July 1999

Letters

You Can Provide Pro Bono Services Without Joining a Formal Organization

Editor:

I have read the various articles and exhortations in the May Bar News regarding pro bono legal services. Obviously all lawyers should provide some pro bono services. So should all physicians and all grocery stores.

What apparently is not obvious to some people whose offices are far above street level is that many lawyers need join no organization or make any formal attempts in order to have the opportunity to provide all the pro bono services we can afford, and then some. People in need find us. Once you have provided pro bono legal services to anyone, you will be asked to provide them to others.

The same Bar News had a letter from Levy Johnston upon his retirement. Levy is an example of what I am talking about. Levy was the kind of lawyer who made practicing law enjoyable. He seemed to be more interested in solving problems than chalking up wins. His telephone agreement was worth more than most people’s signatures. He gave away countless hours to many people. I doubt that he ever needed to seek out anyone to serve. Many people had his home phone number. If all of us were half as generous as Levy, the Bar Association could close all of its formal pro bono programs.

George R. Landrum, Seattle

Editor:

Fifteen dead in Colorado and 21 civilian dead in Yugoslavia — so why more media coverage of Colorado? Is the Colorado media blitz fueled by federal propaganda meant to distract us from the illegal killings of women and children in Yugoslavia by American bombs? Both seem like murder.

Some argue that NATO air strikes which accidentally kill civilians are not the same as gunning down teenagers in a school because it’s war, and because it is legal under international law. But NATO’s offensive bombings in non-NATO territory may be illegal under the NATO Treaty, Art. 5 (1950 referencing U.N. Charter, Art. 51-1948), which allows only defensive force. Yugoslavia is currently arguing this before the U.N. International Court of Justice (ICJ) at The Hague, Netherlands (which has only civil jurisdiction between nations, unlike the 1998 International Criminal Court (ICC), which has criminal, or war crimes, jurisdiction over individuals).

The NATO Treaty created a defensive organization for use only when another member is attacked. NATO has become — without authority — an offensive force/world cop involved in land outside any member state. NATO’s Preamble references defending only "the North Atlantic area" without mentioning Southeast Europe.

The U.S. in its press conferences has probably violated another international law, Article 20 of the U.S.-adopted 1966 U.N. International Covenant on Civil and Political Rights, which forbids pro-war propaganda by governments. As usual, truth is the first casualty of war. Article 3 of the Geneva Conventions (1864, 1906, 1929 and 1949) against killing civilians in war may also have been violated by the U.S. when it bombed civilians and civilian sites in Yugoslavia.

Bring on the U.N.’s new ICC investigators and focus on the real criminal — the imperialistic U.S. government that kills Yugoslavian civilians to support a bloated military-industrial complex. Unfortunately, the U.S. didn’t approve the ICC treaty last year in Rome, so technically, the U.S. doesn’t come under its jurisdiction. The U.S., China, Libya, Iraq and other pariah states opted out of the ICC, citing threats to "sovereignty." What these nations are really saying is "we think we’re above universal laws prohibiting war crimes."

Regional conflicts should be resolved by regional police authorities, not by a U.S. World Cop. NATO’s Article 12 even encourages new and more regional security arrangements. Let the European Union start paying for its own defense, since U.S. taxpayers have been doing it for 50 years. The U.S. should withdraw from Kosovo, Europe and NATO, and then ratify the ICC.

Jeff E. Jared, Kirkland

Editor:

Our ever busy and paternalistic Board of Governors (BOG) has once again proposed a sexual orientation amendment to RPC 8.4 which the Washington State Supreme Court has published for comment.

Like recently defeated Initiative 677, the proposed amendment to RPC 8.4 would elevate "sexual orientation," a class established by conduct, to the status of legally protected classes based upon traits, such as sex, race or age. The amendment would also prohibit speech which manifests bias toward all protected classes. Comments will be accepted by the Clerk of the Supreme Court at P. O. Box 40929, Olympia, Washington 98504-0929 until June 30, 1999.

The rationale for the amendment is that the current rule is "woefully inadequate to stop the behavior we wanted to stop because it prohibits only acts of discrimination that are ‘prohibited by law’" (David M. Horn, Bar News, February 1997, p. 9). The examples given of discrimination to be avoided were an attorney referring in court to another attorney as "boy," a judge who observed that a defendant appeared to be homosexual, and the hypothetical of an associate who was fired when his firm discovered that he was homosexual.

The proposed amendment creates an RPC violation for "conduct" which "manifests" bias on the basis of "sexual orientation." The term "sexual orientation" is so vague as to unfairly expose even the most open-minded attorney to an unreasonable risk of sanction. What precisely does the term mean? It is not defined. Literally taken, the term is defined by the individual who perceives that he or she has been wronged. The term has no precise meaning, but encompasses whatever orientation the self-perceived victim may have for sex. Take prostitution for instance. Some are apparently oriented toward prostitution, male and female, vendor and vendee. Would not the adoption of the proposed amendment create a professional violation for manifesting disapproval of or bias against prostitution?

A rule which measures bias based upon the orientation of the perceived victim is unworkable. There must be an objective standard against which to measure an alleged violation. The proponents of the amendment argue, disingenuously, that the meaning of the communication is subject to the reasonable-person test. So far so good. The issue, though, is not what meaning is communicated, but what communication is prohibited.

The determination of what communication is prohibited is not subject to the reasonable-person test. As a society we no longer have a consensus on whether certain sexual behavior is appropriate. Seattle, for instance, has different rules from the rest of the state. Certainly it is acceptable to hold in disdain, to be prejudiced against, those who engage in sexual conduct which we all as a community still hold to be inappropriate. Examples would be prostitution, bigamy and polygamy. The rule is apparently meant to protect homosexuals, so why not just say so? A rule which specifically protects homosexuals by name cannot later be expanded by clever plaintiffs to protect groups with a different orientation. (The issue would arise, however, whether all types of homosexual behavior are protected from communications of discrimination or if only certain types of behavior are protected.)

The amendment proponents argue that existing law, outside of Seattle, is inadequate to coerce their idea of appropriate behavior (973 P.2d No. 2, Ct.R-8; Bar News, February 1997, p. 9). The Congress of the United States, the Washington State Legislature and the people of the state have seen fit to not provide special treatment based upon sexual orientation, while Seattle has. This fact does not predicate a policy argument for expanding such protection for ethical reasons. In fact, since the local laws do not apply to businesses with less than seven employees, they should be viewed as economic in nature, not ethical. This is because there is no logical basis for exempting any business, no matter how small, from a law which is ethical in nature rather than economic.

The BOG should as a policy decision avoid regulation of the entrepreneurial aspect of the practice of law, which is already regulated by federal, state and local jurisdictions. Expanding the mandate of the BOG will further distract it from its core purpose: regulating the practice of law. Indeed, based upon the BOG’s dismal performance regulating attorney discipline, its most important function, the ABA has recommended that the BOG be relieved of that responsibility (927 P.2d Proposed Rules LXVII). The BOG should focus upon and master its existing responsibilities before it seeks to expand its horizons to include social engineering of the business of law.

So far freedom of speech has been a basic tenet of American jurisprudence. Our criminal laws govern conduct, not speech or thought. Our civil rights laws and RPCs govern conduct, not speech, and certainly not thought. The amendment drafters carefully chose the term "conduct." They could have used the term "act," but that would not address the grievance complained of, verbal disrespect. "Conduct" is more broad and more far-reaching in its meaning than "act." One could argue that "conduct" should not include speech, but read the rule. In the legal arena, an attorney conducts himself or herself by articulating a legal position. This is only done effectively with words. Moreover, two of the examples provided by the proponents are oral statements made during a court proceeding. The amendments will, if adopted by the Supreme Court, ultimately be interpreted to include speech. The unfortunate disbarred attorney who makes such case law will be forced to pursue the freedom of speech matter in the federal courts, while unable to earn a living, having lost his or her license to practice law.

The stated purpose of the proposed amendment is to protect people from the degradation of bias in the legal system; in a word, disrespect. This could readily be codified into an amendment which would create an RPC violation for being disrespectful while engaged in the practice of, but not the business of, law. My proposal, however, would not achieve the unstated goal of the rule’s proponents, which is to coercively normalize conduct which many consider to be inappropriate, or even immoral. I know the members of our profession do not believe that this is appropriate — the question is, do we have the courage to act? For it was Yeats who said, "The best lack all conviction, while the worst are full of passionate intensity." Write to the Supreme Court.

James Rigby, Seattle

Editor:

On February 8, 1999 the Washington Post published a front-page story entitled, "In Jury Rooms, a Form of Civil Protest Grows." According to the Post article, jurors are not always following judges’ instructions to the letter.

The article recounted that sometimes in jury trials, when those facts which the judge chooses to allow into evidence indicate that the defendant broke the law, jurors look at the facts quite differently from the way the judge instructed them to. The jurors do not say, "On the basis of these facts the defendant is guilty." Instead, the jurors say, "On the basis of these facts the law is wrong," and they vote to acquit.

Or, they may vote to acquit because they believe that the law is being unjustly applied, or because some government conduct in the case has been so egregious that they cannot reward it with a conviction. In short, a passion for justice invades the jury room. The jurors begin judging the law and the government, as well as the facts, and they render their verdict according to conscience. This is called jury nullification.

Dr. Jack Kevorkian, recently convicted, was acquitted several times in the past, despite his admission of the government’s facts, of assisting the suicide of terminally ill patients who wanted to die. Those acquittals were probably due to jury nullification. And Dr. Kevorkian might have been acquitted again if the trial judge had allowed him to present his evidence, testimony of the deceased’s relatives, to the jury. A corollary of jury nullification is greater latitude for the jury to hear all of the evidence.

If the practice of jury nullification continues to grow, it will mean that in criminal cases, everything will be on the table in every case. Whenever a defendant is on trial, the government and its laws will be on trial also. With most criminal laws this will make no difference. But with controversial laws, like drug prohibition, it may make an enormous difference.

The Washington Post took a dim view of this and suggested that jury nullification is an aberration, a kind of unintended and unwanted side-effect of our constitutional system of letting juries decide cases. But the Post couldn’t be more wrong. Far from being an unintended side-effect, jury nullification is explicitly authorized in the Constitutions of 24 states.

The constitutions of Maryland, Indiana, Oregon and Georgia currently have provisions guaranteeing the right of jurors to "judge" or "determine" the law in "all criminal cases."

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five thousand dollars, shall be inviolably preserved. (Maryland Constitution, Declaration of Rights, Article 23)

In all criminal cases whatever, the jury shall have the right to determine the law and the facts. (Indiana Constitution, Article I, Section 19)

Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases. (Oregon Constitution, Article I, Section 16)

The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts. (Georgia Constitution, Article I, Section 1, Paragraph XI)

These constitutional jury-nullification provisions endure despite decades of hostile judicial interpretation.

Twenty other states currently include jury nullification provisions in their constitutions under their sections on freedom of speech, specifically with respect to libel cases.

These provisions, cited below, typically state: "...in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court." But New Jersey, New York, South Carolina, Utah and Wisconsin omit the phrase "under the direction of the court." South Carolina states: "In all indictments or prosecutions for libel, the truth of the alleged libel may be given in evidence, and the jury shall be the judges of the law and facts."

The provisions: Alabama (Article I, Section 12), Colorado (Article II, Section 10), Connecticut (Article First, Section 6), Delaware (Article I, Section 5), Kentucky (Bill of Rights, Section 9), Maine (Article I, Section 4), Mississippi (Article III, Section 13), Missouri (Article I, Section 8), Montana (Article II, Section 7), New Jersey (Article I, Section 6), New York (Article I, Section 8), North Dakota (Article I, Section 4), Pennsylvania (Article I, Section 7), South Carolina (Article I, Section 16), South Dakota (Article VI, Section 5), Tennessee (Article I, Section 19), Texas (Article 1, Section 8), Utah (Article I, Section 15), Wisconsin (Article I, Section 3), Wyoming (Article I, Section 20).

Delaware, Kentucky, North Dakota, Pennsylvania and Texas add the phrase "as in other cases." Tennessee adds the phrase "as in other criminal cases." These phrases suggest that the jury has a right to determine the law in more than just libel cases.

... and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases. (Tennessee Constitution, Article I, Section 19)

The phrase "under the direction of the court," omitted by five states, provides for the trial judge to give directions, like road directions, which the jury may or may not choose to follow, to assist the jury in its deliberations. Our forefathers did not intend by this phrase for the trial judge to infringe in any way upon the sole discretion of the jury in rendering its verdict. Although later courts have held otherwise, the Tennessee Supreme Court in Nelson v. State, 2 Swan 482 (1852), described the proper roles of the judge and jury as follows: The judge is a witness who testifies as to what the law is, and the jury is free to accept or reject his testimony like any other.

The Maine Constitution affirms these roles in its section on libels:

... and in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact. (Maine Constitution, Article I, Section 4 [emphasis added])

In addition, 40 state constitutions, like the Washington State Constitution in Article I, Section 1, declare that "all political power is inherent in the people," or words to similar effect.

And 34 state constitutions expound on the principle of all political power being inherent in the people by saying that "the people...have at all times...a right to alter, reform, or abolish their government in such manner as they may think proper," or words to similar effect. For example, the Pennsylvania Constitution declares:

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper. (Pennsylvania Constitution, Article I, Section 2)

If the people have all power, and have at all times a right to alter, reform or abolish their government in such manner as they may think proper, then they certainly have the right of jury nullification, which is tantamount to altering or reforming their government when they come together on juries to decide cases.

A single nullification verdict against a particular law may or may not alter or reform the government, but thousands of such verdicts certainly do. Witness the decisive role of jury nullification in establishing freedom of speech and press in the American colonies, defeating the Fugitive Slave Act, and ending alcohol prohibition.

Of special note is the Right of Revolution in the New Hampshire Constitution:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. (New Hampshire Constitution, Bill of Rights, Article 10)

If the people have the ultimate right of revolution to protect their liberties, then they certainly also have the lesser included and more gentle right of jury nullification to protect their liberties.

It should also be noted that New Hampshire declares an unalienable Right of Conscience:

Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience. (New Hampshire Constitution, Bill of Rights, Article 4)

If the right of conscience is unalienable, then it cannot be taken away from people when they enter the courthouse door to serve on juries. The people have an inherent and unalienable right to vote their conscience when rendering jury verdicts.

There is no doubt that jury nullification was one of the rights and powers that the people were exercising in 1791 when the Bill of Rights of the United States Constitution was adopted. As legal historian Lawrence Friedman has written:

In American legal theory, jury power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first Revolutionary generation when memories of royal justice were fresh. (A History of American Law [Simon & Schuster, 1973] p. 251)

Jury nullification is therefore one of the "rights...retained by the people" in the Ninth Amendment. And it is one of the "powers...reserved...to the people" in the Tenth Amendment.

Jury nullification is decentralization of political power. It is the people’s most important veto in our constitutional system. The jury vote is the only time the people ever vote on the application of a real law in real life. All other votes are for hypotheticals.

As Jefferson put it:

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 the laws is more important than the making of them. (Letter to the Abbé Arnoux, 1789; The Papers of Thomas Jefferson, Vol. 15, p. 283, Princeton University Press, 1958)

One wonders why these jury nullification provisions are not given full force and effect today with proper jury instructions? Perhaps judges, who charge juries to follow the law, do not follow it themselves when they disagree with it.

List Source: Alan W. Scheflin, "Jury Nullification: The Right To Say No," 45 Southern California Law Review 168, 204 (1972) [list has been updated to 1999]

Tom Stahl, Ellensburg

Editor:

Thanks very much for Jeff Tolman’s "Red Flags" article in the June issue [p. 13] — easily the most practical and useful bit of advice Bar News has published in many a moon. This is the kind of thing they don’t teach you in law school — but it ought to be required reading for every Bar candidate.

Robert C. Cumbow, Seattle

Readers are invited to submit letters of reasonable length to the editor. They should be typed on letterhead, signed and, if possible, also provided on disk in any conventional format. Letters may also be sent via e-mail to comm@wsba.org. Due date is the 10th of the month for the second issue following. The editor reserves the right to select excerpts for publication or edit them as may be appropriate. Signatures in excess of three names will be printed only in exceptional circumstances, at the sole discretion of the editor.

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