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time to alert the Jury Nulification activists

http://www.caught.net/juror.htm

Jurors' Handbook
A Citizens Guide to Jury Duty

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!

[Copyright © 1996 Litigation. Originally published as 22:4 Litigation 6-60 (1996).]

Jury Nullification: The Top Secret
Constitutional Right
by James Joseph Duane

A bill now pending in the Missouri state legislature has whipped up a firestorm of controversy. Judges and prosecutors there call it "a gut-punch to democracy," "an invitation to anarchy," and a bill that "flies in the face of everything this country stands for." One county prosecutor has even called for the resignation of the 20 state representatives who introduced the bill.

What could have caused such calamity? This supposedly radical legislation would merely require judges to tell criminal juries the undisputed fact that they have "the power to judge the law as well as the evidence, and to vote on the verdict according to conscience." It is hard to remember the last time there was so much turmoil over a proposal to declassify a government secret during peacetime.

Meanwhile, out in Nevada, a 50-year-old florist and grandmother almost landed in prison for her efforts to help spread the word to jurors. When her son went on trial for drug charges in federal court, Yvonne Regas and a friend papered the windshields of nearby parked cars, hoping to let the jurors learn the completely unexpected fact that her son faced 450 years in prison for a single drug transaction nine years earlier. Federal authorities charged her with jury tampering and obstruction of justice, but eventually dropped the charges. Presumably, they gave up hope of figuring out how they could get jurors to convict her without showing them the contents of the pamphlets she had been distributing--and then her jury would know the truth about nullification.

Despite all the modern government resentment toward "jury nullification," its roots run deep in both our history and law. At least two provisions of the Constitution, and arguably three, protect the jury's power to nullify. They also explain why that power is limited to criminal cases, and has no analogy in the civil context.

First, it is reflected in the Sixth Amendment, which grants the accused an inviolable right to a jury determination of his guilt or innocence in all criminal prosecutions for serious offenses. Because of this right, a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's verdict of not guilty, "no matter how overwhelming the evidence." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Any violation of this rule is automatically reversible error without regard to the evidence of guilt. Id. Indeed, the point is so well settled that it was announced without dissent in Sullivan by a Court that has been unanimous on only a few constitutional questions in the past ten years.

This rule is applied with a rigor that is without parallel in any area of civil practice. For example, it is reversible error to direct a verdict of guilty over the defendant's objection, even if he takes the witness stand and admits under oath that he committed every element of the charged offense! Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168 (Ga. Ct. App. 1982). (Although one might fairly describe that particular defense strategy as a questionable use of direct examination.)

Judicial Deference
Likewise, when a judge takes judicial notice of a fact in a criminal case--for example, that the defendant could not have boarded a train in New York and exited in Texas without somehow crossing state lines--he will tell the jury they "may" accept that fact as proven without further evidence. But he may not tell them that they are required to do so, or take the factual question away from them, no matter how obvious the fact might seem. See Advisory Committee Notes to Fed. R. Evid. 201(g). Even where the defendant and his attorney enter into a formal stipulation admitting an element of the offense, the jury should be told merely that they may regard the matter to be "proved," if they wish, but the judge still cannot direct a verdict on that factual issue or take it away from the jury over the defendant's objection. United States v. Muse, 83 F.3d 672, 679-80 (4th Cir. 1996). All of these rules are designed, in part, to protect the jury's inviolable power to nullify and to avoid the reversible error always committed when "the wrong entity judge[s] the defendant guilty." Rose v. Clark, 478 U.S. 570, 578 (1986).

Second, the roots of nullification also run deep into the (p.7)Double Jeopardy Clause. Even where the jury's verdict of not guilty seems indefensible, that clause prevents the State from pursuing even the limited remedy of a new trial. This rule, by design, gives juries the power to "err upon the side of mercy" by entering "an unassailable but unreasonable verdict of not guilty." Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).

Finally, the jury's power to nullify is protected by our abiding "judicial distaste" for special verdicts or interrogatories to the jury in criminal cases. United States v. Oliver North, 910 F.2d 843, 910-11 (D.C. Cir. 1990). Unlike in civil cases, where such devices are routinely employed, in criminal cases it has frequently been held to be error to ask a jury to return anything but a general verdict of guilty or not guilty. United States v. McCracken, 488 F.2d 406, 418-419 (5th Cir. 1974) (collecting cases). This rule is designed to safeguard the jury's power "to arrive at a general verdict without having to support it by reasons or by a report of its deliberations," and to protect its historic power to nullify or temper rules of law based on the jurors' sense of justice as conscience of the community. Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st Cir. 1969). The jury is given "a general veto power, and this power should not be attenuated by requiring the jury to answer in writing a detailed list of questions or explain its reasons." United States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). Although the issue is far from settled, a powerful argument can be made that this rule "is of constitutional dimensions," and a direct corollary of the Sixth Amendment's protection of the jury's power to nullify. Wayne LaFave & Jerold Israel, Criminal Procedure § 24.7(a) (2d ed. 1992).

These constitutional rules, in combination, give a criminal jury the inherent discretionary power to "decline to convict," and insure that such "discretionary exercises of leniency are final and unreviewable." McCleskey v. Kemp, 481 U.S. 279, 311 (1987). This state of affairs does not even have a rough parallel in civil cases, where the Seventh Amendment right to a "trial by jury" does not preclude judges from granting summary judgment, directed verdicts, and new trials. (In effect, although both amendments are written quite similarly, the Supreme Court has interpreted the Sixth Amendment to give criminal defendants a right to a jury and a trial; the Seventh Amendment, where it applies, only gives civil litigants the right to a jury if there is a trial.)

The existence of a criminal jury's power to nullify is currently as well settled as any other rule of constitutional law. It is a cornerstone of American criminal procedure. The far more controversial issue--and much more frequently litigated--is that perennial dilemma: What should we tell the kids? Should (or must) the judge tell the jurors anything about their power (or right) to nullify? Should the judge at least allow the defense to tell them? If so, how much should we tell them, and how should we do it? These issues lie at the very core of our criminal justice system, and have been debated by lawyers, journalists, philosophers, and patriots for two centuries. It is therefore ironic that these questions have, at least in recent decades, generated one of the most remarkable displays of unanimity ever orchestrated by state and federal courts on any issue of law in American history.

It would take at most four words to fairly summarize the unanimous consensus of state and federal judges on the idea of telling jurors about their power to nullify: "Forget it. No way." Even while extolling the beauty and majesty of our commitment to the jury's constitutional role as a guardian against tyranny, no state or federal appellate court in decades has held that a trial judge is even permitted--much less required to explicitly instruct the jurors on their undisputed power to return a verdict of not guilty in the interests of justice. The federal courts are unanimous and have been for years, e.g., United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) ("a district judge may not instruct the jury as to its power to nullify"). So are the state appellate courts, e.g., Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. App. 1996); Michigan v. Demers, 195 Mich. App. 205, 489 N.W.2d 173 (Mich. Ct. App. 1992).

State Law
There is a pervasive myth that three states supposedly allow jury nullification instructions: Georgia, Maryland, and Indiana. See State v. Morgan Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because those states have laws or constitutional provisions suggesting that criminal jurors are judges of the law and the facts. But the myth is false. Despite their differing constitutions, all four states have held that a jury has, at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law. See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

Resourceful defendants and their attorneys have tried every conceivable route around this immovable roadblock. All have been thwarted. Without exception, the appellate courts will not allow a defense attorney to use her closing argument to tell the jurors about their power to nullify, or to urge them to use it. See, e.g., United States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996).

Nor can the defense offer evidence that is relevant to nothing (p.8)but the justness of a conviction or acquittal, or is otherwise designed to induce the jury to nullify. United States v. Griggs, 50 F.3d 17, 1995 WL 7669 (9th Cir. 1994). This includes, most notably, any information about the sentence faced by the defendant, even if it is a minimum mandated by law. United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995).

Judicial disapproval also extends to any evidence or argument designed solely to persuade the jury that the government was guilty of misconduct in its investigation or prosecution. United States v. Rosado, 728 F.2d 89, 93-95 (2d Cir. 1984).