The story surfaced last week in the Denver Post:
Most of the coverage of the story focused on the treasurer, a fellow named Mark Paschall, and the apparent religious taint of his views, particularly the notion that jurors were obligated to follow "God before the law." But as the Post story explained:
- Paschall said he paid for 1,000 copies of the "Citizens Rule Book," which have been available at the treasurer's office counter, at a display in the county building and from him "wherever I go."
The pocket-sized guides promote "jury nullification," a concept that politically conservative groups argue means jurors have the right not only to decide guilt or innocence but also whether laws are just and are in keeping with God's law.
Paschall said Jefferson County District Court Chief Judge Thomas Woodford called him Tuesday.
"He was wondering about the jury things" in the booklet, Paschall said. "I asked him if a juror just says, 'I vote not guilty,' is that all they are required to say, because otherwise you get into the thought police."
Woodford declined to comment.
Inside most of the 61-page booklets is the stamp: "This information is provided by Jefferson County Treasurer Mark Paschall."
Paschall is unfazed. "I as a citizen have the right to express my religious beliefs. I don't care if I am in the treasurer's office."
Of course, he's expressing far more than merely his religious views. What is far more significant are the political views contained in the "Citizens Rule Book."
[A side note: It is probably worth observing that Paschall also has a military record resembling that of other prominent Republicans. But, y'know, conservatives like Rush Limbaugh, Pat Robertson and Newt Gingrich have been lecturing us about decadent "liberal" morality for years now. Such paragons are they.]
I happen to have had a great deal of experience with the "Citizens Rule Book," because it was one of the most popular items available for sale at militia meetings I attended. It also popped up in two trials I covered: the Montana Freemen, and the Washington State Militia. In both cases, Patriot agitators attending the trial attempted to have the guides distributed among the jurors of those trials and were slapped down.
I described it briefly in Chapter 11 (p. 297) of In God's Country, which is about the 1996 trial of the six members of the Washington State Militia accused of engaging in a bomb- and mischief-making conspiracy (Jane Kramer, incidentally, focused on the case in her terrific Lone Patriot: The Brief Career of an American Militiaman). It made a brief appearance in the courtroom, which was overseen by U.S. District Judge John Coughenour, a blunt jurist with a low tolerance for Patriot courtroom antics. There was nonetheless a good deal of typical Patriot folderol going on among the audience, including attempts to intimidate reporters and distribute anti-Semitic propaganda. But then:
- All of the Patriot frolic took a serious turn when William Smith’s attorney, Robert Leen, attempted to have the "Citizen’s Rule Book" made available to the jury, claiming it was part of the defendants' beliefs and should be admitted as evidence. The pamphlet to which he referred is probably the most popular item available at militia meetings, since it only costs $1.25; it claims to prove the concept of "jury nullification," the Patriot notion that jurors are laws unto themselves -- that they can actually sit in judgment on the justness of a law itself and that, moreover, they can ignore the instructions of the judge to the jury. Coughenour, the embodiment of the no-nonsense judge, turned Leen’s request down.
However, this outraged the Patriots in the gallery. Gene Goosman filed a Patriot "Affidavit" against Coughenour, demanding that he uphold his oath of office. Hartford Van Dyke, a Patriot from the southwestern Washington town of Battle Ground, filed a lien of $1.7 billion against Coughenour as well as deputy U.S. attorneys Gene Porter and Susan Dohrmann, who were prosecuting the case.
[Such "affidavits," for those interested, are devoid of any force of law.]
The "Rule Book" also made a brief appearance at the Montana Freemen's trial in Billings. As it happened, Coughenour drew the assignment for that case as well, and having become familiar with the "Citizens Rule Book" in Seattle, managed to ensure that no copies were allowed in the courtroom.
What is "jury nullification" all about?
There is in fact a long history of jury nullification both in American and English law -- cases in which the jurors simply ignored the requirements of the law and set the accused free. However, it has primarily been viewed as a malfunction of the law, not as a positive principle to be practiced.
"Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court," according to a 1997 federal ruling, the strongest, most recent court decision on the topic. The opinion by Judge Jose Cabranes said jurors who reject the law should not be allowed to serve; when the ruling was appealed, the courts upheld, but also ordered a new trial after declaring that only "unambiguous evidence" of a juror's disregard of the law can justify his dismissal.
Other jurists have been equally clear about the actual standing of jury nullification:
- "It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law." -- Colorado circuit Judge Frederic B. Rodgers
"Jury nullification is indefensible, because, by definition, it amounts to juror perjury -- that is jurors lying under oath by deciding a case contrary to the law and the evidence after they have sworn to decide the case according to the law and the evidence." -- D.C. Superior Court Judge Henry F. Greene
In essence, jury nullification -- by sitting in judgment not just of the facts of the case but of the laws themselves -- arrogates to itself not only the role of the judge but of the legislature, essentially overturning at whim those laws that have been passed through democratic processes. In this sense, jury nullification is a threat not only to the courts, but to the very systems of laws on which the nation rests.
The leading proponent of jury nullification is a Montana-based outfit called the Fully Informed Jury Association. They present a relatively normative, broad-spectrum front, particularly since they have attracted a substantial audience among libertarians and drug-war critics (a small splinter group, also based in Montana, with a similar name in fact was overtly extremist in orientation and was closely associated with the Montana Freemen); this seeming variety on the political spectrum lets it pose as semi-mainstream. As their Web site proclaims:
- The American Bar Association (ABA) wrote that FIJA drew its support from "a wide and unusual spectrum of political thought--from the National Rifle Association to gun control advocates, from abortion rights supporters to their opponents, and from backers of marijuana legislation to law-and-order types." The appeal of FIJA crosses the full spectrum of American lifestyle and ideology because the FIJA goals reflect the goals of those who are alert to the fragile liberties of Americans.
In reality, FIJA's origins and orientation are extremist, built (like most Patriot schemes) on long-rejected legal theories and dubious "facts."
Now, there have been exceptional rulings in which jury nullification can be seen ipso facto as beneficial (particularly in some of the recent drug-war cases), and these cases are cited readily by FIJA adherents. However, these cases have no more force of law in modern courts than does the Dred Scot decision (though that ruling too is cited on more than a few occasions by FIJA adherents). That system is predicated upon the admonition that juries must rule on evidence and the law, pure and simple, and they take oaths to uphold that standard. Their failure to do so in fact breaks the law.
The legal powers that nullification proponents would hand to juries violates the careful balance of powers that exists within the system. If juries are deciding the justness of the laws, they are assuming powers traditionally relegated to the judiciary and, in other contexts, to the legislative branch. There is nothing in any body of law that would allow them to do this, other than the pure absence of an outright prohibition -- which actually exists in the form of the jurors’ oaths.
But if nullification was mostly a malfunction -- as in the many black-lynching acquittals recorded in the South from the Civil War onward -- then how did it ever become an organizing principle for social or legal reform? For that answer, turn to the Posse Comitatus.
The Posse was in most respects a kind of far-right tax protest. It built its multitudinous "constitutional" theories out of legalisms touted by John Calhoun and other Dred Scot types. The Posse was a direct descendant of old right-wing elements from the 1930s Silver Shirts organization and the anti-Semitic contingent (like the Minutemen) of the far right which split from the John Birch Society in the late 1950s because it refused to adopt anti-Semitic theories.
The Posse and their followers, who preached that taxes were illegal and that the IRS was an unconstitutional body, became extremely frustrated as their followers, beginning in the early 1970s, were getting so much prison time from their mounting tax convictions. Convinced that the legal system itself was corrupt and would never allow their view of constitutional law to see the light of day, they developed the idea of organized jury nullification: If they couldn’t get the courts to change, all they had to do was get one or two jurors to hang up the process.
The chief proponent of the concept in Posse circles was a Montanan named Red Beckman. He had a long and colorful career as a tax protester and anti-Semite; his book, The Church Deceived, described the Holocaust as God's judgement on "the Anti-Christ Church" for wqorshipping Satan, and was noted for repeating the charge that Jews are Satan worshippers on TV interviews. He also appeared as a keynote speaker at numerous Christian Identity events over the years. Beckman was an early and important influence on LeRoy Schweitzer, the leader of the Montana Freemen.
Beckman's ideas about jury nullification became a cornerstone of his anti-tax strategy, and they quickly gained popularity, not just among the Posse, but among many elements of the far right that were coming into conflict with legal authorities for their many activities. Not only could jury nullification solve problems related to tax cases, but juries could also potentially overturn charges ranging from malicious harassment to firearms violations and bomb building. As the Posse mutated into the Christian Patriots, who then became merely Patriots, the theories became more distilled and more widely distributed.
Because it does have a certain legal history, it has proven to be a powerful recruiting tool within the mainstream. It meshes nicely with the Patriot modus operandi of the 1990s: hiding the agenda by adopting a mainstream pose, offering crackpot theories as legitimate by spouting a blizzard of legalisms, and generally gnawing away at the legal system in the hopes of inducing its collapse. And they’ve been very successful at getting out the jury-nullification Gospel to a broad swath of society (particularly barter-fair types and libertarians), all under the guise of enacting a needed reform of the court system.
It is likely that the bulk of nullification proponents -- including, probably, Mark Paschall, though his notions about placing God's laws before man's are common among both Identity followers and Christian Reconstructionists -- have no idea whose agenda they’re being used for. But then, most people are oblivious to the elements in our society that would like to see it all fall apart, and are doing their damnedest to make it happen.