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HEARINGS ON HB 519

"THE FULLY INFORMED JURY ACT"

TEXAS HOUSE

CRIMINAL JURISPRUDENCE COMMITTEE

March 26, 1997

 (Allen Place, Chair of the Jurisprudence Committee D - Gatesville) The Chair will recognize Representative Elkins.

(Elkins) Thank you, Mr. Chairman. I know it's a long day and I know you would like to get home so I'll try not to take much time. I believe you got a committee substitute.

(Elkins) [Goes over changes to the bill]

(Elkins) Mr. Chairman and members: Our nation’s Founders were aware of the political science experiment that the worlds first government of, by, and for the people would survive only as long as it remained a close match between the will of the people and the laws of the land. They knew that there was only one political institution capable of making and maintaining such a match, that was trial by jury.

The judicial functions of juries as finders of guilty, innocence or liability was highly valued at the time of our nations birth but was only part of the reasons that the founders specified trial by jury 3 times in the constitution more than any other right. They were even more impressed with the jury’s political function as the final check and balance upon the actions of government including the new experimental government they had just designed and set into motion.

Juries in the new republic would exert their checking power by consensus they decided by applying the law would produce an injustice even in cases where the evidence of guilt was clear, uncontested or admitted. To the extent where the jurors are aware of their power to bring in a verdict according to conscience and because a verdict can only be reached by consensus a series of similar decisions and similar cases decided by jury trial provide a exceptionally valid ongoing poll of public opinion about any given law sent by to governed to those who govern.

Consistent acquittals by juries under a given law despite high quality incriminating evidence shows that the citizens disapprove either the law itself or the why in which it is used. Conversely, high conviction rates by juries demonstrates wide spread public approval.

To this day, juries retain the power to refuse to convict if they disapprove of the law or its application but for little over a century it has been the practice of our courts not to inform them about this power. Four states constitutions, Maryland, Indiana, Georgia and Oregon explicitly acknowledge jury veto power. Others including that of Texas allude to it in Article 1, Section 8 of the Texas Constitution. But no state has any legislation that makes it possible for the jury to be told of their power of nullification.

The price of this silence and, worse yet, the insistence of today's courts that the juries must follow the law like it or not has been a widening gap between the laws of the land and the public will. As that gap grows, respect for the law diminishes and more chaos results.

If alive today the Founders would be shocked to find that the ongoing jury evaluation of the law on which the entire America n experience depends has only after two centuries been thwarted by case law and judicial practice.

House Bill 519 would once again enable defense attorneys in cases when they deem it wise to argue that their clients acted morally, even if illegally. The prosecution would be given an opportunity to rebut and the jury would witness the debate.

That is where we get the name 'Fully Informed Jury' from. We hope that House Bill 519 can do its part to ensure that the American experiment is a perpetual success.

The purpose of this bill, first of all, is to increase respect of the law. House Bill 519 is a smart on crime bill because it is consistent with human nature. When people think a law is fair they are more likely to obey it and also to support its enforcement.

Law makers by relying more upon jury verdicts to guide changes they make on the laws of the land and to justify repealing laws that juries regularly do not enforce would realign the letter of the law with the will of the people and relieve much of the public anger with special interest legislation so regularly spawned. The laws would then be grounded with public approval and command more respect.

Secondly it would increase respect for the jury system. Telling juries the truth about their rights to bring in a general verdict will empower juries and inspire to live up to the increased trust and respect they are being shown. The expected result is high levels of conscientiousness and responsibility on the parts of the juries leading to increased public respect for the institution of 'trial by jury'.

Thirdly, it will increase respect for the courts. Courts can only improve their image in the eyes of the public by more dependably dispensing justice and by telling juries the truth, the whole truth, and nothing but the truth. Their reputation will no longer be sullied by the resentment jurors sometime feel and express when they find out after the trial that they could have voted on the verdict according to their conscience.

Fourthly, better deliberations and better verdicts as a result of removing the requirements that jurors who demonstrate a bias or prejudice against any phase of the law be excused from service. Concerned citizens will have a better chance of being impaneled. This will increase the likelihood that one or more jurors will bring up important aspects of the case which might not otherwise be considered.

Fifthly, it will defuse anti-government sentiment reopening the traditional peaceful avenue by which dissenting voices can get full and public hearing by juries acting as the conscience of the community will demonstrate respect for the root cause of their various dissents. Jury verdicts in trials of civilly disobedient persons or other political dissenters can provide strategic information for law makers who anxious to know how citizens want them to deal with such dissent. Of all the reasons that House Bill 519 is smart on crime, this may ultimately prove the smartest.

Sixthly, more efficient use of the jury pool. As people learn of their power as jurors and the importance of jury duty, more will respond to summons to appear for jury duty so that smaller numbers of summons will be needed. Also because fewer jurors will be struck for cause, smaller venire panels will be needed to from which to impanel a jury.

Lastly, less ignorance of the law. Some people may find House Bill 519 an opportunity to test one or another law by violating it then explaining themselves to a group of peers. But jury verdicts would soon identify the most problematic and unpopular laws and guide the legislature to revise and hopefully to simplify and clarify them so that violations by reason of ignorance or inability to understand the law would decline.

(Glass) [Introduction]

(Tom Glass)

I’m Tom Glass. I’m President of a group called the Lone Star Fully Informed Jury Association. I am also a Director of that Texas non-profit corporation.

I just want to start by thanking each one of you. I admire your stamina. I have not been involved in this process but once in my life, and I appreciate the service you are doing to your state.

Although I'd be happy to discuss the details of the bill if asked, I want to focus primarily on the philosophical and practical arguments for the bill today in my prepared remarks.

First, I want to discuss the state of jury independence today. Every legal authority in America history has recognized the power of juries to acquit based on conscience. By that they recognize that very essence of trial by jury demands that juries can't be punished by bringing back a verdict according to their conscience. As a result, there is nothing to stop jury independence once a juror is seated. That's why I say they have the power.

In addition to what everyone recognizes that we have the power, we also have the Texas Constitution. Article I, Section 8 reads "And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." Because the language specifically refers to libels, which back in those days when it was written was a criminal offense, this part of the bill of rights has been largely ignored. What we are trying to do with House Bill 519 is to bring this part of the Bill of Rights of Texas to life.

In addition to the right, I'd like to talk about the practice. The practice in most of the courtrooms including Texas today is hostile to the power that juries have of jury independence. They know that they have it, but most people in the courts anyway have been hostile to it.

Judges routinely tell juries that they must convict if the facts show that the law is violated no matter what the jury thinks or what the jurors conscience says. Many judges will hold defense counsel in contempt if they try to tell the truth to the jury about the power to acquit based on conscience or about Article 1 Section 8 of our bill of rights.

And, of course we also have a filter during jury questioning that says if you have a bias or prejudice against any phase of the law, automatically by law you can't be on the jury panel. So that means that if 90 percent of the public was opposed to a particular law they could weed out all 90 percent of the panel and leave the 10 percent left to do the deliberations.

So that's what it is now. This a far cry from the attitudes and the practices of the Founding Fathers and there is ample evidence that they approved of juries exercising their independence; they celebrated it; they liked it; they wanted it to be that way. And I’ve got two very brief references to that.

One is Noah Webster, who published the dictionary of the English language in 1828. Noah Webster was a Federalist. He was a guy that helped write the United States Constitution.  In his first dictionary definition of jury, one of the aspects of juries is called petty juries (which is what we are talking about here, not grand juries), he said "consisting of usually of twelve men attend court to try matters of fact in civil causes and to decide both the law and the fact in criminal prosecutions."

He wrote his dictionary to preserve the meaning of the words of the Constitution and that's what he meant when he talked about jury in the Bill of Rights of the United States. So that's one piece of evidence.

I'd also like you to flip over on this same piece of paper to the side that says citizen control of government to fully informed juries and I want to go to the third paragraph. It says I've got a dictionary definition from Jacob's Law Dictionary which was published in 1782 which was the prevailing dictionary for what the Founding Fathers knew about the law.

They quoted a 1670 verdict in there that said "Juries are not fineable for giving their verdict contrary to the evidence" - that’s just what I said. You can't punish juries, right?. - "or against the direction of the court for the law supposes that the jury may have some other evidence than what is given in court and they may not only find things of their own knowledge but they go according to their consciences."

So this is what the Founding Fathers thought about it. We have lots more quotes. If you want to hear them, there are other people here that would be glad to talk to you about that.

Well, that's the past and present practice. What I would like to do now is to state something explicitly.

I want to make sure the you understand what I believe. And that it is that is possible for a law to be unjust or unconstitutional or immoral - even in the United States of America. That's why we have the Bill of Rights, to stop those bad laws from coming along. That's why the Founding Fathers put that it there. And the Founding Fathers believed that there is a higher law than man’s law. The authors of the Declaration of Independence talked about the laws of Nature and Nature’s God.

And they said that is was self-evident that all men are endowed with certain unalienable rights. It is my belief (and I presume that most of the members of our organization believe) that no American citizen should ever blindly assume that all laws that are passed automatically are moral or correct. To do so is to deny the underlying ideas of our nation and our state.

In fact, based on these ideas of the laws of nature expressed in the Declaration of Independence, Americans at the end of WWII held trials for the Germans that we defeated at a place called Nuremberg. At those trials, we told the Germans that you should have followed your conscience when your government went bad. In fact, we hung some fellows because they didn't follow their conscience; they followed their government.

I think that was the American thing to do. The question I have for you today is whether you would participate if your government behaved in a tyrannical fashion. If you are like the vast majority of what I hope Americans are, I assume you would follow your conscience instead of your government if it went bad.

Today, police have the power to follow their conscience and not apply the strict letter of the law in their jobs. Prosecutors have that authority and that practice. Grand juries do. Judges do. Why should we try to limit the juries from exercising their conscience? Juries are supposed to be the people that run our country. They are the citizens.

If I have one other question for you today, it is "If you would not participate in tyranny, why would you ask the jury to participate in tyranny?" That's what I would like you to think about as you consider this bill.

In fact, in today’s court rooms, judges routinely tell juries that it is their duty to enforce the law no matter what their conscience tells them; the exact opposite what we told the Germans at the Nuremberg trials. And to me, the reason that motivates me to be here, is I think that practice in our court rooms is fundamentally un-American. That is the practice that HB 519 is designed to stop.

When I pledge allegiance and we all pledge allegiance to the flag of the United States of America and to the Republic in which it stands, we don't pledge to uphold every law that is passed. We pledge to our common goal: "with liberty and justice for all."

In America, liberty and justice are the goals. The law is the means toward that goal, and our conscience is our guide to get us there.

The law has two aspects, I think. It's a set of rules to tell us what behavior the community thinks is unacceptable. It's also a set of processes for determining truth and justice.

Jury independence is a process of law to obtain liberty and justice. It's not the practice of ignoring the law. Rather, it's a way to get statute law (man’s law) in synch with natural law that the Founding Fathers talked about.

So much for the philosophical arguments for HB 519. What are the practical benefits? Actually, on the state level I'm not sure that we're going to have a big impact with the passage of this bill. I think the good that will come will not happen primarily because we have laws that are unjust or unconstitutional in the state of Texas. Since most of the laws we have in Texas are good laws and supported by the people, the main benefit that's going to come is when good laws are misapplied in ways that don't make common sense.

And I'd like to give you two examples of that. First, there is a woman by the name of Carol Porter out of Houston, Texas who runs a charity called Kid Care. She fixes food in her home and takes it to poor kids every day in her neighborhood and around the city of Houston. In fact she does such a good job with that, she doesn't take government money, and she doesn't take United Way money.

She does it with her own contributors so she doesn't have to have any strings attached. She does such a good job that Mayor Lanier in Houston commended her for doing such a good job and she got a lot of publicity for it. As a result, the city bureaucrats who are in charge of enforcing health codes said "Ooh, she doesn't have a license to prepare food and send it to the general public."

So they went to her and said "You don't have a license, Miss Porter of Kid Care. We need to get you a license. As a matter of fact, let's look at your kitchen. Oh, your kitchen is not up to code." So they told her she had to put in a sink and a extra hood over the stove. She said "I'll put in the sink and I even understand why you want a hood for health conditions to draw off the grease. But I don't fry foods for my kids so I don't think I'm creating a health hazard here."

They said "If you don't do this, you are not going to have a license and we are going to prosecute you." She said "I would prefer to spend the limited dollars I have on the poor kids." So they took her to court, and prosecuted her in a civil offense for operating without a food license and the jury found her guilty. They gave her the minimum fine possible, which was $50. The jury foreman was quoted in the Houston Chronicle as saying. "If we could have given her a $1 fine, we would have."

The tragedy is that jury wasn't fully informed about their powers because juries do have the power de-escalate charges. If they had said "$1 fine", the state could not have increased it. In fact, if they wanted to, they could have said 'not guilty' as a general verdict meaning: "Not guilty of wrong doing - We are not going to harass you anymore, Miss Porter."

These situations may be rare but it allows the common sense of the people to apply in situations like that.

Second case: a young boy about 18 named Randy Jirasek about two years ago lives in Bell County - Troy, Texas. Lives on his family’s farm (about 40 acres) and they have a pond out back. He went with a buddy of his to go shooting that day just to practice shooting his shotgun.

This was dove season. The game warden heard the shooting and came to him as we were walking away from the pond and said "Boys, were you guys hunting doves." They said "No, sir, we were not, all we were doing was plinking bottles and if we saw a snake we would shoot it." He said "Boys, you are under arrest" and they said "Why?"

He said "Under state codes, hunting a snake without a license is an offense." "It doesn't mean that you have to shoot a snake, it just means you have the intent to go get a snake." "So you are under arrest for hunting a snake without a license." And the jury when they heard the law, said, "We have to follow the law, he admitted he was hunting snakes even though he didn't shoot one. He just said he was. So I have to follow the law."

And they fined him $200. So now Randy Jirasek has that criminal record.

Now these are fairly minor things but if we can pass a law that will allow our common sense as citizens to apply in these situations, we can stop these things and others like it from happening. Personally, I think we need fully informed juries in the Federal courts much more than we need them in the state level but we have to start at the state level first.

Juries informed of their power in state courts will take that knowledge into Federal court and passage of this bill in Texas will build momentum toward the appropriate changes at the Federal level.

Let me sum up by saying "What's the worse thing that can happen as a result of the passage of this bill?" The worse thing that can happened is that juries that were informed of their power to acquit based on conscience occasionally might let a real bad guy go free.

That's the worse thing that can happen. And that would be a tragedy. That would not be justice done. But on the other side you would have the benefits of letting people who are morally innocent of wrong doing going free and have justice done.

I guess the bottom line is whether you trust the people who run our country - and that is the citizens and the jurors - and quite frankly I think that Texans know the difference between real bad guys and good people that are being harassed by over-zealous government officials.

I hope you agree and I hope you will pass HB519 and I would love to take questions if you have any.

(Place) It appears to me that you favor a nation of men rather than laws. That sums it up.

(Glass) Let me tell you what I think about that. Thank you for that question. The idea of a "nation of laws, not of men" is the idea that says we don't want people arbitrarily exercising authority over people without some set of rules to go about it.

It's an idea that says we want to preserve liberty and justice. That's the idea behind that. And I agree wholeheartedly with that. Before you can convict someone of an offense it has to be a knowable offense, written down and we have due process around that. I agree completely with that concept.

Now, to use that concept, though against the concept of jury independence, which also is in synch with that very concept - Jury independence says when you get so many laws that you can't even know all of them; you can't even know that it's against the law to hunt snakes without a hunting license or bullfrogs. When you get so many laws, the policeman who wants to catch you can find a law and he's going to get you and if you have to follow the law blindly that becomes, then, a nation of men not of laws because you have so many laws that you can't even know what they are.

What this allows, this jury is - the respect for law. Our wording talks about respect for law, but also applies the conscience as the guide to it to respect liberty and justice.

And, so I think those two are very much in synch and I agree very definitely with a nation of laws, not of men.

(Place) So you think we need some laws.

(Glass) Oh, definitely, I mean, who doesn't? [puzzled]

(Place) I don't know. You're that first one up here. That's why I'm asking.

(Glass) Yes sir. Yes, I do believe in a nation of laws and I do believe that laws should be enforced, especially laws of violent crime and crime against other people.

Terry Keel (R - Austin): And your concern about a police officer arresting someone for shooting snakes which I don't know of a law, in fact, we have a bounty on snakes where I'm from. We encourage that. To my knowledge there is no law about hunting snakes.

(Glass) I looked it up in the web page. I got it back in my brief case. I couldn't believe it, either.

(Keel) Under natural law or whatever else you recommend. What's to keep a police officer from citing in his mind under natural law that shooting snakes is a bad thing, and go ahead and arrest that person anyway.

(Glass) That's a good question, too, and I'm glad you asked it. This doctrine of jury independence only works in the direction of mercy.

(Keel) I understand that. What's going to keep that police officer in that instance from arresting that person.

(Glass) There's nothing that can stop a police officer from arresting anyone...

(Keel) Whether it's under a law that is passed in the book or a natural law or something else..

(Glass) Right. I do believe (and our organization believes) in a nation of laws. You can't prosecute somebody for something that's not written down. That's what I understand a "nation of laws" to be. This doctrine doesn't say anything about that. It doesn't allow a prosecutor to bring charges under a law that doesn't exist. And it doesn't allow juries, even, to assess penalties worse than what the law says because that can be struck down by the judge or appeals courts. And it also doesn't allow petty juries to make up new charges on the spot and find them guilty of something different than what they were charged with by the grand jury and the prosecutor. So, I share your concern about the system going amok and convicting people they shouldn't convict, but HB519 in these concepts does not do that.

(Keel) Do not do what?

(Glass) They do not allow police officers, prosecutors or juries to go beyond what the written law is in terms of maximum punishment or what is against the law. Really, if you think about this, this is a mini, isolated referendum. You know, initiative is new laws. Referendum is, "let’s look at existing law". In the case of jury opinions, all they do .. they look at the law, they look at the facts. If the facts say the law is violated, they can still say 'you know I don't like this law or I think it's being misapplied and in this particular situation we have a mini-referendum that won't apply to any other case except this one and we are going to say that we don't like it and we are going to say not guilty'. So this is a limited, little-bit referendum, is what it is.

(Keel) So, it depends where you are in the state of Texas. At any one moment, what's being judged guilty and what they are getting guilty verdicts in Harris County, Texas is going to be legal in Waco or San Antonio. It depends on where you are?

(Glass) First off I'll say this, our laws are not applied consistently today without HB519. Some people get away with other things and other people don't. Some judicial communities, sheriffs, prosecute laws and others don't. So there is unequal application of our laws today.

And I guess my answer to that since I see juries acting in the direction of mercy and using common sense, the question becomes if we have the choice of consistent application of a bad law that violates a person’s rights and would imprison a morally innocent person; or, we have a chance in some communities those people going to jail and in the other communities they don't, I'll take inconsistent, sometime justice, rather than consistent tyranny.

And besides we don't have consistent application of the law - it's an impossible dream as we speak. HB519 only gives you a little more chance at justice.

(Place) Do you have a question?

(Keel) Can I please see your source for the snake law?

(Glass) I've got it in my brief case and I'll be happy to bring it to you. Would you like me to do right now?

(Keel) I might get four fifths of the house to vote right now to repeal of that law…

(Art Reyna, D - San Antonio) Mr. Chairman, I have a question.

(Place) Let him finish the snake story.

(Glass) [Returning to podium] I don't know who is in charge of putting up stuff on web pages, but the state doing web pages is one best good-government things we done in a long time because I was able to go to the Texas Parks and Wildlife web page and I pulled down their Texas hunting license and regulations. It's 17 pages. On the last page is the definitions page and one of the definitions is hunting - "take, kill, pursue, or trap and includes attempt to take, kill or trap."

(Keel) I think that if you will read the entire code, there are certain exceptions for varmints which includes snakes.

(Glass) I could be misreading the law, too. But evidently that game warden and that jury and that judge did too. Here is what it says on page 15 of that web page, It says "Bull frogs, turtles and snakes except threatened or endangered species". It says "no closed season, daily bag or possession limit. A hunting license is required." I was trying to find proof of what this guy had said and this is what I found. I'd be happy to provide this web page copy to if you like it.

(Keel) Do you feel that this is an injustice…. did they appeal this to an appellate court?

(Glass) I don't know what happened. I asked Randy to come and testify. He's a young man who got his first job a few days ago and he did not want to jeopardize losing his job to come. I had another man take an affidavit to him, but his car broke down. That's the story as he told it to me over the telephone. Did someone else have a question?

(Reyna) If you are not the best one to answer this, suggest who is. Is it fair to have the law to allow the jury to be more lenient without having the law allow the jury to be more punitive?

(Glass) I think this comes back to what Representative Place was talking about a nation of laws, and not of men. If you allow the jury to do something that goes beyond what is written down in the law, that becomes ex post facto. You never know what you can become accused of, or what the jury can do to you. That puts you into the situation where you don't know what you are doing is against the law or not.

(Reyna) I accept the legal distinction although I'm not sure that imposing a penalty that's less than what the penal code allows isn't really the same thing anyway. I'm asking is it fair to allow the jury to exercise its own good moral judgment to be more lenient without allowing the jury to be more punitive when the jury feels perhaps that it is appropriate.

(Glass) I guess that depends whether who {break in the tape]

[from memory of what happened:]

… on the question of fair to whom? Allowing the jury to escalate charges beyond the legal maximum would certainly not be fair to the defendant.

[the tape picks up during the middle of an answer by Glass to Robert Talton (R - Pasadena, Vice Chair of the Criminal Jurisprudence Committee, who has assumed the chairmanship of the committee, since Chairman Place has left)]

(Glass) …. the question is whether we filter them beforehand with the 'for cause' strikes and the question is whether your allow the defense attorney to tell them they have the power to do that, so I’m not concerned about that with Texans….

(Talton) I'm not worried about the voir dire. I'm worried about when you have picked the jury and you give them that authority as such as far as the law is concerned unless you say that the facts prove it up that the guy did it. So be it. Most people would agree to it. Let's just say that, you know, "I didn't like how that prosecutor handled it," or whatever it might be, "I don't care. We're going to find that person not guilty."

(Glass) Well they have the power to do that. I don't think that most Texans would do that. They have the power today. You don't need this bill to do that. They have the power today. The question is 'Are Texans going to do that?' I don't think they are.

Let's talk one other thing. When we get rid of the strikes for cause in voir dire, we still have the peremptory strikes for the prosecutor and I'm told by my lawyer friends that in felonies in Texas (I haven't looked at the law of this so, I could be wrong) - in felonies in Texas, a prosecutor (and we have a former prosecutor here, at least one) you get ten peremptory strikes and there is nothing in this bill that stops the prosecutor during jury questioning from saying "Is there anybody here have a problem against the law again assault?" And if ten people raise their hand, the prosecutor can strike ten people after 519 is there. He just won't be able to do it for cause.

(Talton) So I guess what I have in mind and one of the problems I have with this is that we have legislatures that are elected by people to pass laws and then we have those laws - we have courts, I guess set up - at least appellate courts - to do appeal and interpretation but in y’all’s bill then that law would be interpreted by the jury. Not only the facts, but the law, also so the judge couldn't instruct them so okay this is the law straightforward here is what your legislature has done and you can do anything you - whatever you want to. Isn't that basically what we are doing?

(Glass) You can't do anything you want to. You can't escalate charges. The only thing this bill is talking about doing is two things. One is we allow the defense attorney or the accused to tell the truth about the power that exists today under the law and under our constitution. The other thing we are going to do is make it where if there is 90 percent of the people opposed to the law you can't just get all 90 percent off the jury and leave the 10 percent that are in favor. What we do is allow a process of referendum on the law. If you believe in initiative and referendum you should be for this bill. Because this is a very small, tiny, sliver of referendum. What this says is that people are sovereign, that's what it says.

(Talton) Who is the government?

(Glass) The people.

(Talton) That's right. And how do the people elect their representative government? They elect them.

(Glass) Citizens have several different levels on how they control their government. Elections are one, and the Founding Fathers definitely believed that juries were another. A major one.

(Talton) Do you believe that the Founding Fathers set up three branches of government for a reason? Do you know the reason why they set up the three branches of government?

(Glass) To check each other, in fact...

(Talton) Checks and balances; they didn't trust the branches; they didn't trust government because they just came over from England and they didn't trust them at all.

(Glass) Agreed. We are in complete agreement.

(Talton) But the other thing they did to was they did the jury trials and they did laws that were passed by a representative form of government and there was a reason that they did the representative form of government because they didn't have it over there with the Star Chambers.. So, I've also gone back and read the Texas Constitution. When you look at the Texas Constitution and the history of jury trials as far as the jury being the judges of the law and the fact. Hasn't that the way it's been in Texas since 1876?

(Glass) That is the way our constitution has been since 1876. Yes, sir. I’d say one other thing. Thomas Jefferson said this "I consider trial by jury as the only anchor yet imagined by men by which a government can be held to the principles of its constitution."

(Talton) I'm familiar with all that and I know Noah Webster. I know that we used his books up until the nineteen hundreds. He was probably the most educated person that we had and wrote many books and many of our education books. But, I just …. We'll wait to see what the others have to say.

(Glass) We talk about the three branches of government. I think the Founding Fathers thought of the jury as another check on the three branches of government.

Thank you for your time.

(Talton) The chair will call Paul Velte to speak in favor of the bill.

(Velte) I'm a lawyer practicing here in Travis County. I've got the feeling that probably most of the committee, if not all, are lawyers.

(Talton) It's not true.

(Velte) Oh, it's not true.

(Talton) Everybody that is up here right now are lawyers.

(Velte) Well, then we all have a common experience from law school when we were taught 'judges judge the law and juries judge the facts' when it was sort of gospel and that's the way we learned it and we never questioned it.

I certainly never did until one day I was coming from the court house and I got handed one of these fliers put out by FIJA and I got to read it and I thought that this doesn't fit. This says that juries used to be able to judge both law and fact in this country. So I did the research myself and lo and behold it's there.

There is plenty of case law. There's plenty of law review articles that firmly establish that at the time our country was founded juries in criminal trial (and civil, by the way) judged both law and fact. They returned general verdicts. In fact, there is a Supreme Court case, (one of the very few in which they actually held a jury trial themselves) in which John Jay instructed the jury in that case that they were judge of both law and fact.

That continued (in fact made it into several state constitutions) until the about the mid-eighteen hundreds when in my opinion lawyers and judges began to usurp the function of the jury by asserting themselves as the sole arbiters of what the law is. And that trend continued to the present day and time when we have today in Texas the instruction is "you will convict if you think the evidence is sufficient to show that the law was broken".

Now I would submit to the committee that you don't have to worry about lawless juries that are going to acquit clearly guilty criminals because my experience as a criminal lawyer in this state is that juries are eager to convict if they believe a crime has been committed. They want to be hard on crime. What juries aren't aware of, generally speaking, is that they have this power to acquit in cases when they are offended by the prosecution and/or the law that is being prosecuted under.

This bill, that's all it would do, would allow them to be informed. Now we can either allow a procedure by which juries are informed in the court room or someone else is going to do it, in some other fashion, and I would ask you to think about that. Do we want our juries to be informed through the back door, so to speak, or do we want to keep it out in the open?

The prosecutor will be free to make his pleas for law enforcement as they so eloquently do every day.

I would point out that there have been many examples where jury nullification has played an important part in the growth of our nation. If you remember, just prior to the civil war the government passed the Fugitive Slave Act. It said that anybody who help a slave escape slavery is guilty of a crime. Well, juries routinely refused to convict in those cases. That helped bring about the demise of the institution of slavery.

The same thing happened during alcohol Prohibition. It happened in the early colonial period. You may remember the John Peter Zenger trial which was a trial for sedition and the jury there acquitted even though it was clear that he had printed the statement. It was undisputed facts in that case.

I would like to read for you a provision or rather an article from New York Times from last year. This is sort of an example of jury nullification. "For the third time in recent years an Alameda County jury has acquitted people who ran a needle swapping program for drug addicts in violation of a California law. The foreman of the latest jury, a retired police officer, said the prosecution should end. Jurors deliberated only three hours on Thursday before clearing five people who admitted breaking state laws against giving sterile syringes to addicts."

"The defendants needle swapping program is an effort to stem the spread of AIDS among drug users" , etc. etc. It goes on to say that, "District Attorney Thomas Orloff had vowed to continue the prosecutions but after losing the third straight case of this type, he would meet with the deputy prosecutor who tried the cases just how to proceed."

I would submit juries like this that represent the people and since the law is supposed to represent the will of the people, when it comes time to apply the law on specific individuals and specific facts, we bring the people back in to make the execution decision, the enforcement decision, and that's appropriate. They are, they represent the people, and therefore this is a good bill. I think it would be a good addition to our jurisprudence.

(Talton) Any questions? Representative Keel?

(Keel) Okay, slavery. It's against the law to be a slave owner now. And let’s say you have someone commits felony false imprisonment, the criminal equivalent of slavery and they are tried by jury and, by golly, that jury is 12 people who think that slavery ought to be legal so they interpret your law that is says right here. It says if the jury determines that the defendant is guilty according to the law but the law is unjust or unjustly applied to the defendant, the jury may determine the law not to apply and find the defendant not guilty. So your argument could be used in the opposite direction.

(Velte) It could, and that can happen today. If you were so unfortunate as to draw 12 jurors who all believed that laws against slavery were wrong and were willing to acquit you for having clearly violated that law then that's bad luck but I really think that this bill wouldn't affect that.

(Keel) You can't do that today. Only if you violate the law as a juror. You're giving them a license to; you're telling them, you want the legislature to make it legal for juries to have a guilty person who has violated the laws of this state, but they nevertheless can acquit them because they don't agree with the law.

(Velte) No, that's not...

(Keel) That's what it says - that's what the bill says.

(Velte) All the bill says is that you can tell them they have that power.

(Keel) No, it says "except if a jury determines that a defendant is guilty according to the law but that law is unjust or unjustly applied to the defendant, the jury may determine not to apply law to the defendant."

(Velte) If you will see that a little bit I'm sure it will say that it would allow defense counsel to argue to the jury those things that you just read. The fact is the jury has the power now. Juries can acquit. The government cannot appeal and there is nothing anyone can do about it after acquittal. That's the way it was designed. That's the way we would like it to be.

(Keel) Here's what could happen. You could have a jury that; you could have a guy who; for example, did you ever see on TV where this fellow accused of kidnapping a child and molesting him and he is escorted by two deputies through an airport and an aggrieved parent executes him with a handgun at the airport. It's caught on film and everything. All right, you could have a guy who does that and you could have twelve jurors who decide, by golly, his child was abused, I don't blame him one bit for killing that guy and you could have a jury find that he is absolutely guilty of intentional murder which by the way can be punished by as little as five years probation. But they may actually turn a murderer loose for emotional reasons of believing that that was justified to kill that guy because he had molested a child. That's what this bill would do.

(Velte) That's not what the bill would do because they already can do that.

(Keel) Look at it! It amends article 36.13. That's what it says. That's what this bill says.

(Velte) I believe you are talking about that movie that came out last year.

(Keel) No, I'm talking about a real case that occurred in the United States in the last five years.

(Velte) Well, I'm not familiar with that case.

(Keel) I'm talking about where a guy that murdered a suspect who had molested his child. And I'm sure that anyone could sympathize with the victim of a crime whose child was molested.

(Velte) Did the jury in fact acquit?

(Keel) No! No! No they didn't. But under your bill they could. I'm just giving you an example.

(Velte) But they could without this bill. You see our point here? They've got that power. Could have done it like they did in the O.J. case. The fact is they didn't so I don't think we have to worry about that. Juries don't like crime. Especially crime that infringes on the rights of other people.

(Keel) Well, I would say that in the 254 counties of Texas that the only protection that some people in our society feel they have is the rule of law and that we have a rule of law and not men. And if you don't believe that this bill says what it says, then I don't know what you are doing here. And that's what this bill says, that we will have a rule of men, not laws.

(Velte) I would just close I suppose with the observation that this esteemed member of the committee, Mr. Keel. Your views are understandable in light of your experience as a prosecutor. I know that prosecutors generally do not like this bill. So that's to be expected, but I do thank you for your time.

(Talton) Wait a minute. Any more questions? Chair recognizes Representative Reyna.

(Reyna) Should a jury contain people who are fact witnesses to the incident which is the subject of the law suit?

(Velte) I'm not following you.

(Reyna) Should a jury contain members, people on it, who are fact witnesses to the incident that is the subject of the law suit?

(Velte) I would not believe so and I know that are clear rules against that now.

(Reyna) OK. And where did our system of jurisprudence come from. England, right?

(Velte) Yes.

(Reyna) Basically.

(Velte) Generally.

(Reyna) Are you aware of the fact that the first juries were solely consisting of people who were fact witnesses?

(Velte) Yes.

(Reyna) And we have evolved from that. I wonder why. Because it was a bad thing maybe?

(Velte) Well, perhaps. I do know that there were other trials. There were trials by ordeal. Trials by fire. Trials by, oh, I can't remember them all. Trials by jury over time was decided upon to be the best way yet devised.

(Reyna) And I probably tend to agree that our system may not be perfect but its probably the best one in the world. One I came up here as a freshman that a lot of people in my district were expecting me to be a little bit frugal with their money and on several occasions you said "We can already do this under existing law". So my question is "Why do we need to have a law to do what is existing law"?

(Velte) Well, because you have people who are uninformed and don't know the law. They don't know that when I sit down in a jury I have a right to vote my conscience and to return a verdict of not guilty even though I think technical guilt has been proven and all this bill says is that we can tell them in a court room about it instead of them finding out by reading a newspaper or joining FIJA.

(Reyna) Who told the people who acquitted the needle swappers?

(Velte) I do not know. All I know about that case is what I read to you. I do know there have been cases where leafleters like this have been distributed around the court house and has made an impact in certain prosecutions.

(Reyna) The theory that you are applying that the needle swappers’ juries used I think is a good one. The people do know when they have voice because they speak up or, whether they know they have a voice or not, they obviously spoke up because it was so wrong to them to see the prosecution take place. The lady with the $50 fine for giving food to children who didn't have food.

But what you are doing here is (and I don't often agree with Representative Keel because I have never worked as a lawyer for the district attorney’s office and sometimes he and I are on opposing sides) but I think he is absolutely right. You're giving them permission to go in any direction that they want to go, totally avoiding the law, and as a lawyer I have a lot of respect for the law, and I have been in the position of having clients who were nailed to the wall, morally, but the law said that they should be nailed to the wall, and I didn't like it, but I accepted it, as did they, of course. Not happily, of course.

(Velte) I would like to offer an example of like the Austin City Council's helmet ordinance for bicyclists. If you have testimony from an officer in the trial: "I saw him on the street and he didn't have a helmet on." The defendant doesn't dispute that. That's all the evidence in the case. Clearly guilty, right? Nothing left for the jury to do but convict him if the jury is bound to follow the law. They're not. And I would think that's a good feedback mechanism when juries routinely acquit on particular charges. That's information the legislation would be interested in to say there's something wrong with this law here. It doesn't reflect the will of the people. In that respect, it's good.

(Reyna) I think the legislature does respond when you have - twelve people is not the will of the people. I represent about 120,000 people and about 17,000, I think, voted for me and a number voted for somebody else (whose name I can't recall right now) and that was a mere fraction of the people I represent. And that doesn't even counting the fact that every vote is for 17 million people or more in this state. And to say twelve people, even three times (36 people) should change a law like that without going through the processes that we have used for about a couple of hundred years. There's something that is not right about it. I think the people need to have there voice, but to let (in some Federal cases, three people) change the law is not right. And it's not what we're all about.

(Velte) I would agree with that and.. But your statement that would allow three people to change the law. You need to understand that a jury that makes an acquittal doesn't change the law. The law is still on the books. Other prosecutions can be made, and even convictions had.

(Reyna) But it wasn't you .. someone else said that initiative and referendum remark. But that's what they are doing. Now, three or four of juries and, yeah, we really need to look at it and reevaluate it what ever is going on and apparently the D. A. in Alameda County is finally going to do that. Why they didn't make a deal with the kid shooting the snakes, or not shooting snakes or whatever he was doing. Why they didn't make a deal in the case with the lady who's giving food to poor children and why they don't make deals in a bunch of other cases is to be blamed on …

(Velte) It’s a waste of taxpayer’s money, that’s for sure.

(Reyna) No it’s not. If that is, then this is a waste of taxpayer money because I think that everybody needs to be heard about what they want to be heard about. But the reason they didn't make a deal is because two people didn't come to an agreement, the defendant and the person representing the state in criminal cases at least. Now, who are we to say who's more at fault, can you?

(Velte) No, but I don't hold it against either party when they can't agree especially when the state is the one preferring the charges. They could simply drop them.

(Reyna) Right, and that's the agreement. They could have come to that agreement but for some reason they chose not to, and I know that when Mr. Keel was in other elected offices, he had different oaths but the oath I took here and the oath that I took as a lawyer uphold a certain number of laws, some that I can't even recite anymore by heart, but I do know they exist and that's the problem I have. Not the right of the people to be heard. Far be an elected official to say that people do not have the right to be heard. But the right to change the law like that, especially when people can be hurt from it. I don't think there is anyone in this room whose going to agree that being unlucky enough or in some people’s opinion lucky enough to get a jury people who believe that we should have slavery again. Who in this room can really raise their hand and say that's a good thing?

(Velte) It's not and I don't think you would find a juror of twelve people that would either.

(Reyna) But it can happen. Do you agree at least Representative Keel's example is correct that it could happen?

(Velte) Yes, it could happen, that's a possibility. I would point out though, juries are drawn at random from the community so there is probably

[break in the tape] ... a better representative sample.

(Reyna) That's a whole different issue on how adequately juries represent. And I think that's a different committee, isn't it Mr. Chairman? And their is legislation pending for that too.

(Velte) I would submit that juries more than probably any other branch of government have one of the most fundamental traits and that is integrity.

(Reyna) Absolutely.

(Velte) Because they are on at random. They are not susceptible to bribery, influence and power.

(Reyna) They are, but most juries in my experience take their duties very seriously.

(Velte) That's my experience as well.

(Reyna) And they don't take lightly making any decision. And the jury in my particular case, when my people got nailed, they all regretted having to do it, but they all felt obligated under the law.

(Velte) And that's what we're trying to change it, because…

(Reyna) If they had felt strong enough, why would they...

(Velte) They do have the power as American citizens when they sit on the jury to say, "No, the law isn't right, we are not going to follow it. We're going to acquit this person."

(Reyna) And in the needle swappers case, the juries did that.

(Velte) Yes

(Reyna) And perhaps, that evidence was much more compelling than in my particular instance.

(Velte) And there are other examples I'm sure that I'm unaware - Dr. Kevorkian springs to mind. He's been prosecuted numerous times and every time the jury has acquitted. Now whether or not those juries were informed ahead of time what the procedures were in that state, I don't know. But I know that when they are informed, once they have been informed by somebody, it's done.

(Reyna) In Dr. Kevorkian’s case, I'm sure the media pretty much accounts for that. Thank you very much, sir.

(Talton) Chair recognizes Representative Nixon.

(Nixon) Did you root for O.J?

(Velte) No, I was really amazed at the verdict, myself. But I didn't watch every minute of the trial which that jury did, and I don't think it was a nullification verdict as some people say. Because what he did, what he allegedly did, was a horrendous thing that no one would of approved of and acquitted.

(Nixon) Is he a member or supporting y’all’s organization? [laughter from the crowd]

(Velte) Not to my knowledge. I would say no. I have never seen his name on anything we are doing.

(Nixon) All right, thank you.

(Talton) Members, any other questions? Thank you. Chair will call Philip Durgin.

(Durgin) I wish to show in favor, but do not wish to testify.

(Talton) Keith Campbell? In favor of the bill.

(Allen Bearden) He had to leave, but wished to show his support for the bill.

(Talton) Allen Bearden?

(Bearden) Yes, sir. I do not wish to testify, but am in favor of the bill.

(Talton) Clay Conrad.

(Conrad) Yes sir, thank you. I will answer some of the other questions that have been asked. First, I would like to answer a question that my own State Representative, Joe Nixon, asked me before this meeting was convened. He asked me, as a lawyer, how I could support this bill. And I would like to answer that question now.

As I have said I am an attorney. I respect the rule of law. I believe very much in the rule of law. I believe in the power of the law as a tool for fairly, honorably, and justly arranging our society. But as much as I believe and love the majesty of the law, I want to make clear that the law is not all that I believe in. I believe in the law, but I believe in justice more.

Justice, I believe, is the highest value for this, or any other society and when the law fails to serve the interests of justice, in the words of Anatole France*, "The law is an ass!" Then it ceases to be a value, and it becomes a destructive influence on our state and on our society.

* [Conrad stated after the hearing that he was mistaken on the source. The quote was actually from Charles Dickens, not Anatole France]

Probably the greatest legal scholar this country has ever seen was John Henry Wigmore. Professor Wigmore, Dean Wigmore, wrote over 800 law journal articles and 100 books on the law. And he believed jury law judging helped to provide stability in the law. He said that law and justice from time to time are inevitably in conflict.

That is because law, the laws you write, law is general rule. Even the stated exceptions to the rules are general exceptions. Justice on the other hand is the fairness of a precise case under all its circumstances.

Everybody knows this and can supply instances. But the trouble is the law cannot concede it. Law, the rule, must be enforced - the exact term of the rule, justice or no justice. But this being so, repeated instances of hardship and injustice that are bound to incur in the judges rulings will in the long run injure that same public confidence in justice and bring odium on the law.

We want justice and we think we are going to get it through the law, and when we do not, we blame the law. Now this is where the jury comes in. The jury in the privacy of its retirement adjusts the general rule of law to the justice of the particular case. Thus the odium of inflexible rules is avoided and popular satisfaction is preserved.

That is what the jury trial does. It supplies that flexibility of legal rules which is essential to justice and popular contentment.

This is an important bill. It's an important bill because it forces this committee and this legislature to focus on a particular aspect. It forces it to focus on what the purpose of trial by jury is.

Now this seems to be one of those unanswerable philosophical questions, but in a moment of real lucidity, the supreme court has assisted us. In Duncan vs. Louisiana, the court said that, "The right to trial be jury is granted to criminal defendants in order to prevent oppression by the government."

Now, they said jury trial, they didn't just say trial, they said jury trial. Obviously, they thought that - Obviously, Justice White who wrote the opinion thought that jury trial had some aspect to it that trial by the bench did not have, and he made it very clear later on in his opinion what that was. He said, "When the verdict of the jury disagrees with the verdict that the judge would have brought it's usually is doing some of the exact things that trial by jury is intended to perform."

The jury has many roles, and judging the facts is just one of them. The jury also has a political role to play. They have a social role to play. I believe the social role of the jury is to provide the stability that Professor Wigmore referred to by making sure that the law is only applied justly. I believe that the political role is that the jury is supposed to act as a check and a balance on the legislature. As judge Thomas Wiseman pointed out in the case US vs. Datcher, "Congress is not yet an infallible body incapable of making tyrannical laws." I think that same observation must be true of the Texas legislature.

I would like to answer some of the questions that were put to some of the other people in the interest of time so they don't have to be repeated. I remember that Mr. Glass was asked whether he believed in a 'nation of laws, not men'.

Well, I don't think that a nation of laws is possible. Laws aren't going to clean the streets. Laws aren't going to drive the cars. They're not going to build the buildings. We have a nation populated not just by laws but by human beings and laws. We have a nation of laws and men.

Prosecutors have discretion. I believe you all recognize that. Police have discretion. Judges have discretion. Every crime that could be charged is not charged. Every person who could be arrested is not arrested. Seeing that prosecutors, judges and police all have recognized realms of discretion. What logical bases is there for denying the jury their discretion? Their discretion to look at the case and ask whether the prosecutor and the judge and the police have exercised their discretion properly.

The jury is the final check and balance. Prosecutors take an oath to see justice done, not just to see convictions in every possible case. Justice. Now, justice is a subjective concept, true. But why should we trust one prosecutor’s view of what justice is more than we trust twelve citizens chosen from the streets. I don't think that a law degree gives a person any special insight into what is just and what is unjust. As a matter of fact, I tend to think that twelve people chosen at random may very well have a better view of what justice is than twelve jaded legal professionals.

There was a question about consistency in the application of the criminal law. As I've already said "Prosecutors have discretion, police have discretion, judges have discretion". So we've already thrown out consistency there. It's also not the case that the same facts are available in every prosecution and that also destroys consistency in the law. The fact is that consistency in criminal law consists of only one thing: where the elements of the crime have been committed, the prosecution may seek a conviction and may receive it. That is all the consistency that have ever existed in the criminal law. I personally believe that any belief in any further consistency tends to be an illusion.

Another question that Representative Keel asked. First he asked about, I believe he asked about kidnapping laws, slavery laws. Well, Representative Keel, it's also quite possible that you could end up with a prosecutor who believes that slavery was perfectly all right and he could chose not to prosecute. Statistics show and history shows that juries have less racial bias to them prosecutors, judges, or police have.

For instance, in capital cases, prosecutors have a 200 percent racial discrepancy in their charging based on the race of the victim. That was established in the Balduf studies. Juries on the other hand have a 40 percent racial discrepancy in their sentencing decisions. That's one-fifth the racial discrepancy the prosecutors show. So I do not think that we can really condemn the jury without looking at the other actors in the system. And I think that when you do compare all the actors in the system the jury performs very admirably.

I think at this point there is a lot more that I could say; I have given you some written comments that I believe you should have. These were prepared for the Cornell Law School symposium on Redefining the Role of the Jury that I participated in earlier this month. So you do have some written comments from me, so at this time I would like to take questions.

(Talton) Members, any questions? Representative Keel

(Keel) I believe you are sincere in what you do and I appreciate your testimony here and I find it interesting. But let me submit something to you, you're quoted in this article in Texas Lawyers as saying "How do you pronounce your groups name? Is it FIJA [fee ja]?

(Conrad) FIJA. [fee ja]

(Keel) OK, thanks. By the way, are you wearing the same tie that you wore [in the front page article of the Texas Lawyer]?... I do that all the time myself.

(Conrad) My lucky tie.

(Keel) On one of my campaign brochures, I'm in three different settings with the same tie on.

(Conrad) Just testing to see if you were paying attention.

(Keel) Anyway, it quotes you as saying "It's for anyone who could see themselves as being prosecuted for doing something they don't think is wrong."

(Conrad) That's true.

(Keel) "It's for anyone who is afraid that the government will come after them for innocent acts." Okay, let me submit something to you. When I was a prosecutor I had a defendant and he was a member of what's called the North American Man-Boy Love Association and they believe that sex acts with children is perfectly natural and is moral. And they believe that. And I'll submit to you (you can talk to customs people who investigate this; there are a lot more members than there are in your group) you could have a jury of people who believe that and (according to you), anyone who just sees themselves as being prosecuted that they didn't think is wrong (my defendant thought he did nothing wrong by writing a pamphlet called 'How to have sex with kids' and promoting child pornography. All right?

(Conrad) Are you ready for me to respond?

(Keel) Along the lines I asked Mr. Velte. We're playing with theories here. You can have a jury. You can have a guy. We have decided in the state of Texas, we are going to protect our children from exploitation and I'm telling you right now, you can say all day that aren't anybody who is going to be for slavery, or whatever. I'm going to tell you right now, you could have a jury of people who decide that, by golly, they don't think it's wrong to have sex with children and..

(Conrad) You could also have a prosecutor who would feel that way and refuse to bring charges.

(Keel) And that's my point. You can vote him out of office and you can vote the city council out of office who passed that helmet ordinance that Mr. Velte doesn't like and you don't need a jury to be the initiative and referendum on it because you have the power to go vote that mayor and city council out of office. You have the power if you have a prosecutor in this state. If you decide that your district attorney is either enforcing the wrong laws or he is lacking the enforcement of laws that should be enforced, you can run against him or you can vote for somebody running against him or you can throw him out of office.

(Conrad) If I could answer the question that I was asked. If I was asked a question.

First, juries already have the power to nullify and I think that's beyond cavil. Juries have the power to nullify. In Horning vs. District of Columbia, I believe it was Justice Holmes who wrote that, "The jury has the power to bring in a verdict in the teeth of the facts as well as the law." Juries have the power to nullify. All we are saying is the juries should be informed of about the powers that they have. We are not giving a jury a power that they do not presently have. They have the power to nullify. Also, I think that the chances ...

(Keel) So you think that if the jury does not agree with the law, that they can acquit a guy?

(Conrad) Please let me finish my answer.

(Keel) Well, you're not answering the question. You're not answering the question at all. [heatedly]

(Conrad) I think if the jury thinks the law is wrong, unanimously, that yes, they do have the power.

(Keel) You are not answering the question.

(Clay) They have the power today. They’ve had it since the Magna Carta….

(Keel) In Texas, they do not.

(Conrad) They do have the power and occasionally they exercise it.

(Keel) They may bring in a verdict contrary to the law and evidence but it is against the law. It is against the court’s instructions to do that.

(Conrad) The court’s instructions are not….. f or one thing, the courts instructions are not orders. For another thing, the jury is not bound either by their oath or by the courts instructions to follow the law. When the jury takes their oath, they reasonably assume that law and its applications will be fair.

(Keel) How many jury trials have you tried?

(Conrad) And that assumption….

(Keel) How many jury trials have you tried as lead counsel?

(Conrad) I do appellate law.

(Keel) Well, I've got news for you. Every jury trial in the state of Texas tried in every state court in this state, the jury takes an oath to render true to the law and evidence and they will take the law from the court and they are instructed by the court they are the exclusive judges of the facts but they are bound to receive the law from the court. That's in every jury trial in the state of Texas. You are flat wrong when you say juries have the right…. the right …

(Conrad) There isn't a single statute in the books to punish a juror who chooses not to convict if the juror believes that the law...

(Keel) You are correct.

(Conrad) ...is misapplied.

(Keel) You are correct. They can violate the law right now. And they...

(Conrad) They aren't violating the law. There is no law for them to violate. There is no statute on the books.

(Keel) Yes, there is. Read the code of criminal procedure. Read the civil

code. Read the jury instructions. It's the law.

(Conrad) It's not mandatory, though.

(Keel) Yes, it is.

(Conrad) There is no law to punish the juror who says this is wrong.

(Keel) When you try some jury trials, you might be authority on that, but I am telling you that that is the law in Texas, and that is the law in criminal and civil courts and you're flat wrong on your premise. You can open up the code of criminal procedure right now and you can read it.

(Conrad) Well, you have agreed with me that there is no statute on the books to punish the juror, nor is..

(Keel) Nor is there a statute on the books to punish a judge who acquits a defendant who in our opinion is guilty, but the jury is part of the judicial branch of government while they are serving on the jury and they have total immunity from prosecution, that is true.

(Conrad) Professor Lawrence Freidman from Stanford Law School has spoken of this and has said that jury nullification is referred to jury lawlessness. That it is very strange to describe something as lawlessness that is so carefully and explicitly built into the law. Jury nullification is a power that has historical roots that date back to before that Magna Carta.

(Keel) If you're right, then Representative Reyna's question is well taken. Why are you here today it that's already right. And the reason that you are here is because you're wrong. It is not right.

(Conrad) No, we are here because we believe that the jury should be told about it. The only question - James Joseph Duane, who's a law professor at University of Virginia, I believe, Regents Law School, I think it might be called, has written an article in the summer issue of the Litigation Journal published by the ABA. And he characterizes what this bill is about in one sentence, "What do we tell the kids?"

Because the juries do have this power. It's beyond cavil that they have the power. The only question is "What do we tell the kids? What do we tell the juries about their power?"

There is no question that they have it and they can exercise it and occasionally they do.

A great example is the Sam Skipper case, which is a California case. He was prosecuted for growing and eating marijuana which he was growing to counteract the side effects of AZT. The jury essentially thought that the prosecution was extremely misguided. That it was a waste of resources, and they refused to convict, although not only did Sam Skipper confess to all of the facts, he went so far as to bring in as a defense exhibit marijuana brownies to show the jury exactly what he was doing. So the jury does have this power.

(Talton) OK. Any other questions, Representative Keel?

(Talton) I have some for you. So you want us to pass a law to tell them what they can do already. So you want the governments to tell the juries what they can do already. Is that what you are saying?

(Conrad) That's true.

(Talton) OK. That's number one. Number two - Do you know of any other states in the United States that has this type of law?

(Conrad) Maryland and Indiana.

(Talton) Maryland and Indiana.

(Conrad) Neither of which are writhing in anarchy as we speak. [laughter from the crowd]

(Talton) Secondly, have you researched the history of when (one of the other speakers brought it up; maybe I should ask him) of when we changed from the juries making the decision regarding the law and the facts to just the facts and taking the instructions from the court.

(Conrad) The leading case on that is Sparf & Hansen vs. United States.

(Chairman) What is it called?

(Conrad) Sparf & Hansen vs. United States 156 US 51 1895.

(Talton) OK? How about in Texas?

(Conrad) Nels….

(Talton) Texas.. You do agree that states are independent of the country, of the Federal government, do you not?

(Conrad) Oh, yes.

(Talton) Go ahead.

(Conrad) Texas does not have a common law background. Texas originally had a civil law background.

(Talton) Tell me the difference between civil and the common.

(Conrad) Well, the jury has a different role in the civil law system. The jury does not have the power under the civil law that it has under the common law. Now..

(Talton) So you are saying that Texas doesn't have the rule of law of common law. Is that what you are saying?

(Conrad) It does now. I'm saying when Texas first became part of the United States it had a civil law background.

(Talton) From where?

(Conrad) From Mexico.

(Talton) OK, go ahead.

(Conrad) So Texas originally did not recognize the same rights of the jury as the original colonies did.

[dead spot on tape]

…. all the people who were responsible for getting it into the constitution were long dead. The first interpretation by the courts I know of, was I believe in the 1890's, or ... between 1890 & 1910, I can't give you the exact date.

(Talton) I move on to one other question that was brought up by Representative Keel. Are you aware when you try a jury case when you first swear in a jury, you swear them in that they well and truly answer the such questions that may be propounded to them? You understand that?

(Conrad) Yes.

(Talton) OK. And secondly once you have a jury picked, that then you have them sworn in again a second time "You and each of you do solemnly swear in the case of Texas against the defendant, you will render a true verdict according to" what? - "the law and the evidence, so help you God." OK, then they are given the law by the court. Is that right?

(Conrad) That's right.

(Talton) That's the way it is now. Y’all want to change it to where that the court gives them the law and says here is the law but if you don't like this then you don't have to find that person guilty even though in there opinion they may have violated this law.

(Conrad) The jury has a veto power.

(Talton) But they have it now.

(Conrad) They have it now, exactly.

(Talton) And now you want us though, it gets back to one of my other questions, you want us as legislature to tell the jury that it's okay. Shouldn't it be the other way around, I mean, if the jury doesn't like that, I mean, we're representative form of government and they elect us? What you're doing, and I have a problem with one of your other, you said that the jury was a check and balance on Congress when you read that. I thought they electorate were.

(Conrad) I think that both are true. If you don't trust the common citizens sitting on the jury to make a judgment as to whether or not the law is just and fairly applied after they have heard the facts of the case. They heard the law argued to them. They have heard the opposing arguments of counsel. After they have all that information, if you don't trust their decision in that circumstance, how in the world can you trust them to elect you?

(Talton) They do. And if they don't want to elect us, they don't have to. You're talking about twelve people with Representative Reyna, then...

(Conrad) But how can you trust their judgment?

(Talton) I don't have a problem with juries doing that. I trust the 120,000 that are in our districts and they either elect us or they don't or they will elect someone else. And you agree with that don't you?

(Conrad) Yes

(Talton) You don't have a problem with that, do you? Anybody else have any questions? The chair recognizes Representative Nixon.

[Editor’s note: Keep in mind in the upcoming exchange that Clay Conrad is a constituent living in Representative Nixon’s district, a fact which Nixon knows.]

(Nixon) When someone takes upon himself in a jury, the jury takes it upon themselves to not uphold what they consider a bad law.

(Conrad) Or a misapplied law.

(Nixon) Or a misapplied law. Is that not a invitation to everyone to break the well-applied laws?

(Conrad) I don't believe so. I think that juries act very responsibly. I think in the 800 years that juries have had this power under common law systems of government, I think that they have exercised it with extraordinary responsibility and I don't see any reason for that to change.

(Nixon) You know... I'm only reminded of O.J. Simpson trial to support your position that juries have exercised that authority with extraordinary responsibility.

(Conrad) I think O.J. Simpson acquittal was a case of reasonable doubt and prosecutorial incompetence and I don't think we should either support reforms or deforms or oppose reforms on the basis of an incompetent prosecutor. The law should not be formed in order to make the world a safe place for incompetent attorneys.

(Nixon) So, arguably every case in which you claim that jury nullification has been applied with great reason and wisdom, some one else could claim that it was the verdict was obtained based upon prosecutorial incompetence. Is that not true?

(Conrad) Well, I think that if you look at the O.J. Simpson case, that there were a lot of reasons for the acquittal that were based on the evidence, and further, I don't think that there is anything we can do here in Texas to solve problems in the California criminal justice system.

(Nixon) Well, you know, assume with me that the jurors in the O.J. Simpson case rendered a verdict simply because they didn't want O.J. to be found guilty.

(Conrad) Is their any evidence from the statements of the jurors to support that hypothesis?

(Nixon) Well, I think so.

(Conrad) I know of none.

(Nixon) I think so. Anyway, assume with me, assume with me that's the case, O.J. Simpson case, they said he was not guilty because they didn't feel like applying the law to him. What then protects your family tonight?

(Conrad) Well, it seems a rather nonsensical hypothesis to me, to be quite frank.

(Nixon) [loudly, with a very red face] What protects your family from a murderer destroying their lives and having some nut case for a lawyer arguing to the jury "Don't apply the murder statute in this state. The guy felt like it and in any case it's a misapplication of the law." Does not this bill demand that innocent people would suffer because good laws would be misapplied by jurors? Aren't you inviting tyranny?

(Conrad) [calmly] I think innocent people suffer now when good laws are misapplied by the prosecution. And I think that the chance of twelve people unanimously agreeing to see an injustice done is almost nil unless they are misdirected by the court or the laws.

(Nixon) Prosecutorial incompetence? Prejudice? Laziness?

(Conrad) Juries are significantly less prejudiced than other actors in the system and with strictly enforced Batson rules, that's to be expected because a jury should be a mixed group.

(Nixon) [loudly] Tell me the case! Tell me the case that was decided incorrectly in this state because jury nullification did not exist.

(Conrad) State law or Federal?

(Nixon) The case!. I want to know the name of the person who is currently incarcerated because jury nullification did not exist.

(Conrad) Well, it does exist.

(Nixon) Well, are you familiar with case of Nels vs State?

(Conrad) Yes, I am.

(Nixon) Decided by the Texas Supreme Court in 1847.

(Conrad) Yes, I am.

(Nixon) It has been the law of this state since 1847. The Texas Supreme Court held the jury is not the judge of the law in any case. The jury is not the judge of the law in any case but must receive the law from the court and must find facts alone from the evidence under instructions received by the court.

(Conrad) Of course, what you are reading is dicta. The holding in the case was that refusal to instruct the jury that they had the power to refuse to convict was not reversible error.

(Nixon) It doesn't sound like dicta. It sounds like the law of the state that Mr. Keel has confronted you with. The jury is not the judge of the law in any case.

(Conrad) The holding in the case...

(Nixon) Yes, and we will therefore not instruct the jury that they can disregard the law. Sir, when the laws of this land are disregarded in what you would claim would be a misapplied case, we are unsafe. You and I are unsafe. Mr. Elkins’ children are unsafe because the jury that hears a testimony and the evidence about his family being murdered could acquit because they just felt like it and would not be obligated to follow the laws of this state.

(Conrad) I think it is almost impossible for twelve people chosen through a reasonable voir dire with an honest prosecutor, who is not himself seeking to avoid a conviction in that case (which has happened in some cases) - if you have an honest voir dire and you have a jury of twelve people, the chance that twelve of them would unanimously agree to see such an injustice done is so remote and so bizarre that I really don't think it is something that this committee needs to concern themselves with.

(Nixon) Name…. I will vote for you if you can give me the name of the person who is currently incarcerated in this state because the jury did not have or wasn't instructed about jury nullification. One, two, three, time is up.

(Conrad) Currently incarcerated..

(Nixon) [yelling so that he does not hear Conrad’s responses] Name somebody.

(Conrad) [quietly] The Branch Davidians.

(Nixon) [yelling] You don't have a name. There is not a case where this is required. Because there is no case. There is no case! The person who is currently …

(Conrad) I did give you one.

(Talton) Gentlemen, Gentlemen, I think it's time for us to move on. I think we have one other question.

(Reyna) You do appellate law?

(Conrad) That is true.

(Reyna) What would be the impact if this law were enacted and enforced tomorrow? What would be the impact in a practical way on the filing of motions for a new trial and the appellate process generally. To start you off, would it be grounds for an appeal if you felt that the law had been misapplied?

(Conrad) The law is not designed to have retroactive application if that is what you mean.

(Reyna) No, that is not what I mean. I mean what is the practical impact on practicing lawyers and their clients from the point at which the misapplied law judgment or the ..

(Conrad) It would be a function ..

(Reyna) The moment a judgment or a verdict, actually a verdict is what I'm looking for, is rendered by the jury is then converted into a judgment. Once it's signed by the judge, then the time is beginning to run for a motion for a new trial and appeal and other attacks on the judgment. How would this law change that process as we know it today? Let's presume that the conviction or the action subject to the lawsuit are properly within the parameters of the law. We don't have any of the ex post facto retroactive, all that fancy stuff we learned in high school..

(Conrad) I do think I understand the question. If the defense attorney was denied the chance to argue to the jury that the law was misapplied, it would be grounds for reversal. If he attempted to make such argument and was denied an opportunity to do so. If he attempted to introduce evidence that the defendant had good grounds for committing whatever act he committed such as: yes, he was smoking marijuana to counteract the side effects of AZT and if was medically effective for him. If he was forbidden from presenting such evidence then it would be grounds for reversal. Those would be the grounds for reversal that the bill would provide.

(Reyna) Not even reversal. Just practical impact. What if the attorney did introduce the evidence and what if he or she was able to get out the arguments that would fall under this bill and was still convicted under the parameters of the law as they exist, and without any of the leniency that this bill would allow. Would that be grounds for appeal as you envision it?

(Conrad) No, I don't see any such grounds for appeal in this bill.

(Reyna) So we couldn't appeal and say that we have extenuating .. I guess it would be an argument like extenuating circumstances or insufficient evidence to support the conviction and the punishment based on the fact that we really had a good reason to break that particular law.

(Conrad) No, not so long as you were not forbidden from presenting that information to the jury at trial, no.

(Reyna) All right, thank you, sir. Thank you, Mr. Chairman.

(Talton) Chair will call Larry Dodge. Did you wish to testify or just be shown in favor.

(Dodge) I had in mind testifying.

(Talton) That's fine, it's up to you, we're here. I was up to after two o'clock this morning so that's OK. We can do it again. Okay, Mr. Dodge, if you would identify yourself and who you are with.

(Dodge) I'm Larry Dodge. I'm the vice president of Lone Star FIJA. And in the interest of time, I'll be as brief as possible. I've spoken with many of you already in your offices over the past several weeks.

So, I want to talk about something a little different. I think whether they come out and ask us most lawmakers probably wonder what drives us FIJA proponents. What makes us go? Why are we so enthusiastic?

Obviously, passage of a bill like HB519 will not make any of us any richer. It won't make us anymore powerful. If won't make us famous. So what keeps us out there, educating jurors, lobbying, leafleting, advertising, etc.?

In a word, the answer is hope. Proponents of Fully Informed Juries find hope for the great American political experiment and their stated objective which is to remind every trial juror that he or she represents the conscience of the community when voting on a verdict.

So you already know our logic after hearing today’s arguments and reading the materials that we have supplied you and hearing all this testimony. But I want to close by talking about our motives because if I was in your position today, I would be curious.

I believe most of us in the FIJA effort share an apprehension that anti-government sentiment is going to lead to confrontations and conflicts which could cost us the very liberties our governments was designed to protect. To those of us who cherish our personal rights and freedoms, this prospect is ample motivation to search for a peaceful solution.

So it was an inspiration, when we discovered that problems much like those of today had arisen in times past and that a solution to them had been developed in the form of a single institution, trial by jury. Trial by fully informed, fully empowered juries.

And it wasn't long before we found out when and where trial by jury lost its power to keep the laws of the land aligned with the will of the people and the misalignment is what we see as the source of anti-government sentiment. And that was 102 years ago in the case that was brought up by - it's been brought up a couple of times in front of up today - that being Sparf v. Hansen vs. United States 1895 where that Supreme Court decided that courts of the land (Federal courts) no longer needed to remind jurors of their power to nullify the law.

Now up until then and this hasn't been brought up to my knowledge today, it was routine practice of the courts in the 19th century and prior to that to tell the juries about this power. All over the country, they were routinely so informed. So it stopped there when the court said you don't have to tell them anymore.

From there to today, we have gone through changes in that to the point where juries as you know it in today’s courts are told and sworn to uphold the law whether they like it or not. That's a far cry from plan our Founders gave us.

Our hope, anyway, as FIJA people, therefore became focused on restoring power to juries by telling them. Even the Supreme Court in 1895 basically said the power exists but it's not the job of the court to tell. So we've taken upon ourselves to tell.

That same decision also said that in local jurisdictions and the states, if it is the practice to tell the juries about this power, that would have constitutional muster. There's nothing wrong with it. It's just not the job of the court to tell and we're not going to make them tell.

So imagine us now doing this research. I'm not a lawyer. So this was very exciting to me. Imagine how exciting it was to find an answer to the angst of the country. That was a proven success in times past and was a truthful, peaceful and legal way to do something about it.

Now eight years have past since the Fully Informed Jury Association was founded. I am its co-founder so I know the exact date, August 15, 1989, and if there was a perceptible need for the answer to the gap between the governed and those who govern at that point, there is a vivid need today.

Mind you, 1989 was before the Republic of Texas, before the Oklahoma City bombing, before the World Trade Center and Olympics bombings, before the development of these militias, before the Freeman, before the development of alternate monetary currencies and so forth, before what we now know as anti-government sentiment had really mushroomed to what it is now.

I must say that we sort of saw it coming, and that's why we were already looking for an answer. But if we needed an answer then, we really need an answer now. That is the reason that you are looking at HB519 today. It represents our most sophisticated thinking on how to legislate an effective answer to this problem on how to restore the political integration of the country by restoring the political role of the jury.

Now this role also hasn't received full explanation today but in a couple of sentences, it goes like this. The Founders expected juries to review the laws of the land before they applied them, and knowing that, then the verdicts that these juries (who knew their power) - the verdicts that they rendered, would be regarded by the legislature as information on public opinion on the law.

That is how the branch of government charged with making the laws was supposed to find out which laws to make. True, you all have constituencies and you get letters and phone calls and so forth from them. And the voters give you a certain amount of information but the information has nothing - none of the information is as clear and constant and regular and directly focused on the laws of the land as the verdicts of a fully informed jury.

And that is what the Founders had in mind when they talked about anchoring the government to the will of the people by the jury system. That was the whole point. I think it would be a great thing to restore.

I think that is how the people of this country would come again to respect the government, to feel like they were included, to feel like their opinion was being sought and heeded.

Most people just flat don't have the time or money to come down here to lobby or they don't want to participate in a PAC or to be thought of as a special interest. And the government knew that when juries were first instituted. They realized that regular feedback on the laws of the land would be provided by juries. And jurors, because they are not paid, and they don't have a political career to protect, and they are not out there seeking power, that their opinion on the law would be the most valid thing lawmakers would ever get back. That was the point then, and I think it's the point now.

I think you could really do some serious re-integration of this country on a political basis by taking HB519 very seriously. So I'm saying now is the time, we have these problems, they got to be dealt with one way or another. This is maybe one of the most creative ways to deal with them that I can think of.

If now is the time, I'm also saying Texas is the place. Why? Well, Texas just so happens to have what I consider one of the most restorable jury systems in the country. It's in pretty good shape now. It could be made a lot better with 519.

First of all, the Texas Constitution as has been said several times today, already allows for jury judgment of both law and fact . Second, in Texas it is possible for the defendant to choose trial by jury for any crime, just like the Sixth amendment says we can. Not many states observe this anymore. They have these little six month incarceration rules. If the crime you commit isn't big enough to warrant a jury, you don't get one. In Texas, you can get one.

Third, Texas juries determine sentences as well verdicts. There are only eight states left in the United States where juries do the sentencing. I'm proud to be in one of them right now. And fourth, what ever Texas does, a lot of other states are going to do, because Texas has a lot of leadership clout.

Texas is also a very appropriate place to try out the idea of fully informed, fully empowered juries and to see if they are valuable for political harmony or for restoring political harmony. First, Texas seems to be experiencing at least its far share of anti-government sentiment and activity. Need I say more?

And I have also heard by the grapevine that the Republic of Texas is promising fully informed juries as one part of its benefit package. As a social scientist, let me suggest and share my understanding of the best way to disarm a political opponent is to steal his best issues. Besides, it's only fair to steal it. The Republic of Texas stole it from us, and we stole it from the Founding Fathers and you're welcome to steal it here today with 519.

But the best reason of all to pass 519 in the state of Texas is that you can do it. It's in your hands right now. It's a real bill that has made it as far as this committee. It's something you can vote on, you can actually do. In other words, it's practical and it's efficient. This is its fourth attempt at passage and it's gotten to be a very sophisticated piece of legislation. It's taken into account all kinds of objections that have been levied at it over the years.

For example, the bill now allows for death qualification in capital cases, and it didn't before. That has been allowed because people said "Oh, your bill would make it impossible to death qualify a jury." That's been taken care of.

It allows for the judge to tell the jury about lesser included offenses. That way prosecutors can get convictions by lowering the charges until the jury agrees "Yeah, that's about right." So it basically allows for plea bargaining in the courtroom in a open court.

So it's a pretty darn good bill. It's up to speed. It's had a lot of changes put into it over the years. Like I say, now in its fourth version, it's pretty good. So the best reason to give fully informed juries a try in Texas is this opportunity to do so. It can be done. Your passage of this bill for consideration by the full House will take advantage of the opportunity that is presented to you on your desk at this moment. I urge you to give it the green light and I thank you for letting us work with you on this sincere attempt to restore the American Dream.

(Talton) Thank you. Members, any questions? Thank you.

(Dodge) Thank you.

(Talton) The chair would call Honey S. Lanham, I believe does not wish to testify, but does wish to show for the bill, I understand?

(Lanham) I am here at great personal expense, and I do support the bill.

(Talton) Edmund Heimlich

(Heimlich) My name is Edmund Heimlich representing Informed Citizens and I'm in support of this bill. I'm also very much in support of the rule of law, and I want to see the rule of law returned to this state. We don't have it now.

I've been once charged with a felony and I was convicted of a felony. I was forced to act as my own attorney and you can talk to the jury. I have. And they can tell you that it was an unjust conviction. I tried to inform the jury of what the law was. The judge would not allow me and he would not allow them and I sat in on other trials and as Terry Keel said it's standard procedure with judges to say "You are not to research the law. You are not to read the penal code. You will only get the law from me."

Now that is not the rule of law, that is the rule of men, where the judge makes up the law as he goes along. Whatever he so desires at that time. This would have allowed myself or any defense attorney to let the jury know what the will is of the legislature. Right now, judges are usurping the legislature. They are not informing the jury about the laws you have passed. They take it and kind of just rewrite it, make their own hybrid version of it and present it to the jury with a series of questions that removes all their discretion.

So we don't have juries making decisions supporting the law. What we have is juries that are put into position where they are instructed to rubber stamp whatever the judge decides is going to be the law in the case.

Here is someone who was convicted of a jury and yet he's up here telling you that he wants the juries have the power to rule on the law and I want to restore the rule of law. The reason is because my problem started when I reported to the Attorney General and to the Department of Justice of violations of law by a prosecutor. So I became a target of malicious prosecution and the judge recused himself for political reasons so the D.A. could move it into a court that was favorable to him where the judge could rewrite the law to ensure my conviction when I had violated no law and committed no crime. So I say this would help to restore the rule of law.

(Talton) Thank you, Mr. Heimlich. Members, any questions? Chair will call David Weeks.

(Weeks) My name is David Weeks. I'm a criminal District Attorney of Walker County. I know you're as tired as I am. But I did want to point out something. What this law does, it provides that the defendant can depend upon the law and the mercy of the jury, but the victim cannot. This bill will also allow a number of eleven-one verdicts because we can't keep people off that don't follow the law, and finally, it will be a full employment bill for alleged constitutional experts. No questions? Thank you.

(Talton) Anybody else that like to testify on, for, or against House Bill 519? The Chair recognizes Representative Elkins close.

(Elkins) Mr. Chairman and members, thank you for your time. I close.

(Talton) The Chair intends to leave House Bill 519 pending. Hearing no objections, the chair will hear [ the next bill ]

 

1997 Criminal Jurisprudence Committee Members

Allen D. Place (D - Gatesville) - Chair

Robert E. Talton (R - Pasadena) - Vice Chair

Jim Dunnam (D - Waco)

Jessica C. Farrar (D - Houston)

Carolyn Galloway (R - Dallas)

Juan Hinojosa (D - McAllen)

Terry Keel (R - Austin)

Joe M. Nixon (R - Houston)

Arthur "Art" Reyna (D - San Antonio)

(Note:  Allen Place did not file to run again in 1998, and Carolyn Galloway was defeated in the 1998 Republican primary.)

All members except Representative Hinojosa were present at the start of the hearings for HB 519, although some came and went. Representatives Dunnam, Farrar, and Galloway asked no questions at the hearing.

Send mail to tomglass@juryduty.org  with questions or comments about this web site.
Last modified: November 27, 2003