Jury Nullification: Preserving Liberty or a Step Towards Anarchy?
Supporters see them as freedom fighters protecting Americans from big government. Judges and prosecuters see them as lunatic citizens promoting anarchy. But the Fully Informed Jury Association (FIJA) has just one goal in mind: to protect individual rights and secure citizen control of government by informing jurors of their right to not only judge the facts of a case as they apply to the law, but to judge the law as well.FIJA is a nation-wide organization dedicated to educating the public on their rights as jurors. They pass out fliers outside of courthouses, send letters to newspapers, and make appearances on television in order to spread their message of "fully informed juries." They inform people that as jurors they have the right to judge the law and nullify cases (when a jury finds a defendant Ônot guiltyÕ in a case that they feel is unlawful or undemocratic, it is called jury nullification) if they feel the defendant has done nothing wrong or that the behavior was acceptable under the circumstances. They can judge the validity of a law, and whether or not the law should apply to specific cases.For instance, if a man is on trial for stealing a car in order to rush his pregnant wife to the hospital, the jurors can find him innocent of stealing, thus nullifying the charges against him. FIJA encourages jurors to vote Ônot guiltyÕ if they disapprove of the prosecution. They have the right to vote their conscience and decide if the person would truly be a threat to society.Most prosecutors, police officers and judges donÕt support fully informed juries, however. They feel jury nullification will lead to anarchy and wide-spread injustice. Because of this, FIJA activists are frequently arrested for contempt of court and jury tampering, especially while passing out fliers to citizens that inform them of their rights as jurors. FIJA activists are often given fines and even thrown in jail for their actions. FIJA is leading the peopleÕs jury movement, but they face an uphill battle against the authoritative US judicial system.The Purpose of Jury NullificationWe currently have a simple, yet effective, system of checks and balances in the United States for our three branches of government. The checks and balances are meant to prevent one person or group from gaining too much power and control. According to FIJA, citizens are also an integral part of the checks and balances system. Jurors, in specific cases, examine the justice of the legislatureÕs laws and determine if they are applicable. In an 1852 essay by Lysander Spooner entitled "The Rights of Juries to Judge the Justice of Laws," which is used often by FIJA activists, the author writes, "The object of a trial is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people judge their own liberties against the government instead of the government judging of and determining its own powers over the people."This way, legislators cannot pass laws which are detrimental to society or that limit our freedoms. FIJA National President Kaylin Robinson explained, "If jurors rule Ônot guiltyÕ consistently on a particular charge, in practical terms, it gives the message to the prosecutors they donÕt want to pursue those cases because they won't get a conviction. That message makes its way up to legislation and that law could be repealed. Jurors wouldnÕt convict during Prohibition and the message got back to the legislators that the people didnÕt accept it. People have only two places where they have this power, the voting box and the jury box." The jurors in a court room are representative of the all the people in the country, so individuals are actually getting a "trial by country," as distinguished from a trial by government. FIJA activists maintain that if a jury is judging based solely on the laws of the government, then it is trial by government, not of the people. FIJA states that Americans have the right to nullify laws by refusing to convict people of charges they find inoffensive or harmless. Robinson explained, "Jurors should be the voice of the community. If a person is charged with a crime the jurors donÕt feel is unlawful, they should have every right to say so. They can say this doesnÕt offend our sense of right or wrong."Jury Nullification InjusticeThere are numerous cases in which juries have convicted people because they were told to just follow the letter of the law. In Cincinatti, 70 year old Sylvia Stayton was convicted and fined $500 for obstructing justice. She put a nickel into someone else's expired meter in front of a police officer, who promptly arrested her. A Cincinatti city ordinance states that it is illegal to put money in an expired meter, the car must be moved. A jury was forced to convict the woman because she disobeyed the ordinance, a law that less than 1 percent of the city population knew about.One of the most high profile cases is that of Laura Kriho. Two years ago, the 33 year-old Kriho was called for jury duty in a drug possession case in Colorado. In 1985, she was arrested for possession of LSD, but said nothing of, nor was she asked about, the arrest during jury selection. Her arrest had been stricken from her record in 1987 after she recieved a deferred judgement (she served 6 months probation in return for a clean record). During jury deliberation, she was the only juror who would not convict because she felt possession of small amounts of drugs should not be a criminal offense. Kriho also revealed to the jurors the sentencing structure for drug possession, which is prohibited by the courts so as to not cause undue influence. Kriho had researched and discussed the sentence for drug possession contrary to the judgeÕs instructions. A mistrial was declared and Kriho was fined $1,200 for criminal contempt of court, and she faced a possible 6 months in prison. Kriho was charged with contempt for discussing punishment during deliberation, and for perjury for failing to inform the court during jury selection about her arrest for drug possession. Deputy District Attorney Jim Stanley accused Kriho of obstructing justice, condemning her for discussing her "firm belief that the drug laws in this country are wrong, and a jury has the right to change them." KrihoÕs lawyer argued, "The court is trying to intimidate anybody with an independent mind. The government cannot tell its citizens not to think critically of the law or the government. Nor can it order a juror to violate her own conscience." Kriho was convicted and ordered to pay her fine, but not sent to prison. Many citizens are outraged by this, and are sending money to her legal defense fund because they fear how far courts will go to eradicate preconceived opinions from juries. She is currently appealing the decision at the Colorado Supreme Court. If she fails there, she will take her case to the US Supreme Court.Jury Nullification History Jury nullification is not mentioned in the constitution, but rather, is invoked via hundreds of years of case law precedence. Jury nullification was commonplace during the colonization of America, according to Robinson, "It was never in the constitution. It was the founding fathers understanding of jurors at the time; that nullification is what a jury would do. This was set up by case law more than through any specific statutory of constitutional history. It was the law of the land, but not put into the constitution because they didnÕt think there was a need."The landmark case that all FIJA activists point to is that of William Penn in 1670. Penn was arrested for preaching Quakerism in the streets. When the authorities put Penn on trial, the jurors refused to convict because they believed he did nothing wrong. The judge arrested the jury for contempt of court, but the charges were thrown out and the jurors and Penn were set free.After that, there was widespread jury nullification, including during the Fugitive Slave Act (which mandated that all runaway slaves in the North be returned to the South). Many Northern juries would find runaway slaves innocent of escaping, so that the slaves would not be sent back to the South. Jurors believed that the slaves did nothing wrong in trying to escape such horrific conditions, even though the law said they should be returned.Jurors were no longer informed of their rights after the 1898 case of US vs. Sparf. Robinson explained, "Six sailors had gotten into a ship board fight. One of them got killed. The five remaining were charged with murder. The jury asked the judge to convict them of a lesser charge, such as manslaughter. They felt they did something wrong, but manslaughter was more appropriate. The judge said the jurors couldnÕt take the law from him. Because the jurors didnÕt want to let the sailors go, their only alternative was to convict them of murder. It went up for appeal at the Supreme Court. There were 5 members then and they split 3-2 in favor of upholding the opinion. The main opinion was that the jury has the right to vote their conscience, but they donÕt have to be told about that right."Robinson said that as time progressed, Judges started telling jurors they didnÕt have the right to vote their conscience, "Case law came down that said jurors have the right to nullify, but they donÕt have to be told. Now, in most cases, judges tell jurors they donÕt have the right to vote their conscience, that they have to follow the law specifically, ruling on the facts and not the law. The result is that we have a lot of jurors walking out of the courtroom unhappy with their verdicts."FIJA GoalsAcross the nation, FIJA activist groups are trying to introduce legislation in their respective states that would require judges to inform juries of their full rights. Dell Lawrence, the Iowa FIJA Representative, said that his group has tried to introduce several bills, but they were shot down. One of the bills was SSB 56, and it serves as an example for which other state groups are patterning their bills after. It reads, "A defendant's right to trial by jury, where the state or a political subdivision is the plaintiff, includes the right to inform the jury of the juryÕs prerogative to judge the law, as well as all the evidence, to render a verdict dictated by conscientious consideration. The right shall not be limited by the rules of civil or criminal procedure, jurorÕs oath, court order, or practice of the court, including jury selection." Lawrence says even though past bill did not pass, it got a lot of attention and he hopes it has more support in the future.FIJA OpponentsFIJA is faced with mounting resistance from prosecutors and judges. Assistant Scott County Attorney Julie Walton believes that jury nullification is undemocratic, "The legislators make the rules. They debate and decide what the law should be. Then it is up to our office to apply the law as given by the legislature. Then the judge decides what law applies to the specific cases, and the jury takes the law given to them and decides on the facts of the case. Juries are finders of fact and thatÕs it."Walton added that the system of checks and balances we have now is sufficient, "Checks and balances? That is called an election. DonÕt wait for a law you donÕt like to appear, go to caucuses and get involved in lobbying. These are people [FIJA] who want to circumvent the democratic process. The proper checks and balances for a legislature is an election. Those people should go to their legislators and have the legislators change the law. The people you elect to represent you have to answer to you."Iowa District Court Judge William R. Eads feels that jury nullification is "just plain dumb." In a letter to the Cedar Rapids Gazette, Eads stated, "Injustice would be one result. People should not be tried on the whims and prejudices of particular jury members...Unpredictability would be another result. In effect, jury nullification would amount to a lottery for the litigants, as each verdict would depend on which 12 persons head which case and their individual personal prejudices and opinions. This would adversely affect jury selection. Attorneys could seek the most prejudiced jurors favorable to the litigantÕs particular case."An alternative, according to Eads, is already in place. Jurors can request judicial leniency in cases which they feel the defendant broke the law, but doesnÕt deserve a harsh penalty.Robinson refutes the claims that jury nullification would lead to anarchy, "Anarchy? All the people can do is rule on one particular case. They arenÕt changing the law unless a number of juries fail to find guilt on the same charge." SpoonerÕs essay confronted the same arguments back in 1852, "Change of legislators guarantees no change of legislation; certainly no change for the better. Even if a change for the better actually comes, it comes too late because it comes only after more or less injustice has been irreparably done. The trial by jury forbids the government to execute any of its laws by punishing violators, without first getting the consent of the country, or the people, through a jury."FIJA admits that there may be an upsurge of hung juries if their legislation is passed, but that hung juries are a necessity to adjusting the legal and moral priorities of the country. To suggest that anarchy would result should juries be allowed to exercise their full rights as jurors, is an insult to the intelligence of the people. If a person in power believes that people are not intelligent enough to determine justice, then they must also believe that people are unable to intelligently elect good officials. In effect, the message is that Americans canÕt administer justice, that only the government can determine what is right and wrong; a very dangerous scenario.FIJA activists say they will continue to try to inform jurors of their rights, and lobby legislators to enact fully informed jury legislation.More Information can be found by calling: 1-800-tel-jury or visit http://abcsn.com/066.htmFor more information about the Laura Kriho Legal Defense Fund, c/o Paul Grant, P.O. Box 1272, Parker, CO 80134.