A Journalist's Archive

Jurors - You Have the Right to Think
By Kathy Hare

Whether you admire or despise him, Douglas Bruce certainly keeps local politics interesting. And somewhere in the midst of the latest nanny-nanny-boo-boo game between Colorado Springs and Bruce a topic of national importance emerged – jurors’ rights.

By the time this article is published, we should all know whether Bruce is guilty of the grave offense of trespassing on Costco’s property while collecting petition signatures. His trial was set for November, but that Friday the 13th morning a man stood outside the Colorado Springs Courthouse passing out leaflets entitled: “Your Jury Rights: True or False?” A few members of Bruce’s prospective jury pool took a copy of the pamphlet; some may have even read it. The prosecutor eyeballed it, and handed it to Judge Spencer Gresham who evidently thought the information contained within was seditious enough to dismiss the tainted jury pool and reschedule the trial.

Bruce said he had nothing to do with the leaflets, pointing out that neither his name nor the word “trespassing” is mentioned in the document.

Ok. But gee, what a plus it would be for a defendant in a case that smacks of political revenge, to have a jury who knows they don’t have to follow the judge’s instructions.

You can read the leaflet by going to http://fija.org/ and clicking on “Recent News.” It’s published by “The Fully Informed Jury Association,” a national non-profit educational organization, whose mission is “to educate Americans regarding their full powers as jurors, including their ability to rely on personal conscience, to judge the merit of the law and its application, and to nullify bad law, when necessary for justice, by finding for the defendant.”

Of course many attorneys and judges do not agree with FIJA. Some argue that while a jury has the “power” to vote their conscience, they do not have the “right.” And 9.9 times out of 10, judges instruct jurors to “consider only the facts” when determining if a defendant is guilty or innocent of breaking a law. Little things such as mitigating circumstances, whether the law is just, or if the punishment fits the crime, should not be considered when reaching a verdict.

What nonsense! Having a lobotomy is not a prerequisite for jury duty. Humans are born with the power to think; it is our natural right, not a privilege bestowed by the generosity of a government. Common sense alone tells us a jury serves no function if they are nothing more than a rubber stamp for the judicial system. And if jurors are only meant to “sit and obey,” perhaps our canine companions would be better suited for the jury box. One bark: “guilty,” two barks: “innocent.”

But if you’re a stickler for governmental blessings, jury nullification, the right to decide a person is innocent because the crime they are charged with stems from an unjust law, was established under English law long before our Constitution was written. In 1670, William Mead and William Penn were charged with unlawful assembly. The law was designed to prevent certain religious groups from worshipping. Both men were guilty of breaking the law, and the judge demanded that verdict. However, a thinking juror determined the law was unjust and found Mead and Penn “not guilty.” The judge imprisoned the jury and by some accounts also had them tortured. After reviewing the case, the House of Lords ordered their release, and a jury’s right to act independently of judges’ instructions, without fear of prosecution, became an established part of common law.

In 1789 Thomas Jefferson wrote, "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.” Note Jefferson said “principles.” A principle of the constitution is that “all men are created equal.” Yet U.S. law once sanctioned slavery, and anyone who aided a slave seeking freedom could be convicted under the “Fugitive Slave Act.”  Under such circumstances, a defendant’s only hope against an immoral or unjust law is an intelligent jury. And some northern juries rose to the occasion prior to the Civil War by refusing to convict abolitionists.

However, opponents of jury nullification point out the practice also allowed juries to find members of the Ku Klux Klan “not guilty,” when the facts proved otherwise. Yes, it’s true; racists abused “jury nullification.” Unfortunately, humans are capable of subverting any system. But that shouldn’t be used as an excuse to demand jurors surrender the right to vote their conscience. And maybe if more jurors knew they should be examining the law, right along with the defendant’s guilt or innocence, prison populations would actually be reduced.

America has the dubious distinction of having the highest incarceration rate in the world, with over 2.3 million prisoners. Twenty percent of them are serving jail time for non-violent crimes, something that doesn’t occur in most other first-world countries. So perhaps it’s time for jurors to stop acting like robots, and start asking if the crime fits the punishment, or if the law has any validity, unless having a steady flow of inmates is in the nation’s best interest.

Judges won’t tell you, lawyers will say it’s not so, but yes jurors, you have the right to think!

First published in The New Falcon Herald
Article Copyright © 2009 Bluestack Consulting, Inc.
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