It started out as a case of mistaken identity, and concluded with four lives ruined and a legal morass. As first reported in New Times of Phoenix, Arizona, U.S. marshals David Dains and Garry Grotewald were hunting for a 69-year-old man named Mickey Michael on April 7, 1988. The marshals turned up at the Phoenix residence of Bill and Virginia Span, aged 74 and 72, looking for Michael. The Spans had a son of that name, though he was only 39. When the fragile old man asked to see a search warrant, Grotewald, a burly 220-pounder, shoved him against a wall. Meanwhile, Dains tore the house apart. Span, left weeping on the kitchen floor, suffered contusions and other minor injuries. He died two months later.
The marshals next showed up at the family business. Shown a picture of Michael, the Spans' daughter, Darlene, advised them that it was not her brother. Her brother Jerry said the same thing. When Grotewald threatened his sister, Jerry told them to leave and turned around to wait on customers. At this, the Spans claim, Grotewald attacked Jerry, who weighed 130 pounds, while Dains lunged for Darlene, pulling her hair and smashing her face into a fence before falling with her to the ground.
Another Span brother, Pete, tried to take pictures of the assault; Dains allegedly snatched one roll of film and destroyed it. Pete ran from the marshals with a second roll; one photograph on it clearly showed Dains choking Darlene. When their elderly mother turned up with a Polaroid, both marshals went after her, hauling her by the neck, bending her arm behind her back, and finally flinging her to the ground. Grotewald later claimed that Mrs. Span had bitten him. However, Mrs. Span has no teeth. He later blamed Jerry for the teeth marks. His wound evidently came from the Spans' dog during the earlier altercation at the house. Mrs. Span, apparently at least in part as a result of her injuries, is no longer able to drive or read.
There were customers who saw the whole thing and who unanimously told New Times that the Spans were innocent: one said they "had their backs turned to the marshals when they blindsided them. Darlene and Jerry never knew what hit them." But these customers weren't interviewed by either Phoenix police or marshals before they decided to prosecute Jerry and Darlene Span for their alleged assault on Dains and Grotewald.
A letter from another U.S. marshal to the prosecutor in the case pointed out that both men were known for starting fights like this one. The judge refused to allow the letter to be used as evidence for the Spans, and he instructed the jury: "Federal officers engaged in good faith and . . . performance of their duties may not be forcibly resisted, even if the resister turns out to be correct that the resisted actions should not, in fact, have been taken. The statute requires him to submit peaceably and seek legal redress thereafter." (The Spans were right: the marshals wanted a different Mickey Michael.)
Although they thought the marshals were at fault, the jurors felt legally obligated to convict the Spans because of the judge's instructions. Shortly after the trial five jurors asked that the Spans be given a new trial, because they believed they'd been misled by those instructions. Their petition was turned down.
The Spans are appealing the verdict, hoping the U.S. Supreme Court will hear the case. They've also filed suit against Dains and Grotewald, who in turn have filed suit against them. The legal costs are huge and still growing.
It was all unnecessary, argues a group called the Fully Informed Jury Association: had all the evidence been introduced and had those jurors known that it was their right--through centuries of English common law and through the Constitution of the United States--to judge the law, the Spans would not have been convicted. FIJA wants to make it the law in every state that judges must inform juries that they can vote their conscience.
Some of the legal points and arguments FIJA makes are undeniably arcane. But, they say, without their proposed law our liberties will continue to be undermined.
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. --John Adams, 1771
We take a lot of rights and privileges for granted in this country, among them the right to a trial by jury, though this right exists only in Britain and its former colonies. Other countries have panels of judges and "expert juries," but they're not the same as juries of one's peers, and they're no check on a government's power when it has an interest in convicting. According to FIJA, a small but increasingly vocal group, trial by jury is under attack in the United States in several ways: in what juries are allowed to judge, what they're allowed to hear, and how they're allowed to rule.
The trial by jury originated in English common law as a device whereby Norman overlords might ascertain the truth for purposes of (predictably enough) taxation. The first juries were of neighbors gathered to testify as to, say, the size of the harvest a farmer might reasonably be expected to have brought in the previous fall. The Lateran Council of 1219 abolished trials of water and fire as a means of establishing guilt or innocence (some victims of our own litigious society might be pardoned for questioning whether this constituted an improvement), and the trial by jury came into its own. It is a basic right in English-speaking lands.
In its early forms a "jury of one's peers" was exactly that: men of the same social class, selected in part for their knowledge of the accused and his character--indeed, the first jurors were likely to be witnesses of the crime. Through the years the law has moved away from this model to its opposite, to a jury that knows as little as possible about the accused and has few or no preconceived notions about the case. Where the yeomanry of earlier centuries knew whether an accused thief had had sticky fingers since childhood, today even such facts as previous convictions for similar crimes are suppressed in court. And knowing too much about a case (a potential problem for people who read newspapers) often constitutes grounds for dismissal from a jury. These standards present real, practical problems in securing a fair trial for a well-publicized felon, like Jeffrey Dahmer or John Wayne Gacy.
Originally juries were expected to judge the law itself as well as the defendant. Someone who was unquestionably guilty of a bad or unjust law might walk, thanks to a jury that voted their conscience. In 1670, for example, William Penn broke the law of England by preaching a sermon based on Quaker principles. His jury refused to find him guilty, even after being held as prisoners themselves, without anything to eat or drink, without anything resembling a lavatory. Four of the most obdurate were locked up for over two months. But they enjoyed that rarest and most satisfactory of results: vindication, in the form of an acknowledgment by Britain's highest court that the government can't punish jurors just because they turn in an "unsatisfactory" verdict. Those long-suffering jurors established, for English common law, the basic principle of jury nullification: "He may be guilty, but he's guilty of breaking a lousy law--and we're not going to convict him."
This principle arrived in the American colonies with British immigrants, and shortly before the outbreak of the American Revolution Alexander Hamilton got John Peter Zenger, who was charged with sedition, off the hook by arguing that the jury should let their collective conscience be their guide. Later John Jay, the Supreme Court's first chief justice, wrote in Georgia v. Brailsford (1794), "The jury has a right to judge both the law as well as the fact in controversy."
A century later the court, while still admitting that the jury could judge the law, saw fit to fudge on Jay's opinion, declaring that it was strictly the judge's decision whether the jury should be advised of their nullification right. A century after that judges routinely tell jurors that their only job is to decide the facts of the case and that they're obliged by the oaths they swear to accept the judge's interpretation of the law.
FIJA would like the courts to revert to the historic way of doing things. It has been pushing the Fully Informed Jury Act and the Fully Informed Jury Amendment since the group was formed in 1989. Active primarily in several western states, FIJA has been fairly somnolent in Illinois--a status that's about to change, its adherents promise, with the legislature's fall session, when they intend to make a major push for passage.
For more than six hundred years--that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. --Lysander Spooner, 1852
FIJA the amendment, which FIJA the association would like to see added to the constitutions of the 50 states, is short and to the point: "Whenever government is one of the parties in a trial by jury, the court shall inform the jurors that each of them has an inherent right to vote on the verdict, in the direction of mercy, according to his own conscience and sense of justice. Exercise of this right may include jury consideration of the defendant's motives and circumstances, degree of harm done, and evaluation of the law itself. Failure to so inform the jury is grounds for mistrial and another trial by jury."
FIJA the act is longer and considerably more involved. It starts out like the amendment, but it also goes into the question of evidence in greater detail and spells out the language the judge shall use to inform the jury of its rights. There's also a "maxi FIJA," a tougher version of the FIJA act. It's the Athanasian Creed to the amendment's Apostles' Creed and the act's Nicene Creed: more detailed, demanding, and didactic--and possibly more off-putting. It fences in judges and prosecutors more strictly than the act, going into excruciating detail as to how juries shall be instructed and specifying that "active disregard, disparagement, denial, or rejection of any of these provisions shall be construed as jury tampering, and be punishable as such."
The jury has the power to bring a verdict in the teeth of both the law and the facts. --U.S. Supreme Court justice Oliver Wendell Holmes, Horning v. District of Columbia (1920)
According to Ken Prazak, FIJA's Illinois state coordinator, the Fully Informed Jury Association was the brainchild of a group of libertarians from western states, but it quickly attracted a varied following of constitutionalists, tax resisters, hemp-legalization activists, populists, gun-rights activists, antilawyer groups, black groups (including chapters of CORE and the NAACP), and "a lot of people that have just had a very bad experience with the judicial system."
The local group has gotten off to a slow start, admits Prazak, though in several, mostly western states FIJA has persuaded governors to declare September 5 (the anniversary of the day in 1670 that William Penn beat the rap on his sermon) "Jury Rights Day." FIJA bills are also languishing in committee in several states.
The national group suggests that activists hang out at courthouses and distribute a basic yellow leaflet--"TRUE OR FALSE? When you sit on a jury, you have the right to vote your conscience?"--to all and sundry, including jurors and potential jurors. "We haven't handed out FIJA literature yet," says Prazak, "because in some states, people have been arrested for jury tampering when they did. We don't want people in jail until we have bail money for them. Of course if [a case] goes to court FIJA literature would be part of the evidence--and jurors would become aware of our arguments. So that could work in our favor."
In every state, says Prazak, FIJA is trying to pass either the amendment or the act. In Illinois the group will push for the act; this state's courts and legislature throw up too many roadblocks to popular passage of an amendment to the state constitution (witness the failure of the popular Tax Accountability Amendment).
Do Prazak and his colleagues believe that Michael Madigan is going to go for FIJA? Prazak laughs. "We want to go for the grass roots first--and impress on our legislators, including Michael Madigan, that it's in their best interests to support it. I think people are very distraught with government and our judicial system. Most people are very open to the idea of judicial reform.
"But the beauty of FIJA is that we don't have to win in the legislatures. We just have to win with juries. We have to let them know that they have the right to vote their conscience."
Jurors should acquit, even against the judge's instruction . . . if exercising their judgement with discretion and honesty, they have a clear conviction that the charge of the court is wrong. --Alexander Hamilton, 1804
In the view of Andrew Spiegel, an Illinois lawyer who was last year's Libertarian Party candidate for the U.S. Senate, the near-universal refusal of judges to tell juries about their full range of rights and responsibilities is in direct violation of the Sixth Amendment to the Constitution (which reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense"). It may not be clear to you or me where in that language the right of a jury to judge the law lies, but Spiegel and many other lawyers, including a number of judges, claim that anything based on English common law regarding juries, as the Sixth Amendment is, contains it as an inherent right.
Spiegel--who says he learned of this right while defending tax cases in court, not in law school--points to a 1931 Illinois Supreme Court decision that "gave legislative power to the jury" and to a 1969 case involving the celebrated war protester Daniel Berrigan. The judge's decision in that case reads in part: "Defendants were not entitled to . . . an instruction that the jury had power to acquit even if defendants were clearly guilty of the charged offenses. . . . We recognize . . . the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis on which they judge." But, the judge added, this constituted "lawlessness" on the part of the jury and should not be encouraged.
Spiegel says he's tried to use a Sixth Amendment defense in criminal tax cases, "and the court has uniformly refused to accede to such an instruction." In one case he argued it in open court in front of the jury, and the judge "ranted and raved at the jury not to disregard his instructions. He said, 'Are you asking me to tell the jury that they can ignore the law?' And I said, 'No, your honor. All I'm requesting is that the court instruct them as to their rights and privileges under the Sixth Amendment of the Constitution of the United States.'" His request was denied.
"It's not uncommon to see jurors almost on the verge of tears after a trial when they've delivered a verdict they didn't want to give. 'We did what we had to do according to our instructions.' I think if people realized they had this right, you'd get better results."
Stephen Herzberg, a trial lawyer and law professor at the University of Wisconsin, made a documentary for the PBS Frontline series a few years ago that got FIJA's attention. "It was the first time anybody put a camera in front of a live jury," he says. The defendant was technically guilty, but the jury acquitted anyway--following the tradition of nullification without realizing that was what they were doing. Since then he's spoken on several occasions to FIJA gatherings, though he's not a member of the organization.
Herzberg is worried about more than the fact that juries aren't told they have the right to judge the law. "The jury as an institution has been under attack in the civil area for about the last five or six years. The insurance companies and the medical establishment [who object to large awards to plaintiffs] attack through the lawyers--Dan Quayle's attack on tassle-loafered lawyers was really an attack on juries--which is a very smart way to do it. But lawyers don't make awards--juries do. And legislatures all over the country are limiting the kind of cases juries can hear and the awards they can make."
These limitations, he says, put the institution of the jury at risk. "You know, the jury is a form of government, a recognized form of government. And rich, powerful institutions can control most government--but not juries. Juries set standards in this country. They decide what levels of pollution in our water and our air are acceptable, for example. The political decisions that politicians are afraid to make, juries make all the time. Juries are important."
He thinks FIJA understands that. "FIJA takes a very disparate group of people--people you would never expect to see in the same room--and everybody in the room agrees. They agree that the jury system is important and should be preserved. I think FIJA is a very robust, very interesting organization. If you pick a major issue, both sides will have supporters in FIJA--hemp, antiabortion, proabortion, pro-gun control, and anti-gun control. The thing they all have in common is that they trust 12 ordinary people more than they trust [the legislatures]. Most of them would rather have people decide their issue than the political process.
"I find them very interesting people with very different ideas--and a lot of them are ideas I don't like. But it's interesting to find that level of cooperation in a country with such divisive issues. I find it very inspirational."
Larry Dodge, the Montana-based founder of FIJA, agrees with Herzberg's assessment that the jury system is under siege. One of the things that made him realize the need for the act, amendment, and association was his trial after he was arrested for not wearing a seat belt. "I'd been in a couple of accidents where I'd have been killed if I had been wearing a belt," he explains. Thereafter he refused to wear one, but the judge refused to let him tell the jury why. "The only thing you can tell them is whether you clipped that belt or not." He believes that the jury couldn't really judge his case without knowing his reasoning.
"The jury system is in better shape in the United States than in a lot of places. England is making it more difficult to qualify [to sit on] a jury. In Scotland they have 15-person juries and allow a majority vote to determine guilt or innocence. On the continent they don't really have juries, although Spain is now trying to revive the jury system on the English model."
But he argues that in this country the jury system is being chipped away: as, for instance, 10 of 12 jurors are allowed to make a decision instead of all 12 unanimously--which keeps one individual voting his conscience from hanging a jury and at times allows expedience to rule. He also says that "jurisdictions that don't call for juries" are being created. "England did that to us in the late 1700s--it's one of the reasons for the Revolutionary War. When smugglers were arrested they'd be tried before a common-law jury--and the jurors would turn them loose. So England said, 'These crimes were committed on the high seas, so we will set up maritime law and try these smugglers without juries.'
"It was the beginning of a trend we're still seeing. With RICO, the government seizes your property, so you can't afford to defend yourself. In family court, where they decide who will get custody of children, there are no juries. Tax court is the most notorious--unless you punch an IRS agent and turn it into a criminal case you never get a jury.
"Some states are saying that unless you meet a certain level of crime you're not eligible for a jury. The Supreme Court has even upheld one of those cases. It was a drunk-driving case in a national park, and [the defendant] was denied a jury. The Supreme Court said that if the crime takes place on federal property the right to a jury is not in effect." That seems to exclude most of the state of Alaska, which is owned primarily by the federal government, from this most basic right of common law.
Dodge, who calls FIJA "a power-to-the-people outfit," believes that "trial by government is the alternative to trial by jury. The whole idea of a jury is to buffer the power of the government. Nobody's improved on it. It's the best system we've found yet."
Ralph Ruebner, a professor at John Marshall Law School, says that jury nullification was common a few centuries ago in England, where it was also known as the Doctrine of Lenity--and a couple decades ago in Illinois. "Illinois had, up to about 15 years ago, a very severe law dealing with the distribution and sale of marijuana. It carried a minimum of ten years for very small amounts--it was very strict. And it swept up a lot of young kids into a very awkward situation. Their lawyers argued to the jury that this was an unjust law. And some of [the juries] just didn't think it was right. They wouldn't convict them, or they would find them guilty of lesser crimes."
In this state, says Ruebner, "the jury doesn't know, with the exception of death-penalty cases, what the sentence will be." Moreover, he says, "Illinois judges generally will not allow the jury to hear arguments [in favor of nullification] from lawyers. Basically, the only way they can do it is to ask the jury to ignore the law in their final argument--which runs counter to the judge's instructions."
Ruebner believes "there is no explicit or outright recognition of nullification as a constitutional right. But courts, from the United States Supreme Court on down, over the years have found implicitly the existence of this right for a number of reasons. First, that this is tied to constitutional guarantees under the Sixth Amendment [guarantee of a] jury trial, where the jury is supposed to use commonsense judgments."
He cites a 1975 U.S. Supreme Court ruling, Taylor v. Louisiana: "The purpose of a jury is to guard against the exercise of arbitrary power, to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor, and in preference to the professional or perhaps overconditioned or biased response of a judge." The jury is there to serve as the law's conscience, he says, as a protection against legal steamrollers.
Ruebner says nullification is also supported by another Supreme Court opinion (Witherspoon v. Illinois, 1968): "The jury serves as a 'link between contemporary community values and the penal system.' Again, nullification is implied in that language."
The law in Illinois, he says, "really doesn't address these issues. Illinois hasn't really said outright whether [nullification] is an expressed right. It seems to be supporting the notion that it's implicit."
He says he has "a lot of doubts" about the legislature's willingness "to enact any law that interferes with the judiciary. It may be [an Illinois] constitutional problem. An amendment would get around the objection on constitutional law." He also points out that FIJA addresses both criminal and civil law, "which takes it beyond the original intent of nullification. The idea of lenity was directed to criminal cases. Here it's whenever the government is the plaintiff against a citizen, which could include tax cases."
Attorney John Lowrey, recommended by the Chicago Bar Association to comment on FIJA's proposed law, calls it "dangerous. The whole idea of our system of justice is ruled by law. It's not supposed to be someone's personal opinion. [Jurors] could drag in any experience."
Lowrey, unpaid chair of the Chicago Bar Association's Defense of Prisoners Committee, worries about bias on the part of jurors: "Not necessarily racial or sexual--but any kind of personal opinion.
"[FIJA] is anathema to our system. Our system is based on a written constitution--and that's very important. Everybody should have the same laws applied to them. How would you feel if it was your son or daughter [on trial]? You'd want consistency."
The judges with whom I spoke were decidedly less than enthusiastic about the concept of jury nullification in general and the various permutations of FIJA in particular.
"It is fundamental to a society that is guided by the rule of law that laws be followed," says presiding circuit-court judge Thomas Fitzgerald. "Each juror who serves is required to take an oath--and that oath requires [him] to follow the law. I believe in the rule of law; therefore I would not be in favor [of FIJA]." What if a law is simply bad? "Then the appropriate action is to change the law in the legislature," he says.
Fitzgerald acknowledges that there's a need for compassion in the law. "The concept of lenity on the part of the juror is one that has been recognized by the courts, and yet to move from that to an authorization to the jury to do as they feel could lead to chaos. It gets very murky--and the fact of the matter is that if a jury finds somebody not guilty they never need explain why they did it. But to move from that to a judge authorizing it is a jump I'm not prepared to take."
"Personally, I'm a little concerned about the balance of power issue--that the legislature and the people who elect the legislature are included," says Judge Sophia Hall, presiding judge of juvenile court and immediate past president of the Illinois Judges Association. "I'm a little concerned that there should be some kind of predictability in the system--you ought to know what the standards are when entering the courtroom. It's a question of balancing freedom versus some need of predictability. The whole point of the law is to try to provide some standards."
Judge Hall, who spent four years in criminal court, says that "with most laws, nullification should be a very extreme occasion. Extenuating circumstances can be taken into account by the judge in sentencing."
She admits that legislative demands for mandatory sentences for certain offenses can create problems. "The system is not perfect, but I think we do our best. These are human beings we're dealing with."
One judge, retired Arkansas Supreme Court justice John Purtle, agrees with the aims of FIJA: "It seems basically libertarian, but I still agree with much of it." Since his retirement, Purtle has been doing pro bono work for convicts in death-penalty cases, trying to secure appeals for them; Arkansas law, he says, offers very limited rights in terms of public defenders for such individuals. He also takes personal-injury cases "to keep the office open."
Purtle, a self-described liberal, says that the issue of telling the jury their right to judge the law never came up when he was a judge, "but I believe I would tell a jury that they were the ultimate judges at facts and law and that their decision would be final." He recently tried to use FIJA arguments in a case where agents of the Bureau of Alcohol, Tobacco, and Firearms searched a man's house and charged the owner with possessing a machine gun, an accusation Purtle says was trumped up. "It was tried in federal court. I tried to use the Second Amendment as a defense--and the judge decided the Second Amendment was not involved, and that I couldn't argue it. I tried to argue FIJA; he prohibited me from any mention of the Bill of Rights--even the preamble to the Constitution."
Purtle believes that given the abuses by agencies such as the BATF, IRS, and DEA and the courts' unwillingness to resist such abuses, the federal government is getting too powerful. "Bit by bit, [Congress and the Supreme Court] have eroded our rights. I fully support the aim of getting the jury back to the power it had when the constitution was written."
Senior federal judge Hubert Will of the Northern District of Illinois has been a judge for 32 years. He says he's well aware of FIJA. "This is not a new subject. I think there's a substantial body of opinion that [jury nullification] happens regularly, notwithstanding judges' instructions."
But he opposes the proposed law. "I think such instruction is, one, dangerous and, two, unnecessary. In my experience juries following the law do justice. The law is not so irrational, so unfair that juries should be told to ignore it. Most of us have been telling juries for years to obey the law. The place to change the law is in the legislative process, whether national or state, but not here. If juries can make their own law, we have changed from the rule of law to the rule of people. And the same thing is true of judges--if juries can ignore the law, judges can set it aside too."
Judge Will says that he tells jurors "not to be concerned about the sentence--it's not their worry." But shouldn't they worry? What about crimes that carry mandatory sentences? What should a juror do if a defendant is technically guilty of a crime, but there are mitigating circumstances? This is a sore subject for the judge, who calls mandatory-sentencing laws "draconian and almost unjust. They have no flexibility, and they really put the sentence in the hands of the prosecutor. The prosecutor is the one who decides what charges to bring. But [mandatory-sentencing laws] are terrible, because nobody can anticipate all the facts in a given case. It's unfair, a bad way to run a system of justice."
He says that while he and some of his colleagues on the bench have been called activists, in those cases they were acting within what they considered the parameters of the law, using what they believed to be legitimate interpretations of the Constitution. "The minute you allow juries or judges to make law, then you're talking about activism for sure. At least no one accused us of rewriting the law. It's better to go to the legislature and rewrite the law."
What are the odds of getting Congress or the Illinois state legislature to do the right thing? Judge Will acknowledges the difficulty. "Legislators don't do the rational thing every time. Minimum mandatory [sentences] came in because the Republicans decided they were good politics, but that's still better than doing [de facto rewrites] on a whim. We've got a system that's inevitably run by human beings, and human beings are capable of making mistakes. That doesn't prove the system is wrong. It may prove that the system isn't as good as it should be."
There's another, generally unspoken reason that no FIJA law is going to be clasped to the collective bosom of the legal profession: a questionable variation on it is apparently already in effect in some courtrooms.
"I'll tell you why [judges] are so scared of jury nullification," says one attorney who regularly practices in Chicago's criminal courts and who prefers to remain anonymous. "It's because it's here, it's happening--except not on a basis of conscience. Black juries more and more will not convict black criminals, no matter how guilty they are. It's like, 'This is the white man's system, and we don't care if he's an armed robber or what--he's going to go free, even if his victim is black.' [Officials are] terrified that it's going to spread."
Don Bennett owned a gas station in Oak Park at the corner of Austin and Harrison, close to the Eisenhower Expressway exit and right across the street from Chicago's troubled Austin neighborhood. After seven armed robberies, Bennett took to wearing a side arm while pumping gas. This did not endear him to the local police, the local newspapers, or the local gentry. In March 1986, after Oak Park passed a handgun ban, Bennett was arrested for using his gun to shoot at another set of armed robbers, a charge that carried a mandatory six-month jail term. On October 21, 1986, a jury acquitted him. Though the judge hadn't instructed them that it was their right, the members of the jury voted their conscience and ignored the law.
Rather than risk further humiliation in the courts, Oak Park dumped the mandatory jail term and downgraded the punishment to confiscation of the weapon and a fine. How many other dubious laws would be changed following the vigorous application of a universally applied Fully Informed Jury Act? FIJA proponents think the answer is lots.
Carl Olsen of Des Moines, a "hemp activist" who differentiates between marijuana and drugs, objects to the fact that judges can exclude just about anything they like from the evidence presented to a jury. "For a judge, the court system, the bar association, or anyone else to tell the jury they can't follow their consciences is wrong. The idea that you can't go in and spill your heart out to a jury and leave it in their hands is wrong. You're supposed to get a trial before 12 people--it's them you're supposed to be judged by. And the court says, 'This is what you can say to them, and you can't say that'--even when it's the whole reason for why you did what you did."
Olsen, who spent time in prison on drug charges, was involved in a landmark case concerning the use of marijuana in his Rastafarian church, the Ethiopian Zion Coptic Church. "We use marijuana as a sacrament, like wine in the Catholic Church," he says, noting that in Rastafarianism the various references in the Bible to wine, smoke, incense, and fire are all taken to mean marijuana.
Certain American Indian groups are permitted to use peyote as a sacrament, and Olsen argued that marijuana fell into the same class. He believes FIJA would make convictions against sincere religious users less likely.
Even more compelling is the record on the use of marijuana for medical purposes. A few people in this country are legally permitted to use it for its recognized medical benefits--easing nausea, increasing appetite, and fighting the effects of glaucoma--but governmental authorization is virtually impossible to come by. Olsen cites the case of a friend of his with multiple sclerosis who was arrested, tried, and convicted for marijuana possession: the judge refused to allow the medical evidence to be admitted, and technically he was guilty. (Under FIJA, says founder Larry Dodge, "the rules of evidence would remain." The defendant's prior convictions or life-style could not be admitted, but "an explanation of why the defendant did something would be admitted.")
Not all of the causes supported by FIJA believers are this appealing. Some advocates state clearly that there's no such thing as perfect justice and there will always be trade-offs.
Bill Currier--a retired police officer in West Allis, Wisconsin, who notes that "FIJA brings the left wing and the right wing together"--represents one example of the downside of FIJA. A member of Missionaries to the Unborn, a militant antiabortion group, he says, "I think there should be a law saying abortion is wrong--but it shouldn't be left to the legislatures. I think juries should decide the issue" of whether abortionists or clinic bombers are guilty or innocent. He believes many issues could be decided on a local level, according to the mores of the local citizenry. "For instance, take Los Angeles. You got a bunch of queers out there. A jury would never put anybody away for sodomy there. In other communities juries would."
An uncomfortable thought occurred in the course of researching this article: Ellie Nesler, who fired five shots into her son's alleged molester in a Sonora, California, courtroom after, she said, he smirked at her, has become a folk hero of sorts. Could FIJA encourage such vigilantism? "Yes," says former Libertarian Party Senate candidate Andrew Spiegel, "it could happen. But I don't think it's likely."
But it also became clear that many judges are obstructing justice by allowing evidence to be heard, or not heard, according to their political agendas: not permitting a discussion of the Second Amendment in a gun case, or ruling against any mention of medical uses for marijuana in a drug case--to say nothing of forbidding the introduction of the principle of jury nullification.
So is FIJA a good idea? It's certainly appealing to anyone with a concern for the importance of the Constitution, to anyone who believes that justice should be tempered with mercy, to anyone worried about the increasing interference of the various arms of Big Government, to anyone who thinks that state-mandated sentences for various crimes fail to take into consideration the human element and the differences of fact in individual cases. Its dangers seem largely outweighed by its benefits.
Is some form of FIJA likely to come about? Not very, considering the organized and well-funded lobbying on the part of judges and their allies that's guaranteed to begin the instant FIJA is introduced in the legislature. But if its proponents can get the word out--through courthouse leafleting, through the news media--they may be able to educate enough jurors and prospective jurors to make certain that justice is done.
Art accompanying story in printed newspaper (not available in this archive): illustration/A.J. Epstein.