Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, November 19, 1995 TAG: 9511170107
SECTION: HORIZON PAGE: F-1 EDITION: METRO
SOURCE: THOMAS G. WATTS DALLAS MORNING NEWS
DATELINE: LENGTH: Long
And for those who follow a philosophy known as ``jury nullification,'' justice is the force that should prevail.
Their movement has prompted legislators in 22 states to introduce bills in the last few years that would legalize what some jurors have done for centuries.
And although none has passed so far, advocates say it's only a matter of time.
Simply put, nullification occurs when jurors ignore the law because they believe that mitigating factors are more important than potential legal violations. The theory holds that jurors should be able to determine the merits of a law as well as the facts of the case in reaching a verdict.
``There are times when the letter of the law does not mean justice and juries ought to be informed of that,'' said Texas state Rep. John A. Longoria, D-San Antonio, who unsuccessfully pushed a nullification bill in the last legislature and vows to try again.
But to St. Louis lawyer and former U.S. Sen. Thomas Eagleton of Missouri, the concept is a ``march to chaos and political disorder.''
Jury nullification is the force that has resulted in some abused spouses being acquitted of killing their abusers. Some marijuana users have been absolved of guilt because they believed the drug eased their pain from cancer or AIDS. And some black crack dealers have been acquitted of charges that would have brought harsh sentences because jurors were upset that white dealers of powder cocaine face more lenient jail terms.
It may have been a factor in the trials of Branch Davidians accused of a conspiracy to kill federal agents at the cult's compound near Waco, Texas, and the murder trial of white separatist Randy Weaver. Nearly all of those defendants were found guilty of lesser charges.
Jury nullification was probably not a part of the decision to acquit O.J. Simpson of the slayings of his ex-wife and her friend, most observers agree. Simpson jurors who were interviewed after the trial, said prosecutors did not prove the case, although defense attorney Johnnie Cochran had suggested to jurors that they acquit Simpson because he was a victim of racist police investigators.
The philosophy has had organized support since the founding of the Fully Informed Jury Association in 1989, but the concept dates to the Middle Ages and the Magna Carta between England's King John and his nobles.
It first surfaced in the United States in 1735 when a New York jury acquitted printer John Peter Zenger after he published criticisms of the British crown - an illegal act at the time.
In the 1850s, Southerners were furious with Northern juries that acquitted many people accused of helping black slaves escape along the Underground Railroad.
In the 1950s, many Northerners and civil rights advocates were embittered by Southern, white juries that acquitted several men charged with killing blacks - including those accused of slaying young Emmitt Till and civil rights leader Medgar Evers.
A decade later, juries throughout the nation occasionally acquitted anti-war demonstrators because they sympathized with their cause.
In all those cases, the juries believed that other considerations transcended the law.
And in all those times - as now - the nation was polarized politically.
``In times of crisis or a time when the jurors tend to disagree with a law is when you tend to see nullification,'' said Jeffrey Abramson, a political scientist at Brandeis University in Waltham, Mass., and author of ``We the Jury: The Jury System and the Ideal of Democracy.''
``It's the jury's way of functioning as a political pressure point,'' he said.
Abramson and others contend that juries traditionally were told that they had the authority to look at the law as well as the facts of the case before determining a verdict.
In fact, the state constitutions of Maryland and Indiana still have provisions establishing that authority - although legal practices in both states have evolved away from the concept.
It was not until 1895 that the U.S. Supreme Court ruled that juries in federal criminal cases could not determine the merits of a law in deciding cases.
Since then, judges have instructed juries on what laws they should follow and told them to determine whether the facts of the case fit the law - to convict if they did and acquit if they did not.
To Eagleton and others - including many prosecutors and judges - that is exactly the way the system ought to work.
The law is so complex now, they said, that juries should not try to examine both its intricacy and the facts of a particular case.
``Once upon a time,'' Eagleton wrote in a column in the St. Louis Post-Dispatch last summer, ``the idea of jury nullification was in the gentle hands of professors who wrote about it from a historic and academic prospective.
``Now it is in the hands of kooks who have kidnapped the concept as they march on the road to anarchy. It's an attempt by the wacko fringe to further its anti-government agenda by using the jury system as the ultimate determinator of public policy.''
Charles Key does not see himself as a kook.
The insurance executive and Oklahoma legislator authored a jury nullification bill that was approved overwhelmingly by the state House this year but died in a Senate committee. He intends to file another version next year that would give the state's voters a chance to consider a constitutional amendment.
``I've always been interested in justice and legal issues,'' he said. ``When I became aware of the fully informed jury theory several years ago, it just made a light go off in my mind.''
Longoria, the Texas representative and San Antonio lawyer, said he also intends to reintroduce a jury nullification bill when the legislature enters its 1997 session.
``I think it's good law, and I intend to introduce it again,'' he said.
His first attempt didn't make it to the House floor. ``The bill never saw the light of day. They bottled it up in committee,'' Longoria said.
That is generally what has happened in all 22 states where the legislation has been introduced.
Opposition, however, has been largely muted and the bills were often ignored rather than criticized.
Tom Musterman, director of jury studies for the National Center for State Courts in suburban Washington, said of potential critics, ``I don't think they think it's that serious.''
And officials at the American Bar Association said they did not believe the legal organization had ever taken a position on jury nullification.
``Let the first one go through [a legislature] and that will change,'' said Musterman.
And nullification advocates said that's inevitable.
The Fully Informed Jury Association was born in the small town of Helmville, Mont., in 1989. It has grown to chapters and state coordinators in 44 states and the District of Columbia. There are members in other states, as well.
It has attracted a wide variety of people.
There are liberal and conservative Libertarians, tax protesters, marijuana supporters, militia members and a variety of others who are disaffected by the government.
There are also members from the middle of the spectrum, such as auctioneer Lorianne Horner, Oklahoma state coordinator for the Fully Informed Jury Association.
``There are people involved in the movement for a wide variety of reasons,'' said Horner of Oklahoma City. ``I'm not anti-government. I'm not an anarchist. I'm just the mother of two kids with a three-bedroom house.
``One of the reasons we have gotten so far,'' she said of the group's efforts in Oklahoma, ``is that we've not gone out and said, `You're wrong and the government is wrong.'''
The group's co-founder, Don Doig of Helmville, Mont., said, ``It's getting to the point where even without getting legislation passed a lot more people are becoming aware of their rights as jurors.''
That awareness may go up another notch next May. At least one member of the Fully Informed Jury Association intends to distribute 50,000 leaflets at the federal courthouse in Lawton, Okla., during the trial of the two men accused of bombing Oklahoma City's federal building.
Although Key and Horner do not link jury nullification with the defendants in the bombing case, another member of their organization does.
The California coordinator, Oklahoma native Jim Harnsberger of San Diego, said enough questions have been raised about the case that prospective jurors need to know they can vote the way they see the case and not just how the judge sees the law.
Even without nullification laws, he said, jurors cannot be punished for voting their consciences.
That hasn't been done since a British judge tried to withhold food and water from a jury that refused to find Quaker William Penn guilty of preaching before an illegal assembly.
The jury just said no.
by CNB