-Caveat Lector-
Summit Free Press
P.O. Box 8386
Breckenridge, CO 80424
Email: [EMAIL PROTECTED]
October 1998
OPINION FROM THE BENCH
Judge argues against jury nullification
Dear Summit Free Press:
Let me welcome you on your return to active publication. Without an
aggressive and competitive press, the citizens of this country are less
likely to learn the truth about any issue. You have the opportunity to
raise the level of informed opinion in these precincts, an opportunity I
hope you continue to take.
That having been said, I must express my disappointment with the
article in your September issue entitled, "The Controversial Power of
Jury Nullification". It disturbs me greatly that you have uncritically
repeated the positions of the Fully Informed Jury Association (FIJA)
with apparently little additional research. This is even more troubling
when one considers that there are two District Court Judges and one
County Court judge (me) right here in Summit County, to say nothing of
the Fifth Judicial District Attorney, the Public Defender's Office,
numerous private attorneys and a publicly supported law library. Yet
none of these sources seems to have been consulted for this article.
What follows is an examination of the nullification issue. It is
lengthy, but a topic of such importance should not be given short
shrift.
First, a word about the Fully Informed Jury Association: As FIJA's
own web pages state, FIJA was started by Larry Dodge and Don Doig after
Dodge attended a lecture by Red Beckman, the spiritual father of
modern-day jury nullification. Red Beckman is an infamous tax resister
and anti-Semite who once stated that the Holocaust was God's just
punishment of the Jews. Beckman also spoke at the notorious 1992 meeting
in Estes Park, Colo., that included Louis Beam (former Ku Klux Klan
leader and current "Ambassador at Large" for the Aryan Nations), Larry
Pratt (head of the Gun Owners of America, who first suggested the
formation of so-called "citizen militias"), Richard Butler (founder of
the Aryan Nations), John and Randy Trochmann (of the Militia of
Montana), the Reverend Pete Peters (Colorado's own anti-Semitic
Christian Identity leader) and many other nationally known racists and
anti-Semites. FIJA, of course, never mentions any of this in their web
pages.
FIJA is considered a hate group by many human rights organizations.
While many who favor the legalization of drugs have embraced FIJA, it is
a marriage of convenience. FIJA's roots are buried deep in the
extremist, violent, racist right. It is important, therefore, to always
look behind the statements of FIJA to determine the organization's true
motivation.
Let's look at the concept of jury nullification itself. Essentially
the doctrine holds that jurors are not to be limited to determining the
guilt or innocence of a criminal defendant, but instead must be allowed
to judge the law itself. If the jury believes a defendant is in fact
guilty, but dislikes the law under which the defendant is being tried,
the jury may "nullify" the law by voting "not guilty." Sounds noble,
doesn't it?
The problem with this is that we live under a representative
government. We elect legislators to enact laws, and an executive branch
to carry them out. If we don't like the laws passed, we can vote the
representatives out, or petition our government to change them. But we
do not allow people to decide which laws they choose to follow and which
they don't. Indeed, this is the true essence of jury nullification:
refusal to live under the rule of the law.
Contrary to FIJA's propaganda, nullification is not, and never
truly has been, a jury's "right". This was demonstrated beyond doubt by
the decision of the U.S. Supreme Court in Sparf and Hansen v. United
States, 156 U.S. 51 (1895). In that case, Justice Harlan's opinion
reviews the history of the rule that judges decide the law, while juries
decide the facts, in criminal cases. The jury is to take their
instructions on the law from the court, apply the law to the facts that
they themselves find from the evidence presented, and by this method
reach a verdict. (It was always understood to be that way in civil
cases.) Harlan cites numerous cases, some going back to before the
founding of our nation, to prove that the idea of jury nullification
was never the law. (FIJA's web page states that "some historians"
believe that the Supreme court's decision in Sparf was written to
appease big business. FIJA does not name any such historians. Nor is it
clear why "big business" would care about a case of the murder of a
ship's second mate on the high seas, which Sparf was. There was nary a
robber baron or industrialist in sight.)
A few important facts: First, under the nullification concept, it
is a given that the defendant is guilty. A law was passed by the
legislature (whom we elect) and the defendant violated it. Otherwise, if
the defendant were truly "not guilty" the jury would simply acquit
because the state failed to prove guilt beyond a reasonable doubt.
Second, nullifiers ignore the realities of criminal prosecution. If
a defendant has literally broken the law, a prosecutor must nonetheless
anticipate what a jury will do about it. If a prosecutor believes that a
jury will not care about the offense (perhaps feeling it to be
insignificant), or that they jury will believe the prosecution is
overreaching, he will probably not file charges to begin with.
Prosecutors reject thousands of cases every day across the country where
the defendant is guilty, but because of problems of proof, priorities or
an anticipated acquittal, will likely go unpunished.
Third, the law already provides for situations where a defendant is
responsible for violating the law, but has justification. If the police
push a defendant into a crime, he may claim entrapment. If the victim
was the aggressor in a violent crime, he may claim self defense. If the
defendant committed the offense only to avoid a greater evil, he may
claim necessity. If the defendant was forced to commit the crime, he may
claim duress. These, and more, are recognized defenses (enacted, again,
by the legislature, whom we hire) that excuse otherwise criminal
behavior and allow a jury to return a verdict of "not guilty". And in
these instances, they are "nullifying" nothing. They are, in fact,
upholding the law. What many FIJA advocates want, though, is to do away
with laws they don't like without having to resort to the legitimate,
legislative process our system of government contemplates. (Common FIJA
targets are tax laws, zoning laws, drug laws and laws forbidding
convicted felons from carrying concealed firearms. No one likes taxes,
but if we all "nullify" the tax laws, who pays for the streetlights?)
The phrase "fully informed" is disingenuous, as well. Jurors, who
are not trained in the law or legislative or constitutional principles,
are far from "well informed". Nor, under our system of justice could
they be. Relevant evidence is routinely excluded from trials for the
benefit of the defendant. Evidence obtained in an unconstitutional
manner is excluded, even though it may be highly incriminating. Evidence
that the defendant has committed the same offense on prior occasions is
also excluded as too prejudicial. Oftentimes, a jury may acquit a
defendant because he "looks so nice, he couldn't have done it," or
because "he just had a tiny amount of cocaine". But would they feel just
as good about nullifying the law if they knew it was the defendant's
third robbery? Or if they knew the case didn't start out as one of
simple possession, but rather that they defendant had pounds of cocaine
that were excluded from evidence because the police conducted an illegal
search?
(None of this is to suggest that such evidence shouldn't be
excluded. Exclusion of evidence for the protection of the defendant, and
to enforce constitutional principles, has a long and noble history. But
you never hear FIJA argue that all evidence, including that which is
damaging to the defendant but obtained in an improper manner, should be
allowed in criminal trials. Exclusion of evidence is exclusion of truth,
and cannot result in a jury's being fully informed.)
In most trials, the defendant appears in court clean-shaven, in a
jacket and tie, looking like every mother's son. His appearance is
calculated to gain sympathy from the jury. At the time of the crime,
though, the defendant may have been wild-eyed drunk, wearing torn,
filthy clothes, screaming obscenities and wielding a deadly weapon. But
since it is rare that crimes are caught on videotape, the jury is
presented only with the wholesome image crafted for them. Is that jury
fully informed?
Another FIJA claim is that juries are the last bastion of justice
in determining the validity of the law because they reflect "the
conscience of the community." This is a fallacy. In fact, many members
of the "community" are automatically ineligible for jury service based
on their status alone. Lawyers, judges, and police officers are
automatically excludable, and doctors are often excluded at their
request. Many of the best and brightest, people who are educated and
successful, go out of their way to avoid service by ignoring their juror
summons or claiming hardship. Some lawyers routinely excuse jurors who
are well educated or knowledgeable about current affairs, fearing that
such jurors will not be as easily influenced by sympathy or prejudice or
the cost of the attorney's suit. Such lawyers often don't want someone
who knows too much: They want to be able to spoon-feed their version of
the issues of the case to a malleable, credulous jury. (Neither side has
a monopoly on these practices, by the way.)
More importantly, jury nullification undermines our entire system of
government. Why elect legislators in the first place, when six or 12
laypeople with no understanding of the underlying reason for a law, or
its history, can negate it on a whim? Why have police to enforce the
law, when no police officer could know what the law is, or might be? Do
we really want a system where we make up the laws as we go along, with
no inquiry as to the need for a law, no education as to its benefits or
weaknesses, and no dispassionate deliberative decision-making process to
determine whether a law should or should not be enacted? Do we really
want each person to have the ability to decide what he or she thinks the
law should be, no matter what the opinions of the citizenry as a whole
as expressed through their duly-elected representatives? This is not a
nation of laws: It is every man for himself.
Jury nullification can work the other way, as well. What if a jury
decides that "proof beyond a reasonable doubt" is a nice, advisory
opinion, but one which gets in the way of convicting someone the jury is
"pretty damned sure" is guilty? What if a jury thinks that the right
against self-incrimination is a lofty-sounding phrase but "if he wasn't
guilty, why didn't he testify?" If you tell a jury that it can ignore
the law and the court's instructions on the law, then the jury can
ignore all of the law, including that law which exists for the
protection of the accused.
While it is certainly true that juries have the power to ignore the
law, it does not follow that they have the right to do so. In this
country, the jury is sacred. For the benefit of having citizens, and not
government, determine guilt or innocence, we tolerate the fact that
mistakes will be made. We don't discourage jurors from serving by
threatening them with punishment if they don't vote the way the court,
or society as a whole, wants. We don't allow someone (even O.J.) to be
tried twice in a criminal proceeding for the same offense. If the jury
acquits, so be it.
But that does not mean that juries have the right to ignore the
law. Every party, be they the state or the defendant, must be able to
expect that their case will be decided according to the law of the land.
And everyone has the right to know that law with certainty. No one can
be expected, nor can they expect others, to follow the law if it depends
on sympathy, prejudice, whim or the cut of a lawyer's jib.
My point has been made, and more eloquently, in two fairly recent
cases. In United States v. Dougherty, the federal Circuit Court of
Appeals said, "This so-called right of jury nullification is put forward
in the name of liberty and democracy, but its explicit avowal risks the
ultimate logic of anarchy ... No legal system could long survive if it
gave every individual the option of disregarding with impunity any law
which by his personal standard was judged morally untenable."
And, as noted by Judge Robert Steigmann of the Illinois Appellate
court, in People V. Smith, "Last, we should not forget the disgraceful
episodes in our criminal justice system in the 1950s and 1960s when
southern juries routinely acquitted those accused - including local law
enforcement officers - of beating or killing civil rights protesters
despite overwhelming evidence of guilt. With good reason, supporters of
jury nullification choose not to remind us of those grim times, but
those acquittals reflected in the concept of jury nullification 'in all
its glory'."
No one agrees with every law. Part of the social contract, however,
is to understand and accept the need for the rule of law, and to follow
the law, or else work through the legislative process to change it.
Orderly, open debate on the law, with the input of every citizen who
desires it, is the surest way of determining the "conscience of the
community".
Jeffrey S. Ryan
Summit County Judge
Editor's note: Due to space limitations, small portions of this letter
have been cut (where ellipses appear in places other than quotations).
------------------------------------------------------------------------
Re-distributed by the:
Jury Rights Project <[EMAIL PROTECTED]>
Web page: <http://www.lrt.org/jrp.homepage.htm>
To be added to or removed from the JRP mailing list,
send email with the word SUBSCRIBE or UNSUBSCRIBE in the title.
------------------------------------------------------------------------
DECLARATION & DISCLAIMER
==========
CTRL is a discussion and informational exchange list. Proselyzting propagandic
screeds are not allowed. Substance�not soapboxing! These are sordid matters
and 'conspiracy theory', with its many half-truths, misdirections and outright
frauds is used politically by different groups with major and minor effects
spread throughout the spectrum of time and thought. That being said, CTRL
gives no endorsement to the validity of posts, and always suggests to readers;
be wary of what you read. CTRL gives no credeence to Holocaust denial and
nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
