JUDGE SAYS BURN THE BOOKS!

The book, with the subtitle "What You Need to Know for Jury Duty," was donated to the jury room by the Independent Insurance Agents of Marin.

The author, Godfrey Lehman, is an intense man with Einstein-like white hair. I have known Godfrey for a few years, and in my opinion he is the foremost scholar in matters of jury history, and the principles of jury service. Lehman was born in Maine, graduated from the University of Chicago, and did postgraduate work at the University of California at Berkeley. He served as an army lieutenant in the Pacific during World War II. Currently, Lehman runs his own publicity firm in San Francisco.

Lehman's booklet informs jurors that even though the judge will instruct that they must obey the law no matter how they feel about it, juries have through out the centuries, disregarded this instruction. As a result, according to Lehman, juries have brought about freedom of the press, and ended the death penalty for forgery in England.

Perhaps the most historic jury trial involving nullification, and one that Lehman writes about extensively in other articles, is covered briefly in the "banned" jury book. The foreman of this (British) jury of 1670 was an independent-minded merchant named Bushnell. The accused were a young preacher and an older colleague who defied state prohibition against all but the approved religion. Lehman writes:

"On the Sunday morning in question, some 300 or 400 congregants, doing nothing more radical than placing a different interpretation upon the Protestant Bible than did the Anglicans, were worshiping on the street in front of their church. They were prevented from entering the building by soldiers ringing the building, threatening to shoot. The 12 jurors took the position that the government had no authority to lock them out because 'every man has a right to worship God according to his own conscience.' On that principle the 12 were willing to sit inside their fouled closet until death. [The court locked the jurors up for two days without food or sanitation to try to force them to convict the defendants.] Without the verdict the government was blocked, and when the jury won its point the [young preacher] and his colleagues were freed over the desires of Parliament, court and King. Thus these 12 'bumbleheads' proved the power of the people through the jury was stronger than any other power of government. The hated Contenticle Act fell, and freedom of religion was established -- to be officially recognised 19 years later in the English Bill of Rights, and in another 100 years in her former colonies by our own First Amendment."

"Since the congregation had been meeting orderly, the jury also established the right of the people peaceably to assemble, and the right of freedom of speech. It may be only incidental to the principles involved to take not of the prime defendant, but it is significant to American history. For had Bushell and his [fellow jurors] yielded, the [young preacher] quite possibly would have been executed, which would have meant no location for hanging the Liberty Bell, as there would have been no Independence Hall and no city of Philadelphia. The youth on trial had been leading an assemblage of Quakers, and his name was William Penn, founder of the Pennsylvania Colony a decade later. This jury of anonyms had quite probably saved the life of William Penn."

"In the 19th Century the odious Fugitive Slave Act was rendered inoperable by juries refusing to convict; in England capital punishment for minor crimes (forgery, petty theft, etc..) Fell before the verdicts of juries acquitting defendants, in spite of overwhelming evidence against them. It was the people's way of setting public policy. Within a few years Parliament came around; they officially reduced the number of capital crimes from some 320 in 1819 to, a century and a half later, none."

"The perennially unresolved issue about the jury is the question of right to disregard evidence and violate law in the verdict -- we might say to give weight to sentiment, and to judge the rightness of the law itself."

"While attorneys are permitted to try to sway you on such extra-evidentiary grounds as sentiment, you are criticized if you allow yourself to be so swayed."

"The court will instruct you that no matter how you feel about the law you must obey it as written. Officially the judge interprets the law to you, and the jury passes only on the facts. This is what judges have been doing for centuries, but for as many centuries the jury has stepped beyond its official boundaries. Jurors have understood the evidence, but bring in verdicts contrary to evidence; they have been told what the law is and they have defied that law."

"The Supreme Court of the United States was twice confronted with this issue. In 1794 the court ruled that the jury had the right to disregard law and evidence; in 1894 the court decided six to three that the jury did not have the right to, but had the power to do so, and having the power meant that the question of right was moot and ineffectual."

How did this little booklet remain in the jury room of the courthouse for so long before discovery by the judicial establishment? One juror, a local attorney, Carol Heymeyer, actually read it from cover to end. She, being a part of the courthouse elite, didn't like the implied threat to the power structure and complained. Then the judges read the book. What was their reaction?

Marin County Superior Court Presiding Judge Richard Breiner said that he had ordered the booklets "removed and made into firewood" after he reviewed it. He later said that he was considering replacing Lehman's book with one published by the California Judges Association entitled "Jury Duty -- An Honored Service."

The president of the California Trial Lawyers Association, Peter Hinton, used stronger language to describe the pamphlet. Besides complaining of "obvious philosophical damage" to jurors he further argued that "to permit one person or a group such as the insurance agents to propagandize the jury and to unduly emphasize a matter of law or fact defeats the entire concept of the jury system and gives an unfair advantage to the proponent of such an idea so that the objectivity of a juror becomes impossible."

San Francisco trial attorney Ken Rosenthal said that author Lehman is "suggesting that jurors can step beyond the official boundaries and bring in verdicts contrary to evidence ... juries who bring in verdicts contrary to the evidence waste the courts' time because their verdicts will be reversed on appeal."

Lehman said that "The juror's obligation is only to his conscience. The bulwark of all liberty is the power of the jury to disregard the evidence and vote their own conscience." When asked whether he would encourage a juror to vote "his conscience" against a law which has been held by the courts as constitutional, he said "the jury decides whether the law is constitutional."

Lehman, honored because his book was banned, yet incensed over the judges reactions said "the Soviet Union bans books, they're tyrants. I've challenged their autocracy. They pound themselves on the chest and say 'I am the law, the law must come from me.' On the contrary, the jury has the power to alter or abolish a particular law and this power is inherent in the Constitution and the Declaration of Independence. The people have sovereign power and delegate it to the government and 'when any form of government becomes an obstructor ... it is the right of the people to alter or abolish it.' What these miserable judges are trying to do, and it seems to be universal of the profession, is to retain their power."

COMMENTARY

The question in my mind is this; over the last 10 years, how many Marin County jurors actually did read Lehman's book and then voted for acquittal either in unanimity with the other jurors, or as hold outs who hung juries. NO one will ever know, but I suspect many have. I have broached this subject with lawyers and their general response is that nullification is always possible in any jury trial, but is never raised directly as an issue of defense strategy.

If a defense lawyer forthrightly informs the jury that if they believe the law under which the accused has been indicted is spurious, stupid, or contrary to personal and property rights, they can vote accordingly even in the face of overwhelming evidence. But an attorney who does this runs great risk of raising the ire of the judge who can make it difficult in future trials.

Why do prosecutors fear nullification and public defenders do not? And why does a judge suggest burning Lehman's book? This was no slip of the tongue ... the judges and the entire judicial system would prefer that power of nullification did not exist.

Lehman is right in his assertion that independent minded juries are the most serious threat to unbridled government power. This is because most other kinds of rebellion are statutorily criminal, whereas jury disobedience is unpunishable.