Academic journal article Journal of Criminal Law and Criminology

Populism, Free Speech, and the Rule of Law: The "Fully Informed" Jury Movement and Its Implications

Academic journal article Journal of Criminal Law and Criminology

Populism, Free Speech, and the Rule of Law: The "Fully Informed" Jury Movement and Its Implications

Article excerpt

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.

I. THE PROBLEM: FIJA IN ACTION

A. 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. …

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