Jurors' Handbook, a Citizens Guide to Jury Duty - James J. Duane

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Jurors' Handbook
A Citizens Guide to Jury Duty
Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia
Did you know that you qualify for another, much more
That is the power of the jury at work; the power to
powerful vote than the one which you cast on election
decide the issues of law under which the defendant is
day? This opportunity comes when you are selected for
charged, as well as the facts. In our system of checks
jury duty, a position of honor for over 700 years.
and balances, the jury is our final check, the people's
last safeguard against unjust law and tyranny.
The principle of a Common Law Jury or Trial by the
Country was first established on June 15, 1215 at
A Jury's Rights, Powers, and Duties:
Runnymede, England when King John signed the
Magna Carta, or Great Charter of our Liberties. It
But does the jury's power to veto bad laws exist under
created the basis for our Constitutional, system of
our Constitution?
Justice.
It certainly does! At the time the Constitution was
JURY POWER in the system of checks
written, the definition of the term "jury" referred to a
and balances:
group of citizens empowered to judge both the law and
the evidence in the case before it. Then, in the February
term of 1794, the Supreme Court conducted a jury trial
In a Constitutional system of justice, such as ours, there
1
in the case of the State of Georgia vs. Brailsford
. The
is a judicial body with more power than Congress, the
instructions to the jury in the first jury trial before the
President, or even the Supreme Court. Yes, the trial
Supreme Court of the United States illustrate the true
jury protected under our Constitution has more power
power of the jury. Chief Justice John Jay said: "It is
than all these government officials. This is because it
presumed, that juries are the best judges of facts; it is,
has the final veto power over all "acts of the legislature"
on the other hand, presumed that courts are the best
that may come to be called "laws".
judges of law. But still both objects are within your
power of decision." (emphasis added) "...you have a
In fact, the power of jury nullification predates our
right to take it upon yourselves to judge of both,
Constitution. In November of 1734, a printer named
and to determine the law as well as the fact in
John Peter Zenger was arrested for seditious libel
controversy".
against his Majesty's government. At that time, a law of
the Colony of New York forbid any publication without
So you see, in an American courtroom there are in a
prior government approval. Freedom of the press was
sense twelve judges in attendance, not just one. And
not enjoyed by the early colonialists! Zenger, however,
they are there with the power to review the "law" as well
defied this censorship and published articles strongly
as the "facts"! Actually, the "judge" is there to conduct
critical of New York colonial rule.
the proceedings in an orderly fashion and maintain the
safety of all parties involved.
When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
As recently as 1972, the U.S. Court of Appeals for the
that the truth of the facts stated justified their
District of Columbia said that the jury has an "
publication. The judge instructed the jury that truth is
unreviewable and irreversible power... to acquit in
not justification for libel. Rather, truth makes the libel
disregard of the instructions on the law given by the trial
more vicious, for public unrest is more likely to follow
2
judge....
true, rather than false claims of bad governance. And
since the defendant had admitted to the "fact" of
Or as this same truth was stated in a earlier decision by
publication, only a question of "law" remained.
the United States Court of Appeals for the District of
Maryland: "We recognize, as appellants urge, the
Then, as now, the judge said the "issue of law" was for
undisputed power of the jury to acquit, even if its verdict
the court to determine, and he instructed the jury to find
is contrary to the law as given by the judge, and
the defendant guilty. It took only ten minutes for the
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.
1
(3 Dall 1)
2
US vs Dougherty, 473 F 2d 1113, 1139 (1972)
1 of 14
Jurors' Handbook
A Citizens Guide to Jury Duty
Mr. Duane is an associate professor at Regent Law School in Virginia Beach, Virginia
Did you know that you qualify for another, much more
That is the power of the jury at work; the power to
powerful vote than the one which you cast on election
decide the issues of law under which the defendant is
day? This opportunity comes when you are selected for
charged, as well as the facts. In our system of checks
jury duty, a position of honor for over 700 years.
and balances, the jury is our final check, the people's
last safeguard against unjust law and tyranny.
The principle of a Common Law Jury or Trial by the
Country was first established on June 15, 1215 at
A Jury's Rights, Powers, and Duties:
Runnymede, England when King John signed the
Magna Carta, or Great Charter of our Liberties. It
But does the jury's power to veto bad laws exist under
created the basis for our Constitutional, system of
our Constitution?
Justice.
It certainly does! At the time the Constitution was
JURY POWER in the system of checks
written, the definition of the term "jury" referred to a
and balances:
group of citizens empowered to judge both the law and
the evidence in the case before it. Then, in the February
term of 1794, the Supreme Court conducted a jury trial
In a Constitutional system of justice, such as ours, there
1
in the case of the State of Georgia vs. Brailsford
. The
is a judicial body with more power than Congress, the
instructions to the jury in the first jury trial before the
President, or even the Supreme Court. Yes, the trial
Supreme Court of the United States illustrate the true
jury protected under our Constitution has more power
power of the jury. Chief Justice John Jay said: "It is
than all these government officials. This is because it
presumed, that juries are the best judges of facts; it is,
has the final veto power over all "acts of the legislature"
on the other hand, presumed that courts are the best
that may come to be called "laws".
judges of law. But still both objects are within your
power of decision." (emphasis added) "...you have a
In fact, the power of jury nullification predates our
right to take it upon yourselves to judge of both,
Constitution. In November of 1734, a printer named
and to determine the law as well as the fact in
John Peter Zenger was arrested for seditious libel
controversy".
against his Majesty's government. At that time, a law of
the Colony of New York forbid any publication without
So you see, in an American courtroom there are in a
prior government approval. Freedom of the press was
sense twelve judges in attendance, not just one. And
not enjoyed by the early colonialists! Zenger, however,
they are there with the power to review the "law" as well
defied this censorship and published articles strongly
as the "facts"! Actually, the "judge" is there to conduct
critical of New York colonial rule.
the proceedings in an orderly fashion and maintain the
safety of all parties involved.
When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
As recently as 1972, the U.S. Court of Appeals for the
that the truth of the facts stated justified their
District of Columbia said that the jury has an "
publication. The judge instructed the jury that truth is
unreviewable and irreversible power... to acquit in
not justification for libel. Rather, truth makes the libel
disregard of the instructions on the law given by the trial
more vicious, for public unrest is more likely to follow
2
judge....
true, rather than false claims of bad governance. And
since the defendant had admitted to the "fact" of
Or as this same truth was stated in a earlier decision by
publication, only a question of "law" remained.
the United States Court of Appeals for the District of
Maryland: "We recognize, as appellants urge, the
Then, as now, the judge said the "issue of law" was for
undisputed power of the jury to acquit, even if its verdict
the court to determine, and he instructed the jury to find
is contrary to the law as given by the judge, and
the defendant guilty. It took only ten minutes for the
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.
1
(3 Dall 1)
2
US vs Dougherty, 473 F 2d 1113, 1139 (1972)
1 of 14
contrary to the evidence. This is a power that must exist
You must know your rights! Because, once selected for
as long as we adhere to the general verdict in criminal
jury duty, nobody will inform you of your power to judge
cases, for the courts cannot search the minds of the
both law and fact. In fact, the judge's instructions to the
jurors to find the basis upon which they judge. If the jury
jury may be to the contrary. Another quote from US vs
4
feels that the law under which the defendant is
Dougherty
: "The fact that there is widespread
accused, is unjust, or that exigent circumstances
existence of the jury's prerogative, and approval of its
justified the actions of the accused, or for any reason
existence as a necessary counter to case-hardened
which appeals to their logic of passion, the jury has the
judges and arbitrary prosecutors, does not establish as
power to acquit, and the courts must abide by that
an imperative that the jury must be informed by the
3
decision."
judge of that power".
YOU, as a juror armed with the knowledge of the
Look at that quote again. the court ruled jurors have the
purpose of a jury trial, and the knowledge of what your
right to decide the law, but they don't have to be told
Rights, powers, and duties really are, can with your
about it. It may sound hypocritical, but the Dougherty
single vote of not guilty nullify or invalidate any law
decision conforms to an 1895 Supreme Court decision
5
involved in that case. Because a jury's guilty decision
that held the same thing. In Sparf vs US
, the court
must be unanimous, it takes only one vote to effectively
ruled that although juries have the right to ignore a
nullify a bad "act of the legislature". Your one vote can
judge's instructions on the law, they don't have to be
"hang" a jury; and although it won't be an acquittal, at
made aware of the right to do so.
least the defendant will not be convicted of violating an
unjust or unconstitutional law.
Is this Supreme Court ruling as unfair as it appears on
the surface? It may be, but the logic behind such a
The government cannot deprive anyone of "Liberty",
decision is plain enough.
without your consent!
In our Constitutional Republic, note I did not say
If you feel the statute involved in any criminal case
democracy, the people have granted certain limited
being tried before you is unfair, or that it infringes upon
powers to government, preserving and retaining their
the defendant's God-given inalienable or Constitutional
God-given inalienable rights. So, if it is indeed the
rights, you can affirm that the offending statute is really
juror's right to decide the law, then the citizens should
no law at all and that the violation of it is no crime; for
know what their rights are. They need not be told by the
no man is bound to obey an unjust command. In other
courts. After all, the Constitution makes us the masters
words, if the defendant has disobeyed some man-made
of the public servants. Should a servant have to tell a
criminal statute, and the statute is unjust, the defendant
master what his rights are? Of course not, it's our
has in substance, committed no crime. Jurors, having
responsibility to know what our rights are!
ruled then on the justice of the law involved and finding
it opposed in whole or in part to their own natural
The idea that juries are to judge only the "facts" is
concept of what is basically right, are bound to hold for
absurd and contrary to historical fact and law. Are juries
the acquittal of said defendant.
present only as mere pawns to rubber stamp tyrannical
acts of the government? We The People wrote the
It is your responsibility to insist that your vote of not
supreme law of the land, the Constitution, to "secure the
guilty be respected by all other members of the jury. For
blessings of liberty to ourselves and our posterity." Who
you are not there as a fool, merely to agree with the
better to decide the fairness of the laws, or whether the
majority, but as a qualified judge in your right to see that
laws conform to the Constitution?
justice is done. Regardless of the pressures or abuse
that may be applied to you by any or all members of the
Our Defense - Jury Power:
jury with whom you may in good conscience disagree,
you can await the reading of the verdict secure in the
Sometime in the future, you may be called upon to sit in
knowledge you have voted your conscience and
judgment of a sincere individual being prosecuted
convictions, not those of someone else.
(persecuted?) for trying to exercise his or her Rights, or
trying to defend the Constitution. If so, remember that in
So you see, as a juror, you are one of a panel of twelve
1804, Samuel Chase, Supreme Court Justice and
judges with the responsibility of protecting all innocent
signer of the Declaration of Independence said: "The
Americans from unjust laws.
jury has the Right to judge both the law and the facts".
And also keep in mind that "either we all hang together,
Jurors Must Know Their Rights:
or we most assuredly will all hang separately".
4
(cited earlier)
3
5
US vs Moylan, 417 F 2d 1002, 1006 (1969)
(156 US 51)
2 of 14
You now understand how the average citizen can help
obstruction of justice, but eventually dropped the
keep in check the power of government and bring to a
charges. Presumably, they gave up hope of figuring out
halt the enforcement of tyrannical laws. Unfortunately,
how they could get jurors to convict her without showing
very few people know or understand this power which
them the contents of the pamphlets she had been
they as Americans possess to nullify oppressive acts of
distributing -- and then her jury would know the truth
the legislature.
about nullification.
America, the Constitution and your individual rights are
Despite all the modern government resentment toward
under attack! Will you defend them? READ THE
"jury nullification," its roots run deep in both our history
CONSTITUTION, KNOW YOUR RIGHTS! Remember,
and law. At least two provisions of the Constitution, and
if you don't know what your Rights are, you haven't got
arguably three, protect the jury's power to nullify. They
any!
also explain why that power is limited to criminal cases,
and has no analogy in the civil context.
First, it is reflected in the Sixth Amendment, which
grants the accused an inviolable right to a jury
[Copyright © 1996 Litigation. Originally
determination of his guilt or innocence in all criminal
published as 22:4 Litigation 6-60 (1996).]
prosecutions for serious offenses. Because of this right,
a trial judge absolutely cannot direct a verdict in favor of
Jury Nullification:
the State or set aside a jury's verdict of not guilty, "no
6
matter how overwhelming the evidence."
Any violation
of this rule is automatically reversible error without
Top Secret
The
7
regard to the evidence of guilt.
Indeed, the point is so
well settled that it was announced without dissent in
Sullivan by a Court that has been unanimous on only a
Constitutional
few constitutional questions in the past ten years.
This rule is applied with a rigor that is without parallel in
Right
any area of civil practice. For example, it is reversible
error to direct a verdict of guilty over the defendant's
objection, even if he takes the witness stand and admits
under oath that he committed every element of the
8
by James Joseph Duane
charged offense!
(Although one might fairly describe
that particular defense strategy as a questionable use
of direct examination.)
A bill now pending in the Missouri state legislature has
whipped up a firestorm of controversy. Judges and
prosecutors there call it "a gut-punch to democracy,"
Judicial Deference
"an invitation to anarchy," and a bill that "flies in the face
of everything this country stands for." One county
prosecutor has even called for the resignation of the 20
Likewise, when a judge takes judicial notice of a fact in
state representatives who introduced the bill.
a criminal case -- for example, that the defendant could
not have boarded a train in New York and exited in
Texas without somehow crossing state lines -- he will
What could have caused such calamity? This
tell the jury they "may" accept that fact as proven
supposedly radical legislation would merely require
without further evidence. But he may not tell them that
judges to tell criminal juries the undisputed fact that
they are required to do so, or take the factual question
they have "the power to judge the law as well as the
away from them, no matter how obvious the fact might
evidence, and to vote on the verdict according to
9
seem.
Even where the defendant and his attorney
conscience." It is hard to remember the last time there
enter into a formal stipulation admitting an element of
was so much turmoil over a proposal to declassify a
the offense, the jury should be told merely that they
government secret during peacetime.
may regard the matter to be "proved," if they wish, but
the judge still cannot direct a verdict on that factual
Meanwhile, out in Nevada, a 50-year-old florist and
issue or take it away from the jury over the defendant's
grandmother almost landed in prison for her efforts to
help spread the word to jurors. When her son went on
6
trial for drug charges in federal court, Yvonne Regas
Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
7
and a friend papered the windshields of nearby parked
Id.
8
cars, hoping to let the jurors learn the completely
Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168
unexpected fact that her son faced 450 years in prison
(Ga. Ct. App. 1982).
9
for a single drug transaction nine years earlier. Federal
See Advisory Committee Notes to Fed. R. Evid.
authorities charged her with jury tampering and
201(g).
3 of 14
10
objection.
All of these rules are designed, in part, to
similarly, the Supreme Court has interpreted the Sixth
protect the jury's inviolable power to nullify and to avoid
Amendment to give criminal defendants a right to a jury
the reversible error always committed when "the wrong
and a trial; the Seventh Amendment, where it applies,
11
entity judge[s] the defendant guilty."
only gives civil litigants the right to a jury if there is a
trial.)
Second, the roots of nullification also run deep into the
12
Double Jeopardy Clause. Even where the jury's
The existence of a criminal jury's power to nullify is
verdict of not guilty seems indefensible, that clause
currently as well settled as any other rule of
prevents the State from pursuing even the limited
constitutional law. It is a cornerstone of American
remedy of a new trial. This rule, by design, gives juries
criminal procedure. The far more controversial issue --
the power to "err upon the side of mercy" by entering
and much more frequently litigated -- is that perennial
"an unassailable but unreasonable verdict of not
dilemma: What should we tell the kids? Should (or
13
guilty."
must) the judge tell the jurors anything about their
power (or right) to nullify? Should the judge at least
allow the defense to tell them? If so, how much should
Finally, the jury's power to nullify is protected by our
we tell them, and how should we do it? These issues lie
abiding "judicial distaste" for special verdicts or
14
at the very core of our criminal justice system, and have
interrogatories to the jury in criminal cases.
Unlike in
been debated by lawyers, journalists, philosophers, and
civil cases, where such devices are routinely employed,
patriots for two centuries. It is therefore ironic that these
in criminal cases it has frequently been held to be error
questions have, at least in recent decades, generated
to ask a jury to return anything but a general verdict of
15
one of the most remarkable displays of unanimity ever
guilty or not guilty.
This rule is designed to safeguard
orchestrated by state and federal courts on any issue of
the jury's power "to arrive at a general verdict without
law in American history.
having to support it by reasons or by a report of its
deliberations," and to protect its historic power to nullify
or temper rules of law based on the jurors' sense of
It would take at most four words to fairly summarize the
16
justice as conscience of the community.
The jury is
unanimous consensus of state and federal judges on
given "a general veto power, and this power should not
the idea of telling jurors about their power to nullify:
be attenuated by requiring the jury to answer in writing
"Forget it. No way." Even while extolling the beauty and
a detailed list of questions or explain its reasons."
majesty of our commitment to the jury's constitutional
17
Although the issue is far from settled, a powerful
role as a guardian against tyranny, no state or federal
argument can be made that this rule "is of constitutional
appellate court in decades has held that a trial judge is
dimensions," and a direct corollary of the Sixth
even permitted -- much less required to explicitly
18
Amendment's protection of the jury's power to nullify.
instruct the jurors on their undisputed power to return a
verdict of not guilty in the interests of justice. The
federal courts are unanimous and have been for years,
These constitutional rules, in combination, give a
20
for example,
("a district judge may not instruct the jury
criminal jury the inherent discretionary power to "decline
as to its power to nullify"). So are the state appellate
to convict," and insure that such "discretionary
21
19
courts, for example,
exercises of leniency are final and unreviewable."
This
state of affairs does not even have a rough parallel in
civil cases, where the Seventh Amendment right to a
State Law
"trial by jury" does not preclude judges from granting
summary judgment, directed verdicts, and new trials. (In
effect, although both amendments are written quite
There is a pervasive myth that three states supposedly
allow jury nullification instructions: Georgia, Maryland,
22
and Indiana.
Some lists also include Oregon. This is
10
United States v. Muse, 83 F.3d 672, 679-80 (4th Cir.
presumably because those states have laws or
1996).
constitutional provisions suggesting that criminal jurors
11
Rose v. Clark, 478 U.S. 570, 578 (1986).
are judges of the law and the facts. But the myth is
12
(p.7)
false. Despite their differing constitutions, all four states
13
Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).
14
United States v. Oliver North, 910 F.2d 843, 910-11
20
(D.C. Cir. 1990).
United States v. Manning, 79 F.3d 212, 219 (1st Cir.
15
United States v. McCracken, 488 F.2d 406, 418-419
1996)
21
(5th Cir. 1974) (collecting cases).
Mouton v. Texas, 923 S.W.2d 219 (Tex. Ct. App.
16
Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st
1996); Michigan v. Demers, 195 Mich. App. 205, 489
Cir. 1969).
N.W.2d 173 (Mich. Ct. App. 1992).
17
22
United States v. Wilson, 629 F.2d 439, 443 (6th Cir.
See State v. Morgan Stanley & Co., 194 W.V. 163,
1980).
175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul
18
Wayne LaFave & Jerold Israel, Criminal Procedure §
Butler, Racially Based Jury Nullification: Black Power in
24.7(a) (2d ed. 1992).
the Criminal Justice System, 105 Yale L.J. 677, 704
19
McCleskey v. Kemp, 481 U.S. 279, 311 (1987).
n.147 (1995).
4 of 14
have held that a jury has, at most, the power to acquit a
Fourteenth Amendment, subject to the condition that he
guilty man, not the right, and should not be told that it
would revert to the status of an "American Freeman"
23
may ignore or nullify the law.
with all of the "common law rights thereof, including the
right to a jury possessing the power of jury
32
nullification."
The Supreme Court passed up this
Resourceful defendants and their attorneys have tried
chance to decide the issue, perhaps preferring to wait
every conceivable route around this immovable
33
until it percolates a bit more in the lower courts.
roadblock. All have been thwarted. Without exception,
the appellate courts will not allow a defense attorney to
use her closing argument to tell the jurors about their
Judicial hostility to jury nullification goes well beyond
24
power to nullify, or to urge them to use it.
the stone wall of silence erected around the jury box.
Case after case has approved jury instructions actually
designed to imply that jurors do not have such power at
Nor can the defense offer evidence that is relevant to
all, or to "instruct the jury on the dimensions of their
25
nothing
but the justness of a conviction or acquittal, or
34
26
duty to the exclusion of jury nullification."
For example,
is otherwise designed to induce the jury to nullify.
This
criminal jurors are routinely ordered: "You must follow
includes, most notably, any information about the
my instructions on the law, even if you thought the law
sentence faced by the defendant, even if it is a
35
27
was different or should be different,"
and "even if you
minimum mandated by law.
disagree or don't understand the reasons for some of
36
the rules."
Judicial disapproval also extends to any evidence or
argument designed solely to persuade the jury that the
In extreme cases, this judicial hostility even extends to
government was guilty of misconduct in its investigation
28
dishonesty. As Chief Judge Bazelon correctly observed,
or prosecution.
current law on this topic is tantamount to a "deliberate
37
lack of candor."
In one especially outrageous case,
Predictably, the battle is moving to the earliest stages of
the jury deliberated for hours in a criminal tax case
the trial, but the results are the same. Requests to ask
before sending the judge a note asking: "What is jury
jurors about nullification on voir dire have been
nullification?" The defendant was convicted shortly after
29
denied.
the judge falsely told the jury that "there is no such thing
as valid jury nullification," and that they would violate
One pro se defendant tried to persuade the Supreme
38
their oath and the law if they did such a thing.
Over a
Court that her trial judge improperly refused to let her
vigorous dissent, the Court of Appeals deemed the
challenge for cause those prospective jurors who did
39
instruction proper and affirmed the conviction
, even
30
know or understand the term "jury nullification."
The
after the defendant furnished the court with an affidavit
Court decided it might tackle that one later, and denied
from a juror who swore he would have acquitted if "we
31
review.
40
were told the truth about jury nullification."
Defendants will go to any lengths to get this forbidden
This widespread judicial pattern is highly ironic. The
topic of discussion before the jury. In one recent case
courts have unanimously (and erroneously) refused to
involving minor charges in traffic court, a pro se
let defense attorneys argue for nullification, typically by
defendant offered the State of Pennsylvania a bargain
insisting that the jury has no power to consider what the
of almost Faustian proportions. He asserted a right to
law should be, and that juries have no lawful task but to
execute a release of his property rights under state law
decide whether the defendant broke the law. Yet, in a fit
and all of his privileges and immunities secured by the
of sheer inconsistency, the same federal courts of
23
32
See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391
Phelps v. Pennsylvania, 59 U.S.L.W. 3522 (1991)
S.E.2d 642, 647 (Ga. 1990).
(petition for certiorari).
24
33
See, e.g., United States v. Muse, 83 F.3d 672, 677
498 U.S. 1088 (1991).
34
(4th Cir. 1996).
United States v. Sepulveda, 15 F.3d 1161, 1190 (1st
25
(p.8)
Cir. 1993).
26
35
United States v. Griggs, 50 F.3d 17, 1995 WL 7669
Eighth Circuit Pattern Criminal Jury Instruction 3.02
(9th Cir. 1994).
(1991),
27
36
United States v. Johnson, 62 F.3d 849, 850-51 (6th
Federal Judicial Center, Pattern Criminal Jury
Cir. 1995).
Instruction 9 (1987).
28
37
United States v. Rosado, 728 F.2d 89, 93-95 (2d Cir.
United States v. Dougherty, 473 F.2d 1113, 1139
1984).
(D.C. Cir. 1972) (dissenting opinion).
29
38
United States v. Datche,. 830 F. Supp. 411, 418
United States v. Krzyske, 836 F.2d 1013,1021 (6th
(M.D. Tenn. 1993).
Cir. 1988).
30
39
Mendonca v. Oregon, 55 U.S.L.W. 3362 (1986)
, id.
40
United States v. Krzyske, 857 F.2d 1089,1095 (6th
(petition for certiorari).
31
479 U.S. 979 (1986).
Cir. 1988).
5 of 14

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