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UM Leaders Encourages Dammann Trial Jury To Nullify Church Law

From: "umcornet" <umcornet@y...>
Date: Mon Mar 15, 2004 6:38 pm
Subject: A Soulforce Viewpoint on the Karen Dammann Trial

Monday, March 15, 2004

A Soulforce Viewpoint on the Karen Dammann Trial by Steven E. Webster, Co-chair, the United Methodist Team of Soulforce

We, of Soulforce, acknowledge that there are those who advocate a "jury nullification strategy" in the Karen Dammann Trial and who object to Soulforce's plan to use civil disobedience to resist the convening of this trial. Jury nullification (sometimes known as "jury nullification of the law") occurs when a jury, believing a law to be unjust, votes to acquit even though they know the law and the facts indicate a defendant's guilt. In United Methodist (UM) circles an informative paper has been published on the web (URL: http://www.mfsacal-pac.net/Nullification.html  ) describing the significant history of jury nullification in the Anglo-American legal tradition, including, for example, the courageous refusal of a 17th century British jury to convict Quakers under laws restricting religious freedom.

In the case of Karen Dammann, proponents of the nullification strategy hope that the jury (known as the "trial court") will vote to acquit even though what the UM Judicial Council ("Supreme Court") calls "the agreed facts" (in their decision no. 980) indicate she is "guilty" of being "a self-avowed practicing homosexual." One major hurdle the jury nullification strategy will need to overcome is the trial court selection process. A trial pool of 35 ordained clergy has been nominated by the District Superintendents. From this pool 13 members of the trial court must be selected. In the selection process both the counsel for the Church (the "prosecutor" in UM church trials) and the counsel for the respondent (the "defender") have an unlimited number of "challenges for cause." This allows the counsel for the Church to prevent any member of the trial pool from being seated as a member of the trial court unless he/she states a willingness to convict if the law and the facts justify conviction. This seems to be exactly what the UM Judicial Council had in mind when it wrote in decision 980 of the Dammann case that "persons who state that they cannot in good conscience uphold the Discipline are ineligible to serve on a trial jury."

Although the process begins with a trial pool of 35, the Discipline provides that additional persons may be nominated to the pool if the initial pool is exhausted due to challenges (para 2709.3). In the event that the number of clergy qualified to serve on the trial pool in an Annual Conference is exhausted in this selection process, the Discipline provides that qualified clergy from other Annual Conferences can be nominated to the trial pool (para. 2713.3a). Even if 13 jurors who are willing to convict cannot be found in the Pacific Northwest Annual Conference, it is likely that they can be found from other Annual Conferences.

We recognize that some fear that Soulforce's presence will alienate jurors who might otherwise vote to nullify. We believe we have designed our direct action in Bothell not to offend persons who would be disposed to support Karen Dammann and lesbian, gay, bisexual and transgender (LGBT) persons generally. We do not believe the failure of the trial court to nullify church law in Karen Dammann's case can be blamed on any action by Soulforce. We must face the fact that the trial system in The United Methodist Church is designed to "defrock" clergy who are proved by "clear and convincing evidence" to be "self-avowed practicing homosexuals." If the trial system operates as designed, that cannot be blamed on any Soulforce action.

If jury nullification does occur in Karen Dammann's case, advocates of the nullification strategy believe it will lead to a "constitutional crisis" that will result in progress for LGBT United Methodists. It is correct that the U.M. Constitution grants Annual Conferences the right to "vote on all matters relating to the character and conference relations of its clergy members, and the ordination of clergy and such other rights as have not been delegated to the General Conference under the Constitution." (Discipline, para. 31) However, General Conference has the constitutional authority to set the clergy standards which must be applied by the Annual Conferences and to establish the denomination's judicial system and procedures which can "defrock" clergy (Discipline, para. 15). Further, clergy members of the Annual Conference have the responsibility to uphold the Discipline, even if they disagree with some of its laws. General Conference and the Judicial Council have the power to resolve any "constitutional crisis" in this case by further tightening the rules.

One example of this occurred in the case of the "Sacramento 68." Following the convictions in church trials of Revs. Jimmy Creech and Greg Dell for blessing same-gender unions, sixty-eight clergy members of the California-Nevada Annual Conference defied the same law and blessed the union of two United Methodist women in 1999. Charges were considered by that Conference's Committee on Investigation which held an important and moving public hearing. The Committee on Investigation refused to forward the charges to trial. In effect, they nullified the unjust church law in this case even before it could go to a Church trial court. This case provoked changes to the Book of Discipline by the 2000 General Conference which revised the 1996 Discipline para. 2621.1J which became para. 2715.10 in the 2000 Discipline. When it appeared that a Committee on Investigation had also nullified church law in Karen Dammann's case, the newly revised para. 2715.10 allowed appeals to go all the way up to the Judicial Council (the UM "Supreme Court") which ordered the Committee on Investigation to send Karen's case to the trial now about to occur in Bothell, Washington.

Despite the odds, it is not impossible that a jury might vote to acquit Karen Dammann in this instance under current rules. However, such an instance of "jury nullification" provides no legal precedent that would prevent the trial of any other LGBT clergy person either in the Pacific Northwest or anywhere else. No clergy person charged in the future with being a "self-avowed practicing homosexual" could be assured that a trial court will nullify in their case. In fact, it is likely that rules and procedures may be tightened to make such nullification an even more remote possibility.

While Karen may not be tried again for the current charge (because the rules do not allow "double jeopardy"), she is not immune if it is alleged that she has committed the same offense a second time. For example, if Karen should tell a future bishop that she is a self- avowed practicing homosexual, that Bishop may also be obligated to bring new charges. As long as the law continues on the books, and as long as Karen continues to be a "self-avowed practicing homosexual" she is vulnerable to new charges.

Remember, Rev. Jimmy Creech was acquitted in his first trial. Between his first trial and second trial the Judicial Council tightened the rules by declaring one of our Social Principles to be, in fact, a church law. Jimmy could not be re-tried for the blessing for which he was originally charged (that would have violated the "double jeopardy" principle). But when Jimmy blessed a second same-gender couple, he faced a second trial and was convicted.

If jury nullification occurs in Karen's case, General Conference would likely follow what has been a 30 year pattern of tightening the rules to eliminate any possible "exceptions" to their abiding intention to prevent any "self-avowed practicing homosexual" from serving in the ordained ministry. Therefore, any so- called "constitutional crisis" is likely to be resolved by General Conference and the Judicial Council by further fine tuning of the system of LGBT exclusion.

While Soulforce continues to respect those who hold a different view, we have come to the conclusion that the United Methodist system of LGBT exclusion can no longer be "tinkered with" in the hopes that the injustice it inflicts on all LGBT people can be ameliorated. Using the methods of Gandhi and King we refuse to allow the wheels of this system to turn without resistance. For us this means resisting the Church's intention to convene a trial which is part of the machinery of LGBT exclusion. For the same reason we will continue to resist the operations of the machinery of the United Methodist General Conference which drives the whole UM system of LGBT exclusion.

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