Populism, free speech, and the rule of law: the "fully informed" jury movement and its implications.

• Author: Haynie, Erick J.

INTRODUCTION

Anti-government groups are on the rise.(1) While some use violence to further their ends, many consist of "paper warriors" who fight the power of government through quasi-legal mechanisms.(2) Some of the paper warriors' better known tactics include filing liens, lawsuits, and bogus letters of credit against IRS agents, judges, county clerks, and other public officials.(3) However, one of the greatest and least noticed challenges paper warriors pose to the constitutional order--and to the criminal justice system in particular--comes from the jury nullification activists of the Fully Informed Jury Association (FIJA).

Since its inception in 1989, FIJA(4) has waged an aggressive and unscrupulous advocacy campaign to inform sitting and prospective jurors about their power to engage in "jury nullification"--the raw and undisclosed power of juries to render verdicts contrary to both law and fact.(5) The theory behind the FIJA movement is that, by making every potential juror in America "fully informed" of his ability to "veto" the law, political power will be "returned to the people" by making juries the chief determinant of public policy.(6)

FIJA advocacy takes a wide variety of forms, the most potent of which is FIJA's practice of picketing courthouses to advertise and pass out "nullification instruction pamphlets" and other information to jurors explaining their absolute power to nullify.(7) Over the past seven years, FIJA advocates have attempted to inform juries about their nullification powers in hundreds of criminal cases nationwide.(8) Despite the fact that FIJA advocates are often dismissed as "wackos"(9) and ignored by courthouse officials, these solicitations are influencing jurors and the jury decision-making process.(10) Because little has been done to counteract this growing movement, its potential impact is enormous.

This Comment discusses the serious challenge FIJA poses to the impartial administration of criminal justice. Part I examines the nature and scope of FIJA advocacy and its ability to influence the jury decision-making process. This section looks in particular to Turney v. Alaska,(11) which involved the prosecution of a FIJA advocate who successfully persuaded jurors in a case he "lobbied" to "change their vote" to an acquittal. Part II considers the dangers FIJA poses to due process and the rule of law. In particular, this section examines the virtually universal state and federal common law rules that bar nullification instructions or any jury exposure to nullification arguments by counsel. By examining the reasons courts refuse to allow nullification instructions, the extent to which FIJA advocacy (which accomplishes the same result) is at odds with established judicial policy is revealed. Finally, Part III discusses the uncertain prospects for a remedy. This section reveals that, while history, tradition, and the Sixth Amendment right to a fair trial place some limits on FIJA "lobbying," these limits may not be enough to stop FIJA from achieving its ultimate goal--fully informing every juror in America of its right and power to render verdicts in the teeth of both law and fact.

1. THE PROBLEM: FIJA IN ACTION

   1. TURNEY v. ALASKA

      This section explores Turney v. Alaska,(12) a case involving a FIJA advocate's challenge to a grand jury indictment for jury tampering arising from his protest activities at a state courthouse in Fairbanks, Alaska. This case merits attention for two reasons. First, the facts of Turney offer rare (though anecdotal) insight into both the effects of FIJA advocacy on the jury decision-making process, as well as the consequences of a jury becoming aware of its own nullification powers.(13) This case also merits inquiry because, despite the hundreds of FIJA protests that occur every year,(14) Turney is the only published appellate opinion directly adjudicating the legality of FIJA activism under a state jury tampering statute.

      Frank W. Turney regularly demonstrated in support of FIJA both inside and outside the Fairbanks courthouse between 1990 and 1994.(15) Over the course of these four years, Turney used signs, bullhorns and a variety of other techniques to communicate with sitting and prospective jurors about their nullification "rights."(16) In the course of these protests, Turney would

      stand outside the wall of the jury assembly area and yell with his

      bullhorn. At other times, Turney would bleat like sheep at the prospective

      jurors and he would beat on the doors of the room, disrupting not only the

      jury assembly proceedings but also other court proceedings in adjoining

      areas of the building.(17)

      The protests that finally led to Turney's arrest occurred in connection with the trial of one Merle Hall, a convicted felon who was being tried for knowing possession of a concealed weapon.(18) In July of 1994, jury selection was underway for Hall's trial.(19) Turney closely monitored Hall's case, sitting in on much of the jury selection process and the trial.(20) Turney's interest in the case arose from both his friendship with Hall as well as his opposition to the statute under which Hall was to be prosecuted.(21) Before trial, Hall's attorney had predicted that the jury would quickly return a guilty verdict by virtue of his client's facial violation of the Alaska statute.(22) The attorney took the case to trial solely to preserve an issue for appeal.(23)

      During the course of the jury selection process and trial, Frank Turney on several occasions communicated with both prospective and impaneled jurors.(24) Allan Coty, for example,(25) was among the prospective jurors ultimately selected for trial. When Coty arrived for jury duty at the Fairbanks courthouse on the 14th of July, he saw Turney holding up a sign that said 1-800-Tel-Jury.(26) Later that day, as the prospective jurors walked to the courtroom for jury selection, Turney approached Coty and several other prospective jurors.(27) Turney told them to call 1-800-Tel-Jury if they had any "questions" about jury nullification.(28) After completion of jury selection, Turney again approached the jurors and told them to telephone the number.(29)

      During the course of the Hall trial, Turney continued to make contact with the jurors.(30) At one point, for example, jurors Lena Flood and Richard Ellis left the jury room for a cigarette break.(31) While the two jurors were standing in the hallway, Turney approached and asked them to telephone 1-800-Tel-Jury.(32) Flood tried to ignore Turney, but she heard his message nonetheless.(33) Ellis took note of Turney's advertisement and later called the number.(34)

      At the time of these events, a caller to 1-800-Tel-Jury would have heard the following voice-mail message prepared by FIJA:

      Thank you for calling the Fully Informed jury Association. FIJA is a

      nonprofit educational association that wants all Americans to know their

      rights as jurors to judge the law itself as well as the facts regardless of

      the instructions from the judge because jurors cannot be punished for their

      verdict. [Jurors] are the final check and balance on our government, with

      more power than the President, Congress, or the Supreme Court. To talk to

      a live person, call 406-793-5550 or we will mail you more free information

      on jury veto power, if you tell us how you heard of us. Then name and

      spell your name, address, and zip code. Here's the tone.

      [Tone].(35)

      As the trial progressed, juror Ellis told another juror, Jeanine Paluck, that he had called the "1-800" number advertised by Turney.(36) Ellis also told Paluck that calling the number "would open [her] eyes."(37) Paluck later called the number and was told by FIJA that "jurors are powerful and can keep the government in check."(38) When asked whether the recording was in conflict with the trial judge's instructions, Paluck testified that:

      Well, basically when the judge instructs us, they tell us that . . .

      you can, t vote your feelings, you have to vote according to the letter of

      the law. And the--and the tell jury deal, from what I gathered from the

      recording that I got that I have more rights than what was read to me by

      the judge.(39)

      Jury deliberations in the Hall trial began at about 1:00 p.m. on Monday, July 18.(40) The jury deliberated well into the afternoon but was unable to reach a verdict.(41) Ten jurors were voting for conviction, two for acquittal.(42)

      When deliberations recommenced the following morning, Ellis told his fellow jurors that he had phoned the "1-800" number Turney advertised.(43) Ellis said that by calling this number he learned that "we weren't told our full rights" in the jury instructions.(44) Ellis also said that FIJA taught him that the jury did not have to "follow the law" in the decision-making process.(45) "I know my rights," he told the jury.(46) "I called 1-800-Tel-Jury. And I'm changing my vote to . . . not guilty."(47)

      The jurors continued to deliberate until about 1:00 p.m. that afternoon.(48) Again, it rendered no verdict. At Turney's trial, the foreman of the Hall jury testified that at least two of the dissenting jurors had changed their vote to "not guilty" after speaking with Turney or calling FIJA.(49) The foreman also testified that the jurors who switched stated they were "vot[ing] their consciences."(50) The jury eventually announced that it was deadlocked, and the trial judge declared a mistrial.(51)

   2. THE SCOPE OF FIJA ADVOCACY NATIONWIDE

      The FIJA advocacy efforts of Frank W. Turney, who was ultimately indicted for jury tampering and criminal trespass under the facts above,(52) are not extraordinary in nature or scope. Nor is there any reason to suggest they are extraordinary in result. With outposts in over forty states,(53) FIJA advocates picket literally hundreds of criminal cases every year and distribute hundreds of thousands of pamphlets to jurors and other courthouse passersby.(54) According to Jim Harnsberger, FIJA coordinator for the State of California, over a million...