By Don Doig

NINTH CIRCUIT COURT LOSS; SENATOR THURMOND STRIKES AT THE HEART OF TRIAL BY JURY

NEWS FROM THE DISTRICT OF COLUMBIA

In December, Sen. Strom Thurmond introduced S. 1426, with co-sponsors Sen. Larry Craig of Idaho and Sen. Alan Simpson of Wyoming, a bill which would eliminate the unanimity requirement for federal criminal trial juries, allowing convictions on a vote of 10 to 2. Thurmond is from South Carolina.

This bill is disastrous, and needs to be opposed. The principle of unanimity empowers jurors in the minority, making their vote, and their opinion, a vital part of deliberations. It is therefore necessary for fully effective jury veto power. The jury is not intended to be a majority rule institution; rather it is the mechanism by which minorities may protect their rights from infringement by majoritarian tyranny.

David Kennison, FIJA liaison to the halls of congress, is mobilizing opposition to the bill, and to its sponsor, in South Carolina. In Utah, Bart Grant is working to bring constituent pressure to bear on Senate Judiciary Chair Orrin Hatch to oppose S. 1426. Tom Glass from Texas is also working to line up opposition, and to line up testimony in opposition to S. 1426. Harvey Wysong and others uploaded information to the Internet.

Kennison, as of March, said it appeared the bill may just be allowed to die quietly, without action, and if so, we should wait and watch. If necessary, we will fight it tooth and nail.

David is also working on lining up bipartisan support for the FIJA bill which Rep. Jack Metcalf (R-Washington) has offered to introduce. David has been assisted by Kevin Gray in his effort to recruit members of the Black Caucus.

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COURT CASES

Attorney Peter D. Lepiscopo has informed us that the Ninth Circuit Court of Appeals in San Francisco has affirmed the District Court's ruling against Jim Harnsberger, FIJA, and Liberty Lobby. Jim had been arrested for distributing FIJA literature in front of San Diego Superior courthouses in violation of a court order. The court said: "We find that the regulation is necessary to serve the state's compelling interest in protecting the integrity of the jury system..." Liberty Lobby was involved because once Jim announced he wanted to place a FIJA newspaper box in front of the courthouse, along with the L.A. Times and other newspapers, including the Spotlight, the judge ordered all the boxes cut down and hauled away. We do not know at this time whether we will be able to take this to the Supreme Court, which would be expensive. See Fully Informed Jury Assoc. v. County of San Diego, et al. U.S. Court of Appeals, Ninth Circuit Case No. 95-55121.

This was pursued as a civil suit, and as a result, issues of the constitutionality of the court orders were not raised, nor First Amendment issues such as freedom of speech, assembly, and press. Jim is considering civil disobedience action, so as to challenge criminal charges on the proper constitutional grounds.

Other news: In a notice of upcoming Supreme Court cases, the Missoulian reported that the Court agreed to decide: ... "When federal judges can revise financial awards made by juries. A journalist won, and then lost, a $450,000 damage award over lost photos." and "Whether criminal defendants facing more than one minor charge are entitled to a jury trial if the possible sentences add up to more than six months in prison."

Art.III , section 2 of the U.S. Constitution says "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." Article VI of the Bill of Rights says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..." [Which part of "all" do you suppose the courts don't understand?] The "Petty Offense Doctrine" developed by judges from 1888 on, has subverted the plain language of the Constitution. (For an excellent discussion, see Timothy Lynch, Rethinking the Petty Offense Doctrine, The Kansas Journal of Law and Public Policy, 4, 1, Fall 1994, 7-22.) In Blanton v. City of North Los Angeles, 489 U.S.538 (1989), the court ruled that, according to Lynch, "offenses carrying a maximum prison term of six months or less are fundamentally petty offenses that fall outside the coverage of the Sixth Amendment's Jury Trial Clause." In a contempt of court case, the Ninth Circuit Court of Appeals ruled that "In cases...(where) contempts are tied together, the imposition of consecutive sentences aggregating more than six months makes the offense 'serious' and requires a jury trial." (Maita v. Whitmore, 508 f.2d 143 (1974).

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LAWYERLY OPINION

FIJA was the subject of a positive discussion in The Champion, published by the National Association of Criminal Defense Lawyers (NACDL). The article, by attorney Peter Schoenburg, concludes by saying: "This grass roots effort by constituencies that feel abandoned by their legislators relies on the Bill of Rights and the jury system for guidance, not the worst compass in times of governmental excess."

Voir Dire, the publication of the American Board of Trial Advocates, has published a lengthy article by federal Judge Jack B. Weinstein, from the Eastern District of New York, entitled "Considering Jury 'Nullification': When May And Should A Jury Reject The Law To Do Justice" (Vol. II, #4, Fall 1995). Judge Weinstein is supportive of jury nullification, but opposes an explicit instruction to the jury. He does argue that "judges can and should exercise their discretion to allow nullification by flexibly applying the concepts of relevancy and prejudice and by admitting evidence bearing on moral values."

FIJA activist Attorney Clay Conrad has had an excellent article on Jury Nullification published in the Voice, the publication of the Texas Criminal Defense Lawyers Association.

Godfrey Lehman, Tom Stahl, Patricial Michl, all had letters-to-the-editor published in the Washington State Bar News, part of a continuing debate on the subject of jury nullification and the FIJA bill before the legislature.

In years past, we have had favorable or at least neutral treatment from the A.B.A. News (published by the American Bar Association), and by Litigation News, (also published by the A.B.A.), as well as by several state level legal community/ attorney's publications. I don't recall any that were not at least neutral, tending toward favorable. Yet state Bar associations rarely fail to turn out to oppose FIJA legislation. Curious.

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MEDIA COVERAGE

Thanks to a mailing by David Delo, HALT and a publication of the American Judge's Association have asked for articles on FIJA. David has also been invited to write an article on FIJA for the Reader's Digest. FIJA has also been invited to contribute an article to the Journal of Technology Law & Policy.

Reporters from USA Today/ Gannett News Service and from CBS News interviewed Don Doig at length about FIJA. CBS News, 60 Minutes, NBC Nightly News, and Nightline all have called and appear to continue to be interested in FIJA's progress. The Gannett article appeared in several papers around the country.

Since the last FIJActivist, articles on FIJA have appeared in The Des Moines Register, the San Francisco Chronicle, the Truth Seeker, the Denton (Texas) Record-Chronicle, the York (Penn.) Dispatch, Principia (Zenger News Service), the San Antonio Express-News, City Edition (Milwaukee), the Salt Lake Tribune, the Niagara Gazette, and a favorable editorial on jury nullification in the Honolulu Star-Bulletin (thanks to information supplied to the editor by Dick Hedlund), and many others. Numerous letters-to-the-editor have also appeared.

CNN broadcast a show on the aftermath of the O.J. Simpson trial, entitled "Burden of Proof" during which jury nullification was discussed positively by the guests, including at least one law professor.

FIJA discussed on national talk radio shows: Don Doig was on Richard Palmquist's show, "To Free America" on KDNO radio out of Delano, California, which is broadcast live out of Denver to a nationwide audience, and is also uplinked to satellite (Gal. 6, Ch. 14). Doig appeared on Mark Osterman's "Law Talk" show out of New York, which is syndicated to 17 markets across the country, on March 7. The same day, he appeared on the Casey Stevens Show on WHCU radio out of Ithaca, NY. Doig was also a guest on the Dave Allen Show on KSCO Radio, broadcasting in the Santa Cruz / Monterey Bay area, on December 26.

Harvey Wysong appeared on the Derry Brownfield Show, which is broadcast out of Missouri to 100 stations in 22 states. It is sponsored by the Common Sense Coalition.

FIJA Vice President Larry Pratt discussed FIJA on the Chuck Harder Show when Eric Skidmore called in to ask about it. Larry Dodge was on Dr. Ward Dean's talk radio show "Constitutional Perspective" on WVTJ, Pensacola, Florida on Jan. 17, talking about FIJA. Godfrey Lehman was on KSCO in Monterey for two hours.

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FIJA HAS ITS OWN OFFICE NOW

FIJA National has acquired an office building, finally. After six years during which FIJA increasingly crowded Don Doig out of his house, and for two years also fully occupied Larry Dodge's garage, FIJA National will be moving into a separate headquarters, a trailer house located on a lot at the other end of Helmville.

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OTHER NEWS OF INTEREST

David Delo and Don Doig put together a trial issue of a new newsletter for State Coordinators, to aid in organizing FIJA activity and networking.

Jim Harnsberger has also held FIJA organizing seminars in Las Vegas and Phoenix. He appeared on the America the Beautiful radio show. Jim is planning an organizing swing around the West and Midwest this spring, lasting 4 months. He is scheduled to speak at the upcoming Preparedness Expo in Las Vegas, where 10,000 are expected. FIJA has been given a table for literature. He will also speak at an April meeting of the Dallas Achievers Chapter of the American Businesswomen's Assoc. He spoke to a legal ethics class in late April.

Jim Harnsberger is working with Brian Holthouse in Denver to coordinate FIJA activities at the upcoming trial of Timothy McVeigh and Terry Nichols. Jim is concerned that McVeigh and Nichols are nothing more than patsies, and that the government was involved to the extent of bombing their own building. The alternative media has had a lot of information on this, and has built a convincing but frightening case, but there has not been a peep from the establishment media. Interestingly, it appears that the defense plans to blame the bombing on a "right-wing conspiracy" [!] 60 Minutes has been in communication with FIJA HQ, and has met with Jim, and plans extensive coverage of the FIJA operation, including behind-the-scenes planning meetings. Larry Dodge also had a long interview with 60 Minutes regarding FIJA's role in the trial of the surviving Branch Davidians, which will constitute part of the program. Larry is also prepared to do what he can for the Denver effort.

Jim and Brian are working on getting media exposure. Brian says he thinks he can get Jim on 15--20 radio talk shows. This is also being posted on the Internet. Several leafleting demonstrations are planned, with the support of several groups. A coordinating team of 8-10 key people is in place. Jim will hold two Town Hall meetings, where he will show Oklahoma Rep. Charles Key's video on the bombing. Don Doig sent a copy of this video to producers from 60 Minutes, along with alternative media articles. Two volunteer attorneys are lined up in case of trouble. A fundraising effort is underway. If you would like to donate or help with the effort, call Jim Harnsberger at 619-466-4920.

Sara Foster set up a FIJA table at the National Health Federation Convention in Southern California. FIJA Vice President Larry Pratt distributed FIJA literature at the Shot Show in Dallas.

Thanks to Richard J. Maybury, who included a personal promotional letter for FIJA in his financial newsletter, The Early Warning Report, urging his readers to support FIJA. Contact him at Henry-Madison Research, Box 1616, Rocklin, CA 95677. Phone (916) 632-2501.

Chief Howard F. Knight, from the Territorial Headquarters Grand Council, Cowasuck of North America; the National Federation of the Sovereign Republic of the Abenaki Nation, has contacted FIJA HQ. Chief Knight wants to institute a Fully Informed common law (or natural law) tribal court system. The Abenaki Nation has been interested in FIJA for some time. A couple of years ago, Chief Judge Michael Delaney contacted FIJA for information.

We regret to report the passing of Senator Joseph Galiber, long-time FIJA bill sponsor in the New York legislature. Senator Galiber was a knowledgeable and passionate supporter of jury nullification. He enlisted the support of most of the Black Caucus in the New York legislature behind FIJA legislation. He will be missed.

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