Nullification by jury
Federal prosecutors are furious at a Montanabased group that posted signs at the Judiciary Square Metro stop reminding District of Columbia residents of their rights under the law. The offending message, sponsored by the Fully Informed Jury Association, says simply, “Good jurors nullify bad laws.” Nothing angers lawyers and judges like the empowerment of those who aren’t a member of their club.
Jury nullification is rarely discussed by lawyers at the bar, either the courtroom bar or the bar on the corner, but jury nullification has been with us since the time of the Founding Fathers. Alexander Hamilton wrote in the Federalist Papers that trial by jury is the “very palladium of free government,” serving as a check against “arbitrary methods of prosecuting pretended offenses” that are the “engines of judicial despotism.” There’s no better example than juries nullifying the effects of the Fugitive Slave Act of 1850, which required that slaves captured in free states be captured and returned in chains to their owners. Juries often preserved the freedom of these slaves by refusing to convict runaway slaves.
Like any other power, that of a jury can be abused. O.J. Simpson was set free to find the “real killers” of his wife despite substantial evidence that the guilty party was already at hand. Southern juries of yesteryear sometimes declined to convict members of lynch mobs. In our own time, jurors are sometimes unwilling to convict members of their own race on trial for serious crimes.
Under the American justice system, 13 judges sit in judgment of defendants. One presides in a black robe, and the other 12 sit in the jury box. “The 12 good men and true” (now including women) are not bound by the law or the judge’s instructions to convict a defendant; jurors are free to make up their own minds and act accordingly. This is usually the last line of defense for someone caught in the toils of an unjust law or unfair trial.
Jory C. Enck was recently arrested, booked and released on $200 bond in a small town in Texas for failing to return a book to the library. In March, Anthony Brasfield wanted to impress his girlfriend by releasing a bouquet of heart-shaped helium balloons. As they soared into the air, a Florida Highway patrolman arrested him on a charge of felony pollution. A website, “Photography is not a crime,” posts daily examples of journalists and photographers arrested recording police officers, sometimes as the cops are breaking the law.
New Hampshire became the first state last year to make nullification an official policy. “In all criminal proceedings,” the newly enacted law sets out plainly, “the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
Jury-nullification activists in New Jersey and Florida have paid for their advocacy of jury rights. Several have been arrested and charged with “jury tampering” for distributing handbills at the courthouse that essentially publish the text of the New Hampshire law. This demonstrates clearly the responsibility of juries to serve as a check against judges and prosecutors who may think they’re the last word in all matters of the law. Respect for the law and the courts is necessary for the good of all in a free society, and sometimes, as the number of frivolous and oppressive laws multiply, a little nullification can be a tonic, and a reminder to the lawyers, including judges, of who’s really the boss.