Nul­li­fi­ca­tion by jury

The Washington Times Weekly - - Editorials -

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.

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