by Vin Suprynowicz
APRIL 22, 2001
A reporter for Colorado's Aspen Daily News coined an interesting phrase in a March 14 article, forwarded by the kind folks at the Jury Rights Project (http://www.levellers.org/jrp/)
It seems a 43-year-old local ski instructor named Jerry Begly former member of the Army Special Forces and a Second Amendment advocate had received a summons to appear for jury duty at Colorado's Pitkin County Courthouse March 9.
Mr. Begly reported as ordered, but was promptly dismissed from the jury pool and ordered to appear five days later to "show cause" why he should not be held in contempt of court, after he was spotted passing out leaflets to other prospective jurors in the hallway before jury selection started.
The pamphlet Mr. Begly was handing out was a widely circulated palm-sized booklet containing quotations from the founding fathers and such past U.S. Supreme Court justices as Oliver Wendell Holmes and Samuel Chase, on the subject of jury powers.
This "Citizens' Rulebook" also contained "unattributed quotes, such as 'The only power the judge has over the jury is their Ignorance!' and 'One juror can stop tyranny with a "Not guilty vote!" ' " reported Aspen Daily News Staff Writer Rick Carroll.
The ski instructor, who told the Daily News he's for "far less government," complained his free speech rights had thus been infringed.
The follow-up story came on March 14, under the headline: "Judge drops charges in jury leaflet case." Summarizing what had gone on to date, reporter Carroll told his readers Mr. Begly had been "dismissed from jury duty last week for handing out constitutional propaganda to juror candidates."
Isn't that a delightful phrase: "constitutional propaganda"? One imagines some basement room full of clattering old mimeograph machines, where a sneering, modern-day Joseph Goebbels or should that be Tom Paine? holds court, masterminding a sinister scheme to convince the American people they're actually supposed to be living under a form of government where the judges, bureaucrats and other functionaries have powers sharply limited to those specifically listed, while the people at large including citizens called to sit on juries have the freedom to say or do anything they please, so long as it's not specifically banned by written law.
Talk about a subversive notion!
As it turned out, rather than grant Mr. Begly the public forum he was so anxious to exploit, local Judge Erin Fernandez-Ely found discretion to be the better part of valor, ruling, "In the interest of judicial economy, the hearing is vacated and the juror discharged from any obligation with respect to this case and this Court." Case dismissed.
"A juror is required to follow the law as instructed by the Court," Judge Fernandez-Ely went on to assert, having safely buffered herself from having to confront the very citations from our founding fathers which refute that erroneous doctrine.
It was in Colorado, of course, where the now famous case of obstinate juror Laura Kriho unfolded a few years back. After the suburban Denver jury on which she was serving had withdrawn to the jury room, Ms. Kriho had the nerve to violate the judge's "orders," discussing the sentence a young woman might receive if convicted on a minor drug charge, and also questioning the reasonableness of such drug laws.
A fellow juror snitched on Ms. Kriho.
In that 1996 case, District Court Judge Kenneth Barnhill dismissed the jury and declared a mistrial (though Ms. Kriho had been given no chance to try to win over other jurors to her perfectly reasonable point of view.) Laura Kriho was put on trial for contempt of court apparently for failing to leap to her feet during jury selection and announce she opposed the Drug War (though it turned out no one had specifically asked her about that.)
Denied the jury trial she's guaranteed by the U.S. Constitution, Ms. Kriho was convicted by one of Judge Barnhill's brethren of the Gilpin County bench, but that verdict was finally dismissed on appeal last year.
The D.C. Court of Appeals held in the 1972 Vietnam draft case U.S. vs. Dougherty that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions from the judge. Most often commended are the 18th century acquittal of John Peter Zenger on charges of seditious libel [the case that gave Americans our freedom of the press] and the 19th century acquittals in prosecutions under the fugitive slave laws."
The problem comes when we're asked "What specific statute gives juries the right to disobey the judge's orders and acquit just because they think the law is bad, or has been misapplied?"
There is no such law, of course. Neither can you find a law that says you have a right to fly a kite, or walk your dog. The problem here is the very notion that there must be a law to allow us to do something, when in a free nation we should be taught from childhood a different paradigm, a different "default setting" that we citizens are free to do anything not specifically prohibited (and that the government is further sharply limited in the range of things they can even seek to regulate or ban.)
No law allows the government to appeal or overturn a jury acquittal, nor for any juror to be questioned by authorities, or charged or punished in any way for voting to acquit, even if the judge sits there in all his solemn majesty and says: "This jury is instructed to convict: I am giving you no choice."
It's all one big bluff. If you ever sit on a jury deciding the fate of a fellow citizen who you believe is being railroaded for nothing but angering a bunch of smug bureaucrats that he or she has never really harmed anyone try it. Acquit on all charges. You can, you know.
For further information on the Fully-Informed Jury movement, check out the web site http://www.fija.org
Vin Suprynowicz is assistant editorial page editor of the
Las Vegas Review-Journal.
The Law and Litigation
26 apr 2001