On the rights of juries

Sam Smith
1990

William Penn may have thought he had settled the matter. Arrested in 1670 for preaching Quakerism, Penn was brought to trial. Despite Penn’s admitting the charge, four of the 12 jurors voted to acquit. The judge sent the four to jail “without meat, drink, fire and tobacco” for failing to find Penn guilty. On appeal, however, the jurors’ action was upheld and the right of juries to judge both the law and the facts — to nullify the law if it chose — became part of British constitutional law.

It ultimately became part of American constitutional law as well, but you’d never know it listening to jury instructions today almost anywhere in the country. With only a few exceptions, juries are explicitly or implicitly told to worry only about the facts and let the judge decide the law. The right of jury nullification has become one of the legal system’s best kept secrets.

Now a remarkable coalition has sprung up to challenge this secrecy as undemocratic, unconstitutional and dangerous. Though organized by libertarian activists, the Fully Informed Jury Amendment movement includes liberals and conservatives, Greens, drug decriminalization advocates, gun owner groups, peace activists, both sides of the abortion controversy, helmet and seatbelt activists, alternative medicine practitioners, taxpayer rights groups, environmentalists, criminal trial lawyers and law professors.

Organized by Larry Dodge and Don Doig, both of Helmville, Montana (population: 26; elevation 4300′), FIJA seeks to require that juries be informed of their nullification rights. Informed jury amendments have been filed as an initiative in seven states and legislation has been introduced in the Alaska state legislature.

Merely raising the issue of nullification can make prosecutors nervous, for it takes only one person aware of the right in order to hang a jury. In Washington, DC, where the concept was discussed in connection with the Marion Barry trial, a local television station reported that the US Attorney was worried that a jury might nullify the law in that case. The joke in DC was that Barry was campaigning, but only for one vote, that of a single juror. The specific charges against Barry revolved around his use of drugs and a growing number of people are coming to accept the argument that drug use or addiction should not be a criminal offense. Further many DC residents were concerned about the prosecution’s heavy-handed pursuit of the mayor. Despite the refusal of courts to inform juries of their right to nullify, American juries have periodically exercised it anyway. In recent years, some peace protesters have been acquitted despite strong evidence that they violated the law. In the 19th century northern juries would refuse to convict under the fugitive slave laws. And in 1735 journalist Peter Zenger, accused of seditious libel, was acquitted by a jury that ignored the court’s instructions on the law.

Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue “the law — its interpretation and validity — to the jury.” By the latter part of the century, however, judges and state law were increasingly moving against nullification. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on nullification stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had “developed agrarian tendencies of an alarming character.”

Today, the constitutions of only two states — Maryland and Indiana — clearly declare the nullification right, although two others — Georgia and Oregon — refer to it obliquely. The informed jury movement would like all states to require that judges instruct juries on their power to serve, in effect, as the final legislature of the land concerning the law in a particular case.

As the diverse nature of the movement suggests, many groups in this country feel the government has overstepped its power in some way and that there must be protection for the natural rights of American citizens. They are defending not only the right to protest or carry a gun or not wear seatbelts but challenging the right of the government to decide such matters without the mediating effect of a jury’s judgement of fairness in a particular case.

For many liberals and progressives, who tend to be confident of the beneficent nature of government power, such a challenge may be a bit uncomfortable — understandable in a case involving a peace protest, less appreciated if invoked by a member of the National Rifle Association. The libertarians argue that the two are of one cloth. As government intrusion in individual matters has increased, the libertarian view has gained influence, helping to tilt normal left-right divisions on their side. Libertarians, for example, have been key to the growing opposition to the barbaric Reagan-Bush war on drugs, providing some of the best analysis and advocacy available on the issue.

Libertarians are again in the lead on the nullification issue. Many progressives may be uneasy about the thought of a western jury nullifying a case involving a gun control or seatbelt law, but this unease reminds one of little discussed principles that were once considered central to being an American — not the least of which was freedom from some government official telling you how to live your life. As the design of the modern centralized welfare state frays and becomes increasingly authoritarian, reacquaintance with some of our individualistic roots has much to recommend it.

NULLIFYING NULLIFICATION It was nice to see the Washington Post finally giving some attention to jury nullification, even if after four months of research and interviews with more than 100 jurors, judges, defense lawyers and prosecutors, it still couldn’t get the story right. For example reporter Joan Biskupic stated, “Anyone accused of a crime in this country is entitled to a jury trial.” The Constitution may say so but, in fact, this is simply not the case — and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial. Biskupic also wrote: “The American custom is that jurors decide the facts of the case (whether the person did what he is accused of) and leave it to judges to interpret the law. There is no room, in other words, for jurors to say whether they think the law is a good one, though there have been a few celebrated exceptions — notably the 18th-century acquittal of John Peter Zenger of seditious libel and the 19th-century acquittals for prosecution under the fugitive slave law.” This is a rewriting of history, one of the privileges of a reporter who works for a paper free to do so thanks to the rights of jurors upheld in the Zenger case. — TPR 2/99 In fact, it is unlikely that a jury considering a gun control case would excuse the leader of an underground Nazi movement or a gang of bank robbers. It 1is far more likely that it would acquit the respectable rancher who simply believes that gun control represents further destruction of his paradigm of individual liberty. If so, what have we lost?

The history of jury nullification suggests there is little to fear. In those states where the concept is respected to some degree it has had minimal effect on the overall functioning of the law. Nullification has, on the other hand, played a little noted but significant role in the advance of religious and press freedom, the abolition of slavery and the building of a labor movement. Even in the face of hostility by contemporary courts, it has cropped up in political protest trials of the past few decades. And it might have surfaced more frequently absent that hostility. As one of the jurors said following the conviction of the Berrigan brothers in 1980:

We convicted them on three things, and we really didn’t want to convict them on anything. But we had to, because of the way the judge said the only thing that you can use is what you get under the law… I would have loved to hold up a flag to show them we approved of what they were doing. It was very difficult for us to bring in that conviction.

The nullification principle involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny. As Thomas Jefferson put it to Tom Paine in a 1789 letter, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” To get in touch with the fully informed jury movement write: Fully Informed Jury Association, Box 59, Helmville MT 5984, 406-793-5550

“If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” — Chief Justice Harlan F. Stone

“For more than six hundred years– that is, since Magna Carta, in 1215–there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.” –Lysander Spooner, The Right of Juries

If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. — 4th Circuit Court of Appeals, US v Moylan, 1969

Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they can decide only the facts of the case. — Lord Denham, O’Connell v Rex (1884)

The jury has the power to bring in a verdict in the teeth of both the law and the facts. — Justice Holmes, Homing v District of Columbia, 138 (1920)

When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion…Because of the high acquittal rate in prohibition cases in the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic. — Sheflin and Van Dyke, Law and Contemporary Problems, 43, No. 4, 1980

It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the directions of the court.– John Adams

Notes of a nullifier

Sam Smith, 1999 – The October issue was late because your editor was tied up in a six-hour voir dire for a double-robbery case. In the end, I maintained my perfect record of having never sat as a through a full trial. As a Coast Guard officer I was bounced from two courts martial, and I have been dismissed from three jury panels. In the one case in which I was seated, the first two witnesses — both US Park Police officers — identified the defense counsel as the defendant. The trial was over in 20 minutes.

In the most recent case, the judge’s impressive if tedious effort to obtain a fair jury resulted in a long series of bench conferences as citizens told of their connections to crime and law enforcement. For my part I mentioned my USCG background, three house burglaries, one office break-in, one stolen car, being detained at Washington National Airport as a suspected terrorist due to a defective computer-screening machine, and the fact that one of my brothers in-law had been killed in a drug store robbery.

Then I explained to Judge Michael Rankin that, while I doubted it was relevant in this case, I had been advised that I should reveal my long public advocacy of the right of juries to judge both the law and the facts. I noted that this view had upset some judges. Judge Rankin said it didn’t bother him although he didn’t mind debating the issue and had done so with Paul Butler, the black lawyer-scholar who has promoted nullification as a form of protest.

I told the judge that I didn’t think Butler’s arguments were effective because they were based on ethnicity rather than history, which offered a much stronger case. I then began a brief spiel the subject citing Learned Hand, Oliver Wendell Holmes and Thomas Jefferson. While previous US Attorneys had expressed hostility towards my views, this one merely asked whether there were any legal principles that I would uphold. I asked for an example and Judge Rankin said, well, you would support the presumption of innocence wouldn’t you? I said, of course, and then — brazenly rapping my hand on the judge’s bench to punctuate the point — said my concern was that the jury remain our last defense against tyranny, the final legislature deciding the law as it pertained to the case under consideration. To my amazement, Judge Rankin said, well, you’ll get no argument from me. The judge and both attorneys agreed that the case under consideration did not raise such issues and that was the end of the matter. I was later dismissed on a peremptory challenge.

The incident reminded me of another pleasant surprise I recently stumbled upon in a DC courthouse. Twenty citizens, including myself, are suing the President, Senate, House, and federal control board for the lack of DC self-government. The day before our hearing before a special three-judge panel in US District Court (in the very courtroom of Watergate, Iran-Contra, and Monica fame) someone called the US Marshals and warned that our group might be planning some disruption. Sure enough, when I entered the courthouse with co-plaintiff and black minister Graylan Hagler, there seemed an excess number of surly cops standing outside. A US Marshal approached and asked if he could help us. Rev. Hagler asked for directions to the cafeteria which the Marshal gave and then he looked at Hagler, and said, “I’ve been to your church, Reverend. In fact, one of my men is on your board of trustees. Let’s go and bless him.” So the marshal and the reverend left me to find the cafeteria by myself and to recall again something that is easy for activists to forget: not all your friends are out of power.