by Don Doig (date unknown)

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It’s nice to know that years of effort by thousands of FIJA activists, involving thousands of news articles, media interviews, letters to the editor, scholarly articles and the distribution of a few million brochures may be having a very real impact.

In an article by Mark Curriden in the ABA Journal, August 2001, University of Georgia law professor Ron Carlson is quoted:

I think we are witnessing the emergence of an activist jury pool. People are frustrated by the inaction of the other branches of government and realize that, as jurors, they hold incredible powers of change and they are ready and willing to wield them…. Juries have always held immense power in our system of self-government, but only in recent years have jurors learned to use it.

Curriden goes on to cite a study by The Dallas Morning News and the Southern Methodist University Law Review which “identified more than 700 cases since 1990 in which jurors stated publicly that they intended their verdicts to have impact beyond their individual cases. Between 1970 and 1990 the study found fewer than 100 such cases. In the 70 years prior, researchers identified only 17 cases in which jurors indicated they wanted their verdicts to have some kind of broader influence.” Many of these were civil cases.

But the practice is even more widespread today [than in the time of the Penn and Zenger trials]. For example, jurors in Atlanta in the mid-1990’s started acquitting sports bookmaking defendants on a regular basis, even though such cases were usually slam dunks. In post-trial interviews, jurors said they saw no moral difference between sports betting and playing the Georgia lottery.

In Dallas, jurors started digging in their heels in 1999 in cases involving lewd dancing…. The jury in one case publicly criticized police for wasting taxpayers’ money investigating and prosecuting what amounted to victimless crimes. The jurors’ statements made news and soon other juries in similar cases were refusing to convict.

‘Now, when a dancer decides to fight these cases to a jury, they almost always win,’ says Houston lawyer Mike Maness. ‘It’s absolutely a case of jurors telling police this is not appropriate public policy.’

Tom Charron, director of the National District Attorneys Advocacy Center, says jury nullification isn’t always bad. He says there are thousands of outdated laws still on the books that could and might still be prosecuted were it not for the willingness of jurors to refuse to convict.

An article from The Modesto Bee, March 17, 2002 by Ty Phillips notes that since the passage of the medical marijuana initiative in 1996, “it has become increasingly difficult for prosecutors to convince juries to convict [in] medical marijuana cases.” Prosecutors are deciding not to file charges in many cases. Describing a hung jury, Phillips says:

“That is how most every medical marijuana case in Stanislaus county has ended during the past five years” [with just one exception].

“Last April, a Sonoma County jury found two men innocent of cultivation and possession charges after police arrested them for growing 899 marijuana plants. The men claimed that they were growing the plants for a San Francisco medical marijuana club.”

The Washington Post, in a February 8, 1999 article (“In Jury Rooms, Form of Civil Protest Grows”), noted that

In courthouses across the country, an unprecedented level of juror activism is taking hold, ignited by a movement of people who are turning their back on the evidence they hear at trial and instead using the jury box as a bold form of civil protest….

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location. Some local courts in California, for example, have reported more than 20 Percent of trials ending in hung juries. Federal criminal cases in Washington, D.C., averaged 15 percent hung juries in 1996… three times the rate in 1991….

Their concerns are supported by a recent nationwide poll by Decision Quest and the National Law Journal, which found that three out of four Americans said they would act on their own beliefs of right and wrong regardless of instructions from a judge to follow the letter of the law.

Of course, the effective percentage would drop once they are subjected to intimidation from the judge.

As the impact of informed juries grows, the legal establishment reacts with more and more draconian abridgments of trial by jury, exemplified by the People v. Williams case in California and U.S. v. Thomas from the federal Second Circuit Court of Appeals. In both cases the court ruled that sitting jurors can be removed if the judge learns that a juror is refusing to enforce the law. This declares that openly expressed jury nullification is grounds for removal from the jury.

Tyrannical as this is, conscientious jurors are left with a clear alternative strategy, and that is to raise the bar on reasonable doubt; to latch on to anything in the evidence, the character and motives and reliability of the witnesses or the police, and hold fast to your reasonable doubts. Judges have not yet usurped the power to remove you from the jury for these kind of reasons. As long as you bring up the question of evidence, you call still talk in terms of justice, conscience, and equity.

Federal judges have, however found ways to deny you a jury trial altogether. They declare that despite the Sixth Amendment guarantee of a jury trial “in all criminal prosecutions”, you don’t get a jury trial if the sentence is for less than six months, and then they multiply six month charges, which are to be served consecutively, with still no jury trial.

Additionally, federal judges have decided it is acceptable to “enhance” a sentence for “relevant conduct” for which a defendant has been acquitted. To quote the Supreme Court, “In short, we are convinced that a sentencing court may consider conduct of which a defendant has been acquitted.”

By what right? The “long train of abuses and usurpations” continues to grow.