Rights Of A Jury

    	The basis of the doctrine is the uncontroverted power of juries   in criminal cases to render a general verdict of "guilty" or "not guilty.  "{4}  The prosecution cannot reindict a defendant who has been acquitted   due to jury independence.{5}  The court cannot, regardless of the strength   of the evidence, direct the jury to convict;{6} neither can it investigate   whether the jury acquitted due to qualms about the justness of the law.    Jurors are not obliged to justify their conclusion.{7}  So long as the   defendant cannot be subjected to double jeopardy, it will remain within the   power of jurors to provide absolute and irreviewable lenity.{8}    	There may be no doctrine in criminal law more controversial, if not   subversive, than jury independence.{9}  From a different perspective, however,   jury independence is not controversial at all.  Nobody questions what the   doctrine is about, or that courts consider it a power juries may not   rightfully exercise.{10}  Jurors are supposed to judge the facts, and to   leave the law to the judge.  Every exercise of jury independence is considered   wrongful, an example of "juror lawlessness."  In the study of law, few   black letter rules are more firmly established than these.    	Yet this alleged "lawlessness" is not only unpunishable, but   irreviewable and absolute.  There is a dichotomy between widespread   judicial distrust of the ability, motives and intelligence of jurors, and   the enormous power and responsibility entrusted to them.  Due to this   tension, the idea has developed that juries have the "power," but not the   "right," to nullify the written law.  The difference between a legal power   and a legal right is entirely academic; it is not clear that this distinction   is either maintainable or sensible in any case where jurors are aware of   their powers.{11}      	And jurors are increasingly likely to be aware.  A grass roots   campaign has informed millions of Americans of their potential power as jurors  .{12}  Legislation has been introduced in several states, including Texas,   requiring jurors to be informed of their power to deliver a verdict   according to conscience.{13}  In both Oklahoma {14} and Arizona,{15} jury   independence legislation has passed the State House, only to become bogged   down in the State Senate.  This essay will discuss the criticisms that have   been leveled at jury independence legislation introduced in Texas during   the 1991 and 1993 legislative sessions, and will discuss some potential   legislative improvements.        A Brief History of Jury Independence    	Jury independence has been traced back to before the Magna Charta.  {16}  The first explicit advocacy of jury law-judging was probably made by   Lt. Col. John Lilburne in his 1649 trial for treason.{17}  Colonial Americans   used independent juries as a method for opposing arbitrary British rule,   which in turn led the Crown to transfer entire classes of cases from the   common law courts to the Maritime courts, where no jury was involved.{18}    Federalists and Anti-Federalists alike agreed on the virtues of trial by jury,   Alexander Hamilton writing that:    The friends and adversaries of the plan of the convention, if they agree on   nothing else, concur at least in the value they set upon the trial by jury;   or if there is any difference between them it consists of this: the former   regard it as a valuable safeguard to liberty, the latter represent it as the   very palladium of free government.{19}        	John Adams, Thomas Jefferson, Benjamin Franklin, John Jay and other   founding fathers of the new republic spoke out on the topic of jury independence,   and with one voice agreed that the role of the jury consisted of judging   both law and fact.{20}  	    	The Sixth Amendment recognizes the right of jurors to judge the law.    It may be assumed that the definition of "jury" as used in the Constitution   would be consonant with the definition in the legal dictionaries of the   period.  It would be useful to know what dictionary James Madison used in   drafting the Bill of Rights.  The most common legal dictionary in Colonial   Virginia was Jacob's Law Dictionary.{21}  Within the encyclopedic definition   given, Jacob's  noted that:    Juries are fineable, if they are unlawfully dealt with to give their verdict  ; but they are not fineable for giving their verdict contrary to the evidence  , or against the direction of the court; for the law supposes 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  .  Vaugh. 153, 3 Leon 147.        If a jury take upon them the knowledge of the law, and give a general verdict  , it is good; but in cases of difficulty, it is best and safest to find the   special matter, and to leave it to the judge to determine what is the law   upon the fact.  I Inst. 30.{22}	    	    	As America left behind its colonial past, the perceived need for   independent juries faded.  The early Nineteenth century saw the development   of a professional bench; earlier judges often had no formal legal training.  {23}  Instructions charging jurors with the responsibility for judging both   law and fact began to give way to increasingly constrained instructions,{24}   although juries retained the power, and occasionally the will, to nullify any   gross excrescences of the law.    	The Fugitive Slave Act of 1850 provoked the power of jurors to judge   the law.  Northern jurors frequently refused to convict whites who harbored   or assisted fugitive slaves.  One source reports that "violence against slave  -catchers and the refusal of jurors to convict persons who aided escaped slaves   effectively nullified the federal fugitive slave law in several free states."  {25}  Cases in New York{26} and Massachusetts{27} emphasize the difficulty the   government had in obtaining convictions, although in one case President Fillmore   himself demanded prosecution, and the charge to the grand jury referred to   the defendants as "beyond the scope of human reason and fit subjects either   of consecration or a mad-house."{28}     	Independent acquittals were common enough that judges routinely admonished   juries not to vote their consciences in Fugitive Slave Act cases.  Justice   McLean, the lone dissenter in Prigg v. Pennsylvania{29} and arguably the Supreme   Court Justice most opposed to slavery, refuted the right of jurors to bring   conscientious verdicts in at least six Fugitive Slave Act cases.{30}    Supreme Court Justice Grier, riding circuit and sitting alongside Judge Kane   gave similar instructions in Pennsylvania,{31} as did Supreme Court Justice   Curtis,{32} Massachusetts District Judge Sprague,{33} and New York District   Judge Conkling.{34}  The regularity of anti-nullification instructions   indicates the frequency with which jurors refused to enforce this repugnant   law.        Sparf et al.: The Supreme Court Rejects Jury Independence    	Federal courts had begun restricting jury independence in the 1830's.  {35}  The Supreme Court had not directly confronted the issue since the   revolutionary era, but the stubbornness of the doctrine, combined with   inconsistent opinions from state courts, made this issue ripe for Supreme   Court review by the end of the century.  In 1895, an appeal of the murder   convictions of two sailors reached the Court, on the ground that the jury had   been improperly instructed that there was nothing in the case to justify a   verdict of manslaughter instead of the capital offense of murder.  This   case, Sparf et al. v. United States,{36} gave the Supreme Court their   opportunity to revisit their earlier opinions on jury independence.    	The majority opinion in Sparf was written by Justice Harlan,   and fills 57 pages of the Supreme Court Reports.  The dissent,   written by Justice Gray, occupies another 74.  Both opinions draw from   the same history, the same precedents, and the same texts; but reach   diametrically opposed conclusions.  Justice Harlan denied that juries   had the right to judge the law, or that they had ever had such a right:    Public and private safety alike would be in peril if the principle be established  that juries in criminal cases may, of right, disregard the law as expounded   to them by the court, and become a law unto themselves.  Under such a   system, the principal function of the judge would be to preside and keep   order while jurymen, untrained in the law, would determine questions   affecting life, liberty or property according to such legal principles as,   in their judgment, were applicable to the particular case being tried. . .   And if it be true that a jury in a criminal case may determine for   themselves what the law is, it necessarily results that counsel for the   accused may, of right, in the presence of both court and jury, contend that   what the court declares to be the law applicable to the case in hand is   not the law, and, in support of his contention, read to the jury the reports   of adjudged cases, and the views of elementary writers.{37}        	The conclusion that counsel could not argue the law to the jury had   brought a prior Supreme Court Justice to impeachment.{38}  Historically, it   often was true that the primary functions of the judge were to maintain order   and to advise the jury to the best of his abilities.  But times had changed,   and the revolutionary zeal for independence and for citizen participation   in the administration of justice had given way to efficiency, consistency   and administrative concerns.     	Juries had also changed.  Whether Sparf is in part a response to   the democratization of the jury is an interesting question.  The rights of   blacks to freedom from discrimination in selection for jury duty had been   recognized in 1879.{39}  The masses of late_Nineteenth century immigrants   were becoming citizens, eligible for jury duty.  Economic qualifications   and sex discrimination still prevailed; but the freeholder requirements of   the Eighteenth century had been drastically reduced due to necessity, as   the system sought to obtain an adequate supply of jurors.  The jury, former  ly an elite group of well-educated and affluent white males who could be   relied on to support the prevailing institutions and division of power,{40}   had come much closer to the hypothetical cross-section of society.  Where   social pressure in the colonial era had been in favor of allowing elite   white male freeholders to veto the enactments of a foreign Parliament, by   the end of the Nineteenth century the pressure was to control the immigrants  , blacks and other elements from all walks of life who found themselves sitting   in judgment of their neighbors.{41}  The melting pot had spilled over into   the jury pool.    	Justice Gray, in dissent, adamantly maintained that juries had the   right to judge the law; and that without that right there was no valid   reason for continuing to try criminal cases before a jury:    It is our deep and settled conviction...that the jury, upon the general   issue of guilty or not guilty, in a criminal case, have the right, as well   as the power, to decide, according to their own judgment and consciences,   all questions, whether of law or of fact, involved in that issue.{42}    There may be less danger of prejudice or oppression from judges appointed   by the president elected by the people than from judges appointed by an   hereditary   monarch.  But, as the experience of history shows, it cannot be assumed   that judges will always be just and impartial, and free from inclination .   . . of amplifying their own jurisdiction and powers at the expense of those   intrusted by the constitution to other bodies.  And there is surely no r  eason why the chief security of the liberty of the citizen _the judgment   of his peers_should be held less sacred in a republic than in a democracy.  {43}        	In Justice Gray's opinion, one historical and logical role for the   jury was to ameliorate any excessively harsh or unjust application of the   law.{44}  In this case, the jury should have been allowed to interpose its   view of justice in favor of the defendant, and the instructions they were   given prevented this.  Gray recognized the historical right of jurors to   ameliorate the letter of the law, especially in capital cases.  Denying the   right of jurors to independently determine the justice of the sentence   deprived the jury of its role in the administration of justice.    	Both justices recognized the power of jurors to render a verdict   contrary to the instructions of the court.  Jurors could not be bound to   the court's interpretation of the law_if they could, there need be no   scruples against directed convictions where no material facts were disputed.    Justice Harlan thought this power was never intended to be exercised.{45}    But as Lawrence Friedman has noted, "This type of behavior has been   called jury lawlessness; but there is something strange in pinning the   label of "lawless" on a power so carefully and explicitly built into the   law."{46}    	It is important to recognize the narrowness of the holding in Sparf.    All that was decided was that the refusal of the court to inform the jury   that they may rightfully bring in an ameliorated verdict was not reversible   error.  Justice Harlan suggested no way of eliminating the power of juries,   sua sponte, to nullify law.  The case determined only that federal judges   did not have to inform jurors of their power to deliver an independent   verdict.  The case did not hold that jurors could not be given such an   instruction, or that courts must disingenuously inform jurors that they   were bound to the judge's interpretation of the law.  Harlan specifically   noted that States could provide by statute or in their constitutions that   jurors were the judges of the law.      	During the closing decade of the Nineteenth century, American courts   were filled with labor cases to an unprecedented degree.  While the most   famous such case, People v. Spies et al.,{47} ended in the conviction of the   defendants accused of the Haymarket Square bombing, prosecutors found it   increasingly difficult to prevail in labor cases as the Twentieth century   approached.  Since the 1805 Philadelphia Cordwainers Case,{48} charging union   organizers and members with criminal conspiracies in restraint of trade had   been an effective tool against labor unrest.{49}  The prosecution of Eugene   V. Debs for his organization of the Pullman Strike of 1894{50} was about to   end in an ignominious defeat for the government when the fortuitous illness   of one juror caused a mistrial, against the protests of defense attorney   Clarence Darrow.{51}  The government contented itself with Debs' earlier   conviction on contempt of court charges for defying an injunction issued   against the American Railroad Union (ARU), thereby avoiding the necessity   of a jury trial.{52}    	It has been suggested that the reluctance of juries to convict   in labor cases was one factor leading to the decision in Sparf et al.,   or perhaps leading to the decision of the Supreme Court to certify this   otherwise relatively unimportant case at all.{53}  U.S. Attorney General   Richard Olney personally argued the government position in Debs' Habeas Corpus   motion,{54} and the notedly conservative Fuller court (which decided United   States v. E.C. Knight Co.{55} just prior to Sparf et al.) could be   presumed to lean towards the railroads and against the unions.{56}  Sparf   et al. would have been an ideal case to choose in order to limit the   discomfiting tenacity of independent juries.    	Whether suppression of union activism, or trepidation over the   changing composition of juries, or an actual commitment to the holding   expressed, were the motivating forces for the decision in Sparf are beyond   the scope of this essay, if in fact they can be resolved at all.  What can   be ascertained is that depriving jurors of their right to judge the law was   effective in holding back the growth of the labor movement, and did suppress   the influence of the changing American jury on the administration of the law.      	The history of the National Prohibition Act established that jurors   would not be subdued by the decision in Sparf et al.  In some areas, as   many as sixty percent of alcohol-related prosecutions ended in acquittal.  {57}  Kalven and Zeisel report that "the Prohibition era provided the most   intense example of jury revolt in recent history."{58}  Prohibition has   been described as a "crime category in which the jury was totally at war   with the law."{59}    	In spite of meager conviction rates, Prohibition was a boon to   organized crime, and to the growth of a national law enforcement bureaucracy.  {60}  By 1939, one out of three federal prisoners sentenced for one year or   more were incarcerated for alcohol offenses.{61}  James Ostrowski has noted   that "Convictions under the National Prohibition Act rose from approximately   18,000 in 1921 to approximately 61,000 in 1932."{62}   In spite of draconian   efforts to enforce this unpopular law, a presidential commission concluded   in 1931 that "There is as yet no substantial observance or enforcement," and   urged that enforcement budgets be "substantially increased." {63}    	In more recent times, the prosecution of Vietnam War protestors often   led to defense requests for jury nullification instructions.{64}  Although   those requests were usually denied, occasionally judges allowed defense   counsel to explain jury independence during closing arguments.{65}  The Vietnam   War protest cases inspired a wealth of academic debate on jury nullification,   including important articles by Joseph L. Sax{66} and William Kunstler.{67}    Before long, the gauntlet handed down by Sax and Kunstler was picked up by   hundreds of authors, ranging from state and federal judges{68} to community   college instructors.{69}          The History of the Independent Jury in Texas    	State courts in the early years of this country were unanimous in the  ir support of jury law judging.  According to one report, the earliest state   decision in this country that jurors were not to judge the law came from the   1843 New Hampshire case of Pierce v. State,{70} although the trend towards   limiting the right of jurors began almost fifteen years earlier.{71}  Still,   for four decades following the adoption of the Bill of Rights, the right of   jurors to judge both law and fact was uncontroversially accepted.      	In the period preceding the Civil War, several state legislatures   either inserted jury independence provisions in their state constitutions,   or passed statutes granting jurors the power to judge the law.{72}  Due to   Spanish and Mexican civil law heritage, Texas courts did not have the same   common law roots as the original colonies.  In particular, Texas courts have   never recognized the independence of the jury.  One of the first Texas cases   to consider the doctrine concluded that     It was not only the privilege, but the duty of the Judge to give in charge   to the jury the law of the case, without regard to what had, or had not,   been read to them by counsel, either for or against the prisoner.  And if,   in his opinion, the counsel on either side had mistaken, or misrepresented   the law to the jury, it was his undoubted province to correct the mistake   or misrepresentation; to disembarrass the minds of the jury, and to inform   them in respect to the law of the case. . . For the law, it is their duty   to look to the court.{73}        	The Texas Code of Criminal Procedures adopted on August 26, 1856   (effective February 1, 1857) specifically denied that juries were the judges   of the law.{74}  It read     592: The jury are the exclusive judges of the facts in every criminal cause,   but not of the law in any case.  They are bound to receive the law from the   court, and to be governed thereby.{75}        	Texas courts followed this rule consistently.{76}  Arguably, this   rule was at odds with 6 of the Constitution of the State of Texas, which   paraphrased Fox's Libel Act{77} in what had become almost a boilerplate   provision that survives today not only in the Texas Constitution but in the   constitutions of several other states as well:    6: In prosecution for the publication of papers investigating the official   conduct of officers, or men in a public capacity, or when the matter published   is proper for public information, the truth thereof may be given in evidence.    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.{78}        	How constrained a jury's law judging power "under the direction of   the court" is, was a contested issue in many states until the late Nineteenth   century.  By 1900, the courts of a number of states{79} which had not   specifically protected independent juries by statute or constitutional   provision struck down the "archaic, outmoded and atrocious" practice of   instructing juries that they were the judges of law as well as of fact.{80}      Jury Independence in Texas Today    	Although Texas has never formally recognized the doctrine of jury   independence,{81} Texas juries have frequently refused to convict where   they believed the law was unfair or unjustly applied.  Verdicts in the   recent trial of eight surviving Branch Davidians included elements of jury   independence,{82} and a grass-roots movement has formed to lobby for   legislative action and to inform jurors of their latent powers.{83}  This   venerable doctrine, nearly eight hundred years old, may well be gaining   new strength.  Texas courts must be prepared to confront jurors who are   aware of their perogative to render an independent verdict.    	Furthermore, legislation that would require judges to instruct   jurors of their power to judge the law has already been introduced in Texas   _ twice.{84}  Although those bills were defeated, efforts are underway to   introduce a revised bill in the 1995 session.  It is appropriate to examine   what sort of reforms jury power activists are seeking, and what are the   best legislative steps towards obtaining those goals.  A good place to   start is by analyzing the criticisms leveled at the 1991 and 1993 legislative   proposals.  The 1991 bill, H.B. 25, was proposed as follows:    	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:    	SECTION 1. Chapter 62, Government Code, is amended by adding                   Subchapter G to read 	as follows:    SUBCHAPTER G; JURY NULLIFICATION    Sec. 62.601. POWER TO NULLIFY. If a jury determines that a party is liable   according to the law and that the law is unjust or wrongly applied to the   party, the jury may nullify the applicable law as applied to the party and   find the party not liable.    Sec. 62.602. JURY INSTRUCTION. Before jury deliberation, the court shall   instruct the jury as follows: "If you determine that a party is liable   according to the law, before reaching a verdict you may consider the   motives of the party. If you find the law to be unjust or wrongly applied   to the party, you may vote according to conscience and find the party   not liable, regardless of the facts of the case."    Sec. 62.603. DISQUALIFICATION PROHIBITED. A potential juror may not be   excused or disqualified from serving on a jury because the juror   expresses a willingness to nullify law.    Sec. 62.604. CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE.    (a) To the extent that this subchapter conflicts with the Texas Rules   of Civil Procedure, this subchapter controls.    (b) Notwithstanding Section 22.004, the supreme court may not amend or   adopt rules in conflict with this subchapter.    SECTION 2. Article 36.13, Code of Criminal Procedure, is amended to read   as follows:    Art. 36.13. JURY IS JUDGE OF FACTS AND LAW.    (a) Unless otherwise provided in this Code, the jury is the exclusive   judge of the facts. The jury is bound to receive the law from the court   and be governed thereby, except if a jury determines that a defendant   is guilty according to the law and that the law is unjust or wrongly   applied to the defendant, the jury may nullify the applicable law as   applied to the defendant and find the defendant not guilty.    (b) Before jury deliberation, the judge shall instruct the jury as   follows: "If you determine that the defendant is guilty according to   the law, before reaching a verdict you may consider the motives of the   defendant. If you find the law to be unjust or wrongly applied to the   defendant, you may vote according to conscience and find the defendant   not guilty, regardless of the facts of the case."    (c) A potential juror may not be excused or disqualified from serving   on a jury because the juror expresses a willingness to nullify law.{85}        	Even some advocates of jury independence were troubled by the   language of this bill.  The bill was not limited to criminal and   quasi-criminal cases.  Proponents of the bill argued that this was   overbroad, because "the purpose of nullification... is to protect people   from the government, not to release them from contractual obligations   they voluntarily entered into with other private citizens."{86}  The   power of judges in civil trials to set aside and direct verdicts renders   jury independence relatively meaningless in many civil cases.    	A deeper problem is found in the mandatory jury instruction.    Jury independence is a doctrine of lenity; it should not be invoked   against the defendant.{87}  As an affirmative defense of sorts, it   should be left to the discretion of the defense whether to invoke it   in any particular trial.{88}    	Some advocates of H.B. 25 were uneasy with placing additional   demands on judges.  The bill mandates jury nullification instructions   whether or not they are relevant, desired by the defendant, or applicable   in the interest of justice.  Many judges already resent legislative   efforts to micromanage the courtroom through sentencing guidelines,{89}   and requiring this rote instruction whatever the circumstances of the   case can only create unnecessary judicial resentment.    	Opponents argued that the bill would cause inconsistent   application of the laws and erosion of the rule of law; unwarranted   convictions without preserving grounds for appeal; and confusion in   jury selection procedures.  Additionally, this legislation could be   read as recognition of the right of jurors to judge the law within Art.  I 8 of the Texas Constitution, and "would constitute a reason for the   reversal of all the cases previously tried under the present rules of   procedure."{90}    	Jury independence does not deprive the law of consistency.    A different person may still be charged with violating a statute the   jury chose not to enforce in a previous case; the law has not changed.    This is all the consistency that can possibly be obtained for the   criminal law.  The law is not applied consistently by police, prosecutors   or judges, all of whom act within the discretion allowed them under the   constitution and the laws.{91}  Many charges are dropped by police or   prosecutors.  Some end in lenient plea-bargaining agreements.  Judges   dismiss cases and suspend sentences.  The competence of the defense and   prosecution, as well as dumb luck, may determine the outcome of any   individual case.  Jurors should be granted the same discretion all other   participants in the criminal justice system already enjoy.    	Concerns about unwarranted convictions can be answered on two   levels: first, there must be sufficient grounds for a conviction for   the case to go to the jury; second, the judge retains the authority to   declare a mistrial if he fears the jury will judge the law adversely to   the defendant.  The dangers of jury law-finding adverse to the defendant   are always present, however, and are exacerbated by requiring instructions   about jury independence in inappropriate cases.    	Some provisions of H.B. 25 are incompatible with sections of   the Texas Code of Criminal Procedure other than Art. 36.13.  H.B. 25   does not address the problems with jury challenges presented in Art.   35.16.{92}  The defendants right to have a jury judge the law is   meaningless if the prosecutor can eliminate any juror who admits to   having scruples about the law the defendant is charged with violating.  {93}    	Legislation introduced in Texas in 1993 was similar to that   introduced in 1991.  H.B. 2382, introduced by freshman Rep. John   Longoria (D.-San Antonio),{94} never made it to hearings.  It was   one of about 150 bills_approximately half of those submitted _which   died before reaching the House Criminal Jurisprudence Committee.{95}    The bill was extensively analyzed by Austin attorney Paul C. Velte IV,   however, in the newletter of the Fully Informed Jury Association.{96}      	The first section of H.B. 2382 dealt with criminal trials;   the second section dealt with jury trials in any "action in which a   governmental agency, as party to a civil action, seeks to collect a   civil or administrative penalty."{97}  H.B. 2382 did not cover all   civil actions; its scope was deliberately limited in Section 1 to   criminal trials, and in Section 2 to quasi-criminal actions where   government is a party.  The provisions in the two sections are   otherwise similar enough that we can limit discussion here to the   section one provisions concerning criminal cases.{98}    AN ACT relating to a jury's right to determine the law in certain   criminal and civil cases.    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:    1	Article 36.13, Code of Criminal Procedure, is amended to   read as follows:    	Art. 36.13.  JURY IS JUDGE OF FACTS AND LAW.  (a)  Unless   otherwise provided in this Code, the jury is the exclusive judge   of the facts.  The jury is bound to receive the law from the court   and to be governed thereby, except if a jury determines that the   defendant is guilty according to the law and that the law is unjust   or unjustly applied to the defendant, the jury may determine not to   apply the law to the defendant and find the defendant not guilty or   guilty of a lesser included offense.    	(b)  Before a jury hears a case, and again before the jury   deliberates the case, the court shall instruct the jury as follows:   "If you determine that the defendant is guilty according to law,   you may apply the law to the defendant and find the defendant guilty.    You may also consider the motives and circumstances of the defendant,   the extent to which the defendant's actions injured another person,   the merits of the law itself, and the wisdom of applying the law to   the defendant in the case before you.  If finding the defendant guilty   according to the law would violate your conscience or sense of justice,   you may determine not to apply the law to the defendant and find the   defendant not guilty or you may find the defendant guilty of a lesser   included offense."    	(c)  The court shall allow any party to the trial to present   to the jury, for its consideration, evidence and testimony relating to   the motives and circumstances of the defendant and the extent to which   he actually harmed another person.  Any party to the trial may also   present to the jury arguments regarding the spirit, intent, merits,   and constitutionality of the law itself and its applicability to the   case at hand.    	(d)  A potential juror may not be excused or disqualified   from jury service because the juror expresses a willingness to evaluate   the law or its application, to vote on the verdict according to conscience   or sense of justice, or to consider testimony or evidence allowed in   this article.    	(e)  On motion of the state or the defendant, a court that   failed to provide the instruction required in this article, or failed   to follow any other rule of procedure of this article shall declare a   mistrial in the case.        	Many of the flaws in the 1991 legislation were addressed in   H.B. 2382  Longoria's legislation made it plain that juries are not   to judge the law adversely to the interests of the defendant.  The   instructions in part (b) lead the jury to examine the justice of the   law only after they have found the defendant to be otherwise guilty.    This alleviates, but does not eliminate, problems of juries nullifying   important defenses or deciding that the law is written too leniently.      	This legislation requires the jury to be instructed of their   powers regardless of the case at hand.  Both sides could move for a   mistrial if the judge fails to instruct the jury about jury independence.  Neither side could challenge a juror "because the juror expresses a willingness to evaluate the law or its application, to vote on the verdict according to conscience or sense of justice..."  These provisions may encourage jurors to vote against the law in cases where the defendant has a legitimate but unpopular defense, such as insanity or lack of capacity.  Authorizing a jury to act as the "conscience of the community" could be misinterpreted to allow a conviction where the law didn't, but perhaps should have, proscribed the offense.  This is not the intent or the purpose of the legislation; moreover it could lead to unconstitutional, ex post facto results.    	Other problems with H.B. 2382 are more subtle.  Paul Velte   raises concerns about subsection (c) allowing the introduction of   extraneous, unadjudicated offenses during the guilt/innocence phase of   a trial.{99}  Velte emphasizes that the evidence allowed in under   subsection (c) should be explicitly limited to that regarding the offense   on trial.{100}    	One problem H.B. 2382 addressed was to provide in the final   section that "The change in law made by this Act applies only to a jury   sworn on or after the effective date of this Act."  This provision   attempts to address the concerns that all previous convictions could be   overturned by finding a right to an empowered jury in Art. I 8 of the   Texas Constitution.  This concern had been raised over H.B. 25, and   should be addressed in any future Texas jury independence legislation.        A Jury Independence Bill for Texas    	Because of the difficulty in drafting effective legislation   to empower the jury, the Fully Informed Jury Association (FIJA) has   drafted model language for consideration by the state legislatures.{101}  This model language has some advantages over either H.B. 25 or H.B. 2382:    1)	The FIJA act is cast in terms of the rights of defendants,   not the right of jurors.  This avoids fruitless and circular arguments   over whether jurors have a "right," or merely a "power," to nullify the   law.  The FIJA language specifically couches the issue in terms of the   defendants right to a fair and unbiased jury, instead of the jurors right   to be seated whatever her views.  It is not clear that the defendant has   a right to a new trial if the rights of jurors have been violated.  The   right should reside with the party with the most to lose if it is abridged;   and that party is the defendant.    2)	The model language places the decision to inform the jury, and   the responsibility for informing the jury, on the defense instead of the   court.  It places no additional duties on the judge, and it does not mandate   any specific instructions or language.  This should reduce both procedural   errors and the likelihood that the jury will find the law adversely to the   defendant.  It should also reduce the number of trials where jury independence   issues would arise.    3)	By specifically listing what issues may be presented to the jury   in argument for an independent verdict, the model act prevents overly   broad or overly narrow interpretations.  The earlier bills risked either   undercutting or being undercut by the rules of evidence, at the discretion   of the court.  The model act makes it clear what issues are relevant and   admissible in arguing the injustice or inapplicability of the law.    	The FIJA provisions can be adapted to incorporate the necessary   changes to the Texas Code of Criminal Procedure.  Article 35.16 would have   to be modifed by the repeal of subarticle (b)(3).  (Subarticle (c)(2)   would not have to be repealed; the defendant should be entitled to object   to a juror willing to find against him regardless of the law.)  "Every   individual is entitled to rely on the law as written, and conform his   conduct to its dictates."{102}    	Article 36.13 would have to be revised in order to acknowledge   the power of the jury.  The language suggested in H.B. 2382 for section   (a) of Article 36.13 can be retained, and enlarged with the FIJA language.    The Texas Rules of Civil Procedures can be modified by the addition of   a new section, as in H.B. 2382, but with substitution of the FIJA language   for some of the original text.  Section 3 of H.B. 2382 can be retained   in order to make it clear that the intention is not to open up previous   cases.  Using these materials, a Jury Independence Act for Texas would   read as follows:        AN ACT relating to a defendant's right to trial by a jury empowered to   determine both law and fact in certain criminal and civil cases.    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:    1	Article 36.13, Code of Criminal Procedure, is amended to read   as follows:    	Art. 36.13.  JURY IS JUDGE OF FACTS AND LAW.  (a)  Unless otherwise   provided in this Code, the jury is the exclusive judge of the facts.    The jury is bound to receive the law from the court and to be governed   thereby, except if a jury determines that the defendant is guilty according   to the law and that the law is unjust or unjustly applied to the defendant  , the jury may determine not to apply the law to the defendant and find   the defendant not guilty or guilty of a lesser included offense.    	(b)  An accused party's right to trial by jury includes the right   to inform the jurors of their power to judge the law as well as the evidence,   and to vote on the verdict according to conscience.    	(c)  This right shall not be infringed by any statute, juror oath,   court order, or procedure or practice of the court, including the use of   any method of jury selection which could preclude or limit the empanelment   of jurors willing to exercise this power.    	(d)  Nor shall this right be infringed by preventing any party   to the trial, once the jurors have been informed of their powers, from   presenting arguments to the jury which may pertain to issues of law and   conscience, including 		(1) the merit, intent, constitutionality,   or applicability of the law in the instant case;     	(2) the motives, moral perspective, or circumstances of   the accused or aggrieved party;     	(3) the degree or direction of guilt or actual harm done; or    	(4) the sanctions which may be applied to the losing party.    	(e)  Failure to allow the accused or aggrieved party or counsel   for that party to so inform the jury shall be grounds for mistrial and   another trial by jury.    2	Article 35.16 (b)(3) is hereby repealed.    3	Subtitle B, Title 2, Civil Practices and Remedies Code, is amended   by adding Chapter 24 to read as follows:    	CHAPTER 24.  JURY POWERS IN CERTAIN GOVERNMENTAL PROCEEDINGS    	Sec. 24.001	DEFINITION:  In this chapter, "governmental agency"   means: (1) this state and any institution, agency, or organ of government   established by the constitution or laws of this state, including any   department, bureau, board, office, or council of this state; and (2) a   political subdivision of this state, including any county, municipality,   district, authority, and any agency of a political subdivision.    	Sec. 24.002	SCOPE OF CHAPTER:  (a) This chapter applies only   to an action in which a governmental agency, as party to a civil action,   seeks to collect or retain{103} a civil or administrative penalty.  (b)    This chapter applies only to an action tried to a jury under applicable   law.  This chapter does not create a right to a jury.    	Sec. 24.003	POWER NOT TO APPLY LAW:  (a)  If a jury determines   that a party is liable according to law and the law is unjust or unjustly   applied to the party, the jury may determine not to apply the law to the   party and find the party not liable.    	(b)  An accused party's right to trial by jury includes the right   to inform the jurors of their power to judge the law as well as the evidence  , and to vote on the verdict according to conscience.    	(c)  This right shall not be infringed by any statute, juror oath,   court order, or procedure or practice of the court, including the use of   any method of jury selection which could preclude or limit the empanelment   of jurors willing to exercise this power.    	(d)  Nor shall this right be infringed by preventing any party to   the trial, once the jurors have been informed of their powers, from   presenting arguments to the jury which may pertain to issues of law and   conscience, including     		(1) the merit, intent, constitutionality, or applicability   of the law in the instant case;     		(2) the motives, moral perspective, or circumstances of   the accused or aggrieved party;     		(3) the degree or direction of guilt or actual harm done;   or     		(4) the sanctions which may be applied to the losing party.    	(e)  Failure to allow the accused party to so inform the jury shall   be grounds for mistrial and another trial by jury.    	Sec. 24.004	CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE:    Notwithstanding Section 22.004, Government Code, this chapter may not be   modified or repealed by a rule adopted by the supreme court.    4	The change in law made by this Act applies only to a jury sworn on   or after the effective date of this Act.    	    	This proposed language addresses the concerns of both jury independence   proponents and opponents.  The bill makes it explicit that jury law-judging   should only take place after the defendant has been found otherwise guilty;   the protection against reverse nullification is buttressed by leaving the   decision whether to inform the jury of this power with the defense.  The   bill is not overbroad; it is applicable only to certain cases where there   is a risk of oppression by government.    	There is no requirement for judges to inform jurors of this   doctrine in all cases, regardless of the applicability of this doctrine to   the case.  Jurors are not likely to decide that laws against homicide,   blackmail or kidnapping are unjust or unfair; there is no reason to confuse  them by reading rote instructions in cases where the defense makes no claim   that the law is oppressive.      	The act clearly applies only to cases tried before juries   "sworn on or after the effective date of this Act." This provision protects   the system against a flood of appeals, as previous verdicts are challenged   on Art. I 8 grounds.  The right provided in this legislation is statutory,   not constitutional, and is not intended to be retroactive.  This language   places the right to inform the jury with the defendant.  The right to a   trial by a jury rests with the defendant; this legislation is intended to   clarify the rules about what a right to trial by jury entails.    	Finally, the proposed language specifies what evidence can be   brought in to argue the law to the jury.  There is nothing in this language   to permit the introduction of extraneous, unadjudicated offenses during the   guilt/innocence phase of the trial.  The prosecution could not introduce   such offenses in any case where the Texas Rules of Criminal Evidence 404(b)   would not already permit them.    	    Conclusion    	Too often, we think of the jury simplisticly, as mere triers of   facts.  But the jury also has a political function;{104} an educational   function; and a social function.  Today, with jury independence minimized   by controlling courts and procedural codes, juries are prevented from   performing many of these essential functions.  The political role of juries   is minimized, as few responsible jurors feel themselves empowered to nullify   bad laws.  We are not listening to our jurors; even worse, we are not   allowing them to speak.  Jurors are the citizen link most intimately   involved in the criminal justice system.  If the opinions of jurors are   not worth listening to, then we can quit wondering if citizen input has   any impact on our laws.  We can be assured it does not.    	Jury nullification should be recognized for exactly what it is:   proof that the nullified law lacks adequate social support to be consistently enforced.  Laws which are regularly nullified are laws that should change.  Juries should be seen as a necessary feedback loop in the legislative process.  When laws cease to be accepted by jurors, they should be stricken or modified by responsive legislation.  Independent juries can help reduce the lag time between social change and legal change, a problem that has always proven intractable.    	The educational function of juries is thwarted by treating jurors like children who must be kept under strict control.  Jurors are dealt with as though they are too ignorant, emotional, malevolent or misguided to benefit from the training jury duty has historically provided American citizens.{105}  Judges and lawyers have forgotten that they are not the only members of society capable of forming valid opinions about abstractions like "justice," "rights," or "liberty."  There is no evidence that modern citizens do not require the same level of civic awareness as citizens required in the eighteenth and nineteenth centuries.    	The social function of juries can not coexist with a regime of   jury servility.  When jurors leave courtrooms in tears after delivering   convictions against their deepest conscientious beliefs, the trial by   jury is not performing its intended function.  How much of our often   declaimed social breakdown can be traced to a lack of trust in the jury's   power to dispense justice?  When citizens are not allowed any meaningful   opportunity to participate in the execution of laws, it is not surprising   that they lose confidence in the ability of the system to protect them or   treat them fairly if accused.    	Independent juries are not a Utopian scheme; it is not to be   imagined that they will provide perfect justice.  The question is not   whether independent juries will always present the correct verdict, but   whether they will dispense better verdicts more often than not.  It is   difficult to answer this question in the negative without questioning   the principles of democratic governance; the jury is arguable the most   democratic institution in America.  Or, as D.C. Circuit Chief Judge   David L. Bazelon put it, "Trust in the jury is, after all, one of the   cornerstones of our entire criminal jurisprudence, and if that trust   is without foundation we must re-examine a great deal more than just   the nullification doctrine."{106}        FOOTNOTES********************************        {1}	This essay will not examine the law-judging role of civil juries.  Jury law-judging is especially problematic in civil cases due to the increased powers of civil court judges to direct verdicts and grant new trials.  There is no protection against double jeopardy in civil trials.    	The law-judging function of juries is commonly titled "jury   nullification" or "jury veto power," but for this writing I will refer   to it as "jury independence" as a more accurate description.  Guinther   found that "Despite its routine usage in law-journal prose, the phrase   [jury nullification] is both inaccurate and improperly pejorative."    John Guinther, The Jury in America 220 (Facts on File Publications, 1988).            {2}	Professors Alan W. Scheflin  and Jon M. Van Dyke have produced   a large body of work explaining the doctrine of jury nullification.    See Van Dyke, The Jury as a Political Institution, 16 Cath. Law. 224   (1970); Scheflin, Jury Nullification: The Right to Say No, 45 S.   Cal. L. Rev. 168 (1972); Scheflin and Van Dyke, Jury Nullification:   Contours of the Controversy, 43 Law & Contemp. Probs 51; Scheflin and   Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 Wash.   & Lee L. Rev. 165 (1991); Van Dyke, Jury Selection Procedures: Our   Uncertain Commitment to Representative Panels  ( Ballinger, 1977).        {3}	See Schnier v. People, 23 Ill. 17, 30 (1859), quoted in Howe,   Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582, 611 (1939):    [I]f they can say upon their oaths that they know the law better than   the court does, they have the right to do so, but before assuming so   solemn a responsibility, they should be sure that they are not acting   from caprice or prejudice . . . but from a deep and confident conviction   that the court is wrong and that they are right.  Before saying this upon   their oaths it is their duty to reflect, whether from their habits of   thought, their study and experience, they are better qualified to judge   of the law than the court.        {4}	The right of a defendant in criminal proceedings to have the   jury render a general verdict was reiterated in United States v. Spock,   416 F.2d 165, 180-183 (1st Cir. 1969).  (Use of special interrogatories   by the trial court was overturned on appeal, due to the restrictions it   placed on the jury's right to deliver a verdict free from excessive   judicial control.)        {5}	U.S. Const., amend. V.  The constitutional guarantee that   "No person shall . . . be subject for the same offence to be twice put   in jeopardy of life or limb" was applied against the States in Benton v.   Maryland, 395 U.S. 784 (1969).         {6}	United States v. Taylor, 11 F. 470 (D. Kansas 1882)   (court cannot direct conviction even where facts are not in dispute   and verdict depends entirely on a question of law.)  See also State v.   Koch, 33 Mont. 490 (1905) (instruction to jury that they may find the   defendant guilty of homicide in any degree, but that they could not find   the defendant not guilty without violating their oaths, was grounds for   a new trial); United Brotherhood of Carpenters & Joiners v. United States,   330 U.S. 395 (1977) (A judge in a criminal case may not direct a verdict   for the government just because no reasonable jury would acquit.)        {7}	Juries in criminal trials have not been subject to any penalty   for rejecting the court's interpretation of the law for over three hundred years.  After an independent jury refused to convict WIlliam Penn and William Mead of tumultuous assembly in 1670, the jury was fined and sentenced to prison until they either paid a fine of forty marks or changed their verdict.  William Bushell and three other jurors remained in prison for forty days until their writ of Habeas Corpus was heard by the Court of Common Pleas.    	Writing for the Court, Judge Vaughan ruled that "No man can see   through another's eyes," and therefore no juror could be made to pay a   penalty for bringing in a verdict that was unsatisfactory to the Crown.    This principle of jury independence is still valid law; and American   jurors are unquestionably free to bring in an independent verdict.    See Bushell's Case, 6 How. St. Tr. 999 (1670).        {8}	"The judge cannot direct a verdict it is true, and the jury   has the power to bring in a verdict in the teeth of both law and facts."    Mr. Justice Holmes, for the majority in Horning v. District of Columbia,   254 U.S. 135, 138 (1920).        {9}	A Westlaw journal search on the term "jury nullification"   reveals 288 articles discussing the subject; with additional research   I have located over one hundred more.  Curiously, the last full length   book on the subject was Lysander Spooner's An Essay on the Trial by Jury,   which was first printed in 1852 as a response to the Fugitive Slave Act   of 1850.        {10}	The United States Supreme Court established this view in Justice   Harlan's opinion in Sparf et al. v. United States,  156 U.S. 51 (1895)   and it has not been revised.  See also Gary J. Simson, Jury Nullification   in the American System: A Skeptical View, 54 Tex. L.Rev. 488 (1976).        {11}	Kane v. Commonwealth, 89 Penn. 522, 525 (1879):    [I]t has been strongly contended that though the jury have the power   they have not the right to give a verdict contrary to the instruction   of the court upon the law; in other words that to do so would be a breach   of their duty and a violation of their oath.  The distinction between   power and right, whatever may be its value in ethics, in law is very   shadowy and insubstantial.  He who has legal power to do anything has   the legal right.          {12}	The Fully Informed Jury Association (FIJA), headquartered in   tiny Helmville, Montana (population: 28) has circulated over one million   informational brochures to potential jurors, and has been discussed in   over 1,200 newspaper and magazine articles, including the front page of   the Wall Street Journal.  See FIJA Spokespersons on Nationwide Radio,   13 The FIJActivist 4 (Summer, 1993); Look Who's Talking About FIJA, 16   The FIJActivist 24,25 (Summer, 1994); Stephen J. Adler, Courtroom Putsch?   Jurors Should Reject Laws They Don't Like, Activist Group Argues:   Adherents Are a Diverse Lot, Wall St. J., January 4, 1991 at A1.        {13}	M. Kristine Creagan, Jury Nullification: Assessing Recent   Legislative Developments, 43 Case W. L. Rev. 1101, 1102 (1993).        {14}	See 65 Oklahoma Bar Journal, No. 13, March 26, 1994:    HB-1359 - Key - Amends present law to provide that whenever the   state or a political subdivision of the state is one of the parties   in a trial by jury, the court shall inform the jurors that each of   them has the inherent right to vote on the verdict according to his   or her own conscience and sense of justice.  Exercise of this right   may include jury consideration of the defendant's motives and   circumstances, degree of harm done, and evaluation of the law itself.    Failure to so inform the jury is grounds for mistrial and another   trial by jury; amends 22 O.S. 1991, 834; effective September 1, 1994.    Amended and Passed House - To Senate Committee on Appropriations.        {15}	See William P. Cheshire, Why Juries Ought to Know Their   Rights, Arizona Republic, March 21, 1993 at C1; Richard Romley,   Informed-Jury Act Would Neuter Courts, Is Bad Policy, Arizona Republic,   March 22, 1993 at A10; Barnett S. Lotstein, Fully Informed Jury Act   Died Well-Deserved Death in Legislature, Phoenix Gazette, April 24, 1993   at A11.         {16}	One authority described the pre-Magna Charta role of juries as   follows:    It is manifest from all the accounts we have of the courts in which   juries sat, prior to the Magna Charta, such as the court-baron, the   hundred court, the court-leet, and the county court, that they were   mere courts of conscience, and that the juries were the judges,   deciding causes according to their own notions of equity, and not   according to any laws of the king, unless they thought them just.        	Lysander Spooner, An Essay on The Trial by Jury, 64   (John P. Jewett & Co., 1852) (emphasis in original.)  John Proffatt   reports that in Anglo-Saxon juries he found "one body discharging   the functions of both judge and jury."  Proffatt, A Treatise on Trial   by Jury, Including Questions on Law and Fact, 14 (Sumner Whitney & Co.,   1877).  (Reprinted by Fred B. Rothman & Co., 1986).        {17}	Lilburne's Case, 4 How. St. Tr. 1269 (1649).  See also M.   Kristine Creagan, Jury Nullification: Assessing Recent Legislative   Developments, 43 Case W. Res. L. Rev. 1101, 1103-1104 (1993);   Philip B. Scott, Jury Nullification: An Historical Perspective on a   Modern Debate, 91 W. Va. L. Rev. 389, 397-402 (1989).        {18}	Alschuler and Deiss, A Brief History of Criminal Jury in the   United States, 61 U. Chi. L.Rev. 867, 874-875 (1994).  The most famous   Colonial case involving jury independence was unquestionably John Peter   Zenger's 1735 trial for seditious libel.  See Rex v. Zenger, How. St. Tr.   17:675 (1735.)        	For reasons of space, this essay does not delve deeply into   British, Colonial or Revolutionary precedents or history.  For a fuller   historical picture, see the above mentioned article as well as Mark   DeWolfe Howe, Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582   (1939); Note, The Changing Role of the Jury in the Nineteenth Century,   74 Yale L.J. 170 (1964); William M. Kunstler, Jury Nullification in   Conscience Cases, 10 Va. J. Int'l L. 71 (1969); Jon M. Van Dyke, The   Jury as a Political Institution, 16 Cath. Law. 224 (1970); Joseph L. Sax,   Conscience and Anarchy: The Prosecution of War Resisters, 57 Yale Rev.   481 (1968); Lysander Spooner, An Essay on The Trial by Jury,   (John P. Jewett & Co., 1852); Lloyd E. Moore, The Jury: Tool of Kings,   Palladium of Liberty, 2d Edition, (Anderson Press, 1988); J.S. Cockburn   and Thomas A. Green, eds., Twelve Good Men and True (Princeton Univ.   Press, 1988); Thomas Andrew Green, Verdict According to Conscience:   Perspectives on the English Criminal Trial Jury 1200-1800,   (Univ. of Chicago Press, 1985); Jon M. Van Dyke, Jury Selection   Procedures: Our Uncertain Commitment to Representative Panels,  (Ballinger Publishing, 1977); James Bradley Thayer, A Preliminary   Treatise on Evidence at the Common Law, (Little, Brown and Co., 1898).        {19}	Federalist 83 (Hamilton), in Rossiter, ed., The Federalist Papers   491,499 (Penguin, 1961), quoted in Id. at 871.  Hamilton clearly   believed juries had the right to judge the law.  In an 1804 libel case,   Hamilton argued that:    The Chief Justice misdirected the jury, in saying they had no right   to judge of the intent and of the law . . . All the cases agree that   the jury have the power to decide the law as well as the fact; and if   the law gives them the power, it gives them the right also.  Power and   right are convertible terms, when the law authorizes the doing of an act   which shall be final, and for the doing of which the agent is not   responsible.    	    People v. Croswell, 3 Johns. Cas. 336, 345 (1804).  Justice Kent   expressed his agreement with Hamilton:        But while the power of the jury [to judge the law] is admitted,   it is denied that they can rightfully or lawfully exercise it,   without compromitting their consciences, and that they are bound   implicitly, in all cases to receive the law from the court.  The   law must, however, have intended, in granting this power to a jury,   to grant them a lawful and rightful power, or it would have provided   a remedy against the undue exercise of it.  The true criterion of a   legal power, is its capacity to produce a definitive effect liable   neither to censure nor review.    Id. at 368.        {20}	Thomas Jefferson placed more faith in the jury than in   the legislature as a safeguard of liberty: "Were I called upon to   decide, whether the people had best be omitted in the legislative or   judiciary department, I would say it is better to leave them out of   the legislative.  The execution of laws is more important than the   making of them."  (Letter of Jefferson to L'Abbe Arnond, July 19, 1789,   in 3 Works of Thomas Jefferson  81, 82(Wash. ed. 1854) quoted in Howe,   Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582 (1939).)    	John Adams, in 1771, espoused the theory that "It is not only   [the juror's] right, but his duty . . . to find the verdict according   to his own best understanding, judgment, and conscience, though in   direct opposition to the direction of the court."  (2 John Adams' Works,   255.)    	Benjamin Franklin's Philadelphia Gazette in 1737 said of jury   nullification that "If it is not law, it is better than law, it ought   to be law, and will always be law wherever justice prevails."    (Vincent Buranelli, The Trial of Peter Zenger, 51-52   (Greenwood Press, 1975).)    	In a rare jury trial before the United States Supreme Court,   Chief Justice John Jay, speaking for a unanimous Court, instructed   the jury that "The jury has the right to judge both the law as well   as the fact in controversy."  Georgia v. Brailsford, 3 U.S. (3 Dall.)   1 (1794)    		Theophilus Parsons, a member of the Massachusetts   Constitutional Convention who later became the Chief Justice of the   Massachusetts Supreme Court, endorsed the jury as a means of limiting   legislative power:      But, Sir, the people themselves have it in their power effectually to   resist usurpation, without being driven to an appeal to arms.  An act   of usurpation is not obligatory; it is not law; and any man may be   justified in his resistance.  Let him be considered as a criminal by   the general government, yet only his fellow-citizens can convict him;   they are his jury, and if they pronounce him innocent, not all the   powers of Congress can hurt him; and innocent they certainly will   pronounce him, if the supposed law he resisted was an act of usurpation.    2 Elliott's Debates 94.  See also Parsons' opinion in Coffin v. Coffin,   4 Mass. 1 (1808).        {21}	William Hamilton Bryson, Census of Law Books in Colonial Virginia,   XVI (Univ. Press of Virginia, 1978).        {22}	Jacob's Law Dictionary (London, 1782).  See also the first   edition of Noah Webster's Dictionary of the English Language (1828):      JURY, n. (Fr. jure, sworn, L. juro, to swear.)  A number of freeholders,   selected in the manner prescribed by law, empanneled and sworn to   inquire into and try any matter of fact, and to declare the truth on the   evidence given them in the case.  Grand juries consist usually of twenty   four freeholders at least, and are summoned to try matters alledged in   indictments.  Petty juries, consisting usually of twelve men, attend   courts to try matters of fact in civil causes, and to decide both the   law and the fact in criminal prosecutions.  The decision of a petty jury   is called a verdict.        	The contemporaneous definitions of the word jury' establish the powers intended for the jury by the authors of the Sixth Amendment.  Chief Justice Marshall laid down basic rules for evaluating the strength of this evidence:    To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;--is to repeat what has been already said more at large, and is all that can be necessary.     Ogden v. Saunders, 25 U.S. 213, 332 (1827).        {23}	In Rhode Island, where knowledge of the law was not considered a requirement for judicial office, juries were not given any instructions on the law by the court until the 1830's.  One author quotes an 1833 murder trial: "Until the statute, passed within a few years, making it the duty of the presiding judge to charge the jury upon the law, no court in this state had adopted the practice of instructing the jury upon the application of the law to the facts."  Eaton, The Development of the Judicial System in Rhode Island, 14 Yale L.J. 148, 153 (1905).        {24}	See United States v. Battiste, 24 F.Cas. 1042 (D. Massachusetts, 1835).  Battiste is often referred to as the first major case where an American court rejected the right of jurors to judge the law.        {25}	Harold M. Hyman and Catherine M. Tarrant, Aspects of American Jury History, 37, in Rita J. Simon (ed.) The Jury System in America: A Critical Overview (Sage Publications, 1975).        {26}	Friedman, The Wise Minority, 36 (Dial Press, 1971).  See also Steven E. Barkan, Jury Nullification in Political Trials, 31 Social Problems 28, 33.    	See also Supreme Court Justice Samuel Nelson's grand jury charge, warning that civil war would ensue if they nullified the Fugitive Slave Act.  Charge to Grand Jury_Fugitive Slave Law, 30 F.Cas. 1013 (N.D. New York, 1851).        {27}	Charge of Judge Sprague to the Grand Jury, 30 F.Cas. 1015 (E.D. Massachusetts, 1851), U.S. v. Morris, 26 F.Cas. 1323 (E.D. Massachusetts, 1851).  See also Richard D. Younger, The People's Panel: The Grand Jury in the United States 1641-1941, 98-99 (Brown Univ. Press, 1963); Friedman, The Wise Minority, 37-38; Barkan, Jury Nullification in Political Trials, 33.        {28}	Charge of Judge Sprague to the Grand Jury, 30 F.Cas. 1015 at 1017 (1851).  See also Younger, The People's Panel, 98-99; Friedman, The Wise Minority, 37-38; Barkan, Jury Nullification in Political Trials, 33.        {29}	41 U.S. (16 Pet.) 539 (1842).        {30}	Robert M. Cover, Justice Accused: Antislavery and the Judicial Process, 191 (Yale Univ. Press, 1975).  The cases cited are Jones v. Van Zandt, 13 F.Cas. 1040 (C.C.D. Ohio, 1843); Vaughn v. Williams, 28 F.Cas. 1115 (C.C.D. Ind., 1845); Giltner v. Gorham, 10 F.Cas. 424  (C.C.D. Mich., 1848); Ray v. Donnel, 20 F.Cas. 325  (C.C.D. Ind., 1849); Norris v. Newton, 18 F.Cas. 322 (C.C.D. Ind., 1850); Miller v. McQuerry, 17 F. Cas. 335 (C.C.D. Ohio, 1853).        {31}	United States v. Hanway, 26 F.Cas. 105 (C.C.E.D. Pennsylvania, 1851), Charge to the Grand Jury_Treason, 30 F.Cas. 1047 (C.C.E.D. Pennsylvania, 1851).      	Judge Kane in Pennsylvania eventually resorted to other means to stop people from assisting escaped slaves.  Because convictions were rare, Kane turned to granting suspects immunity from prosecution, and compelling them to answer interrogatories concerning the whereabouts of the slaves.  Failure to answer was contempt of court, and led to a prison sentence without the need to give the contemnor a jury trial.  This method of enforcement had an Achilles' heel, however: if the slave had already escaped into Canada, there was no hope of capture.  The aggrieved slave-owner could still recover in a civil suit, and perhaps Kane thought the civil damages would be sufficient to dissuade the abolitionists:        The law, as far as it is established by this case, is, that a slaveholder may carry his slaves through a free State, and that if any one assist them to escape, the courts of the United States may send a writ to such person, requiring him to produce the slaves, or if that cannot be done, to give all the information in his power as to their mode of escape and place of concealment.  And if he refuse to do this, he must go to prison until he will. . .    This law is likely to be far more efficient for the purposes of the slaveholders than the Fugitive Slave Law of 1850.  Under this last named law, if a man assisted a fugitive to escape, he could have a trial by jury for his offence, and could therefore hope to escape conviction; or, if convicted, he was liable only to a punishment limited by the statute.  But, under this new law of Kane's, whoever aids a fugitive is liable to be brought not before a jury, but before Judge Curtis, Judge Sprague, or some other judicial villain, who will try the whole case himself...    Kane And Williamson, The Liberator, November 9, 1855.  The case involved was United States ex rel. Wheeler v. Williamson, 28 F.Cas. 682 (E. D. Pennsylvania, 1855).        {32}	U.S. v. Morris, 26 F.Cas. 1323 (E.D. Massachusetts, 1851).        {33}	Charge to Grand Jury_Fugitive Slave Act, 30 F.Cas. 1015 (D. Mass. 1851); United States v. Scott, 27 F.Cas. 990 (D. Mass. 1851).        {34}	United States v. Cobb, 25 F.Cas. 481 (N.D. New York 1857).        {35}	See United States v. Battiste, 24 F.Cas. 1042 (D. Massachusetts, 1835).  Justice Story's opinion in Battiste is often cited as the first major decision denying the right of jurors to judge the law.    	A number of cases during the second half of the Nineteenth century clarified the federal view and paved the way for the total denial of the right in Sparf et al.  Among these were United States v. Greathouse, 26 F.Cas. 18 (C.C.N.D. Cal., 1863); United States v. Riley, 27 F.Cas. 810 (C.C.S.D. New York 1864); United States v. Keller, 19 F. 633 (C.C.D. W. Virginia 1884).        {36}	156 U.S. 51 (1895).        {37}	Sparf et al. v. United States, 156 U.S. 51 at 101-102.        {38}	Justice Samuel Chase was impeached in 1805 for, among other things:    [D]ebarring the prisoner from his constitutional privilege of addressing the jury (through his counsel) on the law, as well as on the fact, which was to determine his guilt or innocence, and at the same time endeavoring to wrest from the jury their indisputable right to hear argument, and determine upon the question of law, as well as the question of fact, involved in the verdict which they were required to give.     United States v. Fries, 9 F.Cas. 924 at 934.  See also Jane Shaffer Elsmere, Justice Samuel Chase, 105 (Janevar Publishing, 1980).        {39}	Strauder v. West Virginia, 100 U.S. 303 (1879).  See also Ex Parte Virginia, 100 U.S. 339 (1879).        {40}	See Gerry Spence, With Justice For None, 87-88 (Times Books, 1989):    But before we applaud the generous and democratic spirit of our Founding Fathers, we must understand one simple fact: They never intended that any but the "gentlemen" of the new nation, their own class, should sit as jurors.  It was to be a jury of their peers, all right_that is, a jury of landed gentlemen.  Our constitutional fathers, the elitists of their times, trusted the ordinary people the way a hawk trusts a flock of pestering magpies.  They never intended that juries should be selected from "the rabble and the riffraff."  They never intended to give either the right to vote or the power of the jury to the poor, to blacks, or to women.  Because juries were made up only of trusted members of the ruling class, they were also freely given the right to nullify the law.        The founding fathers never dreamed that the system they invented would be expanded to include the class, ethnic, and social variety of the Nineteenth century.  Once common men were given the right to sit on juries, it was no longer deemed safe to leave it to them to decide disputes involving interests of money and property.  With the onslaught of the Industrial Revolution, the power of the jury had been wrested from them by the judges.  But the history of the decline of the American jury has also been the history of the decline of democracy in this country, for the jury has always been at the heart of the system.        {41}	Note: The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 191-192:    The criticism was particularly pointed . . . when numerous commentators began to argue that juries had "developed agrarian tendencies of an alarming character," and that damage suits invariably went in favor of individuals and against corporations.  Many influential members of the bar evidently objected to the jury because it would be hostile to their clients and sympathetic to poor litigants.    The quote is from Thompson, Charging the Jury, vi (1880).        {42}	Sparf et al., 156 U.S. 51 at 114.        {43}	Id. at 176-177.        {44}	Juries have often convicted defendants of lesser offenses in cases where punishments were considered excessive.  See United States v. Dougherty,  473 F.2d 1113, 1137 (D.C. Cir. 1972):  "Lord Mansfield _ a strict judge _ advised a jury to find a gold trinket of less value than 40 shillings.  When the prosecutor indignantly exclaimed that its fashion alone was worth double that, Lord Mansfield observed "God forbid, gentlemen, that we should hang a man for fashion's sake"."    	Some modern judges allow defendants to argue the injustice of federal minimum sentences to the jury, possibly as a protest against harsh sentencing guidelines.  See United States v. Datcher, 830 F.Supp 411 (M.D. Tenn. 1993).        {45}	Id. at 101-102.        {46}	Lawrence Friedman, A History of American Law, 285 (Simon & Schuster, 1985).        {47}	122 Ill. 1 (1887).  See also Hill, Decisive Battles in the Law, 240-267 (Harper Brothers, 1906).        {48}	Commonwealth v. Pullis,  Phila. Mayor's Court (1806); 3 Commons & Gilmore, Documentary History of American Industrial Society, 59-248 (1910-11).   See also Justice Maxey's dissenting opinion in Schwartz et al. v.  Laundry & Linen Supply Drivers' Union, Local 187, et al., 339 Pa. 353 (1940).        {49}	Friedman, The Wise Minority, 52.        {50}	United States v. Debs, 63 F. 436 (N.D. Ill. 1894).	        {51}	Daniel Novak, The Pullman Strike Cases: Debs, Darrow and the Labor Injunction, in Belknap, American Political Trials, 143 (Greenwood Press, 1981).    	Darrow left his position as a corporate lawyer at the Chicago and Northwestern Railroad Company in order to argue Debs' case, which began his career as "the attorney for the damned."  Clarence Darrow, The Story of My Life, 57-65 (Grosset's Universal Library, 1932).        {52}	U.S. v. Debs, 64 F. 724 (N.D. Ill 1894).        {53}	Barkan, Jury Nullification in Political Trials, 31 Social Problems 26, 33 (1983).        {54}	In Re Debs et al., 158 U.S. 564 (1895).        {55}	156 U.S. 1 (1895).        {56}	  The decision in Sparf had little effect on the labor movement.  Management, observing the success of efforts against the ARU, turned from criminal conspiracy prosecutions towards the labor injunction after 1894.  In 118 labor injunction cases in a twenty-seven-year period (representing the minority of the injunctions covered by reported opinions), "seventy ex parte restraining orders were granted without notice to the defendants or opportunity to be heard.  In but twelve of these instances, was the bill of complaint accompanied by supporting affidavits; in the remaining fifty-eight cases, the court's interdict issued upon the mere submission of a bill expressing conventional formulas, frequently even without a verification."  Felix Frankfurter and Nathan Greene, The Labor Injunction, 64 (Macmillan, 1930).    	Opponents of labor injunctions decried insulating management from the necessity of convincing a jury.  In Hopkins et al. v. Oxley Stave Co., 83 F. 912 (8th Cir. 1897), injunctions were upheld against several Kansas City union organizers who had been prohibited from organizing a boycott of the appellee's machine hooped barrels.  Circuit Judge Caldwell dissented, defending the appellants' right to be judged not by a court alone but by a jury of their peers.  In Judge Caldwell's opinion (paraphrasing the initial verdicts in the William Penn trial), a jury would have found the defendants "Guilty of refusing to purchase the plaintiff's barrels and the commodities packed in them, only."  Id. at 939-940.        {57}	Harry Kalven and Hans Zeisel, The American Jury, 292 fn10 (Little, Brown & Co., 1966).  Nationally, twenty-six percent of National Prohibition Act prosecutions filed in federal courts during the period of 1929-1930 ended in acquittals.  Id.  The cases Kalven and Zeisel researched are for production, sales and transportation of alcoholic beverages.  The National Prohibition Act did not criminalize use, purchase or possession.  If it had, the conviction rate would probably have been even lower than it was.        {58}	Id. at 291.        {59}	Id. at 76.        {60}	Lawrence Friedman has noted that    On the whole, Prohibition proved to be a costly failure.  But it led to mammoth changes in the system of criminal justice.  Prohibition filled the federal jails; it jammed the federal courts...Until the 1890's, the federal government did not own or run any prisons.  The few federal prisoners were lodged in state prisons; the national government paid their room and board.  After Prohibition, the idea of a national police force became no longer unthinkable.    Lawrence Friedman, A History of American Law, 656.        {61}	Id. at  136.        {62}	James Ostrowski, The Moral and Practical Case for Drug Legalization, 18 Hofstra L. Rev. 607, 645-646 (1990).        {63}	Id. at 646.        {64}	United States v. Spock, 416 F.2d 165 (1st Cir. 1969); United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969); United States v. Boardman, 419 F.2d 110 (1st Cir. 1970); United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).        {65}	See United States v. Anderson et al., Crim. No. 602-71 (D.N.J. 1973), discussed at length in Jon M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, 238-240 (Ballinger, 1977).  See also Roger Park, The Entrapment Defense, 60 Minn. L. Rev. 163, 188 (1976).        {66}	Joseph L. Sax, Conscience and Anarchy: The Prosecution of War Resisters, 57 Yale Rev. 481 (1968).        {67}	William M. Kunstler, Jury Nullification in Conscience Cases, 10 Va. J. Int'l L. 71 (1969).        {68}	See David L. Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385 (1976); Frank A. Kaufman, The Right of Self-Representation and the Power of Jury Nullification, 28 Case W. Res.  L.Rev. 269 (1978); Noel Fidel, Preeminently a Political Institution: The Right of Arizona Juries to Nullify the Law of Contributory Negligence, 23 Ariz. St. L.J. 1 (1991).        {69}	Russell Richardson, Jury Nullification: Justice or Anarchy?, 80 Case & Com. 30 (1975).  Richardson was an instructor at East Arkansas Community College.        {70}	13 N.H. 536, 554, 566 (1843), discussed in Dierdre A Harris, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U. L. Rev. 968, 973 (FN29).        {71}	See Montee v. Commonwealth, 3 Ky. 132 (1830).        {72}	In 1851, Maryland and Indiana revised their State constitutions to guarantee jurors the right to judge the law.  Both provisions remain in force to this day, although they have been modified in effect by court decisions and practices.  Howe, Juries as Judges of Criminal Law, 52 Harv. L.Rev. 582 at 614.  An unsuccessful attempt was made to similarly revise the Massachusetts constitution in 1853.  Id. at 608-609.    	The 1820 Revision of the Laws of Connecticut provided that the court could decide questions of law and direct the jury accordingly in civil cases, but could only state its opinion of the law to the jury in criminal cases.  Id. at 602.  The 1827 Revised Laws, prepared by the supreme court justices of Illinois, provided in 188 of the Criminal Code, that "juries in all [criminal] cases shall be judges of the law and fact."  Quoted in Id. at 611.          {73}	Nels v. State, 2 Tex. 280, 281-282 (1847).        {74}	George W. Paschal, Paschal's Digest of the Laws of Texas, Art. 3058 (Galveston, 1866).        {75}	Id.  The principle that jurors are only to judge the facts is maintained in the Texas Code of Criminal Procedure articles 35.16 (b)(3), 35.16 (c)(2), and 36.13.        {76}	See Taylor v. State, 3 Tex. Ct. App. 387 (1878), Jordan v. State, 5 Tex. Ct. App. 422 (1879).        {77}	St. 32 Geo. III c. 60 (1791).          {78}	The current Texas Constitution, Art. I 8 reads as follows:     s 8. Freedom of speech and press;  libel                                                                                                                         Sec. 8. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.  In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence.  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.        	Not only has this guarantee not been adequate to constitute a broad grant of jury independence, but in Squires v. State, 45 S.W. 147  (1898) it was held that the court was responsible for determining whether the material alleged to be libels were libels within scope of the statute_exactly the same role the court attempted to arrogate to itself in the 1735 libel prosecution of John Peter Zenger.    	The constitutions of four states guarantee the right of jurors to judge the law as well as the facts:  Maryland (Art. XXIII); Indiana (Art. I, 19); Oregon (Art. I,  16); Georgia (Art. I, 1, para. 11, subsec. A).  Twenty one other states include lesser jury independence provisions: Alabama (Art. I, 12); Colorado (Art.II, 10); Connecticut (Art. First, 7); Delaware (Art. I, 5); Kentucky (Bill of Rights, 9); Louisiana (Art. XIV, 9); Maine (Art. I, 4); Mississippi (Art. 3, 13); Missouri (Art.I, 8); Montana (Art. II, 7); New Jersey (Art. I,  6); New York (Art. I, 8); North Dakota (Art. I, 9); Pennsylvania (Art.I, 7); South Carolina (Art. II, 21); South Dakota (Art. VI, 5); Tennessee (Art. I, 19); Texas (Art. I, 8); Utah (Art. I, 15); Wisconsin (Art. I, 3); Wyoming (Art. I, 20).    	The list comes from The Fully Informed Jury Association's Jury Power Information Kit 13 (undated.)  The author notes that "Although these provisions have not been strong enough to withstand decades of hostile judicial interpretation and have relatively little current impact, they do remain "on the books"."  Id.        {79}	See State v. Buckley, 40 Conn. 246 (1873), Hamilton v. People, 29 Mich. 173 (1874), Pierson v. State, 12 Ala. 149 (1847), Duffy v. People, 26 N.Y. 588 (1863), Ridenhour v. State, 75 Ga. 382 (1895), Danforth v. State, 75 Ga. 614 (1895), Hardy v. State, 7 Mo. 607 (1842), Robbins v. State, 8 Ohio St. 131 (1857), Montee v. Commonwealth, 26 Ky. 132 (1830), Pleasant v. State, 13 Ark. 360 (1852), State v. Jeandell, 5 Del. 475 (1854), State v. Dawdry, 14 S.C. 87 (1866), Williams v. State, 32 Miss. 389 (1856), Parrish v. State, 14 Neb. 60 (1883), People v. Anderson, 44 Cal. 65 (1872), State v. Ford, 37 La. Ann. 443 (1885), State v. Hannibal, 37 La. Ann. 619 (1885), State v. Tisdale, 41 La. Ann. 338 (1889), State v. Miller, 53 Iowa 154 (1880), State v. Rheams, 34 Minn. 18 (1885).        {80}	Prescott, Juries as Judges of the Law: Should the Practice Be Continued?, 60 Md. St. B.A. Rep. 246, 257 (1955), quoted in Jacobsohn, The Right to Disagree: Judges, Juries and the Administration of Criminal Justice in Maryland, 1976 Wash. U. L.Q. 571, 576 (1976).        {81}	An exception to this rule exists in the sentencing phase of capital punishment cases.  Texas courts, in order to comply with Penry v. Lynaugh, 492 U.S. 302 (1989) (jury, in punishment stage of capital trial, must have instruction sufficient to equip them to exercise a reasoned moral response to all factors in the case, whether legally relevant or not) have informed jurors of their right to refuse to deliver the death penalty whenever, in their judgment, such penalty would be unjust.  See Rios v. State, 846 S.W.2d 310, 316 (Tex. Crim. App. 1992); San Miguel v. State, 864 S.W.2d 493, 496 (Tex. Crim. App. 1993); Emery v. State, 881 S.W.2d 702, 711-712 (Tex. Crim. App. 1994).        {82}	See Benedict D. LaRosa, The Branch Davidian Trial Jury: An Interview with Sarah Bain, Forewoman, in 16 The FIJActivist 14 (Summer, 1994).    	Sarah Bain, the forewoman of the jury that tried the survivors of the 1993 raid on the Mount Carmel Branch Davidian compound, wept openly when the defendants were sentenced to serve maximum sentences of 40 years.  Bain said that "jurors thought the weapons charge, carrying 5- or 25- year terms, would bring a mere "slap on the wrist.  If the Davidians receive the maximum, somebody will have to escort me out weeping.  It's just too severe a penalty"."  Mark Potok, Branch Davidian Defendants Ask For Leniency: Sentencing Begins Today in San Antonio, USA Today, June 17, 1994 at 02A.      	Bain wrote the judge a letter explaining that the jury was confused and that she had been "incredulous" to discover the length of the sentences the defendants faced.  She wrote that "Even five years is too severe a penalty for what we believed to be a minor charge."  William Cheshire, Law and Order in the Land of the Free and the Home of the Brave, Arizona Republic, June 23, 1994 at B4.        {83}	The Lone Star Fully Informed Jury Association, located in Dallas, Texas, has over 1600 members throughout the state.  Lone Star FIJA has been active leafletting several high profile trials and lobbying for legislation requiring Texas judges to inform jurors about their powers to conscientiously nullify the law.        {84}	Texas House Bill 25 was introduced in the Regular Session of the 72nd Legislature in 1991, but never made it out of the Committee  on Criminal Jurisprudence.  Creagan, Jury Nullification: Assessing Recent Legislative Developments, 43 Case W. Res. L. Rev. 1101, 1121-1122 (1993).  Texas House Bill 2382 was introduced in 1993 by freshman legislator John Longoria (D-San Antonio), but was one of approximately 150 bills which never made it to committee hearings.  See Paul C. Velte IV, Analysis: 1993 Texas FIJA Bill: HB 2382, 13 The FIJActivist 16,17,44-14 (1993); The Lone Star FIJA Experience, 13 The FIJActivist 1, 42 (1993).        {85}	See Creagan, Jury Nullification: Assessing Recent Legislative Developments, FN122 at 1121.        {86}	FIJA spokesman Tom Glass made these comments while testifying in favor of H.B. 25.  Quoted in Creagan, Jury Nullification: Assessing Recent Legislative Developments, at 1127.        {87}	If there is not sufficient evidence to sustain a conviction, the judge should never let the case reach the jury.  Further, if the judge believes that the jury has rendered a conviction unsupported by law, he has the power to grant a new trial.   As far back as the 1830's, it had been noted that:    If your verdict acquits the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect jurors are the judges of law, if they choose to become so. . . But if a jury find a prisoner guilty against the opinion of the court on the law of the case, a new trial will be granted.  No court will pronounce a judgment on a prisoner against what they believe to be the law.     United States v. Wilson et al., 28 F.Cas. 699, 712 (E.D. Pennsylvania 1830.)        {88}	More accurately, jury nullification is the result of the affirmative defense that a conviction in the disputed case would constitute oppression of the defendant by government.  See Roger Park, The Entrapment Defense, 60 Minn. L. Rev. 163, 188 (1976) (jury nullification as part of a "due process" defense); Duncan v. Louisiana, 391 U.S. 145 at 155-156 (1968) ("A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.")        {89}	In some cases, federal judges have allowed the defense to argue that the minimum sentencing guidelines were draconian and oppressive, allowing the jury to have the information necessary to provoke sua sponte nullification.  Jury independence could be being used as a tool by judges, in order to circumvent what is often viewed as unjust and oppressive legislation, and an interference with the judicial role.  See United States v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993).        {90}	Creagan, Jury Nullification: Assessing Recent Legislative Developments, at 1127.        {91}	See Kent Greenawalt, Conflicts of Law and Morality (Oxford Univ. Press, 1989).        {92}	T.C.C.P. Art.35.16:    	Reasons for Challenge for Cause    (b)	A challenge for cause may be made by the State for any of the following reasons:    3.	That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for 	conviction or punishment.        (c)	A challenge for cause may be made by the defense for any of the following reasons:    2.	That he has a bias or prejudice against any of the law applicable to the case upon which the defense is 	entitled to rely, either as a defense to some phase of the offense for which the defense is being prosecuted 	or as a mitigation thereof or of the punishment therefor.        {93}	An additional concern is that jurors who are unwilling to question the law may be more conviction prone, regardless of their likelihood to nullify.  See Chaya Weinberg-Brodt, Jury Nullification and Jury Control Procedures, 65 N.Y.U. L. Rev. 825 (1990) (jury control procedures designed to reduce the incidence of jury nullification may deprive the defendant of the right to be tried before an impartial jury; instead of concentrating on the rights of the jury to nullify the law, critics should focus on the "defendant's sixth amendment right to a jury trial by an independent, heterodox jury and the ramifications of such a right on those procedures designed to curb jury independence.")        {94}	Co-sponsors included Reps. Jim Tallas (R-Sugarland); Ken Yarbrough (D-Houston); Deborah Danburg (D-Houston); Ray Allen (R-Grand Prarie); Frank Corte Jr. (R-San Antonio); Ken Marchant (R-Coppell).        {95}	See The Lone Star FIJA Experience, 13 The FIJActivist 1, 42 (Summer, 1993).        {96}	Paul C. Velte IV, Analysis: 1993 Texas FIJA Bill: H.B. 2382, 13 The FIJActivist 16 (Summer, 1993).        {97}	Id. at 45.        {98}	Section two of H.B. 2382 read as follows:    Section 2:Subtitle B, Title 2, Civil Practices and Remedies Code, is amended by adding Chapter 24 to read as follows:    	CHAPTER 24.  JURY POWERS IN CERTAIN GOVERNMENTAL PROCEEDINGS    	Sec. 24.001	DEFINITION:  In this chapter, "governmental agency" means: (1) this state and any institution, agency, or organ of government established by the constitution or laws of this state, including any department, bureau, board, office, or council of this state; and (2) a political subdivision of this state, including any county, municipality, district, authority, and any agency of a political subdivision.    	Sec. 24.002	SCOPE OF CHAPTER:  (a) This chapter applies only to an action in which a governmental agency, as party to a civil action, seeks to collect a civil or administrative penalty.  (b)  This chapter applies only to an action tried to a jury under applicable law.  This chapter does not create a right to a jury.    	Sec. 24.003	POWER NOT TO APPLY LAW:  If a jury determines that a party is liable according to law and the law is unjust or unjustly applied to the party, the jury may determine not to apply the law to the party and find the party not liable.    	Sec. 24.004	JURY INSTRUCTION.  (a)  Before a jury hears any action to which this chapter applies, the court shall instruct the jury as follows: "If you determine that a party is liable according to law, you may apply the law to the party and find the party liable.  You may also consider the motives and circumstances of the party, the extent to which the party's actions injured another person, the merits of the law itself, and the wisdom of applying the law to the party in the case before you.  If finding the party liable according to the law would violate your conscience or sense of justice, you may determine not to apply the law to the party  or you may apply the law to the party and find the party liable for an amount less than the amount required by law."    	(b)  The court shall allow any party to the trial to present to the jury, for its consideration, evidence and testimony relating to the motives and circumstances of the party and the extent to which he actually harmed another person.  Any party to the trial may also present to the jury arguments regarding the spirit, intent, merits, and constitutionality of the law itself and its applicability to the case at hand.    	(c)  A potential juror may not be excused or disqualified from jury service because the juror expresses a willingness to evaluate the law or its application, to vote on the verdict according to conscience or sense of justice, or to consider testimony or evidence allowed in this article.    	(d)  On motion of the state or the party, a court that failed to provide the instruction required in this article, or failed to follow any other rule of procedure of this article shall declare a mistrial in the case.    	Sec. 24.005	CONFLICT WITH TEXAS RULES OF CIVIL PROCEDURE:  Notwithstanding Section 22.004, Government Code, this chapter may not be modified or repealed by a rule adopted by the supreme court.        {99}	Paul C. Velte IV, Analysis: 1993 Texas FIJA Bill, 44.        {100}	Id.        {101}	What, New FIJA Bill Language?, 16 The FIJActivist  7, 13 (Summer 1994):    	An accused or aggrieved party's right to trial by jury, in all instances where the government or any of its agencies is an opposing party, includes the right to inform the jurors of their power to judge the law as well as the evidence, and to vote on the verdict according to conscience.    	This right shall not be infringed by any statute, juror oath, court order, or procedure or practice of the court, including the use of any method of jury selection which could preclude or limit the empanelment of jurors willing to exercise this power.    	Nor shall this right be infringed by preventing any party to the trial, once the jurors have been informed of their powers, from presenting arguments to the jury which may pertain to issues of law and conscience, including (1) the merit, intent, constitutionality, or applicability of the law in the instant case; (2) the motives, moral perspective, or circumstances of the accused or aggrieved party; (3) the degree or direction of guilt or actual harm done; or (4) the sanctions which may be applied to the losing party.    	Failure to allow the accused or aggrieved party or counsel for that party to so inform the jury shall be grounds for mistrial and another trial by jury.        {102}	Paul C. Velte IV, Analysis: 1993 Texas FIJA Bill, 13 The FIJActivist 45 (Summer, 1993).        {103}	H.B. 2382 did not include the word "retain" here; I believe it is necessary to include it in order to encompass civil forfeiture cases, and other cases where assets are seized before or without trial.          {104}	Alexis de Toqueville, Democracy in America, 273 (1835) (Harper and Row edition, George Lawrence, translator, 1969):    [T]he jury is above all a political institution; it should be regarded as one form of the sovereignty of the people; when the sovereignty of the people is discarded, it too should be completely rejected; otherwise it should be made to harmonize with the other laws establishing that sovereignty.  The jury is the part of the nation responsible for the execution of the laws...        {105}	Id. at 275: "Juries are wonderfully effective in shaping a nation's judgment and increasing its natural lights.  That, in my view, is its greatest advantage.  It should be regarded as a free school which is always open and in which each juror learns his rights..."        {106}	Dissent in United States v. Dougherty,  473 F.2d 1113, 1142 (D.C. Cir. 1972).