RR Phantom
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 |  Subject: Jury Nullification: A Moral Duty  Wed Aug 05, 2015 11:33 pm | |
| Jury nullification does not exist and no jury or defendant has the right for an instruction regarding jury nullification.
I am sure that some of you have just punched your monitors, or are incensed at my hubris for speaking the truth. In libertarian circles, some topics get so occluded with angst that we forget it is impossible to have a free and just society if the average person does not understand their rights.
Jury nullification is a term that identifies a phenomenon. Much like the invisible hand does not exist, jury nullification does not exist. They are descriptive terms about what has happened.
Jury nullification is in the news from time to time but does not really reach the average person. Mark Iannicelli was just recently arrested and charged with seven counts of jury tampering because he was handing out pamphlets to educate potential jurors about jury nullification while standing in front of a courthouse. While I support jury nullification as a moral duty, more on that later, standing in front of a courthouse with a sign that reads “Juror Info” is really a bad idea.
To reach the average person, this issue must be taught in introductory history classes. There are several important historical narratives that actually might reach people and educate them on how to deal with unjust laws such as non-violent drug crimes, mandates that bakers bake certain cakes, anti-sodomy laws, and prohibitions on certain arms and ammunition.
A perfect example of a jury feeling the moral indignation of a horribly unjust law, nullifying it, and a Court’s response to that nullification is the story of Bushell’s Case, 124 E.R. 1006 (1670).
In Bushell’s Case, the Palladium of Liberty, the jury, sat for a case against two Quakers who were on trial for being Quakers. They were not willing to lie about their religion and readily admitted in open court that they were, in fact, Quakers. The Judge instructed the jury that they were to find the defendants guilty because, as any first year law student can see, each element of the crime was met, therefore they were guilty! The jury, however, came back with a modified guilty verdict and the Judge was incensed that the jury did not find as he directed.
Because of the jury’s subversive inclination not to do exactly as the Judge instructed them, the Judge locked the jurors away for two days without food, water, or fire. After being released from their cage, the jury then changed their verdict and returned a verdict of not guilty.
That is jury nullification.
Despite the facts, despite the law, despite the defendants’ admissions, despite the judge’s direction and instructions, the jury spoke their conscience despite the overwhelming power of the Judge and government to punish them.
The Judge then handed history a perfect ace, and found the jury members in contempt of court – to which one juror, Bushell, appealed. The appellate court held that a jury is immune from contempt because of its verdict.
This tradition has persisted to American jurisprudence with our first Chief Justice of the Supreme Court, John Jay:
- Quote :
- 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, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.
Georgia v. Brailsford, 3 U.S. 1 (1794). While I disagree with C.J. Jay’s construction of jury nullification being a right, I agree the jury has the power and privilege to do it; what’s more is when the power of the state is being exacted upon a defendant pursuant to an unjust law or immoral law, the jury has the moral duty to find the facts in the defendant’s favor. Because the jury’s finding of not guilty cannot normally be appealed by the state, the jury has absolute power over the outcome of the case.
C.J. Jay’s construction of jury nullification implies that it is a violation of the civil rights to due process of the defendant if a jury is not instructed that it can disregard the law in every case. Of course that is too broad of an interpretation; but he is correct that the jury has the power to determine the law through it’s indissoluble right to determine the facts of the case – though C.J. Jay was not precisely clear on that matter.
In any event, the jury is a bottom up check and balance on the power of the government. If prosecutors and defense lawyers become aware that certain charges will always be nullified by a jury, the state will bring fewer of those charges and defense lawyers will advise their clients to avoid plea bargains. Thus real change will come to pass.
But the lack of a free education market in this country means most people will not be exposed to the power of the jury, the historical justifications of jury nullification, and defendants will continue to be punished for victimless, incipient, unjust, and immoral crimes. If we want to change this, we must bring education to the people instead of advocating for more power to the government to control our wages, what we eat and drink, whom we can marry, what property we can own, which cakes we must bake, what plants we can grow…
http://thelibertarianrepublic.com/jury-nullification-moral-duty/ |
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