[free-sklyarov] FIJA

[William Lamb]

I have been monitoring the free-sklyarov mailing list for some time, but
until now I have never felt compelled to contribute.  The following letter
on FIJA and jury nullification is objectionable in so many ways that it's
best to take it line by line:

>From: "Lung, Mon Yin" <mylung at ku.edu>
>To: "'free-sklyarov at zork.net'" <free-sklyarov at zork.net>
>Date: Mon, 5 Nov 2001 22:32:24 -0600
>Subject: [free-sklyarov] RE: free-sklyarov digest, Vol 1 #266 - 5 msgs

>First of all, my apology for posting this message so late.  I am a law
>student who has chosen DMCA and Mr. Sklyarov's case as my research topic,
>hence my being on this list.

>I can't suppress my urge to comment on FIJA:  I skipped through their
>website, and noticed that this organization is promoting something that
>is no longer within the current legal practice.

This is simply not true.  Legal practice is based on the constitution and on
the laws passed by congress. There has never been a law passed denying
juries the right to nullify law.  If Mr./Ms. Lung can find one, I'd like to
know about it.

>I don't want to comment on the merit of their idea and opinion.  I only
>want to point out that what they promote is not what generally accepted
>by the U.S. Court system.  Under the current system, a jury is the finder
>of fact, but only a judge can decide on the matter of law.

What is 'generally accepted by the U.S. Court system' is a gradual and
informal usurpation of power away from juries and toward judges, prosecutors
and lawyers.  That usurpation started just over 100 years ago and has now
progressed to the point where most of the population has completely
forgotten not only that jury nullification is possible, but also what a jury
actually IS.

Two hundred some years ago when this country was founded, people knew that
juries were created as a check on the power of nobility, the wealthy and the
legislatures they controlled.  Service on a jury was the average man's
opportunity to make his voice and his own sense of right and wrong heard.
The alternative was that the king, or whatever government a country had,
would arbitrarily create laws and their judges would convict anyone who had
any reasonable appearance of guilt.

This was a situation that millions of common people in Europe had found
oppressive and intolerable.  Juries were demanded as a remedy for injustices
perpetrated by legal systems controlled by the powerful, and were the last
thing in the world that anyone in a position of power wanted.  It was
understood that a jury presiding in a court of law was there to do justice
as they saw fit; not as a government appointed judge would have done in
their place.

When the U.S. constitution was written, jury trials were specified as a
basic right for citizens in order to insure that power rested with the
people.  Several very famous cases at the time had made it plain that juries
had the power to acquit defendants accused under laws which they considered
unjust, even if the defendant was clearly guilty.  (Read more about it at
http://www.fija.org/jury.pdf)  The intention behind jury trials must have
seemed obvious to the framers of the constitution.  After all, if they had
wanted a court system which simply did the bidding of the legislature, they
could have let judges decide everything.

Unfortunately, the rights and responsibilities of a jury were not
enumerated.  Because of this oversight, an opening has been created which
has allowed judges and other people in a position of power to distract and
disinform the public about their rights as jurists.

In any case, the idea that juries are there to make a decision based only on
the facts of a case has no legal basis.  Whether it is 'generally accepted
practice' or not, juries are legally enabled to make any decision they feel
is just in a particular case and judges cannot second guess them or reverse
their decisions.

>Whether Mr. Sklyarov violate DMCA is a matter of fact, whether DMCA is
>unconstitutional is a matter of law.  FIJA's discussion and "advices" are
>based on its ideology and not the system Mr. Sklyarov has to deal with.

M.Y. Lung is correct in that whether Mr. Sklyarov violated the DMCA is a
matter of fact and whether or not the law is unconstitutional is a matter of
law.  On the other hand, a jury is within its legal grounds to acquit a
defendant because they think he's innocent, because they don't like the law
he's accused under, or for any other reason they can collectively dream up.
So the fact/law distinction is really beside the point.

FIJA's discussion and 'advices' are based on two centuries of American law
and another six centuries of English common law before that.  This IS the
system Mr. Sklyarov has to deal with.  The fact that juries don't know their
own power is a matter for public education.  It remains that juries can rule
as they see fit and judges may not challenge them.

>I am afraid that employing FIJA's theory and approach would not
>get Mr. Sklyarov out of jail.  Short of revolution one cannot fight the
>system from outside.

Fortunately, there's no need to.

>We are living with the current system.  Any potential juror with an
>agenda would be screened out by attorneys of either side.

Maybe, and maybe not.  In any case, knowing your rights as a juror is not an
'agenda'.

>I would rather make no move but trust my fellow citizens.

The position you are arguing for is not one of trust for your fellow
citizens.  A jury which is disempowered to do anything but rule according to
the laws and the facts presented to them by lawyers and judges is being
entrusted with very little.  That's exactly the intention of the people who
have worked to bring about this de facto change in American jurisprudence.
They feel that their own views are the correct ones, and they don't trust
juries to do what they think is right.

>I personally consider DMCA illogical and an infringement on the statutory
>right of fair use (to say the least).  If we want to free Mr. Sklyarov
>maybe we do not want to waste our resources on other issues, particularly
>not on some ideology that has no bearing on the principal case.

If a jury decides to acquit him because they disapprove of the DMCA, the
'ideology' espoused by FIJA will have had plenty of bearing on the case.  A
court ruling declaring DMCA unconstitutional would be great, and convincing
our legislators to go back and repeal or revise the law would be even
better.  We're not likely to see either of those very soon, but a jury
nullification of the charges against Dmitri Sklyarov would be a healthy shot
across the bow of the DMCA.

>Respectfully,
>M.Y. Lung

My respectful suggestion to M.Y. Lung is to go to your law library and do
some research on jury nullification. I think you'll find it a real
education.  Sincerely,

William Lamb
Former Illinois Director of FIJA