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Your Amazing Super Power
Jury Nullification |
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| By Pat Hartman |
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| Have you ever wished to have the astonishing abilities of a superhero? I know I have. And we do. The under-appreciated right of jury nullification is the ordinary citizen’s most potent tool for maintaining truth, justice, and the American Way. The trouble is, prosecutors don’t want us to know about it, and judges don’t have to tell us about it. |
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This happened in my town:
Over a hundred people had been called in to be considered for jury duty in several courts. After they were briefed by a county judge, one woman stood to ask a question. She read out to the assembled citizens three U.S. Supreme Court decisions that upheld the concept of jury veto, and then, with an innocent expression, asked the judge, “Is that true?”
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| The judge replied, “Well, yes, but that does not mean it is a good idea.” He left the room, and shortly afterward an official bustled in to announce, “Good news – all of today’s cases have either been settled out of court or delayed. You can all go home.” |
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Perhaps a series of unexpected events did occur, so the potential jurors weren’t needed after all. Or maybe – just maybe - they were gotten rid of because they now possessed dangerous knowledge. Thanks to the woman who stood up, they now knew about the centuries-old doctrine from English common law.
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| As a juror, you have the right to judge not only the facts but the law itself. If a juror thinks the law is unfair, even though the facts seem to lead to no other end than a conviction, the juror doesn’t vote to convict. Any member of any jury can negate or nullify any law and vote not guilty, even when the judge instructs them to follow only the written law. Jury members always have the power to vote according to conscience, fairness, and justice, regardless of the law and the facts of the case. |
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| Jury nullification is a solid American tradition. William Penn was arrested in 1670 for preaching a Quaker sermon. Despite being held without food, water or toilet facilities, and in some cases even imprisoned for weeks, the jurors refused to convict him. John Peter Zenger was arrested in New York for seditious libel: he published criticism of the Royal Governor’s corrupt ways. Although the proof of his “guilt” was indisputable, the jury refused to carry out such a lousy law. |
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| It was the refusal of Massachusetts jurors to convict their neighbors in the notorious Salem Witch Trials that finally led to the repeal of anti-witchcraft laws. Later, the fugitive slave laws were rendered useless and eventually repealed after several juries acquitted the abolitionists accused of helping slaves to escape. |
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In Massachusetts, in the mid-1800s, abortion was illegal. Yet during a ten-year span, 32 accused abortionists were acquitted and none were convicted. And the juries were all male! Battered women have been acquitted even when they didn’t strictly follow the rules of self-defense. The labor movement gained strength because juries refused to convict strikers. During the last four years of alcohol prohibition, thousands of trials ended in acquittals or hung juries, due to jurors exercising this right. The inability of prosecutors to get any convictions was a major factor in the repeal of Prohibition. In the 1990s, Kentucky jurors refused to convict a large proportion of the marijuana cultivators whose trials they were assembled for.
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| The Fully Informed Jury Association believes itself to be the most broad-based non-profit educational outfit going. No matter what cause you advocate, it can only benefit from the preservation of this valuable right. When a trial is coming up that involves a significant matter of conscience, FIJA’s Jury Project team arrives to spread public awareness among the prospective jurors of that city. |
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| But why do they need to make such a special effort? How did we lose our knowledge of the right of jury veto? When America was young, it was routine for judges to tell juries that they could judge the law. Like many of our liberties, this one became eroded. The Supreme Court decided that even though the judge can’t overrule the jury when it acquits, she doesn’t have to tell them about jury veto in the first place. A 1964 case concerning a Vietnam war protest caused the Supreme Court to rule that jurors would no longer be informed of their rights by any officer of the court – including the defense attorney. Now some states have adopted language like, “If you are selected to sit as a juror in this case, will you be able and willing to render a verdict solely on the evidence presented at trial, and the law as I give it to you in my instructions, disregarding any other ideas, notions or beliefs about the law you may have encountered?” Don’t fall for it. |
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| Many judges still refuse to take part in the disgraceful conspiracy of silence, like one in the D. C. District Court of Appeals who ruled in 1972 that the jury has an “unreviewable and irreversible power to acquit in disregard of the instruction on the law given by the trial judge.” Some judges will even allow a defense attorney to move that the jurors be instructed about nullification. |
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| Just as slavery and segregation tainted the idea of states’ rights in the minds of many Americans, the concept of jury nullification was given a black eye (so to speak) by the O.J. Simpson fiasco. Many people believe that he was let off just because of his race. However, it’s more likely that the Simpson acquittal was not racially based. What happened there was, the jurors let the system know how they felt about perjury, evidence-planting, and any other means that the police tend to use, just in case the evidence at hand seems thin, to frame a defendant. Jurors don’t appreciate it when prosecutors call as witnesses any law enforcement professionals who make up “facts.” A jury has the duty to not let them get away with it. Alan Dershowitz says he asked six hundred criminologists – mostly white, with academic degrees up the wazoo – who said that even if they believed a defendant was guilty, they wouldn’t convict, if it also looked like the police framed him. |
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| I forget what led to the topic, but a guy I had thought until that moment had a good head on his shoulders, once made a crack about someone who “isn’t smart enough to get out of jury duty.” He meant this person was not the sharpest knife on the Christmas tree, nor the brightest bulb in the drawer. But I think he’s the dumb one. First of all, it doesn’t take any intelligence to get out of jury duty. All you gotta do is tell the officials you’re aware of jury nullification, and you’re outta there. This will also procure the release of every other prospective juror who heard you say it. |
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| The very fact that they don’t want knowledgeable citizens on the panel is a gigantic tipoff to the secret: a juror is a very important thing to be, and every time we try to escape jury duty, we play into the hands of the oppressors. It’s a shame that the exigencies of life make it so people hate to be called. But look at it this way: as civic responsibilities go, one that doesn’t require taking up arms is a swell deal. Even if this patriotic task eats up a couple of weeks, still it’s hella better than being sent for months to some sewer of a jungle or oven of a desert. |
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| Being a juror is about a thousand times more meaningful than voting in elections. The right of jury nullification, designed to prevent Americans from being ground into hamburger by the jaws of justice, is the most significant of all the checks and balances which keep the government from taking over. Jurors set the standards for the community and pass judgment on the justice system. Best of all, you don’t have to be elected, appointed or hired in order to use this powerful, non-violent secret weapon against tyranny. All you have to be is called for your turn on the jury. |
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If more people knew that as a jury member you are supposed to vote according to your conscience, the world of jurisprudence would be a better place. Jury nullification is a way of unofficially making law, and that’s pretty awesome. A jury’s decision affects only the case being tried, and doesn’t technically set precedents for future cases. But when it happen enough times, when juries continue to acquit defendants in similar cases, eventually the legislators must take notice.
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| As jurors, with the ultimate authority to judge the law, we can be superheroes, equipped to curb the misuse of police power, protect the innocent, and preserve liberty. When called for jury duty, embrace the opportunity. It’s a chance to save your country, your Constitution, your rights, your dignity, and your fellow humans of America – all without having to pick up a weapon, get your ass shot off, or even leave the old home town. |
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| A great and very complete page of “Quotations and Comments on Fully Informed Juries,” courtesy of the Levellers. |
| www.levellers.org |
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