The Anti-Government Movement Guidebook

v. )

LINDA THOMPSON, )

J.D. )

Defendant. )

AMICUS CURAE BRIEF

RE: INDIANA CONSTITUTION.

ARTICLE I SECTION 19

Comes now, R. J. Tavel, J.D., Indiana state coordinator for the Fully Informed Jury Association, Inc., [a not-for-profit educational organization organized pursuant to IRC §501(c)(3) headquartered in Helmville, Montana with affiliate chapters in all 50 states of the United States] who, in support of the continued vitality of the concept of jury nullification found in the body of our state's constitution [Ind. Const. art. I, sec. 19], here submits, by way of his amicus curae brief, that then Chief Justice Randall T. Shepard was speaking to this Criminal Court when he observed: "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." [22 In. L. R. 575 (1989) quoting Mapp v. Ohio, 367 U.S. 643 (1961)].

The provision of jury nullification in the body of our constitution is not anomalous or even singular in its prescription since Article I Section 3 provides that no law may "interfere with the rights of conscience." Indeed, just as section 9 thereof affirms the rights of expression in language much more comprehensive than the first amendment to the U. S. Constitution, the very provision of all Hoosiers" right to "due process" is more explicitly stated as a "guarantee that all courts shall be open and that every person shall have a remedy." These are not accidents or mere happenstance. Quite to the contrary, they are the result of great deliberation and are meant to stand as the fundamental provisions underlying the consent of the people to be governed by the state [1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 394 (1850)].

The state's attempt to cast the issue in terms of "legislating" is disingenuous, without merit in the case at bar and, further, does not square with Indiana history. Our Indiana Supreme Court has held, in a long line of cases, e.g., from the case of MacDonald v. State, [63 Ind. 544 (1878)] through that of the Indiana Court of Appeals in State v. Tyson, (lad. App., 1993) 619 N.E.2d 276, that, far from "legislating," the jurors "are oath-bound to find the facts honestly and accept the law faithfully as both exist, and . .. return a verdict which you find just and proper..." (Tyson, supra., at 299).

It is this last quoted phrase that is the operative concept underlying all of the foregoing writings in all of the aforementioned documents. Article I section 19 of the Indiana constitution is riot a grant of right from the state, it is a recognition of right, a God-given, unalienable right drawn from the command of Deuteronomy 16:20: "Justice, justice shall you pursue."

It is in "good conscience" that jurors pass upon the circumstances of a defendant. Legislation, being the last pronouncement of the community standard by our General Assembly, is sometimes out of step or behind the times, since the community standard is forever evolving. Fully informed jurors, by their verdicts, send legislators non-political democratic feedback about the laws they have enacted, which is essential for the proper functioning of our constitutional Republic. Most importantly, fully informed jurors act as the fourth and final check on the unrestrained often oppressive crush of government prosecutions brought at the whim of state officials for no valid reason concerning public safety but rather for petty, personal, political reasons that have no place in a court of law [see, e.g.. In Bushell's case, Vaughn. 135,124 Eng. Rep. 1006 (C.P. 1670), wherein Justice Vaughn found that the jurors who acquitted William Penn of unlawful assembly "against full and manifest evidence" and "against the direction of the court in matter of law" could not be fined or imprisoned; and see, J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963). For many years following the Zenger case, it was generally recognized in American jurisprudence that juries in criminal cases had the "right" to decide the law, as well as the facts, and juries were so instructed (see, e.g., Skidmore v. Baltimore O.R. Co., 167 F2d 54, 57 (2d Cir. 1948).]

Last year, California's "trial of the century," People v. Oranthal James Simpson, has rekindled the fire and controversy surrounding jury nullification, just as New York's People v. Goetz raised the debate in 1988. While journalists and jurists alike proclaimed these to be "public-policy" verdicts, they were examples of jury nullification, and the majority of states have made provision for this right and power:

I. CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION:

The Constitutions of Maryland (Art. XXin, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law. For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial.-.and the jury shall be the judges of the law and the facts." Attorneys in Georgia and Indiana are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law. Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases:

Alabama (Art. I, Sec. 12); Colorado (Art. II, sec. 10); Connecticut (Art. I, sec. 6);

Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4);

Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20). Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases, "as in all other cases." [Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). This list has been updated to 1996.]

When there is division amongst the states on an important issue, trial judges often look to federal authorities for guidance, and such is instructive in this case. Modem Federal Jury Instructions (Sands, Siffert, Loughlin & Reis, Instruction 4-2) suggests that juries should be told that it is their "duty to acquit the defendant" if they harbor a reasonable doubt, however, rather than instruct juries that they have a corresponding "duty to convict," i.e., "must" convict if they are satisfied of the defendant's guilt beyond a reasonable doubt, the treatise recommends that juries be advised that they "should vote to convict: if the government has carried its burden (leaving a jury to conclude that it has the authority to nullify even in the absence of a reasonable doubt) [and our own federal district courts agree on this prerogative of the jury, see also, e.g.. United States v. Will L. Dawson, and Derrick Termail Willis, Criminal Cause Numbers: IP 95-0064M-01-02, citing approvingly Beaver v. State, 236 Ind. 549, 141 N.E.2d 118 (1957) to the effect that "Article I, Section 19 of the Indiana Constitution provides that 'in all criminal cases whatever, the jury shall have the right to determine the law and the facts.' However, jurors should be bound by their conscience and their oaths, and not act arbitrarily, capriciously, upon a whim or prejudice.] While logic would seem to dictate that a corollary obligation be imposed on jurors, it is reversible error to charge that the jury must explain their doubts ever since the ordeal of Edward Bushell and the Penn jury hereinabove.

HUGO BLACK, a great believer in the Jury system, used to tell this story-Years ago, in the foot-hills of Alabama, a tenant-farmer was charged criminally with stealing a cow from his landlord, and was brought to trial. As was frequently the case in rural America, the Jurors selected for the trial were acquainted with everyone, including the accused and his victim. Each juror knew that the farm's landlord was a nasty bastard who tormented his neighbors, while frequently treating the town's orphans and widows with derision. By the same token, the tenant-farmer was the salt of the earth, beloved by everyone. But still, the evidence of his guilt was indisputable. After the evidence was in and the jury retired to deliberate, it quickly returned to the courtroom to announce its verdict: "If the accused returns the cow, we find him not guilty." The judge was infuriated. His anger heightening, he commanded the jury to return to the jury room to deliberate —shrilly chastising them for their flagrantly "arrogant" and "illegal" verdict. Not a moment passed when they re-appeared in the tense courtroom to trumpet their new verdict: "We find the accused not guilty - and he can keep the cow."

The American Jury, Justice Black reminds his listeners, is effectively omnipotent in rendering an acquittal. What hits home in Justice Black's story is the deeply held American notion that juries often perform an independent role in a system in which the people - not prosecutors, judges or lawyers - have the last word. In the end, if the jury wishes to let the defendant keep the cow, that is what will happen. Respectfully submitted:

R. J. Tavel, J.D.

R. J. Tavel, J.D., #-——

Indiana State coordinator, F.I.J.A., Inc.

Founder, Liberty's Educational Advocacy Forum

c/o 4000 North Meridian Street, Suite 6D

Indianapolis, Indiana 46208-4025

317/923-3399

END

1 Olmstead v. United States, Til U.S. 438 (1928)(Brandeis, J., dissenting).

2 By Dr. Mark Pitcavage. Dr. Pitcavage maintains a very comprehensive website dedicated to tracking and discussing the militia movement in America. His site. the "Militia Watchdog" can be found at: www.militia-watchdog.org The authors sincerely thank Dr, Pitcavage for his generous permission to use this essay.

3 Texas Lawyer, June 14, 1993

4 Use Bailey, "Meanwhile, Back at the Ranch," 25 Texas Prosecutor 1, 8-14.

5 No adequate history of the Posse exists. Summaries can be found in David H. Bennett, The Party of Fear; The American Far Right from Nativism to the Militia Movement (New York, 1955), 350-355; James Ridgway, Blood in the Face; The Ku Klux Klan, Aryan nations, Nazi Skinheads, and the Rise of a New White Culture (New York, 1990), 109-44; James Corcoran, Bitter Harvest6; The Birth of Paramilitary Terrorism in the Heartland (New York, 1955), 5-42. Cheri Seymour’s Committee of the States; Inside the Radical Right (Mariposa, CA, 1991)

6 Posse Handbook, at 1.

7 Ibid

8 Ibid

9 St. Louis Post Dispatch, November 3, 1996

10 New York Times. February 17, 1981; Tim Bryant, "Wayne Cryts: American Hero?", UPI, September 19, 1982.

11 One of the more easily accessible versions of this common law doctrine is Howard Fisher and Dale Pond, "Our American Common Law." For copies, write to: Delta Spectrum Research, 2100 W. Drake Rd., Suite 402, Fort Collins, CO, 80526. The summary of common law thought in this essay is largely, though not completely, drawn from this pamphlet. Other

12 See "U.S.A. The Republic, Is the House That No One Lives In." World Wide Web document:

http://www.ptialaska.net/-swampv/amend 14/usa.html

13 Fisher and Pond, note 9.

14 Jerry Simmons, "Demand for Common Law 'Due Process'". Document in author's possession.

15 Hearing transcript, March 29, 1993

16 George Gordon materials from The New York Times. The Cleveland Plain Dealer, and various UPI wire reports.

17 UPI, December 29, 1980.

18 Description of Pro Se meeting comes from The Tampa Tribune. April 28, 1996.

19 St. Petersburg Times. August 10, 1994.

20 Fort Lauderdale Sun-Sentinel. October 5, 1996.

21 The description of this incident is based largely on common law court documents sent to author by Glenn Sawyer.

22 The Washington Times. August 12, 1996.

23 San Francisco Chronicle. July 16, 1995.

24 See, 34 Op. Atty. Gen. 483 (1925).

25 McCann v. Greenway, 952 F.Supp. 647, 651 (W.D.Mo. 1997).

26 See Judge Bonnie Sudderth, "The Patriot Movement: Paper Warriors and Common Law Courts," 26 Court Review at 22-29.

27 This is commonly done in an action to "quiet title."

28 See, e.g. 8 U.S.C. § 1481.

29 See, e.g. United States v. Hart, 701 F.2d 749 (8^th Cir. 1993)(not holding on point, but assessing party double penalty for frivolous claim of sovereignty); Shrock v. United States, 92 F.3d 1187 (7^th Cir. 1996)(declaring sovereignty argument in tax context "universally rejected"). See also 8 U.S.C. § 1481 (establishing requirements for consideration as independent foreign sovereigns).

30 Sudderth, supra note 3, at 25.

31 Richard Abanes, American Militias (1996) at 31. Mr. Abanes is the Director of the Religious Information Center of Southern California, and has written extensively on his view of the threat posed by the militia movement.

32 See Susan P. Koniak, "The Chosen People in Our Wilderness," 95 Michigan Law Review 1765 (1997)

33 Susan P. Koniak has described the common law courts adherents "jurisprudence" in the following very perceptive way: ".. .they believe that in our world, admiralty law prevails and the Uniform Commercial Code has somehow replaced the Constitution of the United States as our fundamental social contract. No one can construct, or reconstruct, a legal order from precepts strung together on a list..." Id. at 1769-70.

34 See, e.g.. Appendix C, "Movement Documents."

35 304 U.S. 64 (1938).

36 See, e.g. Kimmel v. Bumett County Appraisal District, 835 S.W.2d 108 (Tex. App. 1992).

37 Confusion surrounding the ratification of proposed amendments has been ameliorated by Congressional enactment of 1 U.S.C. § 106b, which provides a process for notifying and verifying that an amendment has been ratified.

38 See Section C, Additional Authority.

39 See, e.s; Rodney Smolla. Smolla and Nimmer on Freedom of Speech, at 3-41.

40 The Kitsap County Prosecuting Attorney's Office, Freemen: Armageddon's Prophets of Hate and Terror, p. 59 (1998).

41 See Brooksany Ban-owes, "The Permissibility of Shackling or Gagging Pro Se Criminal Defendants," 1998 U. Chi. Legal F. 349. Ms. Ban-owes' article includes a recent and thorough examination of the law surrounding the permissibility of measures that may be taken against the/pro se litgant.

42 See, e.g. Appendix A, Section 2.1.1, State Barratry Laws.

43 The United States Supreme Court has long upheld the fundamental nature of the right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 463 (1938). In more modern times, the Supreme Court has clearly held that courts should indulge every possible presumption against the waiver of counsel and that doubts will be resolved in favor of no waiver. See Michigan v. Jackson, 475 U.S. 625, 633 (1986). For a good discussion and example of the danger of reversal, see United States v. Meeks, 987 F.2d 575 (9^th Cir. 1993).

44 Faretta v. California, 422 U.S. 806, 818-819 (1975).

45 Force feeding a civil contemnor has been held to not violate the contemnor's constitutional rights in several federal courts. See, e.g. In Re Sanchez, 577 F.Supp. 7 (S.D.N.Y. 1983) (holding that, given that the purpose of the strike was to coerce the court, and that the contemnor's strong objection was already expressed by fact of the hunger strike, his constitutional rights were not violated by government force feeding).

46 It is also advisable for the court or the executive to arrive at a medical determination that the individual's health is in jeopardy before taking this step. See Martinez v. Turner, 977 F.2d 421 (8' Cir. 1992) (holding that individual failed to state a constitutional claim where evidence showed that authorities had arrived at a medical decision that force feeding was necessary to the individual's health).

47 See, e.g. Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges. Ch. 27 (1998 Supp.). Flamm's text contains an exhaustive discussion of the state procedures involving judicial recusal and disqualification.

48 In Alaska, for example, there exists a statutory right to peremptorily challenge a judge, see Alaska Stat. § 22.20.022, § 2, ch. 48, but this right does not dictate the procedure. For that, judges must look to the specially-promulgated criminal and civil rules. This scenario is typical in peremptory states.

49 Again, we urge the courts to consult the Flamm treatise, supra note 1, for a full and complete treatment of the law of judicial disqualification.

50 This particular objection explains the movement's reliance on Bouvier's 1856 Law Dictionary - It was considered the source before the passage of the Fourteenth Amendment.

51 See 11 U.S.C. § 303 et seq. Interestingly, this provision does not allow "involuntary" bankruptcies against farmers or ranchers - livelihoods that are well-represented among the groups that might use this provision against public officials. There is, however, a "bad faith" provision of this section that provides for remedies against the bad faith creditor. See 11 U.S.C. § 303(i). The United States Court of Appeals for the DC Circuit has fairly recently addressed these remedies, see Fetner v. Haggerty, 99 F.3d 1180(D.C.Cir. 1996).

52 Such as cases where suits are filed against judges in order to create a conflict and thereby gain cause for recusal or removal.

53 We say this as a result of the United States Supreme Court's recent decision in Alden v. Maine, No. 98-436 (June 23, 1999). Alden and the line of cases it follows appear to be only about Congress's ability to abrogate state sovereign immunity when legislating pursuant to commerce or spending clause power. The authors, however, make no representation about the future of state sovereign immunity and how the Alden decision will ultimately affect legislation enacted pursuant to Congress's power under section 5 of the Fourteenth Amendment.

54 The descriptions of the standards that follow are taken from Trial Court Performance Standards and Measurement System Implementation Manual. Bureau of Justice Assistance, July, 1997.

55 The five standards are: Public Proceedings; Safety, Accessibility and Convenience; Effective Participation; Courtesy, Responsiveness and Respect; and Affordable Costs of Access.

56 Used with permission from http://users.netonecom.net/~gwood/TLP/ref/

57 Reprinted with permission from www.cascadian.com.

58 Reprinted with permission from www.cascadian.com.

59 Reprinted with permission from www.civil-liberties.com.

60 Used with permission from http://users.netonecom.net/~gwood/TLP/ref/.

61 Reprinted with permission of the author. Due Process, a legal assistance organization based in Tampa, Florida. See their website at www.dueprocess.org/index.html.

62 Reprinted with permission of the Author, Matthew Olson.

63 Reprinted with permission of the author, Larry Becraft.

64 Reprinted with permission of the author, Larry Becraft.