From page 1 of The Wall Street Journal
      Friday, January 4, 1991

                   Courtroom Putsch?
              ~~~~~~~~~~~~~~~~~~~~~~~~~~~
                 Jurors Should Reject
                 Laws They Don't Like,
                 Activist Group Argues
              ~~~~~~~~~~~~~~~~~~~~~~~~~~~
             It Says Juries Have the Power
              And Need to Be Told of It;
              Establishment Is Horrified
              ~~~~~~~~~~~~~~~~~~~~~~~~~~~
              Adherents Are a Diverse Lot
              ~~~~~~~~~~~~~~~~~~~~~~~~~~~
                  by Stephen J. Adler
       Staff Reporter of The Wall Street Journal

      As the room filled up, pot smokers mingle with church ladies
and tree lovers swapped stories with gun buffs.  Had someone taken a
wrong turn somewhere?
      These pilgrims to a slightly seedy motel near St. Louis didn't
seem to think so.  They had found common ground across vast
ideological divides in a group called the Fully Informed Jury
Association.
      Based in tiny Helmville, Mont., which boasts a populations of
28 and not a traffic light within 56 miles, FIJA is a low-budget
organization with a giant vision.  It wants, quite simply, to require
that juries be told the truth about how much power they have.  The
proposal may not sound like much, but on the remote chance that it
succeeds, it would change the face of the American legal system.
      That's a prospect that, for diverse reasons, excites libertarians,
tax protesters, civil rights groups, people on both sides of the abortion
issue, some academics and ex-judges -- and just about every fringe
group imaginable.  Putting the matter a bit too simply, libertarian and
FIJA co-founder Don Doig says fervently, "Our proposal would return
power to the people.  So those who want power returned to the people
like it, and those who don't don't."

           SOME PRECEDENT

      The movement springs from the fact that juries in criminal cases
possess an absolute but unadvertised power to ignore the dictates of
the law.  As a practical matter, a jury can know a defendant is guilty
but simply refuse to convict him.  The reason this is true is that the
U.S. system protects defendants from being tried twice for the same
crime and protects jurors from being punished for their verdicts.  So
while a jury's decision to acquit can be impulsive, biased or downright
unlawful, it cannot be second-guessed -- or revoked.
      What the so-called FIJA activists want is for judges to start
telling juries they have this power and to stop instructing them -- as
they have for more than a century -- that they must follow the law as
explained by the judge.  The group seeks state laws and constitutional
amendments to require judges to tell jurors they can ignore the law.
      The legal establishment defends the status quo by saying that
jurors may have the practical power but they don't, and shouldn't, have
the right.  The jury activists don't buy it.  Says Godfrey Lehman, one
of the movement's more passionate adherents, "The most important
role of the jury is to judge the law.  It is their duty to overturn any
law they don't like.  Judges who lie to them and refuse to tell them
that are criminals." He adds, "I hate judges. I hate them."

           GRASS ROOTS

      Sentiments such as Mr. Lehman's make FIJA vulnerable to
being dismissed as the concoction of the offbeat and overzealous.  And
it's true that many single-issue groups favor jury power simply because
they believe juries will be more sympathetic to their causes, from biker
rights to legalizations of marijuana, than are judges or legislators.
      But FIJA is only 18 months old, and it has already made
surprising strides.  Organizers say they have jury-rights lobbyists
operating in 35 states.  FIJA bills have been filed in a a handful of
legislatures, and last year the proposal garnered 13 co-sponsors in
Arizona.  More than 100,000 signatures for ballot amendments have
been collected in several other states.  The politically muscular
National Rifle Association and other lobbies have lent their
endorsements.
      The basic FIJA proposal provides that "the court must inform
the jury of its inherent right to judge both the law and the facts."  In
New York, state Sen. Joseph L. Galiber of the Bronx, a Democrat,
plans to introduce such legislation this month.  According to aide
Nathan Riles, Sen. Galiber sees it as helping guard against "lopsided
law enforcement" targeted at minority groups in urban areas.
Meanwhile, in mostly rural Montana, Republican state Sen. Dave Rye
says he is considering filing a jury-power bill because "the law has
gotten away from the average person."

           ESTABLISHMENT HORRIFIED

      While the proposal isn't close to passage in any state, the
emergence of the movement is startling enough to raise the hackles of
prosecutors, judges, and other members of the legal establishment who
like things much the way they are.  Joseph diGenova, a former U.S.
Attorney who prosecuted members of former Washington Mayor
Marion Barry's administrations, says, "If juries can ignore the law,
they can impose their own law on anyone.  That's exactly what tyranny
is all about."
      In truth, though, juries already exercise this power from time to
time, even without being told they have it.  After the trial of Mr.
Barry, for example, some jurors said they knew the mayor was guilty of
many charges but convicted him of only one because they believed he had
been unfairly targeted by prosecutors on racial grounds.  Studies show
that juries are frequently lenient to defendants who act in self-defense
but exceed the bounds of the law: Women who kill abusive husbands
are often acquitted, as are street-crime victims who retaliate against
their attackers.
      The jury activists believe that juries would exercise this power
more often if they understood that they had it.  And publicity alone
can have a big impact because if jurors learn of their power through
the press, they don't need to be told of it by a judge.  "Even if FIJA
doesn't succeed, it succeeds," says Mr. Lehman, a San Franciscan who
has served on seven juries and written a juror handbook that
emphasizes this power.
      Opponents acknowledge that jurors can't be punished for
disregarding the law.  But they see a big difference between allowing
jurors to make occasional deviations from the law and actively
encouraging such lawlessness.  These critics fear that, liberated from
following the established law, juries would convict or acquit defendants
because of race, ethnicity, religious beliefs or just on whim.  They
could give legal sanction to bias crimes, undermine the tax system by
letting tax cheats go free, or condone vigilantism.  If the principle
were applied to civil suits, as some of its advocates favor, it could
wreak havoc on commercial transactions.  The will of the legislature
would be thwarted.  The result, says Federal Judge William Schwarzer,
head of the Federal Judicial Center, "would be chaos and lawlessness."
      Nonetheless, jury-power activists have a good deal of
inspirational early American history on their side.  They point out that
in pre-Revolutionary days, colonists who served on juries made a
practice of refusing to convict defendants for breaking British laws they
deemed unfair.  In the most famous such case, jurors in New York City
acquitted printer John Peter Zenger of seditious libel after his attorney
convinced the jury that printing the truth shouldn't be illegal, no matter
what the British law on the subject said.  After the Revolution, many
U.S. judges continued to show deference to juries by routinely telling
them that they could determine for themselves what the law should
provide.
      But judicial enthusiasm for jury nullification of written laws
waned in the 19th century as legal rules became more complicated and
the power of professional lawyers and judges increased,  In addition,
the business community exerted pressure to make sure commercial
laws were enforced consistently.  In 1895, the Supreme Court made
clear that in federal criminal cases the judge was supposed to instruct
the jury to follow the law as interpreted by the judge.  With limited
exceptions in a couple of states, state courts have applied the same
rule.
      It is the prospect of restoring the jury's lost glory, and
encouraging juries to exercise their nullifications power more
frequently and more pointedly, that has enabled the FIJA activists to
overlook ideological differences in their ranks.  "I've learned there's
good in all groups," says libertarian Larry Dodge, who had run
unsuccessfully for state office three times in Montana when he heard
about jury nullifications from a tax protester.  Mr. Dodge seized on the
idea, held a meeting on the subject at the Libertarian Party convention
in the summer of 1989 and, along with Mr. Doig, began the Fully
Informed Jury Association shortly afterward.  Together, they started a
newsletter, created a "FIJA hotline" and set out to build a coalition
with no barriers to entry.
      Mr. Dodge was once a Democrat but now joins hands with
members of the John Birch Society.  "I'm interested in individual
rights, and that's not very different from what the John Birch Society
says, although they take some moral and military stands I don't agree
with," he says.
      Around the nation, FIJA activists are making similar
accommodations as they plunge into the lobbying fray.  Burk Hale III
from Chickamauga, GA., is fighting hard for jury power because "in
our community, we're pretty Christian people, and we want to use that
law to reflect how we feel about all these issues.  He worries that, in
the wrong hands, jury power could lead to "immoral results," but he
says he is willing to let the law reflect the standards of a particular
community.
      In Wyoming, Ayn Randian objectivist Don Young is furious with
the Supreme Court and sees jury power as a way to encourage limited
government and individual freedom.  He sees anarchists among jury
power supporters and notes, "I have some problems with anarchy."  But
he says he will work with them anyway.
      From a much different perspective, Mr. Riley, the aide to New
York State Sen. Galiber, also sees  "a dark side" to the movement:
White juries could refuse to convict whites who are guilty of bias
crimes.  But, he says hopefully, "The discipline of the court is such that
we can expect juries to act responsibly more often than not."
      Because they share this belief, close to 100 FIJA activists from
the far corners of the political universe managed to put up with one
another during their weekend conference in St. Louis.  Reflecting the
amity in the ranks, even a dinner-time discussion between people on
opposite sides of the abortion issue managed to remain civil.  Said Mr.
Doig afterward, "So it wouldn't get out of hand, I said ultimately we'll
have to leave the questions to the jury.  And both parties accepted
that."


    For more information on FIJA call: 

	 1 800 TEL JURY 	or write to:	FIJA
	(1 800 835 5879)			PO Box 59
						Helmville, MT 59843

						

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