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STATE OF INDIANA )
IN THE MARION COUNTY SUPERIOR COURTS
)
CRIMINAL DIVISION ROOM NO. 15
COUNTY OF MARION )
CAUSE NO. 49F14 9505 CM06 3632

STATE OF INDIANA, )
Plaintiff,)
)
Filed April 25, 1996 (cited in NY Times June 1997)
v. )
)
LINDA THOMPSON, J.D. )
Defendant.)

AMICUS CURAE BRIEF
RE: INDIANA CONSTITUTION,
ARTICLE I SECTION 19

Comes now, R. J. Tavel, J.D., Indiana state coordinator for the Fully Informed Jury Association, Inc., [a not-for-profit educational organization organized pursuant to IRC §501(c)(3) headquartered in Helmville, Montana with affiliate chapters in all 50 states of the United States] who, in support of the continued vitality of the concept of jury nullification found in the body of our state's constitution [Ind. Const. art. I, sec. 19], here submits, by way of his amicus curae brief, that then Chief Justice Randall T. Shepard was speaking to this Criminal Court when he observed: "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." [22 In. L. R. 575 (1989) quoting Mapp v. Ohio, 367 U.S. 643 (1961)].

The provision of jury nullification in the body of our constitution is not anomalous or even singular in its prescription since Article I Section 3 provides that no law may "interfere with the rights of conscience." Indeed, just as section 9 thereof affirms the rights of expression in language much more comprehensive than the first amendment to the U. S. Constitution, the very provision of all Hoosiers' right to "due process" is more explicitly stated as a "guarantee that all courts shall be open and that every person shall have a remedy." These are not accidents or mere happenstance. Quite to the contrary, they are the result of great deliberation and are meant to stand as the fundamental provisions underlying the consent of the people to be governed by the state [1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 394 (1850)].

The state's attempt to cast the issue in terms of "legislating" is disingenuous, without merit in the case at bar and, further, does not square with Indiana history. Our Indiana Supreme Court has held, in a long line of cases, e.g., from the case of MacDonald v. State, [63 Ind. 544 (1878)] through that of the Indiana Court of Appeals in State v. Tyson, (Ind. App., 1993) 619 N.E.2d 276, that, far from "legislating," the jurors "are oath-bound to find the facts honestly and accept the law faithfully as both exist, and . . . return a verdict which you find just and proper. . ." (Tyson, supra., at 299).

It is this last quoted phrase that is the operative concept underlying all of the foregoing writings in all of the aforementioned documents. Article I section 19 of the Indiana constitution is not a grant of right from the state, it is a recognition of right, a God-given, unalienable right drawn from the command of Deuteronomy 16:20: "Justice, justice shall you pursue."

It is in "good conscience" that jurors pass upon the circumstances of a defendant. Legislation, being the last pronouncement of the community standard by our General Assembly, is sometimes out of step or behind the times, since the community standard is forever evolving. Fully informed jurors, by their verdicts, send legislators non-political democratic feedback about the laws they have enacted, which is essential for the proper functioning of our constitutional Republic. Most importantly, fully informed jurors act as the fourth and final check on the unrestrained often oppressive crush of government prosecutions brought at the whim of state officials for no valid reason concerning public safety but rather for petty, personal, political reasons that have no place in a court of law [see, e.g., In Bushell's case, Vaughn. 135, 124 Eng. Rep. 1006 (C.P. 1670), wherein Justice Vaughn found that the jurors who acquitted William Penn of unlawful assembly "against full and manifest evidence" and "against the direction of the court in matter of law" could not be fined or imprisoned; and see, J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963). For many years following the Zenger case, it was generally recognized in American jurisprudence that juries in criminal cases had the "right" to decide the law, as well as the facts, and juries were so instructed (see, e.g., Skidmore v. Baltimore O.R. Co., 167 F2d 54, 57 (2d Cir. 1948).]

Last year, California's "trial of the century," People v. Oranthal James Simpson, has rekindled the fire and controversy surrounding jury nullification, just as New York's People v. Goetz raised the debate in 1988. While journalists and jurists alike proclaimed these to be "public-policy" verdicts, they were examples of jury nullification, and the majority of states have made provision for this right and power:

[CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION:
The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law.
For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial...and the jury shall be the judges of the law and the facts."
Attorneys in Georgia and Indiana are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law.
Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases:
Alabama (Art. I, Sec. 12); Colorado (Art. II, sec. 10); Connecticut (Art. I, sec. 6); Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20).
Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases, "as in all other cases."
[Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). This list has been updated to 1996.]

When there is division amongst the states on an important issue, trial judges often look to federal authorities for guidance, and such is instructive in this case. Modern Federal Jury Instructions (Sands, Siffert, Loughlin & Reis, Instruction 4-2) suggests that juries should be told that it is their "duty to acquit the defendant" if they harbor a reasonable doubt, however, rather than instruct juries that they have a corresponding "duty to convict," i.e., "must" convict if they are satisfied of the defendant's guilt beyond a reasonable doubt, the treatise recommends that juries be advised that they "should vote to convict: if the government has carried its burden (leaving a jury to conclude that it has the authority to nullify even in the absence of a reasonable doubt) [and our own federal district courts agree on this prerogative of the jury, see also, e.g., United States v. Will L. Dawson, and Derrick Termail Willis, Criminal Cause Numbers: IP 95-0064M-01-02, citing approvingly Beaver v. State, 236 Ind. 549, 141 N.E.2d 118 (1957) to the effect that "Article I, Section 19 of the Indiana Constitution provides that 'in all criminal cases whatever, the jury shall have the right to determine the law and the facts.' However, jurors should be bound by their conscience and their oaths, and not act arbitrarily, capriciously, upon a whim or prejudice.] While logic would seem to dictate that a corollary obligation be imposed on jurors, it is reversible error to charge that the jury must explain their doubts ever since the ordeal of Edward Bushell and the Penn jury hereinabove.

HUGO BLACK, a great believer in the Jury system, used to tell this story--

Years ago, in the foot-hills of Alabama, a tenant-farmer was charged criminally with stealing a cow from his landlord, and was brought to trial. As was frequently the case in rural America, the Jurors selected for the trial were acquainted with everyone, including the accused and his victim. Each juror knew that the farm's landlord was a nasty bastard who tormented his neighbors, while frequently treating the town's orphans and widows with derision. By the same token, the tenant-farmer was the salt of the earth, beloved by everyone. But still, the evidence of his guilt was indisputable.
After the evidence was in and the jury retired to deliberate, it quickly returned to the courtroom to announce its verdict: "If the accused returns the cow, we find him not guilty."
The judge was infuriated. His anger heightening, he commanded the jury to return to the jury room to deliberate --shrilly chastising them for their flagrantly "arrogant" and "illegal" verdict.
Not a moment passed when they re-appeared in the tense courtroom to trumpet their new verdict: "We find the accused not guilty -- and he can keep the cow."

The American Jury, Justice Black reminds his listeners, is effectively omnipotent in rendering an acquittal. What hits home in Justice Black's story is the deeply-held American notion that juries often perform an independent role in a system in which the people - not prosecutors, judges or lawyers - have the last word. In the end, if the jury wishes to let the defendant keep the cow, that is what will happen.

Respectfully submitted:
R. J. Tavel, J.D.
R. J. Tavel, J.D., #-------
Indiana State coordinator, F.I.J.A., Inc.
Founder, Liberty's Educational Advocacy Forum



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