Some Thoughts on Jury Nullification

[HairyEyeball]

It has been brought to my attention that my reference to ‘jury nullification’ may have elicited more than a few blank stares, as my recent effrontery to mention it in court evoked more than a modicum of hostility from the sitting judge and looks of panic from both attorneys. Given the general ignorance of the populace regarding the law in general and its duties and obligations when empanelled as jurors, a brief explanation of the term may be in order. Feel free to discuss or question (hence the phrasing that follows), as all of us may be called to serve on a jury at some time (or perhaps many times) in our lives.

Also bear in mind that while courts-martial may operate under rules different than those of civilian courts, both are subservient to the same Constitution, and your duty as a citizen overrides your obligation as a service member.

'Jury nullification' occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. Effectively, the jury 'nullifies' - at least in that one specific instance - a law that it believes is illegal, immoral or wrongly applied to the defendant.

For a better understanding, consider the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. There was no question that Zenger did, indeed, publish the alleged libels, but the jury was instructed that any truth in the accusations was irrelevant. Defying both the judge and the law as posited, the jury returned a verdict of ‘not guilty’ – nullifying an ‘unjust’ law.

Further examples are the ‘not guilty’ verdicts returned for prosecutions under the Alien and Sedition Act in the early 1800s, the Fugitive Slave Laws of the mid-1800s, and the Volstead Act of the 1930s, all 'valid' in that they were Constitutionally enacted, if not 'Constitutional': If, in the opinion of the jury – who deliberates in secret, a point crucial to the concept of ‘justice’ – the law itself is ‘wrong’, the fact that the defendant ‘violated’ it is secondary: If a law is legally or morally indefensible, then any prosecution for violating it is reprehensible.

In theory, when you sit on a jury, you vote on the verdict according to your own conscience. Given that, most judges tell you that you may consider ‘only the facts’ and that you are not to let your conscience, opinion of the law, or any alleged 'motives' ascribed to the defendant affect your decision. How is one to be ‘fair and impartial’ under those conditions? – and is the ‘legality’ of the law itself not one of those ‘facts’?

In a trial by jury, the judge ‘referees’ the trial and provide supposedly neutral legal advice to the jury, beginning with a supposedly full and truthful explanation of a juror's rights and responsibilities; to act as the ‘trier of law’ while the jury is the ‘trier of fact’. Unfortunately, judges rarely 'fully inform' jurors of their rights, especially their power to judge the law itself and to vote on the verdict according to conscience – any potential juror admitting to questioning the law itself is summarily dismissed. Effectively, the judge is aiding and abetting the prosecution, clearly and obviously engaging in judicial misconduct.

If you have doubts about the fairness of a law, don’t you have the right and obligation to find someone innocent even though they have actually broken the law?

"It is not only his right but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
- John Adams

[SlightlyCatholic]

In case anyone is interested, an account of the Zenger case can be found here:

http://www.law.umkc.edu/faculty/proj...gerrecord.html

I've read it myself and the language used is quite engaging. Hairy, thanks for the explanation...I had never heard of the term "jury nullification" until now.

[03_SHOOTER]

Thank you Hairy.

I took note of your Adams quote, and wished to add another to reinforce the fact that the sentiment was not only not Adams alone, but was "common knowledge" at the time of the founding.

In the case of State of Georgia v Brailsford [3 U.S. 1] 1794, Chief Justice John Jay, First Chief Justice of the Supreme Court, stated the following in his decision:

Originally Posted by Chief Justice John Jay

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

At the same time, it would behoove one to remember a legal "trick" (of the perpetually lazy, and criminally negligent) of invoking "Stare Decisis", in which the lawyers, and judges will "defer" to the opinions rendered, or statements made, in previous cases as justification for denying the most basic Rights of We The People. As evidence of this, I refer you to the case of Pittsburg v Smith, 2001, in which the Judge refused to follow the Constitution, instead abrogating his responsibility to honor his Oath, and instead bow to the highly dubious decisions of higher courts!

Originally Posted by Judge David B. Flinn, Department 6, THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF CONTRA COSTA

It is my interpretation of the law that the meaning of the constitution and its role in our society and the stare decisis requirement that the courts follow, higher courts has been resolved in the other direction. That if the United States Constitution is interpreted as to whether it's violated or not violated under certain fact situations by a court, superiors of this court, I am bound by that finding. And also under my oath because I also took the oath to uphold, quote, the law and the law is as designated by those courts...

...Counsel, you've made a record on this. I disagree. I believe the appellate courts bind me superior to my interpretation of the constitution. Even if I might even agree with you that that would be my interpretation of the constitution but I think I'm bound by their decisions,

If that's not bad enough, the 9th Circus has rendered the opinion concerning Stare Decisis that:

Originally Posted by 9th Circus

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

Apparently, the 9th Circus isn't concerned "why" a decision was rendered, or even "how", completely disregarding the very real probability that the Constitutional Rights of We The People were just trampled all over by an overzealous attorney or a judge legislating from the bench, the only thing that matters is that someone decided something, regardless of the true validity of their decision. This has got to be one of the most egregious example of "Circulus in demonstrando", or "circular logic" that has ever been foisted upon the American people in the history of our nation!

It would appear that the "judge" in Pittsburg v Smith was more concerned about not being overturned on appeal by the liberal Californication courts than abiding by the Constitution, and if ever there was a case for Jury Nullification, this was it.

[devin0116]

So basically if your on the jury and you feel that a law is wrong for whatever reason, then you can give a verdict of not guilty even though the defendant broke the law in question?

[03_SHOOTER]

Originally Posted by devin0116

So basically if your on the jury and you feel that a law is wrong for whatever reason, then you can give a verdict of not guilty even though the defendant broke the law in question?

That about covers it. If a 'law' is in conflict with the Constitution, then by definition it's not a 'law' at all, and you have no duty to vote to convict them. Where you have to be very careful though is to be quite sure that you know what you're talking about, and that's the rub in all of this. You have got to not only know what the Constitution says, but also why it says what it says, and that's something that takes years of ardent study to learn.

A primary example of this is the oft proffered canard of the left about the mythical separation of church and state. When Thomas Jefferson wrote those words in his letter to the Danbury Baptist Association, what he was telling them is that there was no need for concern that their religious freedoms would ever be infringed upon. Little did he know, or anticipate how his very words would be twisted and contorted by the Godless Heathens to insinuate other than his true meaning. It was never Jefferson's meaning that the government would ever infringe on religious freedom, but only that they would both honor and respect the very first 5 words of the First Amendment as penned by James Madison; "Congress shall make no law...", and allow to remain unencumbered the Right of every American to practice their religion when and where they saw fit. The fact that today we have people like Newdow running hither and yon, professing that Jefferson "intended" (regardless of the volumes contradicting his spurious claims) that there should never be any acknowledgment of God in any context in any governmental institution would have him spinning in his grave like a dynamo!

"[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights."
-- Thomas Jefferson, Notes on Virginia [1782]

[HairyEyeball]

devin0116 posited:

So basically if your(sic) on the jury and you feel that a law is wrong for whatever reason...

Not really. As 03 pointed out, you'd best be damned sure certain that you're familiar enough with the letter and intent of the Constitution - and if applicable, your State Constitution - before committing yourself to that course. And as he inexplicably neglected to mention, you also had better be thinking, not 'feeling'.

[03_SHOOTER]

Originally Posted by HairyEyeball

devin0116 posited:



Not really. As 03 pointed out, you'd best be damned sure certain that you're familiar enough with the letter and intent of the Constitution - and if applicable, your State Constitution - before committing yourself to that course. And as he inexplicably neglected to mention, you also had better be thinking, not 'feeling'.

Mea Culpa, all I can offer by way of explaination is that "feeling" isn't one of my strong suits, so I genearlly rely on "thought", and expect the same from others.

[RedBeard]

I recently had a discussion of this very topic on a gun forum. I also received many blank stares. Even after the discussion I still had people insisting that you could not find the law guilty.

If the jury was not important then why did the writers of the Constitution mention the jury by name in three of the first ten amendments?