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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.


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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