Today I was on a panel of thirty-five citizens of New York County in a civil case involving a woman construction worker who claims injuries in an alleged slip and fall accident she says was caused by the negligence of the landlord, the construction contractor and I think a subcontractor. I'd like to say for the record I was scared by many of my fellow prospective jurors, their pre disposition to assume this woman, whose case they had not even heard yet must be gaming the system. I'm glad that at least they were forthright enough to spill their guts for the attorneys, though maybe, just maybe some claimed a predisposition because jury duty sucks, it pays $40 a day, with no compensation for travel time, and the lawyers offered an estimate that the case would go for six days.
The jury system is surely broken as it is.
I offered that I thought I could be fair but that I doubted I could honestly take the oath, as I would be swearing to God that I will follow the judge's version of the law, when I know that since the 1670's in common law in the English speaking realms there is an understanding of jury nullification. This got me a get out of jury duty free pass, which is a shame because I could take the six days, given that I'm a pensioner and I could be fair, because as left as I am I would not award someone who was not injured by the fault of others, as this stuff makes it harder for real victims of negligence to find justice and recompense.
Anyhow, maybe some juror will google "jury nullification" and find out what it means. Maybe some lawer will! That would be its own reward.
I got called for jury duty and served my first day today. They showed us prospective jurors a video in which it was claimed that we must follow the judge's instructions, ie. his or her version of what the law says and then simply make a determination of who or what did or did not violate the law. The video cited the case of William Penn, saying he had been arrested and prosecuted for a "disorderly" sermon on a London street. The jurors in the Penn case had been expected to do what the crown wanted them to do, that is to convict Penn. They did not convict, and they were themselves imprisoned.
One of the narrators of the video was Diane Sawyer. Her appearance put me back to the days when I was unhappily granted fifteen minutes of fame while a struggling $25,000 a year caseworker who lived in a seventy-five dollar a week room with shared bathroom and no kitchen privileges in the attic of Marty O'Toole on Sedgwick Avenue in the Bronx. I stopped by a newsstand on my way to my usual breakfast diner and saw a case I was involved in trumpeted across the New york Daily News front page. "Diane Sawyer Stole My Baby." In this case I had been ordered to remove several children from their loving mother who was struggling with drug addiction but had succeeded in providing more than minimal care for them. I followed the orders of my manager who was not intimately involved in the case and had never met the family at all. The removal was to be done as an "emergency removal" prior to a court hearing which would take place the following day. It could be argued that the kids had to be removed temporarily and brought to someplace better but in my first hand opinion, and I had removed dozens of kids, and knew this family, there was no immediate need to take them out before a judge could review the case. In fact juries need to be assembled to sit on these child removal travesties. I had to fight like a tiger to get them placed with their grandmother, although the damage had been done, they were traumatized, I am sure, for life.
The mom accused Sawyer of being behind the removal. I had and have no way to say this was or was not so. The case made a big impact for a while. I guess my point here is that the law can be lawless and that if there ever were a court that needed a jury of intelligent citizens armed with knowledge of the doctrine of jury nullification it would be Family Court.
http://www.nydailynews.com/archives/news/1998/06/19/1998-06-19_sawyer_girl_not_getting_ther.html
One of the allegations against this mom was that she had not sent her daughter to therapy. Imagine that! Best kidnap the kid right now and send her into a hell she will never forget, and ooops, sorry, forget the therapy.
Click the above link. Nothing has changed at child welfare (aka child protective services)
Another link about the case:
http://www.nydailynews.com/archives/news/1998/06/16/1998-06-16_star_power_backfired_despite.html
http://www.uscourts.gov/outreach/resources/williampenntrial.htm
The Trial of William Penn
The trial takes about twenty minutes. It is amusing and more complex than it appears. Although it may seem simplistic it deals with two very important issues, the writ of habeas corpus and jury nullification.
Adapted from the play:
The Tryal of William Penn and William Mead
By: Mary DeAngelis and Margo Gulati
CHARACTERS:
-Narrator
-Crier
-Court, Lord Chief Justice of the Court of King's Bench
-Jurors, 12, including the Foreman and Bushel
-Foreman, Thomas Veer (Juror)
-Edward Bushel, Juror
-William Penn, Defendant
-Clerk
-James cook, Witness
-Richard Read, Witness
NARRATOR: The date is September 1, 1670. The place is the Old Bailey Courthouse in London, England. The Conventicle Act makes it a crime for any person who is not a member of the Church of England to preach inside a building. Knowing this, 21-year-old William Penn, a Quaker and future founder of the colony of Pennsylvania, preached to an assembly of Quakers (a religious group not in unity with the Church of England) on Gracechurch-Street in London. He was arrested and charged with fomenting an unlawful and tumultuous assembly. His trial, which demonstrates the extent to which jurors will go to protect the role and responsibility of the jury, is about to begin.
CRIER: Oyez. All those having business before this honorable court are admonished to draw near, give their attention, and they shall be heard. God save the King!
The honorable men of the jury: Thomas Veer, Edward Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumstead, Henry Henley, Thomas Damask, Henry Michel, William Lever, and John Baily.
Oath: "You shall swear that your verdict in this matter shall be based upon the evidence presented in this trial and upon the evidence alone. So help you God."
JURORS: We do.
CRIER: William Penn. You shall now hear the indictment against you.
That you, William Penn, on or about the 14th day of August 1670, with force and arms, did unlawfully and tumultuously assemble yourself and others in disturbance of the peace. Moreover, once assembled, you did preach and speak to the crowd, an action that resulted in an even greater disturbance of the peace.
COURT: How do you plead, William Penn? Guilty or not guilty?
PENN: I plead not guilty.
COURT: Bring William Penn to the Bar.
NARRATOR: In order to both wear down and instill fear in Penn, the court does not begin his trial immediately, but makes him wait until the trials of felons and murderers have taken place. More often then not, these trials result in guilty verdicts and death sentences. After five hours of this, court adjourns. It reconvenes on September 3. As was customary, Penn removed his hat when he entered the courtroom. On this day, however, the court instructed the clerk to place it back upon his head.
COURT: William Penn. Do you know where you are? Do you not know that you are in the King's Court?
PENN: I do.
COURT: Then why do you not show respect to the court and remove your hat?
PENN: I did come into court with my hat off, but the court ordered that it be placed back upon my head.
COURT: The court has heard enough. You are fined 40 marks for your contempt of court.
PENN: Since the court commanded me to put my hat back on my head, I believe that the court should be fined. I ask the jury to note the injustice that I have been subjected to by the court.
NARRATOR: The first witness is James Cook, a soldier who was sent to arrest Penn.
CLERK: Crier, call James Cook into court, and give him the oath.
CRIER: James Cook, come into court.
CLERK: James Cook, lay your hand upon the Bible. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
COOK: I do.
COURT: Please give your testimony to the court.
COOK: I was sent to disperse a meeting at Gracechurch-Street. When I arrived, I saw the defendant, William Penn, speaking to a crowd of about 300 or 400 people. I attempted to arrest him, but I could not get near him because of the crowd.
NARRATOR: James Cook is excused. The next witness is Richard Read. He was present when William Penn was arrested.
COURT: Crier, call Richard Read, and give him the oath.
CRIER: Richard Read, come into court.
CLERK: Richard Read, lay your hand upon the Bible. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
READ: I do. My Lord, I was sent to Gracechurch-Street where I found William Penn speaking to a large group of people. Due to the noise of the crowd, though, I was not able to hear what Penn was saying.
PENN: (Interrupting) Jury members, remember this evidence. He says that he heard me speaking, but was not able to hear about what I was speaking.
COURT: Be quiet, Mr. Penn! Mr. Read, about how many persons do you think were present?
READ: About 400 or 500.
COURT: Mr. Penn, do you have any questions for the witness?
PENN: Yes, my Lord. What was the day in question?
READ: August 14.
NARRATOR: Richard Read is excused. Instead of presenting his side of the case, William Penn proceeds to get into a legal argument with the court.
PENN: I have a question for the court.
COURT: What is your question, Mr. Penn?
PENN: I demand to know what is the legal basis for my indictment? I am not aware of any place where it is written down that my actions are illegal. Please show me a law book that contains the provision prohibiting my actions.
COURT: Mr. Penn, the legal basis for your indictment is the common law. The provision prohibiting your action is not simply written down in any one place. Rather, it is the result of legal principles that have been put forth and expanded upon as result of many years--hundreds of years--of court cases.
PENN: In that case, my Lord, I wish to withdraw my earlier plea of not guilty.
COURT: Do you now wish to plead guilty?
PENN: No, my Lord. I simply desire not to plead.
COURT: What do you mean! You have to enter a plea.
PENN: Shall I plead to an indictment that has no foundation in law? No one can even show me where the provision prohibiting my action is written down! The question is not whether I am guilty of the indictment, but rather is the indictment legal? Unless I know where and what the common law is, the indictment is too general and imperfect for me to answer.
COURT: How dare you lecture me on what the law is? How can I tell you in a moment what it has taken some a lifetime of study to understand?
PENN: If the common law is so hard to understand, then I suppose it is not very common.
COURT: Mr. Penn, I can see that you are a troublesome person. I warn you, though, that the court's patience is not infinite, and it will not suffer you to go on for much longer.
PENN: All I ask is that you allow me to exercise the rights that belong to every Englishman. How can one be convicted of an action that he had no way of knowing was forbidden?
CLERK: (addressing the court): My Lord, if you do not do something to keep this pestilent fellow quiet, we will not be able to get anything done tonight.
COURT (to the jailor): Take Mr. Penn away. Take him to the Bale-dock.
NARRATOR: The Bale-dock is a walled-off part of the courtroom in which the partitions do not touch the ceiling. This action is intended to remove William Penn from the sight of the jurors, but he is still able to be heard and to hear the proceedings.
PENN (exclaiming to the jury): Is this justice? Must I be taken away because I plead for the fundamental laws of England? If this action be permitted, it can only lead to disaster. Certainly our liberties will be invaded, our wives ravished, our children enslaved, our families ruined, and our estates led away in triumph. This is the consequence of forfeiting our rights.
COURT (to Penn): Be quiet! Far from being their defender, Mr. Penn, I look upon you as being the enemy of the laws of England!
NARRATOR: Penn is now locked away in the Bale-dock. Since all of the witnesses against Penn have testified, the court begins instructing the jury.
COURT: Gentlemen of the jury, you have heard the indictment against William Penn. It is for unlawfully and tumultuously assembling a crowd in disturbance of the peace and for preaching to the said crowd. You have heard witnesses prove these facts. These are the facts which you have sworn to rely upon in reaching a verdict.
PENN (to the jury): I appeal to the jury, who are my judges, to recognize that the proceedings of this court are arbitrary. It is unlawful for the court to instruct the jury in the absence of the prisoner. This violates the Magna Carta, the source of all of our laws.
COURT (to Penn sarcastically): I hear you, but I do not see you.
PENN: That is because you had me locked in the Bale-dock. My jurors, you cannot depart until you have heard my side of the story. It is unlawful for the court to instruct the jury and send it to deliberate without allowing the prisoner to plead his case.
COURT: You deserve to have your tongue cut out, Mr. Penn! Pull that fellow down, pull him down! Place him in the hole.
NARRATOR: The hole is a space underneath the Bale-dock into which the Bale-dock can be lowered.
COURT (turning to the jury): I am sorry that you had to witness that. Mr. Penn may talk to himself all night if he so desires. I am sure that you are tired of his antics and do not have the patience to hear anymore from him. You may retire now to consider your verdict. Once you are agreed, return.
NARRATOR: Some time passes, and the jury reaches a verdict and court is reconvened.
COURT: Are you agreed upon your verdict?
JURY: Yes.
COURT: Look upon the prisoner at the bar. How say you? Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: Guilty of speaking in Gracechurch-Street, my Lord.
COURT: Is that all?
FOREMAN: That is all I have to say.
COURT (agitated): That does not mean a thing! What about the unlawful assembly? That is what he is charged with fomenting. You mean he was speaking to the tumult of the people, do you not?
FOREMAN: That is all I can say.
NARRATOR: The court presses the Foreman over the issue of the unlawful assembly. After much questioning, the Foreman makes some concessions to the court. At this point, three jurors, including Edward Bushel, tell the court that they had not authorized the Foreman to speak for them beyond the verdict. At this point, the court begins to belittle the jurors, sometimes with profanity.
COURT (to the jury): I have had enough of your insolence. The laws of England will not allow you to leave until you have provided the court with a real verdict.
BUSHEL: We have given our verdict and can give no other.
COURT: What you have given is not a verdict. Go and consider your decision again.
NARRATOR: The jury is sent to deliberate again. A half hour later, it returns.
COURT: Are you in agreement with your verdict.
JURY: Yes.
COURT: What say you? Look upon the prisoner. Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: We the jury find William Penn to be guilty of speaking or preaching to an assembly in Gracechurch-Street on August 14, 1670.
COURT (extremely agitated): Why do you allow yourselves to be led by Bushel? Gentlemen, you will pay for your insolence. You will not be dismissed until we have a verdict--a verdict that the court will accept. And, until we do, you will be locked up, without meat, drink, fire, and tobacco; you will not think to abuse the court. By God, we will have a verdict, or you will starve for it!
PENN (protesting the jurors' treatment from the Bale-dock): The verdict of the jurors, who are my judges, ought not to be forced, but should be freely given.
COURT (to Penn): Will you ever be quiet Mr. Penn? If you do not close your mouth, I will have you put out of court.
PENN (ignoring the court): Jurors, remember that we, the Quakers, were by force of arms kept out of our lawful meeting house. That is why we met in the street; however, we did not disturb anyone. To the contrary, we were disturbed.
COURT: Be quiet Mr. Penn, I am warning you.
PENN (continuing to address the jury, unmoved by the court's admonishment): The agreement of 12 men is a verdict in law. If one is given by the jury, I require the clerk to record it, or answer for it at his peril. And if the jury brings in another verdict contradictory to this, I affirm that they are perjured men in law. You are Englishmen, mind your privilege, and do not give away your rights.
BUSHEL: We never will.
NARRATOR: William Penn quiets down. As the jury is about to be led away, one juror comes forward and pleads with the court that he is too infirm to be denied food and drink.
COURT (to the infirm juror): You appear to be as strong as the rest; therefore, you may starve with them.
COURT (to the jury): For the rest of you, resign yourselves to your hard fate. The court will have a verdict, a verdict you shall provide before you are dismissed.
NARRATOR: The court adjourns until seven o'clock the following morning. When court is called to order, the Jury is called in to announce its verdict.
COURT: Are you agreed upon a verdict?
JURY: Yes.
COURT: What say you? Look upon the prisoner at the bar. Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: He is guilty of speaking in Gracechurch-Street.
COURT (bewildered): To an unlawful assembly?
BUSHEL (defiantly): No, my Lord. Not to an unlawful assembly. Our verdict has not changed since last night.
COURT (to Bushel): You are a factious fellow, and you will pay for your defiance.
BUSHEL: I have acted according to my conscience.
COURT: That conscience of yours would cut my throat.
BUSHEL: No, my Lord. It never shall.
COURT: But I will cut yours as soon as I can. You have inspired the jury to insolence. Very well, Mr. Bushel. Know this, though, you are not going anywhere until I have a verdict. Mark my words, I will have a positive verdict, or you will starve for it!
NARRATOR: The jury is sent to deliberate once again. It is brought back into the courtroom later in the day.
COURT: What say you? Is William Penn guilty of the crime for which he stands indicted, or not guilty?
FOREMAN: Guilty of speaking in Gracechurch-Street.
COURT (to the jury): Again I ask, why do you allow yourselves to be led by this man (pointing to Bushel)? I desire to find a way to punish you, Mr. Bushel, for your abuse of this court.
PENN (interrupting): Ashamed are the jurors who give verdicts contradictory to their conscience.
CLERK: My Lord, please make Mr. Penn remain quiet.
COURT (to the jailor): Jailor, bring shackles, and stake Mr. Penn to the ground.
PENN (defiantly): Do what you wish.
COURT: Until now, I have never understood why the Spanish permitted the procedures used by the Inquisition. After this trial, I must admit that I do see some merit in them.
NARRATOR: William Penn is silenced. The jury is sent to deliberate, but it is shortly called back into court.
COURT (to the jury): You will be happy to know that courts will not have to put up with such insolence for much longer. Next session, a bill will be going through Parliament that will require juries to render true verdicts, or place themselves outside of the protection of the law. That being said, I realize that we will get nowhere with you. Therefore, I am instructing the clerk to draw up a special verdict, directing that the prisoner be found guilty of unlawfully and tumultuously assembling in disturbance of the peace.
JURY: That is unlawful. We have already agreed to a verdict!
COURT: Your verdict does not mean anything. You play games with the court. Now, listen very carefully. I am giving you one last time to deliberate and reach a true verdict. If you do not, you will starve.
NARRATOR: Court adjourns for the evening. The jurors are taken to Newgate prison for the night. The following day, court reconvenes.
COURT (to the jury): This is your last chance. Look upon the prisoner. What say you? Is William Penn guilty of the crime, or is he not guilty?
FOREMAN: Here is our verdict in writing.
NARRATOR: The paper is delivered to the Lord Chief Justice.
COURT (upon reading the paper): I ask again, is William Penn guilty or not guilty?
FOREMAN: Not guilty, my Lord.
COURT: So say you all?
JURY: Yes, we do.
NARRATOR: Not being satisfied with their verdict, the court polls the jury, having every juror give their verdict when his name is called.
COURT (to the jury): Members of the jury, I am sorry that you followed your own judgments instead of relying upon the advice of this court and upon the facts presented in this case. For giving a false verdict, the court fines each of you 40 marks and orders that you be imprisoned until the fine is paid.
PENN: I demand my liberty, having been found not guilty by the jury.
COURT: Mr. Penn, you shall not have it. You are still in contempt of court. You are to remain imprisoned until you pay the 40 marks levied against you for wearing your hat into court.
PENN: I protest this action. Can any man be fined or imprisoned except upon the judgment of his peers? Does this not violate the fourteenth and twenty-ninth chapters of our great law, the Magna Carta?
COURT (to the jailor): I determine what the law is. Get him out of this court! Take him out! Take him out!
PENN (to the Lord Chief Justice): I argue for the fundamental laws of England; all you argue is that I be taken away. No wonder you hold such a special place in your heart for the Spanish Inquisition!
NARRATOR: Both Penn and his jurors are hauled away to Newgate prison for nonpayment of their fines.
AFTERWORD
NARRATOR: While in prison, juror Edward Bushel files a writ of habeas corpus with the Court of Common Pleas (a type of appeals court) in England, arguing that his imprisonment is unlawful. A writ of habeas corpus is a legal procedure that allows prisoners to contest the legality of their imprisonment. Chief Justice Vaughan agreed with Bushel and ordered the confined jurors to be released. "Bushel's Case," as it came to be known, is of a great importance in law because it established the concept of jury nullification. In essence, the court reaffirmed the principle that the right to determine the facts of a given case is the sole prerogative of the jury, not the judge. Consequently, even if a jury in a criminal case finds a defendant not guilty when all of the facts might prove guilt to an objective person, courts cannot punish the jurors for rendering what might be considered a false verdict. Courts also cannot try to compel them to change their verdict. Today, jury nullification is sometimes used to make a social statement that the jurors think a particular law is unjust and that people should not be prosecuted for violating it.
http://www.prorev.com/juries.htm
JUROR'S MANUAL
NEWS ITEMS
What lawyers & judges
won't tell you
about juries
By Sam Smith
The fully informed jury movement has been in the news and the subject of badly misinformed journalism. The following article, which appeared in the Progressive Review in 1990, explains this important issue:
William Penn may have thought he had settled the matter. Arrested in 1670 for preaching Quakerism, Penn was brought to trial. Despite Penn's admitting the charge, four of the 12 jurors voted to acquit. The judge sent the four to jail "without meat, drink, fire and tobacco" for failing to find Penn guilty. On appeal, however, the jurors' action was upheld and the right of juries to judge both the law and the facts -- to nullify the law if it chose -- became part of British constitutional law.
It ultimately became part of American constitutional law as well, but you'd never know it listening to jury instructions today almost anywhere in the country. With only a few exceptions, juries are explicitly or implicitly told to worry only about the facts and let the judge decide the law. The right of jury nullification has become one of the legal system's best kept secrets.
Now a remarkable coalition has sprung up to challenge this secrecy as undemocratic, unconstitutional and dangerous. Though organized by libertarian activists, the Fully Informed Jury Amendment movement includes liberals and conservatives, Greens, drug decriminalization advocates, gun owner groups, peace activists, both sides of the abortion controversy, helmet and seatbelt activists, alternative medicine practitioners, taxpayer rights groups, environmentalists, criminal trial lawyers and law professors.
Organized by Larry Dodge and Don Doig, both of Helmville, Montana (population: 26; elevation 4300'), FIJA seeks to require that juries be informed of their nullification rights. Informed jury amendments have been filed as an initiative in seven states and legislation has been introduced in the Alaska state legislature.
Merely raising the issue of nullification can make prosecutors nervous, for it takes only one person aware of the right in order to hang a jury. In Washington, DC, where the concept was discussed in connection with the Marion Barry trial, a local television station reported that the US Attorney was worried that a jury might nullify the law in that case. The joke in DC was that Barry was campaigning, but only for one vote, that of a single juror. The specific charges against Barry revolved around his use of drugs and a growing number of people are coming to accept the argument that drug use or addiction should not be a criminal offense. Further many DC residents were concerned about the prosecution's heavy-handed pursuit of the mayor. Despite the refusal of courts to inform juries of their right to nullify, American juries have periodically exercised it anyway. In recent years, some peace protesters have been acquitted despite strong evidence that they violated the law. In the 19th century northern juries would refuse to convict under the fugitive slave laws. And in 1735 journalist Peter Zenger, accused of seditious libel, was acquitted by a jury that ignored the court's instructions on the law.
Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue "the law -- its interpretation and validity -- to the jury." By the latter part of the century, however, judges and state law were increasingly moving against nullification. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on nullification stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had "developed agrarian tendencies of an alarming character."
Today, the constitutions of only two states -- Maryland and Indiana -- clearly declare the nullification right, although two others -- Georgia and Oregon -- refer to it obliquely. The informed jury movement would like all states to require that judges instruct juries on their power to serve, in effect, as the final legislature of the land concerning the law in a particular case.
As the diverse nature of the movement suggests, many groups in this country feel the government has overstepped its power in some way and that there must be protection for the natural rights of American citizens. They are defending not only the right to protest or carry a gun or not wear seatbelts but challenging the right of the government to decide such matters without the mediating effect of a jury's judgement of fairness in a particular case.
For many liberals and progressives, who tend to be confident of the beneficent nature of government power, such a challenge may be a bit uncomfortable -- understandable in a case involving a peace protest, less appreciated if invoked by a member of the National Rifle Association. The libertarians argue that the two are of one cloth. As government intrusion in individual matters has increased, the libertarian view has gained influence, helping to tilt normal left-right divisions on their side. Libertarians, for example, have been key to the growing opposition to the barbaric Reagan-Bush war on drugs, providing some of the best analysis and advocacy available on the issue.
Libertarians are again in the lead on the nullification issue. Many progressives may be uneasy about the thought of a western jury nullifying a case involving a gun control or seatbelt law, but this unease reminds one of little discussed principles that were once considered central to being an American -- not the least of which was freedom from some government official telling you how to live your life. As the design of the modern centralized welfare state frays and becomes increasingly authoritarian, reacquaintance with some of our individualistic roots has much to recommend it.
NULLIFYING NULLIFICATION
It was nice to see the Washington Post finally giving some attention to jury nullification, even if after four months of research and interviews with more than 100 jurors, judges, defense lawyers and prosecutors, it still couldn't get the story right.
For example reporter Joan Biskupic stated, "Anyone accused of a crime in this country is entitled to a jury trial." The Constitution may say so but, in fact, this is simply not the case -- and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial.
Biskupic also wrote: "The American custom is that jurors decide the facts of the case (whether the person did what he is accused of) and leave it to judges to interpret the law. There is no room, in other words, for jurors to say whether they think the law is a good one, though there have been a few celebrated exceptions -- notably the 18th-century acquittal of John Peter Zenger of seditious libel and the 19th-century acquittals for prosecution under the fugitive slave law."
This is a rewriting of history, one of the privileges of a reporter who works for a paper free to do so thanks to the rights of jurors upheld in the Zenger case. -- TPR 2/99
In fact, it is unlikely that a jury considering a gun control case would excuse the leader of an underground Nazi movement or a gang of bank robbers. It 1is far more likely that it would acquit the respectable rancher who simply believes that gun control represents further destruction of his paradigm of individual liberty. If so, what have we lost?
The history of jury nullification suggests there is little to fear. In those states where the concept is respected to some degree it has had minimal effect on the overall functioning of the law. Nullification has, on the other hand, played a little noted but significant role in the advance of religious and press freedom, the abolition of slavery and the building of a labor movement. Even in the face of hostility by contemporary courts, it has cropped up in political protest trials of the past few decades. And it might have surfaced more frequently absent that hostility. As one of the jurors said following the conviction of the Berrigan brothers in 1980:
We convicted them on three things, and we really didn't want to convict them on anything. But we had to, because of the way the judge said the only thing that you can use is what you get under the law... I would have loved to hold up a flag to show them we approved of what they were doing. It was very difficult for us to bring in that conviction.
The nullification principle involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny. As Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." To get in touch with the fully informed jury movement write: Fully Informed Jury Association, Box 59, Helmville MT 5984, 406-793-5550
"If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law." -- Chief Justice Harlan F. Stone
"For more than six hundred years-- that is, since Magna Carta, in 1215--there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law." --Lysander Spooner, The Right of Juries
If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. -- 4th Circuit Court of Appeals, US v Moylan, 1969
Every jury in the land is tampered with and falsely instructed by the judge when it is told that it must accept as the law that which has been given to them, or that they can decide only the facts of the case. -- Lord Denham, O'Connell v Rex (1884)
The jury has the power to bring in a verdict in the teeth of both the law and the facts. -- Justice Holmes, Homing v District of Columbia, 138 (1920)
When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion...Because of the high acquittal rate in prohibition cases in the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic. -- Sheflin and Van Dyke, Law and Contemporary Problems, 43, No. 4, 1980
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 directions of the court.-- John Adams
THE WIRE'S WRITERS COME OUT FOR FULL JURY RIGHTS
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