Slave Law, and in the 20th century, jury nullification of the prohibition law. American juries have as much right as ever to judge both law and fact, and to rule on the basis of conscience. This veto power is a cornerstone of our liberties and is an essential element of government by the people. In fact, the U.S. Supreme Court way back in 1794 understood the principle of jury nullification. The first ever chief justice, John Jay, in a court case entitled Georgia v. Brailsford (found in any law library in the Supreme Court Reporter, 3 Dallas 1), said to a jury: "It is presumed that juries are the best judges of fact; it is...presumed that the courts are the best judges of the law. But still both objects are within your (the juror's) decision. You have a right to take it upon yourselves to judge both law as well as fact in controversy." Remember now, that was the first chief justice of the United States Supreme Court. The problem, of course, is that in modern days almost no jury is ever informed of its rightful role and authority, but rather, are shamefully misinformed, as mentioned earlier. Happily, some political activists have come to the rescue! These folks have drafted what they call the "Fully Informed Jury Amendment," which is now being organized as a ballot initiative in some 20 states. If passed and enacted, "FIJA" would require that every jury be properly instructed: on its power and responsibility to judge whether a law is unjust or misapplied, on being allowed to hear evidence about a defendant's motives, and on having the authority to acquit or convict according to the dictates of conscience. FIJA has already received broad and enthusiastic support from a wide range of divergent groups and philosophies (gun owners, for example, can see how with FIJA on the books, it would be virtually impossible to enforce strict gun control in Montana). As they put it, juries would "just say no." The initiative looks to have an excellent chance of success. We should all get behind it, for freedom's sake. By Autumn 1992, the FULLY INFORMED JURY ASSOCIATION (FIJA) was active in all 50 states and had legislation pending in 20 states. Frankly, if you are interested in preserving our American heritage and freedom through the power of the jury, you need to read their excellent newspaper and literature on the subject which will explain in greater detail your true rights and powers as a juror. If you are interested in the concept of freedom exercised by the jury in the form of Jury nullification, may I suggest you contact FIJA, PO Box 59, Helmville MT 59843; (406) 793-5550.
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