PIML 96061701 / Forwarded to Patriot Information Mailing List: [Mainly Texas oriented information on the Fully Informed Jury Association, but good info for all.] PIML ================================================================== From: Tom Glass Subject: LS-FIJA Texas Juror, Vol. 1, Issue 1, Summer, 1996 Date: Mon, 17 Jun 1996 06:22:24 -0500 TEXAS JUROR VOLUME 1, ISSUE 1 SUMMER, 1996 On January 20-21, Texas FIJA leadership met in the Austin law offices of longtime FIJA supporter Paul Velte, IV, and formed a Texas corporation called the Lone Star Fully Informed Jury Association (LS-FIJA). Its board consists of Brenda Anderson of Lewisville, Clay Conrad of Austin, Larry Dodge of Dallas, and Tom Glass of Houston. Tom Glass was selected as President, Larry Dodge as Vice President, and Tom Zavist of Houston as Secretary and Treasurer. Additional attenders of the January leadership meeting were Richard Lee and Amy Doktor of Houston, Larry Barthel of Euless, Jay Manifold of Dallas, and Dr. Jim Shaw of Austin. Also since the meeting, Mike Lenker has taken over maintenance of the LS-FIJA database, and Trey Summitt is providing free graphics design work and will coordinate printing. Richard Lee and Amy Doktor are doing the arduous task of "stuffing and mailing", which so far has meant getting out a two fund-raising letters written by Larry Dodge, and mailing candidate questionnaires. Mark Bielamowicz took the questionnaire strategy a little further than that just before Super Tuesday, by calling up the campaign HQ's of all the Republican candidates for Texas Court of Criminal Appeals (equivalent to the Supreme Court in most states), asking the candidates to call and tell him if they believed jurors have the right to judge both law and fact. An amazing number not only called back, but said "yes" -- and a few of those will be in run-off elections for the party nomination! Meanwhile, Sandra Crosnoe of Associated Conservatives of Texas put together a more detailed questionnaire, containing several FIJA-related questions. LS-FIJA sent out a press release endorsing Court of Criminal Appeals candidates in the run off primaries in both parties. The Republicans endorsed did not win, but one Democrat endorsed by LS-FIJA, Charles Holcomb (Place 2) won. Tom Price, the Republican nominee for Place 3 is also friendly to fully informed juries. Many LS-FIJA supporters worked and are working in their parties to push for planks in the party's platform supporting FIJA legislation. No Democratic resolutions made it out of the Senate District conventions. On the other hand, three Senate District conventions passed a FIJA resolution in the Republican Party, and efforts are currently ongoing to ensure that the Republican Party will add a FIJA plank to the platform. (Four members of the GOP Platform Committee are on the LS-FIJA mailing list!) FIJA activists in the Libertarian Party also plan to make sure that they support FIJA legislation in the platform, too. Thanks to all who have participated in the resolution push so far. These include Phil Koehne and Ron Avery of Comal County; Ralph Hodges, Matt Bailey, Trey Summitt, Frank Williams, Barry Klein, and Tom Glass of Houston; Joe Gaut of Nacogdoches County; Christin Hines of Bexar County; Dottie Squires of El Paso; Ed Ray and Debbie Thetford of Tarrant County; Sonya Bernhardt of Montgomery County; and Bob Ramsey, Sandra Crosnoe, and Bill and Jean Howell of Dallas. Even if these resolutions don't make it into the party platforms this year, the education of politically active Texans is invaluable. One spin-off benefit which has already occurred when the fact that the FIJA plank was introduced (though not passed) at a precinct convention was mentioned on a Houston-based talk show, allowing Tom Glass to call in to discuss. Additional outreach to the media took place only a few weeks earlier when Jeff Neely and Larry Dodge manned a FIJA table at the Texas Press Association state convention in Ft. Worth on January 19, made a number of valuable contacts, and gave away hundreds of pieces of literature. Larry Dodge and Clay Conrad (LS-FIJA board member, recent graduate of UT Law School, and new member of the bar) met Prof. Paul Butler when he came to Austin to participate in a symposium on race based nullification. Professor Butler has authored several articles arguing for blacks to use jury nullification to acquit other blacks, particularly of victimless crimes, and has been featured on "60 Minutes" calling for race based nullification. Larry and Clay attempted to persuade Professor Butler that the emphasis in nullification should not be on race, but justice. They found him to be receptive to the idea that everyone is part of one or another minority group, and therefore needs the protection against majoritarian tyranny that jury veto power can offer. In December, Larry appeared on a KRLD (Texas State Network) call-in show hosted by federal prosecutor Paul Coggins, where he squared off against John Bradley, a prosecutor from Williamson County who was running for a seat on the State Court of Criminal Appeals--until he was defeated in the primaries. On January 29, Larry got to rebut some ill-conceived remarks made by Mike Barnes, head of the National Association of District Attorneys, on WOAI San Antonio, hosted by Carl Wiglesworth. Then on February 20, Larry got in a good hour explaining FIJA to Rio Grande Valley listeners with KVJY host Bob Gilmartin, on his "The Truth of the Valley" show. Also in December, Billy O'Neill, et.al., proved that even with Larry Becraft for the defense, and FIJA leafleting outside the courthouse, that juries will support laws that they think are correct. In a federal trial for mail fraud and other charges related to their making and marketing "certified money orders", the defense team was unable to convince the jury that O'Neill and company should walk because the federal government also "creates money out of thin air". But there was a tangible silver lining for FIJA: Judge Joe Kendall, toward the end of the first day of the trial, mentioned the FIJA leafleting, saying that those leafleting have a First Amendment right to do so, and that jurors have the right to agree with FIJA. He still told jurors that they couldn't be on the jury if they agreed that they should judge the law, however. Dianna Brandborg, of Denton, has not only won an appeal of contempt charges filed against her for refusing to answer jury questionnaire questions she felt were "too personal", but her case has been published--which means it can be used as precedent in similar cases. And it's already happened, in U.S. v. Marco Antonio Padilla-Valenzuela, a drug case in Arizona, and in at least one other case, to date. Three cheers for a juror's right to privacy! The LS-FIJA board has developed selection criteria for local coordinators, and has recruited four new ones (see contact list in this newsletter). Among the criteria for Lone Star FIJA area coordinators and state officers is that they have access to e-mail or fax, so that they can communicate regularly despite the fact that the state is simply too big for them to have periodic get-togethers. Disqualifications for leadership in LS-FIJA are adherence to racist views and renouncing of U. S. citizenship. ******************************************** Surviving Jury Voir Dire By Clay S. Conrad How can LS-FIJA members keep from getting kicked off of juries, by the Judge or by the Prosecutor? Frustrated FIJistas regularly report being excluded during voir dire (jury selection). But if our advocates can't get seated on juries, FIJA is limited in its ability to affect the law, or to see justice done in SPITE of the law. Voir Dire, which is French for "to speak the truth," consists of having the Judge, the Prosecutor and the Defense Attorney each ask the jury a series of questions. It exists for two reasons. First, it allows the Court to find and eliminate partisans - the Defendant's brother, the arresting officer, etc. It also allows both sides to challenge jurors for bias, for familiarity with facts or witnesses, etc. The rules for exclusion of jurors are spelled out in the Code of Criminal Procedure (CCP). First, FIJA members should realize that some veniremembers are absolutely disqualified. For instance, if a veniremember is under 18, or is not a citizen of Texas, the veniremember may not legally serve. The Court is required to exclude such jurors from service. More importantly, veniremembers may be challenged FOR CAUSE. These challenges are unlimited in number, and are spelled out in CCP Art. 35.16. A juror may be challenged for cause if he: 1. Is not qualified to vote; 2. Has been convicted of a theft or felony; 3. Is under indictment or other legal accusation for a theft or felony; 4. Is insane; 5. Has "such a defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render him unfit for jury service, or that he is legally blind, and the Court in its discretion is not satisfied that he is fit for jury service in that particular case"; 6. Is a witness in the case; 7. Served on the Grand Jury which indicted the defendant; 8. Served on a Petit Jury in a former trial of the case; 9. Has a bias or prejudice in favor of the State or the Defendant; 10. Has established a conclusion as to the guilt or innocence of the defendant that would influence him in his action in finding a verdict; 11. Cannot read or write; 12. Is related to either the defendant or the victim; 13. In a capital case, has conscientious scruples in regard to the infliction of the death penalty (only to be used by the Prosecution); or 14. Has a bias or prejudice against any of the law applicable to the case. If the Judge finds the challenge to be good, he MUST exclude the juror. It is not discretionary; failure to exclude will be reversible error. Additionally, both the Prosecution and the Defense have a limited number of PEREMPTORY CHALLENGES. In a misdemeanor case, both sides have three, in most felonies, ten, and in capital cases, both sides have fifteen. Peremptory challenges may be exercised for any reason or for no reason whatsoever, EXCEPT that they may not be used to exclude women or minorities from the jury merely because of their gender or race. (See CCP 35.261, Batson v. Kentucky, 476 U.S. 79 (1986)). Attorneys use peremptory challenges to try to "stack" the jury in their favor by excluding potential jurors they feel could be hostile to their side. Many lawyers believe that the intelligent use of peremptory challenges is the most important skill of a good trial lawyer; yet research shows that few lawyers are good at it. Perhaps that is something to be glad about; try as they may, most jurors will not be so plainly "defense" or "prosecution" jurors that voir dire is much better than a crap shoot. It certainly is frustrating for a veniremember, especially a FIJA member, to be excluded from jury duty. They have taken time from work, have submitted themselves to questioning, and have been rejected. Yet FIJA members often have only their own eagerness to blame for their exclusion, as I have tried to explain in my answer to the E-Mail post below. [The following exchange of posts recently appeared on the FIJA echo I moderate on Liberty BBS in Austin, Texas (the board can be contacted directly by dialing 512-462-1776; the echo can be found on various FIDOnet bulletin boards throughout Texas and the Nation.)] From: LOY ZIGLER To: all Msg #43, May-16-96 00:27:00 Subject: fija LZ> The FIJA got me out of jury duty too. The woman says the transcript(of my LZ> dismissal) will be mailed out next week. Then I need to decide what the next step will be. It came today. What about this: Judge: Is there anyone here that believes that they should not follow the instructions of law given to them by the court. Me: Yeah, I guess I do. You mean the fully informed Jury? Judge: Hold on, sir. I don't want you to taint the panel. I'll just ask you a couple questions. he asked my name and juror # Judge: okay, Mr. Zigler, you heard me explain-- you believe that you would not --- and you have to answer yes or no, because I don't want to taint the panel. You would not be able to follow the instructions of law given to you by the court? Just answer yes or no. Me: Depends if I think the law is legal. Judge: Well, all right. And I'm saying to you, it's not your judgment of what the law may be. The court's responsibility to tell you what the law is Me: Not if I'm in a jury. It's my responsibility. Judge: Okay, well, I think we've heard enough from you, sir, in terms of your responsibility. You're not giving me direct answers. The answer I'm asking you is if you say to yourself and tell me, aJudge, I know you have responsibility to tell me what the law is, but the fact that you've told me what the law is isn't going to change my mind at all. I believe that I have an absolute right to determine what the law is.o Is that your position? Me: That's right. Judge: All right. Thank you. Then we'll excuse number 48. Report back to the jury commissioner. Okay, We're not--- we're not being incriminatory to anyone or condemning anyone's beliefs, but that's the only way we can operate. end of transcript. Now think of this in light of John Adams, our second president, who had this to say about jurors. "It is not only his right, but the duty....to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." In 1895, the U.S. Supreme Court formally recognized jury nullification in Sparf vs. United States. The court held that juries have the power to return verdicts contrary to law and evidence. Taken from the Arizona Republic by Richard Lessner Deputy Editor of the Editorial Pages. I was denied the right to serve on a jury by this judge and would like to know where I should go to file a complaint. From: Clay Conrad To: Loy Zigler Msg #44, May-18-96 10:12:50 Subject: fija It does not appear that you wanted to serve on the jury. In voir dire, if you intend to serve, the less said, the better. And if you do want to make a speech in voir dire, it should be aimed at informing the other jurors as much as possible. Finally, the juror does not determine what the law IS, so much as he determines whether the law should or should not be applied in the case before him. Even the best laws can be misapplied, and when misapplied should be nullified. There is no human way to write a law so complete and perfect that an ambitious prosecutor can't find an excuse to charge a morally innocent person with its violation... As for any "violation" of your rights because you were excluded as a juror, don't waste your time. The rights involved belong to the people on trial, not to the jurors, with one exception: racial or gender discrimination in jury selection (aBatsono violations.) The Court has every right to exclude someone who has made themselves excludable under the Code of Criminal Procedure. I don't know the specifics for your state - or even what state you are in - but I do know enough to assert that any Court in America will exclude a juror who answers as you did! HINT: NEVER mention FIJA in voir dire.... NEVER answer more than the bare minimums. If the judge asks if you "CAN" do something, always answer yes if the action would be physically possible to you... he didn't ask if you WOULD... After you are seated, if you believe nullification is an appropriate response, tell the other jurors that you do not believe the defendant is guilty, because you don't believe the law should be applied in this case, and tell them why. Then try to show them that they have the power to do what is right, and that that is why we have trial by jury. Don't quote, don't rely on authority. They can't check your quotes or look at the authorities. Talk to them as one individual to another (11), and put the doctrine in your own words. Convince the other people prone to vote to acquit that a hung jury is not a bad outcome, if the panel disagrees. A compromise - voting for conviction when not convinced beyond a reasonable doubt, or voting guilty on lesser charges in order to short-circuit the process and go home - IS a bad outcome, and is very much a violation of their duty. Juries are empowered to HANG, but never to COMPROMISE. What needs to happen is for people to get to sit on juries who know something about nullification, and then to politely bring other jurors - who believe that an injustice is being done - around to an understanding of the power which is in their hands. If you are lucky, the defense attorney should have given you all the ammunition you need, while in closing arguments, voir dire, etc. E-mail LSFIJA@aol.com for the booklet on aJury Nullification as a Defense Strategyo for more information. COURTS DO NOT LIKE TO EXCUSE JURORS. What they want to avoid is "busting the panel," excusing so many jurors for cause that they don't have enough left to try he case. If you avoid a dogmatic posture, and if you are respectful and say the minimum, chances are the Court will not find cause to excuse you. (You may still be struck with a peremptory challenge; even if you had not been struck for cause, I am sure, in your case, that the prosecutor would have sent you out of their expeditiously anyway. So, so far as you were concerned, there was no harm done.) Let me give you a few examples of how the answers could have gone. 1> Judge: Is there anyone here that believes that they should not follow the instructions of law given to them by the court? FIJA jurors can't know whether they should follow the instructions of law until they have heard the case and the instructions. AS A GENERAL RULE, the instructions probably SHOULD be followed. We should assume the system to be just until proven otherwise. So we should, AS A GENERAL RULE follow the instructions of the court, and therefore I would not raise may hand in response to this question. 2> Judge: okay, Mr. Zigler, you heard me explain-- you believe that you would not --- and you have to answer yes or no, because I don't want to taint the panel. You would not be able to follow the instructions of law given to you by the court? Just answer yes or no. FIJA jurors would be ABLE to follow the instructions; whether they WOULD do so is another question, and not one the court asked. So the answer to this is no, it is not true that you would not be able to follow the instructions... got it? 3> Judge: Well, all right. And I'm saying to you, it's not your judgment of what the law may be. The court's responsibility to tell you what the law is LZ: Not if I'm in a jury. It's my responsibility. Here, you are being combative, when if you had answered either of the above questions more discreetly, this question would never have been almost asked - I say almost because you never let the Judge finish. And you are WRONG. It IS the court's responsibility to tell you what the law is; it is your responsibility to decide whether the law should be applied - whether to convict or acquit. 4> Judge: Okay, well, I think we've heard enough from you, sir, in terms of your responsibility. You're not giving me direct answers. The answer I'm asking you is if you say to yourself and tell me, aJudge, I know you have responsibility to tell me what the law is, but the fact that you've told me what the law is isn't going to change my mind at all. I believe that I have an absolute right to determine what the law is.o Is that your position? LZ: That's right. This is a misstatement of the jury nullification doctrine. The juror does not have an absolute right to determine what the law is in every instance. For example, if a person is innocent according to the Court's instructions, the juror does not have a right to CONVICT. Nullification is a doctrine of mercy, not of anarchy. Secondly, the juror should listen to what the Court says; he should not determine before hearing what the court says that it won't change his mind at all. Many jurors may have their minds changed and decide TO nullify after hearing the Court's charge. Even worse, your answers were unenlightening to the other jurors. They probably just dismissed you as a kook, without knowing why you were being so adamant or what you were being adamant about. You speak of your responsibility, without explaining anything about that responsibility: a better answer (for someone who wanted off the jury) would have been: it is my verdict, your honor, and that is a serious responsibility. I could not participate in committing injustice, if following the law led to an unjust result. THEN the Court would have to deal with either a jury of nullifiers, or dismiss the entire panel - a wasted day in Court, which the Judge would not want to have to deal with... The most important thing, in the end, was the DEFENDANT. Did your attitude and actions make it more or less likely that he would have at least one potential nullifier on his jury? I would say less likely - you got kicked off - and he may well have been unjustly convicted. Perhaps remembering that a morally innocent man may well be sitting in prison, being beated (sic) and raped by his cellmates while his wife files divorce papers against him and his family goes on welfare may somewhat blunt your sense of self-righteousness in so belligerently challenging the Court. Without having to have told one lie in Voir Dire, you could have arranged to have been seated in that case - just say the minimum and answer honestly, candidly, but precisely! And that man - a victim of the system - would still have his life in one piece. Think about it... Consider what is at stake here. A FIJA member may choose to spout off in voir dire, in order to teach that pesky judge a thing or two... or he or she may choose to wait until jury deliberations start, and then REALLY teach the judge a thing or two... Which is more effective? Which approach would you want the veniremember to take, if YOU were on trial? FINAL COMMENT: I AM NOT ADVOCATING HAVING ANYBODY EVER, UNDER ANY CIRCUMSTANCES, LIE DURING VOIR DIRE. If you are forced to announce that you are a FIJA member (Have any of you ever heard of the Fully Informed Jury Association?), admit it. But answer very, very carefully... if asked if you are a member of the organization, but have never officially joined, or if your dues have lapsed, the answer would be NO. Say nothing! And if you must answer a question which will lead to your being excluded, blurt out as much about the doctrine as you can! Try to make sure that every single veniremember knows as much as possible about jury independence, and that under NO circumstances must a jury commit injustice. You may abusto the panel; you may force the Judge to send them all home, and you may even get seated on the jury (the judge may be embarrassed to disqualify a juror who has stated he believes in justice, and count on the Prosecutor to use a peremptory challenge on you.) Just remember that a criminal trial is not the place for political grandstanding or membership recruitment. Our goal here is not to convert, not to show off, and not to challenge the authority of the Judge or Prosecutor, but to see JUSTICE done. Keep your eyes on the prize, and when you get on that jury, do the right thing! I am only discussing criminal cases here. The rules for civil cases are similar, but not identical. Jury nullification plays a much smaller role in civil than in criminal cases, and there is much less opportunity for oppression by government in civil cases, because Government is not routinely a party to the case. For these reasons I am concentrating solely on the Criminal rules. ******************************** PRESIDENT'S COLUMN "If you always do what you've always done, you'll always get what you always got" said the motivational speaker. That quote spoke to me as I thought about two consecutive legislative sessions in which the same committee chair (Allen Place) has bottled up FIJA legislation without hearings. So, to do more than we had done in the past, a lot of people went to work, and now Lone Star FIJA is a non-profit Texas corporation. We have a checking account, a logo, a board of directors, officially elected officers, more local contacts than ever before, and, of course, a newsletter! Lone Star FIJA was formed with the intent of becoming a 501(c)(4) "social welfare" organization. We do more than 501 (c)(3) educational organizations like the national FIJA because we are primarily an "action" organization seeking to influence legislation. (That means that donations are not tax deductible.) Certainly, we are involved in education. That is a prerequisite to the free and just society we are seeking. But we also realize that most folks do not pay attention to the details of anything until they need to know them. That is why the best way to educate jurors about their power to acquit based on conscience is to allow the defense to inform jurors just before deliberation. The only way that will happen is if we change state law. So, influencing state legislators to pass FIJA legislation is Lone Star FIJA's number one priority. Of course, many legislators take the lead from their constituents and public opinion, so we will, in all likelihood, have to influence opinion leaders before we can pass FIJA legislation. Opinion leaders like prominent attorneys, heads of single issue groups, press and media, and political party leadership. I am involved in FIJA because I am convinced that it is the most effective and most achievable change available toward the goal of restraining oppressive government. You can have more impact for good by working for FIJA than any other way that I know of. And so, I challenge you to make achanging the worldo your hobby. Take action to bring about FIJA legislation. The most important action you can take this summer is to arrange to visit with your state representative and senator to urge them to support FIJA legislation. Other actions you should take are: o Arrange for a LS-FIJA representative to speak to a group o Encourage the leaders of a group to which you belong to support the FIJA idea o Write an editorial or letter to the editor about the FIJA idea for your hometown newspaper o Call your talk shows to discuss jury power o Volunteer for a leadership position to help grow the organization Contact me for advice and materials that will help with the task you choose to pursue. I am excited about the growing numbers of people who are hearing and accepting the idea that juries should vote their conscience. Let's keep working ... Toward liberty and justice! Tom Glass ******************************* Current Lone Star FIJA Local Contacts: Statewide Tom Glass 713.467.2989 Austin Clay Conrad 512.326.5910 Bell Co. Al Markham 817.778.5808 Guadalupe Co. Philip Koehne 210.914.2591 Dallas Larry Dodge 214.357.0902 El Paso Dotti Squires 915.821.5992 Houston Richard Lee 713.821.0253 Panhandle Jim Dennis 806.848.2507 Plano Greg Knapp 214.596.1426 San Antonio (Bexar and Comal Counties) Ann Utterback autterb@sagenet.net 210.525.0693 Tarrant Co. Larry Barthel 817.354.8719 West Texas Reed Shahan 915.944.4158 What would a filtered, disinformed jury do if faced with the trial of a father accused of illegally trying to obtain a life-saving operation for his daughter, prohibited by a new aHealth Security Acto? Find out in the fast-paced novel, Deadly Care, by Houstonian, Richard W. Fulmer. Send $10 plus $2 shipping and handling to Lone Star FIJA, P. O. Box 2682, Bellaire, TX 77402. ================================================================== * Patriot Information Mailing List * http://constitution.org/piml/piml.htm * A service to help inform those who have an active interest in * returning our federal and state governments to limited, * constitutional government * Send messages for consideration and possible posting to * butterb@sagenet.net (Bill Utterback). * To subscribe or unsubscribe, send message with subject line * "subscribe patriot" or "unsubscribe patriot" * Forwarded messages sent on this mailing list are NOT verified. * See World's Smallest Political Quiz: www.self-gov.org/quiz.html * Libertarian is to LIBERTY as librarian is to library (DePena) * PIML grants permission to copy and repost this message * in its entirety with headers and trailers left intact.