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I have always wanted to serve on a jury. However, when I finally got the call, there was a problem.

Henry Ward Beecher once advised, “Hold yourself responsible for a higher standard than anyone else expects of you.” Good advice. If you talk the talk, be prepared to walk the walk.

I was actually kinda looking forward to the jury experience, and had I been willing to lie, and/or compromise my principles, I might have actually gotten to serve on a jury.

After two days I was ordered to report to the jury lounge, and did. Half way through the “hurry up and wait” cattle call, they played an orientation tape for us to view. After having viewed the tape, I went home and wrote the following letter to the jury commissioner:

    Dear Madam,

    I have been called to jury duty and was recently called to report. In the process of the jury orientation I watched the video which was shown. I was surprised by what I thought to be incorrect information presented in the video, and am seeking clarification.

    As a radio talk-show host I have had the opportunity to interview a wide and eclectic variety of representatives from various organizations. Additionally, my reading and research indicates that the power of a juror is far more significant than presented in your orientation.

    There was a Nov. 30, 1984, article in the Minneapolis Star and Tribune entitled, “What judges don’t tell juries” and subsequent reference data (U.S. vs Daugherty, 473 F 2nd 1113, 1139 in 1972), which suggests your orientation is misleading.

    The first chief justice of the U.S. Supreme Court, John Jay, said, “The jury has the right to judge both the law as well as the fact in controversy.” Your video states the opposite.

    In U.S. vs Daugherty, 473 F 2nd 113, 1139 (1972), it states clearly, “The Jury has an unreviewable and unreversible power … to acquit in disregard of the instructions on the law given by trial judge. …” Your video states the opposite.

    Given I will certainly talk about my jury experience (in general non specific terms) on my program, I would greatly appreciate your clarification and/or correction of my current belief. Since I am scheduled to interview people from the Fully Informed Jury Association again, I would very much like to have cited whatever law or precedent nullifies the beforementioned references.

    Thank you for whatever courtesy and/or consideration you may extend.

I hand delivered the letter to the jury commissioner and subsequently was told I could meet with the presiding judge. I met with the judge, and we spent a pleasant 30 minutes during which he gave me a recent court ruling which he said would address my questions. I read the ruling (twice) and the next day hand delivered to the judge and the jury commissioner the following letter:

    Dear Judge Ridgeway,

    Thank you most kindly for your courtesy, time and graciousness in responding to my previous query. Also, thank you for providing me with a copy of People vs Fernandez to complement our discussion.

    As I indicated, I have, over the years, been flooded with documents from a wide variety of “outside the mainstream” sources. I do not consider myself partisan politically, and have routinely maintained I am more concerned with “what” is right or wrong, rather than “who” is right or wrong. However, in the wake of considerable reading and study, I DO consider myself to be a Constitutional Conservative. The Founders had it right. Notwithstanding the obfuscation of time and inertia, I still consider the Constitution and the Bill of Rights to be the Supreme Law of the land.

    After our meeting I was hopeful the documents you provided would clarify my questions regarding jury nullification, and refute Justice Jay’s contention that, “The jury has a right to judge both the law as well as the fact in controversy.” However, after careful reading of the pages you gave me, I find my concerns about jury instructions exacerbated rather than quelled.

    On page 712 it notes “… we hold that the trial court did not have to advise the jury of its power to nullify a verdict…” yet clearly IMPLIES the jury HAS the power to nullify a verdict.

    On page 714 it notes, “We need not decide whether … the jury’s power to acquit where the law may dictate otherwise is a fundamental necessity of a democratic system.” The key phrase to me is “We need not decide”. It continues, “A jury has the ‘undisputed’ power to acquit, even if its verdict is contrary to the law instructed upon by the court and contrary to the evidence.” THAT is consistent with my expressed concerns. The next point, I feel, crystallizes the conflict, “few states still give juries the power to judge both law and fact.” WHY? … and on what authority? Can a state unilaterally choose to abrogate the constitution with a line-item veto?

    The suggestion that the only proper recourse to bad law is to elect legislators to change laws I find to be a hollow and myopic defense.

    I feel very strongly that, “An unconstitutional act is not law …” (Norton vs Shelby County 118 US 425 p442). I would, and do, consider improper jury instructions to be similar to what in the military we are told to recognize as an unlawful order.

    I can recognize the rationalization (and I believe it is just that) that courts use for not informing jurors of their power. However, I find it fascinating that no court seems prepared to refute the power of the juror.

    I have sworn an oath “… to preserve and protect the Constitution of the United States against all enemies foreign and domestic.” That oath still means a great deal to me. I cannot and will not swear any oath which requires me to undermine or abrogate my previous pledge.

    Your Honor, I am not one of the radical fringe. I respect and support order and the law. I reject the form and substance of anarchy. However, much of what I read in People vs Fernandez suggests an effort on the part of the courts to avoid and skirt a fact which disrupts procedure.

    I can find no facts which mitigate the “undisputed power” of a juror.

    Notwithstanding my strong beliefs, I very much appreciate your courtesy, assistance and cooperation, and again thank you.

The next day I was released from jury duty.

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