-Caveat Lector-
In a message dated 98-12-20 06:34:24 EST, you write:
<< Date: Sat, 19 Dec 1998 11:11:29 -0700 (MST)
>From: Jury Rights Project <[EMAIL PROTECTED]>
>Subject: Atty. Grant Responds to Judge Ryan (11/98)
>
>Summit Free Press
>P.O. Box 8386
>Breckenridge, CO 80424
>Email: [EMAIL PROTECTED]
>
>November 1998
>
>Jury Nullification is a constitutional right, attorney argues
>
> I write in response to Judge Jeffrey Ryan recently lengthy attack on
>the Fully Informed Jury Association ("FIJA") and the ideas it promotes,
>which he described as "jury nullification."
> The judge began by smearing FIJA with an attempt to prove "guilt by
>association." After that, he attacked what FIJA promotes, jury
>independence or nullification.
> FIJA may be too "radical" for the judge, but FIJA's literature
>promoting jury rights, they quote such historical supporters as John Adams
>(2d President of the United States), Thomas Jefferson (author of the
>Declaration of Independence and 3rd President), and John Jay (1st Chief
>Justice of the United States Supreme Court). FIJA also recounts famous
>trials where juries stood up for the rights of the accused, in defiance of
>tyrannical and oppressive kings, judges and prosecutors, trials such as
>that of William Penn in London in 1670, of John Peter Zenger in New York in
>1735, and trials under the Fugitive Slave Act in the 1850's. These trials
>helped establish freedom of religion and assembly, freedom of the press,
>and the end of slavery. English juries refusing to convict when conviction
>led to death helped end the "bloody codes" of England (under which over 200
>offenses were punished by death). That's a pretty good pedigree for "jury
>rights," or "jury nullification." Juries also helped end Prohibition.
>What part of that history does the judge find objectionable?
> FIJA literature recalls that the Anglo-American legal system has had
>written guarantees of the right to jury trial since it was first enshrined
>in Magna Charta, in 1215, when the barons of England forced King John to
>recognize the right. King John was forced to restore to juries the
>responsibilty of determining what was a crime, meaning that juries judged
>the legitimacy of the King's rules, or proclamations, as well as whether a
>person had violated those rules.
> Our nation's founders complained bitterly that the British were
>depriving Americans of the benefits of trial by jury, and included that
>complaint as one of the justifications for independence listed in the
>Declaration of Independence. Why did Britain fear American juries?
> The reason was that Americans through juries refused to enforce many
>British laws - such as the Stamp Acts, tea taxes, anti-smuggling laws, etc.
>American juries also convicted British tax collectors and inspectors of
>trespassing against Americans, in defiance of British law which provided
>immunity for government officials. Britain was denying Americans trial by
>jury because American juries were expressing disagreement with invalid or
>unjust British laws. American juries were abiding by their oaths to "well
>and truly try the case, and a true deliverance make."
> When our founders demanded the right to a jury trial in all criminal
>prosecutions, and when they made that part of our Bill of Rights, they were
>demanding a jury with the power to do justice, even if that conflicted with
>the government's view of the law.
> The historical role of the jury extends back more than 1000 years.
>We are not taught that in our schools, and you won't read much of that
>history in court opinions, either. Judges have concluded that if this
>jury power ever existed, it is no longer necessary in our country, for we
>no longer need fear tyrannical judges. Right.
> Our system of government is a republic, based on the consent of the
>people, not just the majority. We protect individuals and minorities with
>constitutions and bills of rights, and with the right to trial by jury. No
>one can be deprived of their life or liberty without a unanimous verdict
>(except in Oregon and Louisiana) from a jury of their peers (except for the
>90% or more of all criminal defendants whose cases are decided pre-trial,
>by plea bargains and such, because the risks of trials to uninformed juries
>are often too great).
> Over the last two centuries, our judges, lawyers, and legislators
>have fallen in love with the myth that the government (rather than the
>people) determines our laws and our rights. But that's a myth. The
>majority may not oppress the minority. Many of our criminal statutes are
>not universally accepted and such laws should not be used to deprive
>people of their liberty. If cross-sectional juries were drawn from our
>communities at random (no jury stacking through the jury selection
>process), and if our juries were fully informed about what was going on in
>the courtroom, and what harsh penalties might be imposed on defendants if
>convicted, juries would be acquitting many more defendants, sending a
>message to our so-called "representatives," that many of the laws they
>pass are unacceptable and should be repealed.
> Our constitution guarantees "trial by jury," not trial by judges.
>Anyone who has studied the history of trial by jury, can't escape the
>conclusion that jury rights were demanded, fought for, and won, by persons
>who insisted that juries would determine whether the offense charged was
>even a crime, as well as whether the person charged did the deed and
>should be punished for it. I've got an essay from 1680 written by
>England's Solicitor General which says precisely that.
> Judge Ryan quoted a court decision which says that "jury
>nullification" (the jury's prerogative to bring back a verdict of not
>guilty, for any reason they choose, even if in defiance of the law or the
>judge's instructions on the law) is a "power," but not a "right." Courts
>have said that, but they are wrong. A lawful power which the government
>cannot review or interfere with - such as jury nullification - is, indeed,
>a right, it is an "inalienable right." It predates our constitution and
>government. Our government does not recognize an "inalienable right" when
>it sees one.
> Judge Ryan believes that jury power will undermine our system of
>government, leading to anarchy and injustice. He suggests that in the 50s
>and 60s, bigoted southern juries acquitted murderers. What he overlooks is
>the far moe prevalent problem that the police wouldn't arrest whites who
>attacked or killed blacks, prosecutors wouldn't bring charges, and judges
>would throw out the cases.
> The likelihood of a virtuous government and a corrupt jury is
>inconceivable and is not provided for in our constitution. There can be no
>justice in a community so corrupt that juries acquit bigoted killers.
> Real history shows that Jim Crow laws depriving blacks of their
>rights were passed by legislatures and enforced by our courts. Blacks
>were forbidden by law to own firearms so that they could not defend
>themselves and blacks were also kept off juries prevented from voting.
>They were prevented by the government from working in many trades and
>professions. Our Supreme Court upheld laws treating blacks as inferior, as
>long as so-called "separate but equal facilities were provided. Those
>government policies made blacks second-class citizens for a century.
> Pre-civil war northern juries, on the other hand, protected the
>underground railroad, by which slaves escaped the South, by refusing to
>convict those who helped runaway slaves. Some judges responded to these
>"lawless juries" by "jury stacking," conducting extensive jury interviews
>and disqualifying from jury service any juror who refused to enforce the
>Fugitive Slave Act.
> Jury stacking is practiced today in Colorado where juries are
>routinely interrogated to determine whether any prospective juror
>disagrees with the laws which will apply in the case, or whether any
>prospective juror is suspicious of the government. Jurors who confess to
>either are then disqualified, leaving defendants with juries uniquely
>qualified to rubber-stamp the government's case for conviction. If I were
>a defendant, I would want to disqualify any juror who was not suspicious
>of the government.
> Judges refuse to instruct juries about their lawful power to acquit
>if the jury determines, for any reason, that justice requires an
>acquittal. Attorneys are forbidden from mentioning that power. Some
>judges go so far as to tell juries that they "must" [rather than "should"]
>follow the law as given to them by the judge. All judges and attorneys
>know that is false.
> Jurors cannot be punished for their verdicts. Jurors can (morally,
>they must) question the law, so long as they do so in their own minds -
>some jurors have been removed from deliberations for vociferously opposing
>a law or instruction. (One juror has been prosecuted for criticizing the
>law, in the jury room, on the pretext that she should have disclosed her
>opinions during jury selection, even though she was not asked her
>opinions. That case is still pending on appeal.)
> The right to trial by jury means much less now than it did in 1776.
>Fully informed juries can restore the right to its historical importance.
>
>Paul Grant
><[EMAIL PROTECTED]>
>
>Paul Grant is an attorney practicing in Parker, Colorado and he specializes
>in constitutional law, criminal defense, and civil litigation. He
>represents the Gilpin County juror, Laura Kriho, who was prosecuted for not
>disclosing her views on jury rights and the drug laws. (Editor's note:
>for more on that story, please see "From Juror to Defendant, the
>controversial prosecution of Colorado hempster Laura Kriho," Summit Free
>Press, September 1998.)
>------------------------------------------------------------------------
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>>
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