-Caveat Lector-
Summit Free Press
P.O. Box 8386
Breckenridge, CO 80424
Email: [EMAIL PROTECTED]
November 1998
Jury Nullification is a constitutional right, attorney argues
I write in response to Judge Jeffrey Ryan recently lengthy attack
on the Fully Informed Jury Association ("FIJA") and the ideas it
promotes, which he described as "jury nullification."
The judge began by smearing FIJA with an attempt to prove "guilt by
association." After that, he attacked what FIJA promotes, jury
independence or nullification.
FIJA may be too "radical" for the judge, but FIJA's literature
promoting jury rights, they quote such historical supporters as John
Adams (2d President of the United States), Thomas Jefferson (author of
the Declaration of Independence and 3rd President), and John Jay (1st
Chief Justice of the United States Supreme Court). FIJA also recounts
famous trials where juries stood up for the rights of the accused, in
defiance of tyrannical and oppressive kings, judges and prosecutors,
trials such as that of William Penn in London in 1670, of John Peter
Zenger in New York in 1735, and trials under the Fugitive Slave Act in
the 1850's. These trials helped establish freedom of religion and
assembly, freedom of the press, and the end of slavery. English juries
refusing to convict when conviction led to death helped end the "bloody
codes" of England (under which over 200 offenses were punished by
death). That's a pretty good pedigree for "jury rights," or "jury
nullification." Juries also helped end Prohibition. What part of that
history does the judge find objectionable?
FIJA literature recalls that the Anglo-American legal system has
had written guarantees of the right to jury trial since it was first
enshrined in Magna Charta, in 1215, when the barons of England forced
King John to recognize the right. King John was forced to restore to
juries the responsibilty of determining what was a crime, meaning that
juries judged the legitimacy of the King's rules, or proclamations, as
well as whether a person had violated those rules.
Our nation's founders complained bitterly that the British were
depriving Americans of the benefits of trial by jury, and included that
complaint as one of the justifications for independence listed in the
Declaration of Independence. Why did Britain fear American juries?
The reason was that Americans through juries refused to enforce
many British laws - such as the Stamp Acts, tea taxes, anti-smuggling
laws, etc. American juries also convicted British tax collectors and
inspectors of trespassing against Americans, in defiance of British law
which provided immunity for government officials. Britain was denying
Americans trial by jury because American juries were expressing
disagreement with invalid or unjust British laws. American juries were
abiding by their oaths to "well and truly try the case, and a true
deliverance make."
When our founders demanded the right to a jury trial in all
criminal prosecutions, and when they made that part of our Bill of
Rights, they were demanding a jury with the power to do justice, even if
that conflicted with the government's view of the law.
The historical role of the jury extends back more than 1000 years.
We are not taught that in our schools, and you won't read much of that
history in court opinions, either. Judges have concluded that if this
jury power ever existed, it is no longer necessary in our country, for
we no longer need fear tyrannical judges. Right.
Our system of government is a republic, based on the consent of the
people, not just the majority. We protect individuals and minorities
with constitutions and bills of rights, and with the right to trial by
jury. No one can be deprived of their life or liberty without a
unanimous verdict (except in Oregon and Louisiana) from a jury of their
peers (except for the 90% or more of all criminal defendants whose cases
are decided pre-trial, by plea bargains and such, because the risks of
trials to uninformed juries are often too great).
Over the last two centuries, our judges, lawyers, and legislators
have fallen in love with the myth that the government (rather than the
people) determines our laws and our rights. But that's a myth. The
majority may not oppress the minority. Many of our criminal statutes
are not universally accepted and such laws should not be used to deprive
people of their liberty. If cross-sectional juries were drawn from our
communities at random (no jury stacking through the jury selection
process), and if our juries were fully informed about what was going on
in the courtroom, and what harsh penalties might be imposed on
defendants if convicted, juries would be acquitting many more
defendants, sending a message to our so-called "representatives," that
many of the laws they pass are unacceptable and should be repealed.
Our constitution guarantees "trial by jury," not trial by judges.
Anyone who has studied the history of trial by jury, can't escape the
conclusion that jury rights were demanded, fought for, and won, by
persons who insisted that juries would determine whether the offense
charged was even a crime, as well as whether the person charged did the
deed and should be punished for it. I've got an essay from 1680 written
by England's Solicitor General which says precisely that.
Judge Ryan quoted a court decision which says that "jury
nullification" (the jury's prerogative to bring back a verdict of not
guilty, for any reason they choose, even if in defiance of the law or
the judge's instructions on the law) is a "power," but not a "right."
Courts have said that, but they are wrong. A lawful power which the
government cannot review or interfere with - such as jury nullification
- is, indeed, a right, it is an "inalienable right." It predates our
constitution and government. Our government does not recognize an
"inalienable right" when it sees one.
Judge Ryan believes that jury power will undermine our system of
government, leading to anarchy and injustice. He suggests that in the
50s and 60s, bigoted southern juries acquitted murderers. What he
overlooks is the far moe prevalent problem that the police wouldn't
arrest whites who attacked or killed blacks, prosecutors wouldn't bring
charges, and judges would throw out the cases.
The likelihood of a virtuous government and a corrupt jury is
inconceivable and is not provided for in our constitution. There can be
no justice in a community so corrupt that juries acquit bigoted killers.
Real history shows that Jim Crow laws depriving blacks of their
rights were passed by legislatures and enforced by our courts. Blacks
were forbidden by law to own firearms so that they could not defend
themselves and blacks were also kept off juries prevented from voting.
They were prevented by the government from working in many trades and
professions. Our Supreme Court upheld laws treating blacks as inferior,
as long as so-called "separate but equal facilities were provided.
Those government policies made blacks second-class citizens for a
century.
Pre-civil war northern juries, on the other hand, protected the
underground railroad, by which slaves escaped the South, by refusing to
convict those who helped runaway slaves. Some judges responded to these
"lawless juries" by "jury stacking," conducting extensive jury
interviews and disqualifying from jury service any juror who refused to
enforce the Fugitive Slave Act.
Jury stacking is practiced today in Colorado where juries are
routinely interrogated to determine whether any prospective juror
disagrees with the laws which will apply in the case, or whether any
prospective juror is suspicious of the government. Jurors who confess
to either are then disqualified, leaving defendants with juries uniquely
qualified to rubber-stamp the government's case for conviction. If I
were a defendant, I would want to disqualify any juror who was not
suspicious of the government.
Judges refuse to instruct juries about their lawful power to acquit
if the jury determines, for any reason, that justice requires an
acquittal. Attorneys are forbidden from mentioning that power. Some
judges go so far as to tell juries that they "must" [rather than
"should"] follow the law as given to them by the judge. All judges and
attorneys know that is false.
Jurors cannot be punished for their verdicts. Jurors can (morally,
they must) question the law, so long as they do so in their own minds -
some jurors have been removed from deliberations for vociferously
opposing a law or instruction. (One juror has been prosecuted for
criticizing the law, in the jury room, on the pretext that she should
have disclosed her opinions during jury selection, even though she was
not asked her opinions. That case is still pending on appeal.)
The right to trial by jury means much less now than it did in 1776.
Fully informed juries can restore the right to its historical
importance.
Paul Grant
<[EMAIL PROTECTED]>
Paul Grant is an attorney practicing in Parker, Colorado and he
specializes in constitutional law, criminal defense, and civil
litigation. He represents the Gilpin County juror, Laura Kriho, who was
prosecuted for not disclosing her views on jury rights and the drug
laws. (Editor's note: for more on that story, please see "From Juror
to Defendant, the controversial prosecution of Colorado hempster Laura
Kriho," Summit Free Press, September 1998.)
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