From the January 2000 Idaho Observer:

Idaho Supremes choose “blue ribbon” Jury Reform Committee

Chair Wallace does not anticipate “major overhaul” in Idaho jury process

by The Idaho Observer

The Idaho State Supreme Court chose what Supreme Court Justice and Idaho Supreme Court Jury Committee Chairman Jesse Walters called a “blue ribbon” committee to “devise and promote new ideas regarding jury reform to the public and the legislature.”

The committee, which met for the first time in Boise May 21, 1999, is comprised of 19 persons: Eight judges and court clerks, six attorneys, three lay persons, an unesquired legal counselor for the court and a committee secretary. The committee was listed on the roster in apparent order of hierarchy in the social strata. Judges and the court clerks on the committee were listed first and their names were prefaced with “Hon.,” short for “honorable”; attorneys were listed second with their names suffixed with “Esq.,” short for esquire and; the laypersons were listed last as Mr. or Ms.

Justice Walters opened the meeting by explaining that the committee was formed as a result of “a movement across the country led by the American Bar Association and the American Judicature Society to bring about improvements to the system.”

The Fully Informed Jury Association (FIJA), a group that has been nationally recognized as one of the most active jurors' rights and responsibilities advocacy groups in the country for over a decade, was not mentioned as one of the leaders of this movement. FIJA activists have expended tremendous resources and have sacrificed their own freedom to initiate a return of the jury system to its original design of fairness and justice.

According to the official meeting minutes, “Justice Walters commented that Idaho had been on the forefront of innovative ideas for jury reform and that he did not anticipate that there would be a major overhaul in the jury process as needed in other jurisdictions.”

Three people, two laypersons Barbara Hurlbutt, Twin Falls and Stephen Conklin, Boise, and one esquire, Leo Griffard, Jr., Boise, gave testimony as to their experiences as jurors. Their comments ranged from rememberances of boredom with delays, the need for daycare funding for jurors, juror comfort in jury rooms during deliberations, the tedium of the jury selection process and that jurors should be assigned numbers and referred to by number so the court/juror relationship could be more impersonal.

The judges concurred that they were willing to adopt new ideas but that changes would be “dependent on the judge's style of handling a case and the judge's perception of the authority to use new techniques.”

The committee broke themselves up into four subcommittees to propose recommendations for changes based upon recommendations for jury improvements adopted by the Arizona Supreme Court and the District Court of the District of Columbia. The four subcommittees were to study out of court jury selection, trial procedures, quality of life for jurors and statutes/standards/rules.

Each subcommittee was assigned anywhere from eight to 21 recommendations for study.

The jury committee reconvened October 22, 1999 but was short an honorable, an esquire and a Ms.

The two most significant subcommittee recommendations produced were found in the Subcommittee on the Quality of Life and the Subcommittee on Trial Procedures.

The Subcommittee on the Quality of Life proposed to make people more willing jurors by beginning to educate children to sit on a jury while they are still in public school. The subcommittee recommended providing uniform informational brochures and videos and allowing students to participate in mock trials to be held in schools.

To relieve juror stress, the subcommittee proposed to increase juror compensation, provide daycare and provide comfortable juror facilities that are sensitive to the needs of disabled jurors. The jury rooms should also have comfortable chairs, be stocked with drinks and snacks, have climate control, reading material and music, fresh air and a smoking area. The courts should also allow jurors to serve at a time of their convenience and be given good parking spots.

Jury Nullification?

Three esquires and two honorables made up the Subcommittee on Trial Procedures. The 13 recommendations it was asked to study the previous May were very expansive and the subcommittee admitted that it needed more time to fully explore them.

However, the issue that is on the mind of every person who understands the history and the true intent of the American jury system was explored. Item eight concerned, “Expanding the limits of relevance in recognition of a jury's power to nullify the law in criminal cases.”

The subcommittee quoted from Idaho Code Jury Instructions (ICJI) wherein it states that, “the duty of the jury is to determine the facts; to apply the law set forth in the instructions to those facts, and in this way to decide the case. In applying the Court's instructions as to the controlling law, you must follow those instructions regardless of your opinion of what the law is or what the law should be, or what any lawyer may state the law to be.”

This is, of course, the exact opposite of the original intent of the jury system in America. The law was never intended to be supreme; the rights of individuals were intended to be preeminent. As recently as 1941, Chief Justice Harlan F. Stone stated, “The law itself is on trial as much as the cause to be decided.” Therefore, the law is to be equally on trial as the accused and if the law were found to be in violation of an individual's right to pursue life, liberty and happiness, then the defendant was to be found innocent of the crime.

ICJI 13, a question that is given by the judge in the jury selection process further illuminates the state's departure from the true intent of the American jury system. “Are there any of you who are unwilling to follow my instructions to you, the jury, as to the law that you must apply in determining this case?”

A potential juror who understands his historical rights and responsibilities as a juror, if he were truthful, would not be allowed to serve on a jury under these circumstances.

Aside from expressing his authority over his courtroom and his insistence that the law be held in higher esteem than the accused, the judge, by statute, oversteps the boundaries of his intended authority in a criminal matter. The judge was intended to merely be a referee, the keeper of the rules in court procedure, not the authority who tells the jury what rules will be applied in a given case.

The subcommittee recognized the historical significance of jury nullification and indicated that, “in a significant number of cases [jurors] may exercise their power to find a defendant not guilty, despite the clear dictates of the law, where they believe application of the law may cause an injustice.”

The subcommittee recommended that the full comittee “may wish to consider whether or not it agrees with the traditional view that juries should not be advised of their power to nullify.”

The jury system in Idaho is being studied by a committee largely comprised of honorables and esquires -- the very professions that have overseen the deterioration of the jury system that we are experiencing today. The honorables seem to be content with the system as it stands as it leaves them with the authority to instruct a jury in a manner most likely to obtain a verdict consistent with their own views (the views of the state). It was observed in U.S. v. Dougherty (1972) that, “The pages of history shine on instances of the jury's exercise of its prerogative to disregard the instructions of the judge.”

The committee, while being given some information on the power of a single juror to nullify both an unjust law and a conviction with his single vote, is not being given the powerful documentation that FIJA is able to provide on this subject.

FIJA activists have routinely been jailed for contempt of court when they attempt to provide potential jurors with jury nullification information. It is therefore unlikely that the committee will be given the balance of information necessary to make significant progress in this vital area.

While the committee deliberates over the rights of jurors to be comfortable and have access to free daycare, the concept of jury nullification, the most important aspect of American jurisprudence with regard to freedom and justice, is likely to be ignored if the committee's recommendations make it to the legislature for the 2000 session.

If you wish to provide the committee with jury nullification information or would like to be kept apprised of the committee's progress, contact Corrie Keller, Director of Court Services for the Idaho Supreme Court at (208) 334-2248.

With thanks to Meridian resident Fritz Dixon for providing The Idaho Observer with the minutes of the May 22 meeting and other documents that were used in the writing of this article.