Fully Informed Jury Association

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Function of Juries & Jury Nullification | 26 Oct 2006

You Can’t Have It Both Ways

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You Can’t Have It Both Ways

Iloilo Marguerite Jones

A federal appeals court overturned the pot-growing convictions of Ed Rosenthal Wednesday because of a juror’s phone call to an attorney friend, who told her to follow the judge’s instructions or she could get in trouble.

“Jurors cannot fairly determine the outcome of a case if they believe they will face ‘trouble’ for a conclusion they reach as jurors,” said the opinion by Judge Betty Fletcher. “The threat of punishment works a coercive influence on the jury’s independence.”

Rosenthal’s lawyer, Dennis Riordan, said “There would not have been a conviction but for this outside influence” of the attorney’s advice, Riordan said. “Jurors never can be told they can get in trouble for what they say during deliberations.”

As I read this recent news on the reversal of the conviction of Ed Rosenthal, I was not surprised to learn that the reversal was based on the defense gaining knowledge that false advice had been given to a juror by an outside attorney. (No, I don’t think all attorneys are crooks or pathological liars, it’s just that I meet so few who disprove that particular hypothesis.)

The false advice given was that the juror could “get in trouble” if she did not blindly follow the instructions of the judge. What struck me most significantly about the Rosenthal reversal was that the jurors actually did not know their rights and did not know they could not be punished for their deliberations or verdict, and the lawyer one juror called didn’t know the truth either. Yet the jurors should have known, and every lawyer, including all judges, should be telling them about their rights, their authority, and their immunity.

And now, burning up more of our taxpayers’ hard-earned and forcefully-collected wages, the prosecutor will probably not rest, but will go after Ed again. And Ed, like every other poor victim of a government gone berserk, will spend more money and put himself in further financial straits in trying to protect his rights and the rights of us all. Because the jurors weren’t told their rights, Ed is paying. And because jurors across the nation are lied to by judges all the time, we all pay. The grounds on which the Rosenthal appeal was won, and the stark implications concerning juror ignorance of their immunity in the jury room, the reality of this ignorance being reinforced by threats of judges and occasionally by outright vicious criminal prosecutions of thwarted prosecutors, should have us all demanding the recall of every judge who fails to tell the entire jury pool of their authority, immunity, rights and powers.

How much simpler it would have been had every juror known, right from the start, that they could not be punished for their verdict, for their deliberations, or for their thinking. How much simpler this case would have been had the jury simply refused to convict anyone who broke — intentionally or not — one of the many meddlesome laws imposed on us by a government become too busy-bodyish and too ambitious with its power grabbing.

How many people would not have been financially ruined, how many people would not have suffered the emotional devastation, how many taxpayer dollars would not have been wasted on frivolous prosecutions by ambitious lawyers, and how many lies would not have been foisted on the innocent jurors by power-damaged judges who hold themselves above God, had the jurors known their authority and rights?

Did you watch the case in Idaho, where Carol Asher was accused of felony perjury for remarks made in the sanctity of the jury room? Two lawyers and $16,000 later, the case was dismissed, but lest anyone think Carol walked away free, remember that she is the one paying all those lawyer bills, even with some help from friends, and that the state of Idaho has offered neither apology nor reimbursement for her legal expenses. It gets worse: the taxpayers of the state of Idaho, with probably a few federal dollars thrown in under some sort of buy-the-state program, footed the bill for the prosecuting attorneys to stage this little temper tantrum against a woman who dared to think and to speak her mind in the jury room.

How coerced will you feel from now on, knowing that you can be prosecuted in Idaho for speaking your mind in the jury room, and that while you may walk away with the charges dismissed, you may be out enough money to have bought a new car? How coerced will you feel, no matter where you live, knowing that some pouting prosecutor may decide to come after you because you dared to use your own mind to ask questions or to question the pronouncements of the judge or prosecutor or some witness?

It gets worse: the judge, in dismissing the case against Carol, still admonished her to behave herself and mind the judge and follow the judge’s instructions, blindly. For although there was sufficient evidence lacking to take her to trial, the judge wanted to be sure everyone was clear – very clear – on who holds the power and what they could do with it, if they had enough evidence. No, everyone was told that the case was dismissed for lack of sufficient evidence, and no one said the case was a total miscarriage of justice and a total abuse, under colour of law, of a private, innocent citizen. Do you think any one of the lawyers — prosecutors, defense counsel, or judges — in that courtroom stood up and protected the immunity of the jurors, and spoke of their authority in the courtroom? Do you think Carol got off free because she didn’t get put in prison? How long would it take you to pay off $16,000 in legal fees, even if your friends chipped in what they could?

Here is the horror for us all: you may win, but the government prosecutors, and your own attorneys, will have decimated your bank account before you are set free. That is pretty rough punishment for being an innocent private citizen. You may win, but not until you and your family have been run through the money-grabbing and soul-searing gauntlet which was once this country’s justice system, but is now the financial factory of all lawyers and judges to enhance their careers and line their pockets.

You prosecutors, judges, attorney generals and other attorneys, you cannot have it both ways: you cannot have informed jurors, and then punish or threaten to punish them for being informed. You cannot deny defendants an informed jury, and then recant in another court, because you refuse to divulge the authority and rights of the jury to every juror in the land.

So, what do these two cases have in common? What common thread do we see in the cases of Ed Rosenthal and Carol Asher? And what can we learn from them? Carol Asher was punished, prosecuted by government officials, charged thousands of dollars by court officials (yes, all licensed attorneys are court officials) and run through an emotional gauntlet for doing exactly what jurors in the Rosenthal case were afraid to do, the public knowledge of which has resulted in a reversal.

Justice? That concept has been lost in the courtroom, and no one should seek justice there. Seek comedy, seek farce, seek satire, but do not enter a courtroom seeking justice.

We have buffoons running the courts if they cannot agree on so simple a principle as the inviolate nature of juror proceedings, and the immunity of the juror from prosecution for voicing personal thoughts in the jury room. This sanctity of the jury, of their freedom from coercion, extends to their exercise of conscience, and is part of the American legal and constitutional tradition going back hundreds of years. If the jury can be punished for their verdict or their deliberations, the constitutional right to trial by jury will have received another death blow.

Buffoons or liars. Which would you rather have? What? You say, neither? Then screen your judges, screen your attorneys, and make sure they understand the law. If they do not understand the law, then spread the word about them, and do all you can to get them removed, disbarred, or at least keep them underfed.

What these cases have in common, among other issues, is that the court judges, and all the other attorneys as well, do their very best to instill fear of punishment, the need to be obedient, in the minds of the jurors, and to gather all power in the courtroom into their own hands. Jurors must learn to watch for the signs, the words and yes, even the body language, of the actors in the courtrooms, and refuse to abdicate their own thinking and conscience even out of fear. The fear is a false flag. Yes, you might get prosecuted, like Carol, but you will not be sending any innocent people to prison.

The irony of these cases is that one verdict was overturned because the jurors did not know their role or their rights, and in another state, another juror was prosecuted because she did know her role and her rights.

Be honest, tell jurors their rights. Or else tell the jury, flat out: “You are here to follow the instructions of the judge. You are here so that we will be able to give the appearance that this person on trial is getting a jury trial, but you are not allowed to think, you are not allowed to use your mind, you are not allowed to freely discuss with other jurors your opinion of the case, the law, or the credibility of the witnesses, you are not to judge the law or its application, you are not to question anything you are told. You are to obey the judge, who knows better about everything than any of you, and be obedient, and lend your presence to the appearance of justice being served, although the courts and most of the attorneys will do their best to make sure justice is not served, or even recognized. You may not consider the Constitution, or human rights. Leave your mind and your conscience at the door, and prepare to be a human rubber stamp for the judge and for government.”

Is this what we want? Is this what we see as the role and duty of the juror to both the defendant and to society?

What can we do?

We can ask questions of all political candidates, to ensure they understand the role and immunity of the juror. We can demand – yes, demand – to know if the judge understands the role of the juror and the sanctity and immunity which jurors hold as a right. We can work ceaselessly to educate our neighbors and friends: the people who might one day serve as our jurors.

It’s time to tell our elected officials – and our judges and prosecutors and state officials, including the state attorney generals – to learn the law, and to get their act together.

Shame on them all for foisting this confusion on us, and for not knowing the law better themselves. These are the people whom we PAY to know the law: yet they don’t seem to have a thorough understanding of that fundamental component of the justice system; the jury. If this ignorance is any indication of their lack of knowledge, or their level of dishonesty if they do know and aren’t telling us, then we need to get some new employees in those courthouses and prosecutorial jobs, don’t you think?

That’s why we are here, and why you must join with us. Every person in this country needs to understand, without a doubt, their immunity as a juror, and their authority when they serve as a member of a jury. We cannot trust the lawyers, no matter which table they occupy, nor the ones who are judges, nor the ones who hold public office, to be truthful. Trust your own mind, know your own rights, and don’t let anyone intimidate you with their degrees, titles, robes, or law books. Rights come before laws: your rights as a juror, and your rights as a defendant, exist prior to any laws. Laws were, or should have been, made to protect those rights. As a juror, you have rights and you need to be sure you know those rights, and that you also teach others about those rights.

You can’t have it both ways: intimidating, misleading, and punishing jurors for thinking, and then expecting anyone to hold you in any respect or to believe anything you say.

Honesty or dishonesty, truth or lies.

Jurors will learn the truth, whether from FIJA or through such recent decisions as the Rosenthal decisions. And the attorneys and judges who condone or promote the falsity of juror punishment, who mislead and lie to jurors, whether in California or Idaho, will find themselves scorned and shamed by the very communities where they live and pretend to promote justice.

If you are a lawyer, whether in private practice, a prosecutor, or on the bench, shame on you for not seeking and allowing justice by making sure you have a fully informed jury — and a fully informed jury pool, too.

Contact: Iloilo M. Jones
Executive Director
Fully Informed Jury Association
406-442-7800
fijamail@earthlink.net
www.fija.org/aie653l

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