     NEW HOPE FOR FREEDOM: FULLY INFORMED JURORS DON DOIG
                                                       
     America's Founders were worried that the government they 
created might someday grow too powerful, and begin to pass laws 
which would violate the rights of the very people the government 
was supposed to protect: ordinary, peaceful, productive 
Americans.  But they had an "ace in the hole" which they believed 
would suffice to hold the government in check.  That was the 
right to a trial by a jury of one's peers.

     Since when, you might ask, can a jury protect people from 
arbitrary and unjust prosecutions, or from bad laws?  The 
legislature creates laws.  Aren't we supposed to obey them, and 
lobby our legislatures for any changes that need to be made?  

     Traditionally, Americans have had more substantial and 
direct means by which to protect against governments grown too 
ambitious, and by which to resist oppressive laws.  America's 
Founders realized that the temptations of power were too great to 
leave it to the legislature, to the executive, and to the 
judicial branches of government to define what the rights of the 
citizens of this nation were.  Ultimately, citizens at the local 
level, acting according to the dictates of individual conscience 
were to have the final say, the final check and balance.  The 
people would need veto power over bad laws.

     And they provided just such a veto, a centuries-old 
tradition carried over from England to the colonies, which holds 
that jurors could judge whether a law was a good law, a law that 
did not violate the rights of free men and women.  If, according 
to the dictates of conscience, jurors did not think a law was 
just, or if they thought the law had been misapplied, they could 
refuse to convict an otherwise "guilty" defendant. Even a single 
juror could prevent a conviction, by voting not guilty.

     And if the jury as a whole decided to acquit the defendant, 
that decision was and is final.  A verdict of innocent cannot be 
overturned, nor can the judge harass the jurors for voting for 
acquittal.  Jurors cannot be punished for voting according to 
conscience. 

     These principles date back to the time of the Magna Carta.  
In 1670, Willian Penn was arrested for preaching a Quaker sermon, 
and in so doing breaking the law of England, which made the 
Church of England the only legal church.  The jurors in his 
trial, led by Edward Bushell, refused to convict him, and were 
themselves held without food, water, tobacco or toilet 
facilities.  Four were put in prison for nine weeks.  When they 
were finally released by court order, the decision established 
that jurors could no longer be punished for their verdicts.  This 
case helped establish freedom of religion, and the right to a 
trial by a jury of one's peers, a jury free from government 
coercion.

     The trial of John Peter Zenger, in the American colonies, 
was another landmark case.  Zenger had been arrested for 
publishing materials critical of the Royal Governor of New York 
colony and his cronies, accusing them of corruption.  While the 
charges were true, under the law, truth was no defense.  Zenger's 
attorney, Andrew Hamilton, argued to the jury that they were 
judges of the merits of the law, and should not convict Zenger of 
violating such a bad law.  The jury agreed.  Zenger was 
acquitted, and this case helped establish the right to freedom of 
speech.  

     The Founding Fathers were clear about where they stood on 
the issue of the rights of jurors:

     "The right of the jury to decide questions of law was widely 
recognized in the colonies.  In 1771, John Adams stated 
unequivocally that a juror should ignore a judge's instruction on 
the law if it violates fundamental principles: 
     'It is not only...[the juror's] right, but his duty, in that 
case, to find the verdict according to his own best 
understanding, judgment, and conscience, though in direct 
opposition to the direction of the court.'
     There is much evidence of the general acceptance of this 
principle in the period immediately after the Constitution was 
adopted."  Note (anon.)  The Changing Role of the Jury in the 
Nineteenth Century, Yale Law Journal, 74, 174, (1964).

     Thomas Jefferson said in a letter to Thomas Paine in 1789: 
"I consider trial by jury as the only anchor ever yet imagined by 
man, by which a government can be held to the principles of its 
constitution."
     
     And yet, during the nineteenth century, judges chipped away 
at this fundamental right of free citizens, transferring more and 
more power to themselves, contending that jury review of law was 
no longer necessary, now that democratic elections had replaced 
Monarchy.  By the end of the century, the Supreme court had 
decided to leave it up to the judge to decide if the jury should 
be told of its right to judge law as well as fact.  Today, jurors 
are generally told that they must accept the law as the judge 
explains it, and may not decide to acquit the defendant because 
their consciences are bothered by what seems to them an unjust 
law.  Judges falsely tell them that their only role is to decide 
if the "facts" are sufficient to convict the defendant.  Defense 
attorneys are not allowed to encourage jurors to vote to acquit 
because they believe the law is unjust or unconstitutional, and 
defendants are generally not allowed to even discuss their 
motives.  
     
      In plain words, in what comes down to a power struggle 
between the people and the judicial system, the people have been 
losing.  

     In fact, jurors still, to this day, have the right to 
veto, or "nullify" bad laws. They are just not told this by the 
courts.  And judges and prosecutors exclude people from serving 
on juries who indicate a willingness to nullify the law.  This 
violates the protections jurors were supposed to be able to give 
their fellow citizens against unjust prosecutions.  A jury is 
properly a cross-section of the community as a whole.

     What can be done?  The Fully Informed Jury Amendment (FIJA) 
was designed to return to the people this basic and very 
important right.

     The idea of the Fully Informed Jury Amendment is to amend 
state constitutions, or enact statutory changes, to require 
judges to inform jurors that if they think a law is unjust or 
unconstitutional--or just misapplied-- they need not convict an 
otherwise "guilty" defendant.  

     FIJA does not give jurors the right to act as a legislature, 
since their decisions affect only the case at hand and do not set 
precedents for future cases.  Nor can jurors create new offenses.  
If a jury convicts a defendant unjustly, the judge may set aside 
the conviction, and in addition the defendant has the right of 
appeal.

     People from all walks of life and from across the political 
spectrum are organizing to put FIJA on the election ballot, in 
states that permit the initiative process. To date FIJA has been 
filed as an initiative in Montana, Idaho, Colorado, California, 
Nevada, Utah, Arizona, Arkansas, Florida, Nebraska, and 
Washington, with more states soon to follow.  In other states, 
FIJA activists are lobbying state legislators to support FIJA 
legislation or referendums. FIJA legislation has been submitted 
to the legislatures of Alaska, Arizona and Wyoming.  And in all 
areas of the country, people are spreading the word. 

      The judges and others within the government's courts 
have long been waging a campaign of disinformation, so that 
jurors won't even know what their rights are.  We think it's past 
time that the people themselves begin to demand that their rights 
as jurors be respected.  It's not just jurors whose rights are 
being denied.  Defendants, too, have the right to a fair trial by 
a jury of their peers, and they have not been getting fair trials 
because government judges have been systematically misinforming 
jurors.  In fact, this campaign to deny juror's rights has been 
going on for so long now that many attorneys (and probably some 
judges) are not even aware that these rights exist.

     We have the opportunity to take back control of this country 
and return the ultimate safeguard of the rights of the people 
back where it belongs, to the people.  Please join us in the 
campaign to pass the Fully Informed Jury Amendment.  

     If a juror accepts as the law that which the judge states 
then that juror has accepted the exercise of absolute authority 
of a government employee and has surrendered a power and right 
that once was the citizen's safeguard of liberty,--For the 
saddest epitaph which can be carved in memory of a vanished 
liberty is that it was lost because its possessors failed to 
stretch forth a saving hand while yet there was time."  2 
Elliot's Debates, 94, Bancroft, History of the Constitution, 267, 
1788.
    
     
     Don Doig is National Coordinator for the Fully Informed Jury 
Amendment, P.O. Box 59, Helmville, Montana 59843. Phone (406)793-
5550.
