Jews For The Preservation of Firearms Ownership, Inc.
P.O. Box 270143
Hartford, WI 53027
Phone (800) 869-1884
Fax (425) 451-3959
Introduction
Hello, this is Talking to America. I am your host, Aaron Zelman. Our guests today are Ilo Jones and Don Doig of the Fully Informed Jury Association. Today we will be talking about how you can stay free when you go to court. Let’s start with Don. What is the purpose of a trial by jury in the traditional and constitutional American legal system?
Don: Traditionally trial by jury had a political purpose beyond the simple purpose of finding the facts in the case. Did someone commit a crime or not? Beyond that and the reason why a trial by jury is so important, I mean why not just have a judge decide the facts of the case. Juries are traditionally the conscience of the committee. Their purpose is to make sure that the application of the law is consistent with committee values and traditionally it evolved that the purpose of trial by jury is to actually ensure the rights of the people are protected against prosecutions by the government in cases where there might be a question about the justice of the law, the constitutionality of the law, the fairness of the prosecution. All of that is a proper function of the jury to decide, and in that process to ensure that the system does not begin to systemically violate the rights of citizens. What it comes down to is that the jury traditionally for hundreds of years and we can go into the history of this, but for hundreds of years the jury has had the power and we maintain the right to say not guilty if they believe the law is unjust or unconstitutional or misapplied, even if the law is technically violated.
Aaron: Don, I understand that there is some history behind this. There has been some famous trials and maybe you would like to elaborate on some of those.
Don: Sure, well arguably this power goes way back to the Magna Carta in England and our legal traditions are derived from the English common law tradition and it goes clear back to the Magna Carta. One of the really important early cases was the trial of William Penn and William
Mate who were Quaker preachers in London and this is before William Penn moved to American-founded Pennsylvania. But back then it was illegal to preach or to practice an unapproved religion. The only approved religion was the Church of England, the Anglican Church. Quakers were not considered legitimate religion and it was against the law to preach it, so the authorities closed down William Penn’s church and in defiance they met on the street out in front of the church and held their service. William Penn and William Mate were arrested and put in the Tower of London. They were possibly facing death for violating what we would say is really a bad law, and the jury under pressure the judge told the jury, look there is no disputing the facts of this case, they did what they are accused of doing, and that is against the law and you have no choice but to convict, and the jury said nope, we are not going to do that, so that judge locked them in the jury room for several days without food or water or toilet facilities and still refused to convict and so they were fined and those that refused to pay the fine were actually thrown in the Tower of London for several months until the High Court of England threw out the case and affirmed that the jurors have the right to vote their conscience and they are not rubber stamps for the government and the government cannot punish them for a verdict that the judge or the government thinks is an inappropriate verdict.Ilo: Some others Aaron, following the Magna Carta and William Penn, John Peter Zinger who was a German immigrant, the jury refused to find him guilty of liable for publishing articles in his paper critical of the king-appointed political figure and then in the Whiskey Rebellion when they took the Whiskey Rebellion resisters, the tax-resisters, to trial, the jury refused to convict a single one of them and they actually had to repel the Whiskey tax. Before that in the Salem Witch Trial, they finally ended when juries consistently refused to find any of the accused guilty, and we all know about the Fugitive Slave Act which could not be enforced in certain states because the jury refused to enforce it. Prohibition, juries refused to enforce prohibition laws, so this has been a long tradition of political control by the people who do in fact own the government. It has been a feedback to our government. It is a check-and-balance on government and it is an ultimate veto power against bad laws passed by the legislature.
Don: And in the case of the Zinger Trial along with the William Penn Trial, it was considered to be important precedence when it came time to write the Bill of Rights. These verdicts by juries ended up becoming part of our legal foundation in America.
Aaron: Ilo, I have a question for you along these lines. If trial by jury is in the Bill of Rights, does that imply it has a political role?
Ilo:Yes, and we were just talking about that a little bit of course, and the political role of trial by jury, first of all, juries as Don was talking about earlier, are constituted to protect private sovereign citizens from government tyranny and they can do that by refusing to convict no matter what the charge, no matter what the law, no matter what the evidence or the facts in the case. Juries can simply refuse to convict. Trial by jury is of course mentioned in the Bill of Rights three times and in the constitution itself one more time, so it is set forth as a heading this political role as a check-and-balance on government four times in our constitution. Now, why is it there? Well as we know and we see this sometimes, of course, in concealed carry and weapon carry cases. We have the right to self defense. We have the right to life and you do not have the right to life unless you can exercise your right to defense that life. Jurors simply refuse to convict people who are trying to defend their life or the lives of their family and in doing so, they can circumvent all of the government employees, all of the people who work for the government, who are part of the political structure of government by vetoing the actions of the government and unfortunately, it still, of course, harms the people who are charged it and being persecuted by government because they have to pay for an attorney sometimes, sometimes they lose their jobs. We had a case we worked on of a fellow driving through Ohio with weapons which he had legally of course, as you would have to be under the second amendment, but he didn’t have legal permission in Ohio and so they arrested him and they trashed his vehicle and confiscated a lot of his property, including his computer which he needed for work and he didn’t get a jury trial. We hoped he would get a jury trial because we were educating all the people in that area so that they could step in and exercise their political role of serving as a check-and-balance on government, and we continue to do that. That is what the jury is for – to protect citizens against government action that is unfair. Juries, of course, also can protect society from truly dangerous people who are really criminals where there is a victim or those people are violent or need to be locked away to keep society safe, but mostly juries are there to protect innocent people or people who have not done anything that is actually a crime, where there is no victim, and that way act as a political check on our government and our legislature’s creation of unreasonable laws.
Aaron: Let me jump into a question here that I am sure a lot of people are thinking about at this moment, which is what is the legal doctrine of jury nullification?
Don: That is actually the name of the legal doctrine is jury nullification and it is that jurors have the power to vote their conscience and to acquit if they believe that justice requires they believe the law is wrong, unjust or unconstitutional. That is not to say that they have the power to bring a conviction beyond what has been charged by the prosecutor and it does not mean that the actions of the jury have any precedent in terms of changing the law or anything like that. It is that in this particular case, being heard by this particular jury, they can say not guilty and let that particular defendant go free and that is the extent of their power, but it is power that cannot be questioned under our system and that is absolute. Two reasons for that. A not guilty verdict cannot be appealed and jurors cannot be punished for their verdict, even if it goes against the letter of the law, and the oath that they are asked to take is actually a false oath because it is not really enforceable.
Aaron: It is often said Don that there are four boxes to defend freedom. Would you like to elaborate on those?
Don: Sure, probably in order of which one you go to first. There is the soap box, which is the first amendment – the right to freedom of speech, and there is the ballot box, which if we are not talking about electronic voting and vote scam and things like that, that is the ability to elect representatives in the constitutional republic. Both of those are under attack these days as we know. The third box is the jury box, and the fourth box, of course, is the cartridge box. Now the cartridge box is the last resort and we all hope that it never comes to that in defense of our freedom, so trial by jury is getting right down there though. Once you get to trial by jury, you haven’t gotten many options left to preserve our freedom and that is under attack too. Trial of jury as an institution is under attack in several different ways. Just recently we had a jury in Idaho who was actually arrested for voting her conscience in the jury room and they finally had to dismiss that, but that is what it has come to and we have pressure from prosecutors to intimidate people with charge multiplication so they end up pleading guilty even if they are innocent they sometimes plead guilty, so there are all kinds of ways that trial by jury is under attack and not least of which is their attempt to intimidate the juror into thinking that they don’t have the power of jury nullification.
Aaron. Why is jury nullification under attack?
Don: Well, because if jury nullification becomes really widespread, it would be hard to sustain the current load of bad law that we are saddled with.
Ilo: When our country was founded Aaron, all of the citizens understood that they have the right to nullify bad laws and to refuse to enforce bad laws when they served on a jury, and because a jury is an exquisitely constituted body of 12 disinterested citizens, it doesn’t mean that we scofflaws running around. It meant that when 12 people sat down and deliberated together, they could determine as members of their community whether or not they wanted to enforce those laws, but what has happened over time is that there have been some decisions which first said the judges no longer had to inform juries that they had this authority because everybody knew it. It was assumed that everyone already knew that they had the authority to nullify and then that was taken and eventually was transmuted or warped into saying that even attorneys in court could not tell juries they had the right to nullify. Not that they didn’t have to, but that they couldn’t. About the only people these days who are able to inform jurors in the courtroom that they have the authority to nullify or to veto bad law are people who represent themselves and have more latitude than do lawyers, who of course being members of the Bar and Officers of the Court can be punished by losing their license or forbidden to practice in certain areas if they do something which is not amenable to the judge. So, we have lost this authority which we have always had over time and as the whole system of juries is being attacked, nullification is not only being attacked but we have seen in writing in jury instructions, one state, the state of Washington, it actually says in their jury instructions that nullification is against the law. It isn’t and so that is why we are here to help people exercise this authority that they have. When a jury is constituted at a trial, it is the highest authority in the courtroom. It has higher authority than the judge. As Don said, their verdict cannot be appealed if they find the defendant not guilty. So we are not teaching something new. We are restoring a right as much as when this country was founded, we had the right to keep and bear arms without the government infringing upon that at all. We at that time, jurors, private citizens, had the right when they served on a jury to nullify or veto or refuse to enforce bad laws or misapplied laws, and so you can see how there is this erosion of free exercise of our rights that goes fairly well across the board.
Aaron: Our guests today are Ilo Jones and Don Doig of Fully Informed Jury Association. Ilo, I have another question for you. It is along the lines of what you were just talking about. If someone is called for jury duty, are there other obstacles that are put in front of them? Are there other things being done to make it more difficult for a juror to be honest and to judge the facts of the case as well as the law?
Ilo: Yes, Aaron, these days as a matter of fact, that is an excellent question, and for some of your listeners, if they are called for jury duty, they may face this during voir dire which is the process of selecting the actual jurors from the jury pool. They may be asked, for instance, if they know about jury nullification. They may be asked if they know about FIJA. They may be asked if they are willing to follow the law as it is given to them by the judge without question. They probably won’t add the words “without question” but that is what they are implying. If they know about FIJA, if they know about jury nullification, if they say they will follow the law as long as they don’t find anything misapplied, or if they make any conditional responses to that question, the chances are about 99 out of 100 that they will be excused from jury duty. If they and we had this happen, would in fact during this process of questioning potential jurors would raise their hand and say “As I understand it, your honor, I think I have the right to nullify the law if I think it is being misapplied or it is unfair or unjust or unconstitutional law and I understand that that is my right as a juror”, the judge may dismiss the entire jury pool as being tainted.
Aaron: Well, that could be good. (Laughter)
Ilo: Certainly, all those people will go home and think.
Aaron: It might be a silver lining.
Ilo: But that is an obstacle that jurors face, trying to get even on a jury and be honest by saying yes, they understand that they have all this authority, and then if they are on the jury as we just had with this case in Idaho which Don mentioned, and during jury deliberations you might say something such as “Well, I don’t think this law is really fair” or “I answer to a higher power” or “I don’t know I think the way that the police gathered evidence is a violation of the person’s rights even though the judge said we had to ignore that”, there is a good chance that they will be removed from the jury and we know of instances where jurors have been prosecuted for felony perjury because they have taken the oath and then made statements like that in the sanctity of the jury deliberation room.
Don: That still remains really rare though.
Ilo: So far.
Don: Yes.
Aaron: So if someone tells the judge that they believe that the Almighty’s Law is a higher law and more important than the state law, what the judge’s attitude be.
Ilo: They would probably be excused from serving on the jury. In fact, I would almost guarantee that they would be excused from serving on the jury.
Aaron: Wouldn’t that be a giveaway to all the rest of the jurors as to what they are dealing with?
Ilo: Yes.
Aaron: The criminality of it all.
Ilo: People have been educated in government schools to believe that government is in fact sometimes the highest authority in known existence, and so if you ask them if you are in the courtroom, which is the higher authority, your creator or the judge? They will say in the courtroom, of course, the judge is the only authority. They will say that.
Don: The judge makes them take an oath and that can be pretty intimidating. An oath to follow the law as the judge gives it to them.
Aaron: Is that the oath.
Don: Yes.
Aaron: Okay. Welcome to the Soviet Union. How are juries selected and how has this changed during the history of our country.
Don: It is mostly a random process as far as getting the jury pool assembled. They have a jury wheel which is randomly selected from driver’s license lists and voter registration lists, and so the people that show up come from those lists, and at that point it is fairly random, but then you get into the voir dire process which can be really intrusive and really invasive of privacy, and then they do their best to select the lowest common denominator among the jury pool and eliminate anybody who in many cases has any education, they certainly eliminate anybody who seems to be a rebel or has any kind of independent thought going on, and we think that in contrast of what should happen is that the first 12 jurors that are there, as long as they don’t have any personal interest in the case relative on trial or a business relationship or that sort of thing, other than that, the first 12 there should be seated. Then you have a random jury, but if you had that, then you might get a lot more nullification going on and that would be highly inconvenient. That is extensive for the government and it is embarrassing to the prosecutor.
Ilo: Early in our country’s history Aaron, potential jurors were brought in and they were asked if there was any compelling reason they could not render a fair verdict and if there was, they were excused and the rest or 12 were seated from that group. As Don said, people were only excused from jury duty if they knew one of the litigants or they were the cousin of the victim or something like that. Other than that, we trusted each other to render a fair and reasonable verdict and it seemed to work very well and of course, the juries again at that time refused to enforce bad laws.
Aaron: Let me ask you a question if you wouldn’t mind speculating as to why we don’t trust each other as much anymore?
Ilo: I think it is because many of us have been taught, and again in government schools that rather than place our trust in each other, we should place our trust in government. When you are bombarded constantly with don’t trust this merchant, we need more laws to protect you the consumer from buying his cookies because you know he may be trying to kill his customers, or don’t trust this man to provide with safe working conditions because obviously he doesn’t care about his workers, and so government will protect you. When we are taught that we need to send our children to government schools because home schoolers obviously abuse their children and don’t teach them anything and keep them isolating and probably working in sweatshop labor, I hear these horror stories. Most of these alarms that are being raised, and they are all around, come to us from statists and government employees who have a vested interest in protecting their paycheck and their positions of power. I am not saying that they even do this consciously. It is how they live.
Aaron: Do you think that all of the things that you have been talking about here might be the overlying reason or the fundamental reason why jury nullification is not taught in schools? I would think that even if you went to law school, they are not teaching this or am I wrong?
Ilo: You are correct.
Don: Right, it would shift the balance of power in this country if it were taught and obviously the powers that be that control the schools and media and such don’t want to see that happen. A lot has been invested in giving the government grown to the place that it is right now and they don’t want to do anything to upset that applecart.
Aaron: You talked about jurors being punished a couple hundred years ago. What about today?
Don: There have been at least a couple cases that I know of where it was attempted, maybe Ilo knows more, but in one case a juror in Colorado was convicted for apparently supposedly not being forthcoming during the questioning and not volunteering information and that was overturned on appeal. And then there was the case in Idaho that just concluded and those charges were dropped, so I am not actually aware of where charges have actually stuck?
Ilo: I am not either, but what has happened Aaron over the last 20 years or so and especially since FIJA has been around to tell people about their authority or remind them of their authority as jurors, we are seeing far fewer jury trials as people are so afraid of the machinery of the government justice or injustice system that they will plead out rather than risk any kind of a trial because they are fearful and they realize that the judge probably will not allow all of the evidence that they need to present for their defense to be heard by the jury. They are fearful that they will lose and receive some kind of a mandatory maximum sentence or mandatory minimum sentence that is very long. They know by the time they have been caught up in the cogs of this machine of the legal system, they can see that they are going to be fearfully abused and that justice will probably not be rendered and so they will do anything to hide from worse punishment than they may get if they simply plead out and take something. Another side of that of course is that for most of these people, they have families and going to trial and mounting a defense had disseminate a family financially and so if they want their wife and children or whatever to have anything left while they are in prison, the odds being good that they will go whether they are innocent or not, then it is best if they just plead out and at least leave their family with their home and their meager savings.
Aaron: Well, alright. So let us speculate a little. We have a nation full of people who fear the government, a government that is apparently so corrupt that you simply can’t fix it, what do we tell people to do to bring back a Bill of Rights culture?
Ilo: Some things I tell them to do personally and also as part of FIJA, I tell them whoever the incumbents are in office, vote them out. Change this every four years until they get the idea that we aren’t putting up with career death spots in office. Serve on juries. Run to serve on juries and unless they show you a dead person, not a violated statutory law put in by some bureaucrat, unless they show you a harmed human being, refuse to vote in favor of a guilty verdict. Refuse to render a verdict of guilty. I tell people as well because if juries fail to protect our rights and if juries cannot protect every exercise of those rights, we need to be able to defend ourselves from people breaking into our houses and becoming predatory. I tell people to spend time on the range and practice and make sure they have a good aim and I am being honest. I am being honest, that is what I tell people these days.
Aaron: Good for you.
Don: Also I would point out that over the last however many years, 15-20 years, the powers that be have lost control of the flow of information and the latest and greatest in that story has been the Internet.
Aaron: Today there was an article on the Internet that came out of England about Rupert Murdoch who is a media baron who has made it very clear that the old media is dead. The bloggers, the Internet, that websites are going to replace newspapers, so I think that is good news for freedom.
Don: We hope so because the Internet is a hot bed of alternative history and alternative thinking on questions like the Bill of Rights culture, so I think everybody should get plugged into that because you are not going to find out the truth by watching the evening news and by reading the daily paper.
Ilo: By the way, everything we have been talking about today is as important for defendants to know about demanding a trial by jury and, of course, we assist sometimes in cases by sending a lot of literature out or providing literature for them for people to give out to the jury pool in their community, but I want to say that this is also very important for defendants to demand a jury trial, demand their rights, and not give them up because they are intimidated by the court system.
Aaron: Ilo, can you tell people where they can obtain your information and literature and a website.
Ilo: I would be happy to. Our website is www.fija.org (Sorry - link expired, JPFO webmaster) If you would like a free packet of information, we have an 800 number. It is 1-800-TELJURY (1-800-835-5879). If you leave your name and address at that number, you will receive a free packet of information which I hope you will read and then share with someone else.
Aaron: What can people do aside from getting the information from you, the free packet, to help spread the word and to help enlighten you know millions of Americans about how their rights are being destroyed by not allowing them to judge the law as well as the facts of the case.
Ilo: Aaron, we have a free powerpoint presentation that we are happy to send out along with a packet of literature. We encourage people that if you belong to a church group or a civic organization, even the PTA, if you have a group of cub scouts, if you are a teacher, whatever you do, if you have a group in which you participate, get some of our literature, get our powerpoint presentation if you have a way to use it, and schedule a time to have a talk about jury duty and what it is and what it means in this country and share these ideas with those around you and open it up for some discussion and if we have a speaker in the area and we do have speakers around and those are listed on our website under state contacts, they will be happy to come and speak to your group, but we have found that people once they have read our literature and the idea sparks with them and lights a fire in their mind, they are quite capable of holding a discussion group with their local civic group or whomever, or even just with your family or at your workplace, write to us, get some literature, and spread the word. Hand out our website. We have posters you can put up. We have a lot of information to share.
Aaron: Why should gun owners pay very close attention to what you are doing, to what you are telling people, and how will they benefit if they do so?
Don: In a sense, trial by jury is the peaceful mechanism by which we protect all the other rights in the Bill of Rights. You can protect, for instance, the right to keep and bear arms when the BATF or local police arrest someone on bogus firearm charges to just simply vote not guilty in those cases if you are on the jury. And so that protects the second amendment to the Bill of Rights. It protects all the other rights in the Bill of Rights through the process of trial by jury, and I submit that that is a preferable way to protect the Bill of Rights than by finally resorting to the cartridge box, if we can, if we can do that.
Aaron: Let me ask you one last very simple question. Is there anything that we haven’t covered that you think is crucial for people to know about?
Ilo: I wanted to make one point. Jurors when they are constituted as a body, as a jury, have again the ultimate authority in the courtroom. They cannot be punished for their verdict and they have the power to protect not the rights guaranteed under the Bill of Rights, but all human rights which are intrinsic for all humans in the world, and jurors have those rights as well and certainly the highest one they must use when they serve on a jury is to exercise their conscience and their independent thinking mind in rendering a verdict no matter what the judge or the prosecutor or anybody else tells them to do.
Don: And for as much as they apparently hate this right and this power of the people, they have not yet succeeding in prosecuting anyone successfully for it in all of the trials all around the country where it has been an issue. It is still abundantly clear that you have the right and the power to vote your conscience as a juror and they are not going to punish you because they don’t have that kind of power.
Aaron: Today our guests have been Ilo Jones and Don Doig of FIJA (Fully Informed Jury Association), and they have been helping us learn about Fully Informed Jury and jury nullification and hopefully we are going to be able to put this to good use. The Patriotic Act probably will create plenty of reasons and opportunities for people to have to deal with the court system.
I have been your host, Aaron Zelman. This has been Talkin to America” and remember if you won’t defend your rights, don’t complain when you lose them.
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