FULLY INFORMED JURIES AFTER ACKNOWLEDGEMENT OF THE FACTS?

An invitation to comment upon a new twist in proposed FIJA bill language

by Larry Dodge

        The bill language which is the subject of this discussion (see below) is tentative wording for a new type of FIJA legislation.  It is based on the assumption that most cases suitable for jury nullification do not involve a "factual" defense, where the accused is trying to convince a jury that he/she "didn't do it".

        Accordingly, the bill's first section is designed to provide fully informed juries for those defendants who don't want to contest the "facts", but want to argue that the law itself is wrong, or wrongly applied.  They may be facing trial for a victimless crime, for a criminal action as a result of entrapment, for civil disobedience, or for a commission of a crime morally justified by circumstances.

        The second section parallels the first, and is for defendants in civil actions who believe the actions of which they are accused should not entail liability on their part, even in those cases where the letter of the law favors the plaintiff.  Or, it may be of value to individuals obliged to litigate against the government in order to retrieve monies or property levied, liened, or forfeited.

        FIJA activists have long argued that these and similar kinds of cases are the ones where fully informed juries would be most likely to nullify, and where nullification would also be most appropriate.   This is because these are the kinds of actions which can roughly be lumped together as "political", in which the government plays the roles of both victim and enforcer, often without paying sufficient attention to whether justice is being served.

        It is thus in these types of actions where judgment of the law as well as the facts is most needed--if the laws of this land are to remain an expression of the will of the people, and if we, the people, are to remain in control of our government.

        Previous forms of proposed FIJA legislation, because they would either require judges to inform all juries of their nullification power, or would enable attorneys to inform them at will, have met with strong resistance: the opposition (prosecutors in particular) have been able to argue effectively to legislators that passage of such a law would enable dangerous criminals to "go free".  They characterize such bills as a means by which the facts of a case could become obscured by emotional appeals made by the defense, enabling harmful criminals to return to the streets and continue to victimize people.

        While that is very unlikely, because juries inevitably realize that part of their responsibility is to protect their communities from harm, it does have the desired scare effect upon lawmakers, and the FIJA bill in question dies, no matter how nicely worded it may be, and no matter how much its proponents insist that it would be of much more benefit than cost to society.  It is always easier to kill a bill than to get one passed (thank heaven, in most cases!), and instilling fear is a traditional way to perform the execution.

        The new bill language is therefore aimed not only at limiting the instances where juries are told about their nullification power by the court to cases where it is most needed and appropriate, but in so doing making it much more difficult for opponents to scare lawmakers with imagined consequences.

        The "homework" for this bill was done by paralegal Kaylin Robinson who, after recovering from a terrible automobile accident, is back on the job as co-coordinator of Utah FIJA.  It stems from a thought I have entertained since FIJAcon III (which Kaylin helped organize) where one conferee wondered, during a question and answer period, if there might be some way to "give the FIJA instruction" only in victimless crime cases.

        Of course, that would leave it to the politicians to decide which crimes those were, with a high probability that none would make the cut, precisely because to admit that a crime without victims is on the books is to acknowledge that it is indeed a "political" crime, where only the government is offended by the criminalized action.

        Even if such a distinction could be made, and acknowledged in law, many cases where a fully informed jury would be needed for justice would be left out, including all of those cases where a law "with victims" is wrongly applied, or where the accused was persuaded to act criminally by government agents, or where the morality of the situation required acting in such a way that a victim did result (such as consensual euthanasia of a dying relative).

        But the point was a good one: is there a way to "focus" on those cases where jury nullification might produce justice, when a fact-based verdict likely wouldn't?  It occurred to me that the proper entity to make that decision was neither the legislature nor the court, but the accused individual.  Is there some way a defendant could declare to the court that he would not contest the evidence against him provided he could then argue the law itself, morality, and/or whether justice would be served by applying the law to him?

        Such a declaration would have to be made early on in the procedure, so that there would be no surprises for the judge or the attorneys on either side, no unwitting waivers of rights by the defendant, no new kinks put into the regular processes of arraignment, pleading or plea bargaining, of binding a case over for trial, voir dire, presentation of evidence and arguments to the jury, deliberations, delivery of the verdict, sentencing, etc.

        That is why I asked Kaylin to research the possibility of altering, by legislation, the results of pleading "no contest" (in Latin legalese, nolo contendere), so that making such a plea would do more than preserve the right of a defendant later to deny that the charges against him had been proven.  Could a FIJA bill expand the result of a "nolo" plea to include the option of facing a trial by a fully informed jury, to whom the defendant could then argue the law, or the morality of his actions in violation of the law, or otherwise defend himself on grounds other than "I didn't do it"?

        Kaylin says the answer is "yes".  There is no constitutional limit on what pleading "no contest" can entail--in fact, in recent years, many states have taken to treating "nolo" as merely another way of pleading guilty, so its meaning can clearly be altered by statute or usage.

        In Utah, for example, the statute regarding criminal pleas refers to "no contest" as one of several options (not guilty, guilty, no contest, not guilty by reason of insanity, or guilty and mentally ill).  It also explains what comes after a plea is made, according to which plea a defendant enters.

        But it also says "a defendant may plead no contest only with the consent of the court".  So the first provision in a bill like the one under discussion here, in Utah or any other state which has a similar "permission" clause, would have to be to strike that clause entirely.

        However, there is a good reason for "nolo" pleas to require consent of the court: by enabling some kinds of defendants to avoid proof of criminal guilt from being used against them in any subsequent civil actions, the public interest may be harmed; for example, in a price-fixing case.  Moreover, as Arizona attorney and former Libertarian Party gubernatorial candidate John Buttrick has pointed out, one simply cannot plead "nolo" in a civil action.

        These considerations, however, call only for a semantic solution -- the coinage and definition of another term by which to name the proposed procedure.  At least temporarily, then, we are choosing to speak of filing an "Acknowledgement of Facts" with the court, prior to trial, after which the party making the acknowledgement would be entitled to have his case heard by a fully informed jury, and to argue law, morality, circumstances, whatever, to that jury, instead of "just the facts".

        If you think this sounds good, you're not alone.  I think so too, and some, but not all, of those have reviewed early editions of the proposed language concur.  In addition to the advice just mentioned, John Buttrick has provided constructive criticism in several instalments, most of it incorporated into the edition presented here.  He concluded his initial remarks by saying, "All in all, I think this is an intriguing idea.  It may go a long way towards making the whole FIJA concept a bit more palatable to state legislatures."

        On the other hand, board member Patricia Michl and Lone Star FIJA coordinator Tom Glass came up with a substantial list of reasons why not.  I urge you to read their remarks carefully, because what is needed ASAP is debate, and you're invited.  Time is of the essence, because a number of state jury-rights groups are looking for pros and cons, along with suggested edits, in time to put together the best possible bill for introduction in their state's 1998 legislative session (or, if too late, in the 1999 session.)

        Here follows a summary of the "arguments against" that Michl and Glass have made.  I've done my best to paraphrase their thoughts without distortion, and hope I've succeeded.  First, Patricia Michl:

1]  The new bill violates due process.  Every defendant, including those accused of a crime involving a victim, has a right to a fully informed jury, not just those willing to admit the facts.

2]  Likewise, every jury has a right to be fully informed.   This bill would limit the jury's right to act independently, to put the law on trial in any and every type of case.

3]  This bill could actually hurt the chances of a defendant who opts for it, then wishes to adjust tactics in mid-trial if, e.g., he learns that the evidence against him is weaker than he thought.

4]  Alternatively, it could hurt the chances of a defense team which has opted for a factual defense, then learns during trial of some mitigating circumstances -- but is now prohibited from presenting them to the jury.

5]  Prosecutors will fight a bill which allows defendants to choose the type of jury he/she receives just as hard as they fight our current bills, and will do whatever it takes to "cheat down" any standard it sets.

6]  Most legal professionals will oppose this bill, because they're so well nourished by the status quo; we therefore have nothing to gain by lowering our sights or relaxing our principles.  "The answer is to continue our principled, constitutionally correct
position..."

Now, Tom Glass:

1]  The new formulation doesn't really overcome the objections we get from lawmakers, who (a) don't want to share their power with the people; (b) believe jurors would let people go that should be jailed; (c) are steeped in tradition, believing jurors should judge only facts, and leave decisions about the law to lawmakers; and (d) are convinced that "anarchy" would prevail if jurors were fully informed.

2]  Since the new formulation has no historical basis, we cannot even argue that FIJA represents the "real" tradition of jury function.  The new bill may prove to be unconstitutional, because to get a right to a fully informed jury, the defendant would have to self-incriminate;

3]  Perhaps some jurors who now tell themselves that their "not guilty" vote was based upon reasonable doubt, when in fact it was a nullification vote, may vote to convict if they're forced to acknowledge that a vote to acquit may be considered a statement of opposition to the law itself;

4]  "I'm not convinced that a new or reformulated product is needed.  What I think we need is a marketing campaign that will allow us to go around or over our opponents."

I sent these objections and opinions to Kaylin, and between her responses and mine, I think we can provide readers food for thought -- and, hopefully, for response.  Proceeding in the same order as the objections have been presented above, here are some of our thoughts, starting with our responses to Pat Michl:

1]  Is due process violated?  Hardly, as long as the choice of which kind of defense to make is up to the defendant.  The degree of "due process", when one gets right down to it, can be thought of as the range of options open to the accused by which to defend himself.  The new bill would extend those choices beyond what are now available, which is the choice between plea bargaining, a bench trial, or trial by an uninformed jury.

2]  Is the right of the jury to be fully informed infringed?   The jury only has "rights" with respect to the defendant's right to judgment by jury.  If the defendant chooses to appeal to the power of the jury to judge him according to conscience, then and only then does the jury have a right to be "fully informed", as we use the term.  And even if one does argue that juries have "rights" independent of those derived from the defendant's right to have his case heard by a jury, then, as Kaylin puts it, "If all juries have these rights, then some juries have these rights, as well.  Better to tell some juries about them than none ... and if we succeed in getting this far, perhaps later we can either get legislation to fully inform all juries, or achieve that goal by litigation."

3]  What about a defendant who learns in mid-trail that the evidence against him is weaker than anticipated, and wishes to resort to a "factual" defense?  Kaylin puts this into good perspective: "I submit that if a lawyer walks into a trial without this knowledge in advance, he shouldn't be paid.  Discovery is an inherent right of the defendant and the lawyer is bound to find out all he can before he stands in front of a jury and argues, and in a criminal case, the prosecution must by law provide the defense its case in its entirety."

4]  What about mitigating circumstances?  Likewise, the prosecution is required to disclose to the defense team all mitigating circumstances, or its case is in jeopardy of being dismissed or overturned on appeal.  If the defendant doesn't want to risk having the jury reach a verdict based entirely on consideration of these circumstances, he can opt for a trial based strictly on the evidence, including mitigating circumstances, and try to stress them, so that even a jury which does not receive information about its nullification power may be moved to acquit, or to hang.   The new bill certainly does not prohibit this kind of a defense, which may indeed aim to get jurors to "hang their hat" on a factual point or two about which they have "reasonable doubt", acquitting without acknowledging to themselves that it was really a verdict according to conscience.

5]  Won't prosecutors fight a bill which allows defendants to "choose" the type of jury they receive?  Perhaps, but there is also reason for prosecutors not to object to the bill.  It would reduce the work they have to put into proving a factual case, and they could then concentrate on explaining to the jury why the law at issue is a good law, appropriately applied, and needs to be uniformly enforced.

6]  What about opposition from other legal professionals?  It may be true that, as now, opposition will not be confined strictly to prosecutors.   But we have very little to lose by finding out.  Kaylin believes that defense attorneys might like the new bill because "many times [they] would love to have some other option besides plea bargaining when they don't feel they can win, given the evidence ... where the only chance of winning is the possibility of an acquittal by nullification."

        Our responses to the objections raised by Tom Glass are as follows:

1]  Would the new bill overcome the same old objections we get from lawmakers?  No "fully informed jury" bill is going to garner the approval of elites who don't want to share their power with the people, but it's worth trying to find out if some of the other objections might fall to the new logic.  The logic here is that "If we always do what we've always done, we'll always get what we've always got."  So, there is very little to lose, perhaps especially in states where FIJA legislation has not yet been proposed -- thus where the new language wouldn't trigger the same old objections.

2]  What about the inability to argue that the new bill has a historical basis, which can be said of earlier bills?  Actually, even the earlier bills are "novel" in that they ask that a "lost tradition" of telling juries about nullification be made binding, which it never was, even in the distant past.   Some FIJA bills come closer to matching historical reality when they speak of "enabling the defense" to inform the jury.  But when one considers the millions of laws we are now saddled with which have no basis at all in the past, one wonders what strategic value there is to arguing that we should "restore" the power of the jury.  Wouldn't it be just as persuasive to argue that we need to "upgrade" jury function to cope with the current situation?

What about the argument that it would be unconstitutional to require that a defendant admit to the facts in order to get a fully informed jury?  This isn't really any different from admitting to the facts in order to get a plea bargain, or pleading "no contest" just so that it cannot later be claimed that guilt was "proven".  Note, the new language does not require that the defendant plead guilty -- just "acknowledge one or more facts".  As long as the choice of how best to defend himself is left to the defendant, it's hard to argue that individual rights have been violated, especially considering that none of the choices now available would be "traded away" by making the proposed new option available.   Besides, the only people who would opt for a jury trial and verdict "according to conscience" would be those who'd expect to be found guilty on the basis of the evidence, and they're not going to claim their rights were violated because they were given another possible way to escape being punished!

        Kaylin also adds some points to consider that are not directly addressed by the objections or the responses above.   For example, she says "in many civil cases, commonly called 'nuisance suits,' lawyers are faced with the decision either to settle and save costs for the client, or seek real justice.  Because there is currently no way for the client to say to the jury, 'yes, but...', and then explain why the law should not apply, it costs less to settle than to defend, and the result is that injustice too often prevails."

        Also, if we want jury nullification to have its full political effect as a source of public commentary upon the law, as the "check and balance" we tout it to be, the only way to achieve it is to hold trials where judgment of the law itself is clearly the basis for the verdict. In today's courtrooms, that message can only be inferred; at best, an educated guess can be made from post-trial interviews with jurors, and after many trials of a similar kind come out the same way, generalizations may be attempted.

        But if at least some trials were conducted in accordance with the new proposed bill language, most lawmakers, police, prosecutors and judges serving within the same jurisdiction of the court would come to regard the verdicts in those trials as public opinion polls upon our laws.  Their job descriptions and job incumbencies would depend upon it.  Insofar as the foremost goal of FIJA is to promote a new harmony between the laws of the land, enforcement of them, and the will of the people, shouldn't we give the new language a try?

        Well, activists, there you have it--an intriguing and novel idea for FIJA legislation facing a list of well-considered objections and rebuttals to those objections.  Let the debate continue!  Send me your thoughts!

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