A JURY'S DUTY

When Denton attorney Rick Hagen took the case of a woman who faced
jail because she declined to answer questions on a jury questionnaire,
he never expected it would become a rallying cry for juror rights proponents.

In March 1994, a Denton County district judge sentenced Dianna
Brandborg to three days in jail for her refusal to answer questions
that she said were personal and violated her constitutional right to
privacy. Brandborg appealed, and in June 1995, a U.S. magistrate set
aside the contempt order.

"In that case, I don't think a lot of lawyers understood what we were
trying to do," Hagen said. "They thought we were doing away with their
ability to ask questions. All we were advocating was respecting a
person's right to privacy and if the question is not relevant, the
juror should not have to answer that question."

Brandborg's battle for privacy sparked one of four proposals that the
Lone Star Fully Informed Jury Association, a Texas juror rights group,
plans to take to the Legislature this year. Group members espouse jury
nullification, the belief that jurors should decide cases based on
their moral convictions instead of the law.

The group's proposals include a ban on asking potential jurors their
views on religion, politics or the law being prosecuted, said Tom
Glass, president of the Texas association, which is part of a national
group based in Montana.

Another proposal would prevent prosecutors from excusing potential
jurors because they disagree with a law relevant to a case, Glass said.

The group's agenda -- legislative and otherwise -- has come under
widespread criticism, particularly from prosecutors and judges.

The idea of forbidding prosecutors from questioning jurors on certain
issues would be "disastrous," said Roger Jones, chief of the felony
trial division in the Denton County district attorney's office.

"You have to have people on a jury that support the law that is in
question in that trial. Otherwise, you are saying a jury is
legislating instead of applying the law," Jones said.

But what has sparked the most dissent is the group's assertion that
jurors should vote with their conscience instead of the law and the
evidence. For example, group members argue that a juror who believes
that assisted suicide is morally correct should feel free to acquit
Dr. Jack Kevorkian.

"Americans at the end of World War II told German citizens that they
should have followed their conscience instead of their government,"
said Glass, a Houston systems analyst. "Today's courtroom system tells
jurors the exact opposite. You have to do whatever the law tells you
to do."

Critics argue that, taken to its extreme, jury nullification would
render the law meaningless.

The way to change unpopular laws is the ballot box, not the jury box,
said Fort Worth state District Judge Bob McGrath.

"The concept of giving the public more input into the laws is not a
bad thing," McGrath said. "However, the way to accomplish that would
be through initiative and referendum where the voters would have the
right to make laws or nullify laws."

It would be unfair, he said, for one person on a jury to use his or
her beliefs to prevent a conviction.

"Take drug possession as an example," McGrath said. "If you had one
person on the jury who felt marijuana should be legal, they could
prevent a conviction on something that society has determined by
majority vote should be regulated."

Juries already have the power to make a statement, he said. A jury
might rule that a defendant broke the law but give him or her
probation instead of jail time, McGrath said. Or a jury might decide
that a party in a civil case was liable for another's injury but levy
only a small fine.

Hagen, who has lectured to group members on how to use "creative"
legal strategies to defend clients, said he also has problems with
jury nullification.

"Right now, I'm not an advocate for pure nullification," Hagen said.
"My concern is that nullification could be a two-way street. I'm more
concerned about a jury finding someone guilty on proof less than a
reasonable doubt. I think that happens with a great deal of frequency."

Glass acknowledged that jury nullification could work in more than one
way, but he said it is still worthwhile.

"All institutions of freedom can be misused," he said. "That doesn't
mean you get rid of them."