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 put FIJA on the election ballot, in states that permit the initiative process. To date FIJA has been filed as an initiative in Montana, Idaho, Colorado, California, Nevada, Utah, Arizona, Arkansas, Florida, Nebraska, and Washington, with more states soon to follow. In other states, FIJA activists are lobbying state legislators to support FIJA legislation or referendums. FIJA legislation has been submitted to the legislatures of Alaska, Arizona and Wyoming. 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. 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. Don Doig is National Coordinator for the Fully Informed Jury Amendment, P.O. Box 59, Helmville, Montana 59843. Phone (406)793- 5550.