Jury-Power Advocate Runs Afoul of Judicial Clout : Courts: Urging jurors to put their consciences above the legal code brings activist his latest brush with the law. Some call grass-roots movement patriotic; critics see anarchy.


Jim Harnsberger sees himself as a patriot, a faithful and liberty-loving son of the Founding Fathers.

Others suggest that he might be better described as a scofflaw and scoundrel who is preaching nothing less than anarchy.

A short man with a loud voice and a confident manner, the 38-year-old "tax consultant" is the local vanguard of a nationwide movement called the Fully Informed Jury Assn.

From its command post in the Montana village of Helmville, FIJA is hip-deep in political lobbying and street-corner proselytizing in 40 states on behalf of jury nullification: the doctrine that juries in criminal cases have the right to follow their own consciences rather than the narrow dictates of the law.

"Having been through the criminal justice system here in San Diego," Harnsberger said, "I came to realize that the right to a jury trial doesn't mean much if judges are biased in favor of the prosecution."

In the past five years Harnsberger has been convicted in San Diego of reckless driving, grand theft and practicing tax preparation without a license, each time getting probation and a fine.

He is also the subject of more than 20 complaints at the California Department of Consumer Affairs filed by unhappy clients who say he pocketed their money and led them into losing business ventures. Similar complaints were filed against him in Hawaii.

This time, though, Harnsberger is in trouble for agitating on behalf of a controversial philosophy of jurisprudence.

On Monday, Harnsberger will once again come before the Bar of justice, accused of violating a judicial order that he stay at least 150 feet away from the steps of the downtown San Diego Courthouse when he hands out his pamphlets espousing jury nullification.

The five presiding judges of the Superior and Municipal courts issued the unprecedented order after ruling that "distribution of these written materials interferes with and obstructs the lawful administration of justice."

Undaunted, Harnsberger continued passing out pamphlets, saying that jurors could acquit guilty defendants without suffering any retribution. He was arrested and charged with a misdemeanor.

He plans to arrive in court armed with speeches about the 1st Amendment and the need for common folks to reject laws they find odious or illogical. He is particularly peeved at the judges who signed the order, which covers every courthouse in San Diego County.

"They are trying to shut me up but I'm not going to shut up because our courts are out of control," said Harnsberger. "These guys want to throw me in jail to make an example out of me and scare other people from exercising their rights."

The judges are equally adamant.

"These people think there is a rule that says jurors can do whatever the hell they want," said Superior Court Judge James R. Milliken. "They're entitled to their opinion, but they cannot stand outside the court and solicit a violation of the law by telling jurors to break their oath to follow the law. That is not protected by freedom of speech."

It is doubtful that he will get the chance, but Harnsberger would love to lecture the judges about William Penn, the Quaker gentleman and intellectual who founded Pennsylvania and was arrested on a street corner in London in 1670 for giving speeches about religious freedom that the Church of England found vexatious.

Penn's eloquence persuaded a jury to withstand crushing pressure from "cross and crown" and acquit him even though he admitted breaking a law that forbade advocacy of any beliefs other than those of the Anglican church.

The case is celebrated in legal textbooks for having established the primacy of the jury in English, and later American, law. Not surprisingly, Penn is a patron saint of the Fully Informed Jury Assn.

Ever the relentless advocate and persuasive salesman, Harnsberger this year persuaded the mayors of four suburban San Diego County cities to declare Sept. 5, the 323rd anniversary of Penn's acquittal, as Jury Rights Day.

Harnsberger and other FIJA activists want the legislatures in all 50 states to pass bills requiring judges to instruct jurors that they can disregard the law and vote their consciences.

So far, FIJA has had only meager success: a few laudatory comments by columnists and op-ed writers in smaller newspapers, and a bill that passed one house in Arizona before being killed.

But Don Doig, who dropped his career as a medical researcher to become FIJA's vice president and national coordinator, says critical mass is just around the corner, politically speaking.

"We have a general perception that government is being too obstructionist and authoritarian," Doig said. "Jury nullification is a defense mechanism."

The association's 3,000 members are a politically and socially eclectic lot, Doig said, with the common thread being that each has a gripe against the government.

The 5-year-old group has attracted people angry about income tax laws, gun laws, seat belt laws, motorcycle helmet laws, marijuana laws, Food and Drug Administration prohibitions against "alternative medicines" and asset forfeiture laws in drug cases.

Democrats, Republicans, libertarians and even a few John Birch Society members have joined up. The National Rifle Assn. has expressed support and so have some leaders of the anti-abortion movement, some of whose followers have been arrested for blocking clinic doors.

From Helmville, a town of 100 people 56 miles from the nearest stoplight, FIJA has cobbled together a nationwide communications network to spread the word, provide literature for the faithful and sell a variety of buttons, books, tapes and "Ban Bad Law" T-shirts.

A statewide convention is set for San Diego in February. After that, a major push into the Los Angeles courts is planned.

Alan Scheflin, a law professor at Santa Clara University who has written extensively in law journals about jury nullification, agrees wholeheartedly with the principle that jurors have a right to follow their consciences without fear of retribution. He wishes judges would tell jurors that. "Juries are an important institution that is in danger of being lost," Scheflin said. "Jury nullification allows a jury to exercise mercy when the law collides with a deeply held moral belief."

Scheflin said most cases where jury nullification becomes an issue involve taxes and the Internal Revenue Service. But he says jurors are not likely to buy the argument that someone is not paying taxes because of moral opposition.

"The tax protesters are the fringe element of the jury nullification movement," Scheflin said.

During the Vietnam War, defense attorneys for draft evaders often used a jury nullification argument. As the war dragged on and became more politically unpopular, juries were more reluctant to convict draft evaders, according to prosecutors and historians.

William Braniff, who spent 22 years as a federal prosecutor--including five as U.S. attorney in San Diego--said defense attorneys who make jury nullification arguments are not realistically expecting acquittals but rather hoping to find at least one sympathetic juror and force a hung jury.

Braniff is no fan of Harnsberger or his ideological allies. "If you follow the logic of what this man says, it's anarchy," said Braniff, now in private practice.

Kristine Strachan, a former prosecutor and now dean of the University of San Diego Law School, said that although it may be galling to judges and prosecutors, the truth is that jury nullification activists are firmly in the American tradition.

"The Founding Fathers thought that jurors should be allowed to acquit people who are guilty," Strachan said. "But that idea cuts so deeply in a democratic society that judges will not instruct jurors on that point and they will not let lawyers argue on that basis."

William Barr, U.S. attorney general in the latter years of the George Bush Administration, said he has seen sporadic cases of jury nullification. The tactic works, he said, when juries can be persuaded that the defendant has been "a victim of society" and that the government is "the real bad guy." Harnsberger believes that his efforts have swayed jurors in several San Diego cases, including a well-publicized case where a jury acquitted an AIDS patient of marijuana charges even though he admitted growing and using the plant. Harnsberger said two jurors told him that his pamphlets persuaded them to vote for acquittal.

Harnsberger started his sidewalk campaign last spring and estimates that he has given away 5,000 pamphlets before the Oct. 23 order that he keep 150 feet away from the courthouse.

Sherry Moffet, a senior enforcement analyst for the Department of Consumer Affairs, said her office has a complaint file on Harnsberger a foot-and-a-half thick. "He has a habit of finding older people with large amounts of money and then convincing them to get into investments that do not work," she said.

Harnsberger said the California complaints, like the ones in Hawaii, are the product of misunderstandings by his clients and vindictiveness on the part of investigators.

After his multiple calls to San Diego's most popular radio talk show, Harnsberger has attracted a following of people who have peppered the media and judiciary with letters decrying his arrest. He is being represented in court by the Escondido-based U.S. Justice Federation, which presents itself as a right-wing alternative to the American Civil Liberties Union.

Harnsberger could face up to a $1,000 fine and a year in jail. Win or lose, Harnsberger vows to return to the courthouse, pamphlets in hand. "I'm an in-your-face kind of guy when it comes to this stuff," he said.

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