The government rules us through law, making whatever laws they
require to serve their purposes and then forcing us to obey them.
But the founders of America foresaw just such a situation and
provided an effective defense against it. That defense is the
trial by an independent jury, a jury that is free to find the law
itself guilty of transgression. This is the doctrine of 'jury
nullification'. No matter the wishes, instructions or threats of
the judge, if a juror believes that the law is unjust, he or she
may vote to acquit a defendant regardless of the evidence against
them.
The system of checks and balances built into the Constitution
was a good attempt to curb the inevitable aggression of
government. But the wisest of the founders clearly saw that
someday there would be three branches of government neither
checking nor balancing each other but instead carving our country
up into political fiefs which each branch would rule over
absolutely and for their own political advantage. To protect us
against this tyranny, the people were allowed to keep the ultimate
power of the law in their own hands. The Legislature makes the
laws with which to rule us, the Executive branch executes them and
the Judicial branch interprets and enforces them. But a jury can
stop any of these transgressors in their tracks by simply refusing
to subject a citizen to a bad law, and their actions are final and
not subject to official sanction. No matter what a judge or a
prosecutor may demand the fact remains that the ultimate power in
the courts resides in the jury, not the judges or the lawyers.
John Jay, the first Chief Justice of The Supreme Court, wrote
in 1794 "The jury has the right to judge both the law as well
as the fact in controversy.
In U.S. v. Dougherty in the D.C. Circuit Court of Appeals,
1972, the court held that a jury has an "unreviewable and
irreversible power... to acquit in disregard of the instructions
on the law given by the trial judge…" and Thomas Jefferson
stated "I consider trial by jury as the only anchor yet
devised by man, by which a government can be held to the
principles of its Constitution."
Of course, holding the government to constitutional principles
is not a popular subject in Washington. During the early decades
of the United States judges and lawyers routinely reminded jurors
of their right to judge both the facts and the law. But gradually
the interests of the bureaucracy began to supersede the power of
the citizens. In 1895 a divided Supreme Court ruled that the
failure of a judge to remind jurors of the extent of their powers
was not grounds for a mistrial or an appeal. From that time on the
veto powers of the jury have been increasingly kept hidden from
the public. In today's legal climate if a defense attorney tries
to apprise the jury of their veto power said attorney will likely
be charged by the presiding judge with contempt of court. That is
quite ironic, if you think about it, since any court so hostile to
the possibility of justice being done is worthy of nothing but
contempt.
When I was a lad in grade school, we learned of the trial of
John Peter Zenger whose acquittal in 1735 on sedition charges was
an early example of jury nullification. Zenger, a printer, was
accused of libeling the Royal Governor of New York Colony by
printing accounts of the Governor's corrupt actions and those of
his cohorts. The judge informed the jurors that under the law the
fact that the accusations were true was not a valid defense and he
virtually ordered them to convict. It took the jury a little more
than 10 minutes to acquit Zenger and thereby lay the foundation
for a free press and freedom of speech in America. Even though the
colonies were still ruled by a king at that time, the institution
of jury nullification was already so entrenched in English common
law that their verdict was considered "unreviewable and
irreversible." I believe it was 6th grade when we studied
that. Of course, back then they wanted us to be educated.
Under the Constitution we are entitled to a trial by a jury of
our peers; that is, a jury comprising people like ourselves, a
random group of twelve ordinary citizens. The process of 'voir
dire', the preliminary questioning of potential jurors or
witnesses was originally designed to assure that all participants
were competent individuals. Today the process, as it is used in
jury selection, is primarily aimed at stacking the jury. The legal
system has degenerated to the point where now, if a potential
juror indicates that they are aware of their rights, the
prosecutor or the judge will probably not allow them to serve.
As the founding fathers feared, the system seeks perpetuation
of its own power, not justice. Some of those who object to the
doctrine of jury nullification often point out that, in the past,
all white southern juries would fail to convict fellow racists for
even the most blatant acts of violence against blacks or other
minorities. They fail to realize that it was not the jury's veto
power that promoted these travesties; it was the stacking of the
jury by the lawyers and the judges. In a state such as Mississippi
with almost one third of the population being black, any jury that
did not contain three or four black members would obviously be
stacked. Picking and choosing jurors to get the kind of verdict
the government wants is an obstruction of true justice. If a
private citizen tried to exert such influence they would be
charged with the serious felony of jury tampering. The fact that
judges and lawyers can get away with it because it is customary
for them to do so does not make it any less of a crime. By no
longer advising jurors of the true extent of their duties, by
denying to citizens the right to serve on a jury because they
understand their responsibilities too clearly, the courts are
engaging in behavior similar to that of organized crime.
The premise that a pack of lawyers and politically appointed
judges are somehow morally or intellectually superior to a like
number of ordinary citizens is absurd and historically
indefensible. It was jury nullification, not the prevailing legal
system, that played a major role in undermining the Fugitive Slave
Act, in finally ending the Salem witch trials and in hastening the
demise of the shameful scam of Prohibition. It could go a very
long way to correcting much of what is wrong in America today, but
people must be made aware.
Recently, the well known marijuana guru Ed Rosenthal was convicted
of "manufacturing" a significant amount of the stuff in
San Francisco. He was not violating any state or local law and was
growing the herb for distribution through California's medical
marijuana program. Since the federal government no longer honors
the Tenth Amendment, among others, they arrested him under federal
law and he was tried in a federal court presided over by Judge
Charles Breyer. Breyer refused to let Mr. Rosenthal or his
attorneys tell the jury why the plants were being grown and of
course the jury was not informed that they had the power to veto a
bad law. In statements to Fox news, juror Marney Craig said
"I feel like I made the biggest mistake in my life. We
convicted a man who is not a criminal." Charles Sackett,
foreman of the jury, stated "Some of us jurors are upset
about the way the trial was conducted. ... I would have liked to
have been given the opportunity to decide with all the
evidence."
Sackett went on to say he hoped the conviction would be
overturned on appeal. Other jurors agreed and said they planned to
contact Mr. Rosenthal to apologize.
But none of that needed to happen. One honorable judge or one
informed juror and justice would have been done; in a federal
court no less. Now more than ever it is vitally important that all
citizens are aware of their powers and responsibilities under the
jury system. The Fully Informed Jury Association has an excellent
website at www.fija.org, or call
1-800-TELL-JURY. E-mail or otherwise send this column to anyone
who might appreciate it, especially if they may do jury duty.
My column next week will cover some other aspects of jury
nullification and touch on some of the problems that citizens have
encountered in exercising this most important right.
But don't worry; it all has a happy ending.
Lee Robinson lives on a farm in Tennessee where he raises
exotic poultry. He enjoys target shooting and making life
difficult for tyrants.
