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September|October 2002
A Penny Saved By John Swansburg
Effective Command By Susan Benesch
The Disobedient Dozen By Josh Saunders
After the Rainbow By Megan Twohey
Go Dutch By Tom Geoghegan
The O.J. Effect By Wendy Davis

The Disobedient Dozen

By Josh Saunders

The Fully Informed Jury Association is a quirky little advocacy group based in Helmville, Montana—a town so small it wasn't even included in the last census. FIJA, which boasts roughly 3,000 supporters, is dedicated to the peculiar cause of jury nullification. In the words of one prominent FIJA activist, nullification is the conscientious "act of a criminal trial jury deciding to acquit in spite of proof of guilt beyond a reasonable doubt." As any trial lawyer will admit, rogue juries already vote with their consciences from time to time. But they're never supposed to, and FIJA wants that to change.

Proponents of jury nullification range from the left-wing Nation columnist Alexander Cockburn to the archconservative Republican congressman Ron Paul of Texas. The pro-marijuana magazine High Times recently embraced the cause by declaring the FIJA activist Bob Newland its "Freedom Fighter of the Month," while Paul Butler, an African-American law professor at George Washington University, supports jury nullification as a tactic for combating institutional racism in the law. FIJA even appears to enjoy some loose support from far-right militia groups.

Iconoclastic from the start, FIJA was founded in 1989 by Larry Dodge and Don Doig, two Montana residents concerned that government bureaucracies were growing less responsive to the will of the people. They saw jury nullification, in Dodge's words, "as a handle for the people to hold on to and steer the government." Dodge, a libertarian and picture-postcard photographer who holds a Ph.D. in sociology from Brown University, feared that the United States was "becoming a nation where power is applied top-down," and saw nullification as an important democratic check on the power of the government.

While jury nullification might seem close to lawlessness, FIJA activists insist that it involves a principled acquittal—a decision based on a fundamental objection to the law in question, a rejection of a punishment deemed excessive, or a conscientious sympathy for the defense. Bob Newland suggests that nullification is particularly well-suited to so-called victimless crimes like marijuana possession or violations of helmet and seatbelt laws.

Over the years, FIJA has spread its message by hosting seminars for defense attorneys, distributing pamphlets outside courthouses, and pushing promotional material like mugs and bumper stickers emblazoned with FIJA slogans ("Fully Informed Juries can rescue the Bill of Rights!"). The group has also sponsored legislative efforts in states such as Oklahoma and Arizona to force judges to inform juries of their nullification powers. All these efforts have failed: The bills usually die in committee, though some have passed one legislative house before losing in the other.

But FIJA's fortunes may be changing. Not long ago, Dodge suggested that a ballot initiative to amend a state constitution would be more effective than pushing for legislation. In South Dakota, FIJA members responded by leaping into action, and an organization that Newland runs called Common Sense Justice mounted a campaign that collected approximately 32,000 signatures—eight percent of eligible voters in South Dakota, enough to put the initiative on the ballot this November.

The initiative, dubbed Amendment A, doesn't mention juries at all. For tactical reasons, it frames the issue of jury nullification in terms of the rights of the accused. According to the proposed amendment, the accused have the usual Sixth Amendment rights—the right to a speedy and public trial, to be confronted by the witnesses against them, and so on—as well as an additional right to "argue the merits, validity, and applicability of the law, including the sentencing laws." Unlike FIJA's failed legislative efforts, Amendment A doesn't force judges to instruct juries of their nullification powers. Instead, it allows defense attorneys to introduce information that might encourage a nullification verdict. "It's a backdoor to jury nullification," Newland explains.

Opposition to Amendment A has swelled rapidly. The South Dakota Trial Lawyers' Association and the State Bar Association have each released statements opposing the initiative. Jim Leach, a South Dakota lawyer who has publicly debated Newland about Amendment A, argues that the initiative defies the basic principles of the American criminal justice system. "We have a government of laws, not of people," he says. "The alternative to a government of laws is a system of vigilantism. This amendment is an attempt to do just that—to make the law what each person thinks it should be, rather than one system of laws for all."

The Supreme Court appears to side with Leach. In 1895, the court clarified its position on jury nullification in Sparf et al. v. United States, a case concerning the murder convictions of two sailors. In its Sparf opinion, the court acknowledged that juries have the power to nullify—because of the Constitution's double jeopardy clause, an acquittal by jury is final, no matter what criteria the verdict is based on—but explicitly declined to recognize a right. If juries had the right to nullify, Justice John Marshall Harlan wrote for the majority, "counsel for the accused may. . . contend that what the court declares to be the law applicable to the case in hand is not the law."

To nullification activists, the Sparf decision was a miscarriage of justice. Nullification, they claim, was part and parcel of the American criminal justice system until the late 19th century, just as the Founding Fathers intended. (One FIJA board member, Clay Conrad, makes this argument in a scholarly book on the subject, Jury Nullification: The Evolution of a Doctrine.) As an early example of nullification in action, supporters cite the famous 1735 trial of John Peter Zenger, the German printer accused of publishing libelous statements about the colonial governor of New York. The trial judge insisted that the jury could rule only on the factual question of whether Zenger had actually printed the papers, leaving the decision about their libelous nature to the court itself. The defense, however, argued that the jury ought to determine both the facts and the law—and it carried the day. Though the defense admitted from the start that Zenger had printed the papers, the jury found him innocent.

By the time of the American Revolution, Larry Dodge argues, nullification was commonly accepted as a tactic for limiting the potential tyranny of the government. "The jury was designed to have a political function, not just a judicial function," he says. A FIJA pamphlet designed for prospective jurors invokes the words of John Adams and Alexander Hamilton to bolster its case. In 1771, Adams wrote that "It is not only [the juror's] 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." Hamilton, acting as a defense lawyer in a libel case in 1804, argued the point even more forcefully, stating that "it is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent."

FIJA's historical case may seem compelling, but its arguments have been vigorously challenged. In an article in the Spring 2000 Case Western Reserve Law Review, David Pepper, then a clerk for the Sixth Circuit Court of Appeals, asserted that nullification activists and scholars have fundamentally misinterpreted the powers that juries had before the Sparf decision. Early American juries had the right to "decide the law," Pepper concedes, but that right was "neither equivalent to today's proposed right to nullify, nor did it encompass the right to nullify." In the Zenger case, for instance, the defense argued that the judge was merely misinterpreting the law, and didn't propose rejecting the law altogether. Pepper also disputes the claim that men like Adams and Hamilton called on colonial juries to act as legislators to veto unpopular laws; rather, he argues, they expected juries to act as judges who might interpret the law differently than the trial judge.

In addition to debates about FIJA's case on its scholarly and practical merits, there remains some question about FIJA's political ideology. The "Militia Watchdog" website of the Anti-Defamation League lists FIJA as a group to be concerned about, though the ADL doesn't go so far as to label FIJA a militia group. Travis McAdam, a researcher with the Montana Human Rights Network, says that "in our work looking at the so-called Patriot movement, we come across FIJA fairly regularly"—though he doesn't consider FIJA a central force in the movement. FIJA's close association with the cause of jury nullification, McAdam explains, and not FIJA itself, is the primary source of its appeal to right-wingers. Still, he claims that a number of people on the FIJA Board of Directors do have "lingering connections to extremist movements." One member is married to a former Ohio militia leader, he says, and another was kicked off Pat Buchanan's presidential campaign for alleged ties to white supremacists.

Larry Dodge protests that FIJA's image has suffered from misleading press coverage. "Every time a controversial movement comes along and discovers that jury nullification might be able to help its cause, they latch on to it," he explains, adding that other groups often mix FIJA literature with their own and thus compromise his organization in the public eye. That said, Dodge admits that he got the idea for jury nullification from Red Beckman, a notorious tax protester in Montana known to the ADL and others for his anti-Semitic views. And though Dodge maintains that FIJA and Beckman have since gone their separate ways, he also admits that people with explicit militia ties or right-wing fundamentalist Christian politics have worked with FIJA in the past—though he stresses that they were later asked to dissociate themselves from the group. "We have never and still do not take sides on any substantive issue," he says. "We can't afford it. We are a process-oriented group looking for the jury system to be restored to its full glory."

A case of guilt by association—or just a bad rap? Come November 5, the people of South Dakota will deliver their own verdict.

Josh Saunders is a writer living in New York. He has written about politics and culture for Lingua Franca, Feed, and other publications.

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