Testimony on a bill specifying that juries can put the law itself on trial painted its effects in stark terms Wednesday, calling it either one more check on an imperfect legal system that can and has destroyed lives - or something with the potential to destroy the rule of law itself.
"Trial by jury has been under attack for decades. Judges have attempted to suppress the power of the jury," Don Doig, one of the founders of the Helena-based national Fully Informed Jury Association, told members of the state House Judiciary Committee.
But John Sullivan, representing the Montana Defense Trial Lawyers Association, said such a law "would wreak havoc with the litigation system and the respect we are supposed to have for the rule of law."
For more than an hour Wednesday morning, the committee heard testimony on the measure sponsored by Rep. Bob Wagner, R-Harrison. House Bill 332 would, among other things, require judges to inform jurors that they "may vote their conscience to acquit an accused in spite of technical guilt."
That means that even if the facts presented in a case show that someone broke the law, jurors can still acquit the defendant if they disagree with the law or find it unconstitutional. Supporters of the bill maintain jurors already have that power, but that judges rarely tell them about it.
"Sixty to 100 years ago, this bill would have been unnecessary. School systems were doing an excellent job teaching the Constitution ... ," said Dale Grosfield. "Unfortunately the school systems now are more interested in teaching that Johnny has two mothers and how to put a condom on a banana."
The issue of jurors' power gained national attention in December, when members of a Missoula County District Court jury pool began arguing about whether a man accused in a felony drug case should also have been charged for having "a couple of buds" of marijuana.
The discussion became so heated that the judge called a recess in jury selection, during which a plea agreement was reached.
"Verdicts that are given by a fully informed jury rest more solidly on the public conscience. They are more sound ... ," said Livingston attorney Dana Christian. "The jury is supposed to be the common man. The jury is not supposed to be driven by elite interpretations of subtle points of law."
But Sullivan protested that "that's not the way our legal system works. Cases that present the same facts are supposed to be decided in the same way."
Besides, he said, laws are made by the Legislature. Disregard that, and you might as well disregard the power of the executive branch and also of the judiciary.
Mark Murphy, representing the Montana County Attorneys Association, said the bill would do away with protections for defendants such as being judged solely on the facts in a specific case, without taking their history or character into consideration.
"What we're doing," he said, "is getting rid of the rule of law and replacing it with the rule of suggestion."
Wagner, the bill's sponsor, attributed much of the opposition to his bill to "a brotherhood in law that protects each other's backside and their integrity in their own professions. I'm sorry if that offends some."
He told of his wife's experience with jury duty, "in which she felt compelled to vote against her conscience and did so and ruined a police officer's life in Three Forks, Montana - robbed him of his property and his liberty and his dignity in his town."
Wagner referenced a remark by Jamee Greer of the Montana Human Rights Network, who attributed his bill to the "ideas of the radical right."
Rather than being radicals, Wagner said, jurors who follow their conscience in refusing to convict based on what they see as the law's shortcomings "may in fact be living up to their oath to the highest degree."