Jurors Need to Know That They Can Say No is an extremely important OpEd by Paul Butler in the New York Times (and that makes it additionally important because of the reach).
This is something that we’ve talked about for years, here, but it’s really nice to see a well-written compelling piece on jury nullification in the Times.
I was struck by some of the comments. First, it was amazing how many people simply weren’t aware of the notion of jury nullification and that it was their right (and responsibility), despite what many judges and prosecutors would have you believe.
Second, I was somewhat shocked by the strong reaction against it by some (usually without much logic or understanding of the law).
Some were bizarre:
Cassandra: This is dangerous stuff. What if a juror in a death penalty case decides that the evidence is not legally sufficient to justify a death sentence, but chooses to override the instructions given and sentence the defendant to death “as a matter of conscience”. That leaves the juror feeling fine, and morally justified, but leaves the defendant improperly sentenced to die.
Peter Lynn As wonderful as it sounds, jury nullification is a very dangerous, bad idea. It allows twelve people to overthrow the law of the land. There is already a mechanism in place to change laws; campaign against them, get elected, convince a majority, pass a different law.
The idea that a small number of citizens should be able to modify the law arbitrarily is, on the face of it, silly. If I could find eleven people who agree with me that I should be able to take some of Mayor Bloomberg’s money (he would hardly miss a million or two), does that mean that I should be able to walk into his bank and walk out with his money? Not really.
Some didn’t understand the responsibility of citizenship:
Horst…The second reason I disagree is it places undue burden on the juror. It’s not a light task to determine the fate of another human being. I found it much easier when told that our only job was to determine whether the defendant was guilty of the laws as they are written, without regard to the punishment. If you introduce the idea that the juror is responsible for punishment, rather than the legal system, you’re putting an undue burden on a small group of people.
Of course, this was also the person who said, “… that was my only exposure to the law other than ‘Law and Order’.” Unfortunately, way too many Americans have been “trained” in law by that show.
There were also, fortunately, a ton of positive comments. I think that the notion of jury nullification, particularly in non-violent drug cases, is starting to spread as a reaction to the intransigence of the government in reforming this issue (and that’s exactly the purpose of jury nullification).
Here was one comment with a historical reference that I particularly enjoyed:
I couldn’t find the reference, but in school we were told that a very poor man whose family was starving stole a pig from a rich man. The jury said, ‘Not guilty if he returns the pig.’ The judge refused to accept that verdict, so the jury reconvened and returned with, ‘Not guilty and he can keep the pig.’
Wow. Just wow. Translation: “Are you saying that ‘I was only following orders’ is not a legitimate defense?” I’m afraid not, pal. But I get it, acknowledging the responsibility you have for your actions and how they affect others is scary. You’d rather not shoulder that “undue burden” and so you allow some more schmo to be locked in a f***ing cage for a victimless, bullsh*t “crime.” Come to think of it, THAT sounds like a REAL “undue burden.” But hey, better him than you, right?
“more schmo” => “poor schmo”
I knew that was what you meant.
“Peter Lynn As wonderful as it sounds, jury nullification is a very dangerous, bad idea. It allows twelve people to overthrow the law of the land. There is already a mechanism in place to change laws; campaign against them, get elected, convince a majority, pass a different law.”
What this commenter fails to recognize is that only laws that conform to the Constitution are “the Law of the Land”:
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The Constitution of the United States is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . .
A void act cannot be legally consistent with a valid one.
An unconstitutional law cannot operate to supersede any existing valid law.
Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
â€“ Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256)
Keep this in mind when your friends and family, or your elected officials tell you that â€œitâ€™s the law, you have to.â€ If that law is arbitrary to the constitution, if it renders you subject to illegal or unconstitutional laws and acts it is in fact, null and void. Keep this in mind when the courts rule in favor of corporate interests knowingly violating the rights and protections afforded the people as described in the Constitution. Almost without exception, every law that has been passed by one administration and congress after another in the last twenty years has substantially violated and reduced the rights of Americans.
One of the gravest mistakes made by Americans today is the mistake of assuming that because congress passed a piece of legislation and the president signed it, the violations of rights and liberties, the assaults on the American people under the guise of [national security] or other created crisis are justified or legal.
You have guaranteed rights only so long as you defend them from encroachment by the government.
Wow, maybe my great grandfather should have stayed for the trial. But all in all I guess I’d rather be American than Irish.
(The RDCV for those who don’t recall: my great grand dad fled Ireland after the British came by his farm and took his prize pig for taxes, he stole it back and evidently they figured it out.)
Jury nullification: The ‘silver bullet’ that can be aimed right at the heart of injustice…which is why those who profit from that injustice don’t want you to upset their apple cart by your knowing you carry that bullet, chambered and ready for the hammer, in your mind.
I’ve only been called to attend the preliminary ‘penning’ of potential jurors and never got to the voir dire stage where they try to winnow out those who know their rights from the vacant-eyed, bubble-gum popping sheep who’ll believe anything they’re told from any ‘authority figure’.
And I know exactly what I’d say if challenged to adhere only to the judges’ ‘instructions’ (translation: prejudices). Which is why I’ll never get past voir dire. Not in my State (VA), and I’d daresay, not in yours, either.
Potential drug case jurors! Print this handy little card out and keep it with you religiously. And remember this powerful incantation to ward off evil: US v Moylan.
If you somehow manage to get through voir dire and are able to throw a shoe in the works that are trying to railroad a cannabist, and they challenge you, remove your equivalent of the Holy Hand Grenade and ‘pull the pin’ (but don’t bother counting, the fuse is really short!) and hurl it by speaking the sacred words.
Saying this case name to a DrugWarrior prosecutor or judge’s face is like waving a solid silver, garlic-smeared, holy water dripping crucifix in front of a vampire. The reaction will be about the same.
Kap’n, your link doesn’t work.
Hey Kapt….the link to that handy little card only gave me this:
Sorry, but you are looking for something that isn’t here.”
It is possible to get through the voir dire process with your values in tact. Refer to this excellent pamphlet by the folks at the Fully Informed Jury Association:
Surviving Voir Dire ~ How to Get on The Jury
Try this one:
Short and sweet, but Dan Given’s link has the meat on it.
Found and printed out, thanks.
Since I have been indicted for felonies I never make it much past roll call.
So I just spread the word to friends that might make it.
I was so excited to read this editorial – jurors need to understand their obligation to nullify if the situation morally demands it. I feel like we have forgotten our duty to question authority in this country – witness the approval of many people of the police quashing the Occupy movement and their criticisms of civil disobedience. Government violence has risen to completely unacceptable levels and people need to take our country back! Also, people need to understand that jury nullification almost always works for the defendant, not against them.
I remember last summer I was clerking for a federal judge in Vermont, and during a trial there was a man handing out nullification pamphlets outside the courthouse. The cops threatened to arrest him and the Judge instructed the jury not to read the pamphlets and to follow the law. I thought it was a very interesting reaction.
You have heard about the dude passing out info on jury nullification in FL who was arrested for “jury tampering” have you not? That whole thing was unconstitutional as hell, he was on the public sidewalk trying to educate people about their right and duty to our Constitution to stop unconstitutional laws by refusing to convict. The judge who had him arrested is also the judge who tried and sentenced him.
Speaking of judicial authority, it seems that there is another flaw contained in our justice system that is relevant to this case. Since Schmidter was held in contempt, he faced the same judge that charged him. â€œIâ€™m not getting a trial by jury, just thought Iâ€™d throw that in,â€ he said.
It would seem, that in a â€œfairâ€ system, a defendant would face an impartial judge, instead of the same judge that has filed the charge. Seems to me like the judge has a bit of conflict of interest.
“Contempt of Court” is a very special crime, one off in it’s own little world. No need for probable cause, arrest, indictment, trial, etc. Unless Florida is really weird Mr. Schmidter had a show cause hearing, not a trial. As I understand it all that conviction requires is for the judge to say ‘I find _____ guilty of contempt of Court” and it’s done. Judges have exceptional authority over their little fiefdoms most people call Courtrooms or Courthouses. This is ancient common law probably predating the Magna Carta. Of course the authority is not without limit in the US. E.g. the judge couldn’t issue an order that said that all white people have to use a certain door to enter the Courthouse. This absurdity should be overturned given the will and the resources to take it through the Appellate process. Unfortunately it will be long after Mr. Schmidter has finished his sentence and the only penalty to this obvious enemy of freedom will be the ignominy of having his ruling overturned.
I think the comments under pieces on jury nullification are probably those I find the most annoying as it always brings out the good little nazis and sets them to goose stepping and sieg heiling. In particular those that invoke the tragedies in the South when some communities had no problem with acquitting those who violated people of color. We simply can’t expect or demand perfection in the world, and the fact that some in the past used this tool for something we now see as morally reprehensible doesn’t justify tossing this very important right into the trash. But at least they’ve quit using the canard of the OJ Simpson 1.0 verdict as if it were an example of jury nullification. I do take some small comfort in that.
Yep, Duncan, I see the same kinds of reactions to articles about the 10th Amendment which is a State nullifying (by vote, by legislative act, or just by the citizens refusing to obey and the law enforcement agencies refusing to enforce) an unconstitutional federal law within the State’s borders.
I wasnt able to get over to the original article, but i wonder how many of the people against jury nulification would say the same thing if they heard a case involving jim crow laws or the fugitive slave act. Jury nulification is a concept that goes right back to the founding of this country and is an important check on our legal system.