J.A.I.L. News Journal
_______________________________________________________
Los Angeles, California
April 25, 2002
Jury Nullification
The below is fundamental information in email form that every citizen should have, keep and pass on to others regarding their power as citizens when they are called upon to serve jury duty.
No citizen is obligated to follow, and indeed, quite the contrary, is duty-bound to ignore any judge's imposition of an oath to follow the law only as expounded to them by himself. This is jury tampering pure and simple, and leads to tyranny.
Such judicial oath must be treated precisely as if the judge ordered you to swear to become his permanent personal slave and be at his whimsical beck and call whatever and whenever he wanted, no matter what, and then ordered you to abide by his forced oath upon you. An oath is a contract. Can one force you sign a contract and then order you to honor that contract? No, it is null and void by any theory of law. -Ron Branson
Jury Veto Power
http://www.nowscape.com/fija/_abhope.htm
America's
Founders worried that the government they created might someday grow too
powerful, and begin to pass laws which would violate the rights of the very
people it was intended to protect: ordinary, peaceful, productive folks. But
they kept an "ace in the hole", a trump card they believed citizens could
use to hold this new, experimental government in check. That ace was the
right to a trial by a jury of one's peers.
How can a jury restrain a government? The key is that juries can say "no" to
bad laws and to arbitrary and unjust prosecutions. It's true!
The Founders realized that the temptations of power and corruption would
eventually prove to be too much for any of the three branches of our
government to resist, let alone check and balance the other branches. They
knew that government "of, by and for the people" meant that the people would
every so often have to roll up their sleeves and exert their authority, to
act as the final check and balance on the whole system. Since law is the
main tool by which a government exerts its control, trusting juries of
ordinary citizens to veto the use of bad law was the logical choice.
So they provided for trial by jury--once in the Constitution, and twice more
in the Bill of Rights. In those days, it was part of the definition of the
word "jury" that its members could judge the law as well as the evidence,
and the judge would often remind them of this power. For example, if jurors
found the law to be unjust or misapplied, or that the defendant's rights had
been violated in bringing the him or her to trial, they would acquit for
those reasons, despite good evidence.
In addition to veto power, our common law legal traditions also provide that
if a jury decides to acquit, its decision is final. A verdict of "not
guilty" cannot be overturned, nor can the judge harass the jurors for voting
for acquittal, or punish them for voting their consciences, even after
making them swear to follow the law as given by the judge! And jurors may be
asked, but cannot be obliged, to explain their verdicts.
These principles were subject to contention for centuries in England and the
British Empire as citizen jurors fought to assert their rights against the
power interests of the crown.
In 1670, William Penn was arrested in London for preaching a Quaker sermon,
which broke a law establishing the Church of England as the only legal
church. His jurors, led by Edward Bushell, refused to convict him, despite
being held for days without food, water, tobacco or toilet facilities--and
then fined. The most defiant four of them refused to pay the fine and were
then put in prison for nine weeks.
The highest court of England, upon releasing them, both acknowledged and
established that trial jurors could not be punished for their verdicts.
Recognition of our freedoms of religion, peaceable assembly and speech thus
all trace to the exercise of jury power, wielded by a jury unintimidated by
government judges.
In colonial America, the sedition trial of John Peter Zenger established
another landmark case. Zenger, a publisher, was arrested for printing news
critical of the Royal Governor of New York Colony and his cronies, accusing
them of corruption. His accusations were all true, but the court informed
his jury that under the law, "...truth is no defense".
"Philadelphia lawyer" Andrew Hamilton then told the jurors the story of
William Penn, and argued that as judges of the merits of the law, they
should not in good conscience convict Zenger of violating such a bad law.
The jurors agreed. Zenger was acquitted in about fifteen minutes, and his
case spawned recognition of our right to a free press.
Cases like these therefore were part of the political heritage of the
Founders, which may explain why they so appreciated jury power.
John Adams said it so well in 1771 that the Fully Informed Jury Association
(FIJA) put his words on a coffee mug: "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 direction of
the court."
First U.S. Supreme Court Chief Justice John Jay, writing in Georgia v.
Brailsford, 1794, concluded: "The jury has the right to judge both the
law as well as the fact in controversy".
President Thomas Jefferson in 1789 told Thomas Paine: "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."
And Noah Webster, who wrote his original 1828 dictionary in order to
preserve the integrity of the language of the Constitution, defined "petty
jury" as "...consisting usually of twelve men [who]...attend courts to
decide both the law and the fact in criminal prosecutions".
A detailed historical analysis of jury veto power, also called jury
nullification of law, appeared in the Yale Law Review in 1964. It held that
"The right of the jury to decide questions of law was widely recognized in
the colonies. In 1771, John Adams stated unequivocally that a juror should
ignore a judge's instruction on the law if it violates fundamental
principles: There is much evidence of the general acceptance of this
principle in the period immediately after the Constitution was adopted."
However, during the next century, judges began chipping away at this vital
and fundamental right of free citizens, thereby transferring citizen power
to themselves. The biggest "chip" or usurpation took place in 1895, when in
Sparf and Hansen v. U.S., a bitterly split decision by our Supreme Court
held that failure of the judge to remind the jurors of their powers was not
a basis for mistrial or appeal. That was the green light for trial judges to
go mum on the topic, and they did.
That is why very few lawyers or law professors, only some judges, and
practically no school teachers know about jury veto power: it's "not part of
the curriculum". Few history books give juries the credit they're due--for
stopping the Salem witch trials, for overturning slavery in state after
state before the Civil War, and for ending Prohibition--all by refusing to
convict because they thought the law itself was wrong.
These days, trial by jury often doesn't accomplish all that it should. And
the usurpation continues: trial judges now falsely tell jurors that their
only job is to decide if the "facts" are sufficient to convict, and that if
so, they "should" or "must" convict. Defense attorneys can face contempt of
court charges if they urge jurors to acquit if they think the law is
unconstitutional or unjust. And self-defenders are usually stopped and
rebuked if they even mention their motives, or why they disagree with the
law, to the jury.
Yet to this day, trial jurors retain the right to veto, or "nullify" bad
laws, though they are rarely told this by the courts. Prosecutors and judges
try to exclude people from serving on juries who admit knowing they can
judge the law, or who have doubts about the justice of the law. This
destroys the protections jurors were supposed to be able to invoke on behalf
of fellow citizens against unjust prosecutions: how can our right to a trial
by an impartial jury be met if those with any qualms about the law are
excluded from serving?
The fact is, it cannot. Jury selection has degenerated into a jury-stacking
contest between the attorneys and judge involved. And then, if those who
survive the selection process bring in a verdict that the community does not
like, who gets the blame?
Worse, after enough verdicts have disappointed or angered enough people, the
politicians move in for the kill, arguing that the "jury system needs
reform". By that they mean stripping even more power from the jury, using
juries in fewer and fewer kinds of cases, allowing verdicts to be reached by
a super-majority instead of a unanimous vote, replacing ordinary citizens
with government-licensed professional jurors, etc.
Beware! All such reforms will lead only to a still more powerful government,
and a less powerful citizenry. Justice would come to mean whatever the
government says it means, and the people would be left with no peaceful
method of controlling government tyranny.
....