I have long followed the work of the Fully Informed Jury Association. Here’s a brief explainer.
The authority of the jury is one that is preventative and defensive and negative, but not restorative of the lost rights of a people. Restoration of a free people comes from elsewhere. If a jury protectively bars a law’s being used against an innocent man, it restrains the magistrate in his revolution against law and liberty.
The jury represents the biblical idea of the power of the common man. Christianity, unlike any other system in human history, elevated the ordinary citizen, the value of ordinary callings before God, the authority of a man over his own soul by meeting with God personally and directly. So it is natural that the courtroom jury is an important place where the commoner stands against the mighty, where the ordinary soul tells an ambitious or seditious king: “No — you go no further.”
Juries serve for ordinary and routine justice and the maintenance of the courts and the magistracy. They are part of the concept of liberty under law, where the freedom to own property and enter into contracts is protected by the enforceability of men’s words, agreements and promises, and their persons held inviolable as against rape, pillage and fraud. Courts and state are combined as being one of God’s ministries. That is of the sword. A distinct ministry is the church, the ministry of grace. Its charge is positive — the building of Christian civilization and culture. Whereas the work of reformation — from church, family, culture — is active, offensive and constructive, the sword is defensive. It protects the free operation of these spheres. Juries then are defensive and protective.
Extraordinary times call for jurors to defend the victim
Apart from dispensing routine justice, juries serve to protect the innocent against the tyrant. It is that end that jury rights laws are passed or proposed. New Hampshire recently enacted into its statutes a jury rights law.
In Georgia, state Rep. Charles Gregory, a Republican from Kenesaw, has filed a bill that ensures jurors are made aware of their authority (everyone calls them “rights”), particularly their power of nullification. Jurors vote to turn a given law a nullity and nonentity in any criminal case gone awry or premised on an evil law.
“As a juror, it is your duty to protect our citizens by sending criminals to jail,” Mr. Gregory told a newspaper. “However, if you believe the defendant is being prosecuted under an unjust law, you have the right, and the constitutional and moral obligation to protect the defendant from tyrannical government and acquit.”
“The freshman lawmaker described the procedure as a powerful, underutilized final check-and-balance measure that citizens have against the arbitrary exercise of power ‘from an out-of-control government,’” the newspaper said.
The Fully Informed Jury Act of 2013, House Bill 25, is premised on a Georgia Constitutional provision in Article 1, “Rights of Persons,” section 1, paragraph 11:
Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate , except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts. (italics supplied)
Seeing that judges and attorneys often boot potential jurors during the “voir dire” process of selecting jurors, Mr. Gregory wants to prevent such dismissals. “This bill simply seeks to ensure that jurors are fully informed of their constitutional right to judge both the facts and the application of the law and not excluded from serving on a jury for the simple reason of being aware of this fundamental right,” he told the Marietta Daily Journal.
Defender of system imposes his own veto
Critics of the provision say that jury nullification and jurors’ knowing their rights brings unpredictability into the law. The concept of jury power brings an element of personal opinion into jury rulings, they say.
A critic of the Fully Informed Jury Act is Tom Cauthorn, a Marietta attorney who has practiced law for 40 years, served in the Georgia House of Representatives and worked a s a state court judge and as a Cobb Superior Court judge.
“The jury is required to evaluate the credibility of witnesses on taking the facts, but it does not evaluate the credibility of the law that it takes from the court because the law in terms of statutory law is a product of the legislature and the executive branch of government, and the law as it relates to common law principles is a product of the highest appellate court and majority opinions under the concept of ‘stare decisis’ and binding precedent, so juries in the United States have never been permitted to disregard the legislature’s acts or to disregard the case law, the common law in applying the facts to the law,” Mr. Cauthorn says.
“He’s contemplating applying it to people who are being sued or to defendants who are being charged with crimes, and he thinks that it will benefit defendants because it will give them more opportunity to be free and independent people, but the truth is it will damage the standards of behavior and conduct because nobody is going to be able to tell whether or not what they’ve done is a crime because the standard to be applied can be ignored by the jury as it nullifies the law,” Mr. Cauthorn says. “It undermines the predictability.”
From the extended way he is quoted, it is clear Mr. Cauthron is a well-read and contemplative man interested in the predictability and reliability of the law. He wants to preserve the ancient blessings inherent in many parts of American law. He doesn’t want thieves to escape punishment because jurors empathize with him by race. He doesn’t want a murderer freed because of prejudice on the part of a jury. He doesn’t want jurors doing outside reading on a case and base a decision on material not entered into evicence.
Mr. Cauthron is right to say that imposing jury nullification in civil cases would make litigating civil disputes almost impossible. But jury power is not a threat in business disputes. The impetus for jury rights and jury nullification by groups such as Fully Informed Jury Association in Montana is the blockading of tyranny in a criminal case where the moving party is a state-employed criminal prosecutor or a district attorney suing in civil court. It must be understood that when it comes to an evil law, people know how it works and that it is methodical and grindingly predictable. That is the problem that jury power solves. It makes such a machine-like law unenforceable, and makes prosecutors give up trying to harass the people with it.
And almost always, such dangers are in federal jurisdiction. But we contemplate our rights as jurors in our home state’s courts, because the understanding of jury rights transfers to federal court, even though U.S. district court judges are dead set against the concept.
John Gillooly, “Rep. Gregory files bill on jurors’ rights,” The Marietta Daily Journal, Jan. 16, 2013. We should be grateful this newspaper ran a detailed story about the bill and offered extended quotes from Mr. Cauthron.
Jury, American Jurisprudence 2d, Vol. 17, 2006, pp. 613-878