     NEW HOPE FOR FREEDOM: FULLY INFORMED JURORS   DON DOIG

                                                       

     America's  Founders  were worried that the  government  they 
created  might someday grow too powerful, and begin to pass  laws 
which would violate the rights of the very people the  government 
was   supposed   to  protect:  ordinary,   peaceful,   productive 
Americans.  But they had an "ace in the hole" which they believed 
would  suffice  to hold the government in check.   That  was  the 
right to a trial by a jury of one's peers.



     Since  when, you might ask, can a jury protect  people  from 
arbitrary  and  unjust  prosecutions,  or  from  bad  laws?   The 
legislature  creates laws.  Aren't we supposed to obey them,  and 
lobby our legislatures for any changes that need to be made?  



     Traditionally,  Americans  have  had  more  substantial  and 
direct  means by which to protect against governments  grown  too 
ambitious,  and  by which to resist oppressive  laws.   America's 
Founders realized that the temptations of power were too great to 
leave  it  to  the  legislature, to the  executive,  and  to  the 
judicial branches of government to define what the rights of  the 
citizens of this nation were.  Ultimately, citizens at the  local 
level, acting according to the dictates of individual  conscience 
were  to  have the final say, the final check and  balance.   The 
people would need veto power over bad laws.



     And  they provided just such a veto, a  centuries-old 
tradition carried over from England to the colonies, which  holds 
that jurors could judge whether a law was a good law, a law  that 
did not violate the rights of free men and women.  If,  according 
to  the  dictates of conscience, jurors did not think a  law  was 
just, or if they thought the law had been misapplied, they  could 
refuse to convict an otherwise "guilty" defendant. Even a  single 
juror could prevent a conviction, by voting not guilty.



     And if the jury as a whole decided to acquit the  defendant, 
that decision was and is final.  A verdict of innocent cannot  be 
overturned,  nor can the judge harass the jurors for  voting  for 
acquittal.   Jurors  cannot be punished for voting  according  to 
conscience. 



     These  principles date back to the time of the Magna  Carta.  
In 1670, Willian Penn was arrested for preaching a Quaker sermon, 
and  in  so  doing breaking the law of England,  which  made  the 
Church  of  England  the only legal church.  The  jurors  in  his 
trial,  led by Edward Bushell, refused to convict him,  and  were 
themselves   held   without  food,  water,  tobacco   or   toilet 
facilities.   Four were put in prison for nine weeks.  When  they 
were  finally released by court order, the  decision  established 
that jurors could no longer be punished for their verdicts. 



 This case helped establish freedom of religion, and the right to 
a  trial  by a jury of one's peers, a jury free  from  government 
coercion.


     The  trial of John Peter Zenger, in the  American  colonies, 
was  another  landmark  case.   Zenger  had  been  arrested   for 
publishing  materials critical of the Royal Governor of New  York 
colony  and his cronies, accusing them of corruption.  While  the 
charges were true, under the law, truth was no defense.  Zenger's 
attorney,  Andrew  Hamilton, argued to the jury  that  they  were 
judges of the merits of the law, and should not convict Zenger of 
violating  such  a  bad  law.   The  jury  agreed.   Zenger   was 
acquitted, and this case helped establish the right to freedom of 
speech.     



     The  Founding Fathers were clear about where they  stood  on 
the issue of the rights of jurors:



     "The right of the jury to decide questions of law was widely 
recognized   in  the  colonies.   In  1771,  John  Adams   stated 
unequivocally that a juror should ignore a judge's instruction on 
the law if it violates fundamental principles: 

     'It is not only...[the juror's] right, but his duty, in that 
case,   to   find  the  verdict  according  to   his   own   best 
understanding,   judgment,  and  conscience,  though  in   direct 
opposition to the direction of the court.'

     There  is  much evidence of the general acceptance  of  this 
principle  in the period immediately after the  Constitution  was 
adopted."  Note  (anon.)  The Changing Role of the  Jury  in  the 
Nineteenth Century, Yale Law Journal, 74, 174, (1964).



     Thomas  Jefferson said in a letter to Thomas Paine in  1789: 
"I consider trial by jury as the only anchor ever yet imagined by 
man,  by which a government can be held to the principles of  its 
constitution."

     

     And yet, during the nineteenth century, judges chipped  away 
at this fundamental right of free citizens, transferring more and 
more power to themselves, contending that jury review of law  was 
no  longer necessary, now that democratic elections had  replaced 
Monarchy.   By  the  end of the century, the  Supreme  court  had 
decided to leave it up to the judge to decide if the jury  should 
be told of its right to judge law as well as fact.  Today, jurors 
are  generally  told that they must accept the law as  the  judge 
explains  it, and may not decide to acquit the defendant  because 
their  consciences are bothered by what seems to them  an  unjust 
law.  Judges falsely tell them that their only role is to  decide 
if  the "facts" are sufficient to convict the defendant.  Defense 
attorneys  are not allowed to encourage jurors to vote to  acquit 
because  they believe the law is unjust or unconstitutional,  and  
defendants  are  generally  not allowed  to  even  discuss  their 
motives.  

     

      In  plain  words, in what comes down to  a  power  struggle 
between the people and the judicial system, the people have  been 
losing.  


       In  fact,  jurors  still, to this day, have the  right  to 
veto,  or "nullify" bad laws. They are just not told this by  the 
courts.   And judges and prosecutors exclude people from  serving  
on  juries who indicate a willingness to nullify the  law.   This 
violates the protections jurors were supposed to be able to  give 
their  fellow  citizens against unjust prosecutions.  A  jury  is 
properly a cross-section of the community as a whole.



     What can be done?  The Fully Informed Jury Amendment  (FIJA) 
was  designed  to  return  to the  people  this  basic  and  very 
important right.



     The  idea of the Fully Informed Jury Amendment is  to  amend 
state  constitutions,  or  enact statutory  changes,  to  require 
judges  to  inform jurors that if they think a law is  unjust  or 
unconstitutional--or  just misapplied-- they need not convict  an 
otherwise "guilty" defendant.  



     FIJA does not give jurors the right to act as a legislature, 
since their decisions affect only the case at hand and do not set 
precedents for future cases.  Nor can jurors create new offenses.  
If a jury convicts a defendant unjustly, the judge may set  aside 
the  conviction, and in addition the defendant has the  right  of 
appeal.



     People from all walks of life and from across the  political 
spectrum are organizing to enact FIJA amendments.  FIJA activists  
are  lobbying  state legislators to support FIJA  legislation  or 
referendums.   FIJA  legislation  has  been  submitted   to   the 
legislatures  of several states, and legislators are prepared  to 
introduce  FIJA in several others.  Ballot initiatives are  being 
pursued  elsewhere.  And in all areas of the country, people  are 
spreading the word. 



      The  judges and others within the government's courts  have 
long  been  waging a campaign of disinformation, so  that  jurors 
won't  even know what their rights are.  We think it's past  time 
that  the people themselves begin to demand that their rights  as 
jurors be respected.  It's not just jurors whose rights are being 
denied.   Defendants,  too, have the right to a fair trial  by  a 
jury  of their peers, and they have not been getting fair  trials 
because  government judges have been systematically  misinforming  
jurors.  In fact, this campaign to deny juror's rights  has  been 
going  on for so long now that many attorneys (and probably  some 
judges) are not even aware that these rights exist.



     We have the opportunity to take back control of this country 
and  return  the ultimate safeguard of the rights of  the  people 
back  where  it belongs, to the people.  Please join  us  in  the  
campaign to pass the Fully Informed Jury Amendment.  



     As  one participant in the debates over the ratification  of 
the constitution put it:


     "If  a juror accepts as the law that which the judge  states 
then  that juror has accepted the exercise of absolute  authority 
of  a government employee and has surrendered a power  and  right 
that  once  was  the citizen's  safeguard  of  liberty,--For  the 
saddest  epitaph  which  can be carved in memory  of  a  vanished 
liberty  is  that it was lost because its  possessors  failed  to 
stretch  forth  a  saving  hand while yet  there  was  time."   2 
Elliot's Debates, 94, Bancroft, History of the Constitution, 267, 
1788.
