Therefore we see that any judge who tells the jury that “if the facts and evidence show that the defendant violated the law, you must convict” is simply lying to the members of the jury, and of course that judge is himself committing a violation of law by giving that instruction to the jury. The lovely, liberating, justice-bearing truth is that the jury can judge the law in that judge’s courtroom as well as judging the facts of the case before it.
Our forefathers, this nation’s founding fathers, duly considered this bastion of liberty in creating the United States of America. It is our tradition and it is our Right. Any government employee who would tell any citizen differently is either intentionally lying or is ignorant of the law.
A twelve-person jury holds a unique power which is brought to the American courtroom on behalf of We The People. By that unique power the entire system of American justice may finally be purged of any corruption which may have been inserted through the personality or preferences or personal perceptions of an individual judge, or through the inferior, contradicted laws which may have been left on any jurisdiction’s law books for whatever reason. By judging of the law as well as of the facts of the case before the jury, the twelve citizens are exercising the supreme power of We The People. It is the people’s check upon the balances of power as arrayed in the nature and structure of American government. It is a vital part of what made America the greatest nation on earth and the stronghold of personal liberty and freedom.
The jury is one of the most important features of our heritage. But now let us look at this from another perspective. As we have been looking into my premise which states that America is under siege from within, we have noticed that the entire public school system has been turned into a massive mind-control device designed to mold and regulate citizen behavior (note: is the power of jury-nullification taught in today’s government-funded schools?); that the entire monetary system has been usurped and placed in the hands of a few elite international bankers and is now being used as a weapon against American social and cultural institutions and traditions; that our entire system of law enforcement has been assaulted to the point that the CIA has become the world’s largest producer, transporter, and marketer of opium and cocaine; that the Supreme Court and lesser court systems operating under the Supreme Court’s ultimate jurisdiction have usurped righteousness at its core by legislating from the bench; that the government’s capacity, whether legal under superior law or not, to issue license has been corrupted into a huge national database of “citizen-consumer” control; that what used to be the people’s U.S. Congress has rolled over obediently to every whim of the Executive; that Christianity itself has been placed under direct siege; that American politics has been subverted into a cesspool of “inter-dependence” within a symptom called international globalism; that in general the defensive (and therefore morally-just) purpose of the U.S. military has been hijacked and reassigned the role of an international police force tasked with protecting American and multi-national corporate trade lanes all around the planet; and numerous other offensive grievances have been laid upon the back of the American middle-class citizen.
Now we are confronted with a phenomenon which might cause Perry Mason to turn in his grave. The individual American’s last line of defense against such usurpations is itself under siege. The twelve-person fully-informed jury is itself under attack by the Judicial branch, from within. That attack is implemented under an invisible flag which among other handles we may call the “good old boys network”. When a man holding a judge job can sit dressed in black above a jury and tell that jury that the facts, and the facts alone, must determine the jury’s concluding verdict, he is lying and he is committing a crime and he is attacking our judicial system. To illustrate that point more clearly, let’s return briefly to former Justice Goodloe’s writings.
~ Begin quoted passages from Justice Goodloe, in the section entitled “The Navigation Acts and the Declaration of Independence”:
The Declaration of Independence, America’s birth certificate, lists the reasons compelling us to separate from England. One of the reasons listed against the King and Parliament is – “For depriving us in many cases of the benefits of Trial by Jury”. There is an important story here.
To raise taxes Parliament had passed the Navigation Acts requiring all trade with the colonies to be routed through England so that England could collect duties. Smugglers, such as John Hancock and other Founders, defied the Navigation Acts and brought tax-free goods into the colonies. The colonists viewed the smugglers as heroes so that when the British Navy captured smugglers and they were tried before colonial juries, the jurors acquitted the smugglers and their ships were returned to them. Thus, colonial juries nullified the Navigation Acts. In response, the King abolished trial by jury in smuggling cases and established vice-admiralty courts to hear smuggling cases without juries. See Scheflin, Jury Nullification: The Right To Say No, 45 Southern California Law Review 168, 174 (1972).
The colonists were so incensed at having their right to trial by jury, and their right to jury nullification, taken away from them that they listed this as one of the reasons in the Declaration of Independence for separation from England. The American Revolution was fought, in part, to preserve the right of jury nullification.
~End passages from former Washington State Supreme Court Justice William Goodloe’s essay.
From the above we see clearly that some among the colonists, including some of this nation’s Founders, sought ways to get around the tax laws of the day by smuggling shipments to avoid British taxation. They were viewed as heroes by many colonists, despite the fact that they were operating against the law. When people are oppressed by government, they naturally seek ways around that oppression, and in the case of our nation’s Founders, their views upon law-breaking to avoid taxation had a moral justification. I maintain that Americans today hold equal access to such morality, by which the human spirit, which seeks freedom to live and act in accordance with higher principles than those put forth by government, are valid. It is an American tradition and it is a part of our historic rise to greatness as a people. It keeps government in its proper place in relation to the individual citizen, a perspective which subjects government to the will of the people. Anything less becomes tyranny, as we too clearly see today. Now let us take a look at some of that Founding consciousness as regards the social rights to trial by jury and jury nullification.
~Begin quoted passages from former Washington State Supreme Court Justice Goodloe’s essay:
The Founders’ view of the jury as being of paramount importance in defending liberty is easily seen when examining the words of the Constitution. There are only 14 words describing freedom of speech and of the press in the Constitution. But there are 186 words describing trial by jury in the Constitution. It is guaranteed in the main body in Article 3, Section 2, Paragraph 3, and in two amendments, the Sixth and the Seventh. No other right is mentioned so frequently, three times, or has as many words devoted to it. It is plain that the Founders viewed the jury trial right as the most important right since it gave birth to, and defended, all other rights. It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as rights retained by the people under the Ninth Amendment.
For anyone to assert after Zenger, the Navigation Act cases, the Declaration of Independence, and the great volume of language about the jury in the Constitution that the Founders would intend the jury to be a mere fact-finder that must blindly follow the law as dictated by a judge is to fly in the face of logic and history. It is also to fly directly against the explicit words of the Founders about the jury’s role.
“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 it’s constitution.” – Thomas Jefferson, drafter of the Declaration of Independence and Third President, in a letter to Thomas Paine, 1789, The Papers of Thomas Jefferson, Vol. 15, p. 269, Princeton University Press, 1958.
“It is not only [the juror’s] right, but his duty…. to find the verdict according to his own best understanding, judgment, and conscience even though in direct opposition to the direction of the court.” – John Adams, first proponent of the Declaration of Independence and Second President, 1771 2 Life and Works of John Adams 253-255 (C.F. Adams ed. 1856)
“You [the jurors] have, nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” – John Jay, first Chief Justice of the United States Supreme Court, charging the jury in Georgia v. Brailsford, 3 Dallas 1, 4, (U.S. 1794).
“That in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is entrusted with the power of deciding both law and fact.” – Alexander Hamilton, first Secretary of the Treasury, People v. Croswell, 3 Johns Cas. 361, 362 (1804) as reprinted in Sparf and Hansen v. United States, 167 U.S. at 146-148, dissenting opinion, (1895).
~End quoted passages from former Washington State Supreme Court Justice William Goodloe’s essay.
As former Washington State Supreme Court Justice William Goodloe has duly shown, the American Jury is in effect the fourth branch of government.
We either have a Constitution or we do not have a Constitution. If we have one, then the Federal government must, by the highest, supreme, uncontradicted law of the land, obey that Constitution and operate within the legal limits placed upon that government at the moment of its creation. All law in America today must trace its origins to the one founding legal document which charters and authorizes the Federal government and its subsequent body of laws. “…shall not be infringed” means just what it says.
There is no legitimacy in any law which fails to conform to the dictates of the government’s founding legal charter, from which all just law must spring. Being true enough that anyone may clearly see and understand that statement, we begin now to understand what has been done from within to destroy America. What is being done presently includes such as these few examples: to “outsource” American industry; to redistribute wealth; to impose illegal laws as if those laws had the force and weight of genuine law; to unlawfully possess lands within the several states; to forge, shape, and design the perceptions of American generations via Federal involvement in education; to allow foreign ownership over the issuance of America’s monetary system (the Federal Reserve); to employ the machinery of imperialism through economics, cultural encroachment, monopoly-capitalism, Policy both foreign and domestic, Statecraft, and military power; and to “dumb down America” for assimilation into the encroaching one-world government of the New World Order.
I submit for consideration the possibility that anyone on the street in America today, the common man, the average little guy like myself, who is asked whether he feels that there is an assault presently being waged upon the American middle-class answers readily in the affirmative, whether or not he can trace or substantiate his perception with documentation. Almost all Americans today sense that something is wrong in America. Indeed, we now see that corruption within the Judicial branch of our Federal government has bled downward into our States and communities and is discernible in the lies uttered by court judges on many levels when they “instruct” the juries across this land. The silent siege of American justice, such as is perpetrated by judges across the board in the War on Drugs and numerous other examples, has crippled justice for the individual American citizen, and that stench of evil has spread even into Montana.
The people of Montana either did, or did not, in the year 2005, vote to allow controlled use of “medical marijuana” in the State of Montana. When my webmaster died of cancer on January 20, 2006, in my home, I was keenly distressed to note that his doctor refused to sign his petition for medical marijuana because, as his doctor stated, despite the will and vote of the people of Montana, the Federal government adamantly refused to allow Montana to govern itself on matters relating to medical marijuana usage. When a man has been diagnosed as “terminal”, on what moral ground dares the Federal government to over-ride not only the natural laws of reason and mercy, but a sovereign State’s written law, and the patient’s ownership of his body, to torment a soul seeking relief from the ravages of cancer? Is the Federal government afraid the dying man may damage himself by smoking a bit of marijuana? Is the Federal government ruthlessly seeking, at point of great and unbearable human pain and suffering, to impose its power illegally, immorally?
I suggest that that is insanity, that it is evil, that it is morally corrupt, that it is torture of the dying, and that, according to my reading of the U.S. Constitution, it is illegal. Nowhere in the U.S. Constitution do I find any expressed duty of the Federal government to regulate or control whatever a self-owning U.S. citizen may or may not put into his body. The very idea of government owning that much of a citizen, his very body, is repugnant to the spirit of freedom and liberty, and to the embracing of both in the wording of the U.S. Constitution. In fact, the Federal law enforcement, according to my reading of the U.S. Constitution, is confined by law to only the U.S. Marshall. The presence in Montana of the DEA and BATF and other Federal enforcement agencies other than the office of the U.S. Marshall may indeed be seen as Federal usurpation of not only the Federal law itself, but also of Montana’s sovereignty as a State within the union. If Federal agencies are not bound by the supreme law itself, that is, the U.S. Constitution, then they can only be described as forces of tyranny.
And when a person holding a judge job upholds that sort of tyranny by lying to an uninformed jury regarding illegal “rules of the court” or “color of law”, I submit that he is committing treason against the people of the United States of America.
To fortify my sentiments on such matters, I again turn to former Justice William Goodloe’s dissertation on the jury.
~Begin quoted passages from former Washington State Supreme Court Justice Goodloe’s essay:
Judicial Attempts To Control The Jury
As the Revolution and the Founders receded into history, judges began trying to limit the power of the jury in order to control the outcome of verdicts. In United States v. Battiste, 24 F. Cas. 1042 (No. 14, 545; C.C.D. Mass. 1835), in the trial of a sailor who had served on a slave ship, Justice Story conceded the power of the jury to nullify his instructions but denied their moral right to do so. Justice Story had ruled as a matter of law that a statute imposing the death penalty for enslaving black people should not apply to mere sailors and he wanted the jury to follow his instruction. It should be noted that under modern rules of procedure jury nullification can work only in the direction of mercy so that Justice Story’s concern in Battiste is avoided.
In 1850 Congress passed the Fugitive Slave Act making it a crime for anyone to help a fugitive slave. In one of the cases tried under this act, United States v. Morris, 26 F. Cas. 1323 (No. 15, 815; C.C.D. Mass. 1851) Supreme Court Justice Benjamin Curtis sitting as a trial judge in the case, interrupted the defendant’s closing argument to reject the defendant’s assertion that the jury could determine matters of law and acquit if they viewed the Fugitive Slave Act as unconstitutional. Despite judicial instructions upholding the Act, northern juries massively resisted the Fugitive Slave Act and defeated it by nullification verdicts of acquittal.
Throughout much of our history for the past 150 years there has been a tug of war in the courts over informing the jury of its power of nullification. For example, in Pennsylvania in 1845 in Sherry’s Case (See Wharton, Homicide, 2d ed. 1875, pp. 721-722), Judge Rogers instructed the jury that their duty was “to receive the law for purposes of this trial from the court”. But later in 1879 in Kane v. Commonwealth, 89 Pa. 522, 527 the Pennsylvania Supreme Court stated that “The power of the jury to judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights.”
But then still later in Commonwealth v. Bryson, 276 Pa. 566; 120 A. 552, 554 (1923) the Pennsylvania court stated oppositely that “It is the duty of the jury to take the law from the court, to the same extent in a criminal case as in any other, and a trial judge can properly so instruct.”
The tug of war over jury nullification has also involved statutes and constitutional provisions. For example, in response against Massachusetts Chief Justice Shaw’s opinion in Commonwealth v. Porter, 10 Metc. 263 (Mass. 1845) that the jury could not determine questions of law, a statute was passed by the legislature in 1855 to overrule Porter. The statute read in relevant part “in all trials for criminal offenses, it shall be the duty of the jury … to decide at their discretion, by a general verdict, both the fact and the law involved in the issue.” Massachusetts Laws of 1855, c. 152. Justice Shaw ignored the obvious legislative intent of the statute and interpreted it in Commonwealth v. Anthes, 5 Gray 185 (1855) to mean only that the jury has the right to bring in a general verdict.
In Louisiana the early cases emphatically reiterated that in criminal cases the jury had not only the power but the right to disregard the judge’s instructions. See State v. Saliba, 18 La. Ann. 35 (1866). Then in 1878 in State v. Johnson, 30 La. Ann. 904, 905 – 906 the court stated that “the exercise of this power is itself a moral wrong.” In defense of jury rights the Louisiana Constitution, adopted in 1879, provided in Article 168 that “The jury in all criminal cases shall be judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.” But the court in Ford v. State, 37 La. Ann. 443, 465 (1885) interpreted this constitutional provision to mean that the jury was bound to follow the law as given by the court.
One of the most influential cases concerning informing the jury about its nullification power in federal courts has been Sparf and Hansen v. United States, 156 U.S. 51 (1895). [ … snip … ] The trial judge invaded the exclusive province of the jury to determine the facts by instructing the jurors that there was no evidence to support a lesser charge than murder. [ … ] Then the judge actually did tell the jury, in the dialog with a single juror, about its power to bring in a more merciful verdict, for manslaughter, but denied its right to do so, and insisted that the jury had a duty to follow his instructions to bring in a verdict for murder or nothing. Justice Harlan in writing the Supreme Court opinion upholding this instruction stated:
“Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves. Under such a system, the principle function of the judge would be to preside and keep order while the jurymen, untrained in the law, would determine questions affecting life, liberty or property according to such legal principles as in their judgment were applicable to the particular case being tried.” (Sparf, 156 U.S. at 101)
Justices Gray and Shiras wrote in dissent:
“Within six years after the constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar [referring to the case of Georgia v. Brailsford], under the original jurisdiction conferred upon it by the constitution.” (Sparf, dissenting opinion, 156 U.S. at 154)
“There may be less danger of prejudice or oppression from judges appointed by the president elected by the people than from judges appointed by an hereditary monarch. But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield, – from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law, – of amplifying their own jurisdiction and powers at the expense of those entrusted by the constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy.” (Sparf, dissenting opinion, 156 U.S. at 176)
“…it is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are wholly or chiefly occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused.” (Sparf, dissenting opinion, 156 U.S. at 174)
The effect of Sparf has been to give a federal trial judge control over what the jury hears about the law inside the courtroom in federal cases. It does not diminish the actual power of the jury to nullify in federal cases nor does it affect state trials. States are free as a matter of state constitutional or statutory law to give their citizens greater civil liberties protections than what the Supreme Court protects in federal cases. It should be noted that according to U.S. v. Grace, 461 U.S. 171 (1983) a federal judge can not control what the jurors may hear about the law outside the courtroom.
Sparf and Hansen is not the Supreme Court’s last word on the jury’s role. In 1968 the Court ruled in Duncan v. Louisiana, 391 U.S. 145, that the Constitution requires states to provide jury trials for all defendants facing a possible punishment of two years or more, and the Court strongly implied that it would later extend the jury trial right in state trials to all defendants facing a possible punishment of six months or more. Justice White, writing for the majority, gives some of the fundamental reasons why trial by jury is essential to liberty.
“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government … Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge … Fear of unchecked power, so typical of our State and Federal Government in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.” (Duncan, 391 U.S. at 155-156)
The community can hardly make an effective participation in the determination of guilt or innocence if the jury is told that it must disregard its conscience and follow the law as dictated by a judge. The very word “guilt” requires the finding of a guilty mind, mens rea, the evil intent to do harm, and the jury can not determine this without consulting its own sense of right and wrong.
Modern Day Authority for Jury Nullification
Jury nullification remains the law of the land in every American jurisdiction. The ruling of Chief Justice Vaughan in Bushell’s Case that the jury can not be punished for its verdict stands today in every jurisdiction, state and federal. This, coupled with the rule that verdicts of acquittal are final, is the substance of the power of jury nullification. Unless either or both of these two pillars of freedom are eroded away, the power of jury nullification is and will always be the law of the land. If the original intent of the Founders is our guide to the Constitution, then there is no doubt that jury nullification is a Constitutional right of both the defendant and of the jurors themselves, an unalienable part of the jurors’ identity as sovereign citizens with the power to judge laws.
As the court has stated in U.S. v. Moylan, 417 F.2d 1002, 1006 (4th Circuit Court of Appeals, 1969):
“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence … If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”
[ … ] Moreover, the Washington State Court of Appeals, Division Two, has ruled that a judge can not direct a verdict for the State because this would ignore “the jury’s prerogative to acquit against the evidence, sometimes referred to as the jury’s pardon or veto power.” See also State v. Primrose, 32 Wash. App. 1, 4 (1982). See also State v. Salazar, 59 Wash. App. 202, 211 (Division One, 1990).
The power of jury nullification is a fundamental and integral part of our legal system. The debate today is not about whether juries have the power to nullify, but whether they should be told about their power. [EA: in a court room] For example, in a Vietnam War protest case, U.S. v. Dougherty, 463 F.2d 1113, 1130 (D.C. Circuit Court of Appeals, 1972), the court praises jury nullification:
“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commented are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law.”
And yet the majority on the court chose not to let the jury hear this praise in the courtroom.
Answering Common Objections
Some common objections to informing the jury about its power of nullification are that chaos and anarchy will result from inconsistent jury verdicts, that the jury will unjustly convict, and that it is the function of the legislature, and not the jury, to repeal laws. All of these objections are unfounded.
Jury nullification has not produced anarchy or social disintegration in history, but rather, it has given us our most important rights. Obviously, juries which are representative of the community will not want to render verdicts which will cause anarchy and chaos in the very communities in which the jurors reside.
Hung juries and inconsistent jury verdicts arising because of jury nullification are actually performing a service for society. They are sending messages to lawmakers in a peaceful, routine and institutionalized way that it is time for changes in the law. Jury nullification is an antidote for the kind of anarchy caused by the victimless crime laws. [EA: such as those laws upon which rest the insane and illegal War on Drugs] America now leads the world in the percentage of its population behind bars largely because of victimless crime laws and the ancillary crime that such laws generate. A long series of jury refusals to apply such laws will advise legislatures to repeal or modify them. As Scheflin and Van Dyke have noted:
“Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic.” Scheflin and Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, Vol. 43, No. 4, 71 (1980).
As to the possibility of unjust convictions, jury nullification poses no threat that juries will punish a defendant beyond what the law allows because modern day court procedures insure that this doctrine acts in the direction of mercy only. Juries have no power or mechanism to invent new charges or increase the severity of what the prosecutor has already charged. Moreover, a judge is free to direct a verdict of acquittal, but not a verdict of conviction, if the court determines at the end of the trial that the evidence is insufficient to warrant jury deliberations. And further, the court as a matter of law can set aside a conviction or grant a new trial where the verdict is unsupported by the evidence. The defendant can appeal a verdict of guilty but a verdict of acquittal is final.
Further, jury nullification poses no threat to the reasonable doubt standard. It is clear from the language in early court opinions that the early Americans intended jury nullification to work only in the defense of liberty and not to the aid of the government. “The purpose of the rule [is] the preservation of civil liberties against the undue bias of judges.” – Mark Howe, examining early American cases in Juries As Judges Of Criminal Law, 52 Harvard Law Review 582, 592 (1939).
Obviously, a defendant in a criminal case will not raise nullification to attack the reasonable doubt standard since this standard benefits him. And the kind of case where a defendant will raise the issue of jury nullification is the kind of case where reasonable doubt is seldom an issue. In the classic jury nullification case, such as the trials of William Penn and John Peter Zenger, the facts are not in dispute and so reasonable doubt is of no consequence in such a case. The Quaker who helped a fugitive slave in violation of the Fugitive Slave Act did not rely upon the reasonable doubt standard, but relied instead upon the jury’s power to rise above the law to reach justice. […]
As to the repeal of unjust or unpopular laws, legislators seldom go back and correct their mistakes without some prompting. While it is within the proper role of the legislature and electorate to pass laws, it is within the proper role of the jury to veto laws which the jury finds to be oppressive. If the governor has a veto, and the senate has a veto, and the house has a veto, and the judges have the veto of judicial review, then the citizens who are asked to live under the laws and apply them must also have a veto when they serve on juries.
Occasionally a critic will concede the power of the jury to nullify the law but deny its right to do so. This is mere semantics because there is no practical difference between an un-reviewable power and a right. Moreover, the Zenger case and the Founders refer to jury nullification as a “right”. Our Constitution clearly states that “We the People” created the Constitution and therefore it follows that the people are sovereign. A sovereign people have the inherent right to judge the law when they come together on juries to decide cases. “All political power is inherent in the people…” Art. 1, Sec. 1, Washington State Constitution.
The Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is the moving force behind the restoration of popular knowledge about jury nullification. Founded in 1989 by Don Doig and Larry Dodges at Helmville, Montana, FIJA is based [today] in Helena, Montana and has over  dues paying members nationwide including lawyers, writers, law school professors, activists, and retired judges. State chapters have been formed in most states including Washington. The national organization publishes and disseminates various informational materials – a quarterly newspaper, books, tapes, computer discs, leaflets and taped telephone messages and has a toll-free number, 1-800-TEL-JURY (835-5879).
FIJA exists to rekindle people’s knowledge of their common law and constitutional right to judge the law as well as the facts and to render the verdict according to conscience when they serve as jurors. FIJA is accomplishing this by public education and by supporting legislation to enable citizens to freely argue jury nullification in court. National officers make media appearances and FIJA supporters periodically testify at legislative hearings. FIJA has received considerable publicity in over 1,500 newspaper and magazine articles, including the ABA Journal and ABA Litigation News and various law reviews. FIJA bills have been introduced in 25 state legislatures and have twice passed an upper or lower legislative house in 2 states, Arizona and Oklahoma.
Most of the historical discussion of jury nullification has been in the context of criminal cases. That is because the policy behind jury nullification is the protection of civil liberties and in the past the contest between the individual and government took place largely in the arena of the criminal trial. Though in the early years of the federal courts it was not unusual even in civil cases to instruct the jurors that they were to judge the law. See: Georgia v. Brailsford, 3 Dallas 1, 4 (U.S. 1794), Van Horne v. Dorrance, 2 Dallas 304, 307, 315 (C.C. D. Pa. 1795), and Bingham v. Cabbot, 3 Dallas 19, 28, 33 (U.S. 1795). Now, with the rise of civil asset forfeiture, jury nullification applies with equal validity to civil cases where the government is in contest against the individual….
The jury is an unsettling institution to government because it possesses the power to stop government coercion. The jury’s true function is to examine the law and to judge the morality of the law in its application to a particular case. It is the safety valve of the system that tempers, through mercy, the mechanical application of rigid rules.
If legislators are disturbed by those occasions when jurors hold in abeyance or refuse to apply a particular law it is well to recall the words of Thomas Jefferson:
“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making of them.” – Thomas Jefferson, letter to Abbe Arnoux, 1789; The Papers of Thomas Jefferson, Vol. 15, p. 282, Princeton University Press.
Jury nullification encourages participation in the judicial process which in turn furthers the legitimization of the legal system. However, jury nullification also serves to inject community values and standards into the administration of the laws. Jury nullification permits the community an opportunity to say of a law that it is too harsh, or in a particular case that it is too punitive or of a particular defendant that his conduct is too justified to warrant criminal sanctions. Ordinary citizens are given the chance to infuse community values into the judicial process in the interest of fairness and justice and at the same time signal to the lawmakers that perhaps they have drifted too far afield of the democratic will. Some have argued that criminal statutes are more likely to embody the collective will and conscience than a random selection of 12 men and women, but this is not necessarily so. History is replete with examples that jury nullification serves as a final corrective over both tyranny and judicial rigidity.
As one writer has observed:
“The fundamental safeguards have been established, not so much by lawyers as by the common people of England, by the unknown juryman who in 1367 said he would rather die in prison than give a verdict against his conscience, by Richard Chambers who in 1629 declared that never till death would he acknowledge the sentence of the Star Chamber, by Edward Bushell and his eleven fellow-jurors who in 1670 went to prison rather than find the Quakers guilty, by the jurors who acquitted the printer of the Letters of Junius, and by a host of others. These are the men who have bequeathed to us the heritage of freedom.” – (A. Denning, Freedom Under Law, 64, 64 (1949) as reprinted in Scheflin and Van Dyke, Jury Nullification: Contours of a Controversy, Law and Contemporary Problems, Vol. 43, No. 4, p. 111 n. 248)
Jury nullification is an idea that libertarians instantly love, authoritarians instantly hate, and that liberals and conservatives walk around warily because they know that it will help them on some issues but that it may also dismantle the coercive parts of their political agendas. Regardless of our particular political views, no one can deny that our freedom has been won for us with the power of jury nullification, and that it may be lost without it.
A right concealed is a right denied.
William C. Goodloe
~End excerpts from essay on jury nullification by former Washington State Supreme Court Justice Goodloe.
In his vivid book entitled Born Again Republic (3) author/speaker M. J. “Red” Beckman has given us a proposed model of an ideal manner in which a judge might instruct the jury in his courtroom. Hopefully, all persons holding “judge jobs” shall consider wisely these statements by Red Beckman as found in the section of his book, Proposed Instructions To The Jury:
1: I am the judge in this case and I want you on the Jury to be aware that I am a political appointee to this position.
2: I, the Judge in this case, am a Public Servant and a Tax Consumer.
3: You, the Jury, are the highest-ranking [authority] of this Court.
5: Our form of Government is not a Democracy but a Constitutional Republic.
6: The Constitution of the United States is a law which was written and ratified by the people as a law which the government must obey.
8: The law which I have explained to you in this case was written, passed and administered by public servants and now you, the governed, have the full right and duty to nullify this law if you do not wish to be governed by it.
9: Remember that the government [is] to derive its just powers from the consent of the governed.
16: The Government must have the consent of all twelve members of this Jury to enforce the law.
17: Any one or all twelve [of you as members of the Jury] may vote to nullify the law in this case.
19: You, the Jury, are the judges of all law and all facts in this case.
~End excerpts from Red Beckman’s Proposed Instructions To The Jury as taken from his book, Born Again Republic (3).
We as Montanans and as Americans must ask ourselves why such proposed instructions to the jury are not commonly used in our own courts.
From a faulty memory I would now like to paraphrase something Henry David Thoreau once said: “In unjust times, the place for all just men is in prison.” Actually, without intending to take anything away from the message in Thoreau’s words, it now appears that in “unjust times” a better place for “all just men” is on the jury.