On January 18th, 2012, two billboards with ads promoting police accountability and Jury Nullification will be displayed in the Richmond area. The initiative is being headed by Nathan Cox, an Army Veteran and activist for the cause of Liberty, during the week of MLK’s birthday.

It was King who stated: “One may well ask How can you advocate breaking some laws and obeying others? The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

Dr. King understood well that just because one be in a position of power, doesn’t mean that person will act in a moral way. Two organizations that advocate justice and liberty are being promoted by Nathan Cox, who believes that people have the right to be treated fairly and equally by all, whether you wear a badge or a robe.

The second organization Mr. Cox would like to promote is FIJA (fija.org), or the Fully Informed Jury Association. FIJA is a non profit organization whose goal it is to inform citizens of their rights as a juror and that the juror’s mission should be to “protect fellow citizens from tyrannical abuses of power of government.” It has become the belief that the juror’s sole duty is to help decide the innocence or guilt of a fellow citizen as well as pass down punishment upon them. Jury nullification is one right of a juror that FIJA teaches about. The founders thought it was important for the people to have a counter to bad laws and practices, so made it possible for a jury to acquit defendants who are technically guilty. An example of how jury nullification works is during the time of slavery. Some jurors would refuse to convict people who were supposedly guilty of helping to free a slave. Slavery is immoral and therefore the people felt they needed to use jury nullification to work toward justice for slaves and those who helped them.

Click through for the entire press release.

Prosecution Explains Jury Tampering Charge

“His speech is not protected by the First Amendment,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

Perhaps the prosecution is unaware that legal systems have survived just fine for centuries. Jury nullification was, after all, formally recognized in the Magna Carta in 1215.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, also corrects the prosecutor’s ignorance:

“The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

The prosecutor is apparently so entirely ignorant of the role of the jury that she is seeking to deny the defendant – who is at risk of six months in jail – his right to a trial by jury:

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. Mermelstein, opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote.

Click through for the entire article.

Letter: Are jurors aware of this power?, by Neal Weeks

After years of dissatisfaction of our court system and wondering how a judge could overturn a jury decision, or why juries seemed to have no room for personal judgment of the case they are deciding, I came across a term I had never heard before: jury nullification.

This is a powerful term which apparently is never discussed or admitted to prospective jurors or sitting jurors.

Click through for the entire letter to the editor.

Left to right: Jordan Elliot, Jessica Perkins, Mike Angelos, and Michael D. Elliot.

The Illinois Liberty Alliance entry rolled through the parade with 11 volunteers, a white Ron Paul 2012 decorated van playing Ron Paul supporting music, two FIJA banners which read, “Called for Jury Duty? Know your Rights. FIJA.ORG”, over 3,500 pieces of literature, and bags of candy and balloons. The literature included Ron Paul newspapers made by an Iowa grassroots group and Jury Rights Day cards created by the Fully Informed Jury Association (FIJA).

Nancy Brandt of Henry County was the coordinator of this event. “We spent 5 1/2 hours stamping the literature with “Illinois Liberty Alliance. Find us at: SuperLiberty.com”. We enjoyed walking with the banners, and we distributed 1600-1700 Jury Rights Day cards at East Moline, Illinois’ Labor Day Parade. One man I gave a card to said, ‘I better look at this. I’ve got jury duty coming up.’ I told him to go to the FIJA website.” Nancy expects the cards to be good advertising tools for their local group.

Rafe Thrasher, a Ron Paul supporter in Illinois said, “Ron Paul is a huge promoter and educator of jury rights, so it makes sense that we join forces with the local Fully Informed Jury Association (FIJA) and help them promote Jury Rights Day in a Labor Day parade.”

An initial followup to the telephone call was sent by e-mail to the reporter responsible for the error:

——– Original Message ——–
Subject: Mark Schmidter not associated with FIJA
Date: Thu, 7 Jul 2011 08:58:30 -0600
From: Fully Informed Jury Association
To: apavuk@tribune.com

Pursuant to an earlier telephone message left with your service, I wish to reiterate the following:

It was incorrectly reported in the Orlando Sentinel that Mark Schmidter is affiliated with FIJA. Mark is not affiliated with FIJA. Anyone can order literature through the fija.org/aie653l website. Doing so does not establish an affiliation.

More than a month ago, it was also made it completely clear to Mark that he had no affiliation with FIJA, and that if he chose to hand out FIJA literature at the Orlando Courthouse, he was doing so against the wishes of FIJA, Florida FIJA supporters, and against our stated policy of NOT violating standing court orders.

Please correct your statement to the contrary, which is in the second paragraph of your news article.
Thank you for your prompt attention to correcting this erroneous reporting.

For Justice and Liberty for All,
Iloilo Marguerite Jones
Fully Informed Jury Association (FIJA)

The reporter replied as follows, failing to issue the necessary correction:

On Jul 7, 2011, at 9:41 AM, Pavuk, Amy wrote:

Dear Ms. Jones,

Thank you for emailing and calling with your concern. As the article states, we did not say Mr. Schmidter is a member of FIJA. We simply said he is affiliated, as he does distribute your fliers outside the courthouse and he was also instrumental in introducing us to Julian Heicklen.

I am going to be traveling this afternoon to cover breaking news and will not have immediate access to email. If you wish to discuss this further, please contact my editor, who is copied on this email.

Thank you,

Amy Pavuk
Orlando Sentinel

A followup was sent to the reporter and her editors, pointing out her failure to comprehend her error and requesting a correction for a third time:

——– Original Message ——–
Subject: Re: Mark Schmidter not associated with FIJA
Date: Thu, 7 Jul 2011 09:53:09 -0600
From: Fully Informed Jury Association
To: Pavuk, Amy , Guido, Michelle , Colarossi, Anthony

Dear Reporters and Editors:
The mere fact that a person hands out our literature in no way creates an affiliation with our organization. That is an erroneous assumption. Our literature can be ordered by anyone. Handing out literature does not create either an affiliation nor an association, as any competent and logical individual would understand.

Further, Julian Heicklen is not associated or affiliated with FIJA, either. He hands out FIJA literature, but he does not do so under the aegis of FIJA. While you may consider this a distinction without a difference, we have specific guidelines for our educational efforts which both of these individuals have refused to follow. Thus, they have no affiliation or association with FIJA.

Nor did I accuse you of writing that Mr. Schmidter was a member—that is a red herring of your own creation, and further brings into question the veracity of your reporting. Are these the tactics you were taught in journalism school? I doubt it.

There is a specific administrative order concerning the Orlando Courthouse complex, which FIJA is challenging through the courts, while sharing our literature everywhere else in Florida except the locations under the administrative order. Mr. Heicklein and Mr. Schmidter have independently taken it upon themselves to violate the administrative order against FIJA policy.

Again, neither of these individuals are associated with or affiliated with FIJA.

Please issue a correction. Thank you.
Sincerely,
Iloilo M. Jones

Daytona Beach – The ACLU of Florida today filed a legal challenge to an Administrative Order entered by Chief Judge Belvin Perry, Jr. of the Ninth Judicial Circuit. The Order bans protected speech on the Orange County and Osceola County Courthouse complexes. The ACLU’s Petition for Writ of Certiorari asks the Fifth District Court of Appeal of Florida to review and overturn the Order.

The ACLU of Florida filed the Petition on behalf of the Fully Informed Jury Association (“FIJA”) and one of its supporters and volunteers, James Cox, who, until Judge Perry’s order, regularly spoke about jurors’ rights and distributed leaflets and other related educational materials at the Orange County Courthouse complex. Mr. Cox’s expressive conduct, and the FIJA materials he offered to members of the public focused primarily on jury nullification, sometimes referred to as “jury pardons.”

Cooperating attorney Lawrence G. Walters, of Walters Law Group, and ACLU of Florida lawyers Randall Marshall and Maria Kayanan are asking the Fifth District Court of Appeal to vacate the January 31, 2011 order that bans the distribution of materials, oral protest, education, or counseling “intended to influence summoned jurors on any matter” which is, or may be pending before that individual as a juror. Penalties for violating the order include contempt of court citations, fines, confinement, or a combination.

“The government cannot place preemptive restrictions on free speech just because it doesn’t like what is being said,” said Howard Simon, Executive Director of the ACLU of Florida. “Educating the public and jurors is not obstructing justice.”

In the Petition, the ACLU of Florida argues that the ban violates the United States and Florida Constitutions, by censoring political speech and expressive conduct based solely on its content, with no compelling state interest, and imposes a prior restraint on that protected speech.

“While a judge has the right to control his or her courtroom, that right must give way to the First Amendment right of a citizen to exercise free speech on the courthouse steps. The Order issued by Judge Perry crosses the constitutional line, and is so broad, it even prohibits lawyers from arguing their case to a jury,” said Walters. “We must protect even unpopular and controversial speech to give First Amendment rights ample breathing space they need to survive.”

FIJA is a nonpartisan public policy research and education organization established in Montana in 1989. FIJA describes its mission as educating Americans about their rights and responsibilities when serving as jurors, including their powers of “jury nullification” or “jury pardon” by which, according to FIJA, jurors are encouraged to “vote their conscience” on a case.

“Jury pardons are deeply rooted in American jurisprudence, even if they may be disfavored by judges,” Simon said. “No matter how unpopular or controversial a specific idea is, educating potential jurors about legal theory is not a crime. It’s protected speech.”

FIJA supporters have refrained from speaking about their issues or distributing their literature at the courthouse since Judge Perry’s order was issued. “The judge’s order was clearly intended to single out constitutionally-protected expression which he disagreed with – namely, ours,” stated FIJA Executive Director Iloilo Marguerite Jones. “As an organization dedicated to protecting the rights of American citizens, FIJA is pleased to have the ACLU defending our rights in the courtroom.”

A .PDF copy of the petition filed today is available here:
http://www.aclufl.org/pdfs/2011-03-02-FIJAPetition.pdf

A .PDF copy of the Appendix to the petition is available here:
http://www.aclufl.org/pdfs/2011-03-02-FIJAPetitionAppendix.pdf

# # #

About the ACLU of Florida
The ACLU of Florida is freedom’s watchdog, working daily in the courts, legislatures and communities to defend individual rights and personal freedoms guaranteed by the Constitution and the Bill of Rights. For additional information, visit our web site at: www.aclufl.org.

For more information about the Fully Informed Jury Association, visit www.fija.org/aie653l.

Group fighting for free speech against Judge Belvin Perry

Video of interview with James Cox is here.

Our take on: Jury interference

-Group blocked from distributing jury pamphlets hires legal team, Sun-Sentinel.com
-FIJA, Judge Napolitano attack freedom hating judge, Examiner.com

Chief Judge Belvin Perry, Jr.
Suite 2110
Orange County Courthouse
425 N. Orange Ave.
Orlando, FL 32801

16 February 2011

To Judge Belvin Perry, Jr.,

It has come to my attention in the last few days that your administrative order might not have been motivated, as I thought, by using your power of office to threaten peaceful people with initiation of force against them for exercising their free speech rights.

Perhaps, after all, you were not motivated by your fear of Fully Informed Juries—that sacred common-law right of the People—but rather by your concern that an upcoming trial of some press-worthiness might be disturbed. If this were your motivation, why did you not act as one civilized person toward another, and call or write to James or to FIJA’s National Office, and discuss moving the FIJA effort to another location for the time of the trial? Our email addresses are available to everyone. We would have been gracious—for all of Florida is our classroom—and we could have taken our educational outreach work somewhere else during the trial.

But, no, you saw no need to be civilized and reasoning with someone you considered your inferior; someone you considered weaker, without the power to initiate force against peaceful, innocent, harmless people.

Why should you be gracious? You have the use of force on your side. But just because you threatened us with the use of force, we will not threaten you with the use of force. You may be too young to remember much about SNCC, but we knew one thing: we did not have power-damaged minds who always appeal to the use of force in any argument or discussion.

So, having healthy minds, we learned how to use those minds in the advancement of human rights. Cogito, ergo armo, as we like to say, from our position of peace.

Your behavior and open threats toward peaceful, kindly, law-abiding individuals are more telling of your character than you could possibly know. I hope someone will tell you about the years of the Civil Rights Movement, for it is obvious you know nothing about how power of office was used against peaceful people—people who only sought equal treatment under the law, all over the South.

We are peaceful, but we are determined. We will not go away, and our message will not go away, for it is the truth. Grand and Petit Jurors must know of their authority, their independence, and their immunity from prosecution for their verdict. This authority is the birthright of a free people, and you may not with impunity presume to hinder this right.

Iloilo Marguerite Jones
Fully Informed Jury Association

This letter is a follow-up to the initial letter FIJA sent to the judge, Florida Governor Rick Scott, and Florida Attorney General Pamela Bondi, questioning the unlawful order.

Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues

Apparently, there’s a group called the Fully Informed Jury Association (FIJA) — which seems like a pretty good idea. Why wouldn’t we want fully informed juries? The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff.

However, it looks like Chief Judge Belvin Perry doesn’t like fully informed juries. He signed an order barring the group from handing out their pamphlets… raising all sorts of free speech and prior restraint questions. In order to try to get around the prior restraint question, Judge Perry stated that this “restriction upon expressive conduct” was “necessary to serve the state’s compelling interest in protecting the integrity of the jury system.”

Click through for the full article and to add your comments!

Ninth Judicial Circuit Chief Judge Belvin Perry signed the Florida Administrative Court Order in response to representatives of the national non-profit organization Fully Informed Jury Association handing out pamphlets outside the Orange County Courthouse, according to a story in The Orlando Sentinel.

The organization advocates “jury nullification,” where jurors can ignore the judge’s instructions if they are “voting their conscience.” Iloilo Marguerite Jones of the jury association described the organization as an “educational outfit . . . [whose members] believe in the right of free speech, and peaceful and orderly dissemination of information.” Members described the handouts as jury “education” information for distribution to sitting or potential jurors, according to the Sentinel.

fija.org/aie653l, the website for the association, provides members with access to several free printable brochures. One of the newest available brochures is titled New True or False Brochure, which stresses, “When you sit on a jury, you may vote on the verdict according to your conscience,” even if it defies a judge’s order or juror’s oath. Jones stated that the association does not allow their members to hand out any other literature other than material the organization produces.

In response to the order, the Fully Informed Jury Association wrote a letter on Feb. 3 to Perry, Florida Gov. Rick Scott and Attorney General Pam Bondi. The organization said in the letter that there is a contradiction in the law, citing a Feb. 8, 2010, memorandum issued by Florida Judge David B. Eddy, which said: “Based on principles of free speech, I believe that whoever is distributing the handouts in question has a right to do so. Accordingly, I see no reason why the handouts must be excluded from the jury assembly room.”

Click through for the full article.

Judge’s order bans jury pamphlets, sparking free-speech debate
A passage with discussion by Roger Roots, FIJA Advisory Board member:

“Chief Judge Perry’s order is what is known as prior restraint–one of the most oppressive forms of censorship,” Roots said in a statement sent to the Orlando Sentinel on Thursday after the paper contacted a Florida FIJA representative earlier in the week.

“My initial assessment of Chief Judge Perry’s order is that the order conflicts with dozens of settled U.S. Supreme Court decisions regarding the rights of citizens to speak and pass out handbills and flyers in public places,” Roots said in his statement. “The fact that the courthouse is an important public building where one would expect people to be free to advocate and speak about matters of the public interest makes Judge Perry’s order especially suspect.”

Roots also takes issue with a part of Perry’s order that “purports to ban citizens from holding up signs with statements that might ‘tend’ to have some impact on jurors.”

He said this country has a long history of people holding up signs outside courthouses with the absolute intention of influencing judges, jurors and policy-makers.

“I’m quite certain that Martin Luther King and other courageous civil rights activists held signs up in front of courthouses which ‘tended’ to influence jurors and judges,” Roots wrote.

When asked directly during an interview if FIJA members would test Perry’s order, Roots said he could not say for sure, but the organization advises people, “Don’t get arrested.”

Click through for the full article including passages quoted from FIJA’s letter to Judge Perry, Governor Scott, and Attorney General Bondi. Please add your voice in the comments section insisting, firmly but politely, that this draconian and unlawful administrative order be rescinded!

Hello Ilo, On my way to talk to the students at USF today, I received a phone call from Anthony Colarossi, Senior Reporter at the Orlando Sentinel. Mr. Colarossi started asking me questions about the recent administrative order, (which is attached) made by Chief Judge Belvin Perry, Jr. on Monday, January 31, 2011. I explained that I did not know about this order, but obviously the educational materials that are handed out have struck a nerve with the judicial system.

The order (click here for the full document in pdf format) states among other things:

NOW THEREFORE, I, Belvin Perry, Jr., in order to facilitate the efficient administration of justice, pursuant to the authority vested in me as Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of Judicial Administration 2.215, hereby order the following, effective immediately, and to continue until further order:
1. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Orange County Courthouse complex grounds.
The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Orange County Courthouse complex grounds, which includes the adjacent courthouse parking garage, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Orange Avenue and Livingston Street, to the intersection of Livingston Street and Magnolia Avenue, to the intersection of Magnolia Avenue and Amelia Street, to the intersection of Amelia Street and Orange Avenue, to the intersection of Orange Avenue and Livingston Street. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.
2. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Osceola County Courthouse complex grounds.
The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Osceola County Courthouse complex grounds, which includes the adjacent courthouse parking lot, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Bryan Street and Rose Avenue, to the intersection of Rose Avenue and Patrick Street, to the intersection of Patrick Street and Bryan Street, to the intersection of Bryan Street and Rose Avenue. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.
3. Regardless of whether the conduct at issue occurs on the courthouse complex grounds, any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, may be in violation of section 918.12, Florida Statutes.
4. Anyone engaging in the type of expressive conduct as contemplated by this Order may be in violation of section 918.12, Florida Statutes, and/or may be found in contempt of court.

This appears to be an intimidation tactic by a bully issued under color of law to circumvent the First, Fifth, and Seventh Amendments to the United States Constitution. While it may be more convenient for the court to have a jury that is easily steered by orders from the bench and selective filtering of the information it is permitted access to, it is NOT the purpose of a jury merely to rubber stamp the decision it is led to by the government. Were this the case, a jury would not be needed at all.

Rather, it is the primary function of the independent juror to protect his or her fellow citizens- both the defendant and the rest of us who will be affected by the outcome of the case and the legal precedent it will set- from abuse by government. As the only people (aside from the defendant) involved in the court proceedings who are not making a living by perpetuating the system as dictated by government officials, jurors have not only a right, but a responsibility, to act independently- to think for themselves, to consult their consciences in deliberations, to judging the fairness and applicability of the law as well as the facts of the case , and to deliver justice when rendering a verdict.

FIJA is an educational organization that seeks to inform jurors of their right and responsibility to deliver justice in all cases where they sit in judgment of another human being. FIJA does not seek to influence jurors in any particular case. Our campaign in Florida, as everywhere else, has been a general educational outreach effort to ALL potential jurors including distributing brochures near courthouses and on college campuses, speaking with community groups around the state, and so on to reach all members of the community. FIJA Director Iloilo Jones invites the judge to review any and all of the FIJA literature (available in our Library) and to point out any instance of such influence or of undue disregard for the functions of the court.

Although we just received word of this late last night, FIJA staff has been hard at work this morning:
1. Roger Roots, a member of our Advisory Board, is reviewing the document and our legal options for challenging this unlawful order.
2. We have begun fundraising efforts to support a legal challenge to the order. If you would like to contribute to FIJA’s efforts, information on making a contribution via our website, my telephone, or by mail is located here.
3. We are asking ALL FIJA activists in Florida to suspend ALL educational activity in the immediate vicinity of the courthouse which this order covers, until this administrative order, which is a heinous, unlawful, corrupt violation of human rights, can be challenged and set aside.
4. Instead, we are requesting that all FIJA activists, in Florida and elsewhere, distribute the brochure located here. Note: The point of this flyer is NOT educational outreach material. This flyer does not address jurors, nor does it discuss the issue of jury nullification. Rather, this flyer is directed to Judge Belvin Perry, Jr. and challenges the legality of his administrative order. We also ask that everyone, everywhere continue to distribute all other FIJA literature, except near the courthouse which is under this draconian order.

Our goal is always, in whatever we do, NOT to give the government the pleasure and satisfaction of arresting peaceful people. Our goal is to embarrass them by pointing out the contradictions of their own actions.

As they transpire, we will post further developments in our efforts to get this draconian order rescinded. If you would like to discuss this situation, we invite you to join us on our Discussion Forum.

Although FIJA takes no position on legislation, we do track any legislation related to juries, whether the legislation is suspension of trial by jury blamed on budget cuts, or bills introduced in any legislative body. This Talking Points Memo is related to a bill being introduced in the Montana legislature.  The memo was sent to us by Roger Roots who is on the FIJA Advisory Board.

TALKING POINTS MEMO ON THE JURY RIGHTS BILL:

FULLY INFORMED JURIES ARE REQUIRED BY THE MONTANA CONSTITUTION
·         This bill is needed to correct an unconstitutional and illegitimate practice in Montana’s courtrooms.  Although the Montana Constitution requires inArticle II, §6  that “[t]he right of trial by jury is secured to all and shall remain inviolate,” juries today are instructed that they may only decide questions of fact.   Judges generally order juries that they must follow the judges’ interpretation of the law and Constitution.
·         Juries in Montana are regularly deceived by judges.   They are falsely told by judges that they do not have right to acquit a criminal defendant if the government proves its case beyond a reasonable doubt.  This defies the original purposes behind trial by jury and even conflicts with a Montana Supreme Court decision that held that “the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” State v. Koch, 33 Mont. 490; 85 P. 272 (Mont. 1906).  The present practice of deception violates the Constitutional “Right to Know,” which protects the right of every Montanan to know the workings and mechanics of state government.  Why would some lawyers and judges acknowledge that jurors have an absolute right to acquit but then argue that jurors should be deceived into thinking they do not have this right?
·         Today in Montana, criminal defendants are not even allowed to argue to the juries that they are innocent on grounds that the laws they are accused of violating are unconstitutional, tyrannical, or oppressive.   This defies the true intent behind the Constitutional right to trial by jury.  Current jury instruction practices also arguably circumvent the Montana Constitution’s  Article II, § 3, which protects the right of all persons to defend their lives and liberties.
·         Most Montanans are shocked to learn that Montana jurors are sometimes told that they may not even look up the Constitution or the laws that a defendant is accused of violating.
·         All of the most famous Founding Fathers, including John Adams, Alexander Hamilton, Thomas Jefferson, John Jay and James Madison, supported the right of juries to judge both the law and the facts. See www.fija.org/aie653l.
·         Juries are supposed to be independent bodies of citizens who protect their neighbors and members of their community from unfair and oppressive government.  Yet today in Montana jurors are wrongly told that they are mere fact-finders, and that they “must convict” or “should convict” if the government meets its burden of proof.
·         A proper instruction is that juries “must” acquit if the government fails to meet its burden of proof, but that jurors “may” convict if the prosecution meets its burden of proof.  The jury has the eternal right—recognized by all scholarly authorities, including the Montana Supreme Court—to choose not to convict, regardless of the circumstances.
·         The Jury Rights Bill will require that Montana judges fully inform jurors of their absolute right to acquit and of any and all sentencing implications that may arise from their verdicts of guilty.  (This was the common practice in all American courtrooms throughout early American history.)

THE FIJA BILL IS CONSISTENT WITH MONTANA SUPREME COURT PRECEDENT
·         The FIJA Act will codify an existing decision of the Montana Supreme Court regarding trial by jury.  See State v. Koch, 33 Mont. 490; 85 P. 272 (Mont. 1906).  Koch was a murder case in Fergus County in which the defendant admitted under oath in open court that he committed every element of the offense.  Specifically, Koch admitted that he had reentered a bar in Stanford with a rifle and shot the victim after accusing the victim of cheating him in a card game.  (Koch’s defense was that he had no intent to kill).  The trial judge instructed the jury that the jury could find Koch guilty of first degree murder, second degree murder, involuntary manslaughter or voluntary manslaughter, but that the jury could not acquit Koch.  (The jury convicted Koch of voluntary manslaughter.)
·         Upon Koch’s appeal to the Montana Supreme Court, the Attorney General argued that the “admissions of defendant in his testimony are in effect a plea of guilty as to such offense, and the jury could not ignore this evidence.”  The State Supreme Court disagreed, ruling that juries in Montana have an absolute right to acquit a defendant regardless of how insurmountable the evidence of guilt is.
·         Here are the exact words of the Montana Supreme Court:  “It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” 33 Mont. 497; 85 P. 274. The FIJA bill closely tracks this language and intent.
·         Rep. Wagner’s FIJA bill will simply codify and elaborate upon the Koch ruling.  This codification should have been done by the Legislature long ago.  Indeed, it is arguable that present statutes in the MCA (which the FIJA Act will repeal and replace) are of suspect constitutionality in light of the Koch decision.[1]

THE FIJA BILL IS CONSISTENT WITH THE REPUBLICAN AND DEMOCRATIC PARTY PLATFORMS
·         The Montana Republican Party Platform calls for fully informed juries:  “We recognize both the power and the moral obligation vested in juries to secure justice by judging both the facts of a case and application of the law itself.  We support requiring judges to fully inform jurors of their constitutional rights and responsibilities.”
·         The Montana Democratic Party Platform calls for a fair and equal court system with equal access for all.  Present court procedures are unfair and unequal because the government is treated as a privileged litigant.  For example, Montana prosecutors routinely ask juries to “send a message” by convicting a defendant, while defense attorneys who ask juries to “send a message” by acquitting a defendant are sometimes sanctioned for asking the jury to go outside the facts.  See, e.g., State v. Flynn, 346 Mont. 286; 194 P.3d 694 (Mont. 2008)(allowing prosecutors to ask jurors to go outside the facts and “send a message” to the broader community by convicting a defendant).  The FIJA bill will correct this lopsided, unfair and unequal practice in Montana’s courts.

FACT AND LAW ARE IN MANY CASES NOT CLEARLY DELINIATED
·         Current Montana statutes purport to reserve all “questions of law” for judges and to allow juries to decide only “questions of fact.”  But such a false bright line is unrealistic in practice.  “Any attempt to draw a rigid line poses a genuine problem because of the very nature of the two concepts. . . .matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law.”[2]  Therefore the false bright line which current MCA sections 25-7-102, 26-1-201, and 46-16-103 suggest is unwieldy and oppressive in its implementation.  In practice, attempts by government lawmakers—including judges—to pronounce the existence of such a false bright line and proclaim for themselves the sole power to “decide the law” invariably lead to a usurpation of power by government actors.  The FIJA bill will provide a more realistic statutory framework for describing the constitutional prerogatives of juries in Montana court practice. [3] Even the judges on the Montana Supreme Court occasionally disagree about what is fact and what is law. See, e.g., Wadsworth v. Stat of Montana, 275 Mont. 287; 911 P.2d 1165 (Mont. 1996) (posting rival opinions regarding what is a question of fact and what is a question of law).

[1] Indeed, the Koch Court virtually suggested that the precursors of MCA Sections 25-7-102, 26-1-201, and 46-16-103 (which falsely indicate that judges are to be sole determiners of the law and jurors are to follow judges’ orders regarding the interpretation of the law) were likely unconstitutional in some applications.  “We are aware that the legislature has declared (Penal Code, section 2105) that upon the trial for any other offense than libel, questions of law are to be decided by the court and questions of fact by the jury, and that, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are, nevertheless, bound to receive as law what is laid down as such by the court.” Koch at 33 Mont. 497; 85 P. 274. “It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” Id. 497; 274.

[2] Henry J. Abraham, The Judicial Process (4th ed.) 383 (1981) (quoting John Dickinson, Administrative Justice and the Supremacy of Law 55 (1927).

[3] As Abraham points out, one illustration of the blurry line between law and fact is the U.S. Supreme Court’s 1972 decision in Neil v. Biggers. 409 U.S. 188.  The Cout divided five to three on the question of whether an identification process was constitutionally valid.  The constitutional determination required the justices to bicker over such matters as the time period between the alleged offense and the identification of the defendant, the certainty or lack of certainty of the alleged victim, and the similarity of the defendant to previous descriptions. Id.  One may easily wonder how much “law” and how much “fact” was applied by the rival justices in their ultimate determinations. C.f. Abraham, supra, at 383.  The Supreme Court’s jurisprudence on a wide variety of other issues, such as its convoluted “drug courier profile” Fourth-Amendment cases, so comingle fact with law that the distinction essentially evaporates.

But what happened so publicly in Missoula has been going on quietly in black communities for years, according to Paul Butler, a former federal prosecutor who is a professor and associate dean at Georgetown University’s School of Law.

“It happens all of the time in the Bronx, the District of Columbia, Oakland – mostly in districts with a majority of people of color,” said Butler, who explored the issue in his book, “Let’s Get Free: A Hip-Hop Theory of Justice,” and on a “60 Minutes” interview last year.

“We (as prosecutors) were told that jurors thought drug cases were selectively prosecuted against blacks and didn’t want to send another black man to jail,” especially for minor offenses, said Butler.

U.S. Justice Department statistics show that nationwide in 2008, nearly 22 percent of prisoners under state jurisdiction for drug crimes were black, compared to only 14 percent who were white. Drug offenses comprised the largest category for which African-Americans were incarcerated, as opposed to property crimes such as burglary and fraud for white people.

“Martin Luther King” jurors, Butler calls those who nullify cases. “They would engage in strategic jury nullification designed to safely reduce the number of people in prison for non-violent drug crimes, and to send the message that ‘we the people’ ain’t gonna take it anymore,” Butler wrote in Prison Legal News last year.

Jury nullification – when a jury opts for acquittal regardless of evidence – isn’t quite what happened here because the jury hadn’t actually been seated.

Still, Butler said what happened in Missoula fits into what he calls “Nullification 2.0,” when such protests move beyond race into larger philosophical disagreements with the law.

“One of the most common questions I’d get would be from white people wondering, ‘Why can’t white people use nullification?’ ” said Butler. “When I heard about this case in Missoula, I thought, ‘This is exactly what I was talking about.’ ”

Cornell, the defendant in the Missoula case, is black; members of the jury pool were white.

Iloilo Marguerite Jones, executive director of the Montana-based national Fully Informed Jury Association, a jury empowerment group, called the Missoula jury pool’s action “elegant, honest and forthright.”

“I hope that there will be a blossoming, a fluorescence of awareness that our government officials must prioritize how they spend our tax dollars,” she said.

Click through for the entire article and to leave your comments.

When a handful of potential jurors in Missoula County District Court recently expressed their unwillingness to convict Touray Cornell for possessing a small amount of marijuana, County Attorney Andrew Paul called it a “mutiny.”

But Iloilo Marguerite Jones wouldn’t use that word.

Jones serves as director of the Helena-based Fully Informed Jury Association, whose mission is to educate Americans about their rights, powers and responsibilities when serving as trial jurors. She believes the term “mutiny” suggests unlawfulness, when in fact the Missoula jurors were expressing, as Jones puts it, their “inherent birthright” to “refuse to enforce bad laws.”

“Since the Magna Carta, the primary purpose of juries has been to restrain the government from predatory, venal and vindictive actions against private individuals,” Jones says. “That authority of the jury has waxed and waned since the Magna Carta because there is always a conflict between human rights and governments’ attempts to gather more power to itself.”

Read rest of story.

This case has been getting a lot of attention across the country. We ask that FIJA activists use this opportunity to educate their neighbors about the right and responsibility of the juror to refuse to convict any harmless person who is being tried under unfair or unfairly applied law. Please take a few minutes to write a letter to the editor or post some comments- or both!- so that the readers of any of the following publications have the opportunity to learn about jury nullification. Remember to mention fija.org/aie653l so that readers can easily find more information. Check back to this post as we will be updating it as we turn up more stories. If you see a story that has not been listed here, please e-mail us with the link. And please send us a copy of your letter to the editor. It might be featured on our blog or in our newsletter.

Update 3:
Marijuana: The power of jurors, Missoula Independent, 30 December 2010
Missoula’s “marijuana mutiny” reverberates , Missoula Independent, 23 December 2010
Montana Jurors Raise Hopes of Marijuana Advocates, The New York Times, 23 December 2010
Montana Jury Lights a Fire Under Pro-Pot Cause, NewsMax.com, 23 December 2010
Montana jurors raise hopes of marijuana advocates, San Jose Mercury News, 22 December 2010
Potential Jurors in Montana Refuse to Convict Anyone for Marijuana, High Times, 20 December 2010
Potential Jury Nullifies Law Before Even Being Seated, Eliminating Drug Trial, ABA Journal, 20 December 2010
Potential Mont. jurors stage ‘mutiny’ in pot case, KULR 8, 20 December 2010
Potential Mont. jurors stage ‘mutiny’ in pot case, Beaumont Enterprise, 19 December 2010

Update 2:
Court stunned by ‘mutiny’ from jury pool over marijuana case, USA Today, 22 December 2010
Montana Jury Pool Stages ‘Mutiny’ Over Pot Possession Charge, TPMMuckraker, 22 December 2010
Potential Jurors Staged “Mutiny” Over Marijuana Case, NBC Montana, 19 December 2010
Montana Jury Stages ‘Mutiny’ In Marijuana Case, The Huffington Post, 22 December 2010
Angry Jurors Refuse to Convict in Marijuana Case, StopTheDrugWar.org, 20 December 2010
Jury ‘Mutiny’ in Montana Sets New Precedent for Marijuana Law Reform, The Daily Show Forum, 20 December 2010
Montana Jurors Just Say No to a Penny-Ante Pot Case, Reason Online, 21 December 2010
Montana Jury Stages “Mutiny” Over Marijuana Charge, Slate, 20 December 2010
Missoula District Court: Jury pool in marijuana case stages ‘mutiny’, Billings Gazette, 19 December 2010

Update 1:
Montana jurors tell judge: Little pot no big deal, Minneapolis Star Tribune, 26 December 2010
‘Mutiny’ Over Pot, TheBigPictureRT, 23 December 2010
Jury Nullification, Pat Robertson, and Marijuana Prohibition, Hawai’i News Daily, 23 December 2010
Jury Mutiny and Jury Nullification San Diego ASA News Brief, San Diego Americans for Safe Access, 25 December 2010

Town can’t find jurors willing to convict in pot case, Toronto Star, 26 December 2010
“Jury Nullification” Becomes An Issue In Some Pot Cases, The Crime Report, 26 December 2010
Montana jurors refuse to convict man found with pot, Rapid City Journal, 26 December 2010
Potential Montana jurors stage ‘mutiny’ in pot case, Missouri Lawyers Weekly, 26 December 2010
Montana Mutiny – the pot shot heard ’round the weed world?, Examiner.com 25 December 2010
Juries are giving pot defendants a pass, Los Angeles Times, 24 December 2010
Missoula’s “marijuana mutiny” reverberates, Missoula Independent, 23 December 2010
Montana jurors raise hopes of marijuana advocates, Contra Costa Times, 22 December 2010
Judge finds ‘increasing’ difficulty in seating marijuana juries, The Raw Story, 22 December 2010
Just say no to drug jury duty, WashingtonExaminer.com, 22 December 2010
On the Great Montana Marijuana Mutiny, The Wall Street Journal, 22 December 2010
Can Jury Nullification End The War On Drugs?, The Atlantic, 21 December 2010
Montana jury candidates stage ‘mutiny’ over marijuana charge, Examiner.com, 20 December 2010
The Power of the People, DrugWarRant.com, 19 December 2010

L: Doug, in our conversation last week, we touched on the topic of jury duty, and I could tell that you had a lot of thoughts on the subject. It’s an important topic, since the jury system is, theoretically at least, meant to be the ultimate bastion of justice. But you spoke of how, although most people evade summons for jury duty if at all possible, for you it’s academic, because you’d never be allowed to sit on a jury anyway. Where does that leave things – do you think the jury system is a good idea?

Doug: My view has always been that what really holds a society together is not the body of law enacted by a legislature or handed down by a king, but peer pressure, social opprobrium, and moral approbation. When somebody breaks a society’s rules, a trial of some type ensues, to determine who’s right, what harm has been done, who should be compensated, and so forth. Juries are one way people have developed for helping to determine these things. But I would argue that the state is not a necessary part of any of this.

L: You would probably argue that the state shouldn’t be part of anything at all…

Read more here.

It seems to be an altruistic endeavor: Rally the populace to make informed and conscientious decisions when serving as a juror.

But James Cox, campaign manager for the Fully Informed Jury Association, said he was threatened with arrest outside the Broward County Courthouse; received a citation from Homeland Security while handing out literature in front of the Miami federal courthouse complex; and is regularly questioned about his activities at the federal courthouse in Fort Lauderdale.

His incendiary message seems to have hit a nerve.

Read more here.

The Constitution is the supreme law of the land, and the Oath is to the Constitution, not to the government, or to any official. This has implications for persons summoned for jury duty. It has implications for judges and prosecutors too, should they be interested in obeying their oath.

Trial by jury is secured by the Constitution (Art. III Section 2) and in the Six Amendment and Seventh Amendment of the Bill of Rights, and also in the Due Process clause of the Fifth. The power (and right and responsibility) of the jury to vote according to conscience and to judge the merits (and constitutionality) of the law as well as the facts in the case is what makes trial by jury an important bulwark of liberty. Trial by Jury places protection of the rights of the citizens in the hands of the citizens directly.

The Founders believed that trial by jury would preserve and protect our rights, and they put a lot of emphasis on it as a bedrock principle of a free society, going back to the Magna carta.

Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

John Adams said of the juror, “it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (Yale Law Journal, 1964:173)

The trials of the Quaker William Penn in England for preaching an illegal religion to an unlawful assembly and the publisher John Peter Zenger for publishing unlawful (but true) criticism of the royal governor of New York colony helped establish
our legal traditions of freedom of religion and speech. In both cases, rebellious, conscientious jurors voted for acquittal against the law and the instructions of the judge.

Read more.